Opinion
Case No. 17-CA-56
07-18-2018
STATE OF OHIO Plaintiff-Appellee v. AAA SLY BAIL BONDS (JON MARTEL JEFFERSON) Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee GARY D. BISHOP Richland County Prosecutor 38 South Park Street Mansfield, OH 44902 For Defendant-Appellant DOUGLAS BOND 700 Courtyard Centre 116 Cleveland Avenue N.W. Canton, OH 44702
JUDGES: Hon. W. Scott Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, J.
OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Stark County Court of Common Pleas, Case No. 2014CR0769R JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee GARY D. BISHOP
Richland County Prosecutor
38 South Park Street
Mansfield, OH 44902 For Defendant-Appellant DOUGLAS BOND
700 Courtyard Centre
116 Cleveland Avenue N.W.
Canton, OH 44702 Gwin, P.J.
{¶1} Defendant-appellant AAA Sly Bail Bonds ["Appellant"] appeals the May 25, 2017 Judgment Entry of the Richland County Court of Common Pleas overruling its objections and adopting the March 21, 2017 decision of the magistrate ordering the forfeiture of the bond of Defendant Jon Martel Jefferson and the May 22, 2018 Judgment Entry of the Richland County Court of Common Pleas overruling its Motion to Vacate Judgment pursuant to Civ.R. 60(B). The Appellee is the State of Ohio.
Facts and Procedural History
{¶2} On November 24, 2014, Jon Martel Jefferson ["Jefferson"] was charged in Mansfield Municipal Court with several felony offenses, including Fleeing and Eluding, Having Weapons While under Disability, Receiving Stolen Property, and two counts of Possession of Drugs. Jefferson's bond was set at $100,000 cash or surety and personal recognizance, and Jefferson was ordered to be placed on Electronic Monitoring.
{¶3} On November 26, 2014, Jefferson waived a preliminary hearing and Appellant posted his bond. The Mansfield Municipal Court transferred this bond to the Richland County Court of Common Pleas. Jefferson deposited a bond fee on December 2, 2014 in Court of Common Pleas.
{¶4} On December 30, 2014, electronic monitoring Officer J.J. Bittinger issued a bench warrant for Jefferson's arrest requesting that his bond be revoked. On January 13, 2015, the Richland County Grand Jury indicted Jefferson and a warrant to arrest on the indictment was issued. On January 16, 2015, Jefferson's bond was set at $100,000 cash and personal recognizance with electronic monitoring on his indictment. Arraignment was scheduled for January 27, 2015; however, there was failure of service on the indictment. It was subsequently determined that Jefferson had been arrested and sent to prison on other legal matters out of Franklin County, Ohio.
{¶5} Jefferson was arraigned in the Richland County Court of Common Pleas on February 5, 2015, and his bond was continued. On July 23, 2015, a warrant was issued to convey Jefferson to the Richland County Court of Common Pleas because he was being released from prison on his Franklin County case. Jefferson's bond was again set at $100,000 and personal recognizance with electronic monitoring. Brittany Scope from the Richland County Clerk of Court's Office telephoned bonding agent Robert Hagen, an employee of Appellant, to confirm his desire to remain on the $100,000 surety bond. Mr. Hagen's approval is noted on the bond form. (T., Feb 10, 2017 at 24-25). On July 27, 2015, Jefferson posted the bond set on July 23, 2015.
This is the spelling of Brittany Scope's name used during the trial court hearing held Feb 10, 2017. --------
{¶6} A jury trial was scheduled for February 1, 2016. Jefferson failed to appear for trial. As a result, the trial court issued both a bench warrant for Jefferson's arrest and an entry of bond forfeiture. An amended entry of bond forfeiture was journalized on February 12, 2016, with notice of the same to Appellant. Appellant was notified that judgment would be entered at the bond hearing on March 28, 2016 if Jefferson were not produced by that time.
