James Brandon Loper v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Mar 30 2020, 11:13 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Tyler D. Helmond                                         F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin &                        Chief Deputy Attorney General of
Webb                                                     Indiana
Indianapolis, Indiana                                    Josiah Swinney
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Brandon Loper,                                     March 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2449
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Carl. A. Heldt,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         82C01-1908-F5-5837



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020                  Page 1 of 9
                                       Statement of the Case

[1]   James Loper (“Loper”) appeals the denial of his motion to reduce bond. At

      Loper’s probable cause hearing, the trial court initially set his bail at $10,000

      surety or $1,000 cash. The State then charged Loper with three Level 5 felonies

      and three Level 6 felonies. Later, at his initial hearing, the trial court increased

      Loper’s bail to $50,000 surety or $5,000 cash. On appeal, Loper argues that the

      trial court abused its discretion when it denied his motion to reduce bond,

      which alleged that the increase was improper. Concluding that the trial court

      did not abuse its discretion, we affirm the trial court’s denial of the motion.


[2]   We affirm.


                                                     Issue

                      Whether the trial court abused its discretion when it denied
                      Loper’s motion to reduce bond.

                                                     Facts

[3]   In August 2009, two banks notified Raymond Kissel (“Kissel”) that checks

      connected to his checking account had recently been cashed and that his

      account had been flagged for suspicious activity. Following an investigation,

      wherein Loper admitted that he stole checks from Kissel, Loper was taken into

      custody.


[4]   On August 21, 2009, the trial court held a probable cause hearing and found

      that there was “probable cause to hold [Loper] on charge[s] of Theft, Fraud,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 2 of 9
      Check Deception, and Possession of a Legend Drug.” (Tr. 4). Thereafter, the

      trial court asked the State its position on bail, and the following exchange

      ensued:


              THE STATE: Thank you, Your Honor. It appears from the
              criminal history the Defendant has a severe alcohol problem,
              abuse problem. He has three prior Public Intoxications and three
              prior alcohol related Operating While Intoxicate[d]. He also has a
              2004 ten Count forgery C felony conviction case as well as a 2002
              Pike County Check Deception case. Thank you. The State would
              like to see him placed on AAPS and a no contact order with
              German American Bank and Raymond Kissel.

              THE COURT: Show bail of $10,000 surety or $1,000 cash,
              subject to fees and cost of representation. Your bail is $1,000
              cash[.]

      (Tr. 4).


[5]   Two days later, the State charged Loper with three counts of Level 5 felony

      fraud on a financial institution and three counts of Level 6 felony forgery. At

      the ensuing initial hearing on August 26, the trial court read the charges and

      appointed counsel for Loper. The trial court then asked about bail and the

      following exchanged occurred:


              THE STATE: Thank you, Your Honor. In regard to bail, this
              Defendant has [an] extensive criminal history including Posey
              County in 2007 Driving While Suspended, Pike County 2002
              Check Deception. In regards to Vanderburgh County we have
              pending Criminal Mischief right now under cause number 82D05-
              1905-CM-3655, 2017 and 2015 PI’s, 2013 Battery Resulting in
              Bodily Injury, 2009 Operating a Vehicle While Habitual Traffic
              Violator, a D felony, Operating with a Blood Alcohol Content of
              .15 or more, a D felony, 2004 Forgery, C felony, that was nine
              Counts along with a Theft, a D felony. The State would request a
              bond higher than normal, Your Honor.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 3 of 9
              THE COURT: Show bail of $50,000 surety or $5,000 cash,
              subject to fees and cost of representation.

      (Tr. 9-10).


[6]   In October 2019, Loper filed a motion to reduce his bond. In this motion,

      Loper argued that it was “improper for the court to sua sponte increase [his]

      bond without a showing of good cause for the increase.” (App. 42).

