No. 89-328
I N THE SUPREME COURT O THE STATE OF M N A A
F OTN
1990
CITY OF BILLINGS,
P l a i n t i f f and Respondent,
-vs-
T O A LAYZELL,
H M S
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Thirteenth J u d i c i a l District,
I n and f o r t h e County o f Y e l l o w s t o n e ,
The H o n o r a b l e W i l l i a m S p e a r e , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Thomas L a y z e l l , P r o S e , M i s s o u l a , Montana
For Respondent:
R u s s e l l F a g g , C i t y A t t o r n e y , B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : Oct. 1 3 , 1989
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Chief Justice J. A. Turnage delivered the opinion of the Court.
Thomas Layzell appeals his conviction and sentence following
a jury trial in the Billings City Court and a de novo bench trial
in the Thirteenth Judicial District Court, Yellowstone County, for
failure to obey a stop sign and failure to obey a red light. We
affirm in part and reverse in part.
ISSUES
Though the appellant's pro se brief is less than pellucid as
to the issues on appeal, the following is a fair representation of
the questions presented by his arguments.
1. Does the record contain sufficient evidence to uphold the
appellant's conviction for disobeying a traffic control signal and
disobeying a stop sign?
2. Did the City Court violate the appellant's right to
freedom from excessive bail under U.S. Const. amend. VIII and Art.
11, Sec. 22, Mont. Const., by knowingly setting bail in excess of
appellant's ability to pay?
3. Did the City Court punish the appellant in violation of
his due process and equal protection rights under U.S. Const.
amend. XIV, § 1, and Art. 11, Secs. 4 and 17, Mont. Const., by
setting bail which guaranteed pretrial detention and a trial date
for sixty-five days after arrest?
4. Did the City Court and ~istrictCourt violate the indigent
appellant's right to counsel under U.S. Const. amend. VI, and Art.
11, Sec. 24, Mont. Const. , by refusing to appoint counsel even
though the appellant spent thirty days in pretrial detention?
5. Did the District Court err in failing to credit thirty
days of pretrial detention against the appellant's sentence as
required by 5 46-18-403 (2), MCA (1987)?
FACTS
Billings police ticketed Thomas Layzell on February 11, 1987,
for failure to observe a traffic light. He refused to appear
before Billings City Court Judge Donald E. Bjertness and was
arrested on November 27. The City Court released Layzell with an
order to appear on December 4 but he again failed to comply. On
January 5, 1988, Billings police issued Layzell a second ticket
for rolling through a stop sign. Layzell again refused to present
himself to the court, and, on March 28, 1988, city police arrested
him on warrants for both tickets.
As a result of his arrest, Layzell faced two months of
incarceration in the Yellowstone County Detention Facility without
having been convicted of any crime and without representation by
an attorney. On Layzell Is arrest, the City Court set bail at $300,
knowing that Layzell had only $47. The court then calendared
trial for May 31, 1988, sixty-five days after arrest. The court
denied Layzell's request for court-appointed counsel reasoning that
the traffic offenses would not result in a jail term. The court
also denied Layzell's several requests for reduced bail.
Layzell contends that the pretrial incarceration had a
disastrous effect on his life. He states that he lost the only job
he had been offered for a long while. As a result, he faced
eviction from his apartment and confiscation of his personal
property. Out of desperation he went on a hunger strike.
After thirty days in jail, Layzell obtained the help of
Montana Legal Services and filed a writ of habeas corpus in state
district court. During the hearing on April 26, the city prose-
cutor informed Layzell that his trial had been advanced thirty days
to May 3. The habeas corpus court heard the parties1 testimony
and ordered Layzell's immediate release on his own recognizance.
Trial on the traffic tickets was held before a six-person,
city court jury. The jury found Layzell guilty on both counts, and
the court imposed the maximum fine of $300 plus $256 in court
costs. Layzell appealed to the District Court for a de novo bench
trial. The District Court denied his request for a court-appointed
attorney and found him guilty on both counts. The court fined
Layzell $100 on each count plus a $10 surcharge.
THE TRAFFIC TICKETS
The appellant disputes the testimony on which he was con-
victed. In criminal cases,
[olur standard of review when presented with
a challenge to the sufficiency of the evidence
is whether, after viewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime beyond a
reasonable doubt.
State v. McDonald (1987), 226 Mont. 208, 210, 734 P.2d 1216, 1217
(citation and quotations deleted).
The police officers who issued the traffic tickets testified
that they were present during the violations and ticketed Layzell
after observing his failure to stop for the traffic signal and stop
sign. While Layzell may disagree with the officers1 testimony, a
rational trier of fact could have relied on their statements in
finding him guilty.
EXCESSIVE BAIL
That bail may not be excessive is a fundamental, constitution-
al principle. U.S. Const. amend. VIII; Art. 11, Sec. 22, Mont.
Const. To insure that bail is not excessive, the Montana courts
are constrained in setting bail by the eleven factors listed in
§ 46-9-301, MCA. Within these restrictions, the amount of bail is
left to the sound discretion of the trial court and will be upheld
if reasonable. State v. Lance (1986), 222 Mont. 92, 105, 721 P.2d
1258, 1267.
