Mello v. Superior Court

370 A.2d 1262, 117 R.I. 578, 1977 R.I. LEXIS 1729

• Court: Supreme Court of Rhode Island
• Decided: February 18, 1977
• Docket: 76-165-M.P
• Status: Published

Opinions

Kelleher, J.

This is a habeas corpus proceeding. The petitioner alleges that the Superior Court did not have authority to revoke his bail upon a finding that he had breached a condition of his release and that this action violated his right to bail under the Rhode Island Constitution. He also claims that the trial court deprived him of liberty without due process in contravention of the fifth and fourteenth amendments of the United States Constitution by holding him without bail pending a hearing to determine whether bail should be revoked. We hold that although the issue is technically mooted by the petitioner’s subsequent release from jail, the issue is properly justiciable. Further, we conclude that the Rhode Island Constitution does not preclude a Superior Court justice from revoking bail, nor where proper procedure is followed is a defendant denied due process.

On April 11, 1975, petitioner, whom we shall call Mello, was indicted for receiving stolen goods and possession of a stolen vehicle in violation of G. L. 1956 (1969 Reenactment) §'§11-41-2 and 31-9-2, respectively. He was arraigned on May 5, 1975, pled not guilty, and released on $1,000 personal recognizance. On February 27, 1976, an information was filed, charging him with receipt of stolen goods. Mello was arraigned on March 23, 1976, and bail was set at $3,000 with surety. At that point the state moved under Super. R. Crim. P. 46(g) to revoke bail on the April 1975 indictments. Mello was ordered held without bail pending a hearing on the state’s motion, scheduled for April 6, 1976. The trial justice conducted a hearing on April 6 and 7, 1976, and found sufficient proof that Mello had violated the terms of his recognizance. Accordingly, personal recognizance was revoked, and Mello was committed to the Adult Correctional Institutions. Approximately 3 weeks later Mello petitioned this court for a writ of habeas corpus. Subsequently, on May 25, 1976, he pleaded nolo contendere to the three charges and was sentenced.¹

I.

The state has urged that the petition should be dismissed because the issue presented is moot. Mello is no longer being held without bail on his original charges, and no order of this court would be of any assistance to him. The state has quite properly enunciated the general rule, for we have said on numerous occasions that we will consider cases only where live issues exist. We will refrain from addressing moot, abstract, academic, or hypothetical situations. See Perry v. Petit, 116 R.I. 89, 352 A.2d 396 (1976); Ramsdell v. Kiely, 111 R.I. 1, 298 A.2d 144 (1973); Town of Scituate v. Scituate Teachers’ Ass’n, 110 R.I. 679, 296 A.2d 466 (1972); Lauder v. Zoning Bd. of Review, 100 R.I. 641, 218 A.2d 476 (1966).

However, in certain situations we will depart from the ordinary to better deal with the extraordinary. See Tamborelli v. Amazine, 113 R.I. 719, 326 A.2d 857 (1974). The case before us falls into that class, for while it is clearly established that we will not waste precious judicial time on moot questions, it is equally well-established that there are questions of extreme public interest which are capable of repetition but somehow evade review. These demand our attention and quite properly come before us for decision. Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975); School Comm. v. Westerly Teachers Ass’n, 111 R.I. 96, 299 A.2d 441 (1973); Chernov Enterprises, Inc. v. Scuncio, 107 R.I. 439, 268 A.2d 424 (1970). Accordingly, we will consider the substantive issues presented here.

II.

A defendant’s light to bail is guaranteed by R. I. Const, art. 1, §9. “All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by death or by imprisonment for life, when the proof of guilt is evident or the presumption great.” In Taglianetti v. Langlois, 105 R.I. 596, 253 A.2d 609 (1969), we interpreted this section as providing bail as a matter of right, subject, of course, to a showing by the state in certain cases that proof is indeed evident or the presumption great. Recently we have ruled that even though a trial court has decided that the state has satisfied the so-called constitutional burden, of proof, the court still retains its discretionary power to grant the accused bail. Fountaine v. Mullen, 117 R.I. 262, 269-70, 366 A.2d 1138, 1143 (1976).

