Opinion
J. A18034/13 112 MDA 2013
02-11-2014
COMMONWEALTH OF PENNSYLVANIA, v. LARRY MITCHELL LUCAS, JR. APPEAL OF: PAUL WEACHTER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 1, 2013,
in the Court of Common Pleas of Franklin County,
Criminal Division, at No(s): CP-28-CR-0001354-2010.
BEFORE: MUNDY, OLSON, and STRASSBURGER, JJ. MEMORANDUM BY: STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Paul Weachter (Appellant), bail bondsman to Larry Mitchell Lucas, Jr., (Lucas), appeals from the order granting the Commonwealth's petition for bail forfeiture. We affirm.
As discussed more fully infra, the notice of appeal in this matter was prematurely filed and the appeal is properly taken from the trial court's October 1, 2013 order forfeiting Lucas' bail. We have amended the caption accordingly.
On May 20, 2010, Lucas was arrested and charged with multiple offenses, including possession of a controlled substance with intent to deliver (PWID). His bail was initially set at $100,000.00. On July 6, 2010, Lucas waived his right to a preliminary hearing in exchange for a modified bail of $25,000.00 secured. On July 8, 2010, Appellant posted the required bail for Lucas by providing 10% cash and the balance in a surety bond. Under the terms of his bail bond, Lucas agreed to "appear at all times required until full and final disposition of the case." See Bail Bond, 7/7/2010. On the surety information page, which Appellant signed, Appellant acknowledged that
I understand that when a monetary condition of release is imposed, if the defendant appears at all times required by the court and satisfies all the other conditions set forth in the bail bond, then upon full and final disposition of the case, this bond shall be void. If the defendant fails to appear as required or to comply with the conditions of the bail bond, then this bond shall remain in full force, and the sum of the monetary condition of release may be forfeited, the defendant's release may be revoked, and a warrant for the defendant's arrest may be issued.See Surety Information Page, 7/7/2010.
On February 21, 2011, Lucas pleaded guilty to PWID. Sentencing was set for June 8, 2011. Lucas failed to appear at sentencing. The sentencing court continued the matter one week, to June 15, 2011, to allow counsel an opportunity to determine Lucas' whereabouts and advise him of the need to appear for sentencing. On June 15, 2011, Lucas' counsel appeared for sentencing, but Lucas did not. The court sentenced Lucas in absentia and issued a bench warrant for his arrest the same day.
Nearly a year later, on May 24, 2012, the Commonwealth filed a petition for bail forfeiture. Following a number of continuances and additional filings by both parties, a hearing was held on October 17, 2012. On December 31, 2012, the common pleas court issued an order directing Appellant to forfeit Lucas' bail in the case 180 days from the date of the order if Lucas was not brought before the court within that time frame. The court indicated an opinion would issue in support of the order; however, prior to the filing of the opinion, Appellant filed a notice of appeal to this Court.
By per curiam Judgment Order of September 18, 2013, this merits panel quashed Appellant's appeal, finding that the lower court's December 31, 2012 order was interlocutory and not ripe for appellate review. Pursuant to Pa.R.A.P. 2542(a)(1), Appellant had 14 days, or until October 2, 2013, to file an application for reargument of the panel decision. On October 18, 2013, Appellant and the Commonwealth filed a "Joint Motion for Reconsideration Pursuant to 210 Pennsylvania Code §65.39," requesting this panel review its decision in light of a "final order" issued by the trial court on October 1, 2013. This panel granted reconsideration on November 25, 2013. Appellant sets forth two issues for our review.
The October 1, 2013 order reads as follows.
AND NOW this 1st day of October, 2013,Trial Court Order, 10/1/2013.
WHEREAS, the parties to this action have filed a stipulation in which it is factually confirmed to the Court by the parties that the Defendant, Larry Mitchell Lucas, Jr. remains a fugitive from justice. His exact whereabouts are unknown. It is further stipulated by the parties that they have no additional evidence to present to the Court with regard to the issue of what efforts have been made to secure the Defendant. The Court must accept that the parties can offer no additional evidence to establish that bail bondsman Paul Weachter has taken any additional actions to secure the presence of Mr. Lucas before the Court, or that the Commonwealth has taken any additional actions to bring Mr. Lucas before the Court since the order issued on December 31, 2012.
For the foregoing reasons, the Court finds that the record on this matter is closed and that this Court accepts all prior factual averments established in the transcripts of these proceedings as they were found by the Court. There is no additional supplementation or addition to the facts. This Court can only conclude that there have been no further actions taken by any party to secure Mr. Lucas presence before the Court. This order shall be construed as a final order of court, and the Court hereby orders that bail be forfeited in accordance with the prior order of court dated December 31, 2012.
