COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-1370-CR
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
STATE
OF WISCONSIN,
Plaintiff-Respondent,
v.
ROY D.
TOWNSEND,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: MICHAEL B. TORPHY, JR., Judge.
Affirmed.
DEININGER,
J.[1] Roy
Townsend appeals from a judgment convicting him of two counts of misdemeanor
bail jumping.[2] He claims that a condition of release
imposed in each of two prior cases, the violation of which resulted in the
instant convictions, was unreasonable.
We disagree and affirm the convictions.
BACKGROUND
On
July 13, 1995, Townsend made an initial appearance on a charge of misdemeanor
battery. He was released on a $300 cash
bond with a condition that he "not be at or around State
Street." On July 24, 1995, Townsend
made an initial appearance on a new complaint charging one count of disorderly
conduct and two counts of bail jumping.
On the new case, he was released on a signature bond with the same
condition that he "not be at or around State Street."
On
the evening of July 31, 1995, while the two bonds were still in effect, a
Madison police officer arrested Townsend while he was walking along State
Street near the Civic Center. He was
charged with three counts of bail jumping for violating the condition that,
while released, he not be at or around State Street. Following a bench trial, one count was dismissed and Townsend was
convicted on the remaining two counts.[3]
Prior
to sentencing, Townsend renewed a motion to dismiss the bail jumping charges on
the grounds that the release condition he was found to have violated was
unreasonable, and thus impermissible under the Wisconsin Constitution and
statutes. The trial court denied the
motion, entered judgment and sentenced Townsend to two concurrent four-month
terms of incarceration.
ANALYSIS
Townsend
concedes that his appeal can succeed only if we conclude that the condition of
release that he not be at or around State Street was not reasonable. We conclude that the condition was reasonable. We therefore need not address whether
Townsend waived his right to challenge the condition or whether any waiver was
impermissibly exchanged for his release from jail.
"Persons
released on bail are subject to a number of conditions that are generally left
to the trial court's discretion." State
v. Braun, 152 Wis.2d 500, 511, 449 N.W.2d 851, 856 (Ct. App.
1989). We will not reverse a
discretionary determination by the trial court if the record shows that
discretion was exercised and we can perceive a reasonable basis for the court's
decision. Prahl v. Brosamle,
142 Wis.2d 658, 667, 420 N.W.2d 372, 376 (Ct. App. 1987).
A
court's discretion in setting release conditions must be guided by the
Wisconsin Constitution's directive that "[a]ll persons, before conviction,
shall be eligible for release under reasonable conditions designed to assure
their appearance in court, protect members of the community from serious bodily
harm or prevent the intimidation of witnesses." Wis. Const. art.
I, § 8, cl. (2). This
constitutional requirement is codified in § 969.01(1), Stats.
Section 969.01(4), Stats.,
lists a number of "[p]roper considerations" for the court when
setting bail and imposing release conditions, including:
the nature, number and gravity of the offenses and the
potential penalty the defendant faces, whether the alleged acts were violent in
nature, the defendant's prior criminal record, if any, the character, health,
residence and reputation of the defendant, ... whether the defendant is already
on bail or subject to other release conditions in other pending cases, ...
whether the defendant has in the past forfeited bail or violated a condition of
release ... and the policy against unnecessary detention of the defendant's
pending trial.
Finally,
§ 969.02(3), Stats.,
provides a number of alternatives that may be ordered in lieu of or in addition
to cash bail on misdemeanor charges, including the placement of
"restrictions on the travel, association or place of abode of the
defendant during the period of release."
Townsend
argues that the no-State-Street condition is unreasonable because the two court
commissioners who imposed it did not state on the record findings adequate to
show its necessity in assuring his appearance, protecting community members
from serious bodily harm, or preventing the intimidation of victims. We disagree. Bail hearings, if uncontested, are typically not lengthy
proceedings. Those afforded Townsend on
July 13 and 24, 1995, were no exception.
On both occasions, neither he nor his counsel voiced objection to
recommendations for the no-State-Street condition. Thus, the court commissioners had no reason to hear evidence or
argument, or to make explicit findings on the release condition.
