State v. Travis C. Collins, Sr.

ENTRY ORDER
SUPREME COURT DOCKET NO. 2021-027
FEBRUARY TERM, 2021
State of Vermont v. Travis C. Collins, Sr.* } APPEALED FROM:
}
} Superior Court, Franklin Unit,
} Criminal Division
}
} DOCKET NO. 796-6-17 Frcr
Trial Judge: Howard E. Van Benthuysen
In the above-entitled cause, the Clerk will enter:
Defendant appeals a January 26, 2021 decision holding him without bail pending a merits
decision on a violation of probation complaint (VOP). He argues that the trial court abused its
discretion in holding him without bail because, given the constraints on court proceedings due to
COVID-19, it failed to consider whether it could provide defendant with a timely in-person merits
hearing. For the reasons articulated below, we affirm the hold-without-bail order.
The record indicates the following. In January 2018, defendant pled guilty to first-degree
unlawful restraint, 13 V.S.A. § 2407(a)(1). Defendant was sentenced to serve one to five years,
which was all suspended except for one year, and was placed on probation under standard and
special conditions. On January 8, 2021, the State filed a VOP against defendant, alleging that he
violated Condition L, which provided that he “shall not buy, have, or use any regulated drugs
unless they are prescribed by a doctor.” The VOP specifically alleged that on three occasions in
October 2020, defendant sold crack cocaine to an undercover informant working with local law
enforcement.
The court issued a hold-without-bail order on January 8 finding that defendant’s underlying
conviction for first-degree unlawful restraint is a violent felony. See 13 V.S.A. § 5301(7)(T)
(identifying first-degree unlawful restraint as violent felony); 28 V.S.A. § 301(4) (providing that
“[p]ending arraignment for any charge of violation, the probationer shall be detained at a
correctional facility” and there is no right to release for probationer on probation for violent
felony). That same day, defendant was also arraigned in a separate docket on three new felony
charges for selling crack cocaine, 18 V.S.A. § 4231(b). In that docket, the court imposed $5000
bail and several other conditions, including that defendant not leave the state without the court’s
permission.
On January 11, defendant moved to review the hold-without-bail order under 13 V.S.A.
§ 7554(d).1 See 28 V.S.A. § 301(4), (5)(A) (providing that after arraignment, court may release
probationer convicted of a violent felony pursuant to 13 V.S.A. § 7554). The court held a motion
1 On January 21, the trial court scheduled a hearing for January 26. Prior to receiving
notice of the scheduled hearing, defendant appealed the January 8 hold-without-bail order. Given
the trial court’s subsequent January 26 decision, this initial appeal was dismissed as moot on
January 28. State v. Collins, No. 2021-018 (Vt. Jan. 28, 2021) (unpub. mem.),
https://www.vermontjudiciary.org/sites/default/files/documents/eo21-018.pdf [https://perma.cc/
T852-H3T4].

