Mello v. Superior Court

• Decision Date: 18 February 1977
• Docket Number: No. 76-165-M,76-165-M
• Citation: 370 A.2d 1262,117 R.I. 578
• Parties: . P. Supreme Court of Rhode Island
• Court: Rhode Island Supreme Court

Page 1262

370 A.2d 1262

117 R.I. 578

William D. MELLO v. SUPERIOR COURT et al.

No. 76-165-M.P.

Supreme Court of Rhode Island.

Feb. 18, 1977.

[117 R.I. 600] Edward John Mulligan, Pawtucket, for petitioner.

William F. Reilly, Public Defender, Barbara Hurst, Asst. Public Defender, amicus curiae.

Julius C. Michaelson, Atty. Gen., Gregory L. Benik, Special Asst. Atty. Gen., for respondent.

OPINION

KELLEHER, Justice.

This is a habeas corpus proceeding. The petitioner alleges that the Superior Court did not have authority to revoke his bail upon a finding that he had breached a condition of his release and that this action violated his right to bail under the Rhode Island Constitution. He also claims that the trial court deprived him of liberty without due process in contravention of the fifth and fourteenth amendments of the United States Constitution by holding him without bail pending a hearing to determine whether bail should be revoked. We hold that although the issue is technically mooted by the petitioner's subsequent release from a jail, the issue is properly justiciable. Further, we conclude that the Rhode Island Constitution does not preclude a Superior Court justice from revoking bail, nor where proper procedure is followed is a defendant denied due process.

On April 11, 1975, petitioner, whom we shall call Mello, was indicted for receiving stolen goods and possession of a stolen vehicle in violation of G.L.1956 (1969 Reenactment) §§ 11-42-2 and 31-9-2, respectively. He was arraigned on May 5, 1975, pled not guilty, and released on $1,000 personal recognizance. On February 27, 1976, an information was filed, charging him with receipt of stolen goods. Mello was arraigned on March 23, 1976, and bail was set at $3,000 with surety. At that point the state moved under Super.R.Crim.P. 46(g) to revoke bail on the April 1975 indictments. Mellow was ordered held without bail pending a hearing on the state's motion, scheduled for April 6, 1976. The trial justice conducted a hearing on April 6 and 7, 1976, and found sufficient proof that Mello had violated the terms of his recognizance. Accordingly, personal recognizance was revoked, and Mello was committed to the Adult Correctional Institutions. Approximately 3 weeks later Mello petitoned this court for a writ of habeas corpus. Subsequently, on May 25, 1976, he pleaded nolo contendere to the three charges and was sentenced. ¹

I.

The state has urged that the petition should be dismissed because the issue presented is moot. Mello is no longer being held without bail on his original charges, and no order of this court would be of any assistance to him. The state has quite properly enunciated the general rule, for we have said on numerous occasions that we will consider cases only where live issues exists. We will refrain from addressing moot, abstract, academic, or hypothetical situations. See Perry v. Petit, 116 R.I. 89, 352 A.2d 396 (1976); Ramsdell v. Kiely, 111 R.I. 1, 298 A.2d 144 (1973); Town of Scituate v. Scituate Teachers' Ass'n, 110 R.I. 679, 296 A.2d 466 (1972); Lauder v. Zoning Bd. of Review, 100 R.I. 641, 218 A.2d 476 (1966).

However, in certain situations we will depart from the ordinary to better deal with the extraordinary. See Tamborelli v. Amazine, 113 R.I. 719, 326 A.2d 857 (1974). The case before us falls into that class, for while it is clearly established that we will not waste precious judicial time on moot questions, it is equally well-established that there are questions of extreme public interest which are capable of repetition but somehow evade review. These demand our attention and quite properly come before us for decision. Lemoine v. Martineau, 115 R.I. 233, 342 A.2d 616 (1975); School Comm. v. Westerly Teachers Ass'n, 111 R.I. 96, 299 A.2d 441 (1973); Chernov Enterprises, Inc. v. Scuncio, 107 R.I. 439, 268 A.2d 424 (1970). Accordingly, we will consider the substantive issues presented here.

II.

A defendant's right to bail is guaranteed by R.I.Const. art. 1, § 9. 'All persons imprisoned ought to be bailed by sufficient surety, unless for offenses punishable by death or by imprisonment for life, when the proof of guilt is evident or the presumption great.' In Taglianetti v. Langlois, 105 R.I. 596, 253 A.2d 609 (1969), we interpreted this section as providing bail as a matter of right, subject, of course, to a showing by the state in certain cases that proof is indeed evident or the presumption great. Recently we have ruled that even though a trial court has decided that the state has satisfied the so-called constitutional burden of proof, the court still retains its discretionary power to grant the accused bail. Fountaine v. Mullen, R.I., 366 A.2d 1138, 1143 (1976).

