Priest v. Pearce

• Decision Date: 22 October 1992
• Citation: 314 Or. 411,840 P.2d 65
• Parties: Roger Karl PRIEST, Plaintiff, v. Fred PEARCE, Director of Department of Corrections, Defendant. SC S39032.
• Court: Oregon Supreme Court

Page 65

840 P.2d 65

314 Or. 411

Roger Karl PRIEST, Plaintiff, v. Fred PEARCE, Director of Department of Corrections, Defendant.

SC S39032.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 28, 1992.

Decided Oct. 22, 1992.

John Henry Hingson III, Oregon City, argued the cause and filed the petition, for plaintiff.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause and filed the memoranda, for defendant. With her on the memoranda were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GILLETTE, Justice.

In this original habeas corpus proceeding, we are called upon to decide whether the right to suitable bail guaranteed by Article I, section 14, of the Oregon Constitution, set out post, is available to a convicted criminal defendant during the pendency of his or her appeal. We hold that the scope of Article I, section 14, does not extend to appeals.

Plaintiff, who is the defendant in an underlying criminal case, pleaded guilty on October 17, 1991, to charges of second and fourth degree assault. By a judgment entered on January 15, 1992, he was sentenced to 20 months in jail. Plaintiff had been released on bail pending trial; ¹ he Article I, section 14, of the Oregon Constitution, provides:

sought release pending resolution of his appeal. The trial court denied bail. Plaintiff then filed with this court petitions for a writ of mandamus and a writ of habeas corpus, both aimed at requiring either the trial court or the Court of Appeals to admit plaintiff to bail. We denied his petition for a writ of mandamus, but issued a writ of habeas corpus, in order to address the important and unresolved question of constitutional law presented by this case.

"Offences [sic ], except murder, and treason, shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong."

Plaintiff's argument is simple: Because he "has been found guilty of offenses that are neither treason nor murder in any degree," he is "entitled to bail as a matter of right under [Article I, section 14]," during the pendency of his appeal. He does not assert that his release must be on his own recognizance; neither does he deny that any release may be conditioned on a wide variety of circumstances. The amount of bail and any conditions that a releasing court might wish to impose as a condition of release are, plaintiff recognizes, matters for the releasing court to consider in its discretion. But plaintiff does assert that he is entitled to have that discretion exercised and to have some level of bail set.

SUB-CONSTITUTIONAL ANALYSIS

As is customary under our methodology, we begin with the pertinent sub-constitutional law. See, e.g., State v. Moylett, 313 Or. 540, 545-46, 836 P.2d 1329 (1992) (even where a party's claim of right is based on a constitutional provision, court should first determine whether party's claim may be satisfied by statute). ORS 135.285(2) provides:

"After judgment of conviction in municipal, justice or district court, the court shall order the original release agreement, and if applicable, the security, to stand pending appeal, or deny, increase or reduce the release agreement and the security. If a defendant appeals after judgment of conviction in circuit court for any crime other than murder or treason, release shall be discretionary."

(Emphasis added.) Clearly, the emphasized portion of the statute establishes that there is no absolute statutory right to release on bail pending appeal: If the trial court is given the right "to deny * * * the release agreement and the security," and if an affirmative decision to "release" is "discretionary," it follows ineluctably that a decision not to release the convicted person lies within the range of discretion granted by the statute.

If the foregoing were subject to dispute as a matter of interpreting English, the legislative history of ORS 135.285(2) removes any residual doubt as to the statute's meaning. First enacted in 1971 as part of a revision of the criminal procedure code relating to appeals, the statute was reenacted two years later as part of the comprehensive revision of Oregon's criminal procedure law. Before it was changed to essentially its present form in 1971, ORS 140.030 (1969) provided:

"If the charge is for any other crime than those mentioned in ORS 140.020 [which is not pertinent to this case], the defendant, before conviction, or after judgment of conviction, if he has appealed, is entitled to be admitted to bail as a matter of right."