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hearing on January 26 via Webex where defendant argued that he should be released on the same
bail and conditions that were imposed on the new felony charges and offered his girlfriend, who
testified on his behalf, as a custodian. He argued that these conditions were sufficient to mitigate
any risk of flight because he has lived in Vermont for twenty-seven years, currently lives with his
teenage children only a few hundred feet from the courthouse, and has a job waiting for him upon
release. Due to COVID-19 protocols, defendant also expressed concern that he would not receive
a VOP merits hearing within a reasonable time. The State opposed defendant’s release, arguing
that he posed a threat to public safety based on the facts surrounding his underlying conviction.
In a written order issued on January 26, the court concluded that the hold-without-bail order
should be left in place. It explained that it was reasonable to be concerned that defendant would
pose a public-safety risk if released, given that his underlying conviction was based on terrorizing
a suspected police informant and the new felony charges allege that defendant made cocaine sales
to a police informant. Furthermore, the court concluded that defendant’s girlfriend was not an
appropriate custodian because she does not live with defendant and would be unavailable to
supervise him while she was at work. The court indicated its intent to provide defendant with a
timely merits hearing and directed the clerk to schedule a hearing within the next forty-five days.
Defendant appealed.
Vermont Rule of Criminal Procedure 32.1 provides that a decision to hold a defendant in
custody pending a merits decision on a VOP, “shall be reviewable in the manner provided in 13
V.S.A. §§ 7554 and 7556 for pretrial release.” V.R.Cr.P. 32.1(3)(A). Section 7556(b), in turn,
provides a right to appeal to a single Justice of the Supreme Court who shall affirm the “order so
appealed . . . if it is supported by the proceedings below.” 13 V.S.A. § 7556(b); see also State v.
Barrows, 172 Vt. 596, 596-97, 776 A.2d 431, 432 (2001) (mem.).
Section 301(4) of Title 28 provides that “[p]ending arraignment for any charge of violation
[of probation], the probationer shall be detained.” After arraignment, “a court may release a
probationer on bail pending the revocation hearing.” State v. Breer, 2016 VT 120, ¶ 7, 203 Vt.
649, 160 A.3d 318 (mem.). However, “unless the person is on probation for a nonviolent
misdemeanor or nonviolent felony,” there is no right to bail or release. 28 V.S.A. § 301(4); see
also id. § 301(5)(B) (defining violent felony and violent misdemeanor as listed crime in 13 V.S.A.
§ 5301(7)); State v. Campbell, 2014 VT 123, ¶ 6, 198 Vt. 627, 110 A.3d 289 (mem.) (explaining
that “trial court has discretion to grant bail or release”). In deciding whether to release a
probationer, the trial court must consider the factors outlined in § 7554(b). 13 V.S.A. § 7554
(providing that conditions of release may be imposed that “mitigate the risk of flight” and
“reasonably protect the public”); Campbell, 2014 VT 123, ¶ 9 (“Rule 32.1(a)(3)(A) expressly
requires courts to consider the § 7554(b) factors when determining conditions of release for
probationers.”). While the trial court must consider all relevant factors, its “discretion is extremely
broad, and we will affirm its decision if it is supported by the proceedings below,” Campbell, 2014
VT 123, ¶¶ 6, 9-10 (citation omitted).
Defendant argues that the trial court abused its discretion because it failed to consider a
relevant factor. He argues that although the trial court acknowledged that defendant might not
receive a timely hearing and directed the clerk to schedule a hearing within forty-five days, it failed
to consider whether an in-person hearing could be held in that time period given the constraints
imposed by Administrative Order 49. See A.O. 49, § 5(d) (declaring a judicial emergency due to
COVID-19 and providing that except for hearings in the criminal division, all superior court
hearings “must be scheduled for remote participation by parties, witnesses, and other
participants”). We conclude that the trial court did not abuse its discretion.

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While the trial court acknowledged defendant’s concern about receiving a timely merits
hearing—and left open the possibility that it would reconsider its decision if defendant was not
provided with a hearing within forty-five days—its decision to hold defendant without bail was
not based upon whether he would be provided with an in-person hearing in that time frame. In
determining whether to release a defendant, a trial court is required to consider the various factors
outlined in § 7554, which generally ask whether a court can impose conditions that “will
reasonably mitigate the risk of flight” and “will reasonably ensure protection of the public.” 13
V.S.A. § 7554(a)(1)-(2). Considering these factors in this case, the trial court ordered defendant
held without bail because it was concerned that he posed a risk to public safety. It was specifically
concerned by the fact that his underlying conviction was based on terrorizing a suspected police
informant, and the new felony charges allege that defendant made cocaine sales to a police
informant.
Given the trial court’s reason for holding defendant without bail, the question of whether
the merits hearing will be in person is not ripe for our consideration. State v. M.W., 2012 VT 66,
¶ 11, 192 Vt. 196, 57 A.3d 696 (“Claims are ripe when there is a sufficiently concrete case or
controversy and when the exercise of judicial authority is justified by prudential considerations.”
(quotation omitted)). Defendant did not raise the issue below, and the trial court did not purport
to address it. In addition, while COVID-19 may make it more difficult to schedule an in-person
hearing, Administrative Order 49 does not mandate that all criminal hearings be conducted
remotely. While it gives the trial court the discretion to conduct non-evidentiary hearings
remotely, it may only conduct evidentiary hearings remotely “upon agreement of all parties.” A.O.
49, § 5(d). At this point, there is simply not a live controversy regarding whether defendant will
be provided with an in-person hearing.
Affirmed.
FOR THE COURT:
Karen R. Carroll, Associate Justice