Opinion
NO. 2015 CA 0618
04-15-2016
STATE OF LOUISIANA v. BENJAMIN RISHER
HILLAR C. MOORE, III DISTRICT ATTORNEY SARAH TIRRELL ASSISTANT DISTRICT ATTORNEY BATON ROUGE, LA ATTORNEYS FOR THE STATE OF LOUISIANA J. RODNEY BAUM BATON ROUGE, LA ATTORNEY FOR APPELLANT ALLEGHENY CASUALTY CO.
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 08-11-1128
Honorable Richard Anderson, Judge HILLAR C. MOORE, III
DISTRICT ATTORNEY
SARAH TIRRELL
ASSISTANT DISTRICT ATTORNEY
BATON ROUGE, LA ATTORNEYS FOR
THE STATE OF LOUISIANA J. RODNEY BAUM
BATON ROUGE, LA ATTORNEY FOR
APPELLANT
ALLEGHENY CASUALTY CO. BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. PETTIGREW, J.
In this bond forfeiture case, the bond surety Allegheny Mutual Casualty Company (Allegheny) appeals a judgment rendered against it and the defendant, Benjamin Risher (Mr. Risher), who failed to appear in court, finding them solidarity liable to the State of Louisiana for the amount of the bond, $17,000.00, together with interest thereon until paid. For the following reasons, we affirm.
Mr. Risher was arrested on May 24, 2011, and charged with attempt to obtain a controlled dangerous substance (Schedule IV, Alprazolam) by fraud, and possession of a controlled dangerous substance (Schedule II, Adderall), violations of La. R.S. 40:971; 979, and 40:967C, respectively, allegedly committed on May 24, 2011. He bonded out of jail on May 26, 2011, with an appearance bond, in the amount of $17,000.00, through A Affordable Bail Bonds, and its insurer, Allegheny. The bond indicates that Mr. Risher was to appear in district court the next day, May 27, 2011, for a drug test. He appeared on May 27 for the drug test, but because formal charges had not yet been filed, no future court appearance was set at that time.
A police report contained in the record reveals that on May 24, 2011, an investigating officer with the Louisiana Department of Public Safety and Corrections, Bryan Blount, received information from a Walgreens' pharmacy that a person, who identified himself as Charles Diel, was attempting to obtain sixty (60) dosage units of Xanax 1 mg., from a fraudulent prescription.
Subsequently, by bill of information number 08-11-1128, dated August 30, 2011, Mr. Risher was formally charged with the offenses. Service of notice of the arraignment date, set for September 27, 2011, was attempted on Mr. Risher, at the address contained on his appearance bond. The document contains a notation (in the "Comments" section), by the Sheriff who attempted to serve the notice, providing: "Numerous attempts[,] no response." A separate notice of arraignment was personally served on A Affordable Bail Bond and Allegheny through Allegheny's agent, Thomas Bauman, on September 7, 2011. Mr. Risher failed to appear in district court for that arraignment on September 27, 2011, and a court order for his arrest was issued. The district court issued a bond forfeiture judgment, filed September 28, 2011, in favor of the State and against Mr. Risher, as principal, and against Allegheny, the bond company's insurer, as surety, finding them jointly and solidarily liable to the State for $17,000.00, together with interest thereon until paid. The record reveals that notice of that judgment was sent by certified US mail to Benjamin Risher, A Affordable Bail Bond, and Allegheny on September 28, 2011. The notice to Mr. Risher of the bond forfeiture judgment, postmarked September 29, 2011, and sent to the same address provided by Mr. Risher on his appearance bond, was returned unclaimed on October 26, 2011.
The affidavit in support of the bond forfeiture judgment indicates that notice thereof was served upon the defendant and any personal surety, commercial surety or bondsman (Allegheny) on September 28, 2011; however, the actual postmark on the notice reflects a date of mailing of September 29, 2011.
On July 18, 2013, Allegheny filed a Motion to Set Aside the Judgment of Bond Forfeiture, alleging that Mr. Risher did appear in court as ordered on May 27, 2011, for a scheduled drug test, but that no arraignment date was set at that time. Allegheny further alleges that although formal charges were ultimately filed against Mr. Risher, and notice of his arraignment date, set for September 27, 2011, was sent to A Affordable Bail Bond, notice of the arraignment date was never sent to the defendant (Mr. Risher) himself. Allegheny also challenged the forfeiture judgment on the basis that the affidavit in support of that judgment indicates that notice of the bond forfeiture was sent to it as surety on September 28, 2011, when the actual postmark on the notice reflects that it was not mailed until the following day, September 29, 2011. On that basis, Allegheny asserts the affidavit was "false" and therefore, cannot support the judgment, and the judgment must fall for violating La. C.Cr.P. art. 349.3B, which requires an affidavit. After a hearing on said motion on February 11, 2014, the district court denied the motion to set aside the bond forfeiture judgment. This appeal by Allegheny followed.
On appeal, Allegheny sets forth the same assertions above, but offers no legal argument in support of either, and notably, makes no mention of the evidence in the record establishing the attempted service of notice on Mr. Risher at the address provided by him on the appearance bond.
The Clerk of Court is required, by La. C.Cr.P. art. 349.3, to send notice of the judgment of bond forfeiture by certified mail with return receipt to all three parties (the defendant/principal, the bond company, and its surety) within sixty days of the defendant's failure to appear. The notice requirement imposed by La. C.Cr.P. art. 344, relating to the notice of the defendant's required appearance in court when the bond does not fix that appearance date, provides, in subsection D, that notice shall be made to "the address provided pursuant to Article 322 [the address provided in the appearance bond]."
Louisiana Code of Criminal Procedure art. 322B provides that the address listed by the defendant on the bond shall be conclusively presumed to continue for all proceedings on the bond unless a written declaration changing that address is filed in the proceeding. --------
In this case, the record establishes that the bond did not establish an appearance date for arraignment, and notice of that date was sent to the defendant and the surety. The record reflects that service of that notice was personally made on the surety on September 7, 2011, and that attempted service was made several times on Mr. Risher at the address provided by him in the appearance bond, but that he was unable to be located.
This court has addressed the issue of attempted service on a defendant of bond forfeiture in State v. Davis, 2004-1984 (La. App. 1 Cir. 9/28/05), 923 So.2d 744. In that case, the State attempted personal service and notice by certified mail of the date of the arraignment on the defendant at the address provided by her on the bond. Both attempts proved unsuccessful "because the address was one of a vacant house." This court held that "failure to introduce evidence of actual notice to the defendant does not void a bond forfeiture. Rather, ... the State must submit proof that it gave, or attempted to give, notice to the defendant." 923 So.2d at 746. See also, State v. Gibson, 2004-0591 (La. App. 1 Cir. 3/24/05), 907 So.2d 82, 85, where this court reached the same conclusion when the notice of bond forfeiture was sent to an address with a zip code different from the one provided by the defendant in the bond, stating, "we do not believe that the failure to include a proper zip code rendered an otherwise correct address, invalid."
In this case, there is no evidence or argument presented by the surety (or the defendant) to explain why Mr. Risher was unable to be located, despite several attempts, at the address provided by him, and used by the State, nor have they offered any argument why the use of that address was insufficient. The State complied with the notice requirements, the district court properly rendered judgment of bond forfeiture, and denied Allegheny's motion to set that judgment aside.
Accordingly, the district court's judgment, finding Allegheny Mutual Casualty Company and Benjamin Risher solidarily liable to the State of Louisiana in the amount of the bond, $17,000.00, together with interest thereon until paid, is affirmed. Allegheny is assessed all costs of this appeal.
AFFIRMED.