State v. French

• Decision Date: 24 October 1997
• Docket Number: No. 20340-5-II,20340-5-II
• Citation: 945 P.2d 752,88 Wn.App. 586
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. James Robert FRENCH, Defendant, Amwest Surety Insurance Company, Appellant.

Page 586

88 Wn.App. 586

945 P.2d 752

STATE of Washington, Respondent, v. James Robert FRENCH, Defendant Amwest Surety Insurance Company, Appellant.

No. 20340-5-II.

Court of Appeals of Washington Division 2.

Oct. 24, 1997.

Daniel Lee Stahnke, Vancouver, for appellant.

Scott St. Clair Anders, Clark County Deputy Prosecuting Attorney, Vancouver, for respondent.

SEINFELD, Judge.

Amwest Surety Insurance Company appeals the forfeiture of a $75,000 appearance bond it executed on behalf of defendant James Robert French. Amwest contends that by operation of RCW 10.64.025, the bond was exonerated upon French's conviction and that French, who also was the owner of the bail bond company posting the bond, lacked the authority to bind Amwest to a new bond. Amwest further contends that it had the right to file an affidavit of prejudice as a new party to the action. We agree that the bail bond was exonerated at the time of French's conviction. Because French did not file a new bond, Amwest had no further obligation to ensure his appearance. Thus, we reverse.

FACTS

The State charged French with one count of child molestation in the first degree, two counts of rape of a child in the first degree, and three counts of rape of a child in the second degree. The arraignment court conditioned his release upon the posting of an appearance bail bond in the amount of $75,000. Clark County Bail Bonds, a company owned by French, posted the bond and Amwest secured it.

A jury found French guilty of all charges and on November 13, 1995, the trial court entered the jury's verdict. The court then considered conditions of release pending sentencing. Part of the ensuing court-counsel colloquy focused on RCW 10.64.025(1), which provides:

A defendant who has been found guilty of a felony and is awaiting sentencing shall be detained unless the court finds by clear and convincing evidence that the defendant is not likely to flee or to pose a danger to the safety of any other person or the community if released. Any bail bond that was posted on behalf of a defendant shall, upon the defendant's conviction, be exonerated.

Noting that French was facing "substantial time in jail" and loss of employment, the court seemed concerned that French might be a flight risk. The court then stated:

Mr. French, this is what we're going to need to do. I'm going to revoke your release tonight. I'll be setting--I'll set a bail, but I will not allow you to bail out on your own company again, like you have before. I've felt uncomfortable with that all along, and just--it seemed odd to me that a person would be their own bailbondsman, because we'd look to the bailbondsman to bring the person back if they jump.

I recognize that there's a surety behind you.

The court decided to leave the bail amount at $75,000 but asked that bail be "posted by another bondsman, someone unaffiliated with you; in fact, a different surety would probably be the best way to handle that."

French then asked the court to keep the bond in place, contending that he was still the attorney in fact for the surety. In the alternative, he argued that he had other real property to secure a bond. Following this colloquy, the court commented,

1:30 tomorrow we'll review the issue of release.

Counsel, are you available then, either one of you? I would like you to come in and give me a presentation on security relating to Mr. French's home ....

... And, like I said, I just--I recognize there's a surety behind you, but like I said, we usually call up the bondsman and say, "Joe Blow didn't appear, and we want you to bring him in." That obviously wouldn't work in your case.

Our record of that hearing concludes with the trial court modifying some of the conditions of release. French was not taken into custody.

French failed to appear at the hearing that apparently was rescheduled for November 16, 1995; the court then issued a bench warrant for his arrest. On November 21, the State moved for an order forfeiting the appearance bond and on November 30, Amwest filed its notice of appearance, its response to the State's motion, a motion for exoneration of the bond, and an affidavit of prejudice.

On December 1, the trial court denied Amwest's motion and affidavit of prejudice by oral order, indicating that the motion was untimely. Two weeks later, Amwest filed a motion and affidavit of actual prejudice, asserting that a determination of the pending motions would require deciding whether French had apparent authority to bind Amwest to a new or continuing bail bond. Amwest argued that the trial judge's testimony would be necessary to determine French's apparent authority and that under ER 605, the trial judge could not testify as a witness unless he recused himself.

