Misdemeanor Appeal Bonds By: Dana Graves Hillsborough, NC I. WHAT IS AN APPEAL BOND??? a. When a judge sets more stringent conditions of pretrial release following appeal from district to superior court for a trial de novo. II. NUTS AND BOLTS: STATUTORY CONSIDERATIONS a. STATUTORY SUPPORT FOR APPEAL BONDS: i. Default is that pretrial release conditions remain the same after entering notice of appeal. G.S 15A-1431(e) ii. Statutes indicate the judge may modify the conditions of release following appeal, but are unclear whether this authority is granted to district or superior court judges 1. Any order of pretrial release remains in effect pending appeal by the defendant unless the judge modifies the order. G.S 15A-1431(e) 2. Appeal [to Superior Court] stays the execution of all portions of the judgment, including all of the following: (1) payment of costs, (2) payment of a fine, (3) probation or special probation, (4) active punishment. Pursuant to subsection (e) of this section, however, the judge may order any appropriate condition of pretrial release, including confinement is a local confinement facility, pending the trailed novo in superior court. G.S. 15A-1431(f1) b. JURISDICTION TO SET APPEAL BONDS WHO IS THE JUDGE IN THE STATUTES? i. District Court Judges: the statutes conflict and there are three different beliefs in this area 1. Opinion 1: The district court loses jurisdiction to impose an appeal bond upon the noting of an appeal to Superior Court. a. District court may modify pretrial release conditions at any time prior to, in a misdemeanor case tried in the district court, the noting of an appeal. G.S. 15A-534(e)(1) 2. Opinion 2: The district court retains jurisdiction, and therefore the authority to impose an appeal bond, for 10 days following the district court conviction a. An appeal must be noted within 10 days of the district court conviction and upon expiration of the 10-day period in which an appeal may be entered, if an appeal has been entered and not withdrawn, the clerk shall transfer the case to the superior court docket. G.S. 7A-290 b. Upon expiration of the 10-day period, if an appeal has been entered and not withdrawn, the clerk must transfer the case to the appropriate court G.S. 15A-1431(c)
III. 3. Opinion 3: The district court retains jurisdiction until the end of the district court session (the end of the day). ii. Superior Court Judges: clearly have the authority to modify conditions of pretrial release, assuming all proper procedural requirements are adhered to in Superior Court, after the case has been transferred to the Superior Court docket iii. Any, by the way, YOU can appeal unfavorable pretrial release conditions to superior court, at any time! STATUTES LIMITING JUDGE S DISCRETION IN SETTING CONDITIONS OF PRETRIAL RELEASE a. GENERAL RULE: NONCAPITAL DEFENDANTS ENTITTLED TO HAVE CONDITIONS OF PRETRIAL RELEASE SET i. Non-capital defendants should have pretrial release conditions determined as set out by statute. G.S. 15A-533(b) ii. Bail can only be withheld, or delayed, as specifically set out by statute (examples: 48 hour hold in DV, provision allowing for detention of an impaired driver if severely impaired) b. SEVERAL FACTORS SHOULD BE WEIGHED IN DETERMINING PRETRIAL RELEASE CONDITIONS i. Factors to be considered: Judges are supposed to consider the following factors in determining the appropriate conditions of pretrial release: the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release. G.S. 15A- 534(c) ii. Activity restrictions: the judge may place restrictions on the ravel, associations, conduct, or place of abode of the defendant as conditions of pretrial release and can order the defendant abstain from alcohol consumption, as verified by the use of a continuous alcohol monitoring device. G.S. 15A-534(b) c. SECURED BONDS ARE A LAST RESORT, NOT THE DEFAULT. i. Less restrictive forms of pretrial release are given preference. By statute, judicial officials should only impose a secured bond if the official determines a less restrictive form of pretrial release will not reasonably assure the appearance of the defendant as required; will pose a danger of injury to any person; or is likely to result in destruction of evidence, subordination of perjury, or intimidation of potential witnesses. G.S. 15A-534(b) 1. Exceptions exist, like with FTAs ii. Written factual findings may be required. When a secured bond is imposed, local policy may require judicial officials to make written findings of fact that justify the bond. G.S. 15A-534(b) d. LOCAL POLICY MAY LIMIT JUDICIAL DISCRETION i. Resident superior court judge must create local pretrial release policy
