State of Connecticut v. Ralph Biedermann (2013)

MEMORANDUM OF DECISION RE MOTION TO SET BAIL BOND PENDING APPEAL

The defendant, Ralph Biedermann, pursuant to Connecticut Practice Book § 43–2, and Connecticut General Statutes §§ 54–63f ¹ and 54–95, has moved this court to set a bond pending appeal.   The court held a hearing on the defendant's motion and the state's objection thereto on October 11, 2013.

BACKGROUND

On February 19, 2013, after a jury trial, the defendant was convicted of criminal attempt to commit assault in the first degree in violation of C.G.S. § 53a–59(a)(1), risk of injury to a minor in violation of C.G.S. § 53–21(a)(1), unlawful restraint in the first degree in violation of C.G.S. § 53a–95, and strangulation in the second degree in violation of C.G.S. § 53a–64bb.   This court imposed a $500,000 bond and ordered a PSI to be completed.   On April 30, 2013, this court sentenced the defendant to a total effective sentence of twenty years to serve followed by five years of special parole.   The defendant thereafter filed an appeal, which is currently pending at the Appellate Court, docket number A.C. 35654.   The defendant moves this court to set an appellate real estate bond.

DISCUSSION

Legal standard

There is no constitutional entitlement to bail pending appeal, either under the federal constitution, or under article first, § 8 of the Connecticut Constitution.   See Roberson v. Connecticut, 501 F.2d 305, 308 (2d Cir.1974);  State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970) (noting postconviction bail “is entirely disassociated from the preconviction presumption of innocence”).   However, although there is no constitutional entitlement to bail pending appeal, there is a common-law principle in Connecticut that a judge of the Superior Court has the discretion to consider the defendant-appellant's eligibility for post-conviction bail.  State v. McCahill, 261 Conn. 492, 511–12, 803 A.2d 901 (2002).

“The power to admit to bail after conviction is not a statutory but a common-law power ․ bail is then a matter of absolute discretion, to be exercised by the court, however, with great caution, and rarely to be allowed when the crime is serious.   But the power to admit to bail is inherent in the court so long as the prison is in its custody;  that is, until he is taken in execution.   (Emphasis altered.)”  State v. McCahill, supra, at 511, citing and quoting State v. Vaughn, 71 Conn. 457, 42 A. 640 (1899).   The Supreme Court in McCahill referred to this power as “anciently derived” and said “[i]t is manifest ․ that the judicial branch has long had the power to submit a defendant to bail following conviction.   This power has existed in the judicial branch since the earliest days of Connecticut's statehood and even before.”   Id., at 510, 512.   The Supreme Court has “never departed from the principles announced in Vaughan.”  Id., at 512.

Juxtaposed to this manifest and anciently derived power that the Supreme Court has never departed from is the defendant's motion, which is completely devoid of citations to any legal authority, underscoring the discretionary nature of what he is asking from this court.²

The court must, therefore, first consider post-conviction bond against the standard of whether custody of the defendant is necessary to provide reasonable assurance of the defendant's appearance in court, as such a finding removes the court's discretion to authorize a release pursuant to an appeal bond.   General Statutes § 54–63f.   Thereafter, the court must weigh any additional relevant considerations arising from the defendant's release into the community, including but not limited to, whether the public's safety could be compromised, the length of the defendant's sentence,³ and the strength of the state's case.   With these standards in mind, the court considered the following factors in the context of the defendant's convictions in the present matter, his criminal history and his conduct while on pretrial release in this matter.

Present Convictions

The jury found the defendant guilty of four felonies, all of which are in the nature of domestic violence involving physical violence.   He attempted to assault his wife and strangle her with a power cord from a laptop and also strangled her with his hands in the presence of his minor child.   This attempted assault and strangulation was sufficient to leave marks on her neck and also subjected their two-year-old son to the trauma of witnessing his parents physically struggling before him, as evidenced by his screaming, which can be heard in the background during the 911 call.   During the trial and other hearings, it was established through testimony that there were many other incidences of physical violence not only toward the victim in this case, but at least toward two other women.   There was also evidence that the defendant's physical violence was escalating, which culminated in the underlying attack, arrest and convictions.

