Opinion
NO. 2013-CA-000749-MR
06-13-2014
TED DURHAM, SURETY FOR STACY DURHAM AND THE REAL PARTY IN INTEREST APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Jerry J. Cox Mt. Vernon, Kentucky BRIEF FOR APPELLEE: Jack Conway John Paul Varo Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE DAVID A. TAPP, JUDGE
ACTION NO. 12-CR-00131
OPINION
AFFIRMING
BEFORE: JONES, MAZE, AND MOORE, JUDGES. JONES, JUDGE: This case comes to us on appeal from a judgment of bond forfeiture rendered by the Rockcastle Circuit Court on April 24, 2013. For the reasons more fully explained below, we affirm.
I.
On December 14, 2012, the Rockcastle Grand Jury issued an indictment charging Stacy D. Durham (hereinafter referred to as "Defendant") with the offense of "Manufacture of Methamphetamine Second Offense by knowingly and unlawfully manufacturing of Methamphetamine after having already been convicted of at least one (1) prior offense." Thereafter, the Rockcastle Circuit Court issued a warrant for Defendant's arrest.
On January 7, 2013, Defendant voluntarily surrendered himself to the Rockcastle Sheriff's Office. Defendant's bond was set at $25,000 cash. On the same day, Defendant's father, the Appellant, Ted Durham, posted a $25,000 cash surety bond to secure Defendant's pretrial release. Defendant's release was subject to certain conditions that were listed on Defendant's bond release form: 1) Defendant not have any further violations of law; 2) Defendant not consume any alcohol or illegally use any controlled substances; 3) Defendant appear in court as directed; and 4) Defendant submit to random drug screens. The form, which was signed by both Defendant and the Appellant, contained the following warning:
Violations of Conditions and/or Failure to Appear:
You are warned that failure to comply with the above provisions will be deemed a violation of the terms and conditions of your release for which a warrant will be immediately issued for your arrest; you may be detained, the release privilege will be revoked and any bail bond post may be forfeited.
The circuit court issued an order directing Defendant to appear before the court on January 31, 2013, for arraignment and other related proceedings. Defendant complied with the order and presented himself to the circuit court on the directed date. At that time, the circuit court ordered the Defendant to submit to a drug test. When officers attempted to administer the drug test, they observed Defendant attempting to tamper with the screen through the use of a synthetic penis attached to a bag containing urine that was hidden in Defendant's underwear. That same day, the circuit court entered a commitment order directing the Rockcastle Jailer to take Defendant into custody. The order provides:
To the Jailer/Department of Corrections of Rockcastle, Kentucky: You are hereby commanded to receive the above-named Defendant who has been found guilty of the following: bond violation charge (tampering-fake penis, urine and heater).
On February 4, 2013, the Commonwealth moved the circuit court to enter an order forfeiting Defendant's bond. The circuit court set a bond forfeiture hearing for February 22, 2013, and sent notice thereof to Appellant. On February 6, 2013, with the assistance of counsel, Appellant moved the circuit court to reschedule the hearing because counsel was already scheduled to be in Washington, D.C., on the date of the hearing. The circuit court granted Defendant's motion and rescheduled the forfeiture hearing to take place on March 22, 2013. The circuit court sent the order continuing the hearing to Appellant's counsel.
On April 3, 2013, the trial court entered an order forfeiting the entire $25,000 bond. The order states:
This matter is before the Court upon proceedings for a bond forfeiture pursuant to Ky. Rev. Stat. § 431.545 and RCr 4.42. Both contemplate bond forfeiture for reasons other than a simple failure to appear in court but also forfeiture for violation of the conditions of release.(R. at 28-32). On April 6, 2013, the circuit court entered a judgment on bond forfeiture for the full $25,000, which it subsequently amended on April 24, 2013.
In Clemons v. Commonwealth, 152 S.W.3d 256 (Ky App. 2004), the Court of Appeals adopted the majority approach of state courts which permit forfeiture of a cash bond for breach of non-financial conditions. The Clemons court also recognized that it did not take a subsequent conviction to revoke a bond for a violation of the conditions "but clear and convincing evidence" that a defendant willfully violated a condition of his bond. Id. at 259.
