Opinion
No. 2 CA-CV 2014-0098
12-22-2014
IN RE BOND FORFEITURE OF $15,000
COUNSEL T.S. Hartzell, Tucson Counsel for Appellant Barbara LaWall, Pima County Attorney By Kevin S. Krejci, Deputy County Attorney, Tucson Counsel for Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).
Appeal from the Superior Court in Pima County
No. CR20131660001
The Honorable Lori B. Jones, Judge Pro Tempore
AFFIRMED
COUNSEL T.S. Hartzell, Tucson
Counsel for Appellant
Barbara LaWall, Pima County Attorney
By Kevin S. Krejci, Deputy County Attorney, Tucson
Counsel for Appellee
MEMORANDUM DECISION
Judge Howard authored the decision of the Court, in which Presiding Judge Kelly and Judge Vásquez concurred. HOWARD, Judge:
¶1 Appellant Nuñez Bail Bonds ("Nuñez") appeals the trial court's order forfeiting the bond it posted on behalf of defendant Tracey Santilli and entering judgment in favor of the State of Arizona for $15,000, the full amount of the bond, with post-judgment interest. It claims the court erred by granting Santilli pre-sentence release and thereby the court was estopped from forfeiting the bond. Because the court did not err, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to upholding the court's ruling." In re Bond Forfeiture in Cochise Cnty. Cause No. CR201100916, 232 Ariz. 553, ¶ 2, 307 P.3d 980, 981 (App. 2013). A grand jury indicted Santilli on a charge of theft of means of transportation. At her initial appearance, the trial court ordered Santilli released on the condition she post a $15,000 bond. Nuñez posted the bond and signed a bail release agreement acknowledging the possibility of forfeiture "[s]hould the defendant fail to appear at any future court date."
¶3 Santilli pleaded guilty to the theft of means of transportation charge. The plea agreement stated that both a prison term and probation were possible dispositions but also included a "Special Terms" clause stating, "If granted probation [Santilli] shall serve 1 year in the Pima County jail as a term of her probation." At the change-of-plea hearing, the state informed the trial court of the special condition of probation. The court asked if Santilli would go into custody immediately, and defense counsel responded, "No . . . there is no stipulation about going into custody today." The state did not object. At Santilli's request, the court set the time for sentencing two months later and ordered Santilli released under the same conditions with "[t]he bond [to] remain in place."
¶4 Santilli did not appear at sentencing, and the trial court issued a bench warrant for her arrest and ordered the commencement of bond forfeiture proceedings. At the bond forfeiture hearing, Nuñez argued that, because of the mandatory one-year jail term agreed to as a special condition of probation, Rule 7.2(c)(1), Ariz. R. Crim. P., prohibited the court from releasing Santilli and keeping the bond in place pending sentencing. Nuñez concluded that Santilli's improper release freed it from its bond obligation. The court ruled, however, that the special condition was not "a sentence of imprisonment under Rule 7.2(c)(1)." The court forfeited the bond and entered judgment in favor of the state. We have jurisdiction over Nuñez's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Interpretation of Rule 7.2(c)(1)
¶5 Nuñez argues the trial court erred in forfeiting the bond because Rule 7.2(c)(1) prohibited Santilli's release after her plea, thereby making the bond void and not subject to forfeiture. See State v. Swinburne, 121 Ariz. 404, 405, 590 P.2d 943, 944 (App. 1979) (vacating bond forfeiture order where trial court had no authority to release defendant and bond was void). Nuñez contends that the one-year jail term as a special condition of probation was a "sentence of imprisonment" prohibiting release under the rule. See Ariz. R. Crim. P. 7.2(c)(1). We review a trial court's bond forfeiture order for an abuse of discretion but review the interpretation of court rules governing bail bonds de novo. State v. Garcia Bail Bonds, 201 Ariz. 203, ¶ 5, 33 P.3d 537, 539 (App. 2001).
