State v. Old West Bonding Co., No. 1 CA-CV 01-0436

• Decision Date: 26 September 2002
• Docket Number: No. 1 CA-CV 01-0499, No. 1 CA-CV 01-0510, No. 1 CA-CV 01-0512., No. 1 CA-CV 01-0436
• Citation: 56 P.3d 42,203 Ariz. 468
• Parties: STATE of Arizona, Plaintiff-Appellee, v. OLD WEST BONDING COMPANY, Don's Better Bail Bonds, and Safety National Casualty Corporation, Real Parties in Interest-Appellants.
• Court: Arizona Court of Appeals

56 P.3d 42

203 Ariz. 468

STATE of Arizona, Plaintiff-Appellee, v. OLD WEST BONDING COMPANY, Don's Better Bail Bonds, and Safety National Casualty Corporation, Real Parties in Interest-Appellants.

Nos. -0436, -0499, -0510, -0512.

Court of Appeals of Arizona, Division 1, Department C.

September 26, 2002.

Richard M. Romley, Maricopa County Attorney, by Peter S. Spaw, Deputy County Attorney, Phoenix, Attorney for Plaintiff-Appellee.

Clifford M. Sherr, Phoenix, Attorney for Real Parties in Interest-Appellants.

Joey N. Hamby, Phoenix, Attorney for Amicus Professional Bail Agents of Arizona, Inc.

OPINION

HALL, Judge.

¶ 1 In this consolidated matter, Old West Bonding Company ("Old West"), Don's Better Bail Bonds ("Don's"), and Safety National Casualty Corporation¹ appeal from six judgments forfeiting appearance bonds. In each case, after the defendant failed to appear for scheduled court proceedings, the trial court issued a bench warrant and scheduled a forfeiture hearing. Following each hearing, the trial court entered judgment forfeiting the entire appearance bond based on its belief that forfeiture was mandated because the surety failed to provide a reasonable explanation or excuse for the defendant's nonappearance. See Ariz. R.Crim. P. 7.6(c)(2). Concluding that the trial court misapplied various provisions of recently amended Arizona Rule of Criminal Procedure ("Rule") 7.6 (see Appendix),² we vacate each judgment and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 We begin by reciting the relevant facts in each case.

Superior Court No. CR2001-090550 (Tart)

¶ 3 Tart was released from custody January 13, 2001, on an appearance bond in the amount of $3,540 posted by Old West. When he failed to appear on June 21, 2001, for the first day of trial, the trial court issued a bench warrant for his arrest and scheduled a bond forfeiture hearing for August 6, 2001. Old West received notice of the bench warrant on June 28, 2001. That same day, its agents arrested Tart at his home and surrendered him to the Maricopa County Sheriff's Office ("MCSO"). At the forfeiture hearing, Tart explained that he did not appear on June 21 because he thought his trial began June 22.³ Finding no reasonable cause for Tart's failure to appear, the court ordered forfeiture of the entire amount of the bond.

Superior Court No. CR1999-012996 (Sanders)

¶ 4 Sanders was released from custody on October 31, 2000, on an appearance bond in the amount of $10,000 posted by Old West. When he failed to appear on March 22, 2001, for the return of verdict following his jury trial, the trial court issued a bench warrant for his arrest and scheduled a bond forfeiture hearing for May 21, 2001. Sanders was arrested on the bench warrant on April 27, 2001.

¶ 5 At the forfeiture hearing Old West's representative informed the trial court that Old West did not receive the required notice that a bench warrant had been issued. If it had, argued Old West, it could have placed Sanders into custody because it was in frequent contact with him, including two occasions—April 3 and April 17—when Sanders came to its office. The court acknowledged that a copy of the minute entry regarding issuance of the bench warrant was sent to the wrong bonding company (Affordable Bail Bonds), but it forfeited the entire amount of the bond because the explanation offered by Sanders—"I was kind of like scared"—for his nonappearance was not a reasonable excuse and the lack of requisite notice was not a "flaw" that prevented forfeiture.

Superior Court No. CR2001-002471 (Wolfe)

¶ 6 Wolfe was released from custody on May 7, 2001, on an appearance bond in the amount of $1,770 posted by Old West. When Wolfe failed to appear for sentencing on June 4, 2001, the trial court issued a bench warrant for her arrest and scheduled a forfeiture hearing for July 30, 2001. Old West received notice of the bench warrant, apprehended Wolfe on June 13, and surrendered her to the MCSO. At the forfeiture hearing, which was rescheduled to August 27, 2001, Wolfe stated that she failed to appear because she was "strung out on heroin." Finding no reasonable excuse, the court forfeited the bond.

Superior Court No. CR2001-000466 (Denton)

¶ 7 Denton was released from custody on March 26, 2001, on an appearance bond in the amount of $1,770 posted by Old West. When she failed to appear for sentencing on June 11, 2001, the trial court issued a bench warrant for her arrest and scheduled a bond forfeiture hearing for July 30, 2001. Old West received notice of the bench warrant, apprehended Denton, and surrendered her to the MCSO on June 22, 2001. At the forfeiture hearing, Denton stated that she had failed to appear for sentencing because she knew she would be incarcerated. Finding no reasonable cause for her nonappearance, the court forfeited the bond.

Superior Court Nos. CR2001-004538/CR2000-018611 (Bromwell)

¶ 8 Bromwell was released from custody in two separate cases on April 18, 2001, on appearance bonds posted by Don's for $1,500 and $1,770. When Bromwell failed to appear on July 11, 2001, for sentencing on both matters, the trial court issued a bench warrant for his arrest and scheduled a forfeiture hearing for September 17, 2001. After receiving notice of the bench warrant, Don's apprehended Bromwell and surrendered him to the MCSO on July 16, 2001. Following the forfeiture hearing, the court found no reasonable excuse for Bromwell's failure to appear and ordered forfeiture of both bonds.

STANDARD OF REVIEW

¶ 9 On appeal, we examine the evidence "in the light most favorable to support the judgment of the trial court." State v. Garcia Bail Bonds, 201 Ariz. 203, 205, ¶ 5, 33 P.3d 537, 539 (App.2001). We review a trial court's order forfeiting the bond for an abuse of discretion, but we interpret de novo court rules governing appearance bonds. Id.

DISCUSSION

I

¶ 10 Although the specific explanation given by the trial court in each case for forfeiting the bond varied depending on the facts, the trial court's overriding rationale was its belief that Rule 7.6(c)(2)⁴ mandated forfeiture of the entire bond unless the surety justified the defendant's nonappearance. See State v. Rogers, 117 Ariz. 258, 261, 571 P.2d 1054, 1057 (App.1977)

.

¶ 11 Appellants, on the other hand, claim that an appearance bond cannot be forfeited pursuant to Rule 7.6(c)(2) but must instead be exonerated pursuant to Rule 7.6(d)(2) whenever a surety surrenders the defendant after the defendant has violated a condition of his or her appearance bond but before entry of the forfeiture judgment. Appellants, pointing to the 1998 amendments to Rule 7.6, contend that a prejudgment surrender of the defendant constitutes reasonable cause to avoid forfeiture.

¶ 12 We interpret rules of procedure, as we do statutes, by their plain meaning. Ariz. Dep't of Revenue v. Superior Court, 189 Ariz. 49, 52, 938 P.2d 98, 101 (App.1997). We must "give effect to each word, phrase, and clause included by the supreme court." Id. Furthermore, "[r]ules of procedure and statutes are read in conjunction with each other and harmonized whenever possible." Groat v. Equity Am. Ins. Co., 180 Ariz. 342, 347, 884 P.2d 228, 233 (App.1994).

¶ 13 To properly consider appellants' claim, we must first review Arizona's "reasonable cause" requirement. Historically, the requisite explanation or excuse embodied in Rule 7.6(c)(2) has been limited to an explanation of the circumstances surrounding the defendant's nonappearance. For example, former Arizona Rule of Criminal Procedure 74 (1956) required a surety to demonstrate "reasonable cause" for the defendant's nonappearance for remission of a forfeiture judgment. See, e.g., State ex rel. Ronan v. Superior Court, 96 Ariz. 229, 233, 393 P.2d 919, 921 (1964)

(trial court erred in vacating forfeiture judgment because defendant's arrest and incarceration in another state two days after his scheduled court date in Arizona was not reasonable cause for his nonappearance); State ex rel. Corbin v. Superior Court, 2 Ariz.App. 257, 261, 407 P.2d 938, 942 (1965) ("When a defendant is absent at the appointed time, the State has the right to a forfeiture and the burden of proof rests with the surety to show reasonable cause."); United Bonding Ins. Co. v. City Court of the City of Tucson, 6 Ariz.App. 462, 464, 433 P.2d 642, 644 (1967) ("`Reasonable cause,' within the contemplation of [Rule 74], means reasonable cause for the nonappearance of the defendant.").

¶ 14 In 1973, as part of its comprehensive revision of the criminal rules of procedure, the supreme court combined former Rules 70-75 (1956) into a single proceeding under then Rule 7.6(d) (1973). See Rule 7.6(d) (1973) cmt. The explanation or excuse required under Rule 7.6(d) (1973) was deemed a continuation of the "reasonable cause" requirement under former Rule 74. See, e.g., State v. Veatch, 132 Ariz. 394, 397, 646 P.2d 279, 282 (1982); Rogers, 117 Ariz. at 260,571 P.2d at 1056.⁵

¶ 15 Against this background, we address appellants' claim that, regardless of the reason for a defendant's nonappearance, the 1998 amendments to Rule 7.6 entitle a surety to exoneration of an appearance bond so long as the surety surrenders the defendant before entry of the forfeiture judgment. In making this argument, appellants rely primarily on Rule 7.6(d)(2), which provides:

If the surety, in compliance with the requirements of A.R.S. § 13-3974,⁶ surrenders the defendant to the sheriff of the county in which the prosecution is pending, or delivers an affidavit to the sheriff stating that the defendant is incarcerated in this or another jurisdiction, and the sheriff reports the surrender or status to the court, the court may exonerate the bond.

(Emphasis added.) Conceding that the word "may" connotes discretion, appellants nonetheless argue that the court's discretion is limited to determining whether exoneration would be unjust or unreasonable under the circumstances. We ...