Opinion
No. 1 CA-CV 18-0578
10-17-2019
ALLIANCE BAIL BONDS, Appellant, v. STATE OF ARIZONA, Appellee.
COUNSEL Samantha Dumond, Phoenix Counsel for Appellant Kim Felcyn, Phoenix Counsel for Appellee
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2018-100350-001
The Honorable Thomas Kaipio, Judge Pro Tempore
AFFIRMED
COUNSEL
Samantha Dumond, Phoenix
Counsel for Appellant
Kim Felcyn, Phoenix
Counsel for Appellee
MEMORANDUM DECISION
Judge Jennifer M. Perkins delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Paul J. McMurdie joined.
PERKINS, Judge:
¶1 Alliance Bail Bonds ("Alliance") appeals the trial court's order forfeiting an appearance bond on Karla Chavez. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 On February 6, 2018, Alliance posted a $2,700 bond on behalf of Chavez. On March 5, Chavez received notice to appear at a hearing on March 12. When Chavez failed to appear, the trial court issued a bench warrant and filed it electronically on March 19. The trial court originally set the bond forfeiture hearing for April 5. Alliance moved for continuance three times while trying to locate Chavez, and the hearing ultimately occurred on August 28.
¶3 At the forfeiture hearing, Alliance presented evidence that Chavez was arrested in the state of Washington on March 19. The evidence showed that Chavez's mother turned her into Washington authorities following an incident at the mother's residence. Alliance claimed that Chavez left for Washington on March 1. Alliance based this claim on a police report, which it failed to admit into evidence and is not included in the record on appeal. Alliance represented to the trial court that on March 1, Chavez broke into a storage lot owned by Alliance and stole a vehicle Alliance held as collateral for her appearance bond, apparently so she could travel to Washington.
¶4 After presenting this evidence, Alliance asked the court to exonerate the bond, less the administrative fee for costs incurred while Alliance attempted to locate Chavez. Alliance argued that, because it received notice of the bench warrant on the same day Chavez was arrested in Washington, it had no opportunity to mitigate its losses or avoid forfeiture. The court forfeited the bond in its entirety, finding "no reasonable cause or explanation ha[d] been provided" for Chavez's failure to appear, and "insufficient evidence of mitigation or hardship."
¶5 The State later declined to extradite Chavez from Washington and moved to dismiss the underlying criminal case without prejudice, which the trial court granted on November 6. Alliance then filed a motion to reconsider the forfeiture. The trial court denied the motion. Alliance timely appealed the bond forfeiture.
DISCUSSION
¶6 Alliance argues the trial court abused its discretion by forfeiting the bond because Chavez was taken into custody in Washington on the same day Alliance received notice of the bench warrant. Alliance also argues the trial court abused its discretion by forfeiting the bond when it subsequently dismissed the underlying criminal case.
¶7 On appeal, we view the evidence in the light most favorable to upholding the trial court's decision. State v. Garcia Bail Bonds, 201 Ariz. 203, 205, ¶ 5 (App. 2001). We review the trial court's order forfeiting the bond for an abuse of discretion but consider de novo the interpretation of court rules governing bail bonds. Id.
I. Notice
¶8 When the trial court learns the defendant has violated a release condition, it may issue a warrant for the defendant's arrest. Ariz. R. Crim. P. 7.6(c)(1). If an appearance bond has been posted as a condition of release, the court must notify the surety of the warrant, in writing or electronically, no later than ten days after it is issued. Id.
¶9 Here, Chavez failed to appear at a hearing on March 12, and the court issued a bench warrant, which it electronically filed on March 19. Thus, Alliance received notice of the bench warrant seven days after issuance — well within the ten-day window under Rule 7.6(c)(1).
II. Excuse and Mitigation
¶10 Despite compliance with Rule 7.6(c), Alliance argues the trial court abused its discretion by forfeiting the bond because there was no opportunity for Alliance to mitigate or avoid forfeiture of the bond. This argument lacks merit.
