Petitioner,

v.

MONTANA FOURTH JUDICIAL DISTRICT

COURT, STATE OF MONTANA, AND

SHERIFF T.J. McDERMOTT,

Respondents.

C3 1 0 2'21

Bowon Greonwcod

Clerk of :1;uprem., Court

State of Ivinntan,--3

ORIGINAL PROCEEDING: Petition for Writ of Habeas Corpus

In and For the County of Missoula, Cause No. DC-20-287

Honorable John W. Larson, Presiding Judge

COUNSEL OF RECORD:

For Petitioner:

Filed:

Joan H. Burbridge, Jacob Coolidge, Office of the State Public Defender,

Missoula, Montana

For Respondents:

Austin Knudsen, Montana Attorney General, Brad Fjeldheim, AssistantAttorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, D. James McCubbin, Jr.,

Deputy County Attorney, Missoula, Montana

Colleen Elizabeth Ambrose, Department of Corrections, Helena, Montana

Decided: August 10, 2021

Clerk
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 dangerous
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.

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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 onSeptember 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.

3
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

4
custody. The MCS representative explained her understanding that MCDF would contact

her when Grafft posted bond. The District Court stated that it had ordered Grafft's release

on September 24, 2020. The District Court then directed Grafft's counsel to contact a

bondsman to post bail. Grafft posted the $25,000 bond on October 2, 2020, whereby the

District Court ordered his release that day.

¶10 Grafft has now filed a Petition for Writ of Habeas Corpus, contending that the

District Court's refusal to release Grafft after he posted bond was unconstitutional and

violated §§ 46-9-102(1), and 46-9-301(4), MCA.

STANDARD OF REVIEW

1111 Montana's case law is clear when it comes to issues concerning bail. Bail is a matter

within the discretion of the trial court. State v. London, 131 Mont. 410, 425, 310 P.2d 571,

580 (1957). "Since the matter is one within the discretion of the court we should not be

inclined to disturb its ruling unless a clear abuse of such discretion appears."

London, 131 Mont. at 425, 310 P.2d at 580.3 "When a person is imprisoned or detained in

custody on any criminal charge for want of bail, the person is entitled to a writ of habeas

3 Both published cases in the annotations for § 46-9-102(1), MCA, dealt with capital murder cases.

The statutes at the time were § 2350 of Montana's 1889 Penal Code, as in State ex rel. Murray v.

District Ct., 35 Mont. 504, 506, 90 P.3d 513, 514 (1907), and R.C.M. § 94-8303 (1947).

5
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

6
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

7
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

8
We Concur:

Chief Justice

Justices

9

Justice