The Vermont Supreme Court affirmed a trial court’s ruling that a pretrial releasee subjected to a 24-hour home detention curfew with exceptions as a condition of release was not entitled to credit for time served on release because he was not “in custody” at any time during his release. In reaching that decision, the court found it was necessary to overrule its previous holding in State v. Kenvin, 87A.3d454 (UT 2013), which has held that a pretrial releasee who was subjected to 24-hour curfew without exception was entitled to credit for time served because his condition of release was “sufficiently onerous” to pass as being “in custody.” The new ruling held that nonstatutory home detention is never sufficiently onerous to qualify as being “in custody.”

In this case, Dale Byam, was arrested for aggravated domestic assault and cruelty to a child. He was released on bail in December of 2013. The conditions of release included 24-hour curfew with exceptions for legal and medical appointments, Saturday errands, and visits with his mother, and other court-ordered visits with one of his children. However, in November of 2014, Byam was arrested in another county for violation of his conditional release and new charges. In September of 2015, he pleaded guilty to the violation and all original and new charges. In this October 2015 sentencing, the trial court ruled that Byam was not entitled to credit for time served on conditional release because he was not “in custody.”

On appeal Byam argued that his 24-hour curfew with exception should correlate to the court’s previous ruling that a releasee subjected to 24-hour curfew on nonstatutory home detention was “in custody” and authorized to receive credit for time served. The Superior Court revisited that prior ruling and found it to be a departure from legislative intent and led to disparate treatment and unjust outcomes. The primary factor awarding credit was a conclusion that the person was “in custody.” Upon review, the court held that “in custody”in 13 U.S.A. §7031, refers to any person under the department of corrections' (DOC) physical control.

Those who are “in custody” are subject to disciplinary procedures, DOC control, and relocation without additional legal action. The nonstatutory releasee was not subject to such proceedings. The court recognized that while the releasee’s movements were curtailed, there was no guarantee that he was complying to his terms of supervision because there was no direct supervision. In fact, the violation was proof that Byam was not in compliance, and yet, under the proposed rule he would be awarded the same credit as a prisoner. Such treatment would result in an unjust outcome.

Based on those findings, the court overruled its decision in State v. Kenvin, 2013 VT 104, and ruled that nonstatutory home detention is “never sufficiently akin to penal incarceration to justify credit.” It noted that the statutes already provided credit for home detention under 13 U.S.A. §75546, so the addition of credit for nonstatutory home detention was not legislatively intended. In fact, it rendered the statute “superfluous.” The court affirmed the trial court’s ruling with additional reasoning.

See: State of Vermont v. Byam, A.3d  (ut. 2017)

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