State v. JanklowState v. Janklow
Lead Opinion
[¶ 1J William J. Janklow (Janklow) appeals the trial court’s refusal to stay execution of his sentence and grant bail pending his appeal. Janklow filed a motion to suspend the rules pursuant to
FACTS AND PROCEDURE
[¶ 2.] Janklow was charged in Moody County with the offenses of failure to stop at a stop sign, speeding, reckless driving, and second degree manslaughter. The charges arose from an August 16, 2003 collision in which Randolph Scott was killed. Janklow entered a not guilty plea to the charges and requested a jury trial.
[113.] A jury trial commenced on December 1, 2003 in Flandreau, South Dakota. On December 8, 2003, the jury returned guilty verdicts on all four charges. A presentence investigation was ordered prior to the sentencing hearing held on January 22, 2004. Pursuant to
[¶ 4.] Under the suspended imposition of sentence, the trial court placed Janklow on probation for a period of three years upon certain conditions, including that Janklow serve 100 days in the Minnehaha County Jail, pay a fine in the amount of $5,000, and that he not drive a motor vehicle during the term of probation. The trial court entered a judgment of conviction on the charges of reckless driving, speeding and failure to stop at a stop sign. As to the reckless driving charge, Janklow was ordered to serve thirty days in the Minnehaha County jail concurrent with the jail time ordered on the second degree manslaughter charge and pay a fine in the amount of $350. He was also ordered to pay a $200 fine on both the speeding charge and failure to stop at a stop sign charge.
STANDARD OF REVIEW
[¶ 6.] The denial of bail pending appeal is reviewed under an abuse of discretion standard. “ “We determine that an abuse of discretion occurred only if no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Lakota Community Homes, Inc. v. Randall,
ANALYSIS AND DECISION
[¶ 7.] “It is well settled that a state petitioner is without an absolute federal constitutional right to bail pending appeal after conviction.” Grooms v. Solem,
On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment, pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in § 23A-43-4, the risk that the defendant will flee or pose a danger to any person or to the community, and in the case of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of §§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected.
[¶ 8.] While
[¶ 9.]
[¶ 10.] Although State v. Hickey,
We are of the opinion that such applications should originally be made and heard before the trial court. We are aware that during the course of the proceedings and trial, the trial court has heard evidence which would allow it to make an adequate inquiry to bring forth pertinent facts at a bail hearing. After such hearing, the trial court may set a reasonable bail pending appeal or deny such bail with findings of fact sufficient to pass the “constitutional muster” alluded to in the Bad Heart Bull decisions.
It will then be for this court to determine from the record made whether a reasonable bail has been set, whether the denial of bail is constitutionally permissible ....
Hickey,
[¶ 11.] In Bad Heart Bull,
In the opinion of this court, the failure of the trial judge to indicate on the record, at the time of his ruling, the factors he considered and facts upon which he relied, constitutes a violation in itself of the Fourteenth Amendment’s due process clause. As is stated in United States ex rel. Keating v. Bensinger,322 F.Supp. 784 , 787 (N.D.Ill):
When a state court denies bail authorized by the state legislature without providing any supporting reasons, the failure to indicate the motivating reasons for the denial of bail is in and of itself an arbitrary action that violates the Eighth and Fourteenth Amendments. Any other rule would effectively nullify the protection of those Amendments.
[¶ 12.]
[¶ 14.] At the hearing on lank-low’s motion for stay of execution and bail pending appeal, the trial court judge heard details from Janklow’s attorney on the pertinent factors favoring granting bail. As in Burgers, we may presume that the trial court judge was familiar with the file and the relevant facts. Burgers,
[¶ 15.] Applying the abuse of discretion standard of review, we find no abuse of discretion by the. trial court judge in refusing to stay execution and grant bail pending the outcome of the underlying appeal.
[¶ 16.] Affirmed.
Notes
. Prior to July 1, 1979, either the trial court judge or a supreme court justice could grant bail pending appeal. See SDC 1960 Supp 34.4107 (codified as
. Decision Quashed by US ex rel. Bad Heart Butt v. Parkinson,
.
In determining which conditions of release will reasonably assure appearance, a committing magistrate or court shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence*193 against the defendant, the defendant's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings, and the risk that he will flee or pose a danger to any person or to the community.
. We note that the legislature uses "factor” and "criteria” interchangeably in the context of bail considerations.