{¶7} On February 18, 2016, Appellant filed a motion to vacate and release surety. On April 11, 2016, Appellant filed a Memorandum in support of its motion. On February 10, 2017, a hearing was held on that motion. On March 21, 2017, the Magistrate filed his decision on Bond Forfeiture, which denied Appellant's motion. On April 4, 2017, Appellant objected to the Magistrate's ruling. On May 25, 2017, the Trial Court adopted the ruling of the Magistrate and ordered the bond forfeited. Up until this point, Appellant never produced Defendant to the Court.
{¶8} On June 19, 2017, the Appellant filed a Motion to Vacate pursuant to Civ. R. 60(B). On June 23, 2017, Appellant timely filed Notice of Appeal in this matter.
{¶9} By Judgment Entry filed April 25, 2018, this Court remanded the case to the trial court for a ruling on Appellant's Civ.R. 60 motion. Appellant filed a Supplemental Motion to Vacate and/or Motion for Relief from Judgment on May 21, 2018. By Judgment Entry filed May 22, 2018, the trial court denied Appellant's Motion to Vacate the Bond Forfeiture. On June 11, 2018, Appellant filed a supplemental brief addressing the trial court's May 22, 2018 ruling. On June 19, 2018, Appellee filed a supplemental brief in response to Appellant's June 11, 2018 brief. On June 26, 2018, Appellee filed a Notice of Supplemental Authority.
Assignments of Error
{¶10} Appellant raises seven Assignments of Error,
{¶11} "I. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS JUDGMENT ENTRY DATED MAY 25, 2017 BY RULING THAT THE ACTION AGAINST BAIL IN THIS MATTER WAS A CRIMINAL PROCEEDING, AND THAT THE STATUTORY DEFENSE CONTAINED IN R.C. 2713.23 WAS INAPPLICABLE AND DID NOT EXONERATE THE APPELLANT FROM LIABILITY ON THE BOND.
{¶12} "II. THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING JUDGMENT AGAINST THE APPELLANT ON THE DEFENDANT'S BOND AS A NEW BOND SHOULD HAVE BEEN ORDERED WITH SEPARATE BONDING POWERS, AFTER THE DEFENDANT WAS INCARCERATED IN STATE PRISON IN OHIO, HIS ORIGINAL BOND WAS REVOKED, AND A NEW BOND WAS SET FOR A NEW CHARGE ON AN INDICTMENT.
{¶13} "III. THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING JUDGMENT AGAINST THE APPELLANT ON THE DEFENDANT'S BOND AS THE APPELLANT SHOULD HAVE BEEN GIVEN NOTICE AND AN OPPORTUNITY TO BE HEARD PRIOR TO THE CONTINUATION OF THE DEFENDANT'S BOND UPON HIS RELEASE FROM HIS INCARCERATION IN STATE PRISON.
{¶14} "IV. THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING JUDGMENT AGAINST THE APPELLANT ON THE DEFENDANT'S BOND BECAUSE IT INTERFERED WITH THE APPELLANT'S ABILITY TO RETURN THE DEFENDANT BY FAILING TO ISSUE A BENCH WARRANT FOR OVER EIGHT MONTHS AFTER THE DEFENDANT'S BOND WAS ORDERED FORFEITED.
{¶15} "V. THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING JUDGMENT AGAINST THE APPELLANT ON THE DEFENDANT'S BOND BECAUSE THE DEFENDANT WAS RETURNED TO THE COURT'S CUSTODY WITHIN 10 DAYS AFTER SAID JUDGMENT WAS ENTERED AGAINST THE APPELLANT.
{¶16} "VI. THE TRIAL COURT ABUSED ITS DISCRETION BY ENTERING JUDGMENT AGAINST THE APPELLANT ON THE DEFENDANT'S BOND AS THE TRIAL COURT FAILED TO PROVIDE THE APPELLANT 'WITH NOTICE OF THE DEFENDANT'S FAILURE TO APPEAR IN COURT ON DECEMBER 22, 2015.