A $300 bail for these two traffic offenses is not excessive
in the present circumstances; it equals the maximum allowable fine.
See § 61-8-711(2), MCA. The record indicates that the City Court
had sufficient reason to believe that Layzell would not appear for
trial. Three times Layzell failed to appear in City Court to
answer these same charges. Layzell had no substantial ties to the
community; he owned no property, was unemployed, and had few
friends and no relatives in Montana. When arrested he told the
City Court in forceful language that he believed the charges were
spurious.
PRETRIAL PUNISHMENT
The appellant is correct in asserting that the City Court may
not set bail which effectively guarantees pretrial detention as a
means of punishing an indigent defendant. The purpose of bail is
to honor the presumption of innocence while ensuring the defen-
dant's presence at trial. Section 46-9-101, MCA; Bell v. Wolfish
(1979), 441 U.S. 520, 536-37, 99 S.Ct. 1861, 1872-73, 60 L.Ed.2d
447, 467; State v. Seybert (1987), 229 Mont. 183, 185, 745 P.2d
687, 688. To punish a defendant prior to an adjudication of guilt
is a violation of his right to due process. Bell, 441 U.S. at 535,
99 S.Ct. at 1872, 60 L.Ed.2d at 466. To incarcerate a defendant
solely because of his indigence is a violation of the defendant's
right to equal protection. See Tate v. Short (1971), 401 U.S. 395,
398-99, 91 S.Ct. 668, 671, 28 L.Ed.2d 130, 133.
The courts have long recognized the tension between the
criminal defendant's right not to be punished prior to an adjudica-
tion of guilt and the state's interest in assuring a criminal
defendant's presence at trial. The framers of our constitutions
attempted to balance these conflicting interests by providing a
right to reasonable bail. That balance, however, becomes difficult
to maintain when the rights of indigent defendants are placed on
the scales. Justice William 0. Douglas has spoken eloquently on
this dilemma when considering the right to bail pending appeal:
This traditional right to freedom during trial
and pending judicial review has to be squared
with the possibility that the defendant may
flee or hide himself. Bail is the device
which we have borrowed to reconcile these
conflicting interests. The purpose of bail is
to insure the defendant's appearance and
submission to the judgment of the court. It
is assumed that the threat of forfeiture of
one's goods will be an effective deterrent to
the temptation to break the conditions of
one's release.
But this theory is based on the assumption
that a defendant has property. To continue to
demand a substantial bond which the defendant
is unable to secure raises considerable prob-
lems for the equal administration of the law.
We have held that an indigent defendant is
denied equal protection of the law if he is
denied an appeal on equal terms with other
defendants, solely because of his indigence.
Can an indigent be denied freedom, where a
wealthy man would not, because he does not
happen to have enough property to pledge for
his freedom?
It would be unconstitutional to fix excessive
bail to assure that a defendant will not gain
his freedom. Yet, in the case of an indigent
defendant, the fixing of bail in even a modest
amount may have the practical effect of deny-
ing him release. The wrong done by denying
release is not limited to the denial of
freedom alone. That denial may have other
consequences. In the case of reversal, he
will have served all or part of a sentence
under an erroneous judgment. Imprisoned, a
man may have no opportunity to investigate his
case, to cooperate with his counsel, to earn
the money that is still necessary for the
fullest use of his right to appeal.
Bandy v. United States (1960), No. 171, Misc., 81 S.Ct. 197, 197-
98.
In some cases, Justice Douglas's "other consequence^^^ may
precipitate a spiraling burden on both the defendant and the state.
The defendant who is held in pretrial detention because he is
indigent loses any opportunity for gainful employment. Because he
cannot earn money, he cannot pay his fines or his bills. He may
lose whatever property he owns in inadequate attempts to satisfy
creditors. When he is in jail, the state must bear the cost of
maintenance and detention. When he is released, he may become an
even greater burden on the state's social services. It is dif-
ficult to see how the state's interest in prosecuting two traffic
tickets outweighs the burden imposed on the state and on the
defendant by pretrial detention.
Though not addressing the issue of pretrial detention on
failure to make bail, the United States Supreme Court has held that
a state's interest in collecting traffic fines does not outweigh
the equal protection rights of indigents. In Williams v. Illinois,
the Supreme Court struck down the application of an Illinois
statute which required indigents to work off fines for petty theft
at $5.00 per day when the resulting incarceration exceeded the
maximum permissible jail sentence under the state's petty theft
statutes. Williams (1970), 399 U.S. 235, 242, 90 S.Ct. 2018, 2023,
26 L.Ed.2d 586, 593-94. In Tate v. Short, the Court relied on
Williams to strike down a Texas statute which required indigents
to work off traffic fines through incarceration at a municipal
prison farm even though the substantive traffic statutes did not
allow jail sentences. Tate (1971), 401 U.S. 395, 397, 91 S.Ct.
