Heath v. Kiger

OPINION

OROZCO, Judge.

¶ 1 This special action arises from the trial court’s granting of the Yavapai County Attorney’s Office’s (State) motion to hold Sarah M. Heath (Petitioner) without bond, pursuant to Article 2, Section 22.A.2, of the Arizona Constitution. Petitioner argues that the trial court erred because at the time she was ordered detained, she was released on her own recognizance (OR) and not “admitted to bail” under Art. 2, § 22.A.2. We previously issued an order accepting jurisdiction, granting relief and stating that Art. 2, § 22.A.2, of the Arizona Constitution did not prevent a trial court from exercising its discretion when considering whether to grant Petitioner release under appropriate circumstances. We also stated that a written decision would follow, this is that decision.

FACTS AND PROCEDURAL HISTORY

¶ 2 On March 29, 2005, in CR82005-0216 (2005 case), Petitioner was arrested and charged with Possession or Use of Dangerous Drugs, Possession of Marijuana and Possession of Drug Paraphernalia. On May 2, 2005, Petitioner entered into a plea agreement wherein she pled guilty to Possession or Use of Dangerous Drugs, a class four felony; Possession of Marijuana, a class six felony; and Possession of Drug Paraphernalia, a class six undesignated felony. The plea agreement included a section exonerating any bond and releasing Petitioner OR. The court approved the terms of the plea agreement, exonerated the bond and released Petitioner OR.

¶ 3 The plea agreement also provided that Petitioner would be allowed to participate in the Treatment Assessment Screening Center (TASC) Program and sentencing would be deferred. The plea agreement further stated that Petitioner would be deemed to have failed the TASC program if she “fail[ed] to obey all laws ... prior to sentencing.”

¶4 After Petitioner completed the TASC program, the State filed a motion to set the matter for sentencing. The court initially set Petitioner’s sentencing for May 15, 2006, but Petitioner failed to appear. The court reset Petitioner’s sentencing for June 5, 2006.

¶5 On June 4, 2006, the day before her sentencing date, Petitioner was arrested for Possession or Use of Dangerous Drugs, a class four felony; Possession or Use of Marijuana, a class six felony; and Possession or Use of Drug Paraphernalia, a class six felony.

¶ 6 The next morning, in ease number CR82006-0397 (2006 case), Petitioner posted bond and was released from jail. That afternoon, Petitioner was sentenced in the 2005 case for Possession of Drug Paraphernalia, a misdemeanor.

¶7 On June 22, 2006, the State filed a Motion to Hold Defendant Non-Bondable in the 2006 ease and requested an evidentiary hearing. On July 10, 2006, the trial court denied the motion without prejudice because the Petitioner had been sentenced to a misdemeanor in the 2005 ease. Subsequently, the State filed a second Motion to Hold Defendant Non-Bondable and again requested an evidentiary hearing to present evidence that the “proof is evident or presumption great” that Petitioner committed the felony charges while on release from the 2005 ease and again cited to Art. 2, § 22.A.2.

¶ 8 Petitioner responded and requested the trial court deny the motion because she was not “admitted to bail” under Art. 2, § 22.A.2 in the 2005 case at the time she allegedly committed the offenses in the 2006 case.

¶ 9 An evidentiary hearing was held on August 25, 2006, in the 2006 case. At the conclusion of the hearing, the trial court found Petitioner was on felony release when the State charged her in the 2006 case. It also found “there [was] proof evident or presumption great as to possession of drug paraphernalia,” but it did not find that the State had met that standard on the other charges. The trial court ordered Petitioner “held without bail until further order of the court.”

¶ 10 Petitioner filed this special action asking this court to review the trial court’s decision to hold her without bond.

SPECIAL ACTION JURISDICTION

¶ 11 This court’s special action jurisdiction is discretionary. State v. Super. Ct. (Norris), 179 Ariz. 343, 344, 878 P.2d 1381, 1382 (App.1994). (Citation omitted.) We accept jurisdiction because this matter raises an issue of first impression and statewide importance. State v. Brown (McMullen), 210 Ariz. 534, 537, 115 P.3d 128, 131 (App.2005).

