State v. Guzman

• Decision Date: 18 February 2020
• Docket Number: NO. 1-19-11,1-19-11
• Citation: 152 N.E.3d 412,2020 Ohio 539
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Roberto GUZMAN, Defendant-Appellee. [American Surety Company - Appellant].
• Court: Ohio Court of Appeals

152 N.E.3d 412

2020 Ohio 539

STATE of Ohio, Plaintiff-Appellee,

v.Roberto GUZMAN, Defendant-Appellee.

[American Surety Company - Appellant].

NO. 1-19-11

Court of Appeals of Ohio, Third District, Allen County.

Date of Decision: February 18, 2020

Jason M. Flower for Appellant.

Randall L. Basinger for Appellee.

ZIMMERMAN, J.

{¶1}Appellant, American Surety Company("American Surety"), appeals the February 19, 2019 judgment entry of the Allen County Court of Common Pleas issuing a judgment of forfeiture against it in the amount of $145,000.For the reasons that follow, we affirm.

{¶2} In 2015, Guzman was convicted of one count of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(e), a first-degree felony, and sentenced to an eight-year prison term.¹State v. Guzman , 3d Dist. Allen No.1-16-27, 2017-Ohio-682, 2017 WL 751296, ¶ 2, 3.As relevant to this appeal, after the trial court set his bail at $100,000, Guzman posted a $100,000 surety bond, which was issued on May 4, 2015 by American Surety, through Scott Allen Hunter("Hunter"), d.b.a. Erie Shore Bail Bonds ("Erie Shore"), as attorney in fact for America Surety.Id.at ¶ 2;(Doc. No. 63).After Guzman was sentenced, the trial court set Guzman's bail at $150,000 pending disposition of his case on review.(Doc. No. 76).To secure his release, Guzman posted a $50,000 surety bond, which was issued on July 29, 2015 by American Surety, through Erie Shore, in addition to the $100,000 surety bond already posted.²Guzman , 2017-Ohio-682, at ¶ 2;(Doc. No. 76).After Guzman failed to appear, the trial court ordered Guzman's appeal bond be revoked.Guzman , 2017-Ohio-682, at ¶ 4.Later, the trial court ordered Guzman's bond forfeited and, after a show-cause hearing, entered a judgment against Hunter and Erie Shore in the amount of $150,000.³Id.at ¶ 5.In 2016, the trial court ordered that $5,000 be remitted to Hunter and Erie Shore after those parties sought relief from the bond forfeiture once Guzman was apprehended, which we affirmed in 2017.Id. at ¶ 6, 15.

{¶3} In 2018, the trial court issued a nunc pro tunc entry adding American Surety as a party to judgment of forfeiture against Hunter and Erie Shore.State v. Guzman , 3d Dist. Allen No.1-18-21, 2018-Ohio-4470, 2018 WL 5794670, ¶ 18.This court concluded that the trial court improperly issued the nunc pro tunc adding American Surety as a party and reversed the trial court's order on November 5, 2018.Id. at ¶ 34.

{¶4} After this court reversed the trial court's order adding American Surety as a party to its judgment of forfeiture against Hunter and Erie Shore, the State filed a motion on November 14, 2018 seeking a judgment of forfeiture against American Surety as surety on Guzman's bonds issued on May 4 and July 29, 2015.(Doc. No. 149).On November 28, 2018, American Surety filed a memorandum in opposition to the State's motion.(Doc. No. 151).After the parties exchanged further memoranda, the trial court on February 19, 2019 entered a judgment of forfeiture against American Surety in the amount of $145,000.(Doc. Nos. 154, 156, 157, 158, 159).

{¶5} American Surety filed its notice of appeal on March 19, 2019 and raises two assignments of error for our review, which we discuss together.(Doc. No. 165).

Assignment of Error No. I

The Trial Court incorrectly held that American Surety is liable for $145,000.00 bond forfeiture related to Defendant Guzman's criminal matter by retroactively including them in the May 12, 2016 and December 21, 2015 Judgment Entries.

Assignment of Error No. II

American Surety cannot be liable for $145,000.00 in bond forfeiture, as the bonds are void pursuant to Ohio Criminal Rule of Procedure 46(H), Ohio Administrative Code § 3901-1-66, and the bond paperwork itself.

{¶6} In its first assignment of error, American Surety argues that the trial court abused its discretion by entering a "retroactive" judgment of forfeiture against it in the amount of $145,000.Further, in its second assignment of error, American Surety argues that the trial court abused its discretion by issuing a judgment of forfeiture against it because the bonds are void.Specifically, American Surety argues that the judgment is unenforceable because the bonds are void under Crim.R. 46 because the "stacking" of bonds is prohibited by the Ohio Administrative Code.In the alternative, American Surety argues that the bonds are void under Crim.R. 46 based on a breach of contract.

Standard of Review

{¶7}This Court reviews a trial court's bond-forfeiture decision under an abuse-of-discretion standard.State v. Brown , 5th Dist. DelawareNo. 17-CA-32, 2018-Ohio-1047, 2018 WL 1433180, ¶ 8, citingState v. Green , 9th Dist. WayneNo. 02CA0014, 2002-Ohio-5769, 2002 WL 31386775, ¶ 11.An abuse of discretion suggests the trial court's decision is unreasonable, arbitrary, or unconscionable.Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).