ORS 140.030 (1969) thus made bail pending appeal, except in cases involving murder or treason, a matter of right. See Hanson v. Gladden, 246 Or. 494, 426 P.2d 465 (1967); Delaney v. Shobe, 218 Or. 626, 346 P.2d 126 (1959) (recognizing rule). The intent of the committee that drafted the 1972 Oregon Criminal Procedure Code was to change that rule:

"Subsection (2) [of what eventually became ORS 135.285] changes the current Proposed Oregon Criminal Procedure Code 147, § 247, Commentary (1972). See also Owens v. Duryee, 285 Or. 75, 589 P.2d 1115 (1979) (dictum indicating that release after judgment of guilt is discretionary under ORS 135.285(2)).

law of [former ] ORS 140.030 from the right of the defendant to release upon appeal to release upon appeal subject to the discretion of the court. * * * If the defendant appeals from his conviction in circuit court, the court may grant release subject to its discretion."

We find it to be clear from the foregoing discussion that plaintiff has no statutory right to the relief that he seeks. Therefore, the constitutional question that he raises is squarely presented. We turn now to that issue. ²

CONSTITUTIONAL ANALYSIS

In support of his position, plaintiff relies primarily on the statement in Article I, section 14, of the Oregon Constitution, that "[o]ffences [sic ], except murder, and treason, shall be bailable by sufficient sureties." (Emphasis added.) There are three levels on which that constitutional provision must be addressed: Its specific wording, the case law surrounding it, and the historical circumstances that led to its creation. We shall address those topics in the order in which they are listed.

1. Text and Context

The particular words on which plaintiff relies do not, in our judgment, support his theory, as soon as those words are seen in the larger context of the constitutional provision as a whole: "[Offenses] * * * shall be bailable by sufficient sureties. Murder or treason, shall not be bailable, when the proof is evident, or the presumption strong." (Emphasis added.)

It is clear, by that wording, that at least the second sentence of Article I, section 14, can apply only to those charged with, but not yet convicted of, the offenses of murder or treason. The second sentence of the constitutional provision becomes meaningless if it is intended to apply after a conviction is obtained and an appeal is brought: When a court or jury has found guilt beyond a reasonable doubt, proof hardly can be said to be other than "evident"; the presumption of guilt hardly can be said to be other than "strong."

It would be anomalous to treat the first sentence of the constitutional provision as applying even after conviction and on appeal, while the second sentence would apply only before conviction, when there is not a single word in the constitutional provision itself to suggest that the two sentences differ in their coverage. The logical course is to give a parallel construction to both sentences of the same provision. This means that both sentences speak only to the circumstances of those charged with, but not yet convicted of, offenses. The question of post-conviction bail is left to legislative grace, not constitutional mandate.

Logic outside the wording of the provision also supports this construction. One charged with an offense is presumed innocent. One convicted of an offense has lost the benefit of that presumption and, as this court recently put it, may be under "enormous pressure to flee." Gillmore v. Pearce, 302 Or. 572, 581, 731 P.2d 1039 (1987). It makes sense that Oregon's founders would provide within the constitution for bail for one charged with an offense, but omit any such consideration for one already convicted.

2. Case Law

This court's case law under Article I, section 14, is somewhat inconsistent on this issue. Some earlier cases appear to assume that bail on appeal is a matter of constitutional right, but no case actually

required the Supreme Court to address the point. See, e.g., Hanson v. Gladden, supra, 246 Or. at 495, 426 P.2d 465 (stating that, under Article I, section 14, and ORS 140.030 (1969), "the defendant in a criminal case who appeals from a conviction is entitled to be admitted to bail"); Mozorosky v. Hurlburt, 106 Or. 274, 278, 198 P. 556, 211 P. 893 (1923) (same). However, later decisions of this court appear to assume that the constitutional provision is concerned solely with release before conviction of an offense; but, again, no case that we have found specifically and authoritatively decides the question. See, e.g., State v. Pinnell, 311 Or. 98, 116, 806 P.2d 110 (1991) ("When a defendant is charged with murder, his right to release on security pending trial will be denied if the state establishes at a security release hearing by 'clear and convincing evidence' that the likelihood of the defendant's guilt is strong") (emphasis added); State v. Douglas, 310 Or. 438, 445, 800 P.2d 288 (1990) (same); Gillmore v. Pearce, supra (same).

3. History

The concept of a right to bail, as set forth in Article I, section 14, and in similar provisions in the constitutions of other states, was foreign to the English court system, just as it is foreign to the system of bail in the federal judicial system under the Eighth Amendment. United States v. Edwards, 430 A.2d 1321, 1325-29 (D.C.1981), cert. den. 455 U.S. 1022, 102 S.Ct. 1721...