It has been contended that this right is absolute and cannot be infringed by the imposition of conditions. This just is not so. We have recognized that the primary purpose of bail is to ensure the defendant’s presence at court. Lemme v. Langlois, 104 R.I. 352, 244 A.2d 271 (1968); Quattrocchi v. Langlois, 100 R.I. 741, 219 A.2d 570 (1966). Few, if any, would contend that bail could not be conditioned on the defendant’s promise to appear when the court calls. See Rendel v. Mummert, 106 Ariz. 233, 474 P.2d 824 (1970). When one free on bail commits other crimes, the pressure to flee the court’s jurisdiction and fail to appear when summoned is apt to increase. Thus, bail may also be conditioned on the continuing good behavior of the accused. Rendel v. Mummert, supra. Both of these conditions are specifically authorized by Super. R. Crim. P. 46(d) and G. L. 1956 (1969 Reenactment) §12-13-1.

We fail to see how the imposition of these conditions is unconstitutional, since they are integrally related to the right afforded and are but reasonable attempts by the Legislature and the judiciary to balance the interest of the accused against that of the state. The object of bail is to put the accused as much under the power of the court as if he were in the custody of the proper officer.” Lemme v. Langlois, supra at 356, 244 A.2d at 273. We feel that these conditions are a legitimate means of achieving that goal.

In this case bail was granted, liberty was afforded, and Mello accepted the trial justice’s reasonable conditions as to good behavior. It was subsequently discovered that Mello had violated one of those conditions. The question is not whether he ought to have been bailed on the second or any other subsequent charge,² but whether bail on the first set of charges could be revoked in consequence of his knowing and wilful disregard of the court’s order.

Mello has urged that there are sanctions provided for the breach of a condition. He directs us to Super. R. Crim. P. 46(e) and (g), which provide for criminal contempt and forfeiture of the bail, respectively.³ Additionally, it has been suggested that following forfeiture, new and higher bail can be set with more stringent conditions than previously.⁴ While we recognize that these options are certainly available to the trial justice, we do not find he is restricted to them. See Super. R. Crim. P. 46(e). Moreover, we do not think our Constitution must be read as providing a continuing, renewable right to bail on the same charge where a bail condition has been breached. The state need not keep freeing the defendant while upping the ante.

Our search for authority on this point has revealed that insofar as the issue has been addressed (which is minimal) jurisdictions are split. At least one state has said that where the defendant breached bail by a failure to appear at court, bail must be given again. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192 (1952). However, for the reasons that follow we find the rationale of those authorities supporting revocation of bail more persuasive.

It is our conclusion that a specific statute granting the trial court authority to revoke bail is not necessary, since a court with jurisdiction over a criminal case has the power to enforce its orders as to bail just as it has control over other orders. People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 83, 322 N.E.2d 837, 842-43 (1975). The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release, §5.7 Commentary (approved draft, 1968), has reasoned that where the defendant is shown to have violated a condition related either to risk of nonappearance or criminal activity, the court would be authorized to revoke release.

At least two states have adopted this posture. The court in Elrod stated that a court “* * has the inherent authority to enforce its orders and to require reasonable conduct from those over whom it has jurisdiction. To this end the court has authority to impose sanctions * * including the revocation of his release in the manner provided in [ABA] Standards 5.6, 5.7 and 5.8.” People v. Elrod, supra at 83-84, 322 N.E.2d at 842-43. Accord, Tijerina v. Baker, 78 N.M. 770, 438 P.2d 514 (1968).

It has been argued that allowing a trial court to revoke release in this manner treads perilously close to the precipice of preventive detention. We have a different view of the terrain. The cases brought to our attention in support of this argument are not in point. Most frequently cited is In re Underwood, 9 Cal. 3d 345, 508 P.2d 721, 107 Cal.Rptr. 401 (1973), where the California Supreme Court rejected the theory that bail can be denied for public safety reasons. The facts of that case are distinguishable from those at bar, however, because there a trial justice granted bail on the first charge but denied it on the second group of charges. Martin v. State, 517 P.2d 1389 (Alas. 1974), which endorsed the Underwood rationale, addressed three separate appeals only one of which was granted, again where bail was denied on a second charge because the defendant was “a danger to society.” Similarly, State v. Pray, 133 Vt. 537, 346 A.2d 227 (1975), and Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d (1972), involved situations where bail was denied because of risk of harm to the public, not because of breach of a condition. State v. Pray, supra, dealt with a defendant who was convicted, won a new trial, and was then denied bail on grounds of risk to the public. Commonwealth v. Truesdale, supra, addressed the problem of preventive detention where the defendant was initially denied bail on a murder charge. This simply is not the case before us. Mello was not denied release on his second charge in order to protect the public. He was detained because he violated a reasonable condition of his original release.

