People v. Jones

• Decision Date: 04 October 1971
• Docket Number: No. 24967,24967
• Citation: 176 Colo. 61,489 P.2d 596
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James W. JONES, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 596

489 P.2d 596

176 Colo. 61

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James W. JONES, Defendant-Appellant.

No. 24967.

Supreme Court of Colorado, En Banc.

Oct. 4, 1971.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., E. Ronald Beeks, George E. DeRoos, Asst. Attys. Gen., Denver, for defendant-appellee.

James W. Jones, pro se.

ERICKSON, Justice.

James W. Jones, who was the defendant below, seeks relief under the provisions of Crim.P. 35(a) and (b). His motion and his appeal to this Court center on his claim that the sentencing court did not grant him credit for time which he spent in the county jail before sentence was imposed.

Other cases which are announced this date involve the same basic issue. ¹ Two of the pending cases ² were consolidated with this case for oral argument so that we could examine and resolve this issue without delay.

Fundamental to all the claims for reduction of sentence and for relief under the provisions of Crim.P. 35 is the assertion that credit for time spent in custody because of financial inability to make bail is a constitutional right vouchsafed by the provision against double jeopardy in the Fifth Amendment and the equal protection clause of the Fourteenth Amendment. The defendants have looked to the decisions of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1973), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as the basis for supporting their constitutional arguments. They all assert that confinement in jail because of financial inability to make bail is equivalent to imprisonment for failure to pay a monetary fine. See Tate v Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970).

An analysis of the defendants' claims brings the constitutional guarantee against double jeopardy in the Fifth Amendment and the equal protection clause of the Fourteenth Amendment into a critical area that has not been fully defined by the Supreme Court of the United States. It would be necessary for us, if we were to reach the result desired by the defendant, to hold that pre-sentence confinement is punishment and that an order fixing monetary bail is unconstitutional Per se. Needless to say, we are not prepared to establish a constitutional outpost which would permit all indigent criminal defendants to be released from jail without bail.

The attack which has been made goes to the heart of our bail system and condemns time-worn practices that admittedly require change, but which have withstood constitutional attacks in the past. Bail has been tolerated by our courts because it serves to assure the presence of the accused at all times required by the court. Short v. United States, 120 U.S.App.D.C. 165, 344 F.2d 550 (1965); Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1965); Gusick v. Boies, 72 Ariz. 233, 233 P.2d 446 (1951). The American Bar Association Standards of Criminal Justice Relating to Pretrial Release candidly declare that:

'The bail system as it now generally exists is unsatisfactory from either the public's or the defendant's point of view. Its very nature requires the practically impossible task of translating risk of flight into dollars and cents and even its basic premise--that risk of financial loss is necessary to prevent defendants from fleeing prosecution--is itself of doubtful validity. The requirement that virtually every defendant must post bail causes discrimination against defendants who are poor and imposes personal hardship on them, their families and on the public which must bear the cost of their detention and frequently support their dependents on welfare. * * * See generally Beeley, The Bail System in Chicago (1927); Freed & Wald, Bail in the United States: 1964 * * *; Foote, The Administration of Bail in New York City, 106 U.Pa.L.Rev. 693 (1958); Ares, Rankin & Sturz, The Manhattan Bail Project, 38 N.Y.U.L.Rev. 67 (1963). * * *'

See also L. Silverstein, Defense of the Poor in Criminal Cases in American State Courts, 7--8 (1964); Foote, The Coming Constitutional Crisis on Bail, 113 U.Pa.L.Rev. 959, 1125 (1965); Pye, The Administration of Criminal Justice, 66 Colum.L.Rev. 286, 293 (1966); Mitchell, Bail Reform and the Constitutionality of Pre-Trial Detention, 55 Va.L.Rev. 1223 (1969); Ares, Rankin & Sturz, The Manhattan Bail Project, 38 N.Y.U.L.Rev. 67 (1963); Note, Preventative Detention Before Trial, 79 Harv.L.Rev. 1489 (1966); Proceedings of the Conference on Bail and Indigency, 1965 U.Ill.L.F. 1 (1965).

Protection of the accused has been provided by rule and judicial mandates that require that a court, in all instances, obtain facts which will provide a sound basis for an intelligent and fair bail decision. American Bar Association Standards of Criminal Justice Relating to Pretrial Release, § 4.5. See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); Short v. United States, 120 U.S.App.D.C. 165, 344 F.2d 550 (1965); Crim.P. 46; American Bar Association Standards of Criminal Justice Relating to Pretrial Release for factors which provide the court with a proper basis for the bail decision.

