Opinion
23A-CR-2924
06-20-2024
Jamey Noel, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Zachary F. Stewart Jeffersonville, Indiana James H. Voyles Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Clark Circuit Court The Honorable Larry W. Medlock, Special Judge Trial Court Cause No. 10C01-2311-F5-297
ATTORNEYS FOR APPELLANT
Zachary F. Stewart Jeffersonville, Indiana
James H. Voyles Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Tyler Banks Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] Former Clark County Sheriff Jamey Noel was charged with fifteen felonies, including corrupt business influence, official misconduct, ghost employment, theft, and obstruction of justice. Most of the conduct was alleged to have occurred during his term as sheriff. Following an initial hearing, the trial court issued an Order on Initial Hearing (Order) that set a cash-only $75,000 bond and imposed other conditions of release. Noel posted bond the same day.
[¶2] He now appeals, raising the following restated issues:
I. Is Noel's challenge to the Order moot?
II. Did the trial court abuse its discretion in setting bond and imposing conditions of release?
[¶3] We affirm.
Facts &Procedural History
[¶4] Noel was the elected Sheriff of Clark County from January 1, 2015 to December 31, 2022. During his tenure as Sheriff, he also was the CEO of the Utica Township Volunteer Firefighters Association (Utica VFA). In the summer of 2023, the Indiana State Police (ISP) began an investigation into allegations that Noel had used jail staff to work on his private properties while they were on duty and being paid by the county. According to the probable cause affidavit, several jail employees described performing maintenance, plumbing, HVAC, and other work for Noel at his personal properties and Utica VFA locations. ISP also learned that dozens of vehicles, including Cadillac Escalades, Chevy Camaros, Dodge Challenger Hell Cats, and a Corvette were registered to Utica VFA. Another county employee told ISP that he used a jail truck, trailer, and gasoline to transport vehicles for Noel that Noel had purchased for his private collection.
[¶5] Based on its investigation, ISP obtained and executed search warrants at Noel's residence, his pole barn, and two of Utica VFA's fire stations. Dozens of vehicles were seized. During the execution of one warrant, Noel was summoned to one of his properties and turned over his cell phone, which police reported had been recently wiped and returned to factory settings. ISP's investigation also included banking and vehicle purchase records and revealed what ISP believed to be a corrupt business practice of "layering," to make the process of tracking money or assets more difficult and which resulted in personal financial gain to Noel. Appendix at 43.
[¶6] On November 8, 2023, the State, by a special prosecutor, charged Noel with: one count of Level 5 felony corrupt business influence; two counts of Level 5 felony theft; three counts of Level 6 felony theft; one count of Level 6 felony obstruction of justice; four counts of Level 6 felony ghost employment; and four counts of Level 6 felony official misconduct. On the same day, a special judge was appointed to handle the matter, and an arrest warrant was issued. Noel arrived at the courthouse with his attorney on November 8 and was arrested and detained in a neighboring county until the initial hearing the following day.
[¶7] In addition to receiving Noel's preliminary plea of not guilty and providing the standard advisements, the trial court addressed the issue of bond at the initial hearing. Prior to the start of the hearing, Noel filed a Brief on Defendant's Bond or Recognizance Conditions, asking to be released on his own recognizance given that he had resided in Clark County his entire life, his wife and youngest daughter reside there too, he is employed with New Chapel EMS and provides ambulance and fire protection to residents of Clark and Floyd Counties, and he has no criminal history, "including any history that would demonstrate disdain for the court's authority to bring him to trial." Appendix at 62.
A "bail bond" is "a bond executed by a person who has been arrested for the commission of an offense, for the purpose of ensuring (1) the person's appearance at the appropriate legal proceeding; (2) another person's physical safety; or (3) the safety of the community." Ind. Code § 35-33-8-1.
[¶8] At the initial hearing, the State did not call witnesses or present evidence but asked the court to consider the factors set forth in Ind. Code § 35-33-8-4 in setting bail. The State particularly emphasized subsection 7 concerning the gravity of the offenses and potential penalties faced, which the State argued were "significant" in this case. Transcript at 11. Further, the State asked the court to consider that after charges were filed the day prior, but before the arrest warrant was issued, ISP contacted Noel, who went to Kentucky and, in the State's view, tried to "elude" police for a time before meeting with his attorney and then arriving in Indiana at the courthouse. Id. at 12. The State also informed the court that Noel "has a home" in Florida and "owns his own plane," which it maintained "certainly allows him to come and go out outside the State of Indiana at his leisure." Id. The State also argued that, during the execution of a warrant on one or more of Noel's properties, police found "a multitude of weapons" and that Noel "could pose a risk" to the community. Id. at 13. The State asserted that Noel was a flight risk and requested that the court set a $25,000-$30,000 cash bond, order Noel to turn over firearms, and impose pretrial monitoring.