It has been contended that this right is absolute and cannot be infringed by the imposition of conditions. This just is not so. We have recognized that the primary purpose of bail is to ensure the defendant's presence at court. Lemme v. Langlois, 104 R.I. 352, 244 A.2d 271 (1968); Quattrocchi v. Langlois, 100 R.I. 741, 219 A.2d 570 (1966). Few, if any, would contend that bail could not be conditioned on the defendant's promise to appear when the court calls. See Rendel v. Mummert, 106 Ariz. 233, 474 P.2d 824 (1970). When one free on bail commits other crimes, the pressure to flee the court's jurisdiction and fail to appear when summoned is apt to increase. Thus, bail may also be conditioned on the continuing good behavior of the accused. Rendel v. Mummert, supra. Both of these conditions are specifically authorized by Super.R.Crim.P. 46(d) and G.L.1956 (1969 Reenactment) § 12-13-1.

We fail to see how the imposition of these conditions is unconstitutional, since they are integrally related to the right afforded and are but reasonable attempts by the Legislature and the judiciary to balance the interest of the accused against that of the state. The object of bail is '* * * to put the accused as much under the power of the court as if he were in the custody of the proper officer.' Lemme v. Langlois, supra, 104 R.I. at 356, 244 A.2d at 273. We feel that these conditions are a legitimate means of achieving that goal.

In this case bail was granted, liberty was afforded, and Mello accepted the trial justice's reasonable conditions as to good behavior. It was subsequently discovered that Mello had violated one of those conditions. The question is not whether he ought to have been bailed on the second or any other subsequent charge, ² but whether bail on the first set of charges could be revoked in consequence of his knowing and wilful disregard of the court's order.

Mello has urged that there are sanctions provided for the breach of a condition. He directs us to Super.R.Crim.P. 46(e) and (g), which provide for criminal contempt and forfeiture of the bail, respectively. ³ Additionally, it has been suggested that following forfeiture, new and higher bail can be set with more stringent conditions than previously. ⁴ While we recognize that these options are certainly available to the trial justice, we do not find he is restricted to them. See Super.R.Crim.P. 46(e). Moreover, we do not think our Constitution must be read as providing a continuing, renewable right to bail on the same charge where a bail condition has been breached. The state need not keep freeing the defendant while upping the ante.

Our search for authority on this point has revealed that insofar as the issue has been addressed (which is minimal) jurisdictions are split. At least one state has said that where the defendant breached bail by a failure to appear at court, bail must be given again. Wallace v. State, 193 Tenn. 182, 245 S.W.2d 192 (1952). However, for the reasons that follow we find the rationable of those authorities supporting revocation of bail more persuasive.

It is our conclusion that a specific statute granted the trial court authority to revoke bail is not necessary, since a court with jurisdiction over a criminal case has the power to enforce its orders as to bail just as it has control over other orders. People ex rel. Hemingway v. Elrod, 60 Ill.2d 74, 83, 322 N.E.2d 837, 842-43 (1975). The ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release, § 5.7 Commentary (approved draft, 1968), has reasoned that where the defendant is shown to have violated a condition related either to risk of nonappearance or criminal activity, the court would be authorized to revoke release.

A least two states have adopted this posture. The court in Elrod stated that a court '* * * has the inherent authority to enforce its orders and to require reasonable conduct from those over whom it has jurisdiction. To this end the court has authority to impose sanctions * * * including the revocation of his release in the manner provided in (ABA) Standards 5.6, 5.7 and 5.8.' People, etc. v. Elrod, supra, 60 Ill.2d at 83-84, 322 N.E.2d at 842-43. Accord, Tijerina v. Baker, 78 N.M. 770, 438 P.2d 514 (1968).

It has been argued that allowing a trial court to revoke release in this manner treads perilously close to the precipice of preventive detention. We have a different view of the terrain. The cases brought to our attention in support of this argument are not in point. Most frequently cited is In re Underwood, 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721 (1973), where the California Supreme Court rejected the theory that bail can be denied for public safety reasons. The facts of that case are distinguishable from those at bar, however, because there a trial justice granted bail on the first charge but denied it on the second group of charges. Martin v. State, 517 P.2d 1389 (Alaska 1974), which endorsed the Underwood rationale, addressed three separate appeals only one of which was granted, again where bail was denied on a second charge because the defendant was 'a danger to society.' Similarly, State v. Pray, 133 Vt. 537, 346 A.2d 227 (1975), and Commonwealth v....