1. Each district should have a written local bond policy. The resident superior court judge in each district must device and issue recommended policies to be followed in determining whether, and upon what conditions, a defendant may be release before trial. G.S. 15A-535(a) ii. The local policy may require written findings of fact when setting secured bonds. iii. Local policy may set out a bond schedule IV. GENERAL RULES GOVERNING REVOKING OR RAISING BONDS a. The prosecutor may move to modify or revoke bond G.S. 15A-539 b. Judge may revoke bond for good cause shown G.S. 15A-534(f) i. Violation of pretrial release conditions can result in revocation of a defendant s bond and arrest ii. Failure to appear c. Judge must consider the above factors in deciding to modifying or revoke bond G.S. 15A- 534(f) d. If bond is revoked, the defendant may request new conditions of pretrial release be imposed G.S. 15A- 534(f) V. CONSTITUTIONAL LIMITS ON JUDICIAL DISCRETION ON PRETRIAL RELEASE DECISIONS: a. THE EIGHTH AMENDMENT, US CONSTITUTION: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. i. Bail should only be set at an amount necessary to ensure a defendant s appearance at trial. Stack et al v. Boyle, 324, U.S. 1, 4-5 (1951). 1. The blurb: Several defendants, all charged with the same federal offense, were given $50,000 bonds, without the government providing any specific reasons why that bond was necessary in each defendant s case. The Court held that bail is excessive if it is beyond the amount necessary, in a specific defendant s case, to assure the defendant s appearance. 2. The language: A person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning Bail set at a figure higher than an amount reasonably calculated to [assure the presence of an accused] is excessive under the Eighth Amendment. Stack et al v. Boyle, 324, U.S. 1, 4-5 (1951). ii. Defendants are entitled to bail, unless a specific statutes states otherwise. United States v. Salerno, 481 U.S. 739, 755 (1987). 1. The blurb: Crime bosses were being held without bail, under a federal statute that provided for procedural safeguards, because the government believed (and presented evidence) that the crime bosses posed a significant risk to public safety. The court held that the
VI. importance of the government objective (here a specifically articulated concern for public safety) outweighed the individual liberty interest of the crime bosses, especially since several procedural protections were built in to the statute. 2. The language: a. In our society liberty is the norm, and detention prior to trial is the carefully limited exception. b. The only arguable substantive limitation of the Bail Clause is that the Government s proposed conditions of release or detention not be excessive in light of the perceived evil. b. NC CONSTITUTION - Article 1, Section 27. Bail, fines, and punishments. Excessive bail shall not be required CONSTITUTIONAL CONSIDERATIONS SPECIFIC TO APPEAL BONDS a. MISDEMEANANTS HAVE THE RIGHT TO A JURY TRIAL IN NC i. US Constitution - Sixth and Fourteenth Amendments ii. NC Constitution - Article 1, Section 24. Right of jury trial in criminal cases. No person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo. iii. Statutory right to jury trial. Criminal defendants may appeal cases to superior court for trial de novo. G.S. 7A-290 and G.S. 15A- 1431(b). b. DEFENDANTS MUST NOT BE PUNISHED FOR EXERCISING CONSITUTIONAL RIGHTS i. Congress may not seek to chill the exercise of the right to a trial by jury. U.S. v. Jackson, 390 U.S. 570, 581 (1967). 1. The blurb: A federal kidnapping statute authorized the death penalty, but only if a jury chose to impose it after conviction. In other words, the only way a defendant could get the death penalty was after trial by jury, thereby exposing defendants to the ultimate punishment if they chose to exercise their right to a jury trial instead of pleading guilty. 2. The language: a. The inevitable effect of any such provision is, of course to discourage assertion of the Fifth Amendment right not to plead guilty and to deter exercise of the Sixth Amendment right to demand a jury trial. Jackson, 390 U.S. at 581. b. Whatever might be said of Congress objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional rights. Jackson, 390 U.S. at 582 c. the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them. A procedure need not be inherently coercive in order that it be held to impose an impermissible burden upon the assertion of a constitutional right. Jackson, 390 U.S. at 583 c. DUE PROCESS PROHIBITS POTENTIALLY VINDICTIVE PRATICES THAT MAY CHILL THE EXERCISE OF A DEFENDANT S RIGHT TO TRIAL BY JURY
i. Due process prohibits judge from sentencing more harshly after retrial to prevent appeals. The threat of vindictiveness could chill the exercise of basic constitutional rights. North Carolina v. Pearce, 395 U.S. 711 (1969) 1. The blurb: Two inmates appealed their criminal convictions and had their convictions set aside on constitutional grounds. On retrial, both defendants were again convicted and sentenced to longer terms of imprisonment than their original sentence. The Court held that receiving a longer sentence after retrial is not in and of itself unconstitutional, but a practice of punishing people for exercising their right to appeal constitutional errors by systemically imposing harsher sentences upon reconviction is unconstitutional. Due process requires objective reasons, stated in writing, for imposing a harsher sentence. 