Analysis

{¶8}" ‘Bail’ is a form of security such as cash or a bond."State v. Dye , 5th Dist., 2018-Ohio-4551, 122 N.E.3d 678, ¶ 24, citing Black's Law Dictionary 1335 (7th Ed.1999)."The purpose of bail is to ensure the appearance of a criminal defendant before the court at a specific time."Id. , citingState v. Holmes , 57 Ohio St.3d 11, 14, 564 N.E.2d 1066(1991)andR.C. 2937.22(A).

{¶9}"If the defendant fails to appear, there is a breach of the condition of bond and the court may declare a forfeiture of the bond unless the surety can be exonerated as provided by law."State v. Lott , 1st Dist. Hamilton, 2014-Ohio-3404, 17 N.E.3d 1167, ¶ 8, citingState v. Hughes , 27 Ohio St.3d 19, 20, 501 N.E.2d 622(1986)andR.C. 2937.35."A final judgment of forfeiture in the case of a recognizance surety bond has two steps: an adjudication of bail forfeiture under R.C. 2937.35 and a bond forfeiture show cause hearing under R.C. 2937.36."Youngstown v. Edmonds , 7th Dist. Mahoning, 2018-Ohio-3976, 119 N.E.3d 946, ¶ 13.

{¶10}R.C. 2937.36 governs forfeiture proceedings and requires the trial court to notify ("by ordinary mail at the address shown by them in their affidavits of qualification or on the record of the case")the defendant and the surety of the defendant's failure to appear and the trial court's declaration of the forfeiture within 15 days of the trial court's order of forfeiture.R.C. 2937.36(C).After a recognizance is declared forfeited by a trial court, the defendant and the surety must show cause (between 45 and 60 days of the date of the mailing notice)"why judgment should not be entered against each of them for the penalty stated in the recognizance."Id."When good cause is not shown, the trial court must enter a judgement against them in an amount which does not exceed the face of the bond."Id.

{¶11} Before addressing whether the trial court abused its discretion by entering judgment of forfeiture against it on the bonds, we must first address American Surety's arguments that the bonds are void under Crim.R. 46 because OhioAdm.Code 3901-1-66 prohibits the "stacking" of bonds or because the bond contract was breached when the bonds were stacked.

{¶12}Crim.R. 46 guides a trial court's decision on the type, amount, and conditions of a defendant's bail.After considering the factors under Crim.R. 46(C), a trial court may impose an amount of bail in one of the types described in Crim.R. 46(A).SeeState v. Dukes , 8th Dist. CuyahogaNo. 103303, 2015-Ohio-5153, 2015 WL 8536637, ¶ 10." ‘One of the permissible forms of bail is "recognizance," which is a "written undertaking by one or more persons to forfeit the sum of money set by the court or magistrate, if the accused is in default for appearance." ’ "State v. Urch , 11th Dist. AshtabulaNo. 2019-A-0034, 2019-Ohio-3996, 2019 WL 4777046, ¶ 17, quotingState v. Berry , 12th Dist. Clermont No. CA2013-11-084, 2014-Ohio-2715, 2014 WL 2882677, ¶ 9, quotingR.C. 2937.22(A)(3).

{¶13} Under Crim.R. 46, " ‘[o]ne form of a recognizance is a surety bond.’ "Id. , quotingBerryat ¶ 9, citingR.C. 2937.281andCrim.R. 46(A)(3)."A ‘surety bail bond is ‘a court accepted bond instrument from a licensed insurance company issued for or on behalf of an incarcerated person held under criminal charges.’ "⁴State ex rel. Sylvester v. Neal , 140 Ohio St.3d 47, 2014-Ohio-2926, 14 N.E.3d 1024, ¶ 17, quotingOhioAdm.Code 3901-1-66(C)(3).A surety-bond "agreement is backed by an insurance company contract that is signed by one or more persons and the bond agent on behalf of the insurance company."Ohio Department of Insurance, Surety Bail Bond , https://insurance.ohio.gov/wps/portal/gov/odi/about-us/divisions/agent-licensing/resources/surety-bail-bond (accessed Jan. 15, 2020)."A surety's recognizance bond is a contract between the surety and the state whereby the state agrees to release the defendant into the surety's custody and the surety agrees to ensure the defendant is present in court on the appearance date."Dye , 2018-Ohio-4551, 122 N.E.3d 678, at ¶ 25, citingLott , 2014-Ohio-3404, 17 N.E.3d 1167, at ¶ 8andState v. Scherer , 108 Ohio App.3d 586, 591, 671 N.E.2d 545(2d Dist.1995).

{¶14} Once the accused posts the amount and type of bail set by the trial court, Crim.R. 46 authorizes the trial court to release the accused on the conditions imposed by the trial court in accordance with Crim.R. 46(B).Under Crim.R. 46(H), "the same bond shall continue until the return of a verdict or the acceptance of a guilty plea" unless otherwise ordered by the trial court under Crim.R. 46(E) or if application is made by the surety for discharge.SeeGaines v. Wasylyshyn , 6th Dist. WoodNo. WD-08-040, 2008-Ohio-2991, 2008 WL 2468851, ¶ 10. Crim.R. 46(E) permits a trial court(at any time) to amend the type, amount or conditions of bail.SeeSmith v. Leis , 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 68-69.

{¶15}"The right to bail after sentencing in felony cases exists by virtue of R.C. 2953.09, App.R. 8, andCrim.R. 46."(...