OP20-0569INTHESUPREMECOURTOFTHESTATEOFMONTANA2021MT201AARONMICHAELGRAFFT,Petitioner,v.MONTANAFOURTHJUDICIALDISTRICTCOURT,STATEOFMONTANA,ANDSHERIFFT.J.McDERMOTT,Respondents.C3102'21BowonGreonwcodClerkof:1;uprem.,CourtStateofIvinntan,--3ORIGINALPROCEEDING:PetitionforWritofHabeasCorpusInandFortheCountyofMissoula,CauseNo.DC-20-287HonorableJohnW.Larson,PresidingJudgeCOUNSELOFRECORD:ForPetitioner:Filed:JoanH.Burbridge,JacobCoolidge,OfficeoftheStatePublicDefender,Missoula,MontanaForRespondents:AustinKnudsen,MontanaAttorneyGeneral,BradFjeldheim,AssistantAttorneyGeneral,Helena,MontanaKirstenH.Pabst,MissoulaCountyAttorney,D.JamesMcCubbin,Jr.,DeputyCountyAttorney,Missoula,MontanaColleenElizabethAmbrose,DepartmentofCorrections,Helena,MontanaDecided:August10,2021Clerk08/10/2021Case Number: OP 20-0569Justice Laurie McKinnon delivered the Opinion and Order of the Court. ¶1 On November 27, 2020, Petitioner Aaron Michael Grafft, through counsel, filed

a Petition for Writ of Habeas Corpus, alleging
he was unreasonably detained and illegally incarcerated when the Fourth Judicial District Court, Missoula County, refused

to release him after he posted bail. In cornpliance with this Court's December

8, 2020 Order, the Attorney General for the State of Montana has filed

a response. ¶2 We observe that Grafft included the District Court and the State of Montana

in the caption. We amend the caption

to also include the Sheriff for the Missoula County Detention Facility (MCDF). Section 46-22-201(1)(c), MCA. PROCEDURAL
AND FACTUAL BACKGROUND ¶3 Both Grafft and the State provide detailed backgrounds, which we summarize here. Grafft has two pending crirninal rnatters

in the Missoula County District Court (DC-20-210 and DC-20-287).

In DC-20-210, which we will refer to as the "first case," Grafft appeared in Justice Court on May 6, 2020, after being charged with criminal possession

of dangerous drugs. He was released
on his own recognizance
and told to appear
at his arraignment

on May 18, 2020. On May 12, 2020, the District Court granted the State's Motion for Leave to File an Information charging Grafft with felony possession

of dangerous drugs and continued Grafft's release on his own recognizance. Grafft's cornplaint concerns his detention and want of bail in DC-20-287,

his second case. In this case, Grafft made an initial appearance

in Justice Court on June 11, 2020, and the court released him on his own recognizance
and scheduled
his arraignment

for June 22, 2020. The State charged Grafft with felony criminal possession

of dangerousdrugs and misdemeanor possession

of drug paraphernalia

on June 15, 2020. The District Court released Grafft on his own recognizance with eight conditions

of release, including that Grafft not use alcohol
or drugs; participate

in the Sober Accountability Program (SAP); follow all conditions

of probation; and appear
at hearings, except for omnibus hearings. ¶5 Grafft did not appear for his two initial appearance hearings—June

8 and June 15— in his first case. The District Court issued an arrest warrant and set bail at $10,000.
On June 17, 2020, the Missoula Correctional Services (MCS) representative

for SAP filed

a report of violation

in Grafft's second case indicating Grafft tested positive for methamphetarnine

on June 16, 2020. Additional reports were filed indicating Grafft had failed to appear for drug testing over the course of several days. On June 22, 2020, the court issued an arrest warrant

in Grafft's second case and set bail at $10,000. Grafft was served with the warrants and arrested
on June 24, 2020. On June 29, 2020, Grafft appeared by video from MCDF, and the court released him on his own recognizance with the same conditions

of release. The District Court also scheduled
the ornnibus hearing

in both cases for August
6, 2020. Grafft failed to appear
at the August
6, 2020 omnibus hearing.' The District Court issued an arrest warrant

in his second case and set bail at $25,000. After his arrest, Grafft appeared
by video from MCDF on August 20, 2020, and asked to be released
on his own I This hearing was originally
set for July 30, 2020, but the District Court re-scheduled

it due to its law and rnotion calendar. We point out that Grafft was not required

to attend an omnibus hearing, according

to his initial conditions

of release. See also

§ 46-13-110(3), MCA. 2recognizance.
The court requested pretrial supervision after learning that Grafft was not on probation. The MCS representative

for SAP informed the court that Grafft was being monitored but that he absconded. The District Court directed Grafft's counsel

to devise

a plan with "a little more stringent monitoring because apparently that's what he needs." The court suggested that alcohol may be part of the problem.