¶6 Rule 7.2(c)(1) governs post-conviction release in the superior court. Absent certain exceptions not relevant here, the superior court may not release a defendant on bail or his own recognizance after conviction when he "will in all reasonable probability suffer a sentence of imprisonment." Ariz. R. Crim. P. 7.2(c)(1).
¶7 We previously have determined the effect the post-conviction release provision of Rule 7.2(c)(1) has on defendants who, in order to receive probation, also must serve a mandatory prison term. See State v. Kearney, 206 Ariz. 547, ¶¶ 1-2, 81 P.3d 338, 339-40 (App. 2003). In Kearney, we held that a trial court has the discretion to release a defendant convicted of aggravated driving under the influence of an intoxicant ("DUI") on bond pending sentencing when the defendant is likely to receive probation, even though the defendant must serve a four-month prison term to be eligible for probation pursuant to A.R.S. § 28-1383(D). Id. ¶¶ 4, 17. In reviewing the history of Rule 7.2, we determined that the rule's use of "imprisonment" resulted from its historical development within our felony sentencing scheme that allows for either a sentence of imprisonment or suspension of the sentence if probation is granted, but not both. Id. ¶¶ 6, 14-15. We concluded that the supreme court's intent behind the rule is "to differentiate between those found guilty who will probably be granted probation from those who probably will not and to give a trial court discretion to release the former class of convicted persons pending sentencing in appropriate cases." Id. ¶ 15. We found Rule 7.2(c)(1) did not require a defendant to be held in custody where the court, in its discretion, is likely to suspend the sentence in favor of probation. Id. ¶¶ 15, 17.
In Kearney, we interpreted former Rule 7.2(b), which has since been renumbered as Rule 7.2(c). 206 Ariz. 547, ¶ 4, 81 P.3d at 340; see also Ariz. Sup. Ct. Order R-07-0003 (Jul. 3, 2007), adopted on permanent basis, In re Matter of Amend. of R. 4.2, 7.2, 7.4, 27.7 and 31.6, R. of Crim. P., No. R-07-0003 (Ariz. Sept. 26, 2008).
¶8 Kearney controls the outcome of this case. Similar to the defendant in Kearney, Santilli also faced potential probation with a condition of mandatory incarceration. See id. ¶ 1. Had the trial court imposed probation according to the "Special Terms" provision in Santilli's plea agreement, she would have been required to spend a year in jail. But the "Special Terms" provision, like the mandatory imprisonment provision of § 28-1383(D), created a condition of probation, not a sentence of imprisonment. See id. ¶¶ 12, 15-16. Because the "Special Terms" provision merely created a condition of probation, it did not "trigger[] mandatory, immediate incarceration after conviction pursuant to [Rule 7.2(c)(1)]." Id. ¶ 13. Thus, the trial court did not err in concluding that the mandatory jail term in the "Special Terms" provision was not a sentence of imprisonment requiring immediate incarceration pursuant to Rule 7.2(c)(1). See id. ¶ 17.
¶9 Nuñez argues that Kearney should not determine the outcome of this case because "this Court referred to A.R.S. § 28-1383 as a 'strange animal' based on its unique sentencing structure" and "[t]he term 'probation' was not talismanic in Kearney." But we relied on Rule 7.2's history in our decision, not the comparative definitions of "sentence of imprisonment" or "probation." See id. ¶¶ 14-15. And from Rule 7.2's history, we analyzed the intended effect of the rule without regard to § 28-1383(D). See id. ¶¶ 14-15. Thus we will not ignore our conclusion that Rule 7.2(c)(1) was intended to differentiate between those likely to receive probation and those not likely to receive it because that conclusion did not depend on § 28-1383(D) or the facts of Kearney. See id.; see also Mullin v. Brown, 210 Ariz. 545, ¶ 17, 115 P.3d 139, 144 (App. 2005) (we do not "disregard the clear import" of language used in precedential authority).
