State v. BarnesState v. Barnes
* * * * *
Thomas L. Steirwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appеllee.
Loretta A. Riddle, for appellant.
* * * * *
PIETRYKOWSKI, J.
{¶ 1} Appellant, Hollies Mayo, dba Mayo Bail Bonds, appeals the May 6, 2010 judgment of the Sandusky County Court of Common Pleas which ordered forfeiture of
{¶ 2} In the underlying case before the trial court, Barnes was indicted on multiple counts of cocaine trafficking. On March 27, 2009, appellant pоsted a $30,000 surety bond conditioned on Barnes’ appearance at all subsequent court proceedings. The court sent the defendant notices of court proceedings but they were returned as undeliverable.
{¶ 3} On July 14, 2010, appellant filed an “Affidavit of Surety,” which stated:
{¶ 4} “I Hollies P.J. Mayo of Mayo Bail Bonds & Surety, Inc. 2703 Merriweather Road, P.O. Box 1818, Sandusky, OH 44870 do hereby enter my request to be released as surety on a $30,000 bond filed on 3/26/09, which I have signed for James Lаmont Barnes, Defendant herein, PURSUANT TO SECTION 2937.40, ORC. The aforementioned Mr. Barnes and his fiancée Ms. Gayle Gadie has and still are providing aid as well as hiding Mr. Larry Barnes (The brother of Mr. James Barnes) from me and this court. I humbly submit this request to this Honorable Court.”
{¶ 5} The request was denied, without comment, on July 23, 2009. Thereafter, on October 15, 2009, Barnes arrived one-half hour late for his jury trial. The jury had been seated and excused. Barnes was held in contempt оf court and ordered jailed until jury fees and a fine were paid. The amount was paid by a family member and Barnes was released.
{¶ 7} Barnes did retain new counsel. On January 12, 2010, Barnes filed a motion to reinstate bond. The motion was granted on January 25, 2010. Barnes failed to appear at his February 18, 2010 trial and a capias was issued. Also on February 18, 2010, the trial court notified appellant as follows:
{¶ 8} “You are hereby placed on Notice that unless you produce the body of the defendant in open court on or before Monday, March 1, 2010 at 9:00 A.M. or such later date as the Court may authorize, your said bond shall be declared forfeit and judgment shall be rendered against you in the sum of $30,000.00 in accordance with the provisions of law. (
{¶ 9} Following the March 1, 2010 hearing where appellant failed to appear, on May 6, 2010, the trial court entered judgment in favor of the state for $30,000. This appeal followed.
{¶ 11} “Assignment of Error No. I
{¶ 12} “The trial court erred, abused its discretion and denied surety due process by denying a surety‘s request for surrender of an accused in open court pursuant to
{¶ 13} “Assignment of Error No. II
{¶ 14} “The trial court erred, abused its discretion and violated a surety‘s due process right by ‘re-instating’ a surety bond when the court revoked the bond for reasons other than a ‘failure to appear’ or a ‘breach of the conditions’ of the bond.
{¶ 15} “Assignment of Error No. III
{¶ 16} “The trial court abuses its discretion when it does not follow
{¶ 17} In appellant‘s first assignment of error, she argues that her affidavit requesting to be released as surety sufficiently complied with
{¶ 19} “(1) When a surеty on a recognizance or the depositor of cash or securities as bail for an accused desires to surrender the accused before the appearance date, the surety is discharged from further responsibility or the deposit is redeemed in either of the following ways:
{¶ 20} “(a) By delivery of the accused into open court;
{¶ 21} “(b) When, on the written request of the surety or depositor, the clerk of the court to which recognizance is returnable or in which deposit is made issues to the sheriff a warrant for the arrest of the accused and the sheriff indicates on the return that he holds the accused in his jail.”
{¶ 22} Initially, we note that this court reviews the forfeiture of a surety bond using an abuse of discretion standard. State v. Owens, 11th Dist. No. 2003-A-0088, 2004-Ohio-5941, ¶ 12. Thus, the court‘s decision will not be reversed absent a showing that a trial court‘s attitude in reaching its judgment was unreasonable, arbitrary or unconscionablе. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 23} In appellant‘s first assignment of error, she contends that, pursuant to
{¶ 24} Upon review, we find that the above statements are contrary to aрpellant‘s assertion in her affidavit that Barnes was “hiding” from her and the court. Appellant neither requested to surrender the defendant, nor to have the clerk issue a warrant for his arrest. Accordingly, we find that thе trial court did not err when it denied appellant‘s request to be released as surety. Appellant‘s first assignment of error is not well-taken.
{¶ 25} In appellant‘s second assignment of error she asserts that her duе process rights were violated by the court‘s reinstatement of Barnes’ bond. Appellant claims that the reinstatement was not proper because the court did not specifically state that thе surety was reinstated and the bond form did not include the option of a cash bond. Alternatively, appellant argues that once Barnes’ bond was revoked, appellant was discharged becausе “the bond no longer existed.”
{¶ 26} As to appellant‘s first argument, Crim.R. 46(H) provides:
{¶ 27} “Unless otherwise ordered by the court pursuant to division (E) of this rule, or if application is made by the surety for discharge, the same bond shall сontinue until the return of a verdict or the acceptance of a guilty plea. In the discretion of the court, the same bond may also continue pending sentence or disposition of the case on review. Any provision of a bond or similar instrument that is contrary to this rule is void.”
{¶ 29} In her third and final assignment of error, appellant contends that the trial cоurt failed to comply with
{¶ 30} Admittedly, the notice does not comply with the 20-day requirement under
{¶ 31} Similar to the language used in the notice at issue, in State v. Ward (1978), 53 Ohio St.2d 40, the trial court notified the surety that the defendant must be produced in court by the specified date “or otherwise.” Id. The Supreme Court of Ohio, reviewing the motion to vacate forfeiture concluded that the failure of the court to specify that the surety had the option of showing good cause for failing to produce the defendant was not prejudicial. First, the surety had the right by statute. Next, the surety provided no evidence that the defendant‘s whereabouts were unknown during the period. Finally, the surety provided no good cause defense to the judgment. Id. at 42.
{¶ 32} Interpreting Ward, in State v. Martin, 2d Dist. No. 21716, 2007-Ohio-3813, ¶ 23, the Second Appellate District similarly held that the trial court did not commit reversible error where the notice stated only that the bond would be forfeited if the surety failed to produce the defendant by a particular date.
{¶ 33} In the present case, appellant never requested that the order of forfeiture be vacated. Further, оn appeal appellant fails to provide how she was prejudiced by the insufficient notice. Finally, pursuant to Ward, supra, the notice itself was sufficient to inform appellant of the March 1, 2010 hearing. Accordingly, we find that appellant‘s third assignment of error is not well-taken.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.Aрp.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Arlene Singer, J. ____________________________
Thomas J. Osowik, P.J. JUDGE
CONCUR. ____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.