{¶17} "VII. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE APPELLANT'S MOTION TO VACATE AS IT FAILED TO ADDRESS THE ISSUES RAISED BY APPELLANT IN ITS MOTION, AND INSTEAD THE TRIAL COURT TREATED THE MOTION AS IF IT WERE RULING ON A MOTION FOR REMISSION OF A FORFEITED BOND UNDER R.C. 2937.39."
I.
{¶18} In the First Assignment of Error, Appellant argues that R.C. 2713.23, rather than R.C. 2937.40 applies to this case.
Standard of Appellate Review.
{¶19} Appellants argument centers on an issue of law, not the discretion of the trial court. In other words, Appellants contend that the trial court applied the wrong statute to determine the bond forfeiture action.
{¶20} "'When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate. See Swartzentruber v. Orrville Grace Brethren Church, 163 Ohio App.3d 96, 2005-Ohio-4264, 836 N.E.2d 619, ¶ 6; Huntsman v. Aultman Hosp., 5th Dist. No. 2006 CA 00331, 2008-Ohio-2554, 2008 WL 2572598, ¶ 50.' Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13." State v. Fugate, 117 Ohio St.3d 261, 2008-Ohio-856, 883 N.E.2d 440, ¶6. Because the assignment of error involves the interpretation of a statute, which is a question of law, we review the trial court's decision de novo. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13; Accord, State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9; Hurt v. Liberty Township, Delaware County, OH, 5th Dist. Delaware No. 17 CAI 05 0031, 2017-Ohio-7820, ¶ 31.
ISSUE FOR APPEAL.
Whether R.C. 2713.23 applies to a bond forfeiture proceeding when the bond at issue was issued in a criminal case.
{¶21} Chapter 2713 of the Ohio Revised Code contemplates "Arrest and Bail" in the civil context. R.C. 2713.01 provides that "[i]n a civil action, a defendant can be arrested before judgment only in the manner prescribed by [R.C.] 2713.01 to [R.C.] 2713.29." (Emphasis added.) R.C. 2713.02 sets forth that "[a]n order of arrest" is to be issued by the clerk of court upon the filing of an affidavit by the plaintiff stating the nature and amount of the plaintiff's claim and facts "establishing one or more of the [listed] particulars." R.C. 2713.03 requires the plaintiff or a surety to execute a bond that plaintiff will pay the defendant's damages up to double the amount in the affidavit in the event the order of arrest was wrongfully obtained. R.C. 2713.21 addresses the discharge of bail when a defendant is surrendered in a civil case, while R.C. 2713.23 sets forth when bail is exonerated in a civil case.
{¶22} Crim. R. 46 Bail provides, in relevant part,
(I) Failure to Appear; Breach of Conditions. Any person who fails to appear before any court as required is subject to the punishment provided by the law, and any bail given for the person's release may be forfeited. If there is a breach of condition of bail, the court may amend the bail.
{¶23} R.C. 2937.35, Forfeit of bail, provides,
Upon the failure of the accused or witness to appear in accordance with its terms the bail may in open court be adjudged forfeit, in whole or in part by the court or magistrate before whom he is to appear. But such court
or magistrate may, in its discretion, continue the cause to a later date certain, giving notice of such date to him and the bail depositor or sureties, and adjudge the bail forfeit upon failure to appear at such later date.
{¶24} In State v. Hughes, the Ohio Supreme Court noted,
The purpose of bail, as stated in Crim.R. 46(A) "is to insure that the defendant appears at all stages of the criminal proceedings." See, also, Bland v. Holden (1970), 21 Ohio St.2d 238, 257 N.E.2d 397 . The surety, by posting bail bond, guarantees that it will produce the defendant in court when called. State ex rel. Howell v. Schiele (1949), 85 Ohio App. 356, 88 N.E.2d 215 , affirmed (1950), 153 Ohio St. 235, 91 N.E.2d 5 . If the defendant does not make a court appearance, there is a breach of a condition of the bond and the court must declare a forfeiture of the bail, Crim.R. 46(M), unless the surety is exonerated "as provided by law." Crim.R. 46(N).27 Ohio St.3d 19, 20, 501 N.E.2d 622(1986)(emphasis added). Accord, State v. Bryson, 5th Dist. Stark Nos. 2007-CA-00108, 2007-CA-00132, 2008-Ohio-193, ¶13 ("The procedure for bail forfeiture is found in R.C. Chapter 2937."). Notably, Appellant has failed to provide any case law applying Chapter 2713, and more specifically R.C. 2713.21 and R.C. 2713.23, to criminal cases. Nor has this Court found any such case law.
