Com. v. Allstate Bonding Co., 921704
| Decision Date | 17 September 1993 |
| Docket Number | No. 921704,921704 |
| Citation | 246 Va. 189,435 S.E.2d 396 |
| Parties | COMMONWEALTH of Virginia v. ALLSTATE BONDING COMPANY, et al. Record |
| Court | Virginia Supreme Court |
Malcolm McL. Doubles, Roanoke (Donald S. Caldwell, on briefs), for appellant.
Harry F. Bosen, Jr., Salem, for appellee Allstate Bonding Co.
Melissa W. Friedman, Roanoke (Anthony F. Anderson, on brief), for appellee A-1 Bonding Co. Present: All the Justices.
In this case, the trial court refused to forfeit the bail bonds of six defendants who failed to appear in general district court to answer criminal charges, as required by the terms of their bonds. 1 We awarded the Commonwealth this consolidated appeal to review the trial court's action.
Allstate Bonding Company (Allstate) was surety on the bonds of five of the six defendants: Gary E. Ball, II, charged with breaking and entering and trespassing; Robert T. Bardeau, charged with possession of cocaine; Arnold Earl Nelson, charged with grand larceny and uttering; Felipe Garcia Mendoza, charged with statutory rape; and Billy Ray Green, charged with driving on a suspended operator's license. A-1 Bonding Company (A-1) was surety on the bond of the remaining defendant, Aldon Ellis, who was charged with possession of crack cocaine with intent to distribute.
It was stipulated below that it is the "practice and policy" of the office of the Commonwealth's Attorney for the City of Roanoke to move for forfeiture of a bail bond at the time a defendant fails to appear. However, the record shows that although Ball failed to appear on September 21, 1988, as his bond required, it was not until December 13, 1991, three years, two months, and twenty-two days later, that notice was issued requiring Allstate to show cause why its bond on Ball should not be forfeited.
Similarly, Bardeau failed to appear on November 3, 1988, but notice to Allstate to show cause was not issued until December 13, 1991, approximately three years and one month later. Nelson failed to appear on October 11, 1989; notice to Allstate to show cause was issued December 13, 1991, or about two years and two months later. Mendoza failed to appear on September 4, 1990; notice to Allstate to show cause was issued May 21, 1992, one year, eight months, and seventeen days later. Green failed to appear on November 1, 1990; notice to Allstate to show cause was issued December 16, 1991, thirteen and one-half months later. Ellis failed to appear on August 30, 1989; notice to A-1 to show cause was issued December 11, 1991, or two years, three months, and twelve days later.
The general district court ruled that bond should be forfeited in all six cases. Allstate and A-1 appealed the district court's rulings to the circuit court. After a hearing, the circuit court ruled in each case that the delay between the defendant's failure to appear and the issuance of the notice to the surety to show cause was not "reasonable notice as called for under [Code § 19.2-143] under all of the circumstances then existing." By a separate judgment order entered in each case, the circuit court denied the Commonwealth's motion to forfeit bond.
Code § 19.2-143 provides, in pertinent part, as follows:
When a person, under recognizance in a case, ... fails to perform the condition of appearance thereof, if it is to appear before a court of record, or a district court, a hearing shall be held upon reasonable notice to all parties affording them opportunity to show cause why the recognizance or any part thereof should not be forfeited. If the court finds the recognizance or any part thereof should be forfeited, the default shall be recorded therein, unless, the defendant ... is brought before the court within sixty days of the findings of default.
If the defendant ... appears before or is delivered to the court within twelve months of the findings of default, the court shall remit any bond previously ordered forfeited by the courts, less such costs as the court may direct.
(Emphasis added.)
Allstate and A-1 (collectively, the sureties) contend the italicized language of Code § 19.2-143 imposes upon the Commonwealth the duty of giving a surety reasonable notice not only of a bond forfeiture hearing but also of a defendant's initial failure to appear. The sureties then assert that notice of nonappearance given from thirteen months to more than three years after the fact is unreasonable per se.
Citing Heacock v. Commonwealth, 228 Va. 235, 321 S.E.2d 645 (1984), the sureties argue that they have "a property interest in the amount of the bond" and that this interest is entitled to due process protection. Allstate says that "[b]alancing the interest ... the surety has in the amount of the bond against the magnitude of governmental interests involved requires that a Virginia surety be given notice of nonappearance no more than 30 days after the fact." A-1 says that the Commonwealth should be required to notify a surety of a defendant's "failure to appear within one to seven days" after the nonappearance.
Such prompt notice of nonappearance is essential, the sureties maintain, to enable them to locate a defendant before the "trail ... gets cold" and to provide them an opportunity to avoid forfeiture by producing a defendant within the sixty-day and twelve-month grace periods allowed under Code § 19.2-143. Delayed notice renders this statutory opportunity meaningless, the sureties say, resulting in the denial of the due process protection to which their property interest in the bonds is entitled. 2
We disagree with the sureties. In the first place, the notice required by Code § 19.2-143 is limited to "a hearing ... to show cause" why a bail bond should not be forfeited. The statutory language cannot be stretched to include a requirement for notice to a surety of the nonappearance of a defendant. Nor can the circumstances of a particular case serve to convert the requirement into one including such notice.
Furthermore, the terms of the bonds in question negate any obligation on the Commonwealth's part to provide a surety with notice of a defendant's nonappearance. As part of the conditions of release and recognizance, a defendant promises to appear at a specified time and place and at other times and places to which his case may be rescheduled, continued, transferred, certified, or appealed. These conditions are incorporated by reference into the bond, defining the obligation assumed by the surety.
As part of this obligation, the surety undertakes to guarantee the...
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