*1 AM In re the FORFEITURE BOND SURETY INSURANCE
WEST
CO., Appellant-Intervenor, Indiana, Appellee-Plaintiff.
STATE
No. 20A03-0010-CR-363. Appeals
Court Indiana. 25, 2001.
June *2 Frechette, Elkhart, IN,
John R. Attor- ney Appellant. for Freeman-Wilson, Attorney Karen Gen- Indiana, Beam, eral of Timothy Deputy W. General, IN, Attorney Indianapolis, Attor- neys Appellee.
OPINION SHARPNACK, Judge. Chief In appeal, this consolidated ("Amwest") Surety appeals Insurance Co. from the denial of two motions to be re- leased from bail bond. Amwest raises one issue, which we restate as whether trial court abused its discretion when it denied both of Amwest's motions to be released from bail bond. affirm. 24, The relevant facts follow. On March charged Jorge by the State Martinez information with two offenses. On the number, day, separate same under a cause charged the State Ricardo Munoz infor- cases, mation with one offense. In both the trial court set bail in the bonds amount $50,000.1 Subsequently, again Amwest under west once contacted the Munoz, for Martinez and wrote bail bonds appre was told that Amwest could not jail. from who were released hend and surrender Munoz because there was no warrant for Munoz's Am- arrest.2 July Amwest received infor- *3 On request west did not file a on the record mation that Martinez had moved to a new for an arrest warrant. Munoz left the jurisdiction residence within the without jurisdiction and has not returned. and that in- informing Amwest Martinez go tended to to Mexico. Amwest believed 29, 1999, July On Martinez failed to that Martinez had violated the conditions appear pretrial for a hearing, so the trial by moving informing of his bond without court issued a warrant for his arrest and Elkhart Arawest. - Amwest called the ordered Amwest to surrender Martinez ("the County Department Depart- Sheriff's immediately or face late fees and bond ment") to inform the it Department that 19, 1999, Similarly, August forfeiture. on apprehending would be Martinez and re- appear pretrial Munoz failed to for a hear- jail. him turning Department to the A ing, so the trial court issued a warrant for that, employee informed Amwest accord- his arrest and ordered Amwest to surren- ing policy, to a new would Department immediately der Munoz or face late fees not accept pre- Martinez unless Amwest and bond forfeiture. sented certified of the bail copies bond and Subsequently, Amwest filed a in motion an arrest warrant. The em- Martinez's case to be released from its bail ployee employ- also told Amwest that if its bond. Amwest filed a similar motion him apprehended brought ee Martinez and hearings, case. After the trial Munoz's jail to the without a certified arrest war- court denied both motions. rant, employee the Amwest could be a charged making with false arrest. The sole issue is whether the trial 15, 1999, July employee On an Amwest court discretion abused its denied went to the trial court's chambers to re- of both Amwest's motions to be released warrant, quest an Judge but Shew- Although from bail bond. Indiana cases maker refused to see him. did do not reveal a a standard review for request not file a on the record an bond, motion for release from this court jurisdic- arrest warrant. Martinez left the has determined that a motion to "withhold tion and has not returned. declaring a forfeiture" aof bond was re viewable for abuse of discretion. Scholl July
On Amwest received infor- State, 401, 403-404, Ind.App. v. 91 170 mation that Munoz had moved to a new (1930). 3483, procedural N.E. 344 The jurisdiction residence within the without factually types oriented natures of the two informing Amwest and that Munoz intend- enough of motions are similar that we shall ed to move to Texas. As was the case Martinez, Am- rulings review the trial court's on Amwest believed that Mu- noz violated the conditions of his bond west's motions for release from bond for moving informing without Amwest. Am- an abuse of discretion.3 assigned topic, appellate 1. cases were 3. Both to the same trial On a related when Indiana court. appeals courts address that involve bond for- feitures, legislature provided has that "the Department subsequently 2. The abandoned evidence, any, shall be reviewed." if longer policy requires this no sureties to 27-10-2-10(h). It unclear whether Code is present they arrest warrants when surrender provision requires weigh evi- this us to defendants. 868 " that of law is question is a action is statute in a eriminal
