COMMONWEALTH OF KENTUCKY

28TH JUDICIAL CIRCUIT

PULASKI CIRCUIT COURT

DIVISION 2

INDICTMENT NO. XXXXXX

COMMONWEALTH OF KENTUCKY, PLAINTIFF,

VS MOTION TO MODIFY/REDUCE BOND

XXXXXX, DEFENDANT.

***** ***** ***** ***** *****

Now comes XXXXXX, through counsel, pursuant to the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution; Sections 2, 3, 11, 16, 17 and 26 of the Kentucky Constitution; KRS 431.520; KRS 431.525; R.Cr. 4.00 et. seq.; Abraham v Commonwealth, Ky. App., 565 S.W.2d 152 (1977); Marcum v Broughton, Ky., 442 S.W.2d 307 (1969); Long v Hamilton, Ky., 467 S.W.2d 139 (1971); and the other authorities cited below, and moves the Court for an Order modifying XXXXXXXX bond from the present amount of $50,000.00–cash to allow the accused to be released on his own recognizance. In support of this motion, XXXXXXX states as follows:

1. R.Cr. 4.16 states: “The amount of bail shall be sufficient to insure compliance with the conditions of pre-trial release set by the court. Is shall not be oppressive and shall be commensurate with the gravity of the offense charged. In determining the amount the court shall consider the defendant’s past criminal acts, if any, his reasonably anticipated conduct if released and his financial ability to give bail.” The question in this case is not whether the accused should have a bond set. That question has already been answered in the affirmative. The questions is what bond is sufficient to guarantee the Accused’s return to court to face the charges and what non-financial conditions, if any, should be attached to his bond to insure the safety of the community in the interim.

2. There is simply no way that the Defendant can post bond in the amount that has been set given his limited resources. The Defendant is currently earning no income from his employment because of his incarceration awaiting trial.

3. XXXXXX is a native of this Commonwealth, specifically Pulaski County, where he and his family have lived for many years.

4. He received a “low risk” finding on his pretrial release form; the most favorable finding possible.

5. XXXXXXX has never been convicted of any felony and, with the exception of these allegations and the totality of the facts which surround them, has led an commendable life. His only convictions are for a misdemeanor assault in 2005 and for possessing an open container of alcohol in a motor vehicle in 2006.

6. He is charged with the current offenses based on events which are alleged to have taken place in December 2006. The discovery from the Commonwealth shows conclusively that XXXXXX was not home during the time his wife and son were engaging in the criminal conduct charged and there is no proof offered in the discovery to prove XXXXXX knew what was transpiring at his home nor that he actively or passively took part in that conduct.

7. XXXXXX, despite being arrested in December XXXX and facing these charges for some months now without further incident. He has never missed a court appearance. He has counsel who have represented, and continue to represent, his interests vigorously. He certainly is entitled to the benefit of any doubt there might be with regard to the issue of his future re-appearance.

8. Further, XXXXXX is well aware that his failure to re-appear as directed could result in him being charged with another felony. KRS 520.070.

9. XXXXXX owns no real property which could be used to satisfy the bond as it is currently set. He has tried to locate other real property which could be used to satisfy conditions of bond but his efforts have proven unsuccessful. In addition, he has no financial resources to speak of which could be used to make the current bond.

10. Additionally, the amount of bond in this case, and in similar cases in this jurisdiction over the course of the last 12-24 months, makes it appear that the amount of bond is being set for the purpose of preventing the Defendant from being released from jail pending final disposition of the charge against him. Such action is unlawful. See, Stack v Boyle, 342 U.S. 1 (1951).

11. The presumption of innocence is basic to our system of justice and excessive bond denies the accused this presumption. "The law favors the release of defendants pending a determination of guilt or innocence." ABA Standard Relating to Pretrial Release (Approved Draft, 1968), Standard 1.1. "Deprivation of liberty pending trial is harsh and oppressive in that it subjects persons whose guilt has not yet been judicially established to economic and psychological hardship, interferes with their ability to defend themselves and in many cases deprives their families of support." Id. It also denies him the opportunity to be employed and diminishes his opportunity to cooperate with his attorney in preparing his defense.

12. According to the case law cited above, as well as the criminal rules, the amount of bond shall be:

A. Sufficient to insure compliance with conditions of release

-pretrial release officer’s assessment must be considered and weighed. R.Cr. 4.10)

B. Not oppressive

-bond as set, is oppressive

-cannot be used to punish the accused (Long)

C. Commensurate with the nature of the offense charged

-(R.Cr. 4.16 “gravity”)

D. Considerate of the accused’s past criminal acts

-prior record being of minor consequence weighs in favor of ROR

E. Considerate of the reasonably anticipated conduct of the accused if released

-risk of flight

-ties to the community

-age, birth place, family, employment, schooling, residences, counsel

-not a fugitive when arrested

-no intent to flee

-If there is no indication of flight, a finding against an ROR or an unsecured bond is contraindicated

F. Considerate of the financial ability of the accused

-(R.Cr. 4.16, “financial ability to give bail”)

-Being “considerate of a defendant’s financial ability means

that courts should set bond commensurate with that ability

13. The Defendant states that a recognizance bond is more than sufficient to afford this Court an absolute assurance that he will present himself at each and every required court appearance, which is the purpose of bond or other conditions of pre-trial release.

If this motion is denied, the Defendant moves the Court to schedule an adversary hearing, pursuant to Criminal Rule 4.40(1) forthwith.

Respectfully submitted,

ROBERT E. NORFLEET

LAW OFFICES OF ROBERT E. NORFLEET

207 West Mt. Vernon Street

Suite 111

Somerset, Kentucky 42501

(606) 679-1550 (o) (606) 679-1513 (f)

Counsel for XXXXXX

NOTICE OF HEARING

CERTIFICATE OF SERVICE