2 The District Court sought
to reach "a happy rnedium for keeping him compliant and on task and in court and out of jail." ¶7 At the September

3, 2020 hearing, Grafft's attorney told the District Court that Grafft was waiting
on a bed date at a treatment center. Counsel asked that Grafft be released
on his own recognizance
and for the court to "come up with any combination

of conditions that would allow" his release. The State opposed Grafft's release because
he had absconded previously from SAP. The State requested that Grafft rernain

in custody until

a bed at the treatment center becarne available. The District Court ordered that Grafft be detained until

a bed opened
at the treatment center. ¶8 Despite the court's order, Grafft attempted

to post bond of $25,000 for his earlier failure
to appear on September
18, 2020. The District Court refused
to release Grafft and on September 23, 2020, Grafft requested

a hearing.
At the September 24, 2020 hearing, counsel for Grafft contended
the District Court's refusal

to accept bond on September
18, 2020, violated his constitutional right to bail. We include portions
of the transcript relevant

to Grafft's petition for habeas corpus relief. District Court: But you have been unable
to put
a plan together that will protect the community and preclude him from committing new offenses and 2 Counsel for Grafft contends that Grafft does not have

a problem with alcohol. As part of the relief requested, counsel asks that any continuous alcohol monitoring

be stricken. 3reappear. When you want to do that, we will have

a hearing
on it. Simply giving money
to a bondsman

is not going to deal with the issues that are presented

in this or most of the complex cases that we have to deal with. Counsel: This is a possession case, to be clear, Judge. This is not a complex case. District Court: Well,
it deals with his addiction issues and his inability

to deal with the addiction issues and no plan-- Counsel:
So to establish the record, it's your stance that regardless

of the bond he posts, that you will not release him? District Court: You have to analyze the 12 factors and the chemical addiction issues
in this case so the Court can be assured that he will reappear and won't commit new offenses. Counsel:
So is the Court unwilling

to issue conditions,
and subsequently unwilling

to release him even if he posts bond? District Court:
If you present
an analysis and
a plan based on those 12 factors set forth in the statute, the Court will set a hearing and hear both sides.

It rnay be that the State will agree. Counsel:
To be clear, I'm not--I'm referencing
his constitutional rights, not any kind of statutory structure. His constitutional right to bail would supersede any kind of statutory scheme requiring complex analysis

of factors. He is guaranteed

a right to bail under the Montana constitution. And he has been unable
to be released, which violates his constitutional rights, which

is independent

of any statutory scheme

in the Montana Code Annotated. During this hearing, the State offered that it did not oppose Grafft's release

if he posted bond and abided by conditions

of release. Grafft's counsel represented

he would continue to pursue Grafft's application

to a treatment program, but stated, "[w]hether

or not that is adequate

to the [c]ourt,

it doesn't give license

to have in-depth and indeterminate conditions

to invalidate
his constitutional right to bail." The District Court asked
if MCS could monitor Grafft. The MCS representative reminded
the court that Grafft had 4previouslyabscondedandthattheydidnothaveanalcoholmonitor.Thereafter,thecourtorderedthatGrafftbereleasedtoMCSwhentheyhadanalcoholmonitororaGPSunittomonitorGrafft.¶9TheDistrictCourtheldanotherhearingonSeptember30,2020.Grafftwasstillincustody.TheMCSrepresentativeexplainedherunderstandingthatMCDFwouldcontactherwhenGrafftpostedbond.TheDistrictCourtstatedthatithadorderedGrafft'sreleaseonSeptember24,2020.TheDistrictCourtthendirectedGrafft'scounseltocontactabondsmantopostbail.Grafftpostedthe$25,000bondonOctober2,2020,wherebytheDistrictCourtorderedhisreleasethatday.¶10GraffthasnowfiledaPetitionforWritofHabeasCorpus,contendingthattheDistrictCourt'srefusaltoreleaseGrafftafterhepostedbondwasunconstitutionalandviolated§§46-9-102(1),and46-9-301(4),MCA.STANDARDOFREVIEW1111Montana'scaselawisclearwhenitcomestoissuesconcerningbail.Bailisamatterwithinthediscretionofthetrialcourt.Statev.London,131Mont.410,425,310P.2d571,580(1957)."Sincethematterisonewithinthediscretionofthecourtweshouldnotbeinclinedtodisturbitsrulingunlessaclearabuseofsuchdiscretionappears."London,131Mont.at425,310P.2dat580.3"Whenapersonisimprisonedordetainedincustodyonanycriminalchargeforwantofbail,thepersonisentitledtoawritofhabeas3Bothpublishedcasesintheannotationsfor§46-9-102(1),MCA,dealtwithcapitalmurdercases.Thestatutesatthetimewere§2350ofMontana's1889PenalCode,asinStateexrel.Murrayv.DistrictCt.,35Mont.504,506,90P.3d513,514(1907),andR.C.M.§94-8303(1947).5corpus for the purpose
of giving bail upon averring that fact in the person's petition, without alleging that the person

is illegally confined." Section 46-22-103, MCA. DISCUSSION ¶12 Grafft requests the following relief: (1) that the condition
of release requiring Grafft to wear