In this instance, Durham [Defendant] is charged in a single count Indictment with manufacturing methamphetamine. He has previously been convicted of that same offense and is currently on probation/parole for that offense.
As part of the non-financial conditions of release in this case, the Court imposed non-financial conditions of release which included the requirement that Durham submit to random testing of his blood, breath, urine or perspiration and that he violate no state, federal or local law. These written conditions were provided to Durham and both Durham and the surety, his father, signed the written bond form which contained non-financial conditions of release. Moreover, at no juncture did Durham or the surety interpose an objection to the conditions of release.
Durham subsequently appeared in Circuit Court for a pre-trial conference on January 31, 2013. At that time, the Court directed that both he and his co-defendant be tested for drugs and alcohol. Durham's co-defendant
was observed with a baggie of urine and subsequently tested positive for methamphetamine.
When officers administered a test to Durham, they observed his attempt to tamper with physical evidence and interfere with the accurate sampling of his blood, breath, or urine for the presence of drugs or alcohol by possessing a synthetic device designed to simulate a penis (with an attached warming contrivance and a plastic baggie of urine). This device is commonly known as a "whizzinator" and is advertised as a method of defeating urine testing or substance abuse. Essentially, proper use of the device permits a person intent on interfering with a drug test to extend a plastic penis, available in different color variations depending on ethnicity, from his clothing while being observed by the tester, and release a stream of urine into the specimen cup from a storage bag concealed within the person's underwear. To further foil testing protocols, the device is outfitted with a chemical warmer to ensure that the substitute--and presumably "clean" urine--is the appropriate temperature. In this instance, Durham's "whizzinator" was concealed within a pair of men's briefs.
Accordingly, thereafter, the Court directed that a bond forfeiture hearing be conducted and that notice be given to the surety, Durham's father. The surety retained counsel, the Honorable Jerry Cox, and requested a continuance of the bond forfeiture hearing. The Court granted that request.
Subsequently, on Friday, March 22, 2013, this matter came before the Court for a hearing with the Defendant being present. The surety, however, failed to appear. The surety's counsel was unable to provide an explanation for the surety's absence.
Durham, represented by counsel, the Honorable Nathan Shirley, offered nothing in his defense. On behalf of the surety, attorney Cox opined that his client was unaware of Durham's misconduct and that Durham had appeared for his scheduled court date. That
argument was unsupported by affidavit or testimony. Moreover, since the hearing, the surety has presented no explanation or excuse for his absence at the bond forfeiture hearing.
Accordingly, for the reasons stated herein, the bond posted is FORFEITED. The Commonwealth is hereby DIRECTED to prepare an appropriate judgment of forfeiture for consideration by the Court.
The first judgment directed Appellant to pay $25,000 to the Rockcastle Circuit Clerk. As Appellant had previously posted the bond, the amended judgment removed the language directing Appellant to pay the $25,000 and replaced it with the following language: "Bond being held by the Rockcastle County Clerk's Office in the amount of $25,000.00 cash, posted by Ted Durham [Appellant] is hereby forfeited."
This appeal followed.
II.
Appellant asserts the following arguments on appeal: 1) the trial court discharged Appellant's liability on bond when Defendant was taken into custody to be drug tested and remained in custody for allegedly violating the bond; 2) the trial court erred in not holding a bond revocation/forfeiture hearing; and 3) the trial court abused its discretion by ordering the entire bond forfeited.
A. Preservation of Alleged Errors
As a threshold issue, the Commonwealth asserts that Appellant failed to preserve any of the alleged errors for appellate review. "The function of the Court of Appeals is to review possible errors made by the trial court, but if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review." Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985).
Pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v), the "organization and contents of the appellant's brief shall [include]: ... at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." No such statement appears in Appellant's brief; furthermore, the body of Appellant's brief does contain any citation to the record where we might be able to confirm for ourselves that the alleged errors were raised before the circuit court.
