FOR PUBLICATION



ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

CHRISTOPHER A. RAMSEY                       GREGORY F. ZOELLER
Ramsey Law Office                           Attorney General of Indiana
Vincennes, Indiana
                                            AARON J. SPOLARICH
                                            Deputy Attorney General
                                            Indianapolis, Indiana
                                                                          FILED
                                                                    Sep 04 2012, 9:47 am


                            IN THE                                          CLERK
                                                                          of the supreme court,
                                                                          court of appeals and
                                                                                 tax court

                  COURT OF APPEALS OF INDIANA

TOMMI EMERSON WINN,                         )
                                            )
     Appellant,                             )
                                            )
            vs.                             )       No. 42A04-1201-CR-49
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee.                              )


                   APPEAL FROM THE KNOX SUPERIOR COURT
                      The Honorable W. Timothy Crowley, Judge
                           Cause No. 42D01-1109-FB-77


                                September 4, 2012

                         OPINION – FOR PUBLICATION


DARDEN, Senior Judge
                                STATEMENT OF CASE


       Tommi Emerson Winn appeals the trial court’s denial of his motion for bail bond

reduction.

       We reverse and remand.

                                         ISSUE

       Whether the trial court abused its discretion in denying Winn’s motion for
       bond reduction.

                                         FACTS

       On September 6, 2011, a Knox County resident called the police department after

three young men approached her residence, asked for a person who did not live there, and

then drove down the road and stopped in a neighbor’s driveway. Knox County Sheriff’s

Department Detective Michael Fisher arrived on the scene shortly after another officer

stopped the men’s vehicle. After advising the men of their rights, Detective Fisher

identified the men as Winn, Michael Ridge, and Jordan Downey.

       Detective Fisher then observed a large amount of jewelry in plain view in the back

seat of the men’s vehicle. Later, Detective Fisher conducted a taped interview with

Ridge, who confessed that earlier in the day the group stole the jewelry from a local

home and that they had committed numerous other robberies. Downey also provided a

statement admitting to the burglaries.




                                           2
         After completing the burglaries, the group transported the stolen items to a local

pawn shop. The men sold what jewelry they could and then took the rest out into the

country and threw it out of the window as they were driving. The group also took

multiple trips to Wal-Mart to convert stolen change into bills, a practice that was verified

by the store’s surveillance cameras. Detective Fisher recovered a guitar stolen by the

group.

          The State charged Winn with thirteen counts of burglary for his role in the home

invasions. On September 14, 2011, the trial court set Winn’s bail at $25,000 cash. Winn

then filed his “Motion for Bond Reduction, requesting that the “bond be modified such

that he can post ten percent of twenty-five thousand dollars ($25,000) to secure release

from jail.” (App. 19). In his motion, Winn stated that he had (1) lived in Knox County

most of his life; (2) not been arrested for or convicted of a felony; (3) possessed strong

ties to the community; and (4) not had a failure to appear in a court appearance.

         At a hearing on the motion, the then twenty-two-year-old Winn presented

evidence that he had lived in the community for approximately sixteen years. He and his

father had lived at the same address for ten years. His sole encounter with the justice

system was a ticket for underage consumption of alcohol, a class C misdemeanor that

occurred in 2007. Winn pled guilty to the misdemeanor and served twelve months of

supervised probation.     During the probationary period, Winn completed a drug and

alcohol program. Winn did not fail to appear at a hearing that required his attendance.

                                              3
        Winn presented additional evidence that he graduated from Vincennes Lincoln

High School and has ties to the Vincennes community. His grandmother, uncle, and

father live in Vincennes.            Martha Beliles, a retired woman living in Winn’s

neighborhood, testified that she considers Winn a grandson due to their close

relationship. She also testified that Winn would perform tasks around her house and yard

that she could not accomplish.

          After the hearing, the trial court denied the motion on the basis that there were

thirteen separate victims. The trial court reasoned:

        Okay. I get it. I understand. Well, I appreciate that young Mr. Winn here
        doesn’t have a lengthy criminal history. But, the reason I set bond at the
        amount I did was at his initial hearing, I looked at the . . . the fact there
        were 13 separate counts against him and 13 separate sets of victims, and
        decided at the time that I think that . . . at that time $25,000.00 was the
        appropriate . . . cash only was the appropriate bond. And while I appreciate
        the testimony of the witnesses here, Miss Beliles and his father, I think that
        is still the appropriate bond. So, the Court having considered the matter,
        now denies the request for bond reduction. Mr. Winn’s bond will remain
        $25,000.00 cash only. We’re done, thank you.

(Tr. at 38). Winn now appeals.1




1
  Both our supreme court and this court have held that the denial of a motion to reduce bail is a final
judgment appealable as of right. State ex rel. Peak v. Marion Criminal Court Div. One, 246 Ind. 118,
121, 203 N.E.2d 301, 302 (1965); Sneed v. State, 946 N.E.2d 1255, 1256 (Ind. Ct. App. 2011). Here, the
motion to reduce bond is a request to modify the manner in which the bail bond shall be paid, and as such,
the motion is based “upon the same factors as are relevant to the setting of the amount of bail.” See
Sneed, 946 N.E.2d at 1260. Both motions are premised upon the defendant’s inability to pay the bond
imposed. Although the State argues otherwise, we hold that the denial of Winn’s motion is a final
judgment appealable as of right.