A 'bond v. Deros gov the courts. State between reserved for a contract nature of 205, sett, (Ind.Ct.App. 206 and the defendant 714 N.E.2d the one side ernment on 1999). statutory construction goal the other."" Allied Fi The surety on and his to, determine, imple v. by AAA Bail Bonds effect give Ins. Co. is to delity Collier legislature. intent of the State, 985, (Ind.Ct.App. ment the 494 N.E.2d (Ind.1998). 1986) Collier, 2d Bail and Re Am.Jur. (quoting 8 702 N.E.2d (1980))4 a cash When cognizance into the statute may not read the release posted is secure expressed bail bond intent which is not the Derossett, defendant, at 206. 714 N.E.2d clerk holds the legislature. a criminal *4 large at and is intent, the defendant is funds while we legislative In order to discern the the unless depositor returned to meaning later ordinary and plain look to the due to the defendant's forfeited bond is in phrases and used the statute. the words Clary, 606 (Ind.Ct. Turner v. appear. 908, failure to J.D., N.E.2d 910 State v. 701 878, The (Ind.Ct.App.1993). addition, 880 N.E.2d In App.1998), trans. denied. trial is to insure the object prior of bail to general to the same statutes that relate required, materia, of the accused presence in and subject pari matter are incarceration, be hardship the without together in order they should be construed and while guilt fore has been established statutory scheme. produce to a harmonious giv innocence is to be presumption the Id. State, N.E.2d 622
en effect. Larkins law, em At the common sureties were 1299, (Ind.Ct.App.1993). an powered to seize defendants without it have" contends should to the warrant and to return them arrest bonds because: been released from its bail Taylor v. Tain custody. authorities' See 1) statutory right apprehend to it had a 371, tor, 366, 16 Wall. 83 U.S. with- Martinez and Munoz and surrender (1872) (providing that sei "[the L.Ed. 287 2) warrant; the a and out certified by process. not virtue of new zure is made acting agent an of the Department, as needed."). However, legisla our None is State, right by with Amwest's interfered statutory guidelines promulgated ture has accept prison- stating that would not surren applicable to sureties who seek to arrest warrant and ers without a certified per primary der defendants. The statute employee with by threatening Amwest's surrendering pro to defendants taining disagree. false arrest. We vides, part: in relevant (a) desiring to make a sur- person The We first address whether pro- of the defendant shall be of a certified render Department's requirement copy a certified of the under- This is a vided proper. arrest warrant was copy a certified takings for Indiana and question impression of first arrest warrant forthwith it we must turn to the courts. To resolve jurisdiction having clerk of the court bonding, doing but before statutes on bail together with rules of and shall deliver them necessary so it is to review our official in whose the defendant to the statutory interpretation construction. The passage currently in a 4. This can be found dence, so, whose favor the evidence and if in event, weighed. any because we slightly should be In modified form in 8A AmJur. 2d Bail appeal upon inter- decide this based (1997). Recognizance § 51 facts, pretation undisputed it is unneces- sary point. to this address ties, at custody the defendant was order to surrender the defendant. Thus, or to time bail was taken the official appears among there to be a conflict eustody into the defendant whose the three statutes. committed, given been if
would have apparent The conflict is re who shall detain the defendant by turning § solved to Ind.Code 27-10-2- thereon, custody upon official's a as 12(a). provides, That statute in relevant commitment, acknowledge and shall part: the surrender in a written certifi-
cate. (a) If a defendant appear does not as 27-10-2-6(aq). Ind.Code This statute provided in the bond: require surety provide seems to a (1) the court shall: surety arrest warrant whenever the sur- (A) issue a warrant the defen- renders defendant to the authorities. arrest; dant's However, provides: 27-10-2-7 Ind.Code (B) order the bondsman and the sure- purpose surrendering For the ty to surrender the defendant to defendant, surety may apprehend *5 the immediately; court and the defendant before or after the forfei- undertaking may empower ture of the or (2) the clerk shall mail notice of the any law enforcement officer to make order to both: apprehension by providing written au- (A) bondsman; the and thority endorsed on a of copy certified (B) surety; the undertaking the and the paying lawful fees therefor. at each of the addresses indicated in the 27-10-2-5(a) bonds. addition, § In pro- Ind.Code
vides: 27-10-2-12(a). § ILC. Pursuant to this (a) Any time before there has been a statute, an arrest warrant when a is issued undertaking any breach of the in defendant appear, fails to and the trial bond, type of bail and cash the sure- court an surety sends order to the and defendant, ty may a surrender or bonding agency to surrender the defen- surrender, may the defendant to the 27-10-2-6(a)'s § dant. readWe Ind.Code custody official to whose the defen- requirement surety that a "shall provid- be dant was committed at the time bail copy undertakings ed a certified of the and was taken or to the official into a copy certified of the arrest warrant" as custody whose the defendant would referring process to the set forth given have been if committed. 27-10-2-12(a). Thus, § Code a de- court,
Both
permit
surety
appre-
statutes
a
to
fendant
appear
has failed to
the
hend and
a
surrender
defendant before the
trial court must issue an arrest warrant
defendant violates the terms of the under-
27-10-2-12(a),
pursuant
§
to Ind.Code
circumstances,
taking. Under
those
surety
provide
copy
must
a certified
that warrant
to the authorities when sur-
would be difficult
an
to obtain
arrest war-
rendering
pursuant
a defendant
to Ind.
