Abraham v. Com.

• Decision Date: 14 October 1977
• Court: Kentucky Court of Appeals
• Parties: Randy E. ABRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Page 152

565 S.W.2d 152

Randy E. ABRAHAM, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Oct. 14, 1977.

As Modified Nov. 18, 1977.

Charles W. Curry, Shuffett, Kenton, Curry & Karem, Lexington, for appellant.

Robert Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.

Before PARK, WHITE and WINTERSHEIMER, JJ.

PARK, Judge.

Randy E. Abraham appeals from an order of the Breathitt Circuit Court overruling his motion to reduce bond on three indictments for theft by unlawful taking (KRS 514.030). This appeal presents important questions of procedure and substance relating to the 1976 Bail Bond Reform Act. Because of the exigencies of time, the mandate was issued September 23, 1977, pursuant to a memorandum opinion, with the understanding that the reasons for the decision would be set forth in a full opinion.

On August 18, 1977, the Breathitt County Grand Jury returned three indictments against Abraham charging him with the crime of theft by unlawful taking of property belonging to W. R. Walters, the property being worth more than $100.00. Indictment No. 1995 charges Abraham with the theft of two truck tires on May 15, 1977. Indictment No. 1996 charges him with the theft of a water pump on May 7, 1977. The third indictment (No. 1997) charges Abraham with the theft of seven heavy equipment batteries on April 15, 1977. The circuit judge fixed bond on each indictment at $25,000.00.

Following his arrest on August 24, 1977, Abraham filed a motion to reduce the amount of the bond on the three charges. The trial judge overruled the motion by order entered September 13, 1977. This order recited that it was a final order and that the court's ruling would be the same on a writ of habeas corpus based upon the same record. On September 15, 1977, Abraham filed a notice of appeal from the order of September 13, 1977, overruling his motion to reduce

bond. MAY THERE BE A DIRECT APPEAL FROM AN ORDER OVERRULING

A MOTION TO REDUCE BAIL?

Abraham's counsel acknowledges that the writ of habeas corpus has been the recognized method of reviewing an order denying or refusing to reduce the amount of bail in a criminal proceeding. Young v. Russell, Ky., 332 S.W.2d 629 (1960); Smith v. Henson, 298 Ky. 182, 182 S.W.2d 666 (1944). However Abraham's counsel advances a number of reasons why the writ of habeas corpus does not provide an adequate vehicle for reviewing the action of a circuit court overruling a motion to reduce bond.

A writ of habeas corpus may be issued by any circuit judge in the state (KRS 419.020), but the writ must be returned before the circuit judge of the county in which the person is being detained (KRS 419.030). Consequently, if Abraham had filed a petition for writ of habeas corpus, the merits of the writ would have been heard by the same judge who had previously overruled his motion to reduce the amount of bond. By the order of September 13, 1977, the circuit judge made it clear that there would be no change in his ruling if the same issue were presented by a writ of habeas corpus. To require Abraham to file a writ of habeas corpus would be to require him to do a useless and futile act which could only accomplish delay.

Furthermore, the writ of habeas corpus involves several practical difficulties in bail cases. The respondent is usually the jailer, a person totally disinterested in the merits of the matter. The writ of habeas corpus constitutes a separate proceeding. When an appeal is taken from the judgment on a writ of habeas corpus, there is always the problem of including the record in the original proceeding which gave rise to the writ.

In Kentucky, an order overruling a motion to reduce bond has not been considered to be a final judgment. Hence, such orders have not been deemed to be appealable. See the 1962 Comment to Rule 4.14 of the Rules of Criminal Procedure. However, a different result was reached when the Supreme Court of the United States considered the question in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Under 28 U.S.C. § 1291, the federal courts of appeals generally have jurisdiction of appeals from "all final decisions" of the federal district courts. In holding that appeal rather than habeas corpus was the appropriate remedy for reviewing an order refusing to reduce bail, the Supreme Court stated:

