Fragoso v. Fell

Citation111 P.3d 1027,210 Ariz. 427
Decision Date10 May 2005
Docket NumberNo. 2 CA-SA 2005-0001.,2 CA-SA 2005-0001.
PartiesRene Antonio FRAGOSO, Petitioner, v. Hon. Howard FELL, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
CourtCourt of Appeals of Arizona

111 P.3d 1027
210 Ariz. 427

Rene Antonio FRAGOSO, Petitioner,
Hon. Howard FELL, Judge Pro Tempore of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and
The State of Arizona, Real Party in Interest

No. -0001.

Court of Appeals of Arizona, Division 2, Department B.

May 10, 2005.

111 P.3d 1029
Law Office of Cornelia Wallis Honchar, By Cornelia Wallis Honchar, Tucson, for Petitioner

Barbara LaWall, Pima County Attorney, By Taren M. Ellis, Tucson, for Real Party in Interest.


PELANDER, Chief Judge.

¶ 1 In this special action proceeding, petitioner Rene Fragoso challenges the respondent judge's authority to impose a "cash-only" restriction on a pretrial release bond. In an earlier order, we accepted jurisdiction but denied relief, with a decision to follow. This is that decision. We hold that Arizona law, contrary to Fragoso's argument, does not prohibit a cash-only condition on bail and, therefore, that the respondent judge did not exceed his legal authority in imposing that condition on Fragoso. See Ariz. R.P. Spec. Actions 3(b), 17B A.R.S.


¶ 2 Fragoso was indicted along with numerous codefendants for conspiracy to sell marijuana. The respondent judge initially set Fragoso's bail at $250,000 "cash," but later reduced it to $50,000 "cash." Fragoso moved to modify the conditions of his bail, detailing his personal financial situation and showing he did not have access to $50,000 cash. Fragoso noted, however, that an extended family member (his live-in girlfriend's father) owned real estate worth more than $50,000 and was willing to pledge that property as collateral for a secured bond. Citing article II, § 22 of the Arizona Constitution and Rule 7.2 and 7.3, Ariz. R.Crim. P., 16A A.R.S., Fragoso asked the respondent judge to lift the "cash-only" restriction and permit him to post a $50,000 secured bond. After hearing argument on the motion, the respondent judge denied it. This petition for special action followed.


¶ 3 Fragoso has no adequate remedy by appeal, as any issues involving his pretrial incarceration or release will become moot once his trial begins. See Ariz. R.P. Spec. Actions 1(a). His claim that the respondent judge had no legal authority to impose cash-only bail is reviewable by special action. See Ariz. R.P. Spec. Actions 3(b). Moreover, this purely legal issue is one of first impression and statewide importance and could readily recur in other cases, making special action review particularly appropriate. See O'Brien v. Escher, 204 Ariz. 459, ¶ 3, 65 P.3d 107, 108 (App.2003). Accordingly, we accept jurisdiction. See Davis v. Winkler, 164 Ariz. 342, 345, 793 P.2d 99, 102 (App.1990) (addressing constitutional and statutory scope of Arizona bail provisions in special action proceeding); see also Mendez v. Robertson, 202 Ariz. 128, ¶ 1, 42 P.3d 14, 15 (App.2002) (accepting special action jurisdiction of denial of motion to reexamine conditions of release, including amount of bail).


¶ 4 The issue Fragoso poses is whether the respondent judge had "the power to set a `cash only' bond under the Arizona Constitution, related statutes or Court Rules." Thus, this issue involves a provision in the state constitution, Ariz. Const. art. II, § 22; a criminal statute, A.R.S. § 13-3967;

111 P.3d 1030
and a rule of criminal procedure, Rule 7, Ariz. R.Crim. P. The United States Constitution is not implicated; although the Eighth Amendment protects against excessive bail, "there is no federal constitutional right to bail." Rendel v. Mummert, 106 Ariz. 233, 235-36, 474 P.2d 824, 826-27 (1970)

¶ 5 Fragoso argues that a trial court is not authorized under any of the foregoing Arizona provisions to impose a cash-only requirement on bail and, conversely, that he "has a right to post a `surety bond.'" According to Fragoso, the respondent judge's imposition of cash-only bail violates the provision in article II, § 22(A) of Arizona's Constitution that "[a]ll persons charged with crime shall be bailable by sufficient sureties."1 He further contends no Arizona statute or rule "mentions, much less, authorizes a species of security known as a `cash only' bond."

¶ 6 "Courts should decide cases on nonconstitutional grounds if possible, avoiding resolution of constitutional issues, when other principles of law are controlling and the case can be decided without ruling on the constitutional questions." In re United States Currency of $315,900.00, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App.1995); see also State v. Korzuch, 186 Ariz. 190, 195, 920 P.2d 312, 317 (1996) ("In general, ... we should resolve cases on non-constitutional grounds in all cases where it is possible and prudent to do so."). Accordingly, we first address the meaning and scope of the pertinent Arizona statute, § 13-3967, and rule, Rule 7, Ariz. R.Crim. P., because if cash-only bail is impermissible under one or both of those provisions, we "need not reach the constitutional question to decide the case." R.L. Augustine Constr. Co. v. Peoria Unified Sch. Dist. No. 11, 188 Ariz. 368, 370, 936 P.2d 554, 556 (1997).

