State v. Howard L. Hollis, 86-LW-2127

Decision Date09 July 1986
Docket Number3913,86-LW-2127
PartiesSTATE of OHIO, Plaintiff-Appellee, v. HOWARD L. HOLLIS, et al., Defendants-Appellants.
CourtOhio Court of Appeals

Appeal from Judgment Entered in the Common Pleas Court County of Lorain, Ohio Case No. 28693

Gregory A. White, Prosecuting Attorney, Elyria, for plaintiff.

Elbert Pringle, Akron, for defendants.

DECISION AND JOURNAL ENTRY

This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:

GEORGE Judge.

Defendant-appellant, Merchants & Manufacturers Insurance Company (Merchants), appeals the denial of its motion to vacate the forfeiture of its bond.

Merchants is the surety of a recognizance bond issued on Howard Lee Hollis. Hollis failed to appear for his scheduled jury trial on May 24, 1984. The trial court thereupon ordered his bond forfeited. The trial court granted Merchants two extensions of time within which to secure Hollis' appearance.

Merchants was unable to produce Hollis within the one hundred and forty-eight days alloted by the extensions. Hollis was finally apprehended on February 28, 1985. The trial court conducted a hearing on the issue of whether the bond should be forfeited. Merchants' agent, Audrey Williams, testified at the hearing but was not represented by counsel. The court again ordered the bond forfeited.

Merchants filed a motion to vacate the judgment of forfeiture alleging that it was not given notice of the hearing pursuant to R.C. 2937.36. The court conducted another hearing on Merchant's motion to vacate. The motion was denied. This court affirms.

ASSIGNMENT OF ERROR
"The trial court abused its discretion in denying in whole appellant's motion to vacate or modify the bond forfeiture judgment.'

The gist of Merchants' argument on appeal is that its efforts in attempting to find Hollis and bring him before the court entitle it to a partial remission of the funds forfeited. R.C. 2937.39 reads in its entirety:

"After judgment has been rendered against surety or after securities sold or cash bail applied, the court or magistrate, on the appearance, surrender, or rearrest of the accused on the charge, may remit all or such portion of the penalty as it deems just and in the case of previous application and transfer of cash or proceeds, the magistrate or clerk may deduct an amount equal to the amount so transferred from subsequent payments to the agencies receiving such proceeds of forfeiture until the amount is recouped for the benefit of the person or persons entitled thereto under order or remission.'

A trial court does not abuse its discretion in refusing to vacate a bond forfeiture where the surety lacks a sufficient defense to the judgment. State v. Ward (1978), 53 Ohio St. 2d 40, 42. A sufficient defense is a showing of good cause as to why the surety failed to produce the defendant. Id.; State v. Smith (1984) 14 Ohio App. 3d 14. Research has not revealed any reported cases on the question of when a partial remission is due under R.C. 2937.39. However, the statute's language indicates that the court has broad discretion in the matter.

In State v. Ohayon (1983), 12 Ohio App. 3d 162, the surety had filed with the trial court a "Motion to Discharge Surety in Part From Bond Forfeiture.' The principal had fled to Israel and was not amenable to extradition proceedings. The surety argued impossibility of performance but the trial court denied the motion. In affirming the trial court, the appellate court stated:

"* * *.'
"The escape of a defendant is the business risk of a bail surety. It is precisely the situation which a surety guarantees against. Appellant insured
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