State v. Stevens

• Decision Date: 07 October 1975
• Docket Number: No. 523,523
• Citation: 234 N.W.2d 623
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Ervin Alfred STEVENS, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 623

234 N.W.2d 623

STATE of North Dakota, Plaintiff and Appellee, v. Ervin Alfred STEVENS, Defendant and Appellant.

Crim. No. 523.

Supreme Court of North Dakota.

Oct. 7, 1975.

Syllabus by the Court

1. As a general rule, a defendant who has not been tried is presumed innocent and therefore entitled to be released on bail except when charged with a capital offense or when compelling circumstances justify pretrial confinement to assure the appearance of the defendant when required. Rule 46(a), N.D.R.Crim.P.

2. After a defendant has been convicted, the presumption of innocence no longer applies; on the contrary, there is a strong presumption of guilt. Therefore, a convicted defendant is not entitled as of right to release on bail while the appeal is pending.

3. As a general rule, a convicted defendant is entitled to release pending appeal unless it appears that (1) the appeal is frivolous, (2) the appeal is taken for delay, (3) there is reason to believe the defendant might flee, or (4) the defendant poses a danger to others or to the community.

4. The decision whether a convicted defendant should be released pending appeal is discretionary with the trial court.

5. In order to come under the express provisions of Rule 9(b), N.D.R.App.P., and Rule 46(d), N.D.R.Crim.P., the appellant must show that his application for release pending appeal has been made in the first instance to the trial court.

Charles J. Gilje, State's Atty., Jamestown, for plaintiff and appellee State of N.D.

Vance K. Hill, Bismarck, for defendant and appellant.

VOGEL, Judge.

The appellant, who was convicted of first-degree manslaughter of a two-year-old child who died of traumatic injuries to the abdomen, has appealed from his conviction. The appeal will be argued in two or three months. Pending the disposition of the appeal, the appellant 'moves this court to authorize his release from custody at the State Hospital upon his completion of the Alcoholic Treatment Program in which he is currently participating until such time as his appeal to this court is finally decided.'

The motion is made pursuant to the provisions of Rule 9(b), North Dakota Rules of Appellate Procedure, which reads:

'Application for release after a judgment of conviction shall be made in the first instance in the trial court. If the trial court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. Thereafter, if an appeal is pending, a motion for release, or for modification of the conditions of release, pending review may be made to the supreme court or to a judge thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee. The supreme court or a judge thereof may order the release of the appellant pending disposition of the motion.'

Rule 46(d), North Dakota Rules of Criminal Procedure, is identical. Both are modeled after the identically numbered Federal rules.

We deny the motion, with leave to make a similar motion to the district court.

The motion raises important questions not previously decided in this State as to release on bail pending appeal.

The general rule seems to be that a defendant who has not been tried and therefore is presumed innocent is entitled to be released on bail except when charged with an offense punishable by death or when compelling circumstances justify pretrial confinement to assure the appearance of the defendant when required. ¹ See Rule 46(a), N.D.R.Crim.P., Rule 46(a), F.R.Crim.P., and Federal Bail Reform Act of 1966, 18 U.S.C. §§ 3146--3152.

It is impossible to lay down specific guidelines for release of persons who have been convicted of crimes and sentenced to imprisonment who choose to appeal the convictions. The facts of each crime differ and the nature of each defendant differs, and consequently the decision must be made in each case on its own facts.

Several considerations suggest the denial of motions for release. There no longer is a presumption of innocence when a defendant has been convicted; on the contrary, there is a strong presumption of guilt. Some defendants file appears for the purposes of delay, even though they have little or no hope of a reversal. And some appeals are merely frivolous. These considerations tend to enforce a common assumption that persons convicted of crime and sentenced to confinement should be confined while the appeal is pending.

On the other hand, it is abhorrent to our sense of fairness and procedural due process that a defendant who has a meritorious appeal and a good chance of obtaining a reversal should be confined during the time required to obtain the reversal.

The opposing views as to release on bail of convicted defendants have been reconciled into a general rule that a convicted defendant is entitled to release while the appeal is pending only if it appears (1) that the appeal is not frivolous, (2) the appeal is not taken for the purpose of delay, (3) there is sufficient reason to believe that the conditions of release will reasonably assure that the defendant will not flee, and (4) there is sufficient reason to believe that the defendant does not pose a danger to any other person or to the community. 3 Wright, Fed.Pract. & Proc., Criminal, § 767.

(1) Is the appeal frivolous in this case? The trial judge forthrightly stated at the time of sentencing that the contemplated appeal from the conviction presented important questions. We have read the transcript and we agree. One such question relates to the admissibility of evidence as to injuries to the decedent child at earlier times while the child was in the case of the defendant. The injuries were reported as accidental and the defendant claims that they were...