State v. Berry
2014 Ohio 2715
Ohio Ct. App.2014Background
- Lucky L. Berry was arrested in Clermont County; a bondsman (Robert Stevenson), as agent for Accredited Surety and Casualty Co., executed a $10,000 surety bond to secure Berry's release.
- Bond conditions required Berry to report for periodic toxicology screening and to appear for sentencing; Berry missed a drug test (June 13) and the sentencing hearing (June 24).
- The trial court declared bail forfeited and mailed notice of an August 12 show-cause hearing to Berry, Stevenson, and Accredited (the surety); none appeared at the hearing and judgment for $10,000 was entered jointly and severally.
- Accredited later moved under Civ.R. 60(B) for relief from judgment and separately moved for release/exoneration of the bond, arguing impossibility of performance because Berry was incarcerated in Kentucky.
- The trial court denied both motions; on appeal the court affirmed, finding (1) Berry’s Kentucky incarceration began after his prior failures to appear, so impossibility did not excuse Accredited’s liability, and (2) Accredited failed to meet Civ.R. 60(B) requirements (no operative facts showing fraud that prevented presentation of a defense and no excusable neglect).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether surety is released from bond due to impossibility (accused incarcerated out-of-state) | Trial court contends surety must remain liable unless good cause shown | Accredited: Berry’s Kentucky incarceration made his appearance impossible, so surety should be exonerated | Court: Denied — Accredited’s own exhibit showed Berry’s Kentucky incarceration began after earlier failures to appear, so impossibility did not excuse liability |
| Whether Civ.R. 60(B) relief is warranted for surprise/excusable neglect | Accredited argues surprise and excusable neglect for not appearing at show-cause hearing | State: Accredited received notice and failed to appear; belief that it had no obligation is not excusable neglect | Court: Denied — Accredited failed to show excusable neglect; conduct could be viewed as disregard for judicial process |
| Whether Civ.R. 60(B)(3) fraud relief applies because bondsman was unauthorized/ bond expired | Accredited alleges Stevenson's fraud/unauthorized posting and bond form showed expired date | State: Any fraud was a defense to liability, not fraud that prevented Accredited from presenting a defense at the hearing | Court: Denied — Alleged fraud was a defense to liability, not fraud on the court preventing presentation of defenses |
| Whether Accredited preserved all arguments for appeal | N/A | Accredited raised surprise theory on appeal but not below | Court: Issues raised first on appeal (surprise argument) are not considered |
Key Cases Cited
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (Ohio 1983) (standard for abuse of discretion)
- State v. Scherer, 108 Ohio App.3d 586 (Ohio Ct. App. 1996) (surety bond is a contractual recognizance; incarceration in another jurisdiction can establish impossibility)
- State v. Sexton, 132 Ohio App.3d 791 (Ohio Ct. App. 1999) (when defendant is legally unable to appear due to out-of-state incarceration, appearance may be impossible)
- State v. Hughes, 27 Ohio St.3d 19 (Ohio 1986) (purpose of bail is to ensure accused's presence)
- GTE Automatic Elec. v. ARC Indus., 47 Ohio St.2d 146 (Ohio 1976) (standard for granting Civ.R. 60(B) relief)
- Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17 (Ohio 1988) (all three GTE/Civ.R. 60(B) elements must be shown)