DISCUSSION

¶ 12 Under Art. 2, § 22.A.2, of the Arizona Constitution “[a]ll persons charged with crime shall be bailable by sufficient sureties, except: ... For felony offenses, committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.” (Emphasis added.) There is no definition for “admitted to bail.” Therefore, the issue is whether “admitted to bail” includes OR release.

¶ 13 Arizona Rules of Criminal Procedure 7.1.a defines “[o]wn recognizance” as a “release without any condition of an undertaking relating to, or deposit of, security.” Additionally, Rule 7.1.c defines “secured appearance bond” as “an appearance bond secured by deposit with the clerk of security equal to the full amount thereof.” The comments to this rule state that “ ‘secured appearance bond’ is used instead of ‘bail’ ” Moreover, the comments to Rule 7.1.b state “[t]he rule substitutes for ‘bail bond’ and ‘bail’ the term ‘appearance bond’ which emphasizes the role of unsecured bonds.” Clearly, Arizona distinguishes between being released OR and being released with the posting of a secured or unsecured appearance bond or bail.

¶ 14 Additionally, many current Arizona statutes differentiate between being released OR and being released on bail. See, e.g., Arizona Revised Statutes (A.R.S.) Section 13-604.R (Supp.2006) (noting that “[a] person who is convicted of committing any felony offense, which felony offense is committed while the person is released on bail or on the defendant’s own recognizance on a separate felony offense” must have her sentence -increased by two years) (emphasis added); § 13-3967.A (Supp.2006) (stating that “any person who is charged with a public offense that is bailable as a matter of right shall be ordered released pending trial on his own recognizance or on the execution of bail in an amount specified by the judicial officer”) (emphasis added); § 13-4082 (2001) (allowing a magistrate to order witnesses to provide security for their appearances through the “depositing of money or bonds as provided upon the admission of a defendant to bail ”) (emphasis added); see also Arizona Rules of Criminal Procedure 7.2.b(l) (distinguishing between being released on bail and being released OR: “the person shall not be released on bail or on his or her own recognizance.”) (Emphasis added.)

¶ 15 Petitioner argues that she was released OR and thus not “admitted to bail” under Art. 2, § 22.A.2. We agree. At the time Petitioner was arrested in the 2006 ease, the plea agreement clearly stated that she was released OR. Because Arizona distinguishes between being released OR and bail release, she was not “admitted to bail” at the time of her arrest in the 2006 case.

¶ 16 The State cites the following definition of bail from Pelekai v. White, 75 Haw. 357, 861 P.2d 1205, 1209, n. 3 (1993) (citing Hawaii Revised Statute section 804-3 (Supp.1992)): “ ‘Bail’ includes release on one’s own recognizance, supervised release, and conditional release.” Based on that definition, the State argues “that an individual may be admitted to bail by a court and released without bond on either his own recognizance or into the custody of another.” However, the State’s arguments based on Pelekai are misplaced because Hawaii’s definition of bail includes being released OR, whereas Arizona statutes clearly differentiate between being released OR and being released on bail.

¶ 17 In this case, it is clear that Petitioner was not released pursuant to a secured appearance bond or bail at the time of her second arrest. Therefore, she was not “admitted to bail” pursuant to Art. 2, § 22.A.2 and was not barred by that provision from being released on bail. However, under Arizona Rules of Criminal Procedure 7.2.a, the trial court had discretion to consider whether to grant Petitioner release and impose any conditions outlined in Rule 7.3.b.

