Opinion
1 CA-CV 12-0697
05-28-2013
STATE OF ARIZONA, Plaintiff/Appellee, v. IMRAN AHMAD JAMALI, Defendant/Appellant
William Montgomery, Maricopa County Attorney By Peter S. Spaw, Deputy County Attorney Attorneys for Plaintiff/Appellee Imran Ahmad Jamali Defendant/Appellant, In Propria Persona
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - ARCAP 28)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-153708-001
The Honorable Brian Rees, Commissioner
AFFIRMED
William Montgomery, Maricopa County Attorney
By Peter S. Spaw, Deputy County Attorney
Attorneys for Plaintiff/Appellee
Phoenix Imran Ahmad Jamali
Defendant/Appellant, In Propria Persona
Chandler WINTHROP, Chief Judge ¶1 Imran Ahmad Jamali ("Appellant") appeals the trial court's judgment forfeiting $15,000 of his $30,000 appearance bond. For the following reasons, we affirm.
BACKGROUND
In general, we view the evidence in the light most favorable to sustaining the trial court's judgment. See State v. Garcia Bail Bonds, 201 Ariz. 203, 205, ¶ 5, 33 P.3d 537, 539 (App. 2001).
¶2 A grand jury issued an indictment, charging Appellant with three counts of stalking, three counts of harassment, and one count of failure to provide his true name on request of a police officer when lawfully detained after Chandler police arrested Appellant in a Chandler public library. The case was assigned Maricopa County Superior Court cause no. CR2010-153708-001. ¶3 After Appellant posted a secured appearance bond of $10,080, he was released. Appellant failed to appear for his arraignment, however, and the trial court issued a bench warrant for his arrest and set a new bond in the amount of $30,000 cash only. Appellant was eventually taken into custody, and after a bond forfeiture hearing, the court ordered $150 of the appearance bond forfeited and the remainder ($9,930) exonerated. ¶4 Appellant was again released after Hamida Bibi Jamali posted a $30,000 cash bail bond on his behalf. In posting the bond, Hamida Jamali signed the following acknowledgement: "Failure to appear on any subsequent scheduled court date may result in the forfeiture of this bond and the issuance of a warrant for the defendant's arrest." ¶5 On June 28, 2012, Appellant appeared in court for a preliminary Rule 11 competency hearing. See Ariz. R. Crim. P. 11.2(c). The court addressed Appellant and directed him to approach the podium with his attorney. Instead, Appellant refused the court's directive, "declared [him]self unconditionally free to go," and voluntarily left the courtroom. Based on Appellant's actions and his failure to cooperate with the court and the evaluation process, the court issued a bench warrant for Appellant's arrest and set a bond forfeiture hearing. ¶6 After Appellant's re-arrest, the court ordered Appellant's Rule 11 evaluation completed. A bond forfeiture hearing was conducted on July 31 and August 21, 2012. Pursuant to Rule 7.6(c) and (d) of the Arizona Rules of Criminal Procedure, the court exonerated $15,000 of the $30,000 cash bond and forfeited the remainder, which was paid to the Maricopa County Treasurer. ¶7 Appellant filed a timely notice of appeal from the court's judgment. We have appellate jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (West 2013).
Appellant states that Hamida Jamali is his mother.
Although Appellant appears to suggest otherwise, the Arizona Rules of Criminal Procedure govern the procedures for arrest warrants and forfeiture of an appearance bond. See State v. Hyde, 186 Ariz. 252, 265, 921 P.2d 655, 668 (1996); State v. Jackson, 184 Ariz. 296, 297, 908 P.2d 1081, 1082 (App. 1995). Further, an arrest warrant may be issued or amended by any magistrate. Ariz. R. Crim. P. 3.1(a), 3.5. A magistrate is "an officer having power to issue a warrant for the arrest of a person charged with a public offense and includes the chief justice and justices of the supreme court, judges of the superior court, justices of the peace and police magistrates in cities and towns." Ariz. Rev. Stat. ("A.R.S.") § 1-215(18) (West 2013).
The superior court released the other $15,000 of the deposit to Hamida Jamali. Appellant's father, Shafique A. Jamali, deposited $45,000 with the court for Appellant's new bond.