668, 670, 28 L.Ed.2d 130, 133. The principle in Williams and Tate
is the same; incarceration solely on the basis of indigence is
unconstitutional. If equal protection for indigents applies to
defendants convicted of a crime, it should also apply to indigents
who have not been found guilty of anything. See Allen v. Burke
(E.D. Va. June 4, 1981), No. 81-0040 Civ. 28.
The rule of Williams and Tate will not prevent incarceration
of indigents in every case. A court may have no reasonable
alternative to detaining defendants who cannot make bail. Williams
and Tate, however, place a heavy burden on the court to search for
the least oppressive means.
The present record indicates that City Court Judge Bjertness
not only failed to look for the least oppressive means, but instead
used the opportunity in a wholly inappropriate exercise of judicial
power to punish the appellant. Having determined that Layzell
would not make bail, the court set an excessively late trial date,
in effect sentencing the appellant to a sixty-five-day jail term
prior to conviction for any crime. We are aware of the busy
calendars faced by the municipal courts. However, we find it
incredible that in over two months the court could find no time in
which to try these simple traffic violations. We note the remark-
able coincidence between Layzell filing habeas corpus proceedings
on April 22 and three days later the City Courtts sudden discovery
of an opening in its calendar. Even the one month Layzell actually
spent in jail is inexcusably excessive.
We are aware that Layzell made the City Court's task dif-
ficult. He refused to appear for trial, provoked the court with
verbal abuse, and generally resisted reasonable and expeditious
settlement of the charges. Obstinance, however, is not a waiver
of constitutional rights. If anything, it is a warning that
increased vigilance is required. It most definitely is not
justification for the use of judicial power to incarcerate the
appellant at the courttspersonal whim.
We would overturn Layzellls conviction but for one reason;
during the entire duration of his incarceration, Layzell held the
keys to his own cell. At the habeas corpus hearing, Layzell
testified that he never inquired into the possibility of satisfying
his bail through any friend, relative or surety company. Lt. Ross,
commander of the detention facility, testified that Layzell could
have obtained a sufficient surety bond for $50. When arrested,
Layzell had $47 and change. By failing to even attempt to procure
the difference, Layzell assured his continued incarceration. In
technical terms, Layzell lacks standing to challenge the con-
stitutionality of the City Court's acts because his own unwilling-
ness to borrow three dollars caused his injury.
The recalcitrance of both the appellant and the City Court
transformed these two routine traffic tickets into significant
constitutional questions. Layzell acted with the apparent inten-
tion of provoking the City Court into violating his constitutional
rights. The court played into Layzell's hands by using pretrial
detention as punishment. While we soundly condemn the court's
actions, we will not find a constitutional violation when the
appellant intentionally created and prolonged the incident.
APPOINTMENT OF COUNSEL
Montana law gives the courts discretion to appoint counsel for
indigent, misdemeanor defendants when appointment would serve the
interests of justice. Section 46-8-101(3), MCA. That discretion
is restricted to defendants who will not lose their physical
liberty. See State v. City Court of Billings (1982), 203 Mont.
443, 453, 662 P.2d 276, 281. When the statute under which the
defendant is convicted provides for incarceration, refusal to
appoint counsel precludes imposition of a jail sentence. Scott v.
Illinois (1979), 440 U.S. 367, 373-74, 99 S.Ct. 1158, 1162, 59
L.Ed.2d 383, 389.
Here the City Court and District Court denied a court-ap-
pointed attorney on the grounds that Layzell would not be sentenced
to jail. The courts complied with this restriction by imposing
only fines. Nothing in their decisions violates the restrictions
under which appointment of counsel may be refused.
Layzell argues that the time he spent in jail awaiting trial
deprived him of his liberty, thereby requiring court-appointed
counsel. This Court and the United States Supreme Court have not
yet recognized a right to counsel solely on the basis of pretrial
incarceration. Because the appellant could have ended that
incarceration, we decline to establish a new constitutional rule
in this case.
CREDIT FOR TIME SERVED
Layzell also argues that the District Court's failure to
credit his thirty days of pretrial detention against his $200 fine
was a violation of his constitutional rights. The United States
Supreme Court has not yet addressed this issue. The federal courts
are greatly divided over whether, and in what circumstances,
Williams and Tate give indigents a constitutional right to credit
for pretrial detention. See Johnson v. Riveland (10th Cir. 1988),
855 F.2d 1477, 1483-84 n.7 (collecting cases). We do not find it
necessary to decide this difficult issue in the present case. The
District Court's failure to comply with the Montana statutes is
sufficient to reverse the appellant's sentence.
The Montana statute in effect at the time provided:
Any person incarcerated on a bailable offense
who does not supply bail and against whom a
fine is levied on conviction of such offense
shall be allowed a credit of $10 for each day
so incarcerated prior to conviction, except
that in no case shall the amount so allowed or
credited exceed the amount of the fine.
Section 46-18-403 ( 2 ) , MCA (1987) (emphasis added) .
The statutory language is mandatory. It requires the District
Court to give credit for pretrial detention accrued because the
defendant did not make bail. Layzell's thirty-day pretrial
detention is more than sufficient to discharge his fine.
We affirm the traffic convictions, reverse the sentence, and
remand for resentencing in accordance with this opinion.
We concur:
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