      Thereafter, the trial court held a hearing on Loper’s motion, and the State

      argued as follows:


              I listened to the audios that the court reporter provided me about
              45 minutes ago and in the audio [the deputy prosecutor] state[d] to
              the Court, and I’m paraphrasing, that the Defendant has a severe
              alcohol issue, three prior public intoxications, three prior
              OMVWI’s, in 2004 a ten count Forgery C felony, a 2002 Check
              Deception. When I argued to the Court bond on August 26, I
              noted to the Court two additional charges that I believe were
              pertinent to the Court’s changing of bond and specifically those
              two additional charges, which is additional evidence that the
              Court considered, were the pending Criminal Mischief cause
              under 3655 as well as Battery Resulting in Bodily Injury
              conviction and in that hearing on the 26th and in the Motion it
              shows that I requested a higher bond, so in accordance with the
              caselaw, the State requested a higher bond and the State provided
              to you yourself, you presided over both hearings, additional
              evidence to consider for his bond, and I believe in the standard of
              practice that a pending matter would influence your opinion on
              bond and therefore I believe it was raised and it was raised legally
              and in accordance with Cole v. State and the bond statute, Your
              Honor. Thank you.

      (Tr. 18-19). Following defense counsel’s argument, wherein he argued that he

      was not provided full access to Loper’s criminal history, the trial court stated:


              Okay, well I listened to the tapes myself and I also heard more
              crimes alleged at the initial hearing than at the probable cause
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 4 of 9
              hearing. . . . I did interpret that to ask for a higher than normal
              bond, as a request for a higher bond, because the bond that I set
              was $1,000 and I can tell you now, when I increase a bond from
              the probable cause hearing to the initial hearing [it] is because of
              something I’ve heard, and especially a person’s criminal record
              and especially the fact that he has a case pending. So, this was,
              the bond was increased because of additional information, and I
              felt comfortable and satisfied that what I did was in the law. So,
              your Motion to Reduce Bond is denied.

      (Tr. 20-21). Loper now appeals.


                                                  Decision

[7]   Loper argues that the trial court abused its discretion when it denied his motion

      to reduce bond. The amount of bail is within the sound discretion of the trial

      court and will be reversed only for an abuse of discretion. Johnson v. State, 114

      N.E.3d 908, 910 (Ind. Ct. App. 2018). We therefore review the trial court’s

      denial of a defendant’s motion to reduce bail for an abuse of discretion. Sneed v.

      State, 946 N.E.2d 1255, 1257 (Ind. Ct. App. 2011). An abuse of discretion

      occurs when the trial court’s decision is clearly against the logic and effect of

      the facts and circumstances before it. Id.


[8]   The Indiana Constitution provides the right to bail. IND. CONST. art. 1, § 17.

      Moreover, INDIANA CODE § 35-33-8-5 governs that alteration or revocation of

      bail and provides that “[u]pon a showing of good cause, the state or the

      defendant may be granted an alteration or revocation of bail by application to

      the court before which the proceeding is pending.” I.C. § 35-33-8-5(a). The

      trial court may increase bail when the State presents additional “evidence

      relevant to a high risk of nonappearance based on the factors set forth in
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 5 of 9
[INDIANA CODE § 35-33-8-4(b)].” I.C. § 35-33-8-5(b). Moreover, motions to

reduce bail are provided for by INDIANA CODE § 35-33-8-5(c), which states:

“When the defendant presents additional evidence of substantial mitigating

factors, based on the factors set forth in [INDIANA CODE § 35-33-8-4(b)], which

reasonably suggests that the defendant recognizes the court’s authority to bring

the defendant to trial, the court may reduce bail.” (Emphasis added). The

factors enumerated in INDIANA CODE § 35-33-8-4(b) include:


        (1) the length and character of the defendant’s residence in the
        community;

        (2) the defendant’s employment status and history and the
        defendant’s ability to give bail;

        (3) the defendant’s family ties and relationships;

        (4) the defendant’s character, reputation, habits, and mental
        condition;

        (5) the defendant’s criminal or juvenile record, insofar as it
        demonstrates instability and a disdain for the court’s authority to
        bring the defendant to trial;

