State v. McKinney

Decision Date03 September 2021
Docket NumberNo. 20CA17,20CA17
Citation177 N.E.3d 1022
Parties STATE of Ohio, Plaintiff-Appellee, v. Kertez MCKINNEY, Defendant.
CourtOhio Court of Appeals

Judy C. Woldford, Pickaway County Prosecuting Attorney and Jayme Hartley Fountain, Assistant Pickaway County Prosecutor, Circleville, Ohio, for Appellee.

Roger Soroko and Joshua Bedtelyon, Columbus, Ohio, for Appellant.

DECISION AND JUDGMENT ENTRY

Wilkin, J.

{¶1} This is an appeal from a decision of the Pickaway County Court of Common Pleas that denied appellant, Chuck Brown Bail Bonds’, motion to release its liability for the bond it posted on behalf of defendant Kertez McKinney. Appellant asserts two assignments of error: (1) the trial court erred in denying appellant's motion to release liability for McKinney's bond when the appellant fulfilled the obligation on the bond in compliance with the law, and (2) the trial court erred in denying appellant's motion to release liability for McKinney's bond when the court failed to comply with statutory requirements. After reviewing appellant's arguments, the applicable law, and the record, we overrule its assignments of error and affirm the trial court's judgment.

BACKGROUND

{¶2} The state charged McKinney of tampering with evidence, possession of cocaine, and trafficking in cocaine. On October 25, 2019, the trial court required McKinney to "post a bond in the sum of $10,000 in cash, property or surety." On that same day, appellant posted a "bail bond" in the amount of $10,000 on McKinney's behalf, which prohibited him from leaving the state. McKinney failed to appear for his June 12, 2020 pre-trial conference. Consequently, the trial court executed an entry issuing a capias for McKinney's arrest and ordering his bond to "be revoked and forfeited[.]" The court set a bond-forfeiture hearing for August 12, 2020.

{¶3} Appellant moved to continue the August 12, 2020 forfeiture hearing for 60 days to allow it additional time to locate McKinney. The trial court granted the motion and set the hearing for October 14, 2020. McKinney failed to appear on October 14, 2020, and appellant moved for another continuance, which the court granted, giving appellant an additional 30 days to locate him. The court rescheduled the forfeiture hearing for November 18, 2020.

{¶4} On November 4, 2020, two weeks before the scheduled forfeiture hearing, appellant filed a motion to release its liability for the $10,000 bond it posted on McKinney's behalf. Appellant argued that McKinney was arrested and jailed in Macomb County, Michigan, September 11, 2020 through September 13, 2020. Appellant alleged that the Pickaway County Sheriff's Office "was notified that [McKinney] was incarcerated and they could pick him up," but appellant claims that the sheriff's office declined to pick up McKinney. Therefore, the appellant moved the court to release it from liability for McKinney's bond.

{¶5} The trial court denied appellant's motion relying on State v. Hughes , 27 Ohio St.3d 19, 501 N.E.2d 622 (1986), in which the Supreme Court of Ohio did not exonerate the bonding company for liability on a defendant's bond. The court stated that similar to Hughes , appellant was not instrumental in McKinney's capture in Michigan, and made no effort in returning appellant to Pickaway County, but instead relied on the Pickaway County Sheriff's Office to pick up McKinney from Michigan and bring him back. The court reasoned that appellant was responsible for McKinney appearing at his pre-trial hearing and it failed to meet that obligation. It is this judgment that appellant appeals, asserting two assignments of error.

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO RELEASE LIABILITY FOR DEFENDANT'S BOND WHEN APPELLANT FULFILLED THE OBLIGATION ON BOND IN COMPLIANCE WITH THE LAW
II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO RELEASE LIABILITY FOR DEFENDANT'S BOND WHEN THE TRIAL COURT FAILED TO COMPLY WITH STATUTORY REQUIREMENTS
ASSIGNMENT OF ERROR I

{¶6} In its first assignment of error, appellant admits that preventing the escape of a defendant is a surety's responsibility. However, appellant argues that a surety may be excused from liability for a bond if it can show good cause why it should not be held liable. Appellant claims it was never aware that McKinney was incarcerated in Michigan in September of 2020, but the Pickaway County Sheriff's Office was aware of his incarceration. Appellant asserts that it had no legal right to take custody of McKinney from the Michigan jail, but the sheriff could have extradited him and failed to do so. Appellant essentially argues that the sheriff's failure to extradite McKinney is good cause why appellant should be released from liability for McKinney's bond. Had the sheriff extradited McKinney, he would have appeared before the trial court and appellant would have been released from liability. Alternatively, appellant argues the sheriff's office could have informed appellant of McKinney's incarceration in Michigan so appellant could have seized McKinney upon his release and returned him to Ohio, thereby satisfying its obligation on the bond.