[¶9] Noel called as a witness Chris Tivnan, a pretrial services evaluator in the local probation department. Tivnan discussed Noel's Indiana Risk Assessment report (IRAS). Noel, who has no criminal history, received a score of zero on the assessment, which is the lowest possible IRAS score. The IRAS report was admitted into evidence, and Tivnan testified to his recommendation that Noel be released on his own recognizance with the lowest level of supervision.
[¶10] Following examination by counsel, the court asked Tivnan:
Q: Mr. Tivnan, how many times have you done a pretrial assessment on a past public official and a current public figure that has an airplane and that, allegedly, has a lot of other people's money and taxpayer's money?
A: This would be a unique situation.
Q: Okay, a unique situation?
A: Yeah.Id. at 24. The court asked Noel's counsel whether Noel currently had a passport, and counsel replied that he did and offered, "[W]e will turn that in." Id. at 26.
[¶11] In closing, Noel argued that the only evidence before the court was the IRAS report and the testimony of Tivnan, with the State presenting "zero evidence" to the contrary. Id. at 25. Therefore, Noel maintained that he should be released on his own recognizance.
[¶12] Following a brief recess, the trial court ordered Noel to not leave the state without permission and to surrender his passport and all firearms except one firearm of his choice for personal protection, warning Noel, "Try to deceive me, you will not like the consequences." Id. at 30. The court set Noel's bond at $75,000 cash, emphasizing that this was "a unique case." Id. at 28. Noel posted bond the same day and was released. Thereafter, he timely surrendered his passport and firearms. Noel now appeals.
Discussion &Decision
I. Mootness
[¶13] We typically will not engage in discussions of moot questions or render advisory opinions. Samm v. State, 893 N.E.2d 761, 765 (Ind.Ct.App. 2008). A case is deemed moot when no effective relief can be rendered to the parties before the court. Id. That is, "when the controversy at issue in a case has ended or settled, or in some manner disposed of, so as to render it unnecessary to decide the question involved, the case will be dismissed." Id.
[¶14] The State asserts that this appeal is moot, given that Noel has paid the $75,000 cash bond and been released. More specifically, the State argues, without citation to authority, that "[b]ecause Noel posted bond on the day it was set, he has no more interest in the amount of his posted bond, and he has no remedy to be garnered from succeeding in this appeal." Appellee's Brief at 10. We disagree. Even though Noel posted the bond and was released, we cannot say that no effective relief was possible. For instance, the posted bond could be released or reduced in amount, or the conditions of bond could be eliminated or modified. Accordingly, we do not find Noel's appeal to be moot and proceed to address the merits of his claim.
We recognize that, in Samm, where a defendant had been released after paying bond, we found his challenge to a $100,000 cash-only bond was moot. However, that case is distinguishable from the Noel's situation because there, during the pendency of the appeal, the defendant entered into a plea agreement that included a term for the bond to be reduced to $50,000 payable by 10% cash, which he paid and was released. Thus, the $100,000 bond that the defendant was challenging on appeal no longer existed, making his appeal moot.
II. Abuse of Discretion
[¶15] Noel contends that the Order setting the amount of his bond and imposing pretrial conditions should be reversed and remanded as an abuse of discretion. I.C. § 35-33-8-4(b) provides that "[b]ail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community." In setting an amount of bail, a 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 the defendant's 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 the defendant 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;
* * *
(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 the defendant to trial.
I.C. § 35-33-8-4(b).
[¶16] Also relevant to the trial court's determination of bail is Crim. R. 26, concerning "Pretrial Release" and providing in part:
Effective January 1, 2024, the language of Crim. R. 26 is found in Ind. Crim. Rule 2.6.
(A) If an arrestee does not present a substantial risk of flight or danger to self or others, the court should release the arrestee without money bail or surety subject to such restrictions and conditions as determined by the court except when:
(1) The arrestee is charged with murder or treason.
(2) The arrestee is on pretrial release not related to the incident that is the basis for the present arrest.
