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Thursday, April 18, 2013

Ind. Decisions - "Acapulco owner’s bond reduced " Appellate Rule 65(E) at issue

Updating this April 8th ILB entry headed "Bond reduction denial reversed today by COA in Acapulco restaurant chain raids," Erika Schmidt Russell reported yesterday in the Dearborn County Register:

Last week, the Court of Appeals of Indiana instructed Dearborn Circuit Court “set a reasonable bond amount based upon the relevant statutory factors” in the case of Adolfo Lopez who was charged with four class D felonies in September 2012 after an investigation by Indiana State Excise Police into several Acapulco Mexican Restaurants’ tax practices. [ILB: COA opinion here]

A legal tennis match ensued, with volleys of hearings, objections, and petitions finally culminating in Dearborn-Ohio Circuit Court Judge James D. Humphrey reducing Lopez’s bond to $100,000 surety Tuesday, April 16, to comply with the appeals court ruling.

In late September 2012, Humphrey set Lopez’s bond at $3 million surety plus $250,000 cash.

Lopez’s attorney, Doug Garner, filed a motion for bond reduction in late October 2012. The motion was denied Nov. 21, 2012, and the decision was appealed.

Garner credits the dedication of local appellate attorney Leanna Weismann with getting the bond reduction for his client.

Lopez bonded out of the Dearborn County Law Enforcement Center Tuesday evening, April 16. * * *

Magistrate/Judge Pro Tem Kimberly Schmaltz held a hearing to reduce the bond Wednesday, April 10.

Dearborn-Ohio County Prosecutor Aaron Negangard objected to the hearing. In his filing, also on April 10, it notes in accordance with Appellate Rule 65E “The trial court ... and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.”

Weismann filed a petition Thursday, April 11, with the court of appeals for relief to grant an immediate bond reduction hearing, rather than wait for the certification and/or transfer process if the Indiana Attorney General’s office would choose to request the appeal be taken up by the Indiana Supreme Court.

In the petition Weismann notes “ while ordinarily Indiana Appellate Rule 65(E) would require certification of this opinion prior to action by the trial court, in equity and law, courts have the inherent authority to require immediate compliance with their orders and decrees in order to give effective relief.”

The matter is a constitutional one, and “Lopez asks this Court to use its inherent equitable power to intervene to assure that bond is set in a reasonable timeframe.”

More filings came in April 16. The court of appeals ordered a bond hearing within 10 days of receiving the order or bond be set at $100,000 surety with a 10 percent cash option.

The court of appeals order by chief Judge Margret Robb states “In light of the significant constitutional and liberty interests involved in this case, and given that ‘courts have inherent authority to require immediate compliance with their orders and decrees in order to give effective relief....”

Negangard filed a motion to withdraw the objection to a bond hearing for Lopez April 16, as well.

In the motion Negangard notes his office was notified by the Attorney General’s office it would not be seeking a rehearing.

Humphrey writes in his order reducing Lopez’s bond, “... further considering the direction of the Court of Appeals to reduce Defendant’s bond, and the Court therefore finds that Defendant’s bond, given all these considerations, shall be a surety bond in the amount of One Hundred Thousand Dollars ($100,000.00). The Court considers the factors cited in the opinion of the Indiana Court of Appeals and also this Court’s original opinion.”

The order also notes references to other court’s bond schedules do not take into consideration all the factors involved in the Lopez case, “... including multiple charges and other factors cited. In fact, bond schedules from other jurisdictions in some Counties appear to require substantially higher cash payments than may be required by this Court.”

Posted by Marcia Oddi on April 18, 2013 09:29 AM
Posted to Ind. App.Ct. Decisions | Ind. Trial Ct. Decisions