Forfeiture proceedings are governed by R .C. 2937.36, which provides that a surety may be exonerated if good cause "by production of the body of the accused or otherwise" is shown. (Emphasis added.) R.C. 2937.36(C).
{¶25} Because this matter involved a criminal case, R.C. 2713.21 and R.C. 2713.23 providing for the discharge and the exoneration of bail in a civil case are not applicable. State v. Wade, 9th Dist. Lorain No. 17CA011081, 2018-Ohio-2443, ¶15.
{¶26} Appellant's First Assignment of Error is overruled.
II.
{¶27} In the Second Assignment of Error, Appellant contends the trial court abused its discretion by entering judgment against the Appellant as the trial court should have required a new bond to be posted with separate bonding powers upon his release from state prison.
Standard of Appellate Review.
{¶28} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
Whether the trial court erred by continuing Jefferson's bond rather than requiring a new surety bond to be posted.
{¶29} Crim.R. 46, Bail, provides in relevant part,
(H) Continuation of Bonds. 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 continue 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.
{¶30} R.C. 2937.40, which governs release of bail and sureties, states:
(A) Bail of any type that is deposited under sections 2937.22 to 2937.45 of the Revised Code or Criminal Rule 46 by a person other than the accused shall be discharged and released, and sureties on recognizances shall be released, in any of the following ways:
(1) When a surety 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:
(a) By delivery of the accused into open court;
(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.
(2) By appearance of the accused in accordance with the terms of the recognizance or deposit and the entry of judgment by the court or magistrate;
(3) By payment into court, after default, of the sum fixed in the recognizance or the sum in the order of forfeiture, if it is less.
{¶31} Appellant points to no evidence in the record that at any point between December 30, 2014 when Jefferson's bond was revoked to February 5, 2015 when Jefferson was arraigned in the Richland County Court of Common Pleas, did the trial court issue a forfeiture of Jefferson's bond. In rejecting a similar argument, the Court of Appeals in State v. Lee observed,
In addition to giving rise to numerous practical concerns, requiring the trial court to essentially provide for a new bond once a defendant is retaken into custody ignores the standard established in R.C. 2937.40(A)(3), which identifies payment of the sums ordered in the order of forfeiture as the event triggering release and discharge of the obligations of a surety under a bail bond. In this case, ABC was not released of its obligations as a surety pursuant to R.C. 2937.40(A)(3) when the trial court initiated the bond forfeiture process after Lee failed to appear. By "reinstating" the bond after Lee subsequently appeared in court, the trial court was merely recognizing the existence of an existing agency relationship. While ABC argues that Lee's failure to appear resulted in a change in circumstances, ABC did not apply to the trial court for discharge of its bond pursuant to Crim.R. 46(H) and R.C. 2937.40. Thus, the bond remained in effect at the time Lee failed to appear for sentencing on October 28, 2003, and ABC maintained its agency relationship with Lee. It follows that the second assignment of error is overruled.9th Dist. Lorain No. 11CA010083, 2012-Ohio-4329, ¶20.
{¶32} In the case at bar, Brittany Scope from the Richland County Clerk of Courts Office testified that she telephoned bonding agent Robert Hagen, an employee of Appellant, to confirm Appellant's desire to remain on Jefferson's $100,00.00 surety bond. T. Feb 10, 2017 at 24-25. Appellant did not apply to the trial court for discharge of its bond pursuant to Crim.R. 46(H) and R.C. 2937.40. Absent forfeiture and payment of the forfeited sum, the bond remained in effect until a jury verdict or a plea. State v. Barnes, 6th Dist. Sandusky No. S-10-025, 2011-Ohio-799, ¶ 28.