(3) The arrestee is on probation, parole, or other community supervision.
(B) In determining whether an arrestee presents a substantial risk of flight or danger to self or other persons or to the public, the court should utilize the results of an evidence-based risk
assessment approved by the Office of Judicial Administration, and such other information as the court finds relevant....
[¶17] An abuse-of-discretion standard of review applies to a trial court's bail determination. DeWees v. State, 180 N.E.3d 261, 264 (Ind. 2022); Medina v. State, 188 N.E.3d 897, 901 (Ind.Ct.App. 2022). A trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. DeWees, 180 N.E.3d at 264 (quotation omitted).
II.A. Requiring Noel to Post Bond
[¶18] Noel initially challenges the court's decision to require him to post bond and not release him on his own recognizance. Relying in part on the language of Crim. R. 26 and I.C. § 35-33-8-3.8 that directs trial courts to consider a risk assessment report if available when setting bail, Noel points out that he scored a zero on the IRAS assessment and Tivnan recommended the lowest level of pretrial supervision. Noel maintains that, as the State did not present any evidence to the contrary, there was no evidence that he presented a substantial risk of flight or danger to the community. He argues that, given this purported lack of evidence, requiring a bond to be posted was an abuse of discretion. Appellant's Brief at 19. We are unpersuaded.
I.C. § 35-33-8-3.8(a) states that the trial court "shall consider" the results of the Indiana pretrial risk assessment system, if available, before setting or modifying bail for an arrestee, whereas Crim. R. 26 states that the trial court "should" consider it.
[¶19] In DeWees, our Supreme Court stated that, while trial courts are to consider the evidence-based results of an IRAS, "there's nothing [] that . . . requires the court to rely on the results of the IRAS assessment when setting bail." 180 N.E.3d at 268. The Court explained that the codification of Crim. R. 26 and enactment of the bail statutes were intended to "enhance, rather than restrict" the discretion of the trial court and what it should consider. Id. at 263; see also Medina, 188 N.E.3d at 904 (recognizing that adoption of evidence-based practices in the administration of bail results in no change to judicial flexibility). Thus, contrary to Noel's suggestion, trial courts retain considerable flexibility in determining bail and are to consider "any factor relevant to the detainee's risk of nonappearance and potential danger to the community," including those outlined in I.C. § 35-33-8-4(b). DeWees, 180 N.E.3d at 266 (emphasis in original). The DeWees Court emphasized that bail determinations are to be "tailor[ed] . . . to the individual offender" and to accomplish that, trial courts should consider "the widest range of relevant information in reaching an informed decision." Id. at 268.
[¶20] In this case, the trial court considered "all facts relevant to the risk of nonappearance," which included "the length and character" of Noel's "residence in the community," his "employment status and history," and "family ties and relationships." I.C. § 35-33-8-4(b)(1), (2), (3). According to Noel's pre-hearing brief that sought release on his own recognizance, he had resided in Clark County his entire life, his wife and youngest daughter reside there, and he is employed with a local EMS service; thus, several of the statute's factors arguably favored his release.
[¶21] However, the court also considered "the nature and gravity of the offense[s] and the potential penalt[ies] faced, insofar as these factors are relevant to the risk of nonappearance" and "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 the defendant to trial." I.C. § 35-33-8-4(b)(7), (10). Noel faced fifteen felonies, most of which were alleged to have occurred during his tenure as sheriff, involving use of jail employees and county business(es) to enrich himself at taxpayer expense, for which he could face serious penalties if convicted. The charges clearly call into question his "character" in the community as well as strongly suggest a "disdain for authority." I.C. § 35-33-8-4(b)(1), (4), (10). These factors cut substantially against his argument that the trial court abused its discretion in requiring him to post a bond. Further, in addressing the risk of Noel's nonappearance, the State informed the court that Noel had both a plane and a home in Florida, allowing him to easily leave the state at his leisure. On the facts of this case, we find no abuse of discretion in the court's decision to require Noel to post a bond.
To the extent that Noel asserts that the trial court was required but failed to "make specific factual findings" that Noel posed a substantial risk of flight or a danger to another, Appellant's Brief at 13, we reject that argument. First, he cites no authority in support. Second, we have held that, although I.C. § 35-33-8-4 requires the trial court to consider the relevant factors, the statute does not require the trial court to explain its reasoning for setting (or declining to reduce) bail. See Sneed v. State, 946 N.E.2d 1255, 1259 (Ind.Ct.App. 2011) (rejecting defendant's argument that the trial court abused its discretion "by summarily denying her request to reduce bail without giving explicit consideration, on the record, to the relevant statutory factors and evidence presented thereon"). We agree with the Sneed court that, "[g]iven the presumption that the trial court knows and follows the applicable law," we will not "infer from a silent record that the trial court failed to consider the relevant evidence and statutory factors." Id.