ANALYSIS
I. Failure to Comply with ARCAP 13 ¶8 An appellant's brief must contain appropriate references to the record in the statement of facts, as well as citations to the relevant authorities, statutes, and parts of the record relied on in his arguments. See ARCAP 13(a)(4), (6). Appellant's opening brief contains numerous factual assertions for which he fails to provide proper citation to the record, and his arguments fail to fully reference the record and are largely undeveloped. Mere assertions, without elaboration or proper citation to legal authority, are generally insufficient to preserve an issue for review. See Joel Erik Thompson, Ltd. v. Holder, 192 Ariz. 348, 351, ¶ 20, 965 P.2d 82, 85 (App. 1998); AMERCO v. Shoen, 184 Ariz. 150, 154 n.4, 907 P.2d 536, 540 n.4 (App. 1995). Nonetheless, in our discretion, we decline to dismiss Appellant's appeal for failure to comply with ARCAP 13, and we address the issues raised by the parties. See Clemens v. Clark, 101 Ariz. 413, 414, 420 P.2d 284, 285 (1966); Lederman v. Phelps Dodge Corp. , 19 Ariz. App. 107, 108, 505 P.2d 275, 276 (1973).
II. Standing ¶9 Appellant argues that the trial court abused its discretion when it forfeited a portion of the $30,000 appearance bond. See Garcia Bail Bonds, 201 Ariz. at 205, ¶ 5, 33 P.3d at 539 (stating that we review the trial court's order forfeiting a bond for an abuse of discretion). Before we address the merits of his argument, however, we first address the State's contention that Appellant lacks standing to appeal the judgment forfeiting a portion of the appearance bond. ¶10 "[S]tanding generally requires an injury in fact, economic or otherwise, caused by the complained-of conduct, and resulting in a distinct and palpable injury giving the plaintiff a personal stake in the controversy's outcome. Karbal v. Ariz. Dep't of Revenue, 215 Ariz. 114, 116, ¶ 7, 158 P.3d 243, 245 (App. 2007) (citation omitted). Courts generally decline jurisdiction if there is no standing. Id. We review de novo whether Appellant has standing. Id. at ¶ 6. ¶11 We disagree with the State that Appellant lacks standing to pursue this appeal. Appellant was a participant throughout the bond forfeiture proceedings in the trial court. Further, the trial court's signed judgment forfeiting $15,000 of the appearance bond states in part as follows: "The State of Arizona shall have judgment against the Defendant and the Defendant's third-party surety, Hamida Bibi Jamali, in the amount of $15,000.00, together with interest at the rate of ten (10) percent per annum from the date of Judgment until paid." The judgment's caption lists Appellant as the "Defendant." Consequently, the plain language of the judgment clearly establishes that Appellant is jointly liable to the State in the amount of $15,000, and therefore has a personal stake both in the judgment and the outcome of the appeal. Moreover, even if the judgment has already been paid through the proceeds of the bond posted by Hamida Jamali, Appellant may be liable to Hamida Jamali for the return of some or all of that payment. Accordingly, we conclude that Appellant has standing to pursue this appeal.
III. The Merits of Appellant's Arrest and Criminal Case ¶12 In arguing that the trial court abused its discretion when it forfeited a portion of the appearance bond, Appellant questions the validity of his initial (and subsequent) arrest and attempts to challenge the merits of and proceedings related to his underlying criminal case. We will not examine the merits of Appellant's underlying arrest and criminal case in determining whether the trial court abused its discretion in forfeiting a portion of the appearance bond. See generally In re Bond in the Amount of $75,000, 225 Ariz. 401, 406, ¶ 11, 238 P.3d 1275, 1280 (App. 2010) (recognizing that "when a defendant has violated the conditions of his release, Rule 7.6 does not require exoneration of an appearance bond upon the termination of the criminal proceedings").
Appellant also appears to argue that Maricopa County through its officers (including the county attorney) lacks the authority to prosecute his case on behalf of the State. We disagree. See generally Ariz. Const. art. 12, §§ 3 (providing for county officers, including a sheriff and county attorney), 4 ("The duties, powers, and qualifications of such officers shall be as prescribed by law."); A.R.S. § 11-532 (West 2013) (outlining the powers and duties of the county attorney).