In discussing sanctions for violations of pretrial release conditions, the ABA noted the possible preventive detention claim: “Whatever force constitutional arguments against preventive detention have is surely diminished if the defendant has once been released but has demonstrated a deliberate intent to violate reasonable restrictions aimed at protecting public safety.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release, supra, §5.7 Commentary. The authority of the court to revoke bail in certain situations ought not to be construed as authority to exercise preventive detention. The former is a sanction for past acts, the latter a prophylactic for the future. We are concerned with the former. Thus, it is our conclusion that the trial court has inherent authority to revoke bail and that this action does not constitute preventive detention.

III.

Finally, we reach the question of what rights a defendant has when faced with possible bail revocation. In this case Mello was held for approximately 2 weeks without bail pending the revocation hearing. Because he had not been convicted on either set of charges, the presumption of innocence still attached.

There can be little doubt that one’s interest in remaining free on bail falls within the “liberty or .property” language of the fourteenth amendment. Nor could one argue that the deprivation of liberty which follows bail revocation does not condemn one “to suffer grievous loss.” Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 647, 95 L.Ed. 817, 852 (1951). Therefore, the requirements of due process apply to bail revocation proceedings.

It seems to us that under these circumstances a revocation hearing is subject to the same requirements as a bail hearing in the first instance. On December 2, 1976, this court approved an amendment to Super. R. Crim. P. 5 so that an arrested person is to be afforded “a prompt hearing” before a justice of the District Court or an officer authorized to bail persons, and if the individual is charged with any of the offenses delineated in §12-13-1.1 the District Court “may order” the individual to be brought before a justice of the Superior Court “as soon as practicable” but no more than 48 hours thereafter (excluding Saturday, Sunday, or a legal holiday), and the Superior Court justice is required to hold a bail hearing then or set a hearing date which shall be “the earliest practicable date for the hearing to be held.” Although a bail revocation hearing generally operates true to its name, all would concede that new bail could be set at that time. An arrested person has the “* * * right to be admitted to bail in a proper case within a reasonable time following his arrest.” State v. Wax, 83 R.I. 319, 328, 116 A.2d 468, 472 (1955). Said another way, a defendant awaiting a revocation hearing still has the right to a speedy determination of his status.

While we eschew the temptation to formulate a neat schedule of minimum and maximum time frames, we do find that a 2-week delay, absent a defendant’s consent, is not to be countenanced. If the state wishes to urge bail revocation, the state must be prepared to act forthwith. A bail revocation hearing must be conducted with the same promptness as a hearing in the first instance, allowing, of course, for variations according to circumstances.

Further, we conclude that a defendant facing bail revocation is jeopardized at least as much as one facing revocation of parole,⁵ or probation,⁶ or imposition of sentence for breach of a deferred sentence agreement.⁷ Therefore, the rights afforded defendants in these latter situations must attach to a defendant in a bail revocation proceeding.

Last, but not least, is the question of what standard of proof is to be applied. In this situation a defendant is not entitled to all the due process requirements guaranteed for a strict and formal trial. Tate v. Howard, 110 R.I. 641, 296 A.2d 19 (1972). Indeed, we do not intend that these hearings be cloaked in the garb of full trial. Accordingly, we reject the contention that the alleged breach of bail must be proven beyond a reasonable doubt. In the past we have spoken in terms of evidence which would “reasonably satisfy that there had been a violation.” Walker v. Langlois, 104 R.I. 274, 282, 243 A.2d 733, 737 (1968). We adopt that standard of proof for bail revocation hearings as one which will require the state to go beyond probable cause and will afford a defendant the necessary due process.

The petition for habeas corpus is granted pro forma.

Petition for reargument denied.

1 Mello received deferred and suspended sentences except for 60 days to be served at the Adult Correctional Institutions and was also given credit for time served. He is no longer incarcerated.

2 Bail was in fact set on the second charge.

3 Other thoughts on appropriate remedies for breach of bail conditions ■can be found in Bail as a Matter of Right — In re Underwood, 26 Hastings L.J, 559 (1974).

4 Id. at 585.

5 See Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

6 See State v. Welch, 114 R.I. 187, 330 A.2d 400 (1975); Tate v. Howard, 110 R.I. 641, 296 A.2d 19 (1972); Walker v. Langlois, 104 R.I. 274, 243 A.2d 733 (1968).

7 See O’Neill v. Sharkey, 107 R.I. 524, 268 A.2d 720 (1970).