Big Louie Bail Bonds, LLC v. State

Decision Date23 October 2013
Docket NumberSept. Term, 2012.,No. 31,31
Citation435 Md. 398,78 A.3d 387
PartiesBIG LOUIE BAIL BONDS, LLC v. STATE of Maryland, et al.
CourtMaryland Court of Appeals

OPINION TEXT STARTS HERE

Erin Murphy and Andrew C. White (Silverman, Thompson, Slutkin & White, PA, Baltimore, MD), on brief, for petitioner.

Beatrice Nunez–Bellamy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, and Julia Doyle Bernhardt, Asst. Atty. Gen., Baltimore, MD), on brief, for respondents.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and BELL *, JJ.

BELL, C.J. (Retired).

The issue in these ten consolidated cases is whether a bondsman's bond liability should be discharged when a defendant who has been deported by Immigration and Customs Enforcement (“I.C.E.”) fails to appear in court for trial. The Circuit Court for Baltimore County, based on the information contained in the defendants' Initial Appearance documents, determined that the posted bail bond is properly forfeited when the bail bondsmen knows, or should know, that a defendant is subject to deportation and, as a result, the defendant is deported and fails to appear for trial.

In 2010 and 2011, in separate cases, the defendants 1 were arrested and detained in the Baltimore County Detention Center. For nine of the ten defendants 2, the Initial Appearance documents, which are prepared by District Court Commissioners and made available to sureties for review before they post bond for a defendant, indicated that the defendants were in the country illegally or had an I.C.E. detainer filed against him.3 The appellant, Big Louie Bail Bonds, LLC (“Big Louie”), reviewed the information contained in the defendants' Initial Appearance documents and, acting as surety insurer for Banker's Insurance Company, posted bail bonds for all of the defendants, except for Luis Alonzo Bautista Lopez.4 By executing the bail bond, the appellant accepted its conditions and terms:

“THE CONDITION OF THIS BOND IS that the Defendant personally appear, as required, in any court in which the charges are pending, or in which a charging document may be filed based on the same acts or transactions, or to which action may be transferred, removed, or, if from the District Court, appealed.

“If, however, the Defendant fails to perform the foregoing condition, this bond shall be forfeited forthwith for payment of the above penalty sum in accordance with law.

“IT IS AGREED AND UNDERSTOOD that this bond shall continue in full force and effect until discharged pursuant of Rule 4–217.”

After the bonds were posted, but before the defendants were released from the detention center, the defendants were taken into federal custody by I.C.E. The defendants subsequently failed to appear for trial, as a result of which the trial court forfeited the bail bond in each case.5 The appellant filed a petition pursuant to Md. Rule 4–217(i)(2), 6 in which it asked the District Court to strike the forfeitures. The appellant argued before that court that the defendants' deportation was “an act of law,” that made it impossible for the defendants to appear in court. The District Court disagreed. It denied the petitions, stating that the appellant knew, or should have known, that the defendants were subject to deportation when it posted the bonds.

In each of the cases,7 Big Louie noted an appeal to the Circuit Court for Baltimore County and also filed in that court Amended Petitions to Strike Forfeiture and Release Bond. Attached to nine of the ten amended petitions,8 albeit not supported by affidavit, was a letter or other document from I.C.E. indicating that each defendant had been deported. 9

A hearing on seven of the amended petitions 10 was held on February 27, 2012, before Judge Norman. The appellant, citing Professional Bail Bonds, Inc. v. State of Maryland, 185 Md.App. 226, 968 A.2d 1136 (2009), argued that the proper focus in determining whether a bond forfeiture should be stricken is on whether the defendant attempted to flee to avoid prosecution. Since the defendants in the consolidated cases had not fled, but, rather, had been deported, their failure to appear, it submitted, was based on reasonable grounds and, thus, under Md. Rule 4–217(i)(2), the forfeiture of the bonds should be stricken. The appellant rejected the State's argument that the information contained in the Initial Appearance documents put it on notice that the defendants would be deported, and that failure to be guided by that notice prevents its reliance on the defendants' deportation. The appellant, on the contrary, argued that the detainer was no guarantee that a defendant would be deported before his scheduled court appearance and, therefore, it could not have known with any certainty that the defendants would, in fact, be deported.

Although the Circuit Court agreed that a defendant's deportation was not guaranteed whenever there is a detainer, Judge Norman denied the amended petitions. He found that, given the information contained in the Initial Appearance documents, the appellant knew, or should have known, that the defendants were subject to deportation when it posted their bonds. He also disagreed with the appellant's interpretation of Professional Bail Bonds, stating:

[I]t's not that there's an assurance by the [bondsmen] that the Defendant's not going to flee. Quite the contrary. It is an assurance, a guarantee that the bondsman will produce the Defendant at trial. That's what this Court interprets those cases to mean.”

