Bond/Detention of Defendant Upon Plea

 To: Criminal Bar

From: Marilyn K. Haan, Assistant Presiding Judge

Date: 6/24/2021

Re: Bond/Detention of Defendant Upon Plea

There still seems to be confusion about what happens to a defendant when they plead guilty. For reference, please see RCW 10.64.025 as follows (as well as see State v. French, 88 Wash. App 586, 945 P.2d 752 (Div 2 1997) and CrR3.2:

RCW 10.64.025

Detention of defendant.

(1) A defendant who has been found guilty of a felony and is awaiting sentencing shall be detained unless the court finds by clear and convincing evidence that the defendant is not likely to flee or to pose a danger to the safety of any other person or the community if released. Any bail bond that was posted on behalf of a defendant shall, upon the defendant's conviction, be exonerated.

(2) A defendant who has been found guilty of one of the following offenses shall be detained pending sentencing: Rape in the first or second degree (RCW 9A.44.040 and 9A.44.050); rape of a child in the first, second, or third degree (RCW 9A.44.073, 9A.44.076, and 9A.44.079); child molestation in the first, second, or third degree (RCW 9A.44.083, 9A.44.086, and 9A.44.089); sexual misconduct with a minor in the first or second degree (RCW 9A.44.093 and 9A.44.096); indecent liberties (RCW 9A.44.100); incest (RCW 9A.64.020); luring (RCW 9A.40.090); human trafficking in the first or second degree (RCW 9A.40.100); promoting commercial sexual abuse of a minor (RCW 9.68A.101); any class A or B felony that is a sexually motivated offense as defined in RCW 9.94A.030; a felony violation of RCW 9.68A.090; or any offense that is, under chapter 9A.28 RCW, a criminal attempt, solicitation, or conspiracy to commit one of those offenses.

As you can see by the statute, if convicted of a felony (not to include paragraph 2 of the statute, as that is a mandatory custody), there is a standard of "clear and convincing evidence that the defendant is not likely to flee or to pose a danger to the safety of any other person or the community if released." Further, any bail that had been posted is "exonerated".

So with that, if there is a request to have the Defendant remain out of custody, then the issue of bond or possible personal recognizance release has to be readdressed at the time of a plea, or the defendant will be taken into custody. Historically the court has usually allowed a defendant, not always, to file with the Clerk a "rider bond", whereby the bondsman guarantees their promise to still stand by their bond previously set, until sentencing occurs. The term "rider bond" is a local term we are working to not use as it has no legal meaning, but the obligation for the possibility of bond does not go away simply because we no longer use the term "rider bond".

Thus, please be aware of this issue and be prepared to address bond upon the plea of your client. If you like, be proactive and get a bondsman's promise to stand by their current bond and bring the document to court on the day of the plea – but that is not intended to be a guarantee that will be accepted by the judicial officer to meet the requirement outlined in the statute.