            SUPREME COURT OF MISSOURI
                                         en banc



FAUSTINO LOPEZ-MATIAS,                       )      Opinion issued December 8, 2016
                                             )
                            Defendant,       )
                                             )
v.                                           )   No. SC95946
                                             )
STATE OF MISSOURI,                           )
                                             )
                            Plaintiff.       )


                  APPLICATION FOR RELIEF UNDER RULE 33.09
                       The Honorable Aaron Koeppen, Judge


      On September 6, 2016, Faustino Lopez-Matias was arrested and charged with the

class C felony of possessing (and attempting to use as genuine) a forged social security

card in violation of section 570.090.1(4), RSMo Supp. 2013. 1 As provided in his arrest

warrant, Lopez-Matias is being held without bail.

      On September 9, counsel for Lopez-Matias filed a motion asking the trial court to

release Lopez-Matias on his own recognizance or, in the alternative, to set reasonable

conditions for his release under section 544.455, RSMo Supp. 2013, and Rule 33.01. The



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   An amended complaint was filed later adding misdemeanor charges of speeding and driving
without a license.
trial court overruled the motion on September 13. Lopez-Matias represents, and the state

does not deny, that the sole basis for the trial court’s overruling of this motion was

section 544.470.2, which provides:

       There shall be a presumption that releasing the person under any conditions
       as provided by section 544.455 shall not reasonably assure the appearance
       of the person as required if the circuit judge or associate circuit judge
       reasonably believes that the person is an alien unlawfully present in the
       United States. If such presumption exists, the person shall be committed to
       the jail, as provided in subsection 1 of this section, until such person
       provides verification of his or her lawful presence in the United States to
       rebut such presumption. If the person adequately proves his or her lawful
       presence, the circuit judge or associate circuit judge shall review the issue
       of release, as provided under section 544.455, without regard to previous
       issues concerning whether the person is lawfully present in the United
       States. If the person cannot prove his or her lawful presence, the person
       shall continue to be committed to the jail and remain until discharged by
       due course of law.

§ 544.470.2 (emphasis added).

       Pursuant to Rule 33.09, Lopez-Matias seeks review. He does not claim that he

provided sufficient proof of his “lawful presence in the United States” and, therefore, that

the trial court erred by failing to set reasonable conditions for release under section

544.455. In fact, Lopez-Matias concedes that the trial court refused to consider his

motion because that is what section 544.470.2 required it to do. Instead, Lopez-Matias

claims that section 544.470.2 violates article I, section 20, of the Missouri Constitution

because the last sentence of this statute plainly and unambiguously prohibits the trial

court from considering conditions for his release under section 544.455 unless and until

Lopez-Matias proves his “lawful presence in the United States.”




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       Like all statutes, section 544.070.2 is presumed constitutional. State v. Vaughn,

366 S.W.3d 513, 517 (Mo. banc 2012). This Court will not declare a statute

unconstitutional unless it clearly and unambiguously contravenes a constitutional

provision. State v. Pribble, 285 S.W.3d 310, 313 (Mo. banc 2009). That high and

exacting standard is met in this case.

       Article I, section 20, of the Missouri Constitution provides that “all persons shall

be bailable by sufficient sureties, except for capital offenses, when the proof is evident or

the presumption great.” This Court noted long ago that the right encompassed in article I,

section 20, “has been a part of the Bill of Rights as declared in each organic law of this

state from the adoption of the Constitution of 1820.” Ex parte Burgess, 274 S.W. 423,

426 (Mo. banc 1925). It “may be said generally … that one accused of crime is entitled

to bail as an absolute right, subject to the limitation that it should be denied in capital

cases where the proof is evident or the presumption great.” Id. This right to “bail” is the

right of an accused (in all but capital cases) to be released prior to trial. State v. Jackson,

384 S.W.3d 208, 211-12 (Mo. banc 2012).

       This right, however, is subject to reasonable conditions. Those conditions may

pertain to the defendant’s conduct, e.g., restrictions on travel, an injunction against

contacting the victim or witnesses, and/or requirements that the defendant report

periodically or otherwise submit to supervision. See § 544.455. To assist the trial court in

determining just and reasonable conditions for release in non-capital cases, section

544.455 provides that the trial court may release a defendant on a written promise to

appear (i.e., a “recognizance”) unless the court “determines, in the exercise of [its]


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discretion, that such a release will not reasonably assure the appearance of the person as

required.” § 544.455.1. See also Rule 33.01(a) (“Any person charged with a bailable

offense shall be entitled to be released pending trial.”) and Rule 33.01(b) (“The court

shall set such conditions for release as will reasonably assure the appearance of the

accused.”).