{¶33} In the second assignment of error, Appellant continues to rely upon R.C. 2713.21 and R.C. 2713.23 to argue that the bond was exonerated and that the trial court "had no ability to reinstate [the] bond" and was required to set a new bond when Jefferson was released from prison. As addressed above, the civil statutes relied upon by Appellant are inapplicable to criminal matters. Therefore, the bond was neither discharged under R.C. 2713.21, nor exonerated under R.C. 2713.23 and this assignment of error is unsupported by the record.
{¶34} Appellant's Second Assignment of Error is overruled.
III.
{¶35} In the Third Assignment of Error, Appellant argues the trial court abused its discretion in ordering judgment against the Appellant, as he was not given meaningful notice or an opportunity to be heard regarding the continuation of the Defendant's bond.
Standard of Appellate Review.
{¶36} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
Whether the trial court abused its discretion by not contacting Appellant before continuing Jefferson's bond.
{¶37} In State v. Stevens, the Ohio Supreme Court observed,
The foregoing precedents make it abundantly clear that a surety is charged with the knowledge of when its defendant is to appear in court on the date set for trial. The surety, by posting bail bond, guarantees that it will produce the defendant in court when called. State, ex rel. Howell, v. Schiele (1949), 85 Ohio App. 356, 40 O.O. 234, 88 N.E.2d 215, affirmed (1950), 153 Ohio St. 235, 41 O.O. 249, 91 N.E.2d 5. See Hughes, supra. With respect to the instant cause, the date the defendant pled guilty was the date set for his trial. Had the surety performed its duty of following the progress of defendant's case as well as his whereabouts, it would have had actual notice in open court that the defendant had pled guilty and that the bond was continued. Since the surety did not attend the proceeding where the court continued the bond, the surety had constructive notice of the continuation by way of the court's journal entry. In our view, the surety was afforded sufficient due process by the trial court in a manner provided by Crim.R. 46(J).30 Ohio St.3d 25, 27, 505 N.E.2d 972(1987). In the case at bar, Brittany Scope from the Richland County Clerk of Courts Office testified that she telephoned bonding agent Robert Hagen, an employee of Appellant, to confirm Appellant's desire to remain on Jefferson's $100,00.00 surety bond. T. Feb 10, 2017 at 24-25. That conversation occurred July 28, 2015. There is no evidence in the record that Mr. Hagan was intoxicated at the time of this conversation. The letter referenced by Appellant refers to an incident that occurred on May 3, 2017, nearly two years later in a different case.
{¶38} Accordingly, Appellant's Third Assignment of Error is not well taken.
IV.
{¶39} In the Fourth Assignment of Error, Appellant contends the trial court abused its discretion by entering judgment against the Appellant as the trial court's failure to issue a bench warrant limited the Appellant's ability to recapture the Jefferson.
Standard of Appellate Review.
{¶40} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
Whether the trial court abused its discretion by impairing Appellant's ability to recapture Jefferson.
{¶41} Appellant argues that its ability to locate and produce Jefferson was somehow limited by the trial court not issuing a nationwide bench warrant until October 26, 2016.
{¶42} Whenever a surety chooses to do so, they may seize the defendant and deliver him to court. State v. Kole, 92 Ohio St.3d 303, 304-305, 2001-Ohio-191, 750 N.E.2d 148 citing Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371-372, 21 L. Ed. 287, 290(1872). When a surety wishes, they may deliver the defendant to court and surrender him, and in doing so, release themselves from the bond at any time. R. C. 2937.40(A)(1)(a). There was nothing preventing Appellant from apprehending Jefferson at any time up until the bond was actually forfeited by the court with the Trial Court's ruling on May 25, 2017.
