State v. Guzman, CASE NO. 1-18-21

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtZIMMERMAN, J.
Citation2018 Ohio 4470
Docket NumberCASE NO. 1-18-21
Decision Date05 November 2018

2018 Ohio 4470



CASE NO. 1-18-21


November 5, 2018


Appeal from Allen County Common Pleas Court
Trial Court No.
CR2015 0010

Judgment Reversed and Cause Remanded


Damion M. Clifford for Appellant

Randall L. Basinger for Appellee, State of Ohio

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{¶1} Third-party appellant, American Surety Company ("Appellant"), appeals the nunc pro tunc judgment of the Allen County Common Pleas Court that added it as a party to a prior court judgment. On appeal, Appellant asserts that the trial court erred: 1) by adding it to a December 21, 2015 judgment via a nunc pro tunc entry; and 2) by entering judgment against it for $150,000. For the reasons that follow, we reverse the judgment of the trial court and remand the matter for further proceedings consistent with this opinion.

Factual and Procedural Background

{¶2} On February 12, 2015, Roberto Guzman ("Guzman") was indicted by the Allen County Common Pleas Grand Jury on one count of possession of cocaine, a felony of the first degree, in violation of R.C. 2925.11(A), R.C. 2925.11(C)(4)(e). (Doc. No. 5). Guzman's bond in the trial court was set in the amount of $100,000 cash or surety. (Doc. No. 7). Appellant appeared in the trial court for arraignment on February 27, 2015 and pled "not guilty" to the charge contained in the indictment. (Doc. No. 5).

{¶3} On May 4, 2015, Guzman posted the $100,000 bond through a bail bonding company. (Doc. No. 63). Scott Hunter, ("Hunter") on behalf of Erie Shore Bail Bonds, issued Guzman's bond. (Id.). Appellant was a guarantor of the bond executed by Hunter. (Id.).

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{¶4} On June 17, 2015, Guzman entered a negotiated plea of no contest to the possession of cocaine charge. (Doc. No. 70). The trial court journalized its judgment entry accepting Guzman's plea on the same date, and continued Guzman's $100,000 bond pending his sentencing. (Doc. No. 71).

{¶5} On July 27, 2015, the trial court sentenced Guzman to prison, but stayed the prison sentence pending appeal. (Doc. No. 76). With respect to Guzman's previously posted bond, the trial court, in its judgment entry, issued the following order:

IT IS FURTHER ORDERED the bond as previously set is hereby revoked and an appellate bond of $150,000 cash or surety is set.

(Emphasis sic). (Id.). Two days later, Guzman posted a $50,000 bond with the trial court. (Doc. No. 77). Hunter co-signed Guzman's second bond on behalf of Erie Shore Bail Bonds, which Appellant guaranteed. (Id.).

{¶6} On October 7, 2015, the trial court issued an order revoking Guzman's appellate bond because Guzman never filed an appeal. (Doc. No. 80). The trial court further ordered that Guzman be taken into custody to serve the imposed prison sentence. (Id.). However, Guzman absconded and failed to appear at a show cause hearing held on October 15, 2015. (Doc. No. 84).

{¶7} On October 16, 2015, the State filed a motion for forfeiture of bond pursuant to Crim.R. 46 and R.C. 2937.35. (Doc. No. 86). The State's motion was scheduled for a show cause hearing on October 26, 2015. (Doc. No. 87). According

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to the record, the State, Guzman's attorney, Crime Victim Services, and American Surety Company/Erie Shore Bail were served with a copy of the notice pertaining to the bond forfeiture hearing. (Doc. No. 88).

{¶8} Thereafter, on October 26, 2015, a bond forfeiture hearing was held in the trial court. (Doc. No. 90). The State, Guzman's attorney, and Hunter, on behalf of Erie Shore Bail Bonds, appeared for the hearing. (Id.). After considering the record, the trial court found that Guzman failed to appear in accordance with the terms of bail and ordered that the bail posted ($150,000) be forfeited. (Id.). The trial court further ordered:

As to recognizance given by any surety, the Clerk of Courts shall notify accused [sic] and each surety by ordinary mail at the address shown by them in their affidavits of qualification or on the record of the case, of the default of the accused and the adjudication of forfeiture and require each of them to show cause on or before MONDAY DECEMBER 21, 2015 @ 8:00 a.m. [* * *], why judgment should not be entered against each of them for the penalty stated in the recognizance. If good cause by production of the body of the accused or otherwise is not shown, the Court shall thereupon enter judgment against the sureties or either of them, so notified, in such amount, not exceeding the penalty of the bond, as has been set in the adjudication of forfeiture, and shall award execution therefor as in civil cases. The proceeds of sale shall be received by the clerk or magistrate and distributed as on forfeiture of cash bail.