¶ 7 "We review the interpretation of statutes and court rules de novo." Cranmer v. State, 204 Ariz. 299, ¶ 8, 63 P.3d 1036, 1038 (App.2003). We evaluate procedural rules using principles of statutory construction, id., reading those rules in conjunction with related statutes and harmonizing the two whenever possible. Thielking v. Kirschner, 176 Ariz. 154, 159, 859 P.2d 777, 782 (App.1993). We interpret statutes and rules in accordance with the intent of the drafters, and we look to the plain language of the statute or rule as the best indicator of that intent. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). If the language is clear and unambiguous, we give effect to that language and do not employ other methods of statutory construction. State ex rel. Romley v. Hauser, 209 Ariz. 539, ¶ 10, 105 P.3d 1158, 1160 (2005); State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997).

¶ 8 Section 13-3967(D) provides in pertinent part:

[A] judicial officer may impose any of the following conditions on a person who is released ... on bail:
3. Require the deposit with the clerk of the court of cash or other security, such deposit to be returned upon the performance of the conditions of release.
6. Impose any other conditions deemed reasonably necessary to assure appearance as required ....

¶ 9 Rule 7.3(b), Ariz. R.Crim. P., provides in pertinent part:

An order of release may include the first one or more of the following conditions reasonably necessary to secure a person's appearance:
(4) Any other condition not included in (5) or (6) which the court deems reasonably necessary;
(5) Execution of a secured appearance bond ....

"Secured appearance bond" is defined in Rule 7.1(c), Ariz. R.Crim. P., as follows:

A "secured appearance bond" is an appearance bond secured by deposit with the clerk of security equal to the full amount thereof.

111 P.3d 1031
"Security" is defined in Rule 7.1(d) in pertinent part as follows
"Security" is cash, a surety's undertaking, or any property of value, deposited with the clerk to secure an appearance bond.

¶ 10 We first note that § 13-3967(D) and Rule 7.3(b) are couched in terms of what "a judicial officer may impose" and what "[a]n order of release may include." By their express terms, those provisions affirmatively grant authority to trial courts to determine and fashion appropriate conditions for a defendant's release on bail. Neither the statute nor the rule creates or extends pretrial release rights or various alternatives for defendants in posting bail. For example, § 13-3967(D) does not state that a defendant who seeks release on bail may, at his or her option, post cash or other security. Rather, the statute prescribes the conditions, including cash, that "a judicial officer may impose" on a person released on bail. § 13-3967(D)(3).

¶ 11 Moreover, the language at issue here is not ambiguous. Neither the applicable statute nor procedural rules expressly prohibit cash-only bail. To the contrary, each provides that a defendant's pretrial release may be conditioned on the deposit of cash. § 13-3967(D)(3); Ariz. R.Crim. P. 7.1(c), (d). And, if that were not clear enough, both the statute and procedural rule specifically extend to the court discretion to impose any condition not expressly listed therein if deemed "reasonably necessary." § 13-3967(D)(6); Ariz. R.Crim. P. 7.3(b)(4). Contrary to Fragoso's suggestion that § 13-3967 "is impermissibly indefinite or uncertain," we find the statute clear and definitive, expressly authorizing a court to impose as a required condition of bail a "deposit ... of cash" with the clerk of court.2 § 13-3967(D)(3). And, because the statute is not ambiguous, the rule of lenity on which Fragoso relies does not apply. See State v. Fell, 203 Ariz. 186, ¶ 10, 52 P.3d 218, 221 (App. 2002).

¶ 12 We therefore conclude from the plain language of the statute and rule that their drafters did not intend to preclude the possibility of cash-only bail as a pretrial release condition in appropriate circumstances. In view of the broad, disjunctive language in those provisions, had their drafters intended to prohibit such a condition, they "presumably would have clearly said so." State v. Henry, 205 Ariz. 229, ¶ 16, 68 P.3d 455, 459 (App.2003). We also observe that, although the specific legal question before us apparently is of first impression, Arizona decisions repeatedly have involved cases in which bail was either set or posted in cash. See, e.g., State v. Urbauer, 109 Ariz. 584, 585, 514 P.2d 717, 718 (1973) (noting "bail was set at $500,000.00 cash"); State v. Gutierrez Barajas, 153 Ariz. 511, 512, 738 P.2d 786, 787 (App.1987) (cash appearance bond posted); State v. Bailey, 120 Ariz. 399, 401, 586 P.2d 648, 650 (App.1978) (same).

¶ 13 Having found no...

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