a continuous alcohol rnonitoring device be struck; and (2) that the District Court be rnade "to adhere
to previously
set conditions

of release and grant orders releasing crirninal defendants such as [Grafft] when bail is posted." Grafft contends that when he posted bond of $25,000
on September
18, 2020, he should have been released and that failing
to do so violated
§§ 46-9-102(1),
and 46-9-301(4), MCA. He argues that bail may only be set if bail is first "determined

to be necessary," pursuant

to § 46-9-301, MCA, and that the State must submit proof of its necessity

at the outset. Billings

v. Layzell, 242 Mont. 145, 151-52, 789 P.2d 221, 225 (1990). Grafft asserts his constitutional rights have been violated; specifically,

the Fourth Amendment prohibition against unreasonable seizures, the Eight Amendment prohibition against excessive bail clause, and his right to due process protected
by the Fourteenth Amendment. ¶13 Grafft states that the District Court set conditions

of release on June 15, 2020, and that during Grafft's August 20, 2020 appearance,
the District Court irnposed
an additional condition

of pretrial supervision. Grafft contends that release conditions, drug testing, pretrial supervision,
and

a $25,000 posting of bond were in place when the bondsman appeared with the funds on September
18, 2020, and that he should have been released. Grafft contends that "Montana law does not require

a criminal defendant

to submit

a plan to secure release after posting bond." Section 46-9-106(1), MCA. Grafft further contends 6that the court's requirement

of alcohol rnonitoring

is not supported

by the record and is not a reasonable condition.

He alleges that the goal posts have been moved which

is inconsistent with due process. Grafft argues that the Due Process clause prohibits the government frorn subjecting

an individual

to punishrnent prior to an adjudication

of guilt. State
v. Spady, 2015 MT 218,
¶ 33, 380 Mont. 179, 354 P.3d 590. ¶14 Article II, Section 21, of Montana's Constitution reads that: "All persons shall be bailable
by sufficient sureties, except for capital offenses, when the proof
is evident
or the presumption great." Section 46-9-102(1), MCA, provides that: "All persons shall be bailable before conviction, except when death
is a possible punishment

for the offense charged and the proof
is evident
or the presumption great that the person

is guilty of the offense charged." That bail may not be excessive

is a fundamental, constitutional principle. U.S. Const. Amend. VIII; Art. II, 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[], 222 Mont. 92, 105, 721 P.2d 1258, 1267 [(1986)]. Layzell, 242 Mont.
at 149, 789 P.2d at 223; see also London, 131 Mont.
at 425, 310 P.2d at 580. ¶15 Courts have the statutory authority

to irnpose conditions

of release
on bail. Section 46-9-108(1), MCA, provides that "[t]he court may impose any condition that will reasonably ensure the appearance

of the defendant

as required

or that will ensure the safety of any person
or the community[.]" Section 46-9-311, MCA, provides that
a "court before which the proceeding

is pending may increase
or reduce the amount of bail, substitute one 7bail for another, alter the conditions

of the bail, or revoke bail." (Emphasis added.) Thus, while setting bail in non-capital cases
is required, the bail statutes allow

a court,
in its discretion,

to change both the amount of bail and set conditions,

in addition

to setting bail. ¶16 We sumrnarize Grafft's goings-on from June 2020 through October 2020:
at least three releases
by the District Court on his own recognizance; three arrest warrants; multiple occasions

in which Grafft failed to appear for hearings; Grafft's multiple and continuous use of drugs; and numerous hearings

to address Grafft's inability

to comply with conditions of release. Grafft cannot demonstrate
that he was entitled

to bail even after his first violation,
let alone after the multitude

of violations present
on this record. Finally, we cannot conclude that imposition

of alcohol monitoring was an abuse of discretion simply based on the charges being for drug possession. ¶17 As a final note, "[A] petition for writ of habeas corpus

is moot once the defendant is no longer
in custody[.]" Wier v. Lincoln Cnty. Sheriffs Dep't, 278 Mont. 473, 475, 925 P.2d 1172, 1173 (1996) (citation omitted). Grafft argues the bail issue
is not rnoot because
of the District Court's "long-standing policy

[ ] that crirninal defendants who have posted bail must appear
in front of him for additional conditions

of release." However,

as the bail statutes clearly provide that courts have the authority and discretion

to change bail and to establish conditions,
we decline
to consider this argument further. CONCLUSION ¶18 The purpose
of habeas corpus relief
is not served by allowing

a court to ignore its obligation

to consider factors set forth in the bail statutes and exercise
its discretion

to impose conditions

of release tailored

to ensure defendants appear for hearings and do not 8endanger themselves

or the community. The District Court exercised

its discretion

to hold Grafft even though he posted bail after being denied release on his own recognizance. Grafft has not demonstrated
any entitlement

to relief, and his Petition

is denied. DATED this day of August, 2021. We Concur: Chief Justice Justices

9
Justice