The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion. Petitioners' motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards . . . As there is no discretion to refuse to reduce excessive bail, the order denying the motion to reduce bail is appealable as a "final decision" of the District Court under 28 U.S.C. (Supp. IV) § 1291, 28 U.S.C.A. § 1291. Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 545-547, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528. In this case, however, petitioners did not take an appeal from the order of the District Court denying their motion for reduction of bail. Instead, they presented their claims under the Eighth Amendment in applications for writs of habeas corpus. While habeas corpus is an appropriate remedy for one held in custody in violation of the Constitution, 28 U.S.C. (Supp. IV) § 2241(c)(3), 28 U.S.C.A. § 2241(c)(3), the District Court should withhold relief in this collateral habeas corpus action where an adequate remedy available in the criminal proceeding has not been exhausted. Ex parte Royall, 1886, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868; Johnson v. Hoy, 1913, 227 U.S. 245, 33 S.Ct. 240, 57 L.Ed. 497.

342 U.S. at 6-7, 72 S.Ct. at 4. In his concurring opinion, Justice Jackson pointed out:

. . . But an order fixing bail can be reviewed without halting the main trial its issues are entirely independent of the issues to be tried and unless it can be reviewed before sentence, it never can be reviewed at all. The relation of an order fixing bail to final judgment in a criminal case is analogous to an order determining the right to security in a civil proceeding, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, or other interlocutory orders reviewable under 28 U.S.C. § 1292, 28 U.S.C.A. § 1292. I would hold, therefor, that such orders are appealable.

342 U.S. at 12, 72 S.Ct. at 7. We believe that the decision of the Supreme Court holding such orders appealable is sound, and we adopt it.

A similar problem was considered by this state's highest court in Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975). In that case, the court held that appeal, rather than writ of mandamus, was the proper remedy for reviewing an order denying a criminal defendant's motion to proceed in forma pauperis on appeal. The court stated:

This court has concluded that the "motion to show cause" proceedings and the "mandamus" proceedings do not adequately present for consideration by this court the question of a party's right to appeal in forma pauperis. Seldom does the record contain a sufficient transcript or other showing of evidentiary material upon which the circuit court order was based, thereby causing this court to rely on recitations of fact to be gleaned from the motion, the petition, and any response that may have been filed. There is the ever-present danger that the time within which the principal record on appeal must be filed will expire before a determination is forthcoming on the question of appellant's right to prosecute the appeal in forma pauperis.

528 S.W.2d at 677. Not only does the Gabbard case support a liberal approach to the question of appealable orders in criminal cases, but that opinion provides helpful guidelines for the procedures to be followed on appeal.

If the time sequence of an ordinary appeal were followed on an appeal from an order involving bail, there would be very little practical value to that right of appeal. The defendant would remain in jail, and his case might be tried while the appeal was being briefed and oral argument was being scheduled. As adopted as a part of the judicial article effective January 1, 1976, § 115 of the Kentucky Constitution dictates that appellate procedures shall provide for "expeditious and inexpensive appeals." Therefore, an appeal from an order overruling a motion to reduce bail should be decided as soon as practicable. The motion to reduce bond serves the same function as a petition for a writ of habeas corpus. Therefore there is no reason why an appeal from the order overruling the motion should not be decided in the same manner as an appeal from a denial of a writ of habeas corpus. See KRS 419.130.

Based on the guidelines set forth in Gabbard v. Lair, supra, we hold that, unless otherwise ordered, the following procedures shall apply to an appeal from an order of circuit court overruling a motion to reduce bail:

(1) The notice of appeal from the order of the trial court overruling the motion to reduce bail shall be filed as required by RCr 12.52 and within the time fixed by RCr 12.54.

(2) Upon the filing of the notice of appeal, the clerk of the circuit court shall prepare and certify the original or a copy of such portion of the record which relates to the question of bail and is needed for the purpose of deciding the issue on appeal. See RCr 12.56 and 12.62. The abbreviated record shall be filed with the clerk of this court as required by RCr 12.58.

(3) The appellant's statement required by RAP 1.095 shall be abbreviated and shall not exceed five double spaced typewritten pages. It shall be served on the local Commonwealth's Attorney and on the Attorney General. No counterstatement shall be required, but the Commonwealth may file a counterstatement within seven days after the date the appellant's statement was filed, such...