2. The language: a. Where, as in each of the cases before us, the original conviction has been set aside because of a constitutional error, the imposition of such a punishment, penalizing those who choose to exercise constitutional rights, would be patently unconstitutional. The imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be no less a violation of due process of law A court is without right to... put a price on an appeal. A defendant s exercise of a right of appeal must be free and unfettered.... It is unfair to use the great power given to the court to determine sentence to place a defendant in the dilemma of making an unfree choice. Pearce, 395 U.S. at 724 (internal citations removed) b. Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. Pearce, 395 U.S. at 725. i. An important distinction: later case law indicates that in misdemeanor appeals from district court, the resentencing issue is not subject to this analysis, because the same court is not imposing the judgment. See Colten v. Kentucky, 407 U. S. 104 (1972). ii. Due process prohibits prosecutors from adding more serious charges following appeal to superior court for trial de novo, as allowing this practice could create fear of vindictiveness that would chill the exercise of constitutional and statutory rights. Blackledge v. Perry, 417 U.S. 21 (1974).
iii. 1. The blurb: A defendant appealed his district court conviction to superior court for a trial de novo. After entering notice of appeal, the prosecutor sought and obtained an indictment for a felony offense, based on the same underlying facts. The Court held that allowing this practice violate due process by placing defendant in fear of retaliation for exercising their right to appeal. 2. The language: a. A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant s conviction becomes final, and may even result in a formerly convicted defendant s going free. And, if the prosecutor has the means readily at hand to discourage such appeals by upping the ante through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy the State can insure that only the most hardy defendants will brave the hazards of a de novo trial. b. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that since the fear of such vindictiveness may unconstitutionally deter a defendant s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge. 395 U.S., at 725. We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, at 738 (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person s reliance on his legal rights is patently unconstitutional. Bordenkircher v. Hayes, 434 U.S. 357 1. Prosecutors are allowed to threaten more serious charges if a defendant choses to go to trial instead of pleading, as part of the plea bargaining process. VII. AN APPEAL BOND HAS BEEN SET. NOW WHAT?
VIII. a. FILE A BOND MOTION IN SUPERIOR COURT i. Pretrial release conditions set in district court can always be appealed to Superior Court G.S. 15A-536 1. Motion to modify pretrial release conditions must be in writing and must be served on the ADA 2. Notice requirements vary by district 3. Regular bonds may be appealed, as well as appeal bonds (and there is no need to wait 10 days for the case to be transferred to the superior court docket) b. WRIT OF HABEAS CORPUS c. MOTION TO DISMISS??? i. Argue statutory violations 1. Did the judge have jurisdiction to modify the bond? 2. Did the judge follow the procedure in 15A-534 in deciding to modify the bond? 3. Did the judge follow local policy? 4. If required, were the reasons for increasing the bond in writing? ii. Argue that by imposing an appeal bond, the judge impermissibly chilled your client s exercise of constitutional and statutory rights. iii. Argue dismissal is appropriate remedy, by analogizing cases where pretrial release issues resulted in due process violations or prejudice to preparation of a defense and resulted in dismissal. 1. State v. Knoll, 322 N.C. 535 (1988), held that where defendants charged with driving while impaired were denied access to witnesses, during the critical time immediately after arrest during which was their only opportunity to gather evidence conflicting with evidence of impairment, dismissal was appropriate. 2. State v. Thompson, 349 N.C. 483 (1998), held that in domestic violence cases subject to the forty-eight hour hold, failure to either have a first appearance before the first available judge to set conditions of pretrial release, or in the alternative to have a magistrate set conditions of pretrial release if a judge is not available that are effective after fortyeight hours, violates procedural due process and must result in the dismissal of the case. SOURCES a. NC Defender Manual, Volume 1, Chapter 1: Pretrial Release (John Rubin and Alyson Grine) i. Great primer on general bond requirements/issues ii. Available at www.ncids.org, under the reference manuals link b. $50,000 Secured Bond for DWLR, that Can t Be Right or The District Court Judge Just Jacked my Client Up on a $1 Million Appeal Bond What Can I do Now?, by Dan Shatz, Assistant Appellate Defender