Opinion
No. 86-685
Decided April 8, 1987.
Criminal law — Sureties — Bonds — Surety has duty to follow progress of defendant's case as well as his whereabouts — Constructive notice of continuation of bond in open court is sufficient to charge surety — Crim. R. 46(J).
APPEAL from the Court of Appeals for Cuyahoga County.
On September 7, 1984, defendant, Walter Stevens, was indicted by the Cuyahoga County Grand Jury on two counts of aggravated robbery with firearm specifications. At his subsequent arraignment, defendant pled not guilty to all charges. The surety for defendant at this time, Peerless Insurance Company, secured defendant's release by posting a $5,000 bond.
On November 21, 1984, defendant failed to appear for trial, whereupon the court of common pleas ordered Peerless to produce defendant by December 21, 1984, and ordered Peerless to forfeit its bond.
On or about December 12, 1984, defendant was returned to custody, and Peerless filed a motion with the trial court to discharge it from further obligation and liability on the bond. The motion was thereafter granted by the court.
On December 24, 1984, a new bond was set at $10,000, and appellant-surety, Allegheny Insurance Company, through its authorized agent, appellant Edward Brown, posted the bond for defendant in order to guarantee defendant's appearance in subsequent proceedings. Consequently, defendant was released pending trial.
On January 28, 1985, defendant withdrew his not guilty plea, and entered a plea of guilty to one of the counts of aggravated robbery. As to the other count, a nolle prosequi was entered by the court. The court referred defendant to the probation department for a presentence investigation, and released him on the same bond pending receipt of the presentence report. The trial court's order reflecting the new plea was journalized on February 4, 1985.
On February 27, 1985, defendant failed to appear in court for sentencing. The court then ordered that the surety's bond be forfeited, and also ordered the surety to appear in court and produce defendant on or before March 27, 1985, or show cause why judgment should not be entered against the surety for the amount of the bond. Thereafter, a capias was issued for defendant and bond forfeiture was ordered pursuant to R.C. 2937.36(C). On March 26, 1985, the surety filed a motion requesting a ninety-day extension of the bond forfeiture judgment.
On March 27, 1985, the surety failed to produce the defendant. Consequently, the trial court entered judgment against the surety in the amount of the bond in favor of the state and awarded execution of this judgment. Subsequently, the surety filed motions with the court to vacate the bond forfeiture judgment, but these motions were denied. Eventually, on May 16, 1985, the surety paid the bond forfeiture judgment in the amount of $10,000.
Upon the surety's appeal, the court of appeals affirmed the denial of the motion to vacate the bond forfeiture judgment. The appellate court held that the trial court's journal entry continuing the bond was sufficient constructive notice to the surety of its actions under the guidelines set forth in Crim. R. 46(J).
The cause is now before this court upon the allowance of a motion for leave to appeal.
John T. Corrigan, prosecuting attorney, and Timothy J. Kollin, for appellee.
Anthony A. Gedos, for appellants.
The appellant-surety contends that Crim. R. 46(J) requires prior actual notice to the surety of a bond continuation, and that a trial court cannot act unilaterally without affording the surety actual notice. The surety submits that fundamental notions of due process of law and fairness accord a right of actual prior notice to the surety of such a continuation by the trial court. In support of its argument, the surety relies on Ohio Furniture Co. v. Mindala (1986), 22 Ohio St.3d 99, 22 OBR 133, 488 N.E.2d 881; and Peebles v. Clement (1980), 63 Ohio St.2d 314, 17 O.O. 3d 203, 408 N.E.2d 689. The surety contends further that the trial court's action adds new burdens to the contract the surety had with defendant, and therefore amounts to an unconstitutional retroactive and/or ex post facto law under Lakengren v. Kosydar (1975), 44 Ohio St.2d 199, 73 O.O. 2d 502, 339 N.E.2d 814.
In response, the appellee state contends that the notice requirements of Crim. R. 46(J) are satisfied when the defendant's bond is continued in open court and is evidenced by the court's journal entry. The state also argues that the continuation of the bond did not impose new duties or responsibilities upon the surety, and that the surety knew or should have known of the provision in Crim. R. 46 governing the continuation of bonds.
Crim. R. 46(J) provides:
"Unless application is made by the surety for discharge, the same bond shall continue as a matter of right until the return of a verdict or judgment by a jury or by the court on the issue of guilt or innocence. In the discretion of the trial court, and upon notice to the surety, the same bond may also continue after final disposition in the trial court and pending sentence or pending disposition of the case on review. Any provision of a bond or similar instrument which is contrary to this rule is void." (Emphasis added.)
Given the language employed in this Criminal Rule, we are persuaded that the court of appeals was correct in finding that proper notice was given the surety under the strictures of this rule. The notice given by the trial court, albeit constructive, was nevertheless proper when one takes into consideration the peculiar obligation that a surety undertakes when it enters into a surety contract.
As stated many years ago by the United States Supreme Court in Taylor v. Taintor (1872), 83 U.S. (16 Wall.) 366, at 371-372:
"When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge * * *. * * * In 6 Modern [231, Anonymous], it is said: `The bail have their principal on a string, and may pull the string whenever they please, and render him in their discharge' * * *."
See, also, State v. Hughes (1986), 27 Ohio St.3d 19, 27 OBR 437, 501 N.E.2d 622; and State v. Ohayon (1983), 12 Ohio App.3d 162, 12 OBR 486, 467 N.E.2d 908.
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).
We further find that the cases relied on by the surety, Mindala, supra, and Peebles, supra, are not controlling here. Mindala, supra, interpreted Civ. R. 41(B)(1), which provides for dismissal of an action "after notice" to the plaintiff's counsel. The rule in issue in Mindala called for prior notice on a dismissal, whereas the instant Criminal Rule refers simply to "notice," and does not involve the finality of a dismissal. Peebles, supra, is also inapplicable to the instant case because the constitutional infirmity found there concerned the lack of judicial supervision of the statutory prejudgment attachment procedure. The holding there did not hinge on the type of notice required.
In the cause sub judice, the surety does not assert any of the statutory defenses constituting "good cause" which could exonerate it from its obligation under the bond, as provided in R.C. 2937.36 and 2937.40. See Hughes, supra. We are not persuaded by the arguments raised by the surety, since we believe that such arguments do nothing more than make a veiled attempt to excuse the surety for its own inattentiveness. The fact remains that the defendant was released to the surety as a continuance of the original imprisonment. As part of its agency relationship with the defendant, the surety was obligated to remain informed of the status of the defendant's case. Here, the trial court made a journal entry setting forth the order that the same bond would continue as to the defendant. If the surety had been doing its job in following the progress of defendant's case, it would have been fully aware of defendant's plea and the fact that the same bond was continued.
While our research reveals a paucity of decisional law addressing the precise issue before us today, we find that at least one other court has arrived at a similar conclusion under a somewhat similar set of facts. See Lee v. State (Ind.App. 1977), 368 N.E.2d 1172.
With respect to the surety's other constitutional argument, we believe it is also lacking in merit. Based upon our holding above, the surety knew or should have known that the bond could be continued by the court pursuant to Crim. R. 46(J). As such, we find that this does not add any new duties or obligations on a surety when a court decides to act in a manner that is in accordance with law. Thus, the surety's reliance on Lakengren, supra, is clearly misplaced.
Accordingly, for the reasons herein stated, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., SWEENEY, COOK, SHANNON, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
COOK, J., of the Eleventh Appellate District, sitting for LOCHER, J.
SHANNON, J., of the First Appellate District, sitting for HOLMES, J.