Criminal History

The defendant's criminal history relates to his risk to the victims and to public safety.   He has a history of violence, particularly toward women, even though these are his first felony convictions.   The defendant does have convictions for reckless endangerment and disorderly conduct.   The offenses and resulting convictions cause this court significant concern for the safety of the victims, Ms. Cornelius and her child, and the community at large, particularly for women.

Pretrial Conduct

The defendant was less than compliant while on pretrial release and there were many incidences where he violated the terms of his release.   For example, driving by his son's preschool, despite a court order not to go to the child's daycare.   He also violated his curfew by going to Vermont and failing to return.   He has considerable assets at his disposal as indicated by the large cash bond that was posted during the pendency of this case and the court has heightened concern that now that he has been sentenced, he may abscond to Vermont or to other jurisdictions.   The defendant has shown absolutely no remorse for his conduct and continued to display lack of respect for the court and the proceedings throughout the trial and other hearings.

Analysis

The defendant's offenses are extremely serious.   His actions involved serious assaultive conduct with his then-wife, while their child was present.   The court has heightened concerns, informed in particular by the defendant's pretrial conduct, of his post-conviction appearance in court.   The state's case and the evidence against the defendant were strong.   The motion for appeal bond gives no indication of the issues to be raised on appeal but during oral argument the defendant's attorney informed this court of the two bases for the appeal.   Ultimately, the appellate claims remain within the realm of the Appellate Court and this court will not speculate as to the relative merits of the appeal.   Additionally, Mr. Biedermann's conduct and his attitude raise a significant concern to the court for the safety of the victims and of society at large.   Even though the defendant has the support of his neighbor, friends and clients, it does not vitiate his assaultive actions, the court's concern for Ms. Cornelius and her child, and society's safety.

CONCLUSION

The Court has reviewed all of the facts presented, including statements of the victim, the offender's neighbor and finds that the custody of the offender is necessary to provide reasonable assurance of his appearance in court, and for the protection of the victims and of the community at large.   Therefore, the offender's motion to set bail pending appeal is DENIED.

Kwak, J.

FOOTNOTES

FN1. General Statutes § 54–63f in relevant part indicates that a defendant appealing from the judgment of conviction “may be released pending final disposition of the case, unless the court finds custody to be necessary to provide reasonable assurance of such person's appearance in court ․” (Emphasis added.).  FN1. General Statutes § 54–63f in relevant part indicates that a defendant appealing from the judgment of conviction “may be released pending final disposition of the case, unless the court finds custody to be necessary to provide reasonable assurance of such person's appearance in court ․” (Emphasis added.)

FN2. The offender filed in support of his motion for appeal bond a letter from Dawn Pierce, who purports to be a neighbor of Mr. Biedermann and who feels that he is not a danger to herself or to anyone else.   Accompanying the letter are 75 signatures purportedly from his friends, associates and customers, who believe the offender does not present a danger to the public.   However, the court does not find these signatures persuasive because these signatures have not been authenticated.   Even if they were authenticated, there is no indication that they have any information as to the underlying case and the facts surrounding the arrest and conviction..  FN2. The offender filed in support of his motion for appeal bond a letter from Dawn Pierce, who purports to be a neighbor of Mr. Biedermann and who feels that he is not a danger to herself or to anyone else.   Accompanying the letter are 75 signatures purportedly from his friends, associates and customers, who believe the offender does not present a danger to the public.   However, the court does not find these signatures persuasive because these signatures have not been authenticated.   Even if they were authenticated, there is no indication that they have any information as to the underlying case and the facts surrounding the arrest and conviction.

FN3. See State v. McCahill, 261 Conn. 492, 512–13, 803 A.2d 910 (2002) (discussing concerns in cases involving short sentences and virtual impossibility of having appeal decided prior to sentence being fully executed)..  FN3. See State v. McCahill, 261 Conn. 492, 512–13, 803 A.2d 910 (2002) (discussing concerns in cases involving short sentences and virtual impossibility of having appeal decided prior to sentence being fully executed).

Kwak, Hunchu, J.