{¶7} Appellant argues that the trial court erred in relying on Hughes because it is distinguishable. Appellant claims that in Hughes , Cuyahoga County had begun the extradition process and the bonding company could no longer do anything to get the defendant back to Cuyahoga County. Thus, it was Cuyahoga County's obligation to get the defendant back to Ohio. However, when the extradition hearing was scheduled, the defendant posted bond and fled again thereby shifting responsibility back to the bonding company to produce the defendant. Appellant contends that in this case it was the sheriff's obligation to bring McKinney back to Ohio by initiating an extradition proceeding, but it failed to do so. Unlike in Hughes , the responsibility to return McKinney to Ohio never reverted back to appellant; thus, appellant asserts that we should reverse the trial court's judgment denying its motion for release from liability.

{¶8} In response, the state argues that the trial court did not err in denying appellant's motion for release from liability. Appellant was responsible for securing McKinney's appearance for the June 12th pre-trial, but failed to do so. If this court held McKinney's incarceration in Michigan relieved appellant of its responsibility on the bond, then the state claims there would be no incentive for a surety to track a fugitive. Rather, a surety could simply request to be released from bond under the assumption that the defendant will be picked up in another jurisdiction and extradited, while the surety walks free. Thus, the state asserts that we should affirm the trial court's judgment denying appellant's motion for relief from liability.

Law and Analysis

{¶9} "A trial court's bond-forfeiture decision is reviewed using an abuse-of-discretion standard." State v. Slider , 184 Ohio App.3d 68, 919 N.E.2d 775, ¶ 10 (4th Dist.), citing State v. Green, 9th Dist. Wayne App. Nos. 02CA0014 through 02CA0019, 2002-Ohio-5769, 2002 WL 31386775, ¶ 11. An abuse of discretion is "more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable." Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶10} "Bail is security for the appearance of an accused to appear and answer to a specific criminal * * * charge in any court or before any magistrate at a specific time." R.C. 2937.22(A), see also State v. Hughes , 27 Ohio St.3d 19, 20, 501 N.E.2d 622 (1986). Bail can be "cash or a bond." State v. Dye , 2018-Ohio-4551, 122 N.E.3d 678, ¶ 24 (5th Dist.), citing Black's Law Dictionary 7th Ed. "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." City of Youngstown v. Edmonds , 2018-Ohio-3976, 119 N.E.3d 946, ¶ 12 (7th Dist.), citing State v. Lott , 2014-Ohio-3404, 17 N.E.3d 1167, ¶ 8 (1st. Dist.) ; State v. Scherer , 108 Ohio App.3d 586, 591, 671 N.E.2d 545 (2d Dist.1995).

{¶11} A surety may be exonerated from liability for a bond if it can show "good cause by production of the body of the accused or otherwise." R.C. 2937.36(C). Moreover, in certain circumstances "a promisor may be excused from an obligation to the promisee when the performance promised is rendered impossible by operation of law, if that impossibility was not foreseeable to the promisor." See Scherer , 108 Ohio App. 3d 586, 591, 671 N.E.2d 545 (2d Dist.1995).

{¶12} Appellant relies on Scherer in support of its good cause argument. According to appellant, it was impossible by operation of law for it to extradite McKinney and it was not foreseeable the sheriff's office was not going to extradite him or inform it he was incarcerated in Michigan. But this Court finds that the facts of Scherer are distinguishable and actually support the trial court's denial of releasing appellant from liability for McKinney's bond. In Scherer , the Greene County Court of Common Pleas released the defendant prior to sentencing on bond, which required him to maintain his residence in Kentucky, and not move without giving notice to the court. Scherer , 108 Ohio App.3d at 589, 671 N.E.2d 545. When the court learned that the defendant moved without leave, it issued a warrant for his arrest. Id. The defendant was arrested in Kentucky and detained to face a probation violation for the offense he committed in Ohio. Id. Kentucky revoked the defendant's probation, and filed new charges based on another offense he committed in Kentucky. Id. Consequently, he did not appear for his sentencing in Ohio, and after a hearing, the court in Ohio issued an entry forfeiting his bond. Id.

{¶13} On appeal, the surety argued Kentucky's incarceration of the defendant made...

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  • State v. Banks
    • United States
    • Ohio Court of Appeals
    • January 26, 2023
    ...the penalty of the bond * * *. (Emphasis added.) R.C. 2937.36(C). {¶13} Recently, this court examined the forfeiture statute in McKinney, supra. We noted that, in circumstances, "a promisor may be excused from an obligation to the promisee when the performance promised is rendered impossibl......

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