¶ 18 The dissent first claims that the interpretation of the “phrase [admitted to bail], when used in laws prohibiting release, is that it refers to any type of eligibility for court-sanctioned release.” Infra ¶26. However, the dissent does not cite legal authority for that holding and a review of the statutes and court rules effective in 1970 when Art. 2, § 22.A.2 was amended does not indicate that the phrase “admitted to bail” included both security and being released OR. See, e.g., Arizona Rules of Criminal Procedure 38.A (1956) (defining “[b]ail” as “the security required and given for the release of a person who is in custody of the law, that he will appear before any court in which his appearance may be required”); id. at C (noting “[b]ail shall be by written undertaking executed by the defendant, and except as provided in Rule 55, by not less than two sureties”); id. at 56 (stating “[w]hen the defendant has been admitted to bail he, or another in his behalf, may deposit ... a sum of money, or nonregistered bonds ... equal in market value to the amount set forth in the order admitting the defendant to bail ”) (emphasis added); id. at 57 (noting that “[w]hen bail other than a deposit of money or bonds has been given, the defendant or surety may ... deposit the sum set forth in the undertaking”). (Emphasis added.) Furthermore, A.R.S. § 13-1571.B (1956), distinguished between being released OR and being released on bail:

No person shall, after conviction of a capital offense be continued at large on bail or be admitted to bail except when the superior court or a judge thereof is satisfied upon investigation that the person in custody is in such physical condition that continued confinement would endanger his life. (Emphasis added.)

Thus, the past and current Arizona Rules of Criminal Procedure and statutes do not include OR release as a form of being “admitted to bail.”

¶ 19 The dissent also notes the phrase “admitted to bail” has historical relevance. Infra ¶ 27. However, we. note Arizona adopted the phrase “admitted to bail” from English common law. Additionally, Blackstone defined bail as to “put in [s]ecurities for his appearance.” The Avalon Project at Yale Law School, Blackstone’s Commentaries on the Laws of England, Of Commitment and Bail, Bk. 4, Ch. 22, available at http:// www.yale.edu/lawweb/avalon/blackstone/bk4 ch22.htm. Thus, English common law did not include being released OR as release on bail.

¶ 20 Moreover, “[w]hen Arizona became a state, it adopted the common law of England as the ‘rule of decision’ in our courts.” Fernandez v. Romo, 132 Ariz. 447, 448, 646 P.2d 878, 879 (1982). The Legislature codified this adoption by enacting the following statute:

The common law only so far as it is consistent with and adapted to the natural and physical conditions of this state and the necessities of the people thereof, and not repugnant to or inconsistent with the constitution of the United States or the constitution of laws of this state, or established customs of the people of this state, is adopted and shall be the rule of decision in all courts of this state.

A.R.S. § 1-201 (2002).

¶21 Contrary to the suggestion of the dissent, we are not suggesting that the categories of offenders that are not bailable pursuant to Art. 2, § 22.A.2 would always be eligible for OR release. Infra ¶ 29. Rather, we conclude only that § 22.A.2 does not apply to individuals on OR release. Nevertheless, a trial court may pursuant to Rule 7.2, “determine, in its discretion, that such a release will not reasonably assure the person’s appearance” and therefore add the condition of an appearance bond, and not release the person OR.

¶22 Furthermore, the dissent claims we view the concept “admitted to bail on his own recognizance” as a non sequitur. Infra ¶ 27. Actually, we never use the phrase “admitted to bail on his own recognizance” and merely distinguish as the Arizona statutes distinguish between bail and OR release. We also note that two of the cases the dissent cites from the 1800s that include the term “admitted to bail on his own recognizance” required an amount of security to be posted prior to being released. Infra footnote 2. See United States v. Duane, 1 Wall.C.C. 102, 102 (1801) (“admitted to bail on his own recognizance in 500 dollars”); Ex parte McCardle, 73 U.S. (6 Wall.) 318, 320, 18 L.Ed. 816 (1867) (“admitted to bail on his own recognizance, with sufficient sureties, in the sum of one thousand dollars.”) This phrase that the dissent points to clearly is different from Arizona’s rules and statutory scheme that defines “own recognizance” as not requiring the posting of any security.

¶23 The dissent also uses definitions of “bail” from Black’s Law Dictionary and Bal-lentine’s Law Dictionary. However, these definitions and the use of the cases from the 1800s are unnecessary as our rules and statutes provide clear and adequate definitions.

CONCLUSION

¶ 24 Because Petitioner was released OR at the time of her second arrest, she was not admitted to bail and was not required to be detained pursuant to Art. 2, § 22.A.2, of the Arizona Constitution.

SHELDON H. WEISBERG, P.J., concurs.