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.
369 S.E.2d 888
For the foregoing reasons, we affirm the judgment of the Circuit Court of Berkeley County in part and reverse in part.
Affirmed in part, reversed in part.
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 Resрondent 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.
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 otherwisе 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 рowerful 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 imprisоned, 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).
In addition to the constitutional considerations already discussed, the Petitioner had a statutory right to be admitted to bail.
II.
The $305.00 cash bond posted by Petitioner Wesley Neal Robertson was an appearance bond.
The Respondents argue that
III.
Petitioner James Robertson contends that he should be allowed to pursue his appeal in the circuit court without posting bond. The Appellant has a statutory right to appeal his conviction dе novo to the circuit court.
We have previously recognized that an indigent‘s right to appeal from the decision of a municipal court can be defeated by manipulating this “appeal bond”4 requirement. Champ v. McGhee, 165 W.Va. 567, 270 S.E.2d 445 (1980). Following the reasoning in Griffin, the Supreme Court of Orеgon ruled that a statute requiring the filing of a bond as a condition to the right of appeal was unconstitutional under the federal equal protection clause as applied to an indigent defendant. Barber v. Gladden, 210 Or. 46, 298 P.2d 986 (1956). 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. State ex rel. Harris v. Calendine, 160 W.Va. 172, 233 S.E.2d 318 (1977).
If our statute rigidly required the posting of a cash appearance bond for the perfection of an appeal, it would be unconstitutional as applied to indigents. Under our rules оf statutory construction, however, “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.” State ex rel. Frieson v. Isner, 168 W.Va. 758, 778-79, 285 S.E.2d 641, 655 (1981). The word “surety” need not mean anything more than “a pledge or other formal engagement given for the fulfillment of an undertaking.” Webster‘s Third New International Dictionary 2300 (1970). Therefore, the requirement of
Conclusion
Because discrimination on the basis of poverty denies the equal protection of the laws to criminal defendants, a writ of prohibition is granted ordering the Respondents to cease their practice of jailing indigents facing charges which do not carry a potential jail term solely because they are unable to post bond. Writs of mandamus are also granted ordering the Respondents to return the $305.00 cash bond posted by Petitioner Wesley Neal Robertson and to allow Petitioner James Robertson‘s appeal de novo to the circuit court without requiring the posting of cash bond.
Writs as Moulded Granted.
NEELY, Justice, dissenting:
I dissent because the majority rule leaves no room for a court to question thе financial priorities of an “indigent” defendant. Once the defendant signs a pauper‘s affidavit, he is automatically granted the right to an appeal bond on his own recognizance.
In the real world, every individual has his own financial priorities. First for almost everyone are expenses for shelter, food, clothing and transportation to аnd
The bond requirement for an appeal to circuit court serves two purposes. Most directly, it is designed to ensure the once-convicted defendant‘s appearance in the appellate court. Indirectly, the bond requirement makes it less likely that a defendant will take an appeal that is totally lacking in merit. For a working man of limited means, posting an appeal bond and missing work for the appeal itself are not likely dоne unless the defendant feels he has some basis for the appeal. However, a defendant who makes less money or receives government assistance, and who takes the pauper‘s oath, has but to sign his name to perfect an appeal. What defendant of any intelligence will not follow a path of least resistance and take an appeal, regardless of its basis? And how seriously will defendants, particularly professional defendants, treat proceedings in municipal courts when they know they automatically have another free shot? We must strike a balance so that indigents are not denied equal protection due to their poverty, but with due regard for the needs of the administration of justice and the fair treatment of non-indigent defendants of modest means.
In this case, when the defendant‘s liberty was at stake, his family found the means to post his bond. Yet when it came time to post an appeal bond, the defendant insists he has no access to funds for the bond.
I do not believe that the “surety deemed sufficient” clause of the appeal bond statute should automatically be deemed to mean personal recognizance in every case where the defendant has filed a pauper‘s affidavit. Rather, after a conviction, I would require the judge below to make an inquiry into defendant‘s means, including family sources, and into his financial priorities. The posting of an appeal bond should come after the necessities discussed supra, but before any other voluntary expenses.