Perkins v. State

OPINION

SULLIVAN, Judge.

Appellant, Brian Aaron Perkins (Perkins), appeals the order of the trial court revoking his bail upon the charge of Arson.1

We reverse and remand.

On October 4, 1994, the Flair Design Limited factory in Alexandria was destroyed by fire. One firefighter sustained injuries during the blaze, and the estimated financial loss was $23,398,700. Subsequently, on May 22, 1997, Perkins admitted that he started the fire at the factory and that he also committed an armed robbery in 1991. At the time of both offenses, Perkins was' a reserve officer with the Alexandria Police Department.

*293On May 28, 1997, the court concluded that there was probable cause to arrest Perkins for Arson and set bail at $250,000. Thereafter, the court denied Perkins’ motion to reduce bail and ordered that he be held without bond based upon the recommendation of the prosecutor.

The sole issue upon appeal is whether I.C. 35-33-8-5(d) (Burns Code Ed.Repl.1994) presents the exclusive means by which a court may revoke bail.2 The relevant portions of the statute provide:

“(a) Upon 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. In reviewing a motion for alteration or revocation of bail, credible hearsay evidence is admissible to establish good cause.
* " * * * * sjs
(d) The court may revoke bail or an order for release on personal recognizance upon clear and convincing proof by the state that while admitted to bail the defendant:
(1) Or his agent threatened or intimidated a victim, prospective witnesses, or jurors concerning the pending criminal proceeding or any other matter;
(2) Or his agent attempted to conceal or destroy evidence relating to the pending criminal proceeding;
(3) Violated any condition of his current release order;
(4) Failed to appear before the court as ordered at any critical stage of the proceedings; or
(5) Committed a felony or a Class A misdemeanor that demonstrates instability and a disdain for the court’s authority to bring him to trial.”

In Ray v. State (1997) Ind.App., 679 N.E.2d 1364, the court held that the trial court erred in revoking the bail- of a defendant who was previously convicted of stalking the same victim. Pursuant to I.C. 35-33-8-5(a), the trial court concluded that the State demonstrated “good cause” to revoke the defendant’s bail based upon the “community safety” factor of I.C. 35-33-8-4(b) (Burns Code Ed.Supp.1997), which relates to the amount of the bail deemed reasonable.3 Id. at 1366. Upon appeal, however, another panel of this court determined that bail may only be revoked upon satisfaction of one of the enumerated items in I.C. 35-33-8-5(d). Id. at 1367. Because the defendant violated none of these provisions, the panel reasoned that the trial court erred in revoking bail.

In the present case, the State requests that this court reconsider the Ray decision and conclude that bail may be revoked upon any showing of “good cause”. However, this approach would render subsection (d) meaningless.4 Accordingly, we decline to adopt the State’s reasoning. As stated in Brook v. State (1983) Ind.App., 448 N.E.2d 1249, 1251: “[A]ll statutory language is deemed to have been used intentionally and words or clauses in a statute are to be treated as surplusage only in the absence of any other possible course.” We interpret the language of I.C. 35-33-8-5(d) to clarify the meaning of “good cause”, a construction which harmonizes the entire statute and renders no portion surplusage. See generally Jones v. State (1991) Ind.App., 569 N.E.2d 975, 978.

The dissent posits that its construction of the statute is favored because it minimizes redundancy and promotes sound public policy. Initially, we view our interpretation of the statute as elucidating, not redundant. With regard to revocation of bail, as opposed to alteration, subsection (d) restricts those matters which may be held to constitute *294“good cause” under subsection (a). Alteration of bail is not, however, so limited.

As to the public policy assertion of the dissent, we do not disagree. The result obtained by the dissent’s construction may well reflect a more preferable policy. However, it is the prerogative of the legislature, not that of the courts, to effect such change. Our obligation is solely to interpret.

Therefore, we will affirm the trial court’s order only if the reasons which prompted revocation of bail are encompassed within I.C. 35-33~8-5(d). In the present case, the lower court provided the following rationale:

“The Court finds in this case that .good cause has been shown to revoke bail. The good cause that the Court finds is, the character, reputation, habit and mental condition of the defendant. The Court finds that while he was a police officer he has admitted to having committed various crimes in this county. That surely has a very negative influence upon his reputation, it would also tend to show that holding himself out to be a police officer, he exhibited some of the worst habits by committing some of the most heinous crimes in our criminal code. Also the mental condition would indicate based upon testimony here today that he may have an unstable mental condition. Court also finds that showing of good cause is the nature and gravity of the offense, which was an Arson, and also he has admitted to an Armed Robbery and the potential non-suspenda-ble penalty that is faced also are relevant to the risk of non-appearance. Also the fact that was testified to, that while he was on route to being arrested and probably anticipated being arrested, that he suggested to a fellow police officer that the fellow police officer should assist him in fleeing apprehension. For that reason the Court finds that bond shall be revoked and he be held without bail.” Record at 97-98.

Because I.C. 3&-33-8-5(d) validates none of these reasons as grounds for revoking bail5, we conclude that the trial court erred.

The order is reversed and the matter remanded for further proceedings.

KIRSCH, J., concurs. FRIEDLANDER, J., dissents with opinion.

. I.C. 35-43-1-1 (Bums Code Ed.Repl.1994).

. Article I, Section 17 of the Indiana Constitution provides that, with the exception of capital crimes, all offenses are bailable. See Ray v. State (1997) Ind.App., 679 N.E.2d 1364, 1366.

. I.C. 35-33-8-4 pertains to the initial bail determination by the trial court, not to subsequent motions to increase, decrease or revoke. See id. ’ at 1367.

.The two subsections may be held to be separate and independent only if the conditions enumerated in I.C. 35-33-8-5(d) do not constitute "good cause” under subsection (a). Neither party advances this argument.

. If proven, the Arson charge reflects extremely culpable conduct as do the previous crimes committed. Additionally, it should be clear that Perkins has violated the confidence placed in him as a police officer. Nevertheless, as stated, such factors are not grounds for bail revocation, as opposed to alteration.