Pursuant to the requirements of Pa.R.Crim.P. 114 (B)(1), (2) and (C)(1), (2), the Clerk shall promptly serve this Order or court notice on each party's attorney, or the party if unrepresented; and shall promptly make docket entries containing the date of receipt in the Clerk's office of the Order or court notice; the date appearing on the Order or court notice; and the date and manner of service of the Order or court notice.
This joint petition is patently untimely, having been filed approximately 16 days late. See Pa.R.A.P. 2542(a)(1). Generally, this Court may not enlarge the time for filing a notice of appeal, a petition for permission to appeal, or a petition for review. Pa.R.A.P. 105(b); Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007). However, the parties herein are not requesting an extension of time, but rather are seeking merit review after the entry of a final order. In our judgment order of September 18, 2013, we noted that Appellant's notice of appeal, though timely, was taken from an interlocutory, conditional order issued by the trial court. The appeal was at best premature to the now final order entered October 1, 2013. In Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011), our Supreme Court permitted review of an appeal that had many more complicating factors than the instant one. The Supreme Court ultimately held that Superior Court had jurisdiction to handle a premature direct appeal of judgment of sentence instituted by a pro se defendant, represented by counsel, who had filed a pro se premature notice of appeal prior to the counseled post-sentence motions being ruled upon. The Cooper court pointed out that: 1) the trial court had already considered and denied the counseled post-sentence motions; 2) the trial court had ordered a Rule 1925(b) statement; and 3) filed its Rule 1925(a) opinion addressing the claims before the appellate courts. Applying the rationale in Cooper to the instant case, we believe that the subsequent actions of the trial court (i.e. the filing on the October 1, 2013 order) have ripened the matter for review and, as such, we will review Appellant's issues on the merits.
1. Did the [trial court] misapply the law and/or exercise manifestly unreasonable judgment when ordering forfeiture of bail where the Commonwealth failed to follow local Rules of Procedure regarding bail forfeiture, and where the Commonwealth waited nearly one year to notify the surety of [Lucas'] failure to appear?Appellant's Brief at 7.
2. Did the [trial court] fail to properly apply the applicable legal standards for determining whether bail forfeiture should occur, including the consideration of mitigating factors?
Matters concerning the administration of bail are subject to the Rules of Criminal Procedure. See 42 Pa.C.S. § 5702. The procedures and criteria governing forfeiture are set forth in Rule 536, which provides that "[w]hen a monetary condition of release has been imposed and the defendant has violated a condition of the bail bond, the bail authority may order the cash or other security forfeited and shall state in writing or on the record the reasons for so doing." Pa.R.Crim.P. 536(A)(2)(a). Upon forfeiture, the money deposited to secure the defendant's appearance or compliance with the conditions of the bail bond technically becomes the property of the county. Pa.R.Crim.P. 536(A)(2)(e). However, the bail bond remains subject to exoneration, set-aside, or remission by the court. Pa.R.Crim.P. 536(C).
[T]he decision to allow or deny a remission of bail forfeiture lies within the sound discretion of the trial court. Accordingly, our review is limited to determination of whether the court abused its discretion in refusing to vacate the underlying forfeiture order. To establish such an abuse, the aggrieved party must show that the court misapplied the law, exercised manifestly unreasonable judgment, or acted on the basis of bias, partiality, or ill-will to that party's detriment.Commonwealth v. Mayfield, 827 A.2d 462, 465 (Pa. Super. 2003) (citations and quotations omitted). "If a trial court erred in its application of the law, an appellate court will correct the error. Our scope of review on questions of law is plenary." Commonwealth v. Hernandez, 886 A.2d 231, 235 (Pa. Super. 2005) (citations omitted).
Appellant first claims that the Commonwealth violated Franklin-Fulton County Local Rule of Criminal Procedure 39-4016 which provides, in pertinent part, "Within fifteen days of the breach of bail as provided in paragraph (1) above, the Franklin County District Attorney shall petition the Court for the issuance upon the principal or the surety, as appropriate, a rule to show cause why the bail bond or recognizance should not be forfeited." 39th Jud. Dist. R. Crim. P. No. 39-4016(A)(2). Appellant argues that (1) because the Commonwealth did not follow proper procedure by requesting a rule to show cause and (2) did not seek forfeiture for over a year after Lucas' failure to appear, the trial court's grant of forfeiture should be reversed.