At a hearing on December 28, the trial judge listened to a tape of the November 13 postverdict proceedings. He then interpreted his oral ruling as follows:

THE COURT: Well, I disagree with you there, for the simple reason that in watching the tape, I told Mr. French that he was going into custody, that I was going to revoke his bond and set a new bond of $75,000, and then he prevailed upon me under the representation that his bond was still good, and I changed my decision.

....

... I had no recollection of setting a new bond of $75,000 and now I know why I didn't, because I changed my mind and allowed him to stay out on the existing bond after he represented that it was still good, after he'd prevailed upon me the fact--to the effect that, "None of the other bondsmen will bail me out; they're all my competitors."

And he asked that he be allowed to post a bond, and I said, "We'll decide the issue tomorrow."

The trial judge concluded that his testimony would not be helpful; thus, he declined to recuse himself and, instead, proceeded to rule on the substantive motions. The court concluded that during the post-verdict proceedings, French was acting as Amwest's general agent and bound Amwest to a continuation of the appearance bond. The court then entered an order forfeiting the $75,000 bond.

DISCUSSION

I Automatic Exoneration of Bail Bond Upon Conviction

The terms of the bail bond affect the liability of the surety. State v. Lewis, 35 Wash. 261, 269, 77 P. 198 (1904). Before 1989, a bail bond was not eligible for discharge until the court executed a written final judgment, sentence, and commitment order. See e.g., State v. Hampton, 107 Wash.2d 403, 728 P.2d 1049 (1986); State v. Ransom, 34 Wash.App. 819, 822, 664 P.2d 521 (1983). An oral pronouncement of judgment and sentence was not conclusive or final. State v. Dailey, 93 Wash.2d 454, 458-59, 610 P.2d 357 (1980).

But in 1989, the Legislature adopted RCW 10.64.025. In contrast to earlier law, this statute focuses on the time of conviction, not on judgment. Further, it uses the mandatory "shall" in referring to exoneration at the time of conviction. The State concedes that the bond here was subject to exoneration following French's conviction. It contends, however, that the statute is not self-executing and that an appearance bond is not exonerated until the court enters an order to that effect.

To determine the merits of the State's argument, we turn to the statute itself. We construe a statute according to its plain language, and statutory construction is unnecessary and improper when the wording of a statute is unambiguous. ITT Rayonier v. Dalman, 67 Wash.App. 504, 509, 837 P.2d 647 (1992). Statutes should be given a rational and sensible construction. State v. Thomas, 121 Wash.2d 504, 512, 851 P.2d 673 (1993). The fundamental requirement of statutory construction is to ascertain the intent of the Legislature as expressed in the statute. State v. Keller, 98 Wash.2d 725, 728, 657 P.2d 1384 (1983).

Here, if the Legislature intended to codify prior case law or to require an order of exoneration, it would have done so. The plain language of the statute permits only one interpretation; the bond is exonerated by operation of law at the moment of conviction. The law does not require a written order to that effect.

We note that this result is consistent with the policy supporting preconviction bail and with the remaining portion of RCW 10.64.025, which requires the trial court to detain a defendant awaiting sentencing "unless the court finds by clear and convincing evidence that the defendant is not likely to flee or to pose a danger to the safety of any other person or to the community if released." The allowance of preconviction bail recognizes the presumption of innocence. State ex rel. Wallen v. Noe, 78 Wash.2d 484, 487, 475 P.2d 787 (1970). After conviction, the defendant is no longer the beneficiary of this presumption and the trial court, by the terms of RCW 10.64.025, must reevaluate the defendant's situation. In doing so, it may consider imposing new conditions of release related to "the whereabouts of the defendant, contact with the victim, or other conditions." RCW 10.64.027. In light of the heightened likelihood of defendant's incarceration and the new presumption of guilt, the defendant is likely to pose an increased flight risk. Consequently, the court will need to consider increasing bail as a new condition of release.

Generally, a bonding company is motivated to return a defendant to custody because by doing so it can either avoid a forfeiture or have remitted to it the amount of the bond less costs. RCW 10.19.040, .160; State v. Bailey, 121 Wash. 413, 209 P. 847 (1922). Of course, this motivation is lacking where, as here, the defendant owns the bonding company. The trial court's comments indicated an awareness of this factor and concern about the risk of flight. The court noted that French was facing "substantial time in jail" and that it was "uncomfortable" with French's bailing himself out because there was no bondsman to return him to custody. But instead of making the findings required by RCW 10.64.025, the trial court continued the hearing to another...