{¶43} In the case before us, the failure of Appellant to surrender Jefferson was in no way dependent upon the trial court issuing a warrant to arrest Jefferson. Appellant does not elucidate with any specificity exactly how the trial court's issuance of a bench warrant was a perquisite to Appellant's authority or ability to delivery Jefferson before the court.
{¶44} The trial court's actions did not impair or prevent Appellant from delivering Jefferson to the trial court.
{¶45} Appellant's Fourth Assignment of Error is overruled.
V. & VII.
{¶46} In the Fifth Assignment of Error, Appellant argues the trial court abused its discretion by entering judgment against the Appellant as Jefferson was returned to the Court's custody on June 2, 2017, within 10 days after Judgment was entered against the Appellant on May 25, 2017. In the Seventh Assignment of Error, Appellant contends the Trial Court abused its discretion by denying the Appellant's Motion to Vacate because it did not address the issues raised by the Appellant in its Motion and instead treated the Motion as if it were a motion requesting remission of a forfeited bond pursuant to R.C. 2937.39.
Standard of Appellate Review.
{¶47} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
A. Whether the trial court abused its discretion by ordering a forfeiture of Jefferson's bond on May 25, 2017 because Jefferson was apprehend on June 2, 2017.
{¶48} If a judgment on the sureties has been entered at a hearing held pursuant to R.C. 2937.36, a surety may seek remission of the forfeiture in the event that the accused subsequently appears, surrenders or is rearrested. In that event, the court may, in its discretion, remit some or the entire forfeited bond. R.C. 2937.39. Appellant did not file a motion requesting remission of a forfeited bond pursuant to R.C. 2937.39. Apparently appellant argues the trial court should have sua sponte vacated the Judgment Entry of May 25, 2017 when Jefferson was apprehended. Appellant cites no authority for this proposition.
{¶49} At no point in their Brief does Appellant contend that Jefferson was returned to the trial court's custody by their efforts. There is nothing in the record to suggest that Jefferson was returned to custody through the efforts of Appellant.
{¶50} In exercising its discretion on whether to remit some or all of a forfeiture, the court should consider, 1) the circumstances of the accused's reappearance, 2) his or her reason for failing to appear, 3) the prejudice afforded the prosecution by the accused's absence, 4) whether sureties helped return the defendant, 5) mitigating circumstances, and 6) whether justice requires that the entire amount remain forfeited. State v. American Bail Bond Agency, 129 Ohio App.3d 708, 712-713, 719 N.E.2d 13(10th Dist. 1998); State v. Duran, 143 Ohio App.3d 601, 604, 758 N.E.2d 742 (6th Dist. 2001); State v. Patton, 60 Ohio App.3d 99, 101, 573 N.E.2d 1201(6th Dist. 1989); State v. Sexton, 4th Dist. Lawrence No. 99CA19, 2000-Ohio-2006.
{¶51} Based upon a reading of R.C. 2937.39, Appellant is correct in arguing that the trial court had authority to grant remission; however, as set forth by the state, appellant did not request remission at the trial court level. Nor did he present any evidence related to any of the factors a trial court must consider when deciding whether to grant remission. In fact, Appellant's only argument in support of his requested relief was that Jefferson was arrested ten days after the order of forfeiture was entered by the trial court. Appellant presented no other evidence.
{¶52} Because Appellant failed to request remission and failed to offer evidence entitling him to it, he cannot now complain that the trial court erred in failing to grant something that was not requested by him. Therefore, we cannot conclude that the trial court abused its discretion in failing to order remission of the bond. State v. Slider, 184 Ohio App.3d 68, 2009-Ohio-4179, 919 N.E.2d 775, ¶18.
B. Whether the trial court abused its discretion in denying Appellant's motion to vacate.
{¶53} In order to prevail on a motion brought pursuant to Civ.R. 60(B), " * * * the movant must demonstrate that (1) the party has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order or proceedings was entered or taken." Argo Plastic Products Co. v. Cleveland (1984), 15 Ohio St.3d 389, 391, 474 N.E.2d 328, citing GTE Automatic Electric v. ARC Industries (1976), 47 Ohio St.2d 146, 351 N.E.2d 113, paragraph two of the syllabus. If any prong of this requirement is not satisfied, relief shall be denied. Argo at 391, 15 Ohio St.3d 389, 474 N.E.2d 328.