¶10 We hold that Rule 7.2(c)(1) does not require the superior court to revoke the pretrial release of a defendant for whom it will likely impose probation, even if that probation requires a jail term. And, as in Kearney, we do not find that the rule requires that defendant's release, only that the court has discretion to decide whether to revoke release. See 206 Ariz. 547, ¶ 17, 81 P.3d at 343 ("We do not suggest that presentence release should necessarily be granted . . . . Rather, we merely hold that any such decision is properly left to the trial court . . . .").
¶11 With regard to the other terms in the plea agreement, the trial court did not find explicitly whether Santilli faced a reasonable probability of a prison sentence at the time she changed her plea, despite potential prison sentences. But we infer the court found no reasonable probability of a prison sentence from its grant of pre-sentence release and its ultimate ruling that the bond was not void and was subject to forfeiture. See Wippman v. Rowe, 24 Ariz. App. 522, 525, 540 P.2d 141, 144 (1975) ("We may infer from any judgment the findings necessary to sustain it if such additional findings do not conflict with express findings and are reasonably supported by the evidence."). Thus, we conclude the court did not abuse its discretion in releasing Santilli and forfeiting the bond. See Garcia Bail Bonds, 201 Ariz. 203, ¶ 5, 33 P.3d at 539.
Because we decide this issue based on Kearney, we need not address Nuñez's argument that "sentence of imprisonment" in Rule 7.2(c)(1) refers to both prison terms and jail terms.
Application of Rule 7.2(d)
¶12 Nuñez further argues the trial court erred under Rule 7.2(d) by failing to require Santilli to prove that she would not in all reasonable probability suffer a sentence of imprisonment. Nuñez supports this argument by stating:
Both [Rule 7.2] and the cases discussing it impose on the trial court the duty to make a determination of the odds or probabilities of whether the sentence will be one of imprisonment or not. Rule 7.2(d) provides the mechanism of that determination—it requires proof by a preponderance of the evidence for issues involving Rule 7.2(c)(1) and mandates the defendant shall bear the burden of establishing the facts.
¶13 Rule 7.2(d) does not require explicit findings concerning the probability of imprisonment. And, as we have stated above, we may presume the trial court made the proper findings to support its decision. See Wippman, 24 Ariz. App. at 525, 540 P.2d at 144. This presumption fits well here because the ultimate determination of whether a defendant will receive a sentence of imprisonment is a matter of the court's discretion. See State v. Vermuele, 226 Ariz. 399, ¶ 15, 249 P.3d 1099, 1103 (App. 2011) ("'trial court has broad discretion to determine the appropriate penalty to impose upon conviction'"), quoting State v. Cazares, 205 Ariz. 425, ¶ 6, 72 P.3d 355, 357 (App. 2003); see also Ariz. R. Crim. P. 17.4(d).
¶14 The trial court was aware of the offense for which Santilli pleaded guilty and the terms of her plea agreement. As the ultimate decision-maker on whether Santilli would go to prison or receive probation, it was uniquely positioned to evaluate the likelihood of her imprisonment, and we presume it made that evaluation and found Santilli met any burden required of her under Rule 7.2(d) when it was deciding whether to release her. See Wippman, 24 Ariz. App. at 525, 540 P.2d at 144. Further, the state did not object to Santilli's release or raise any factual issues regarding the propriety of her release pursuant to Rule 7.2(c)(1). Consequently, Nuñez has failed to sustain its burden of showing the court abused its discretion in releasing Santilli based on Rule 7.2(d).
Nuñez also contends that the trial court "seemingly decided at random at the change of plea to continue Santilli on release." We note, however, that Santilli asked the court to release her so that she could complete medical procedures prior to her incarceration. Nuñez's contention is wholly unsupported by the record.
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Disposition
¶15 For the foregoing reasons, we affirm the judgment of the trial court.