Despite the mandatory nature of the rule, our appellate courts have tended to ignore the failure when: (1) the record is not voluminous and (2) preservation is clear from the face of the record. See Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 481-82 (Ky. App. 2005). In this case, the record is fairly concise. In the normal course, we could review it ourselves to ensure that the alleged errors were preserved before the circuit court. However, our ability to do so in this case is hampered because no recording or other transcription of the hearing is part of the record. Indeed, it appears that for unknown reasons the hearing was not recorded.
It is the duty of a party attacking the sufficiency of evidence to produce a record of the proceeding and identify the trial court's error in its findings of fact. See Goncalves v. Commonwealth, 404 S.W.3d 180, 208 (Ky. 2013). In cases like the present where there is no written or electronic record or where the record is insufficient, our appellate rules provide a remedy. CR 75.13 provides:
(1) In the event no stenographic or electronic record of the evidence or proceedings at a hearing or trial was made or, if so, cannot be transcribed or are not clearly understandable from the tape or recording, the appellant may prepare a narrative statement thereof from the best available means, including his/her recollection, for use instead of a transcript or for use as a supplement to or in lieu of an insufficient electronic recording. This statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service upon him/her. Thereupon the statement, with the objections or proposed amendments, shall be submitted to the trial court for settlement and approval, and as settled and approved shall be included in the record on appeal.
(2) By agreement of the parties a narrative statement of all or any part of the evidence or other proceedings at a hearing or trial may be substituted for or used in lieu of a stenographic transcript or an electronic recording.
Appellant failed to avail himself of the remedy provided by CR 75.13. As such, we are left to speculate as to whether Appellant preserved the alleged errors as part of the forfeiture hearing. And, we find no evidence in the written record indicating that he did so either before, during or after the hearing. As such, we must conclude that the Appellant failed to preserve the alleged errors for review. As such, we are precluded from reviewing Appellant's alleged errors under the abuse of discretion standard that we would normally apply to claims of this nature. See Meece v. Commonwealth, 348 S.W.3d 627, 645 (Ky. 2011) (noting that only "preserved errors are reviewed under normal standards" of review).
B. Palpable Error Review
We review unpreserved issues for palpable error. To decide if an unpreserved error is palpable, an appellate court must consider "whether the defect is so manifest, fundamental and unambiguous that it threatens the integrity of the judicial process." Martin v. Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
Again, our review is frustrated by the lack of any electronic or stenographic recording of the hearing. We have no way of ascertaining what evidence or argument was presented before the trial court with respect to Appellant's alleged errors. "When the record is incomplete, this Court must assume that the omitted record supports the trial court." Chestnut v. Commonwealth, 250 S.W.3d 288, 303 (Ky. 2008).
1. Alleged failure to conduct revocation hearing
Appellant contends that the trial court erred by failing to hold a revocation/forfeiture hearing pursuant to Kentucky Rules of Criminal Procedure (RCr) 4.42. This Rule provides:
(1) If at any time following the release of the defendant and before the defendant is required to appear for trial the court is advised of a material change in the defendant's circumstances or that the defendant has not complied with all conditions imposed upon his or her release, the court having jurisdiction may order the defendant's arrest and require the defendant or the defendant's surety or sureties to appear and show cause why the bail bond
should not be forfeited or the conditions of release be changed, or both.
(2) A copy of said order shall be served on the defendant and the defendant's surety or sureties. The court shall order the arrest of the defendant only when it has good cause to believe the defendant will not appear voluntarily upon notice to appear.
(3) Where the court is acting on advice that the defendant has not complied with all conditions imposed upon his or her release, the court shall not change the conditions of release or order forfeiture of the bail bond unless it finds by clear and convincing evidence that the defendant has willfully violated one of the conditions of his or her release or that there is a substantial risk of nonappearance.
(4) Where the court is acting on advice of a material change in the defendant's circumstances, it shall not change the conditions of release or order forfeiture of the bail bonds unless it finds by clear and convincing evidence that a material change in circumstances exists and that there is a substantial risk of nonappearance.