       When a recognizance, alone, is insufficient to guaranty the defendant’s return,

section 544.455 sets forth additional conditions that may be imposed, including the

requirement of a cash deposit or a bond or some combination of the two. § 544.455.1(1)

– (7). See Rule 33.01(d) (“The court shall in all cases release the accused upon his

written promise to appear, unless the court determines that such release will not

reasonably assure the appearance of the accused. If the court so determines it shall

impose one or more of the following conditions for his release which will reasonably

assure such appearance ….”). The trial court may require a defendant to deposit this sum

entirely in cash, to deposit part of this sum in cash and sign a note or “bond” (secured or

otherwise) for the remainder, or the trial court may permit a third party to deposit a part

of this sum in cash and provide the third-party’s note or “bond” for the remainder as the

third-party’s guaranty that the defendant will appear as commanded. Jackson, 384

S.W.3d at 212.

       The constitution, however, does not state a preference for any particular conditions

or for any particular term governing a cash deposit. Id. at 214. Instead, article I, section

20, gives trial courts broad discretion to fashion conditions for release that – in the

circumstances of each particular case – adequately balance the constitutional imperative


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to afford the accused an opportunity for pretrial release with the constitutional imperative

to insist upon “sufficient sureties” that the defendant will appear at trial and when

otherwise commanded. Id. at 215 (“Consistent with this purpose, Missouri law and this

Court’s rules provide that the purpose of bail is to reasonably assure the appearance of

the accused”) (quotation marks omitted) (citing § 544.455 and Rule 33.01).

       The hallmark of the constitutional requirement of “sufficient sureties,” and the

necessary predicate to the process described in section 544.455 and Rule 33.01, is that the

setting of conditions for release must reflect the particular circumstances of each case.

       In determining which conditions of release will reasonably assure
       appearance, the associate circuit judge or judge shall, on the basis of
       available information, take into account the nature and circumstances of the
       offense charged, the weight of the evidence against the accused, the
       accused’s family ties, employment, financial resources, character and mental
       condition, the length of his residence in the community, his record of
       convictions, and his record of appearance at court proceedings or flight to
       avoid prosecution or failure to appear at court proceedings.

§ 544.455 .2. See Rule 33.01(e) (same).

       On its face, section 544.070.2 violates the right established in article I, section 20,

guaranteeing bail on “sufficient sureties” for any defendant not charged with a capital

offense. It purports to deny this right to an entire class of defendants comprised of those

defendants who are not able to establish their “lawful presence in the United States.” By

its clear terms, article I, section 20, applies to “all persons.” This does not permit the

General Assembly to except subsets of “persons” from its compass, such as by

prohibiting a trial court from setting conditions for release to all defendants who cannot

prove their lawful presence in this country, or by prohibiting pretrial release to any other



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class of defendants except those accused of a capital offense. Accordingly, section

544.070.2 is unconstitutional because it plainly and unambiguously contravenes the right

guaranteed by article I, section 20, of the Missouri Constitution.

       The state does not attempt to justify section 544.070.2 under article I, section 20,

and concedes that the two are irreconcilable. Instead, the state contends that section

544.070.2 is constitutional under article I, section 32. This provision of the constitution,

added in 1992, states:

       Notwithstanding section 20 of article I of this Constitution, upon a showing
       that the defendant poses a danger to a crime victim, the community, or any
       other person, the court may deny bail or may impose special conditions
       which the defendant and surety must guarantee.

Mo. Const. art. I, § 32.2.

