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October 24, 1989


The opinion of the court was delivered by: Richard Mills, District Judge:


Habeas corpus.

Petitioner — an ex-lawyer — is currently appealing a state court ruling denying his motion to withdraw his guilty plea.*fn1

The state court denied Petitioner's request that he be released on bond pending appeal and it is this ruling he now brings before us.

I — Facts

Price is a former member of the bar of this Court and was charged in Peoria County circuit court with forgery. Ill.Rev.Stat. ch. 38, ¶ 17-1. Specifically, Attorney Price signed clients' names to settlement checks and then deposited those checks into his account. On January 3, 1989, he pled guilty but mentally ill to four of the counts he was charged with.

Price was represented by Mr. Thomas Penn, the Peoria County Public Defender, and a hearing was scheduled in state court on November 12, 1987. Mr. Penn was unable to attend this hearing and, as was his usual practice, asked an assistant public defender to cover for him. The assistant, Mr. Kevin Lyons, appeared at the hearing on behalf of Price. At this hearing, Price was arraigned on additional charges, a misdemeanor charge was dropped, and the judge allowed a motion by the state to take handwriting exemplars from Price. This motion was not contested by the defense.

On February 24, 1989, Price was sentenced to six years of incarceration. He then moved to withdraw his guilty plea and was released from custody for four days (April 6-10, 1989) to secure evidence on his behalf. On May 26, 1989, Price's motion to vacate his guilty plea was denied as was his oral motion for bond pending appeal.

Price then filed an application for stay of sentence and appeal bond with the Appellate Court of Illinois, Third District. Due to a backlog of cases in the Third District, the Supreme Court of Illinois transferred Price's appeal to the Appellate Court for the Fourth District which promptly denied his application for appeal bond. This denial was subsequently affirmed by the state supreme court. Price has now turned to the federal courts for a remedy.

II — Exhaustion of State Remedies

III — Habeas Corpus Relief

It is an open question whether an individual has a constitutional right to bail. Illinois specifically provides for the release of some defendants pending their appeals. Ill.Rev.Stat. ch. 38, ¶ 110-7(d), ch. 110A, ¶ 609(b). Whatever the merits of the arguments concerning a right to bail, it is clear that when a state has provided for bail pending appeal, an arbitrary denial of bail violates the due process clause of the fourteenth amendment. United States ex rel. Walker v. Twomey, 484 F.2d 874, 875 (7th Cir. 1973). One district court, in considering the standard a federal court should apply in reviewing a state court's denial of an appeal bond, has stated:

    The grant or denial of bail pending appeal is a matter of
  judicial discretion to be determined after consideration of
  all of the pertinent circumstances, and accordingly, we are
  prohibited from substituting our judgment for that of the
  state court, unless it clearly appears that the state court's
  action was wholly beyond the range within which judgment
  could rationally differ regarding the particular facts in a
  given situation.

United States ex rel. Rainwater v. Morris, 411 F. Supp. 1252, 1255 (N.D.Ill. 1976). Any other rule "would authorize an unwarranted and unconstitutional encroachment upon the prerogatives of the states in the due administration of their process of criminal justice." Simon v. Woodson, 454 F.2d 161, 165 (5th Cir. 1972).

The Seventh Circuit in Twomey identified three factors a district court should consider in ruling on a request for an appeal bond. Those factors are: (1) the risk of flight, (2) the probability the convicted person will pose a danger to the community; and (3) the lack of merit in the appeal.*fn2 Twomey, 484 F.2d at 875. Any one or a combination of these factors may justify denial of release. Id. In addition, the seriousness of the crime and severity of the sentence are also factors which constitute a rational basis for denying an appeal bond. United States ex rel. Sampson v. Brewer, 593 F.2d 798, 799 (7th Cir.), cert. denied, 444 U.S. 877, 100 S.Ct. 162, 62 L.Ed.2d 106 (1979). With these considerations in mind, we now turn to the merits of the case at bar.

Petitioner argues that the state court has expressly recognized that he is not a risk of flight nor a danger to the community. In support of this argument, he cites the order of the circuit court which released him for four days prior to the hearing on his motion to withdraw his guilty plea. Petitioner opines that this ...

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