rant,
requires
and neither
statute
sureties
27-10-2-6(a). However,
§
to obtain such a warrant. At
the same
Code
when the
time,
27-10-2-6(a)
§
pro-
plainly
surety
Ind.Code
seeks to surrender a defendant be-
vides that a surety
provided
must be
fore the defendant has
the terms
breached
§§
undertaking,
then Ind.Code
27-
warrant,
copy
a certified
of the
arrest
present
must
that warrant
to the authori-
10-2-5(a)
apply,
and 27-10-2-7
and the
ways
to
au-
provide
required
petition
not need
the trial court for
surety does
upon
a
warrant
learning
certified arrest
an arrest
thorities with
warrant.
that a defendant was about to breach the
of these four
interpretation
Our
statutes
Record, p.
terms of the bond.
36. Based
mandate to construe in
complies with our
upon
interpretation
governing
our
together
pari materia statutes
and avoid
statutes,
persuasive authority
and the
invalidating
portions
or
statutes
thereof.
Attorney
General and the Commission
J.D.,
ened the with false arrest he Affirmed. apprehended Similarly, Martinez. before Munoz, apprehending employ- an Amwest KIRSCH, J. concurs. Department again ee called the and was MATTINGLY-MAY, J. concurs with apprehend told that he could not Munoz separate concurring opinion. because there no was active arrest war- rant. MATTINGLY-MAY, Judge, concurring Department's We conclude that separate opinion with statements were insufficient to constitute I agree majority with the that the trial right interference with Amwest's to sur court did not deny- abuse its discretion in render the defendants. At the time that motions, ing Amwest's but I write sepa- the Department told Amwest not to sur rately express my to with respect concerns defendants, they render the were still liv to two issues. ing jurisdiction. in the Amwest should have First, apprehended majority Martinez and Munoz and at is correct that tempted to surrender them to the Depart Department's position did not interfere ment. At that if point, Department right with apprehend Amwest's to and sur- accept had refused to the defendants' sur However, render the defendants. I dis- go, render and had instead let if them with agree majority's conclusion that they subsequently juris had fled from the apprehended "Amwest should have Mar- diction, then the would have attempted tinez and Munoz and to surren- with right appre interfered Amwest's to them the Department." (Maj. Op. der to hend and surrender the defendants. Fur 871.) at Amwest had been told thermore, although we have determined Department that if it attempted to surren- required that Amwest was not obtain an to der Martinez and Munoz without active prior apprehending arrest warrant Mar warrants, charged it could be Munoz, tinez could have making a false arrest. I do not believe *7 court, sought by relief the trial either obliged Amwest was to risk action for requesting clarification of its protect false arrest in order to inter- its rights by requesting or warrants. ests. However, request Amwest did not file a on Department's The on active insistence the record for relief either case. Under not, however, preclude arrest warrants did cireumstances, agree these we cannot pursuing rights. Amwest from its It could Amwest's contention that the have, notes, majority "sought as the relief deprived custody Amwest of of the defendants. court, by requesting in the trial either State, v. Ind.App. Cf Weaver 56 . statutory rights clarification its or (1914) (holding 105 N.E. requesting (Maj. Op. arrest warrants." at that a sheriff surety's interfered with a 871.) either, It was Amwest's failure to do right to surrender a defendant when the actions, Department's and not that defendant, thereby sheriff arrested the re caused the eventual forfeiture of the moving surety's the defendant from the bonds. custody). Consequently, the trial court did Second, clarify Judge not I would abuse its discretion when denied appropriately Amwest's motions to be released from Shewmaker acted when he employee. bond. declined to see an Amwest Conduct,. that, provides Canon Judicial exceptions applicable not
subject to certain
here, initiate, permit, not shall judge "[a] communications, or parte ex
or consider communications made
consider other par- judge presence outside the
ties, impending or concerning pending in- The criminal matters
proceeding...." pending Munoz were
volving Martinez and Judge appropri-
proceedings. Shewmaker employee an Amwest
ately declined to see presence prosecuting
outside
attorney the defendants' counsel.
Further, judge's pre- actions did not filing from for an arrest war-
vent Amwest asking hearing for another on the
rant or
matter of bond.
In the Matter of Termination Relationship Parent/Child
M.H.C., Child, a Minor
Tonya HILL, Mother, Natural Corley,
and Michael
Natural Father.
No. 46A03-0012-JV-470. Appeals
Court of of Indiana.
June 2001.