Pro Bail Bonds v. State

Decision Date31 March 2009
Docket NumberNo. 638, September Term, 2008.,638, September Term, 2008.
Citation968 A.2d 1136
PartiesPROFESSIONAL BAIL BONDS, INC. v. STATE of Maryland et al.
CourtCourt of Special Appeals of Maryland

Michael D. Fraidin, Baltimore, for Appellant.

Sarah W. Rice (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DEBORAH S. EYLER, MATRICCIANI, CHARLES E. MOYLAN, JR. (retired, specially assigned), JJ.

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned.

The bail bondsman is not without some coincidental interest in a forfeiture, but he must not be allowed to exaggerate that interest. The forfeiture of collateral remains, at its root, a matter between the State and the defendant, not a matter between the State and the bail bondsman. The forfeiture of a bond is not a punishment of the bail bondsman. It is no more than a continuing incentive to have him find the defendant and return him to the jurisdiction of the court.

.... Pantazes v. State, 153 Md. App. 23, 40, 153 Md.App. 23, 834 A.2d 975 (2003)

The defendant in this case was Santos Arnoldo Izaguirre. He is not a party to this appeal. The bail bondsman is. It is the appellant, Professional Bail Bonds, Inc. The State is the appellee. What Pantazes tells us about the relationship among those three parties is an overarching truth that needs periodic restatement.

The Bond Is Forfeited

On April 4, 2007, the Grand Jury for Howard County filed an indictment against the defendant, charging him with the felony of a third-degree sex offense. The Circuit Court for Howard County allowed the defendant to remain free pending his trial on the condition that he post bail in the amount of $35,000 to guarantee his appearance for trial.

At that point, of course, the defendant had the option of posting the $35,000 collateral in any number of ways. He himself could have deposited $35,000 with the clerk of the court. He could have had a family member or a friend act as his surety and post the $35,000 collateral on his behalf. He could, as is frequently the modern practice, have contracted with a professional bail bond company, for the required fee, to post the bond on his behalf. In Wiegand v. State, 112 Md.App. 516, 523, 685 A.2d 880 (1996), Judge Wilner (specially assigned) described the range of options for posting bail.

The requirement of bail bonds, secured by collateral or the undertaking of a surety, is a vital part of our core commitment to avoid, whenever possible, the pre-trial detention of accused persons. Whether the accused himself, his family or friends, or a paid surety secures a bail bond, it is the credible threat of a real pecuniary loss that tends to assure the defendant's appearance in court; at least that is the assumption that necessarily underlies the use of secured bonds as an alternative to detention.

(Emphasis supplied).

In order to arrange for bail, the defendant engaged the services of the appellant, Professional Bail Bonds, Inc., which posted the bond in the amount of $35,000. On the scheduled trial date of October 23, 2007, however, the defendant failed to appear. Judge Lenore R. Gelfman issued a warrant for the defendant's arrest. The appearance for trial of the defendant, for which the bond had been the guaranty, not having occurred, Judge Gelfman accordingly also ordered the bond to be forfeited, pursuant to Maryland Rule of Procedure 4-217(i)(1), which provides:

(i) Forfeiture of bond.(1) On defendant's failure to appear—Issuance of warrant.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.

(Emphasis supplied).

Petition to Strike Out Forfeiture

Before an order of forfeiture is finally entered as a judgment in favor of the pertinent governmental entity, the defendant or the defendant's surety has a grace period of 90 days (which may be extended to 180 days) within which to avoid most of the adverse consequences of the forfeiture by actually producing the defendant for trial. Section 4-217(i)(3) provides:

(3) Satisfaction of forfeiture.Within 90 days from the date the defendant fails to appear, which time the court may extend to 180 days upon good cause shown, a surety shall satisfy any order of forfeiture, either by producing the defendant in court or by paying the penalty sum of the bond. If the defendant is produced within such time by the State, the court shall require the surety to pay the expenses of the State in producing the defendant and shall treat the order of forfeiture [as] satisfied with respect to the remainder of the penalty sum.

