Bolton v. Irvin, 2010–SC–000520–DG.

• Decision Date: 23 August 2012
• Docket Number: No. 2010–SC–000520–DG.,2010–SC–000520–DG.
• Citation: 373 S.W.3d 432
• Parties: Mark BOLTON, Director Metro Corrections, Appellant v. Rickie IRVIN, Appellee.
• Court: United States State Supreme Court — District of Kentucky

373 S.W.3d 432

Mark BOLTON, Director Metro Corrections, Appellant

v.Rickie IRVIN, Appellee.

No. 2010–SC–000520–DG.

Supreme Court of Kentucky.

Aug. 23, 2012.

Jack Conway, Attorney General, Samuel Joseph Floyd, Jr., Office of the Commonwealth's Attorney, Special Assistant Attorney General, Louisville, KY, Counsel for Appellant.

Daniel T. Goyette, Louisville Metro Public Defender, James David Niehaus, Deputy Appellate Defender, Office of the Louisville Metro Public Defender, Louisville, KY, Counsel for Appellee.

Opinion of the Court by Justice SCHRODER.

This is an appeal from a petition for a writ of habeas corpus regarding the amount of bail as set in district court. The issue is whether a district court may increase the amount of a defendant's bail following a preliminary hearing, where the only change in circumstances is the district court's finding of probable cause. We conclude that the district court may increase bail, because a reconsideration of bail following a finding of probable cause is authorized by RCr 3.14(1). We also conclude that this case is not moot, because the issue is one capable of repetition, yet evading review.

Rickie Irvin appeared before the Jefferson District Court charged with three counts of first-degree robbery, two counts of first-degree burglary, first-degree fleeing or evading police, resisting arrest, and third-degree criminal mischief. He entered a plea of not guilty to all charges, and the district court set his bail at $10,000.

At the preliminary hearing, the district court made a finding of probable cause and then increased Irvin's bail to $100,000. Irvin's counsel objected on the basis that a finding of probable cause was not a material change in circumstances that would warrant an increased bail bond pursuant to RCr 4.42(4). Irvin subsequently filed a petition for a writ of habeas corpus in Jefferson Circuit Court,¹ arguing that his bond was increased without the benefit of a formal hearing as required by RCr 4.40 and RCr 4.42. On April 28, 2010, the Jefferson Circuit Court granted the petition for a writ of habeas corpus, ordering that Irvin's bond be reduced to $10,000 unless the district court held a hearing as required by RCr 4.40 and RCr 4.42 or the case was transferred to circuit court.

Bolton filed an appeal of the April 28, 2010, Jefferson Circuit Court order with the Court of Appeals. In the meantime, the Jefferson County Grand Jury returned an indictment against Irvin on the charges that had been the subject of the preliminary hearing in district court. The grand jury also indicted Irvin on a charge of being a persistent felony offender in the second degree (PFO II). The circuit court set Irvin's bond at $10,000 in an arraignment order dated May 28, 2010.

On June 1, 2010, Irvin filed a motion with the Court of Appeals to dismiss Bolton's appeal as moot, because the bail set by the district court was superseded by the circuit court arraignment order. By order entered on July 14, 2010, the Court of Appeals dismissed Bolton's appeal as moot. This Court then granted discretionary review.

Bolton argues that the Court of Appeals erred in dismissing his appeal as moot, because the issue presented is one capable of repetition, yet evading review. Furthermore, Bolton argues that the circuit court incorrectly interpreted RCr 4.42 as applicable in granting Irvin's petition for a writ of habeas corpus.

Before turning to the merits of this case, we must first address whether the Court of Appeals properly dismissed the case as moot. This Court has previously recognized that “jurisdiction is not necessarily defeated simply because the order attacked has expired, if the underlying dispute between the parties is one ‘capable of repetition, yet evading review.’ ” Lexington Herald–Leader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky.1983) (quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). That is to say, a technically moot case may nonetheless be adjudicated on its merits where the nature of the controversy is such that “the challenged action is too short in duration to be fully litigated prior to its cessation or expiration and ... there is a reasonable expectation that the same complaining party would be subject to the same action again.” Philpot v. Patton, 837 S.W.2d 491, 493 (Ky.1992) (quoting In re Commerce Oil Co., 847 F.2d 291, 293 (6th Cir.1988)).