¶11 The trial court has broad discretion to decide whether, and in what amount, to forfeit an appearance bond. See State v. Old W. Bonding Co., 203 Ariz. 468, 475 ¶ 26 (App. 2002) (listing the various factors trial courts should look to in bond forfeiture proceedings). If the trial court finds no excuse for the violation of the appearance bond, it may enter an order
forfeiting all or part of the bond amount. Ariz. R. Crim. P. 7.6(c)(3). The surety has the burden of showing an excuse or explanation for a defendant's failure to appear. See State v. Bail Bonds USA, 223 Ariz. 394, 397, ¶ 11 (App. 2010). The surety assumes this burden even if it was able to locate and surrender the defendant to the court after the violation. See In re Bond Forfeiture in CR-94019213 , 191 Ariz. 304, 306-07, ¶ 9 (App. 1998).
¶12 The record reflects the trial court complied with the applicable rules and considered the relevant factors. Because Chavez did not appear at the hearing on March 12 — seven days before she was incarcerated in Washington — she violated her appearance bond. Thus, Alliance had the burden to show an excuse or explanation for Chavez's failure to appear.
¶13 The court continued the forfeiture hearing three times, at Alliance's request, so Alliance could gather information about Chavez's whereabouts. Despite these continuances, Alliance called no witnesses at the hearing and presented no evidence of efforts it made to locate Chavez before March 12. Rule 7.6(c) does not require the trial court to update the surety on any developments other than the issuance of a warrant; it is the surety's responsibility to stay apprised of the defendant's whereabouts and ensure his or her court appearances. See Bond Forfeiture in Pima Cty. Cause No . CR-20031154 , 208 Ariz. 368, 369, ¶ 4 (App. 2004) ("It is well settled that a surety assumes the risk of a defendant's failure to appear."); see also State v. Sun Sur. Ins. Co., 232 Ariz. 79, 82, ¶ 8 (App. 2013). The record reflects the trial court properly considered all evidence presented by Alliance at the forfeiture hearing. The trial court did not abuse its discretion by finding there was "no reasonable cause or explanation" for Chavez's failure to appear, and "insufficient evidence of mitigation or hardship."
III. Subsequent Dismissal
¶14 Alliance also argues the trial court abused its discretion by failing to exonerate the bond after it dismissed Chavez's case. We disagree.
¶15 When a trial court dismisses a prosecution, it must release the defendant from custody related to that charge and exonerate any appearance bond. Ariz. R. Crim. P. 16.4(e). Moreover, "[i]f the court finds before a violation that there is no further need for an appearance bond, it must exonerate the bond and order the return of any security." Ariz. R. Crim. P. 7.6(d)(1) (emphasis added); see also In re Bond Amount of $75,000, 225 Ariz. 401, 406, ¶ 11 (App. 2010).
¶16 Alliance relies primarily on State v. Nunez in arguing the court should have exonerated the bond after it dismissed Chavez's case. But Nunez involved defendants whose bonds had not yet been forfeited at the time their cases were dismissed. See State v. Nunez, 173 Ariz. 524, 526 (App. 1992). The Nunez court clarified that "subsequent activities (i.e., those occurring after forfeiture) bearing on the merits of the final resolution of a defendant's case have no effect on the basis for the forfeiture of an appearance bond." Id. (citing State v. Sur. Ins. Co. of California, 137 Ariz. 351, 353 (App. 1983)). Here, the court dismissed Chavez's case on October 31 — two months after it forfeited the bond and almost six months after initiation of forfeiture proceedings. Thus, consistent with Nunez, the trial court did not abuse its discretion by forfeiting the bond before it dismissed the case.
IV. Attorney's Fees and Costs
¶17 Alliance requests attorney's fees under A.R.S. § 12-341.01. Because Alliance did not prevail on appeal, we deny the request.
CONCLUSION
¶18 We affirm the order of forfeiture.