II.B. Amount and Conditions of Bond
[¶22] Noel alternatively asserts that, even if the decision to set bond was not an abuse of discretion, the $75,000 cash bond was excessive. The Indiana Constitution prohibits excessive bail. Ind. Const. Art. 1, § 16. "Bail may not be set higher than that amount reasonably required to assure the defendant's appearance in court or to assure the physical safety of another person or the community if the court finds by clear and convincing evidence that the defendant poses a risk to the physical safety of another person or the community." Ind. Code § 35-33-8-4(b). In determining the amount of bond, if any, a court should consider all facts relevant to the risk of nonappearance. I.C. § 35-33-8-4(b). A decision on the question of excessiveness should be based upon two related considerations: (1) the object of bail itself, which is to ensure the presence of the accused without the hardship of incarceration before guilt has been proven, and (2) the financial ability of the accused to provide the required amount of bail. Samm, 893 N.E.2d at 766 (quotations omitted). The amount of bail is within the sound discretion of the trial court and will be reversed only for an abuse of discretion. Johnson v. State, 114 N.E.3d 908, 910 (Ind.Ct.App. 2018).
[¶23] Here, the current charges stemmed from an alleged ongoing and large-scale scheme to monetarily benefit Noel and his family at taxpayer expense, evincing, as the State put it, "an obvious ability to pay that amount." Appellee's Brief at 14. We further agree with the State that the type and nature of the charges is an indication "that Noel does not take his public promises and the laws of the State (that he previously was sworn to enforce) seriously," thereby affecting the likelihood of nonappearance. Appellee's Brief at 14. These considerations, combined with the number of charged offenses and possible penalties and the "unique" nature of the case, convince us that the trial court's decision to set bond at $75,000 in order to curtail or limit the risk of nonappearance was not an abuse of discretion. Transcript at 28.
[¶24] As to the conditions of Noel's bond, I.C. § 35-33-8-3.2 governs the conditions that a trial court can impose when ordering bail. It provides, in part, that after considering the results of the [IRAS] and "other relevant factors," a trial court may admit a defendant to bail and impose any of a number of specified conditions "to assure the defendant's appearance at any stage of the legal proceedings," including requiring the defendant to execute a surety or cash bond or restrict the defendant's activities, movements, or residence. I.C. § 35-33-8-3.2(a)(1), (3). Notably, the statute includes a catch-all clause that allows a trial court to "[i]mpose any other reasonable restrictions designed to assure the defendant's presence in court[.]" I.C. § 35-33-8-3.2(a)(10).
[¶25] Noel suggests that the conditions of his bond - requiring surrender of his passport and all but one firearm and precluding out-of-state travel without permission - were "unreasonable" and should be reversed. Appellant's Brief at 13, 22. We are unpersuaded for several reasons.
[¶26] Initially, we observe that, not only did Noel voice no objection or challenge to any of the conditions at the initial hearing, he offered to provide his passport to the court. Further, as to both the passport and restrictions on travel, Noel makes no specific challenge to those conditions on appeal other than generally stating that they were unreasonable. Having failed to present cogent argument or authority in support, his claims are thus waived. Ind. Appellate Rule 46(A)(8).
[¶27] Noel's challenge to the surrendering of firearms is likewise quite general and presented in conjunction with his claims that he should not have been required to post a bond at all, i.e., not explaining why the particular condition was unreasonable. His argument is that there was nothing before the court to indicate that he was a danger to the physical safety of another person in the community other than his legal possession of firearms. Here, the trial court did not indicate that it was requiring the surrender of weapons because it found that Noel presented a danger to himself or the community. Indeed, the court may have required the surrender because he deemed Noel a flight risk and determined that the surrender of a "multitude" of firearms would assure his appearance in court. Transcript at 13. We are unwilling to speculate on the reasoning and conclude that, on the recognized "unique" nature of this case, the decision to turn over all firearms other than one for personal protection, was not an abuse of discretion. Id. at 28.
[¶28] Affirmed.
Bradford, J. and Felix, J., concur.