Tavitas, J.
Sierra M. DeWees appeals from the denial of her motion for bond reduction or conditional pre-trial release. Indiana Criminal Rule 26 warrants that, where a qualifying arrestee does not present a substantial risk of flight or danger to self or others, a trial court should release the arrestee without money bail or surety subject to such restrictions and conditions as determined by the court. Moreover, our Indiana Code provides that, in setting the amount of bail or deciding whether to grant conditional pre-trial release, trial courts must consider all facts relevant to the risk of a defendant’s failure to appear, including factors enumerated in Indiana Code Section 35-33-8-4(b). The Indiana Code further provides that, when the defendant presents additional evidence of substantial mitigating factors, based on Indiana Code Section 35-33-8-4(b), that reasonably suggests that the defendant recognizes the trial court’s authority to bring the defendant to trial, the trial court may reduce bail or grant conditional pre-trial release, unless the court finds by clear and convincing evidence that, among other things, the defendant poses a risk to the physical safety of another person or the community. Because we find no support for the trial court’s finding that DeWees posed a risk to the physical safety of the alleged victim, we reverse and remand.
The sole issue on appeal is whether the trial court abused its discretion in denying DeWees’ motion for bond reduction or conditional pre-trial release.
…
Dewees argues that the trial court erred in denying her motion for reduction of bond and/or conditional pre-trial release. The amount of bond is within the discretion of the trial court and will be reversed on appeal only for an abuse of that discretion.
…
The Indiana Constitution prohibits excessive bail. Ind. Const. art. 1, § 16. “The object of bail is not to effect punishment in advance of conviction.” Samm v. State, 893 N.E.2d 761, 766 (Ind. Ct. App. 2008). “Rather, it is to ensure the presence of the accused when required without the hardship of incarceration before guilt has been proved and while the presumption of innocence is to be given effect.”
…
In support of her claim, DeWees relies upon Yeager v. State, 148 N.E.3d 1025 (Ind. Ct. App. 2020), and maintains that DeWees and Yeager “are nearly similarly situated and should be treated the same.” DeWees’ Br. p. 16. In Yeager, after Yeager’s arrest for multiple felonies relating to child battery, the trial court set a $250,000.00 cash bail. Yeager filed a motion to reduce bail, which was denied despite a county official’s recommendation that Yeager presented no flight risk and was eligible for placement on electronic monitoring. The trial court denied the motion notwithstanding Yeager’s: (1) nominal criminal history, comprised only of a charge of underage drinking fifteen years earlier; (2) steady, long-term housing, employment, familial ties, and relationships in the community; (3) willingness to pay for electronic monitoring; and (4) pledge to honor the no-contact order regarding the victim. The trial court also overlooked Yeager’s parents’ assurances that they would ensure that Yeager would appear in court. In reversing on appeal, this Court found that the trial court abused its discretion in denying the motion to reduce bail because Yeager presented evidence of substantial mitigating factors that showed his recognition of the court’s authority to bring him to trial; and the State presented no valid evidence that Yeager posed a risk to the victim or the community
Here, the trial court found: (1) “primarily because of Mullins’ testimony[,]” that the State had proved, by clear and convincing evidence, that DeWees posed a risk to Mullins’ physical safety; and (2) Yeager was not controlling “due to [DeWees] having a higher IRAS score, living a farther distance from the community, [and] being charged with a more serious crime. . . .” See DeWees’ App. Vol. II pp. 50, 51; see I.C. § 35-38-8-5(c). We cannot agree and are perplexed by the discordance between the trial court’s order and the relevant facts.
As an initial matter, we observe that Indiana Criminal Rule 26(B) requires a trial court to use the pre-trial IRAS risk assessment (“IRAS-PAT”) “and such other information as the court finds relevant” in determining whether an arrestee “presents a substantial risk of flight or danger to self or other persons or to the public.” The pre-trial IRAS-PAT scale rates persons earning a score of zero to two points as having, among other things, a “low” risk of failure to appear. A score of three to five points reflects a “moderate” risk of failure to appear; and a score of six or more reflects a “high” risk of failure to appear. DeWees’ App. Vol. II pp. 18, 19. Here, DeWees was assessed an IRAS-PAT score of four.
We take issue with the assessment of two points to DeWees for her unemployed status. Taking at face value DeWees’ testimony that: (1) she was a full-time high school student at the time of her arrest; and (2) she was technically employed at the time of her arrest, but that her babysitting and bouncehouse rental jobs fizzled due to the ongoing coronavirus pandemic, we find the assessment of two points for DeWees’ unemployed status to be unreasonable and deem an “adjusted” IRAS-PAT score of two points to be more appropriate here.