                                                    4
                                         DECISION

       In general, the setting of the amount of bail is within the discretion of the trial

court and will be reversed only for an abuse of discretion. Sneed, 946 N.E.2d at 1257

(citing Perry v. State, 541 N.E.2d 913, 919 (Ind. 1989)). We therefore review the trial

court’s denial of a defendant’s motion to reduce bail for an abuse of discretion. Id. An

abuse of discretion occurs when the trial court’s decision is clearly against the logic and

effect of the facts and circumstances before it. Id.

       In setting the amount of bail, the trial court is required to take into account all facts

relevant to the risk of nonappearance, including:

       (1) the length and character of the defendant’s residence in the community;

       (2) the defendant’s employment status and history and his ability to give
       bail;

       (3) the defendant’s family ties and relationships;

       (4) the defendant’s character, reputation, habits, and mental condition;

       (5) the defendant’s criminal or juvenile record, insofar as it demonstrates
       instability and a disdain for the court’s authority to bring him to trial;

       (6) the defendant’s previous record in not responding to court appearances
       when required or with respect to flight to avoid criminal prosecution;

       (7) the nature and gravity of the offense and the potential penalty faced,
       insofar as these factors are relevant to the risk of nonappearance;

       (8) the source of funds or property to be used to post bail or to pay a
       premium, insofar as it affects the risk of nonappearance;


                                               5
       (9) that the defendant is a foreign national who is unlawfully present in the
       United States under federal immigration law; and

       (10) any other factors, including any evidence of instability and a disdain
       for authority, which might indicate that the defendant might not recognize
       and adhere to the authority of the court to bring him to trial.

Ind. Code § 35-33-8-4(b).

       By statute, a trial court has several options regarding the manner of executing bail,

including the option to “execute a bail bond by depositing cash or securities with the

clerk of the court in an amount not less than ten percent (10%) of the bail.” Ind. Code §

35-33-8-3.2(a). This statute, like the statute governing the amount of bail, “also places

the manner of executing the bail within the discretion of the trial judge.” Sneed, 946

N.E.2d at 1260. As we noted above, in reviewing the trial court’s exercise of discretion,

we look to the same factors as are relevant to setting the amount of bail. See id.

       Applying the statutory factors of Indiana Code section 35-33-8-4(b), we note that

subsections 1, 2, 3, 4, 5, 6, 8, 9, and 10 weigh in favor of reduction or modification of

bail in this case. Subsection 7, however, arguably weighs against such a reduction. See

Sneed, 946 N.E.2d at 1258-59 (the fact that a defendant, if convicted, may face a lengthy

sentence “tends to increase the risk [he] will fail to appear for trial and thereby cuts

substantially against [his] argument that the trial court abused its discretion by not

reducing the $25,000 bail”). As we held in Sneed, subsection 7 alone is sufficient to

warrant a refusal to reduce the amount of bail.


                                             6
        However, the record shows that Winn was without the funds to post the entire

$25,000 in cash. “Thus, it is only proper to consider the type of bail set by the trial

court.” Id. at 1260.         In effect, by denying Winn the option of depositing cash or

securities in an amount not less than ten percent of the bail, “the trial court condemned

[him] to jail pending trial without explicitly ordering [him] to be held or articulating any

reason for doing so.”2 See id. While the severity of the thirteen charges arguably

supports the setting of bail in the amount of $25,000, “the absence of any other factors

suggesting [Winn] was a flight risk leads us to conclude the trial court should have

granted” Winn’s request to deposit an amount not less than 10 percent of bail under

Indiana Code section 35-33-8-3.2(a). See id.

        We reverse and remand with instructions that the trial court grant Winn’s motion.

FRIEDLADNER, J., concurs.

BROWN, J., concurs in part with separate opinion.




2
  We note that the trial court’s statement in the present case uses the words “cash only” but does not give
the trial court’s reasoning for this limitation.

                                                    7
                               IN THE
                    COURT OF APPEALS OF INDIANA

TOMMI EMERSON WINN,                               )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )    No. 42A04-1201-CR-49
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee.                                  )



Brown, Judge, concurring in part.


       I concur in part with the majority and write separately to state that IC 35-33-8-3.2

cited in the opinion allows the trial court options in addition to granting Winn’s request to

deposit an amount with the clerk of not less than 10 percent of the amount of bail.

Specifically, IC 35-33-8-3.2(a)(1)(A) provides for execution of a bail bond with

sufficient solvent sureties. Other parts of subsection (a)(1) allow for execution of a bond

secured by real estate in the county, posting a real estate bond, or performing any

combination of the four requirements described in that subsection. On remand I would


                                             8
not require that the trial court grant Winn’s motion but would allow the court the

discretion afforded by IC 35-33-8-3.2.




                                         9
