Opinion
19-P-94
12-19-2019
COMMONWEALTH v. John EVANS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, John Evans, appeals from the order denying his motion for return of bail money. On appeal, the defendant contends that the motion judge abused her discretion because he had good cause not to appear, and the Commonwealth failed to file suit or provide notice before moving to forfeit his bail. We affirm.
Background. Boston police officers arrested the defendant on December 3, 1992, for discharging a firearm within 500 feet of a building, and possession of a firearm not at home or work without a license to carry. Five days later, the defendant posted bail in the amount of $2,500 and signed a recognizance form stating that he understood he owed a duty to appear in court. The recognizance form also instructed the defendant to "not depart without leave." Although the defendant signed the form both as the defendant and as the bail surety, there was no surety. He was the principal, and was released on recognizance. See G. L. c. 276, §§ 79, 80.
The form stated:
"I understand and acknowledge that if I fail without sufficient excuse to appear in accordance with the foregoing promise, I will be liable, jointly and severally if a surety has been required, to the Commonwealth of Massachusetts for the dollar amount specified in the terms of release."
In February 1993, the two indictments issued. After pressing an unsuccessful motion to suppress, the defendant failed to appear for trial on July 20, 1993, and was defaulted. A judge issued a default warrant and allowed the Commonwealth's oral motion for bail forfeiture. The defendant avers he returned to the jurisdiction in December 1994, but he was defaulted again thereafter. Ultimately, the defendant pleaded to both offenses in April 1995.
Twenty-three years later, on October 9, 2018, the defendant filed a pro se motion for the return of bail money, which was denied without a hearing.
Discussion. "Default on bail bonds or recognizances is a weighty matter which may be excused only for ‘good cause.’ " Commonwealth v. Stuyvesant Ins. Co., 366 Mass. 611, 621 (1975). See G. L. c. 276, § 36 (permitting removal of recognizor's default for "good cause"). We review the judge's decision for an abuse of discretion. See L.L. v. Commonwealth, 470 Mass. 169, 185 & n.27 (2014).
"Massachusetts has long followed the common-law rule allowing the courts discretionary power in granting bail." Commonwealth v. Bautista, 459 Mass. 306, 312 (2011). "The courts also have long enjoyed discretion with respect to the remission of forfeited bail." Id.
The defendant contends that the judge abused her discretion because he had gone to Alabama to be with his dying grandmother and stayed to attend to family matters. We begin by noting that the judge was not obligated to credit the defendant's affidavit. See Commonwealth v. McWilliams, 473 Mass. 606, 621 (2016). The judge's summary denial suggests she did not. However, even if the affidavit were credited, the defendant fares no better. Unilaterally absenting himself from the jurisdiction without leave of court does not constitute good cause. The judge did not abuse her discretion in denying the motion.
"We would have welcomed the judge's finding on the ... issue, but [her] denial of the motion is an implicit statement that [s]he did not credit the defendant's affidavit." Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 388 (1987).
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The defendant further contends that he did not receive adequate notice of the forfeiture. He relies on the notice provisions of G. L. c. 276, § 5, which are inapplicable. Section five applies to proceedings to forfeit property seized pursuant to a search warrant. See G. L. c. 276, § 4. The principal case cited by the defendant is also inapposite, as it deals with proceeds of drug transactions, not bail. See Commonwealth v. Brown, 426 Mass. 475, 480 (1998) (forfeiture of money seized at time of arrest on drug charges pursuant to G. L. c. 94C, § 47 ).
Finally, the defendant maintains that the Commonwealth was required to file suit to forfeit his bail. See G. L. c. 12, § 28. See also Stuyvesant Ins. Co., 366 Mass. at 621. Filing suit is not the only mechanism by which a defendant on recognizance may forfeit monies posted. For example, "one way in which an order of bail forfeiture may enter is on a motion by the Commonwealth." Commonwealth v. Bautista, 459 Mass. 306, 317 (2011). In addition, the court at all times retains the authority to order forfeiture of bail on its own. See id. See also G. L. c. 276, § 80 ("At any time after default of the defendant, the court may order forfeited the money, bonds or bank books deposited at the time of the recognizance").
Order denying motion for return of bail money affirmed.