Next, we will consider the pertinent9 Indiana Code Section 35-33-8-4(b) factors in turn…The circumstances here are starkly similar to those in Yeager. After Putnam County pre-approved DeWees for home detention with electronic home monitoring, the trial court denied DeWees’ motion for bond reduction or conditional pre-trial release notwithstanding: (1) DeWees’ lack of any criminal history; (2) DeWees’ long-term residency, familial ties, and relationships near Clay County; (3) Melinda’s willingness to pay for electronic monitoring; (4) DeWees’ pledge to honor the no-contact order in effect as to Mullins; and (5) Melinda’s commitment to ensure that DeWees would appear and abide by all court-ordered conditions. As in Yeager, our review of the record leads us to conclude that DeWees presented additional evidence of substantial mitigating factors, based on Indiana Code Section 35-33-8-4(b) factors, that reasonably suggested that DeWees recognized the trial court’s authority to bring her to trial; nonetheless, the trial court denied her motion for reduction of bond or conditional pre-trial release, citing the risk that DeWees posed to Mullins.
With respect to the trial court’s finding that DeWees posed a risk to Mullins’ physical safety, we have scoured the record for evidentiary support but have been left wanting. The record reveals only that: (1) the trial court “t[ook] judicial notice that Fillmore is about 25 miles from Brazil, Indiana[,] and about 29 miles from [ ] Mullins’ home[,]” see DeWees’ App. Vol. II p. 50; and (2) Mullins testified that the attempted robbery frightened and disturbed him. See Tr. Vol. II p. 15 (Mullins’ testimony that “[he is] 67 years old. [He] sleep[s] with two guns, one on each side of [him]. [He’s] [w]orried about someone trying to break in again.”).
Although we are sympathetic to Mullins’ distress, Mullins’ testimony that he remains in a fearful state cannot, standing alone, sustain the the trial court’s finding that DeWees poses a risk to Mullins’ physical safety. We decline to find, as the trial court did, that Mullins’ testimony sufficed to establish, by clear and convincing evidence, that DeWees posed a risk to Mullins’ physical safety.
We do not reach this conclusion lightly, but are compelled to do so based on discrete facts within the record. First, the record is clear that Mullins was already in the habit of sleeping with a gun on or near his person before the incident. This fact moderates the weight we afford to Mullins’ testimony that fear prompted him to sleep with two guns following the incident. Next, it is undisputed that, of the four participants in the attempted robbery, only DeWees remained outside Mullins’ residence. Mullins, thus, had no interaction whatsoever with DeWees. Additionally, we find, as a whole, that Mullins’ hearing testimony illustrates his understandable anger and desire for justice more than it reflects that Mullins perceives a genuine threat to his physical safety from DeWees. Lastly, the record on appeal reveals that the State granted conditional pretrial release on home detention to Braun, who actually breached Mullins’ residence, possibly wielding a firearm, and was shot by Mullins. 10 Braun was granted latitude in the form of a home detention placement in Marion County.
In light of our consideration of the Indiana Code Section 35-33-8-4(b) factors, DeWees’ adjusted pre-trial IRAS-PAT score, the trial court’s inordinate reliance on Mullins’ testimony, and the dearth of evidence indicating that DeWees posed a substantial risk to Mullins’ physical safety, we find that the trial court’s denial of DeWees’ motion for reduction of bond or conditional pretrial release is against the logic and effect of the facts and circumstances before the trial court. Thus, we conclude that the trial court abused its discretion. Accordingly, we reverse and remand with instructions to the trial court to order DeWees to remain11 released to home detention with GPS monitoring, subject to additional conditions as determined by the trial court that comport with our decision.
In light of our opinion, and notwithstanding Indiana Appellate Rule 65(E), this opinion is effective immediately; the trial court need not await a certification of this opinion by the Clerk of Courts before ordering that DeWees should remain released to pretrial supervision on home detention with electronic monitoring. See Ind. Appellate Rule 1 (“The Court may, upon the motion of a party or the Court’s own motion, permit deviation from these Rules.”); see also Town of Ellettsville v. Despirito, 87 N.E.3d 9, 12 (Ind. 2017) (making opinion effective immediately notwithstanding Appellate Rule 65).
The trial court abused its discretion in denying DeWees’ motion for bond reduction or conditional pre-trial release. We reverse and remand.
Reversed and remanded with instructions.
Bailey, J., and Robb, J., concur.