State v. Coronel

• Decision Date: 07 August 2001
• Docket Number: No. COA00-504., No. COA00-503
• Parties: STATE of North Carolina, v. Natividad Pena CORONEL. State of North Carolina, v. Jose Rafael Pena Tomayo.
• Court: North Carolina Court of Appeals

550 S.E.2d 561

145 NC App. 237

STATE of North Carolina, v. Natividad Pena CORONEL.

State of North Carolina, v. Jose Rafael Pena Tomayo.

Nos. COA00-503, COA00-504.

Court of Appeals of North Carolina.

August 7, 2001.

Parker, Poe, Adams & Bernstein, L.L.P., by Jack Cozort, Charlotte, for Connecticut Indemnity Company and Black Jack Bail Bonds, sureties-appellants.

George E. Crump, III, Rockingham, for Richmond County Board of Education, judgment creditor-appellee.

TIMMONS-GOODSON, Judge.

Connecticut Indemnity Company ("Connecticut") and Black Jack Bail Bonds ("Black Jack") (collectively "sureties") appeal the Superior Court's orders denying their motions to remit judgment of bond forfeiture. The Richmond County Board of Education ("the Board") are judgment creditors and appellees in the present action by virtue of its opportunity to be heard pursuant to section 15A-544 of our General Statutes. See N.C. Gen.Stat. § 15A-544 (1999) (repealed Jan. 1, 2001). Upon review of the materials submitted on appeal and arguments of counsel, we affirm the orders of the Superior Court but remand for the limited purpose herein stated.

The pertinent factual and procedural background is as follows: On 21 September 1998, the Richmond County Grand Jury indicted Jose Rafael Pena Tomayo ("Tomayo") and Natividad Pena Coronel ("Coronel") (collectively "defendants") for "trafficking in marijuana by manufacturing." In October 1998, defendants posted bond in the amount of $200,000.00, for which Black Jack and Connecticut acted as the sureties.

In paperwork submitted to Connecticut, defendants both noted they were of Hispanic descent, their parents resided in Mexico, they resided in North Carolina, and they worked for a farming operation. Coronel further related that he resided with his wife, that he had two children, one twenty-six years of age and one thirteen months old, and that he had resided in the United States for eighteen years. Notably, Tomayo wrote that he resided with his aunt and uncle, Coronel and his wife, and had only been a resident of the United States for one year and five months.

On 14 December 1998, defendants failed to appear at the criminal session of Superior Court, Richmond County. Sureties did not attend the 14 December court session. The Superior Court entered orders of bond forfeiture against defendants and gave notice to the sureties of those orders on 22 December 1998.

In orders entered 20 April 1999, the trial court filed two "Judgment[s] of Forfeiture" against defendants and sureties, each in the amount of $200,000.00. On 20 October 1999, sureties filed motions to remit the forfeited bond, stating that "extraordinary circumstances exist[ed]" for the court to set aside its judgment, in that "defendants [were] deceased and unable to be surrendered."

At a hearing based on sureties' motion, Sean Regan ("Regan"), office manager and supervising agent for Black Jack, testified that in an effort to retrieve defendants, his company "sponsored two trips to Mexico by [Agent] Brian Moody where the defendants were originally located in Guadalajara[.]" Regan further testified that while in Mexico, Agent Moody received death threats due to defendants' connections to the local drug cartel and was forced to retreat. According to Regan, Black Jack tried to arrange for legal extradition of defendants, but at some point, turned the matter over to its insurance company, who also tried to have defendants extradited. Regan admitted that his company had no independent means to monitor whether defendants appear in court.

Frederick Yerger ("Yerger"), a recovery agent supervisor for Capital Bonding Company ("Capital") (the organization who underwrote the bonds for Connecticut), testified concerning Capital's efforts to recover defendants. Yerger's testimony revealed that upon receiving notice that defendants failed to appear, he "r[a]n a computer check... to see if defendants show[ed] up anywhere in [the] public record" and assigned the case to recovery agent Troy Thompson ("Agent Thompson" or "Thompson"). According to Yerger, "later in April" 1999, he also assigned another recovery agent, only identified as "Collins," to manage defendants' recovery effort. "At that point," Collins confirmed that defendants had fled to Mexico.

According to Yerger, Capital sponsored two trips to Mexico, in which recovery agents attempted to legally extradite defendants to North Carolina. Agent Thompson submitted an expense report from his Mexican "trips" ("Thompson's expense report"), indicating that his expenses began on 4 July 1999, ended on 24 August 1999, and totaled $1,903.36. This was the only evidence submitted indicating the actual expenses and time exhausted in the recovery of defendants. A check request form was also submitted at trial noting that Capital paid Thompson $7,203.31 for the recovery of Tomayo. According to Yerger, the amount of the check was in addition to Agent Thompson's expenses.