We
may still review the trial court's ruling, however. "Where the trial court fails to adequately explain the
reasons for its [discretionary] decision, we will independently review the
record to determine whether it provides a reasonable basis for the trial
court's ... ruling." State
v. Clark, 179 Wis.2d 484, 490, 507 N.W.2d 172, 174 (Ct. App. 1993).
On
July 13, 1995, Townsend was before a court commissioner who ten days earlier
had released him on a signature bond containing the no-State-Street
condition. He was charged with battery,
as a repeater. The previous bond was
still in effect. The commissioner was
thus aware of Townsend's bail status, his history of recent offenses and the
nature of the instant offense. The
commissioner was also aware that Townsend was an alcoholic and that many of his
violent and disorderly acts had occurred on or near State Street. The commissioner, concluding that
"[w]hen he's drinking isn't any way he's going to make his court dates or
follow any conditions of his release," set $300 cash bail in addition to
the no-State-Street condition in an effort to assure Townsend's appearance in
court. It was not unreasonable for the
commissioner to conclude on the record before him that unless Townsend was
restrained from returning to the scene of his past offenses, both his future
court appearances and the general public would be in jeopardy.
Similarly,
on July 24, 1995, Townsend appeared before a different court commissioner on
what was then his third initial appearance on new criminal charges in three weeks. The new charges were disorderly conduct and
two counts of bail jumping, as a repeater.
This commissioner was thus also aware of the nature and frequency of
Townsend's criminal behavior and of his propensity to engage in it on or near
State Street. The commissioner
expressed his view that the condition was the only reasonable alternative to
cash bail in order to assure Townsend's future appearance. Again, we conclude that the condition was
reasonable in light of all of the circumstances known to the commissioner.
Townsend
argues that State v. Braun, 152 Wis.2d 500, 511, 449 N.W.2d 851,
856 (Ct. App. 1989), requires us to hold this condition unreasonable.[4] We disagree. We held in Braun only that the imposition of a
content-based restriction on a defendant's right of free speech must pass the
"most exacting scrutiny" as to its necessity in serving a compelling
state interest. Id. at
513-15, 449 N.W.2d at 857. We concluded
that the condition there did not pass such scrutiny.
Here,
Townsend has not referred us to any cases holding that geographic release
restrictions not implicating free speech must be subject to the same "most
exacting scrutiny," or that geographic release conditions must be drawn
with the same "narrow specificity" required for restricting speech as
a condition of bond. See id.,
152 Wis.2d at 513, 449 N.W.2d at 856.
While the no-State-Street condition infringed upon Townsend's right to
travel, his recent and repeated conduct had demonstrated that his presence on
or near State Street inevitably led to criminal behavior. We cannot conclude the condition was
unreasonable under these circumstances.
Townsend
also argues that the no-State-Street condition was unreasonable per se because
it denied him "access to an area twenty square city-blocks in
size." We conclude that the
restriction is not geographically unreasonable in a city that encompasses many
hundreds, if not thousands, of square blocks.[5]
Because
the record reflects that it was reasonable to impose a release condition on
Townsend on July 13 and 24, 1995, that he not be at or around State Street, and
because the condition was not unreasonable per se, we affirm his convictions
for bail jumping.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] Section 946.49(1)(a), Stats., makes it a misdemeanor for one who, "having been
released from custody under ch. 969 [on a misdemeanor charge], intentionally
fails to comply with the terms of his or her bond."
[3] The dismissed count was based on a similar
condition of release imposed in an earlier case on July 3, 1995.
[4] Townsend also cites Whitty v. State,
34 Wis.2d 278, 149 N.W.2d 557 (1967) (defendant has right to reasonable cash
bail not conditioned upon waiver of preliminary hearing), cert. denied,
390 U.S. 959 (1968) and State v. Braun, 100 Wis.2d 77, 301 N.W.2d
180 (1981) (defendant has right to release on bail only prior to sentencing) in
support of his argument that the no-State-Street condition was
unreasonable. As the State points out,
neither case is relevant on these facts.
[5] The no-State-Street condition upon which the
dismissed count was based was modified on August 16, 1995, to allow Townsend to
travel on State Street by bus, and to be at a certain church during the noon
meal hour. Townsend was not on a bus,
nor taking a meal at the church, when he was arrested at 9:30 p.m. on July 31,
1995. Townsend does not claim, therefore, that enforcement
of the condition at that time was an unreasonable interference with legitimate
daily activities.