The time between Irvin's arrest and his indictment (including his first appearance in district court and his preliminary hearing) was of short duration. The timeline in this case is typical of cases throughout the Commonwealth, and a district court order modifying a bail bond in a felony case will almost always be superseded before the issue can be fully litigated.

In addition, any increase in bail following a finding of probable cause by the district court can be challenged by means of a writ of habeas corpus. In fact, the record in this case indicates that another division of the Jefferson Circuit Court reached a different conclusion on this issue.² There is therefore a reasonable expectation that the same complaining party will be subject to the same action again. Under the doctrine that issues capable of repetition yet evading review may be properly decided, the fact that the district court order was superseded by the circuit court arraignment order does not render this case moot.

Turning to the merits of this case, the facts are uncontroverted and the issue is one of law. Therefore, instead of reinstating Bolton's appeal and remanding to the Court of Appeals, for the sake of judicial economy, we will decide the issue. The substantive issue in this case is whether a defendant's due process rights are violated when a district court increases the amount of bail following a preliminary hearing. In the case of bail, the applicable due process rights are those established by the Kentucky Rules of Criminal Procedure.

RCr 3.02 requires that all persons arrested be taken for an initial appearance before a district court. At the initial appearance, the district judge, in addition to informing the accused of the charges and appointing counsel if necessary, is to “release the defendant on personal recognizance or admit the defendant to bail if the offense is bailable.” RCr 3.05(1).

A defendant charged with an offense requiring an indictment (i.e., a felony) who has not yet been indicted is entitled to a preliminary hearing in district court. RCr 3.07. RCr 3.14(1) provides that if the court finds there is probable cause to believe that the defendant committed the offense, “the judge shall hold the defendant to answer in the circuit court and commit the defendant to jail, release the defendant on personal recognizance or admit the defendant to bail if the offense is bailable....” ³

In this case, the district court set bail at $10,000 at Irvin's initial appearance. The district court then held a preliminary hearing and determined that probable cause existed to believe Irvin committed the charged felonies. After the probable cause finding, the Commonwealth requested an increase in the bail bond, to which defense counsel objected. The district judge then increased Irvin's bail to $100,000.

RCr 3.05(1) permits the district court to set bail at the time of the initial appearance.RCr 3.14(1) then allows the district court to again set bail upon a finding of probable cause. In Sydnor v. Commonwealth, the Court of Appeals reiterated that the returning of an indictment marks “the passing of a milestone in the criminal process” and “is sufficient to authorize the circuit court ... to take a fresh look at the question of bail and to exercise a new discretion as to the amount of bail.” 617 S.W.2d 58, 59 (Ky.App.1981) (quoting Kuhnle v. Kassulke, 489 S.W.2d 833 (Ky.1973)). Similarly, RCr 3.14(1) specifically contemplates that a finding of probable cause is a sufficient milestone to authorize the district court to take a fresh look at the question of bail. Under the Rules of Criminal Procedure, the district court is specifically authorized to reconsider the question of bail following a finding of probable cause.

In the case before us, following a finding of probable cause, the Commonwealth moved for an increase in the bond and the defendant objected. Both sides were given the opportunity to be heard and the court set the bond. The district court acted in compliance with the Rules of Criminal Procedure.

In granting the habeas petition and reducing Irvin's bond to $10,000, the circuit court opined that the district court violated RCr 4.40 and RCr 4.42 in setting the bond at $100,000. We disagree. RCr 4.40(1) permits either the defendant or the Commonwealth to apply for a change in the conditions of pretrial release (including an increase or decrease in the amount of bail) at any time before trial and to request an adversary hearing on the motion. If the defendant has appeared when required at previous proceedings in the case, the Commonwealth must demonstrate by “clear and convincing evidence the need to modify...