Yerger testified that on their first trip to Mexico, three agents, including Thompson, observed defendants for three days. However, because the Mexican "federales" would not cooperate with the agents and defendants were "under armed guard," the agents "backed off" to avoid an incident. Evidence at trial further revealed that on his second trip to Mexico, Agent Thompson discovered that defendants had died in an 11 August 1999 automobile accident from "[t]rauma to the cranial area." Agent Thompson filed an affidavit with the court noting the following: "[D]efendants were located during prior investigations in Guadalajara, Mexico. After returning to that area to attempt to apprehend [defendants], it was learned through the `federales' that [defendants] were deceased...."

Yerger acknowledged that he did "not supervise how the bonding company looks after [defendants in North Carolina] or tr[ies] to keep up with them." Yerger admitted that it was not unusual for "Mexicans doing farm labor to return to Mexico." Yerger further acknowledged that once a Mexican farm worker retreats to Mexico, "you can get him, but you just can't get him in the same way you do here." Yerger affirmed that this was "[a]bsolutely" a risk that bond companies take.

On 1 November 1999, the trial court entered an order as to each defendant, denying sureties' motions. Pertinent to the issues presented on appeal, the trial court's findings of facts are as follows:

4. Judgment of bond forfeiture ... was entered against defendant[s] and each surety ... on April 8, 1999[.]

....

6. That the grounds stated in the sureties' motion[s] are that [defendants are] deceased and unable to be surrendered by the surety and, therefore, extraordinary circumstances exist wherein it would be fair for the Court to set aside all or part of the [judgments of bond forfeiture]."

....

14. [The] valid death certificate[s] of [defendants show] that [the] date of [their] death[s] was August 11, 1999.

15. [Sureties] have introduced no evidence that [defendants were] either dead or hospitalized on December 14, 1998, the date that [defendants] called and failed [sic] in Richmond Criminal Court and the date the Order of Forfeiture was issued.

16. [Sureties] have introduced no evidence whatsoever that they made any assurance as to the attendance of [defendants] on December 14, 1998....

17. [Sureties] have introduced no evidence that [they] made any efforts to verify whether or not [defendants were] in attendance in Court on ... December 14, 1998.

18. [Sureties] made no efforts to locate [defendants] prior to July 4, 1999, as shown by [Thompson's expense report].

Based upon these findings, the trial court concluded that "the circumstances of the defendant[s'] death[s] on August 11, 1999, does not constitute `extraordinary cause' as a matter of law to warrant remittance of the bond judgment in whole or in part." Sureties appeal the court's 1 November 1999 orders, and the appeals have been consolidated for consideration by this Court.

Sureties argue on appeal that the trial court erred (I) in concluding that they failed to present "extraordinary cause" warranting remittance of the forfeited bond; (II) in finding as fact that their first efforts to locate defendants began in July 1999; and (III) in finding as fact that judgment of forfeiture was entered on 8 April 1999.

I.

By their first argument, sureties contend that the trial court erred in concluding that the death of defendants did not constitute "extraordinary cause." Sureties argue that because death of a principal constitutes "extraordinary cause," they are entitled to remittance of the forfeited bonds when the death of their principal occurred after the execution of judgment of forfeiture. With this argument, we disagree.

Section 15A-544 of our General Statutes, now repealed,¹ governs the forfeiture of the bond in the present case. N.C.G.S. § 15A-544. Even after the entry of judgment of forfeiture, if a surety surrenders a defendant within ninety days, the trial court must remit the bond. N.C.G.S. § 15A-544(e). Section 15A 544 allows for remittance of bonds, in whole or in part, after entry of judgment of forfeiture, where the defendant is not surrendered to the court within ninety days, in two situations. Pursuant to section 15A-544(e), the trial court "may" remit judgment anytime within ninety days after entry of judgment if "justice requires." N.C.G.S. § 15A-544(e). Section 15A-544(h) states, in pertinent part: "For extraordinary cause shown, the court which has entered judgment upon a forfeiture of a bond may, after execution, remit the judgment in whole or in part and order the clerk to refund such amounts as the court considers appropriate." N.C.G.S. § 15A-544(h).

Whether a surety must show that "extraordinary cause" exists for or "justice requires" remittance of forfeiture, depends upon when the motion of remittance is filed, not when the cause entitling a surety to remittance occurs. For example, if the death of a principal occurs...