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David Fischer v. Superintendent

April 20, 2012


The opinion of the court was delivered by: Hicks, J.

a.m. on the morning of their release. The direct address of the court's home page is:

Argued: February 9, 2012

The petitioner, David Fischer, appeals orders of the Superior Court (Brown and Wageling, JJ.) on his motions for pretrial bail, claiming that the court delegated authority to Strafford County Community Corrections (SCCC), which is managed by the respondent, Superintendent, Strafford County House of Corrections, and part of the executive branch, in violation of the separation of powers doctrine. We affirm.

The following facts are either undisputed or supported in the record. On February 19, 2010, the petitioner was arrested on charges of second degree assault, a class B felony, see RSA 631:2 (Supp. 2011), and six related misdemeanors. Bail was set by the Dover District Court (Cappiello, J.) at $75,000 cash, subject to certain conditions, including, if the petitioner posted bail, supervision by SCCC with a sobrietor, GPS monitoring, and a mental health referral. Bail was continued by the Court (Weaver, J.) on March 5, 2010.

The petitioner filed a motion in superior court for an amendment of bail, arguing that $75,000 cash bail was excessive and that he was entitled to personal recognizance (PR) bail, pursuant to RSA 597:2 (Supp. 2011). He proposed that he would reside with his mother in Rochester.

Following a hearing on May 3, the Court (Brown, J.) ordered that bail would "remain as is" at $75,000 cash with the stated conditions, and scheduled a further hearing. Judge Brown issued an amended order on May 6, lowering the cash bail to $50,000 and setting conditions, if bail was posted, including that the petitioner: (1) "live at: his mother's house on house arrest to leave for mental health counseling only"; (2) refrain from using drugs and alcohol and "[s]ubmit to random drug [and] alcohol tests"; and (3) be "supervised [and] electronically monitored by SCCC [with] GPS, Sobrietor [and] Mental Health Refera[l]."

On June 1, Judge Brown again ruled that bail would remain as is and ordered a further hearing at a time the defendant's therapist would be available to testify. At that subsequent hearing, on June 15, Judge Brown ruled as follows from the bench:

What we're going to do, Mr. Fischer, is that it's going to stay at 50,000 cash to convert to personal recognizance upon verification of residence, which I don't think is going to be a problem because it's your mother's residence, and confirmation of an existing and ongoing mental health and medical appointments.

So you'll be released on a GPS[,] Sobrietor, administrative home confinement, basically house arrest. You'll be able to leave the residence for mental health, medical, consult with counsel, and meeting with [SCCC]. But other than those - unless counsel sees any other exceptions, I'll listen to that, but those are the only exceptions, and no contact with the victim.

The written order of same date stated that bail was set at $50,000 cash "[t]o convert to PR if found accep[table] by SCCC - Whether Bail is Posted or Converted all conditions apply." (Capitalization omitted.) Those conditions included supervision by SCCC "upon verification of address," refraining from drugs and alcohol, and submission to random drug and alcohol testing.

For reasons the parties disputed, but which are unnecessary to recount here, placement of the petitioner with his mother became infeasible. The petitioner moved to amend his bail conditions, proposing to live at a certain residence in Massachusetts. The State objected and the motion was denied without a hearing on July 7, 2010. On August 25, the petitioner moved for a bail hearing, this time proposing to reside in Rochester. The State again objected and the matter was heard by Judge Wageling on September 1.

At the hearing, the petitioner alleged that SCCC was being unreasonable in repeatedly finding his proposed residences inappropriate. His counsel argued that SCCC "doesn't have the authority to decide bail conditions, and this Court can order that he be monitored by [SCCC] with the conditions set by Judge Brown." Judge Wageling denied the motion, stating, in part, that she would intervene if SCCC were shown to be violating its own policies. She stated further, "Otherwise, I'm going to leave it to [SCCC's] discretion to apply their rules. It's the separation of powers doctrine, as far as I'm concerned."

At least one additional pre-trial motion by the petitioner to amend bail was denied, and, although the record does not indicate the entire disposition at trial, it appears that the petitioner was convicted on at least one felony charge. A post-verdict bail hearing was held before Judge Brown on December 9, 2010. The court declined to modify bail, stating from the bench:

I am not going to exercise my discretion and order [SCCC] to do anything. I have a bail order that's been in place since June 15th, ...

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