       Under article I, section 20, “‘the only purpose of bond is to secure the appearance

of the defendant at the trial.’” Jackson, 384 S.W.3d at 215 (quoting State ex rel. Corella

v. Miles, 262 S.W. 364, 365 (Mo. banc 1924)). Under article I, section 32, however,

section 544.455 and Rule 33.01 allows the trial court to “impose conditions on bail to

protect others as well as to secure defendant’s return or even deny bail if the State shows

that the defendant poses a danger to the victim or public.” Jackson, 384 S.W.3d at 215–

16.

       The state is not wrong to suggest that article I, section 32, authorizes a trial court

to deny bail in a proper case. For example, the fact that a particular defendant is not

“lawfully present” in this country may (or may not) suggest that the defendant poses a

particular danger to the victim or public, just as it may (or may not) suggest that he or she



                                              6
poses a higher-than-usual flight risk if conviction of the charged offense would result in

the defendant’s deportation.

       But the state’s argument fails because these determinations must be made on a

case-by-case basis and in light of all of the other circumstances of the case. Nothing in

article I, section 32, authorizes the General Assembly to deny to an entire class of

defendants that which article I, section 20, promises to “all persons” except those charged

with a capital offense. Instead, as sections 544.457 and 544.676, RSMo 2000, make

clear, a trial court should consider the extent to which a particular defendant poses a

danger to the victim or public in determining what – or even whether – conditions for

release are appropriate in each particular case. Section 544.457 provides:

       Notwithstanding the provisions of Section 20 of Article I of the Missouri
       Constitution to the contrary, upon a showing that the defendant poses a
       danger to a crime victim, the community, or any other person, the court
       may use such information in determining the appropriate amount of bail, to
       increase the amount of bail, to deny bail entirely or impose any special
       conditions which the defendant and surety shall guarantee.

§ 544.457. See also § 544.676.1 (“Upon a showing by the state that a defendant poses a

danger to a crime victim, witness, or the community, the court may deny bail to a

defendant or impose such conditions as it deems appropriate to protect a crime victim,

witness or the community.”).

       Accordingly, the wholesale denial of pretrial release for an entire class of

defendants under section 544.470.2 violates the right to reasonable and individualized

bail set forth in article I, section 20. Such a denial cannot be justified by the authority in

article I, section 32, for a trial court to deny bail in a particular case where the defendant



                                               7
poses a risk of harm to a victim, witness, or the public that cannot be addressed

adequately by the special conditions for release.

       Ordinarily, under Rule 33.09(b), when a defendant’s application for review claims

that the trial court failed to set conditions for the defendant’s release or that the

conditions imposed are excessive, the higher court “shall make an order setting or

modifying conditions for the release of the accused” if it “finds that the accused is

entitled to be released and no conditions therefor have been set.” Here, however, the trial

court made it clear that it believed section 544.470.2 prohibited it from conducting the

normal, case-specific inquiry into the conditions for Lopez-Matias’s pretrial release

required by article I, sections 20 and 32, using the procedure described in chapter 544 and

Rule 33. As a result, this Court does not occupy the ordinary reviewing role of a “higher

court” envisioned in Rule 33.09.

       Therefore, because section 544.470.2 impermissibly denied Lopez-Matias the

individual consideration to which “all persons” (except those charged with a capital

offense) are entitled under article I, sections 20 and 32, this Court holds that the better

course in the circumstances of this application is to order that the trial court consider

reasonable conditions for Lopez-Matias’s release using the individualized procedure set

forth in chapter 544 and Rule 33. If Lopez-Matias is not lawfully present in this country,

the trial court may consider that circumstance – among all the others – in setting those

conditions. Or, if the particular facts and circumstances in this case demonstrate that

Lopez-Matias poses a risk of harm to the public, the trial court may deny him bail

altogether under article I, section 32, and sections 544.457 and 544.676. This Court


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expresses no opinion as to what – or even whether – conditions for release are

appropriate.


                                                     _____________________________
                                                      Paul C. Wilson, Judge


Breckenridge, C.J., Fischer, Stith,
Draper and Russell, JJ., concur.




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