Instantly, the local rule sets forth the procedure by which bail proceedings are initiated in Franklin and Fulton counties, i.e. by requiring the Commonwealth to file a rule to show cause within 15 days of the breach. This step merely begins the process as subsection (A)(2) is coupled with a provision for a rule to show cause to be issued upon the bail agent, and expressly grants the surety a period of six months before the forfeiture is finalized to petition the lower court for remission or other relief. 39th Jud. Dist. R. Crim. P. No. 39-4016(A)(3), (5). Nonetheless, Appellant contends that when the Commonwealth fails to abide by the 15-day rule, the forfeiture, as a whole, is invalid. For the reasons that follow, we reject Appellant's argument.
Importantly, local rule 39-4016 does not contain a penalty provision nor does it provide authority for Appellant's suggested remedy. Moreover, the Pennsylvania Rules of Criminal Procedure, unlike the local rule, do not require the Commonwealth to request a rule to show cause or move for bond forfeiture within a particular timeframe; rather, it is within the bail authority's discretion to order forfeiture when a breach has occurred. See Pa.R.Crim.P. 563 (A)(2). Local rules will not be utilized in such a way as to render a provision of the Rules of Criminal Procedure meaningless. Commonwealth v. Keller, 477 A.2d 523, 526 n.3 (Pa. Super. 1984).
Further, we note,
[t]he Rules of Criminal Procedure are to be construed in accordance with the rules of statutory construction. With this principle in mind we recall that "[t]he word 'shall' as used in a statute is generally regarded as mandatory, i.e., imposing a duty upon the party to whom the statute is directed." Commonwealth v. Sojourner, 513 Pa. 36, 41-42, 518 A.2d 1145, 1148 (1986) (citations omitted). Though this is a rule ofCommonwealth v. Baker, 690 A.2d 164, 167 (Pa. Super. 1997) (certain citations omitted).
statutory construction, it is applicable as well in the context of procedural rules. Notwithstanding the general rule that "shall" is mandatory, we are aware that the word "shall" has also been interpreted to mean "may" or as being merely directory as opposed to mandatory. See e.g., Commonwealth ex rel. Bell v. Powell, 249 Pa. 144, 94 A. 746 (1915) (interpreting "shall" as "may"); Fishkin v. Hi-Acres, Inc., 462 Pa. 309, 341 A.2d 95 (1975)(interpreting "shall" to be merely directory as opposed to mandatory). In observing that the word "shall" can be ambiguous given that it may be interpreted in at least one of two ways, we have stated that
[e]xcept when relating to the time of doing something, statutory provisions containing the word "shall" are usually considered to be mandatory, but it is the intent of the legislature which governs, and this intent is to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.Francis v. Corleto, 418 Pa. 417, 428, 211 A.2d 503, 509 (1965) quoting, Pleasant Hills Borough v. Carroll, 182 Pa.Super. 102, 106, 125 A.2d 466, 468 (1956).
As the trial court correctly points out, if we are to accept Appellant's contention, "then the Commonwealth can never seek forfeiture of a bail bond if it does not act within fifteen days and there is no incentive on the part of any bail agent to pursue and find the persons to whom they provided surety for bail." Trial Court Opinion, 3/1/2013, at 12. Thus, although we decry the Commonwealth's inaction in this matter, we decline to interpret "shall," as used in the local rule, as synonymous with "must." Baker, supra. Moreover,
[a] careful review of the record reveals that [Appellant's] counsel concedes that he received notice, opportunity to respond, and have hearing on the matter. To add the remedy to 39th Jud. Dist. R.Crim.P. 4016 as requested by [Appellant] means that all bail bondsmen are relieved of any obligation or duty under the bail surety agreement they signed to seek the apprehension of their client. Such an interpretation cannot stand. It is an absurd result based upon an unreasonable interpretation of the local rule.Trial Court Opinion, 3/1/2013, at 14. For all of the foregoing reasons, we find that Appellant's first issue is without merit.
Appellant next argues that the trial court failed to apply properly the standards set forth in Mayfield, supra. Appellant's Brief at 13. Mayfield provides as follows:
[w]hen a defendant breaches a bail bond, without a justifiable excuse, and the government is prejudiced in any manner, the forfeiture should be enforced unless justice requires otherwise. When considering whether or not justice requires the enforcement of a forfeiture, a court must look at several factors, including: 1) the willfulness of the defendant's breach of the bond, 2) the cost, inconvenience and prejudice suffered by the government, and 3) any explanation or mitigating factors.Id. at 468 (citation omitted). Specifically, Appellant contends that the trial court ignored certain mitigating factors, including the Commonwealth's lack of diligence and the burden on Appellant caused by the Commonwealth's delay. Id.
