                                                       Apr 08 2013, 9:49 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

LEANNA WEISSMANN                             GREGORY F. ZOELLER
Lawrenceburg, Indiana                        Attorney General of Indiana

                                             CYNTHIA L. PLOUGHE
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

ADOLFO LOPEZ,                                )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )      No. 15A01-1212-CR-550
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE DEARBORN CIRCUIT COURT
                      The Honorable James D. Humphrey, Judge
                           Cause No. 15C01-1209-FC-89



                                   April 8, 2013


                            OPINION - FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Adolfo Lopez appeals the trial court’s denial of his motion for bond reduction. Lopez

and 108 other individuals were charged with numerous nonviolent crimes involving a chain

of Acapulco Mexican restaurants co-owned by Lopez. Specifically, Lopez was charged with

six class C felonies and four class D felonies. The trial court set Lopez’s bond at $3,000,000

surety plus $250,000 cash. On appeal, Lopez asserts the trial court abused its discretion in

denying his motion for bond reduction. Finding the bond excessive, we conclude that the

trial court abused its discretion when it denied the motion for reduction. Therefore, we

reverse and remand.

                              Facts and Procedural History

       In 2010, Indiana State Excise Police Officer Timothy Sutton began investigating a

chain of Acapulco Mexican restaurants after he became aware that the restaurants may not

have been reporting or documenting all sales. In addition to conducting undercover

surveillance, Sutton and Indiana Department of Revenue Agent Rick Albrecht reviewed cash

register receipts, payroll records, income statements from the restaurants, and bank deposits,

which all indicated an underreporting of gross sales. They also ran employees’ social

security numbers through a state database and discovered fraudulent numbers. The

subsequent execution of a search warrant on various safety deposit boxes owned by Lopez

resulted in the seizure of cash in excess of $3,000,000.

       On September 24, 2012, the State charged Lopez and 108 other individuals with

numerous crimes. Specifically, the State charged Lopez with one count of class C felony


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corrupt business influence, one count of class C felony conspiracy to commit corrupt

business influence, and four counts of class C felony forgery. The State also charged Lopez

with four counts of class D felony perjury. These charges involve allegations of failure to

properly report restaurant sales, failure to pay state sales taxes, falsification of tax forms, and

the use of false social security numbers. The trial court set bond at $3,000,000 surety plus

$250,000 cash.

       On October 31, 2012, Lopez filed a motion to reduce bond alleging that his bond was

unconstitutionally excessive and contrary to Indiana Code Section 35-33-8-4(b). Following a

hearing, the trial court denied Lopez’s motion on November 21, 2012. This appeal ensued.

                                   Discussion and Decision

       As a general matter, the setting of the amount of bail is within the discretion of the

trial court and will be reversed only for an abuse of that discretion. Winn v. State, 973

N.E.2d 653, 655 (Ind. Ct. App. 2012). 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.” Sneed v. State, 946 N.E.2d 1255, 1257 (Ind. Ct. App. 2011). The

denial of a motion to reduce bail is a final judgment appealable as of right. Id. at 1256 n.1.

       The Indiana Constitution prohibits excessive bail. Ind. Const. art. 1, § 16. Bail is

excessive if set at an amount higher than reasonably calculated to ensure the accused party’s

presence in court. Sneed, 946 N.E.2d at 1257 (citing Hobbs v. Lindsey, 240 Ind. 74, 79, 162

N.E.2d 85, 88 (1959) and Ind. Code § 35-33-8-4(b)). When setting and accepting an amount


                                                3
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 of 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;

       (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).

       While our review of a defendant’s challenge to the trial court’s initial setting of bail

and our review of a defendant’s challenge to the trial court’s denial of a motion to reduce bail

are conceptually and legally distinct, the two inquiries substantially overlap. Sneed, 946

N.E.2d at 1257-58. In deciding whether to exercise its discretion to reduce bail, the trial



                                               4
court considers the same statutory factors relevant to the initial setting of bail provided in

Indiana Code Section 35-33-8-4(b). See id.

        Here, in considering Lopez’s motion to reduce bond, the trial court held a hearing and

received evidence, specifically considering the statutory factors listed in Indiana Code

Section 35-33-8-4(b). The evidence presented indicates that some factors weigh in favor of

the motion to reduce while other factors weigh against the motion to reduce. We note that

factors 1, 2, 3, 5, 6, and 9 weigh in favor of Lopez’s motion to reduce. Lopez is an eight-

year resident of Dearborn County; he has a long and stable employment history, but his assets

have been seized, severely limiting his ability to post bail; he has been married for fifteen

years with two children enrolled in local schools; he has no criminal record; he has no record

of failure to appear in court and his passport has been seized; and he has been a United States

citizen since 1998. Factors 4, 7, and 10, however, weigh against the motion to reduce and in

favor of the trial court’s denial of that motion. Indeed, as noted by the trial court, testimony

regarding Lopez’s alleged business practices do not reflect favorably on his character;1 he is

facing a possible aggregate penalty of sixty years imprisonment and potential fines of

$100,000 if convicted; and his alleged business practices indicate instability and disdain for

authority. The trial court also noted that Lopez has been known to frequently visit Mexico

and that he maintains various ties to that country.




        1
          The trial court noted that Lopez “opened the door” to the State’s evidence regarding the manner in
which he conducted his businesses by asserting evidence of his good character and good business practices as
support for the motion to reduce. Appellant’s App. at 69.

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       We are most troubled by the trial court’s apparent failure to consider or give any

weight to factor 8 regarding 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. As noted earlier, the record

indicates that all of Lopez’s assets have been seized and that he does not have access to the

funds necessary to post the extraordinarily high bail set here. While the State asserts that it is

“reasonable to assume” that Lopez’s brothers, who continue to operate restaurants outside the

jurisdiction, can procure the necessary funds to satisfy the bond or that Lopez himself likely

“has access to large funds outside of this jurisdiction,” while possibly true, such speculation

is not supported by evidence in the record. Appellee’s Br. at 10-11.

       Still, the inability to procure the amount necessary to make bond does not in and of

itself render the amount unreasonable. Mott v. State, 490 N.E.2d 1125, 1128 (Ind. Ct. App.

1986). However, we must emphasize that we are dealing with a constitutional right here, and

the goal is not to punish in advance of conviction but to assure the defendant’s appearance in

court. See Samm v. State, 893 N.E.2d 761, 766 (Ind. Ct. App. 2008). Significantly, the State

has already seized in excess of $3,000,000 from the search of Lopez’s safety deposit boxes.

Nonappearance by Lopez jeopardizes his ability to eventually recover any portion of that

large sum of money. This fact alone indicates that the risk of nonappearance is lowered and

that the extraordinary bail set here is at an amount significantly higher than reasonably

calculated to assure Lopez’s presence in court.

       Under the circumstances, bond set at $3,000,000 surety plus $250,000 cash is

excessive and more than necessary to assure Lopez’s presence in court. Accordingly, we


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conclude that the trial court abused its discretion when it denied Lopez’s motion for bond

reduction. Therefore, we reverse the judgment of the trial court and remand with instructions

for the trial court to set a reasonable bond amount based upon the relevant statutory factors. 2

        Reversed and remanded.

ROBB, C.J., and FRIEDLANDER, J., concur.




        2
         Bail should be established by the trial court and not by this Court on appeal. Reeves v. State, 923
N.E.2d 418, 422 (Ind. Ct. App. 2010).

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