        (6) the defendant’s previous record in not responding to court
        appearances when required or with respect to flight to avoid
        criminal prosecution;

        (7) the nature and gravity of the offense and the potential penalty
        faced, insofar as these factors are relevant to the risk of
        nonappearance;

        (8) the source of funds or property to be used to post bail or to pay
        a premium, insofar as it affects the risk of nonappearance;

        (9) that the defendant is a foreign national who is unlawfully
        present in the United States under federal immigration law; and

        (10) any other factors, including any evidence of instability and a
        disdain for authority, which might indicate that the defendant
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 6 of 9
               might not recognize and adhere to the authority of the court to
               bring the defendant to trial.

       I.C. § 35-33-8-4(b).


[9]    Relying on Cole v. State, 997 N.E.2d 1143 (Ind. Ct. App. 2013), Loper argues

       that “the requirements here for an increase in bail under [INDIANA CODE § 35-

       33-8-5] have not been satisfied, and the trial court’s increase of [his] bail should

       be reversed.” (Loper’s Br. 10). In Cole, this Court discussed the requirements of

       INDIANA CODE § 35-33-8-5 and held that the trial court abused its discretion

       when it increased the defendant’s bail from $2,500 surety to $10,000 surety.

       This Court first explained that the defendant testified as to his employment and

       the amount he thought he could obtain to pay towards his bond. While counsel

       requested a reduction of bail, the State did not “make any request or

       application” for an increase in the initial bail amount. Cole, 997 N.E.2d at

       1146. Rather, the State requested that bail not be reduced. The Cole Court

       further explained that the trial court “was aware of [defendant’s] criminal

       history” when it set bail, and that the State did not present “additional

       evidence” to support an increase in bail. Id. at 1147. Taken together, we

       determined that the requirements of INDIANA CODE § 35-33-8-5 were not

       satisfied because the State neither requested an increase of defendant’s bail

       amount nor presented any additional evidence to support such an increase.


[10]   Here, the facts of the instant case are distinguishable from those in Cole.

       Significantly, when requesting a reduction in his bond, Loper did not present

       “any evidence of substantial mitigating factors” that would suggest that he


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 7 of 9
“recognize[d] the court’s authority to bring [him] to trial,” as required by

INDIANA CODE § 35-33-8-5(c). Initially, the State provided the trial court with

a partial summary of Loper’s criminal history, and the court set his bail at

$10,000 surety or $1,000 cash. At the ensuing initial hearing, the State provided

the court with a complete summary of Loper’s criminal history. This additional

evidence alerted the trial court to Loper’s pending criminal matter and a

previous conviction for battery resulting in bodily injury. The State then

requested a “bond higher than normal,” which the trial court interpreted “as a

request for a higher bond[.]” (Tr. 10, 20). Thus, the State did make a “showing

of good cause[]” in its application as required by INDIANA CODE § 35-33-8-5(a).

Thereafter, the trial court increased Loper’s bond to $50,000 surety or $5,000

cash. At the ensuing hearing on Loper’s motion to reduce bond, the trial court

explained that the increase was due to the additional evidence provided by the

State regarding Loper’s “criminal record[,] especially the fact that he has a case

pending.” (Tr. 20). Given the presumption that the trial court knows and

follows applicable law, Donaldson v. State, 904 N.E.2d 294, 300 (Ind. Ct. App.

2009), and the record before us, we cannot say that the trial court’s decision to

deny Loper’s motion was against the logic and effect of the facts and

circumstances before it.1 Sneed, 946 N.E.2d at 1257.




1
  Loper also argues that his procedural due process rights were violated. We disagree. Loper moved for a
reduction of his bond and was given an opportunity to present evidence and argument at a hearing. See
Samm v. State, 893 N.E.2d 761, 768 (Ind. Ct. App. 2008) (explaining that there is no procedural due process
violation where defendant was “provided an opportunity to move for a bond reduction and given an
opportunity to present evidence and argument”).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020                    Page 8 of 9
[11]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2449 | March 30, 2020   Page 9 of 9