State v. Neeley
| Decision Date | 26 September 1985 |
| Docket Number | Nos. 20694,20710,s. 20694 |
| Citation | 707 P.2d 647 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. George Ray NEELEY, Defendant and Appellant. STATE of Utah, Plaintiff and Respondent, v. Lynn BELT, Defendant and Appellant. |
| Court | Utah Supreme Court |
Ronald J. Yengich, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
The defendants in these consolidated appeals filed motions for certificates of probable cause pursuant to Rule 27, Utah R.Crim.P. (U.C.A., 1953, § 77-35-27). The State opposes issuance of the certificates and requests an interpretation and clarification of the requisite procedures and grounds upon which this Court and the district courts will issue certificates of probable cause under Rule 27.
Rule 27 provides a two-step process for defendants in seeking release on bond pending appeal from a criminal conviction. First, the defendant applies to the district court for a certificate of probable cause. If that court denies the certificate, the defendant may apply to this Court for the certificate. If either court issues the certificate, the defendant may then seek release on bond pending his appeal.
The State first requests this Court to outline the criteria by which this Court and the district courts will determine whether a certificate of probable cause should be granted. Rule 27(b) provides in relevant part:
A certificate of probable cause shall be issued if the court hearing the application determines that there are meritorious issues that should be decided by the appellate court.
(Emphasis added.)
The State suggests that this Court interpret "meritorious issues" to mean "substantial questions of law or fact which, if determined favorably to the defendant on appeal are likely to result in reversal or an order for a new trial." See 18 U.S.C. § 3143(b)(2). The quoted language, in substance, was added to the federal law effective 1984 as one of several changes in the federal Bail Reform Act. Those changes have been described as marking a "significant departure from the basic philosophy" 1 of the purpose of bail.
Our rule does not contain the language urged by the State, but is rather patterned after the federal law prior to the 1984 changes. The previous federal law required that, in order to be admitted to bail pending appeal, a defendant must raise a substantial question which should be determined by the appellate court. The federal courts have consistently interpreted that language to mean that bail should be denied if the appeal is frivolous or taken merely for delay, but that bail should be granted where the issues raised by the defendant are either novel or fairly debatable. See, e.g., D'Aquino v. United States, 180 F.2d 271 (9th Cir.1950); Bridges v. United States, 184 F.2d 881 (9th Cir.1950).
We hold that under our Rule 27, in issuing a certificate of probable cause preliminary to consideration of release pending appeal, the court must determine that the issues of fact or law raised on appeal are substantial. There are two prongs to the test for determining whether issues raised are "substantial." First, the question raised must be either (1) novel, i.e., there is no Utah precedent that governs, or (2) fairly debatable. A legal issue is fairly debatable if Utah precedent bearing on the issue presents conflicting points of view when applied to the facts of the case or is otherwise unclear. Second, the legal issue raised must also be integral to the conviction, e.g., if error in the proceedings below would be considered harmless, in light of precedent, the certificate should not issue.
The second point raised by the State in its motion concerns the state of the record at the time certificates of probable cause are argued before this Court. The record of proceedings below is not available in this Court at the time such petitions are brought. In addition, the petitions filed by the defendants are generally conclusory and contain little information concerning the case. The attorney general, who is by law required to argue before this Court, 2 is uninformed concerning the facts of the case or the proceedings taken in the court below and therefore finds it difficult to respond to petitions for certificates of probable cause. This Court is likewise uninformed concerning the record until oral argument. In order that this Court may make an informed decision in issuing certificates of probable cause under Rule 27, we shall from this date forward require that an affidavit be filed at the time a petition...
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...outcome of the defendant's appeal only to the extent necessary to determine whether the appeal may result in reversal"); State v. Neeley, 707 P.2d 647 (Utah 1985) (bail considered only after determination that legal issue raised on appeal is integral to conviction). In Stewart's rule 30 mot......
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...stay because the Indian Child Welfare Act has no application in this proceeding. The issue raised is wholly without merit. State v. Neeley, 707 P.2d 647 (Utah 1985). ...
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...and we subsequently adopted all existing statutory rules of procedure, including rule 27. We followed rule 27 in deciding State v. Neeley, 707 P.2d 647 (Utah 1985), and State v. Pappas, 696 P.2d 1188 (Utah 1985). Rule 27 has remained unchanged since its enactment by the legislature in 1980 ......