{¶54} Further, in examining the trial court's denial of a motion for relief from judgment this Court does not review the correctness of the original judgment from which relief is sought, but rather we are limited to determining whether the trial court abused its discretion in failing to grant relief from judgment. Kochalko v. Kochalko, 5th Dist. Guernsey No. 04CA15, 2004-Ohio-7098 (Citations omitted). An appellate court will not reverse a trial court's decision concerning a Civ.R. 60(B) motion unless the court abused its discretion. Harris v. Anderson, 109 Ohio St.3d 101, 846 N.E.2d 43, ¶ 7 (2006), citing State ex rel. Russo v. Deters, 80 Ohio St.3d 152, 153, 684 N.E.2d 1237 (1997); Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988).
{¶55} Appellant argues in his Seventh Assignment of Error the trial court abused its discretion by denying Appellant's Motion to Vacate because it did not address the issues raised in Appellant's Supplemental Motion to Vacate filed May 21, 2018.
{¶56} In its May 22, 2018 Judgment Entry the trial court ruled,
Rule 60(B) Motion for Relief from Judgment
AAA Sly contends it has two meritorious defenses to present if it were granted relief from the judgment against it. Although the movant is not required to support its motion for relief from judgment with evidentiary materials, the movant must do more than make bare allegations that he is entitled to relief. An examination of its claims shows that they are not meritorious defenses.
First, AAA Sly contends that its bonding agent Robert Hagan did not agree to issue or continue the bond on July 28, 2015. But that issue was already fully litigated at the hearings before the Magistrate. At that hearing, deputy clerk of courts Brittany Scope testified that she spoke to Mr. Hagan by telephone, that he authorized the bond, and that she noted that fact on the bond. Mr. Hagan himself testified that he couldn't recall whether or not he authorized the bond. The Magistrate found the bond valid, and the court affirmed that judgment over objections.
Second, AAA Sly contends that its agent Robert Hagan was incompetent when he authorized that bond on July 28, 2015. But AAA Sly
concedes that the only piece of evidence it has to support that assertion is a May 12, 2017 letter from the magistrate to U.S. Specialty Insurance Company to report that he smelled alcohol on Mr. Hagan when he came to the courthouse to ask for a bond revocation on another offender. That was a simple report of odor of alcohol, and it occurred 22 months after Mr. Hagan posted the bond in this case. There is no assertion that AAA Sly took any action in response to the magistrate's letter or that it found any defect in its agent Hagan.Judgment Overruling AAA Sly Bail Bond's Motion to Vacate Forfeiture, filed May 22, 2018 at 4-5 (footnotes omitted).
Thus, these two claims are already resolved or irrelevant defenses to the obligation of AAA Sly to pay on its insurance bond undertakings.
{¶57} The supplemental motion referred to by Appellant raised arguments that R.C. 2713.23 applied to this case rather than R.C. 2937.36. We rejected this argument in our disposition of Appellant's First Assignment of Error.
{¶58} The trial court clearly addressed the issue raised in Appellant's June 19, 2017 Motion to Vacate pursuant to Cir. 60(B). Appellant failed to demonstrate that it had a meritorious defense. Accordingly, the trial court did not abuse its' discretion in denying the Appellant's Civ. R. 60(B) motion to vacate.
{¶59} Appellant's Fifth and Seventh Assignments of Error are overruled.
VI.
{¶60} In the Sixth Assignment of Error, Appellant argues the trial court abused its discretion by entering judgment against the Appellant because the trial court failed to notify the Appellant of Jefferson's failure to appear on December 22, 2015.
Standard of Appellate Review.
{¶61} An abuse of discretion exists where the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice, or where the judgment reaches an end or purpose not justified by reason and the evidence. Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No.2006-CA-41, 2006-Ohio-5823, ¶54.