In a recent decision, also involving Appellant as bail bondsman, our Supreme Court abrogated this Court's traditional strict interpretation of the test in Mayfield in favor of a totality of the circumstances analysis prevalent in other jurisdictions. Commonwealth v. Hann, 2013 WL 5827034, at *8, *11-12 (Pa. Oct. 30, 2013). The Court in Hann reiterated that the decision to grant a forfeiture is at the discretion of the trial court, and thus, did not alter our standard of review in these cases. However, recognizing the Mayfield test as a "starting point" in the bail forfeiture analysis, the Court set forth additional factors for the lower courts' consideration and acknowledged that, upon receipt of notice of forfeiture, it is the surety's burden to prove by a preponderance of the evidence that "justice does not require the forfeiture." Id. Based on our review and disposition, application of the new analysis set forth in Hann does not merit Appellant relief.
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At the forfeiture hearing, Appellant testified that he never received any notice from the court or the Commonwealth that Lucas failed to appear for sentencing on June 8, 2011 or June 15, 2011. N.T., 10/17/2012, at 4-5. Likewise, Appellant was unaware of the bench warrant issued for Appellant on June 15, 2011. Id. at 8-9. Rather, Appellant indicated that he learned of Lucas' failure to appear on May 24, 2012 via the Commonwealth's forfeiture petition. Id. at 4-5. Appellant testified that he "historically" relied on local rule 39-4016 for notification of potential forfeitures and never checked the public docket sheet to learn of his client's status. Id. at 7, 8-9. Appellant claimed he was confused with respect to the case number listed on the bail forfeiture petition, although he admitted that he had only posted bail for Lucas on the instant case. Id. at 10-15. Finally, Appellant testified that once he received the Commonwealth's petition, he contacted Lucas' girlfriend regarding Lucas' whereabouts and communicated that information to the local sheriff, but has made no other efforts to locate Lucas. Id. at 15.
The Assistant District Attorney acknowledged that the Commonwealth took no steps to notify Appellant of Lucas' failure to appear for court except for requesting a bench warrant for Lucas' apprehension on June 15, 2011. Id. at 23.
The trial court determined that both parties were ultimately responsible for the substantial delay in proceedings herein. The trial court stated as follows.
For the foregoing reasons, the trial court suggests that because there has been a lack of a showing of prejudice by the Commonwealth and diligence on the part of the Commonwealth to notify [Appellant] of [Lucas'] failure to appear, [Appellant] is being given time to prove that he is making the anticipated effort expected of a bail agent to apprehend [Lucas] since he has absconded. As the trial court stated during the October 17, 2012 hearing, each day a bail agent is not notified of a defendant's non-appearance is another possible day the defendant may be able to travel out of the jurisdiction, hide or secret him or herself from the surety. For the foregoing reasons, the [c]ourt is of the opinion [Appellant] should continue to pursue [Lucas] and let the court decide whether or not the forfeiture should be lifted in due time. After all, the trial court simply wants [Lucas] to be taken into custody and serve his sentence. The unexplained delay, this [c]ourt finds, falls at the feet of both the Commonwealth and [Appellant]. It is apparent from the record and the lack of evidence of the Commonwealth's case that [Lucas] has been given a great head start because his case has "slipped through the cracks".Trial Court Opinion, 3/1/2013, at 10-11. As the trial court later pointed out in its October 1, 2013 order, supra, Lucas remains a fugitive from justice, and neither the Commonwealth, nor Appellant, has offered additional evidence of actions taken to apprehend him.
On the other hand, this [c]ourt cannot accept that [Appellant] believes it is reasonable to exclusively rely upon the Commonwealth to notify him that the defendants he has provided surety for have absconded. [Appellant] is a bail agent. He is a surety agent. This [c]ourt cannot comprehend that [Appellant] does not have to provide his insurer with a status report on an annual basis of the exposures that the insurer may face based on the compliance or noncompliance of those who have been released under the surety bonds authorized and issued by [Appellant]. This [c]ourt cannot think that a careful insurer would not want to know the status of possible claims. [Appellant] could confirm this information by checking the criminal dockets of his clients in the Clerk of Court's office or by calling the District Attorney's office. In the case sub judice, he did not review the docket for almost a year from the date [Lucas] absconded until the Commonwealth filed its petition for forfeiture. If [Appellant] exercised a minimal degree of investigation of the public criminal dockets, he would have been
alerted to his clients' failure to appear and the bench warrant that was issued for his apprehension. The trial court requests that the appellate court find no abuse of discretion on its part.
While we are troubled by the substantial delay in this case, in light of the circumstances we cannot agree with Appellant the trial court abused its discretion in ordering bail forfeiture.
Order affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary