State v. Torres

• Decision Date: 24 February 2004
• Docket Number: No. 96,996.,96,996.
• Citation: 2004 OK 12,87 P.3d 572
• Parties: STATE of Oklahoma, Plaintiff/Appellee, v. Pablo TORRES, Defendant, and Ranger Insurance Company, Intervenor/Appellant.
• Court: Oklahoma Supreme Court

87 P.3d 572

2004 OK 12

STATE of Oklahoma, Plaintiff/Appellee, v. Pablo TORRES, Defendant, and Ranger Insurance Company, Intervenor/Appellant.

No. 96,996.

Supreme Court of Oklahoma.

February 24, 2004.

J. Ted Bonham and Jeffrey D. Black, Bonham, Swank, Coe & Black, Oklahoma City, OK, for Appellant/Intervenor.

Fred Morgan, Assistant District Attorney for Tulsa County, Tulsa, OK, for Plaintiff/Appellee, the State of Oklahoma.¹

OPALA, V.C.J.

¶ 1 The dispositive issues tendered on certiorari are: (1) Is appellant entitled to corrective relief from a bond forfeiture on grounds arising out of postjudgment events? and (2) Is there competent evidence in the appellate record to demonstrate that the trial court abused its discretion when it denied relief from the bond forfeiture? We answer both questions in the negative.

I ANATOMY OF LITIGATION

¶ 2 On 11 September 2000 Pablo Torres (defendant) was charged in the District Court, Tulsa County, with the crime of rape by instrumentation. Thomas Bouldin, a licensed bondsman (bondsman), and Ranger Insurance Company (appellant), a corporate surety, executed a $50,000.00 bail bond to secure defendant's appearance. Defendant failed to appear for trial on 7 March 2001 and the trial court entered an order and judgment of bond forfeiture. The statutory notice of forfeiture was mailed within the time prescribed by statute.² The bond forfeiture obligation came due on 21 June 2001.³

¶ 3 Without having paid the forfeiture judgment and while defendant remained at large, bondsman moved on 27 August 2001 to set the forfeiture aside,⁴ arguing that a lack of diligence on the part of the Tulsa County District Attorney's office had prevented him from returning defendant to custody.⁵ Bondsman made the following allegations: (1) he had traced defendant to a city in Mexico, (2) he was told that to obtain the assistance of the Mexican government in apprehending defendant, U.S. officials in Mexico would have to receive an Unlawful Flight to Avoid Prosecution (UFAP) warrant for defendant's arrest,⁶ (3) he received instructions from both state and federal prosecutors on the correct procedure for requesting a UFAP warrant, (4) as instructed, he sent to the Tulsa County District Attorney's office a letter dated 24 April 2001, asking state prosecutors to request a UFAP warrant for defendant's arrest from the United States Attorney's office, and (5) prosecutors in the Tulsa County District Attorney's office did not act on bondsman's request until 10 August 2001, well after the expiration of the ninety-day period in which a bondsman can return a defendant to custody and obtain statute-authorized vacation of a bond forfeiture.⁷

¶ 4 A hearing on the motion to set aside the bond forfeiture was held on 14 September 2001. The motion was denied and the trial court ordered that the penalty on the bond be paid by the close of that day's business.

¶ 5 Appellant appealed, arguing that in refusing to vacate the bond forfeiture the trial judge abused the discretion granted him by the provisions of 59 O.S.2001 § 1332(C)(5)(b).⁸ The Court of Civil Appeals, Division No. 3 (COCA), disagreed and affirmed the trial court's order. Appellant then moved for rehearing, requesting not only a reexamination of the trial court's exercise of discretion, but also for the first time seeking review of the trial court's order in light of the provisions of 59 O.S.2001 § 1327(C), which call for the undertaking and sureties to be exonerated of further liability when the criminal proceeding is brought to a conclusion by the defendant's appearance, plea, and sentencing.⁹ The rehearing petition was denied and appellant sought certiorari. Although, like the COCA, we affirm today the trial court's ruling, we granted certiorari to provide, inter alia, guidance on an important point of procedure for securing exoneration where midappeal events give rise to a theory of relief not earlier available at nisi prius. We hence vacate the appellate court's opinion and affirm the trial court's order and judgment of forfeiture.

II APPELLANT'S QUEST FOR CORRECTIVE RELIEF PURSUANT TO THE PROVISIONS OF 59 O.S.2001 § 1327(C) IS NOT SUPPORTED BY THE RECORD SUBMITTED FOR APPELLATE REVIEW

¶ 6 The provisions of 59 O.S.2001 § 1327(C) state that a bond forfeiture shall be set aside when a defendant appears before the court and enters a plea, is sentenced, or is granted a deferred sentence.¹⁰ After the COCA denied appellant the corrective relief it sought, appellant moved for rehearing and for the first time raised § 1327(C) as a ground for reversal of the trial court's order. In support of the rehearing petition, appellant filed an amended designation of record and attached to its rehearing plea a copy of the updated appearance docket from defendant's criminal case. The COCA struck the attempted amendment of the record and denied rehearing. According to the rejected documentation, defendant Torres was returned to the custody of Tulsa County authorities during the pendency of the appeal herein, pled guilty, and was sentenced. Appellant now seeks on certiorari to have this court apply § 1327(C) based on the midappeal events described in appellant's failed supplementation of the appellate record.

¶ 7 Appellant's invocation of the provisions of § 1327(C) raises an issue of public law that relates to the exoneration of appearance bonds. We granted certiorari to clarify, among other things, why we cannot address that issue. When a dispute presents a public-law controversy, we are generally free to grant corrective relief upon any applicable legal theory dispositive of the case and supported by the record.¹¹ While under the more relaxed regime for appellate review of public-law disputes we are free to disregard sua sponte deficiencies in the theories pressed, we may not do the same for deficiencies in the record.¹² Record support remains absolutely essential. We are unable to address issues clearly outside the record.¹³

¶ 8 The trial court never had an opportunity to consider in this case whether appellant is entitled to relief under § 1327(C). The events making that statute arguably applicable had not yet taken place when the nisi prius court issued its order here on review. Appellant would now like to bypass the normal fact-finding procedure and present evidence directly to this court. To this aberration we cannot accede.¹⁴Our review must stand confined to that record which was made before the nisi prius court at the time of its decision now under scrutiny.¹⁵ Our cognizance of this case cannot be affected by midappeal proceedings before the trial court in defendant's criminal case. The fact that post-decisional events may arguably provide a basis for invoking a legal theory that was not available when the decision under review was issued simply is not grounds for supplementation of the appellate record before the COCA.

¶ 9 The remedy to be pursued under these circumstances was for appellant to seek in the trial court postjudgment relief affordable by multiple statutory proceedings.¹⁶ Had appellant chosen the correct course, we in all likelihood would have agreed to a stay of appellate proceedings pending the trial court's ruling.¹⁷ If appellant had met with an adverse ruling from the trial court, it could have appealed from that ruling and moved here to consolidate the two related appeals.¹⁸ Instead, appellant chose for the

corrective relief it seeks here a fatally flawed procedural course.¹⁹

III STANDARD OF REVIEW

¶ 10 The sole contention tendered by appellant which is reviewable on certiorari is whether the trial court abused its discretion in denying bondsman's motion to set aside the bond forfeiture. The decision whether to vacate a bond forfeiture is reviewable by the standard of reasonable discretion. It will not be disturbed absent an abuse of discretion.²⁰ We have characterized the abuse-of-discretion standard by a variety of similar expressions. We have said that discretion is abused when a trial court makes a clearly erroneous conclusion and judgment contrary to reason and evidence,²¹ when it exercises its discretion to an end or purpose not justified by, and clearly contrary to, reason and evidence,²² and when discretion is employed on untenable grounds or for untenable reasons, or where its exercise is manifestly unreasonable.²³

IV APPELLANT FAILED TO INTRODUCE COMPETENT EVIDENCE AT THE TIME OF NISI PRIUS HEARING THAT IT WAS ENTITLED TO HAVE THE BOND FORFEITURE SET ASIDE; THERE IS HENCE NOTHING IN THE APPELLATE RECORD FROM WHICH THIS COURT CAN DETERMINE THAT THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT THE RELIEF IT SOUGHT

¶ 11 The provisions of 59 O.S.2001 § 1332(C)(5)(b) invest the trial court with discretion to vacate a bond forfeiture where a bondsman demonstrates good cause for failing to return a defendant to custody.²⁴ The burden to show facts warranting relief from a bail bond forfeiture rests on the party seeking such relief.²⁵ Although the bondsman's motion presents in this case a facially plausible argument for § 1332(C)(5)(b) relief, the appellate record is utterly devoid of competent evidence of either the bondsman's efforts to locate and return the defendant to custody or of the state's actions that were alleged to have hindered bondsman's efforts.

¶ 12 At the hearing on bondsman's motion, appellant's counsel provided for the nisi prius court a running narration of the facts supportive of the relief requested, but offered neither sworn testimony nor other evidence having probative value. Counsel's in-court description of the efforts made by bondsman to gain custody of defendant and of the conduct of the district attorney's office that allegedly hindered those efforts cannot serve as a substitute for legal proof.

¶ 13 Appellant designated for inclusion in the appellate record certain documents from the court file in defendant's criminal case. Again, none of these documents was introduced into...