ISSUE FOR APPEAL.
Whether the trial court abused its discretion by failing to notify Appellant of Jefferson's failure to appear on December 22, 2015.
{¶62} Appellant contends that the court's docket reveals that Jefferson failed to appear for a jury trial that was scheduled for December 22, 2015. Appellant contends that the trial court did not notify Appellant and therefore contributed to Appellant's ability to timely locate and return Jefferson to the court. Appellant cites R.C. 2937.35 that provides,
Upon the failure of the accused or witness to appear in accordance with its terms the bail may in open court be adjudged forfeit, in whole or in part by the court or magistrate before whom he is to appear. But such court or magistrate may, in its discretion, continue the cause to a later date
certain, giving notice of such date to him and the bail depositor or sureties, and adjudge the bail forfeit upon failure to appear at such later date.
{¶63} On the same date, December 22, 2015, the trial court filed an entry granting Jefferson's motion to continue the trial because a new attorney had entered an appearance on Jefferson's behalf. (Trial Court Docket #68).
{¶64} Jefferson failed to appear for the jury trial that was scheduled for February 1, 2016. The Trial Court's Amended Judgment Entry of Bond Forfeiture (R.C. 2937.35 & .36) filed February 12, 2016 forfeited Jefferson's bond. The entry further provides,
Pursuant to the court's R.C. 2937.35 discretion, this case is continued to March 28 , 2016 @10:00 A.M. and the bail depositor and sureties are notified that their bond will be forfeit if defendant does not appear before the court at that time.Trial Court Docket #79. Appellant offers no explanation as to why it did not produce Jefferson on or before March 28, 2016 except to argue that somehow the trial court's failure to notify Appellant of Jefferson's failure to appear on December 22, 2015 hampered Appellant's efforts to locate Jefferson. That argument is feckless.
{¶65} In State v. Stevens, the Ohio Supreme Court observed,
The foregoing precedents make it abundantly clear that a surety is charged with the knowledge of when its defendant is to appear in court on the date set for trial. The surety, by posting bail bond, guarantees that it will produce the defendant in court when called. State, ex rel. Howell, v. Schiele (1949), 85 Ohio App. 356, 40 O.O. 234, 88 N.E.2d 215, affirmed (1950), 153 Ohio St. 235, 41 O.O. 249, 91 N.E.2d 5. See Hughes, supra. With
respect to the instant cause, the date the defendant pled guilty was the date set for his trial. Had the surety performed its duty of following the progress of defendant's case as well as his whereabouts, it would have had actual notice in open court that the defendant had pled guilty and that the bond was continued. Since the surety did not attend the proceeding where the court continued the bond, the surety had constructive notice of the continuation by way of the court's journal entry. In our view, the surety was afforded sufficient due process by the trial court in a manner provided by Crim.R. 46(J).30 Ohio St.3d 25, 27, 505 N.E.2d 972(1987). Sureties are given constructive notice of a continuation of bond by way of the court's judgment entry, and are obligated to remain informed of the status of its principle's case. If a surety perceives that continuation of bond is too risky, it may apply for a discharge of the bond pursuant to Crim.R. 46 and R.C. 2937.40. Appellant offers no explanation for its failure to remain informed of Jefferson's case seeking instead to blame the trial court for Appellant's own malfeasance or misfeasance. Appellant offers no explanation as to why it did not apply for a discharge of the bond when it did become aware that Jefferson did not appear on December 22, 2105.
{¶66} The trial court properly notified Appellant of the pending bond forfeiture and provided Appellant an opportunity to present Jefferson to the court to avoid the forfeiture in accordance with R.C. 2937.35. Appellant was obligated to remain informed of the status of Jefferson's case.
{¶67} Appellant's Sixth Assignment of Error is overruled.
{¶68} The judgment of the Richland County Court of Common Pleas is affirmed. By Gwin, P.J., Delaney, J., and Wise, Earle, J., concur