. In his appellate brief, Janklow argues that if his request for bail pending appeal is not granted, the underlying appeal of his convictions for second degree manslaughter and reckless driving "for all practical purposes” will be moot because he most likely will have served the 100-day jail sentence before a decision is made on the appeal. We disagree. There are other consequences of the suspended imposition of sentence in addition to serving 100 days in the jail. Under the terms of the suspended imposition of sentence, Jank-low is placed on probation for a period of 3 years, he is prohibited from driving an automobile during the period of probation and must pay a $5,000 fine. Janklow was convicted of a Class 4 felony which carries a maximum penalty of 10 years imprisonment in the state penitentiary and a $10,000 fine. In the event that he fails to comply with the terms of the suspended imposition of sentence, the trial court reserves jurisdiction to revoke the suspension - and sentence him without credit for the time spent on probation. An order
Dissenting Opinion
dissenting.
[¶ 23.] I agree that the same criteria should be used to determine whether this defendant should be released pending appeal as would be applied to any other defendant. The South Dakota legislature has specifically enacted a statute authorizing bail pending appeal.
On motion of a defendant who has been convicted of an offense, the court in which the conviction was had may release the defendant prior to the entry of judgment,' pending the expiration of time for filing notice of appeal, and pending the outcome of the appeal. The court in determining the eligibility of the defendant for release shall consider the criteria as set forth in§ 23A-43-4 , the risk that the defendant will flee or pose a danger to any person or to the community, and in the ease of an appeal, whether the appeal is frivolous or taken for purposes of delay. If the court in its discretion determines that the defendant is eligible for release, the court shall release the defendant in accordance with §§ 23A-43-2 and 23A-43-3. If, however, the judgment imposes only a fine, conditional release under this section is a matter of right. The provisions of§§ 23A-43-14 and 23A-43-15 do not apply to persons described in this section; however, other rights to judicial review of conditions of release or orders of detention are not affected, (emphasis supplied).
When “a state makes provisions for bail pending appeal, the Eighth and Fourteenth Amendments provide that it may not be denied arbitrarily or unreasonably.” Grooms v. Solem,
In the opinion of this court, the failure of the trial judge to indicate on the record, at the time of his ruling, the factors he considered and facts upon which he relied, constitutes a violation in itself of the Fourteenth Amendment’s due process clause. As is stated in United States ex rel. Keating v. Bensinger,322 F.Supp. 784 , 787 (N.D.Ill):
When a state court denies bail authorized by the state legislature without providing any supporting reasons, the failure to indicate the motivating reasons for the denial of bail is in and of itself an arbitrary action that violates the Eighth and Fourteen Amendments. Any other rule would effectively nullify the protection of those Amendments.
[¶ 24.] In State v. Hickey,
[¶ 25.] In enacting
1)The nature and circumstances of the offense charged;
2) The weight of the evidence against the defendant;
3) The defendant’s family ties, employment, financial resources, character and mental condition;
4) The length of his residence in the community;
5) His record of convictions, his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings; and
6) The risk that the defendant will flee or pose a danger to any person or to the community.
7) Whether the appeal is frivolous or taken for purposes of delay.
[¶ 26.] At the hearing on the motion for stay pending appeal on March 2, 2004, the trial judge considered factors 1) and 2), although his finding that the death was caused by recklessness, rather than a more culpable mental state, would be more in favor of release than against it. It is also clear that the nature and circumstances of the offense had not changed from the earlier time when he released the defendant on a personal recognizance bond. The judge also considered factor 7) in finding that the purpose of the appeal was delay but never made any finding that it was frivolous. He did not consider factors 3), 4), 5) and 6) at all. Most significantly, he made no findings, and there is no finding anywhere in the record, that the defendant presented any risk of flight or danger to the community. As a result, this case is distinguishable from State v. Burgers,
[¶ 27.] In addition to his failure to consider at least four of the mandatory factors, the trial judge considered the following factors which are not proper factors for determining whether bond should be allowed pending appeal: 1) that this petition for bond was post conviction (however there was no discussion of this factor); 2) that a suspended imposition was given (there was no discussion of this); 3) that this may be affected by
[¶ 28.] It is clear from the transcript of the motion hearing that the trial judge did not consider many of the factors which he was required to consider in setting bond and most importantly failed to consider at all whether the defendant posed a danger to others or was a flight risk. In addition, he considered, and appeared to give heavy weight to factors which were not included in the criteria which the legislature established in
[¶ 29.] A decision based upon an error of law is an abuse of discretion. State v. Ashbrook,
[¶ 30.] YON WALD, Circuit Judge, joins this dissent.
. Although State v. Hickey was decided under the prior statute which granted both the trial judge .and a justice of the Supreme Court the power to grant bail pending appeal, its analysis of the procedure to be used is still good law. See Grooms,
Concurrence Opinion
concurring specially.
[¶ 22JSDCL 23A-43-4 requires the trial court to consider several factors including “the nature and circumstances of the offense charged[.]” I specially concur to point out that the impact of a crime on the victims is inextricably connected to the nature and circumstances of the offense, particularly in post-conviction analysis. It was not improper for the trial court to consider the interests of the victim’s family in conjunction with this mandatory factor.