Qualls v. Hardin Circuit Court
| Decision Date | 29 April 2016 |
| Docket Number | NO. 2014-CA-001149-MR,2014-CA-001149-MR |
| Parties | TORIE DEWAYNE QUALLS APPELLANT v. HARDIN CIRCUIT COURT and COMMONWEALTH OF KENTUCKY APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
This case stems out of Appellant's repeated failures to appear as directed and failures to comply with various court orders. First, in Case No. 06-D-00176-001, Appellant failed to appear in Family Court on February 19, 2007, and failed to provide proof of counseling. He was arrested on February 20, 2007, and lodged in the Hardin County Jail. He paid a $1,500.00 Cash Bail Bond which states "Full amount of bail paid into the court, to be forfeited should you fail to appear as required by the Court." Further, conditions were attached to Appellant's bond, which stated that Appellant should have no further violations of the law and should report to Hardin County Pretrial Services. The attached conditions further state: "By signing this contract, defendant acknowledges and accepts the conditions of release and understand[s] that violation of the terms of this contract will result in the revocation of the defendant's release/bail bond and/or additional criminal charges." This document was also signed by Appellant on February 22, 2007.
On May 29, 2007, Appellant again failed to appear in Hardin Family Court and failed to provide proof of counseling. A domestic violence bench warrant was issued on May 29, 2007, and served on Appellant on June 1, 2007. Appellant paid a $500.00 Cash Bond and further agreed to "maintain all conditions required by Family Court."
After these two occurrences, it appears from the record that Appellant was at least attempting to comply with all court orders until he was arrested in Juneof 2008 for unrelated new criminal charges. Thereafter, on June 29, 2009, the Hardin Family Court remanded the Domestic Violence case because "Mr. Qualls has been sentenced to a jail term of over five years."
On May 9, 2014, Appellant wrote a letter to the Hardin Circuit Clerk requesting that his bond money be returned. Additionally, on May 13, 2014, Appellant filed a motion for exoneration of bail bond money pursuant to RCr1 4.50(2). On May 27, 2014, the court entered a Notice of Filing of Ex Parte Communication and Order for Notification and hearing date. The court set a hearing for June 23, 2014, and ordered that all attorneys of record and parties not represented by counsel shall receive notice and be present for said hearing. Further, notice of this hearing was sent to all attorneys of record, all parties, and to the Hardin County Attorney, Child Support Division. This order was entered by the Hardin Clerk on June 2, 2014, with notation that a copy of the order was given to petitioner, respondent, and the child support division. Appellant's inmate mail log also reveals that he received incoming mail from the Hardin Circuit Court Clerk on June 4, 2014, evidencing that he received notice of the court's order.
On June 3, 2014, the Child Support Division responded to the notification from the court, stating that it had no knowledge of whether Appellant was entitled to have bond money returned or if said bond is subject to forfeiture. However, it stated that if Appellant has violated conditions of his bond and forfeiture is appropriate, it requested it to be paid to Appellant's child support caseIV-D #3807032 and he would be given credit toward his arrears. The Certificate of Service states that a copy of the notification was mailed to Appellant at the Kentucky State Reformatory on June 5, 2014. It is unclear whether the County Attorney served the Appellant in accordance with CR 5.02.2
On June 23, 2014, the Hardin Family Court held a hearing on the bond issue. After review, the Family Court ordered that Appellant "has not complied with various prior court orders and therefore shall deny his motion." Further, the Family Court ordered that, "the bond money posted in the above-styled case shall be paid to the Hardin County Attorney's office and shall be applied to the child support arrearages of the Respondent (Appellant)." This Order was entered on July 1, 2014. It is from this order that Appellant now appeals.
Appellant argues that the procedure utilized by the Hardin Family Court before ordering the forfeiture of his bond was insufficient to protect his due process rights. Additionally, Appellant argues that since he was incarcerated, the Family Court should not have declared a forfeiture of bail without first appointing a guardian ad litem to represent him pursuant to CR 17.04(1). See Davidson v. Boggs, 859 S.W.2d 662 (Ky. App. 1993).
It is well-settled in Kentucky that an indigent civil litigant is not constitutionally entitled to appointment of counsel except in extremely limited circumstances. If imprisonment is a potential consequence of a civil contempt action, then counsel may be appointed. Lewis v. Lewis, 875 S.W.2d 862 (Ky. 1993). If a prisoner fails to defend a civil action brought against him, a guardian ad litem must be appointed for him before judgment may be entered. CR 17.04; Davidson v. Boggs, 859 S.W.2d 662 (Ky. App. 1993).
However, CR 17.04 has no application where, as here, the action is brought by, rather than against, the prisoner. Except in these limited circumstances, there is no constitutional right to counsel in a civil case. May v. Coleman, 945 S.W.2d 426, 427 (Ky. 1997) (citing Parsley v. Knuckles, 346 S.W.2d 1 (Ky. 1961)). Thus, as this is an action brought by Appellant to have his bond money returned, rather than against him, the trial court did not commit error in failing to appoint counsel for him.
The purpose of posting bonds "is to secure the defendant's being arrested and brought to justice." Clemons v. Commonwealth, 152 S.W.3d 256, 260 (Ky. App. 2004), citing to Abrams v. Commonwealth, 254 S.W.2d 983, 984 (Ky. 1934); see also Johnson Bonding Company, Inc. v. Commonwealth, 487 S.W.2d 911, 913 (Ky. 1972). Bonds are permitted by the court "for the convenience of a person not yet proved to be guilty, and to protect the state against the expense of keeping such persons in jail." See Abrams, supra. Bonds are discretionary and the decision to impose, forfeit, or remit bonds lies solely with the trial court. Clemons,152 S.W.3d at 260. Abraham v. Commonwealth, 565 S.W.2d 152, 158 (Ky. App. 1977); see also United Bonding Ins. Co., Kent Cox, Agent v. Commonwealth, 461 S.W.2d 536, 538 (Ky. 1971).
Bonds are also used to impose certain non-financial conditions to control the defendant's behavior while on pretrial release. The majority of jurisdictions allow courts to forfeit a defendant's bond if one of these conditions is breached. Clemons, 152 S.W.3d at 260; See, e.g., State v. Korecky, 777 A.2d 927, 933-934 (N.J. 2001).3
In Clemmons, the court explained Kentucky case law has yet to broach the subject of whether bond forfeiture is appropriate for violation of non-financial conditions. However, the Court noted the language of the applicable statute and procedural rule clearly indicate the General Assembly's intent that courts have the option to forfeit for such violations. KRS 431.545 plainly states that bond forfeiture is appropriate if a defendant "shall willfully fail to appear orshall willfully fail to comply with the conditions of his release." Likewise, RCr 4.42(1), (3) states:
Thus, under the above reasoning, the trial court has discretion to order forfeiture of the bond if it is shown that the defendant willfully failed to comply with conditions of his release. Accordingly, under RCr 4.42(5), before the court may make the findings required for change of conditions or forfeiture of bail under this rule, the defendant and the defendant's sureties shall be granted an adversary hearing comporting with the requirements of due process.
Appellant, who was incarcerated, was not...
To continue reading
Request your trial