(5) Before the court may make the findings required for change of conditions or forfeiture of bail under this rule, the defendant and the defendant's surety or sureties shall be granted an adversary hearing comporting with the requirements of due process. Whenever the court changes conditions of release (except upon motion of the defendant) or orders forfeiture of bail, it must furnish the defendant and the defendant's surety or sureties with written reasons for so doing.
If the circuit court truly failed to conduct a hearing before ordering Defendant's bond forfeited, it would be palpable error. In this case, however, the record is clear that the circuit court conducted a forfeiture hearing on March 22, 2013.
The circuit court's April 3, 2013, order states that on March 22, 2013, the court conducted a "hearing with the Defendant being present. The surety, however, failed to appear. The surety's counsel was unable to provide an explanation for the surety's absence." In the same order, the circuit court noted that the hearing was conducted for the purpose of "bond forfeiture pursuant to Ky. Rev. Stat. § 431.545 and RCr 4.42." The order indicates that it was sent to Appellant's counsel. The record does not indicate that Appellant filed any objection to the order. If a hearing had not actually taken place on March 22, 2013, as noted by the trial court in its order, counsel would have most certainly objected to this clear misstatement of fact. Additionally, while Appellant argues on page three of his brief that the hearing did not take place, he indicates in his "statement of the case" that a hearing did take place, but no sworn testimony from the hearing appears in the record to support the trial court's decision.
Having reviewed the entire record, we believe that it is beyond dispute that the trial court held a revocation hearing before ordering Defendant's bond forfeited. There was no palpable error in this regard.
2. Whether Defendant was in "custody" at the time of alleged violation
We do not believe that Commonwealth v. Skaggs, 153 S.W. 422 (Ky. 1913), cited by Appellant, is dispositive. In Skaggs, the court held that when the accused, previously released on bond, was taken into custody of the jailer by order of the court, the surety on his bond was released from further obligation and was not responsible when the accused later escaped. Here, there was no order by the court committing Defendant to the court or jail's custody prior to the drug test. The circuit court simply directed Defendant to submit to a drug test the same day as he appeared in court. Directing a defendant to submit to drug testing at the Sheriff's Office is not tantamount to the court assuming custody of the defendant. Defendant was not in "custody" at the time of the alleged violation. He remained free on bond and Appellant remained responsible as his surety. There was no palpable error in this regard.
Additionally, the trial court's April 3, 2013, order indicates that Appellant failed to appear at the hearing or otherwise submit an affidavit to support his counsel's argument that he was unaware of Defendant's actions. Such evidence would have been incumbent for Appellant to prevail. While Appellant may not have been physically present when Defendant attempted to use the synthetic penis to foil the examiners, Defendant had to have procured and brought the device into court prior to his attempt to use it, during which time Appellant was responsible for him.
3. Excessiveness of forfeiture amount
"Bonds are discretionary, and the decision to impose, forfeit, or remit bonds lies solely with the trial court." Clemons v. Commonwealth, 152 S.W.3d 256, 259 (Ky. App. 2004). "There are no clear-cut rules defining what is and what is not 'excessive.'" Id. at 260. In an unpublished opinion, a panel of this Court upheld a bond forfeiture similar to the present one where the defendant's violation was willful and he offered no defense for it. See, e.g., Woosley v. Commonwealth, No. 2004-CA-001224-MR, 2005 WL 1125183, at *3 (Ky. App. May 13, 2005).
Given the vast discretion afforded to the trial court, the lengths Defendant went to deceive the court with respect to the drug test, Defendant's failure to offer anything in his defense at the forfeiture hearing, and Appellant's failure to even attend the forfeiture hearing, we cannot conclude that the amount of the forfeiture amounts to palpable error.
III. Conclusion
For the foregoing reasons, we affirm the Rockcastle Circuit Court's judgment of forfeiture.
MAZE, JUDGE CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Jerry J. Cox
Mt. Vernon, Kentucky
BRIEF FOR APPELLEE: Jack Conway
John Paul Varo
Frankfort, Kentucky