IV. The Merits of the Bond Forfeiture ¶13 Appellant argues that the trial court abused its discretion when it forfeited $15,000 of the $30,000 appearance bond. In part, he argues he was not afforded due process in the proceedings, and the judgment should therefore be void. We disagree. ¶14 Rule 7.6(c), Ariz. R. Crim. P., provides the procedure for a bond forfeiture hearing:
(1) Notice and Hearing. If at any time it appears to the court that the released person has violated a condition of an appearance bond, it shall issue a bench warrant for the person's arrest. Within ten days after the issuance of the warrant, the court shall notify the surety, in writing or by electronic means, that the warrant was issued. The court shall also set a hearing within a reasonable time not to exceed 120 days requiring the parties and any surety to show cause why the bond should not be forfeited. The court shall notify the parties and any surety of the hearing in writing or by electronic means.See also State v. Old West Bonding Co., 203 Ariz. 468, 475, ¶ 25, 56 P.3d 42, 49 (App. 2002) (stating that the trial court has authority to exercise "its discretion in determining whether to forfeit all, part, or none of the appearance bond pursuant to Rule 7.6(c)(2) and whether any part of the bond not forfeited should be exonerated pursuant to Rule 7.6(d)(2) or (3)"). We interpret court rules governing appearance bonds de novo, but as noted, we review the trial court's decision for an abuse of discretion. See id. at 471, ¶ 9, 56 P.3d at 45; Ariz. R. Crim. P. 7.6(d)(3). ¶15 We find no abuse of the trial court's discretion or violation of Appellant's due process rights related to the court's proceedings. In ordering a portion of the appearance bond forfeited, the court found "that no reasonable cause exists for the defendant's failure to appear in court," and that pursuant to Rule 7.6(c)(2) and (d)(3), Ariz. R. Crim. P., it had "considered whether any factors for mitigation exist." Appellant points to no procedures outlined in Rule 7.6(c) that the court failed to follow and does not elaborate on his bare assertion that he was denied due process. The trial court's minute entries make clear, however, that Appellant and his surety were properly notified of the bond forfeiture hearings, Appellant appeared at both the July 31 and August 21 hearings, his surety appeared at the July 31 hearing, and Appellant was afforded the opportunity to address the court. Further, Appellant has failed to provide transcripts of the hearings before the court. Appellant had the duty to order the transcripts and transmit them to this court in connection with this appeal. See ARCAP 11(b)(1). In the absence of transcripts, this court assumes the record supports the court's decision. See, e.g., Kline v. Kline, 221 Ariz. 564, 572, ¶ 33, 212 P.3d 902, 910 (App. 2009); Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). ¶16 Additionally, the existing record fails to support Appellant's arguments. "The primary purpose of an appearance bond is to assure a defendant's appearance at the trial or other hearings." Garcia Bail Bonds, 201 Ariz. at 208, ¶ 19, 33 P.3d at 542 (citations omitted); see also Malone v. Superior Court, 181 Ariz. 223, 224, 889 P.2d 16, 17 (App. 1994) ("Bail is exacted for the sole purpose of securing the attendance of the defendant in court at all times when his presence may be lawfully required . . . ." (citation omitted)); Ariz. Const. art. 2, § 22(B) ("The purposes of bail and any conditions of release that are set by a judicial officer include . . . [a]ssuring the appearance of the accused."); Ariz. R. Crim. P. 7.2(a) (providing that bail should be set in the least onerous amount "which will reasonably assure the person's appearance"). "[T]he generally accepted rule [is] that in cases where a defendant's non-appearance is due to his own fault, the surety is not entitled to relief because the defendant's inability to appear is the result of his own voluntary act in committing the second offense and not an act of law preventing his appearance." Garcia Bail Bonds, 201 Ariz. at 206, ¶ 12, 33 P.3d at 540 (citations omitted). ¶17 Although Appellant appeared initially at the June 28, 2012 hearing, he does not dispute that his action of walking out of the courtroom was willful and not legally excused, prevented a meaningful appearance, and effectively constituted a failure to appear justifying the issuance of the bench warrant. See generally Ariz. R. Crim. P. 7.3(a)(1) (stating that every order of release shall contain the condition "[t]hat the person appear to answer and submit to the orders and process of the court having jurisdiction of the case"); cf. State v. Hoover, 151 Ariz. 470, 472, 728 P.2d 689, 691 (App. 1986) (equating absconding with a failure to appear). Moreover, Appellant does not argue that the court's consideration of his failure to appear somehow constituted an abuse of discretion. Consequently, the trial court did not abuse its discretion in concluding that a willful failure to appear occurred and in ordering forfeiture of a portion of the appearance bond.
(2) Forfeiture. If at the hearing, the violation is not explained or excused, the court may enter an appropriate order of judgment forfeiting all or part of the amount of the bond, which shall be enforceable by the state as any civil judgment.
Additionally, Appellant's father appeared at the August 21 hearing and was allowed to address the court.
We also find no abuse of discretion in the trial court's decision to increase Appellant's bond from $30,000 to $45,000. Appellant had twice previously failed to appear, leading each time to a forfeiture of a portion of his bond. The trial court has broad discretion in determining the amount of the bond, but must consider what will reasonably assure a person's appearance as required. See Ariz. R. Crim. P. 7.2(a). Further, the court may, on its own initiative, modify the conditions of release. Ariz. R. Crim. P. 7.4(b).
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CONCLUSION
¶18 The trial court's judgment is affirmed.
________________________________________
LAWRENCE F. WINTHROP, Chief Judge
CONCURRING: ______________________________
JON W. THOMPSON, Presiding Judge
______________________________
KENT E. CATTANI, Judge