State v. Luis Angel Torres-Caraballo

VERMONT SUPREME COURT Case No. 22-AP-300
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

ENTRY ORDER

NOVEMBER TERM, 2022

State of Vermont v. Luis Angel Torres- } APPEALED FROM:
Caraballo* }
} Superior Court, Orange Unit,
} Criminal Division
} CASE NO. 60-2-19 Oecr
Trial Judge: Elizabeth D. Mann

In the above-entitled cause, the Clerk will enter:
Probationer appeals an order of the superior court requiring that he be held without bail
pending the merits hearing on his alleged violation of the conditions of his probation. We affirm.

On August 12, 2020, probationer Luis Angel Torres-Caraballo entered into a plea
agreement in which he pleaded no contest to an allegation of lewd or lascivious conduct with a
child in violation of 13 V.S.A. § 2602 and sexual assault on a victim under sixteen years of age
in violation of 13 V.S.A. § 3252(c). On October 14, 2020, pursuant to the agreement,
probationer was sentenced to two-to-five years on the lewd or lascivious count, all suspended,
and five years, deferred, on the sexual-assault count. He was released into the custody of the
Department of Corrections to serve the sentence of probation with various conditions attached.
The probation conditions included requiring that probationer comply with electronic monitoring,
obtain approval from his probation officer regarding residence and employment, abstain from
initiating or maintaining contact with female persons under the age of sixteen, and inform
persons with which he has a relationship of his sex-offending history.

On October 20, 2022, the State filed a probation-violation complaint alleging that
probationer had violated numerous conditions of his probation by spending the night at the house
of an acquaintance where the acquaintance’s fourteen-year-old daughter also resided. The State
further alleged that probationer failed to keep his electronic monitor charged and that he failed to
disclose his status as a sex offender to the residents of the house where he stayed. Probationer
was arraigned the next day on the violation-of-probation (VOP) charge and ordered held without
bail pending a merits hearing. Probationer filed motions for bail review and dismissal on
October 25, 2022, and a bail review hearing was held eight days later. During the hearing,
probationer argued that his vehicle would not start, leaving him no choice but to spend the night
somewhere other than his approved residential address. Probationer further argued that the
conditions of probation were not adequately translated into his native language, Spanish,
rendering him unable to understand them. The State argued that attempts were made to provide
probationer with the required notice, including providing him with a probation officer who is a
native Spanish speaker and reviewing specific conditions, such as not to go to the home in
question, in Spanish.

Probationer’s request for bail pending the merits hearing on his probation violation was
denied. In its denial of probationer’s request, the trial court noted that probationer does not have
a right to bail in this matter. It further found that the parties agreed that probationer was
provided conditions in Spanish and that the expert testimony revealed the minor grammatical
errors in those conditions were not enough to preclude probationer’s understanding. Finally, the
trial court opined on the seriousness of the underlying charge, the purpose of the conditions
which was to avoid a recurrence of such conduct, and probationer’s violation of those specific
conditions. Considering the forgoing, the trial court did not think it “appropriate to change
course here.” This appeal followed.

Pursuant to 28 V.S.A. § 301(4), a defendant who is charged with violating conditions of
probation has no statutory right to bail if the probation is the result of a crime listed in 13 V.S.A.
§ 5301(7). State v. Campbell, 2014 VT 123, ¶ 6, 198 Vt. 627 (mem.). This list includes both
“lewd or lascivious conduct with a child” and “sexual assault.” 13 V.S.A. §§ 5301(7)(F),
5301(7)(I). Even though there is no right to bail or release, the trial court may release a
probationer under 13 V.S.A. § 7554. 28 V.S.A. § 301(4).

The procedures outlined in 13 V.S.A. § 7554, do not perfectly apply to post-conviction,
probation-revocation detentions. State v. Houle, 2015 VT 29, ¶ 3, 196 Vt. 626 (mem.). We have
nonetheless recognized that “[b]oth 28 V.S.A. § 301(4) and Vermont Rule of Criminal Procedure
32.1(a)(3)(A) direct our attention to 13 V.S.A. § 7554” and that “Rule 32.1(a)(3)(A) expressly
requires courts to consider the § 7554(b) factors when determining conditions of release for
probationers.” Campbell, 2014 VT 123, ¶ 9. Thus, “[a]ll that is necessary is a consideration of
the § 7554(b) factors.” Id.

Probationer argues on appeal that his due process rights have been violated because he
was never offered an adequate Spanish translation of his conditions of release. He further argues
that the trial court erred in failing to balance the risk of harm of erroneous detention against the
assurances to public safety that his requested home confinement would provide. But probationer
has already been convicted and is serving a suspended sentence dependent on adhering to the
conditions of release. Accordingly, there is no constitutional violation in denying bail. See Vt.
Const. CH II, § 40 (describing a right to bail “prior to trial”); 28 V.S.A. § 301(4); Campbell,
2014 VT 123, ¶ 6 (“A defendant charged with violating probation conditions has no
constitutional, or statutory right to bail or release if the defendant is on probation for a listed
crime as defined in 13 V.S.A. § 5301(7).”).

To the extent probationer’s due process arguments are justified, he should pursue them in
a merits hearing, not on review of bail. See Campbell, 2014 VT 123, ¶ 9. The only pertinent
consideration in reviewing denial of bail for a VOP offense are the factors laid out in § 7554(b),
none of which probationer raised at the bail hearing. Because the “defendant has the burden of
proving that [bail] is appropriate,” by failing to invoke any of the statutory factors and instead
focusing on merits arguments, probationer has failed to meet that burden here. See State v.
Whiteway, 2014 VT 49, ¶ 6, 196 Vt. 638 (mem.). For the forgoing reasons, because probationer
failed to meet his burden, the refusal of the trial court to release probationer pending the outcome
of his merits hearing was not an abuse of discretion.

Affirmed.

FOR THE COURT:

Nancy J. Waples, Associate Justice