Robertson v. Goldman, 18250

• Decision Date: 23 May 1988
• Docket Number: No. 18250,18250
• Citation: 179 W.Va. 453,369 S.E.2d 888
• Court: West Virginia Supreme Court
• Parties: James Wesley ROBERTSON and Wesley Neal Robertson v. Honorable Jay GOLDMAN, Charleston Municipal Judge, and Connie Felty, Deputy Clerk of the Municipal Court of the City of Charleston.

Page 888

369 S.E.2d 888

179 W.Va. 453

James Wesley ROBERTSON and Wesley Neal Robertson v. Honorable Jay GOLDMAN, Charleston Municipal Judge, and Connie Felty, Deputy Clerk of the Municipal Court

of the City of Charleston.

No. 18250.

Supreme Court of Appeals of

West Virginia.

May 23, 1988.

Dissenting Opinion June 21, 1988.

Syllabus by the Court

1. The right to the equal protection of the laws guaranteed by our federal and state constitutions blocks unequal treatment of criminal defendants based on indigency.

2. When final judgment has been entered against a criminal defendant, the condition of an appearance bond has been satisfied, and the surety has a right to be exonerated and have any bail deposit returned.

3. The concept of equal protection of the laws is inherent in article three, section ten of the West Virginia Constitution, and the scope and application of this protection is coextensive or broader than that of the fourteenth amendment to the United States Constitution.

4. Where a statute is susceptible of more than one construction, one which renders the statute constitutional, and the other which renders it unconstitutional, the statute will be given the construction which sustains constitutionality.

5. The requirement of Code § 8-34-1 that an "appeal bond with surety deemed sufficient" be entered into before a defendant sentenced in a municipal court may be allowed an appeal de novo to the circuit court shall be interpreted to allow a recognizance where appropriate or where the defendant is an indigent.

Marye L. Wright, Charleston, for petitioners.

John M. Charnock, Jr., City Atty., Charleston, for respondents.

McGRAW, Justice:

This is an original petition for writs of mandamus and prohibition. The Petitioners are James Wesley Robertson, who was arrested for shoplifting, and Wesley Neal Robertson, who posted a cash bond to secure James' release. The Respondents are Jay Goldman, a Charleston Municipal Judge, and Connie Felty, a Deputy Clerk of the Municipal Court. The Petitioners pray that the Respondents be required to return the cash bond and cease incarcerating criminal defendants solely because they cannot post a cash bond.

Petitioner James Robertson was arrested on December 18, 1987, and charged with a misdemeanor, first offense shoplifting. The maximum penalty for such a conviction under Charleston City Code § 18-58(e)(1) (1975) is a fine of two hundred fifty dollars. ¹ The Petitioner was informed that he must post a $500.00 real estate bond or a $305.00 cash bond in order to be released. ² He informed the Respondent Deputy Clerk he was unable to post bond in any amount, and he was, therefore, incarcerated.

Petitioner Wesley Neal Robertson posted $305.00 cash appearance bond the next morning, and the other Petitioner was released. Counsel was later appointed for the defendant Petitioner. On January 14, 1988, the Petitioner was found guilty of the shoplifting charge and fined $205.00. Counsel informed the Respondent Judge that an appeal would be taken and asked that the $305.00 appearance bond be returned. The Respondent Judge replied that the appearance bond posted by Petitioner Wesley Neal Robertson would only be returned when Petitioner James Robertson posted a $205.00 appeal bond.

The Petitioners contend that the incarceration of Petitioner James Robertson because of his inability to post bond violated his constitutional rights and that the post-conviction retention of the $305.00 cash appearance bond posted by Petitioner Wesley Neal Robertson in lieu of posting an appeal bond was unauthorized by law.

I.

No jail time was involved in the maximum penalty faced by the Petitioner herein if convicted of first offense shoplifting; yet, because he was unable to post bond, the Petitioner was incarcerated the night of December 18, 1987. The United States Supreme Court has held that it is unconstitutional to hold a prisoner longer than his maximum sentence because of his inability to pay fines or court costs, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), or to incarcerate a defendant convicted of an offense which did not otherwise carry a jail term in order to have him "satisfy" his fine, Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971). Both of these cases rely on the reasoning of the landmark decision Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), which required trial transcripts for indigent criminal appellants. Because our ruling today is based on these same principles, we quote at some length from that decision.

Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. This hope, at least in part, brought about in 1215 the royal concessions of Magna Charta: "To no one will we sell, to no one will we refuse, or delay, right or justice.... No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land." These pledges were unquestionably steps toward a fairer and more nearly equal application of criminal justice. In this tradition, our own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system--all people charged with crime must, so far as the law is concerned, "stand on an equality before the bar of justice in every American Court."

Surely no one would contend that either a State or the Federal Government could constitutionally provide that defendants unable to pay court costs in advance should be denied the right to plead not guilty or to defend themselves in court. Such a law would make the constitutional promise of a fair trial a worthless thing. Notice, the right to be heard, and the right to counsel would under such circumstances be meaningless promises to the poor. In criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color. Plainly the ability to pay costs in advance bears no rational relationship to a defendant's guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial.

Griffin, 351 U.S. at 16-17, 76 S.Ct. at 589-590 (footnotes and citations omitted).

The law is the same in West Virginia. The right to the equal protection of the laws guaranteed by our federal and state constitutions "blocks unequal treatment of criminal defendants based on indigency." Martin v. Leverette, 161 W.Va. 547, 550, 244 S.E.2d 39, 41 (1978). Indeed, we have previously observed in a case involving a "peace bond," which we said was analogous to a bail bond, that if the appellant "was placed in jail because he was an indigent and could not furnish [bond] while a person who is not an indigent can avoid being placed in jail by merely furnishing the bond required, he has been denied equal protection of the law." Kolvek v. Napple, 158 W.Va. 568, 572, 212 S.E.2d 614, 617 (1975).

In addition to the constitutional considerations already discussed, the Petitioner had a statutory right to be admitted to bail. W.Va.Code § 62-1C-1 (1984 Replacement Vol.). Further, "[a]n indigent person who the court is satisfied will appear as required shall not be denied bail because of his inability to furnish recognizance." W.Va.Code § 62-1C-4 (1984 Replacement Vol.). The Charleston Municipal Court was on notice that the Petitioner was an indigent. The Respondents do not contend that they had reason to fear that the Petitioner would not appear as scheduled. It is uncontroverted that, but for his indigency, the Petitioner would never have been jailed, since the offense with which he was charged did not carry a penalty of incarceration. Therefore, the Charleston Municipal Court's practice of jailing indigents solely because they are unable to post bond is violative of both statutory and constitutional provisions, and must cease.

II.

The $305.00 cash bond posted by Petitioner Wesley Neal Robertson was an appearance bond. West Virginia Code § 62-1C-2 (1984 Replacement Vol.) defines bail, in part, as "security for the appearance of a defendant to answer to a specific criminal charge." Further, "[w]hen the condition of the bond has been satisfied ... [the judge] shall exonerate the surety and release any bail." W.Va.Code § 62-1C-12 (1984 Replacement Vol.). No one questions that all appearances were made as required in this case or that a judgment has been rendered and a fine imposed.

The Respondents argue that West Virginia Code § 62-1C-6 (1984 Replacement Vol.) authorizes a court to continue initial bail pending appeal after conviction. While it is true that statute permits continuing bail under appropriate conditions, such is not the case here. First, the Respondents' argument ignores completely the clearly stated requirement of Section 12 to release any bail when the bond condition is satisfied. The argument also ignores the nature of bail bond as a contract between the state and the surety, whose liability cannot be extended beyond the terms of the bond without his consent, Annotation, Bail: Duration of Surety's Liability on Pretrial Bond, 32 A.L.R. 4th 504, 509 (1984). Here, the contract was between the City of Charleston and Petitioner Wesley Neal Robertson, who specifically requested the return of his deposit and refused to give his consent to extend his liability. ³ When final judgment has been entered against a criminal defendant, the condition of an appearance bond has been satisfied, and the surety has a right to be exonerated and have any bail deposit returned. The Respondent Judge erred in denying Petitioner Wesley Neal Robertson's request that the cash bond he posted...