If bail is set in an excessive amount, the defendant has the right to petition for reduction of bail or appeal the bail decision. Altobella v. District Court, 153 Colo. 143, 385 P.2d 663 (1963); Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963).

The United States Constitution and the Colorado Constitution both prohibit excessive bail but recognize that monetary bail is constitutionally permissible, and that bail need not be a matter of right in every case. U.S.Const. Amend. VIII (Eighth Amendment); Colo.Const., art. II, § 19. See Carlson v. Landon, 342 U.S. 524, 72 S.Ct. 525, 96 L.Ed. 547 (1952); Shanks v. District Court, 153 Colo. 332, 385 P.2d 990 (1963); In re Losasso, 15 Colo. 163, 24 P. 1080 (1890). The right to bail does not amount to a guarantee that every defendant who is charged with a crime will be released without bail if he is indigent. See Bandy v. United States, 81 S.Ct. 197, 5 L.Ed.2d 218 (1960). The denial of bail in the instant case was not arbitrary and was not based solely upon the defendant's financial condition. Due process requirements were met. Zemel v. Rusk, 381 U.S. 1, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965).

The posture of this appeal, however, does not require that constitutional criteria be the heart of this decision. The infirmities of our bail system are not the true basis of the defendants' complaints. In all three cases which were consolidated for argument, the trial judge stated at the time that sentence was imposed that he was considering or giving the defendant credit for time which he spent in custody prior to the determination of guilt and the imposition of sentence.

The petitioner in this case, James W. Jones, was arrested on January 28, 1969, and charged with short check felony and theft. A bail bond was set on the two charges in the amount of $7,500. He was unable to make bond and was confined until May 5, 1969, when sentence was imposed after he had plead guilty to the short check felony. A plea bargain resulted in the defendant's guilty plea and the dismissal of the theft charge by the district attorney. He was sentenced to the Colorado State Penitentiary on the short check felony charge for a term of not less than three years nor more than five years. The maximum sentence which could have been imposed by the court was five years. 1967 Perm.Supp., C.R.S.1963, 40--14--20(6). Jones contends that even though the trial court asserted that the three and one-half months which he spent in the county jail awaiting trial and sentence were considered at the time sentence was imposed, it was mathematically impossible to give credit to the defendant for pre-conviction incarceration when the sentencing judge imposes the maximum statutory sentence. He contends that the minimum sentence only establishes a time that would permit parole. C.R.S.1963, 39--18--4. He also asserts that the Colorado Adult Parole Board is under no obligation to release a prisoner on parole at the expiration of the minimum term.

The law is clear that if the actual sentence imposed, plus the time spent in jail prior to sentence, does not exceed the maximum sentence which could be imposed, it will be conclusively presumed that the sentencing court gave the defendant credit for the pre-sentence time spent in confinement. Maciel v. People, 172 Colo. 8, 469 P.2d 135 (1970); Ballard v. United States, 388 F.2d 607 (5th Cir. 1968); Dunn v. United States, 376 F.2d 191 (4th Cir. 1967); Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966). If, at the time of sentencing, a defendant or his counsel has any reason to believe that the trial judge is unaware of the length of time the defendant was in custody or is not considering pre-sentence confinement in arriving at a sentence, such information should be presented to the judge, along with other mitigating factors. See American Bar Association Standards of Criminal Justice Relating to The Prosecution Function and The Defense Function, Part VIII, After Conviction, § 8.1, Sentencing.

We have neither rule nor statute that requires a trial judge to grant a defendant credit for time which he has served in jail before there is an ascertainment of guilt and the imposition of sentence. See Federal Bail Reform Act, 18 U.S.C. § 3568 (1966); Ill.Ann.Stat. c. 38, § 119--3 (Smith-Hurd 1966 Supp.); Mass.Gen.Laws c. 276, § 33A (1966 Supp.); Pa.Stat.Ann. tit. 19, § 894 (1964) for statutes providing for credit for time served prior to the commencement of sentence. Without legislation, credit for pre-sentence confinement is not a matter of right, since there is no constitutional right to credit. See Ibsen v. Warden, Nevada State Prison, Nev., 471 P.2d 229 (1970); State v. Virgil, ...