The appellant timely noted appeals in all of these cases to the Court of Special Appeals. That court, pursuant to Md. Rule 8–132, 11 transferred the appeals to this court. WE GRANTED CERTIORARI. Big Louie Bail Bonds, LLC v. State of Maryland, 427 Md. 62, 46 A.3d 404 (2012).

The three remaining appeals were heard by Judge Brobst on June 15, 2012. 12 She, like Judge Norman, denied the amended petitions, finding, based on the information contained in the Initial Appearance documents, that the defendants knew, or should have known, that the defendants were subject to deportation and, therefore, citing Professional Bail Bonds, “assumed the risk that the defendants would not appear for trial” when it posted the bonds. The appellant timely noted appeals to this Court. Treating the notices of appeal as petitions for writs of certiorari, we granted certiorari, Big Louie Bail Bonds, LLC v. State of Maryland, 427 Md. 62, 46 A.3d 404 (2012), and consolidated them with the already pending cases.

A bail bond is “a written obligation of a defendant, with or without a surety or collateral security, conditioned on the appearance of the defendant as required and providing for the payment of a penalty sum according to its terms.” Maryland Rule 4–217(b)(2). Its nature and relation to the State was discussed in Wiegand v. State, 363 Md. 186, 768 A.2d 43 (2001):

“To be sure, a bail bond is a contract of suretyship: ‘a tripartite agreement among a principal obligor, his obligee, and a surety.’ General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 259, 492 A.2d 1306, 1309 (1985). It is a direct and original undertaking under which the surety is primarily or jointly liable with the principal obligor and, therefore, responsible at once if the principal obligor fails to perform. Id. at 259, 492 A.2d at 1309. Indeed, a surety ordinarily is bound with his principal by the same instrument, executed at the same time, and on the same consideration. Id. Thus, a bail bond is an undertaking by the bondsman to furnish bail on behalf of the defendant, see Tyler v. Capitol Indem. Ins. Co., 206 Md. 129, 134–36, 110 A.2d 528, 530–31 (1955). See also Stamatiades v. Merit Music Service, Inc., 210 Md. 597, 612–15, 124 A.2d 829, 837–38 (1956); In re Lexington Surety & Indemnity Co., 272 N.Y. 210, 5 N.E.2d 204, 205 (1936), as well as a contract with the State, see Tyler, 206 Md. at 139–40, 110 A.2d at 532–33, under which the bondsman is obligated to assure the appearance of the defendant in court as required.”

363 Md. at 197–98, 768 A.2d at 49.

The effect of the defendant not appearing as required is the forfeiture of the bail bond. That is prescribed by Rule 4–217(i), based on Maryland Code (2001, 2008 Repl.Vol., 2011 Cum.Supp.) § 5–208(b) of the Criminal Procedure Article,13which also sets out the procedure for forfeiting bail bonds and authorizes the striking of a forfeiture, once entered, for cause. It provides, as relevant:

(1) If a defendant fails to appear as required, the court shall order forfeiture of the bail bond and issuance of a warrant for the defendant's arrest. The clerk shall promptly notify any surety on the defendant's bond, and the State's Attorney, of the forfeiture of the bond and the issuance of the warrant.

(2) If the defendant or surety can show reasonable grounds for the defendant's failure to appear, notwithstanding Rule 2–535 (Revisory Power), the court shall (A) strike out the forfeiture in whole or in part; and (B) set aside any judgment entered thereon pursuant to subsection (4)(A) of this section, and (C) order the remission in whole or in part of the penalty sum paid pursuant to subsection (3) of this section.”

While Rule 4–217(i)(1) requires the forfeiture of the bail bond upon the non-appearance of the defendant, the decision to strike the forfeiture, once entered, is discretionary with the court, “to be liberally construed,” conditioned upon a showing by the defendant of reasonable grounds for the defendant's nonappearance. Wiegand v. State, 363 Md. at 194, 768 A.2d at 47 (citing Allegheny Mut. Cas. Co. v. State, 234 Md. 278, 282–284, 199 A.2d 201, 203 (1964)). The burden of demonstrating “reasonable grounds” lies with the surety who seeks to strike a bond forfeiture. Allegheny Mut. Cas. Co. v. State, 234 Md. at 282, 199 A.2d at 203. We have interpreted the term “reasonable grounds” in the context of the court's exercise of discretion:

“The requirement that ‘reasonable grounds' be shown for the nonappearance of the...

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    ...grounds'" to strike a bail bond forfeiture "lies with the surety who seeks to strike a bond forfeiture." Big Louie Bail Bonds, LLC v. State, 435 Md. 398, 407 (2013) (citing Alleghany Mut. Cas. Co. v. State, 234 Md. 278, 282 (1964)). "Under this rule, the court is required to strike out the ......
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