(Emphasis supplied).

Immediately following the failure of the defendant to appear and the consequent bond forfeiture of October 23, 2007, the appellant engaged the services of Jack Kessel, who is described as a "fugitive recovery-bounty hunter." The bounty hunter located the defendant in his native Honduras. The bounty hunter traveled to Honduras and spoke with the defendant personally. The defendant, however made it painfully clear to the bounty hunter that he had no intention of returning to the United States for trial. The bounty hunter then did nothing more than to report back his essential failure to the appellant.1

On December 17, 2007, the appellant filed its initial Petition to Strike Forfeiture. The possible striking out of a forfeiture is controlled by Rule 4-217(i)(2), which provides:

(2) Striking out forfeiture for cause.— If the defendant or surety can show reasonable grounds for the defendant's failure to appear, notwithstanding Rule 2-535, the court shall (A) strike out the forfeiture in whole or in part; and (B) set aside any judgment entered thereof 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.

(Emphasis supplied).

After one insignificant procedural short-circuit, the appellant filed an Amended Motion to Strike Forfeiture on March 26, 2008. On April 18, 2008, Judge Gelfman conducted a hearing on the motion and heard argument from counsel. On April 21, 2008, she filed a Memorandum and Order denying the appellant's motion to strike the forfeiture. It is from that denial that the present appeal has been taken.

The Function of Posting Collateral

In contending that Judge Gelfman abused her discretion in refusing to strike the forfeiture, the appellant relies primarily on the facts 1) that it had located the defendant in Honduras but 2) that the United States does not have an extradition treaty with Honduras. The appellant's position is that it has done everything it is legally permitted to do to return the defendant to Maryland. That may be true, but it has nothing to do with the striking of the forfeiture. The bail bond company is not being rewarded for its good faith efforts nor is it being punished for its failure. The appellant is but the agent of the defendant. It is the defendant whose malefaction brought about a forfeiture of the defendant's bond. The defendant's original sin remains unredeemed.

The appellant, as we strove to point out in Pantazes, presumes too much significance for the relatively peripheral role it plays. The hardest thing for it to grasp is that the case is not really about the bail bondsman at all. The very concept of professional bail bond is only a latter-day wrinkle of a far more basic phenomenon that predates by centuries the first appearance of the first bail bondsman. Two competing and very legitimate social interests are in conflict. On the one hand, there is a strong social interest in not subjecting to undue pretrial detention accused persons who are still presumed to be innocent. On the other hand, there is also a strong social interest in guaranteeing that defendants show up for trial and, if convicted, for sentencing.

Among the ways devised to accommodate these competing interests is the requirement that a defendant post collateral to guarantee his appearance in court. If the defendant fails to appear, the collateral is forfeited. The amount of the collateral is theoretically fixed at the point where the risk of losing money or property is equal to or greater than the risk of suffering an adverse verdict. As Maryland Rule 4-217(b), "Definitions," now recognizes, the "bail bond" is the "written obligation of a defendant" to appear in court as required, lest he lose his bond or collateral. Subsection (b)(1) defines "bail bond."

"Bail bond" means 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.

(Emphasis supplied).

The defendant himself, of course, could always post his own collateral, or someone else could post the collateral on his behalf. In Pantazes v. State, 153 Md.App. 23, 39, 834 A.2d 975 (2003), this Court traced the historic evolution of posting collateral.

Over the course of time, the practice developed that collateral might be posted for a defendant by a relative or friend or other accommodation surety. That such accommodation sureties might be uncompensated is recognized by subsection (b)(6).

"Surety" means a person other than the defendant who, by executing a bail bond, guarantees the appearance of the defendant and includes an uncompensated or accommodation surety.

(Emphasis supplied).

As the practice of posting collateral to guarantee one's appearance further developed, defendants arranged to procure professional insurers, or bail bondsman, to post collateral for them for a price. Subsection (b)(7) recognizes the phenomenon.

"Surety insurer" means any person in the business of becoming, either directly or through an authorized agent, a surety on a bail bond for compensation. ...


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