COURT OF APPEALS OF INDIANA
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
KEVIN C. TANKERSLEY JEFFREY A. MODISETT
ANDREW L. HEDGES
Deputy Attorney General
IN THE MATTER OF THE DENIAL OF THE )
APPLICATION FOR A WRIT OF HABEAS )
CORPUS FOR WILLIAM BRETTIN )
WILLIAM BRETTIN, )
vs. ) No. 66A03-9911-CV-408
PAUL GRANDSTAFF, Sheriff of Pulaski )
APPEAL FROM THE PULASKI CIRCUIT COURT
The Honorable Michael A. Shurn, Judge
Cause No. 66C01-9908-MI-14
February 4, 2000
OPINION FOR PUBLICATION
Appellant-Petitioner William Brettin (Brettin) brings this interlocutory appeal of the trial courts denial
of his Application for Writ of Habeas Corpus, contending the trial court improperly
altered his bail without conducting a hearing. We reverse.
Brettin presents the following issue for review:
Whether the trial courts order increasing Brettins bail constituted an alteration of the
previous amount and therefore entitled Brettin to a hearing pursuant to Ind. Code
On August 10, 1999, Brettin was arrested on a warrant in Pulaski County,
Winamac, Indiana. At an August 12, 1999 initial hearing, the court granted
the States request for a seventy-two hour continuance to file charges against Brettin.
At that time, the State indicated that it planned to file up
to seven charges of Child Molesting, as class C felonies, at least one
charge of Child Solicitation, a class D felony, at least one charge of
Public Indecency, a class D felony, and a charge of Child Exploitation, a
class A misdemeanor. At the close of the hearing, the court set
bail in the amount of $50,000.00 pending further hearing. (R. 43).
Brettin posted bail that same day and was released. On August 20,
1999, the State charged Brettin with 22 counts for the criminal offenses of
Child Molestation, Child Solicitation, and Battery, and requested an increase in bail.
On August 23, 1999, the court reconvened the initial hearing and notified
Brettin that it had increased his bail to $300,000.00.
After the new bail amount was set, Brettin filed an Application for Writ
of Habeas Corpus. Following a September 2, 1999 hearing, the trial court
denied the application. This interlocutory appeal ensued.
Standard of Review
When interpreting the meaning of a statute, this Court is guided by well-established
rules of statutory construction. In construing a statute, generally, we will only
interpret a statute that is ambiguous. Ballard v. State, 715 N.E.2d 1276,
1279 (Ind. Ct. App. 1999). A statute is ambiguous when it is
susceptible to more than one interpretation. Id. The controlling statute in
the present case is unambiguous. Therefore, we need not apply the rules
of statutory construction. See id. Rather, we will look to the
plain, ordinary, and usual meaning of the statute. See Riley v. State,
711 N.E.2d 489, 495 (Ind. 1999).
The purpose of a writ of habeas corpus is to determine the lawfulness
of the custody or detention of the defendant rather than to determine collateral
matters not affecting the custody process. McKay v. State, 714 N.E.2d 1182,
1186 (Ind. Ct. App. 1999). A defendant is entitled to a writ
of habeas corpus only if he is entitled to immediate release from unlawful
incarceration. Moshenek v. Anderson, 718 N.E.2d 811, 813 (Ind. Ct. App. 1999).
Brettin contends he is being unlawfully held because the trial court failed
to conduct a hearing pursuant to Ind. Code Section 35-33-8-5, which addresses the
alteration or revocation of bail.
See footnote The State, on the other hand, argues
that the trial court did not alter the amount of Brettins bail, but
rather set bail on additional charges. The State therefore contends that
Code Section 35-33-8-4 is the controlling statute in the present case. Indiana
Code Section 35-33-8-4 requires a trial court to set bail after the State
has filed a charging information and permits this determination to be made ex
The trial court set bail on August 12, 1999, based upon the States
advisement that it would be filing up to seven charges of Child Molesting,
as class C felonies, at least one charge of Child Solicitation, a class
D felony, at least one charge of Public Indecency, a class D felony,
and a charge of Child Exploitation, a class A misdemeanor. The State
requested that bail be set at $50,000.00. The trial court granted the
request, based upon the number of the potential multiple charges, and [the fact]
that they are felonies. (R. 43). That same day, Brettin posted
bail and was released.
Subsequently, the State determined it had enough evidence to file twenty-two criminal charges
against Brettin. Upon filing the charges, the State requested an increase in
the amount of bail. In support of its request, the State
filed an affidavit stating that Brettin had said he was afraid he would
eventually hurt someone. The affidavit also noted that Brettins alleged criminal activity
occurred over several years and involved numerous children. The State now argues
that this request was not for an alteration of bail, but was rather
a request that bail be set on additional charges.
We disagree with this characterization. When the trial court first discussed and
set bail, no formal charges had been filed against Brettin. In response
to its discussion with the State, the trial court set bail at $50,000.00.
The trial court set bail at this amount based upon the States
representations to the court concerning the nature and number of offenses to be
charged against Brettin. The present problem arose when the State determined it
had enough evidence to file approximately twice as many charges as it had
originally anticipated. At the time of the first initial hearing, the State
could have charged Brettin with the known offenses. Under such circumstances, the
State could have added additional charges at a later date and the trial
court could have then set bail on the additional charges without a hearing
pursuant to Ind. Code Section 35-33-8-4. Instead, the State chose to wait
seventy-two hours to file charges and the trial court set bail based upon
the anticipated charges.
See Ind. Code § 35-33-7-3 (West 1998). According
to the States argument, Brettin simply paid $5000.00 for a 10% bond merely
to have three days of freedom before being summarily returned to jail without
the necessity of a hearing. Had Brettin known that the amount of
bail may have changed without the benefit of a hearing, he may have
decided that the price was not worth the benefit.
Moreover, the States own Affidavit for Additional/Increase in Bail fails to indicate that
the States request for increased bail was based on additional charges. Rather,
the affidavit requests increased bail based upon Brettins statement that he was afraid
he would eventually hurt someone and upon the fact that the alleged criminal
activity occurred over several years and involved numerous children. Indiana Code Section
35-33-8-5 specifically states that, [w]hen the [S]tate presents additional . .
. clear and convincing evidence . . . that
the defendant . . . poses a risk to
the physical safety of another person or the community[,] the court may increase
bail. In the present case, the State, after asking the trial court
to set bail based upon anticipated charges, asked the trial court to raise
the bail due to the alleged risk Brettin posed to the community.
Indiana Code Section 35-33-8-5 entitled Brettin to a hearing to challenge the States
request for an increase of bail on that basis.
Based on the foregoing, we hold that the trial court erred when it
denied Brettins Application for Writ of Habeas Corpus. We order that Brettin
be released from the custody of the Pulaski County Sheriff on the original
$50,000.00 bond until and unless the trial court determines after a hearing that
the State has met its burden in seeking an increase in bail pursuant
to Indiana Code Section 35-33-8-5.
Reversed and remanded with instructions to release Brettin from the custody of the
Pulaski County Sheriff.
MATTINGLY, J., and RILEY, J. concur.
Vacendak v. State, 261 Ind. 317, 302 N.E.2d 779 (1973),
the Indiana Supreme Court held that due process entitles a defendant to a
hearing upon the States application to increase the amount of his bail.
We note that the State did not actually file charges
until eight days after the initial hearing.