(Emphasis sic). (Id.).

{¶9} On December 21, 2015, the show cause hearing was held in the trial court on the bond forfeiture. (Doc. No. 97). Finding that good cause was not shown,

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the trial court ordered judgment in the amount of $150,000 against Guzman's "surety, Erie Shore Bail Bonds." (Id.).

{¶10} Guzman was apprehended on January 1, 2015. (Doc. No. 99).

{¶11} On February 1, 2016, attorney Eric LaFayette ("LaFayette") filed a motion in the trial court styled: "Surety, Scott Allen Hunter, Erie Shore Bail Bonds and American Surety Company [Appellant], motion for relief from bond forfeiture due to the surety apprehending the defendant and returning the defendant to the jurisdiction of this honorable court pursuant to R.C.§2937.39." (Doc. No. 102). The motion averred that Hunter was the "surety agent for Erie Shore Surety [sic] and American Surety Company" (Appellant). (Emphasis added). (Id.).

{¶12} On April 18, 2016, a remittance hearing was held in the trial court. (Doc. No. 120). On May 12, 2016, the trial court issued its judgment entry of remittance ordering that $5,000 of the $150,000 bond should be remitted to the surety due to their efforts in locating and apprehending Guzman. (Id.). However, the trial court also ordered that the remaining $ 145,000 not be remitted to the surety, Erie Shore Bail Bonds. (Id.). Appellant was not named as a surety in this trial court entry. (Id.).

{¶13} Hunter and Erie Shore Bail Bonds appealed the trial court's remittance order to this Court on June 7, 2016 ("Guzman I"). (Doc. No. 122). The appeal

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designated only Hunter and Erie Shore Bail Bonds as the "sureties" of Guzman's bonds. (Id.).

{¶14} On July 11, 2016, while the appeal was pending, LaFayette filed in the trial court a "notice to clarify representation of attorney Eric L. LaFyette [sic] as the representative of Scott Allen Hunter and Erie Shore Bail Bonds." (Doc. No. 130). In his notice LaFayette represented that he did not represent the Appellant. (Id.).

{¶15} On February 27, 2017, this Court filed its judgment on Guzman I, affirming the trial court's remittance order. (Doc. No. 135).

{¶16} Nearly a year later, on February 26, 2018, the State filed a motion requesting that the trial court issue a "nunc pro tunc" order, correcting its original remittance order.1 (Doc. No. 137). The State asserted that the May 12, 2016 judgment entry was supposed to include Appellant. In support of its motion, the State attached the trial court's bond entry and copies of the bonds that Hunter signed (one for $100,000 and another for $50,000) on behalf of Erie Shore Bail Bonds. (Id.). Each bond bore identical language that authorized Hunter as Appellant's "power of attorney." (Id.).

{¶17} Appellant, appearing for the first time in the trial court on March 12, 2018, filed a memorandum in opposition to the State's motion for a nunc pro tunc

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order. (Doc. No. 138). Appellant argued that the State was seeking to substantively change a prior order through the use of a nunc pro tunc entry, which was impermissible. (Id.). Appellant further argued that the underlying $145,000 judgment was void, because the trial court had revoked the initial $100,000 bond posted by Guzman. (Id.). Appellant attached to its motion the trial court's judgment entry of sentencing; the appeal bond order; a copy of Appellant's OR bond paperwork; the judgment entry forfeiture of bond; and the judgment entry remittance of bond. (Id.).

{¶18} On March 28, 2018, the trial court issued its judgment entry granting a nunc pro tunc entry of judgment on the bond forfeiture. (Doc. No. 139). The trial court found that Appellant, along with Hunter and Erie Shore Bail Bonds, had...

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