Opinion
No. 2 CA-CV 2020-0037
02-03-2021
IN RE THE BOND FORFEITURE OF $10,000
COUNSEL Laura Conover, Pima County Attorney By Ellen R. Brown, Deputy County Attorney, Tucson Counsel for Appellee State of Arizona T. S. Hartzell, Tucson Counsel for Appellant Azteca Bail Bonds
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. CR20161858
The Honorable Lee Ann Roads, Judge Pro Tempore
AFFIRMED
COUNSEL Laura Conover, Pima County Attorney
By Ellen R. Brown, Deputy County Attorney, Tucson
Counsel for Appellee State of Arizona T. S. Hartzell, Tucson
Counsel for Appellant Azteca Bail Bonds
MEMORANDUM DECISION
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred. ECKERSTROM, Judge:
¶1 Appellant surety, Azteca Bail Bonds ("ABB"), appeals from the trial court's judgment forfeiting the $10,000 appearance bond ABB posted on behalf of criminal defendant Harold High, who failed to appear for a court proceeding. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 The material underlying facts and procedure are uncontested. In March 2017, a jury found High guilty of first-degree burglary, felony theft, and possession of a deadly weapon by a prohibited possessor. In October 2017, the trial court granted his motion for a new trial, and the state appealed. The court set an appearance bond of $50,000 and stayed all proceedings while the matter was on appeal. In May 2018, the court reduced the bond to $10,000.
¶3 Four months later, in September 2018, this court issued a decision reversing the trial court's grant of a new trial, reinstating the guilty verdicts, and remanding the case to the superior court for sentencing. State v. High, No. 2 CA-CR 2017-0343, ¶¶ 1, 19 (Ariz. App. Sept. 25, 2018) (mem. decision). We subsequently granted High's requests for two extensions to file his motion for reconsideration. State v. High, No. 2 CA-CR 2017-0343 (Ariz. App. Oct. 9, 2018) (order); State v. High, No. 2 CA-CR 2017-0343 (Ariz. App. Nov. 20, 2018) (order).
¶4 On November 16, 2018—before High filed his motion for reconsideration—ABB posted its bond on High's behalf for $10,000. High filed his motion for reconsideration on November 21, and we denied it one week later. State v. High, No. 2 CA-CR 2017-0343 (Ariz. App. Nov. 28, 2018) (order). High then filed a petition for review, which our supreme court denied in August 2019. State v. High, No. CR-18-0616-PR (Ariz. Aug. 28, 2019). We issued our mandate on October 23, 2019, "command[ing the superior court] to conduct such proceedings as required to comply" with our decision.
¶5 The trial court held a status conference on November 19, 2019, at which High failed to appear. The court issued a warrant for his arrest and referred the matter for commencement of bond forfeiture proceedings. After receiving notice, ABB filed a motion to exonerate the bond, which the state opposed.
¶6 At the bond forfeiture hearing, the trial court found: (a) High had failed to appear for a court proceeding, in violation of the conditions, terms, and obligations of the bond; (b) ABB had "failed its guarantee of [High's] presence at all court proceedings and therefore violated the conditions, terms, and obligations of the bond"; and (c) no legally sufficient explanation or excuse for these violations had been presented. The court thus found the bond forfeited in its entirety and entered judgment in favor of the state for $10,000 plus post-judgment interest. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).
Discussion
¶7 ABB challenges the trial court's judgment on the ground that the bond "was void and without legal authority," because High "was no longer bailable after this Court filed its decision reversing the trial court's granting of a motion for a new trial." "We review a trial court's order forfeiting [a] bond for an abuse of discretion, but we interpret de novo court rules governing appearance bonds." State v. Old West Bonding Co., 203 Ariz. 468, ¶ 9 (App. 2002).
¶8 The parties agree that, when the trial court initially ordered that bond be set at $50,000 and later reduced it to $10,000, the court had full legal authority to do so. See State ex rel. Berning v. Alfred, 186 Ariz. 403, 405 (App. 1996) (trial court may determine release conditions "at any time," including after state has appealed grant of new trial). The jurisprudence cited by ABB is therefore inapposite, as it establishes only that a bond initially ordered without legal authority is void ab initio and unenforceable against a surety. See State v. Swinburne, 121 Ariz. 404, 405 (App. 1979) (bond void, invalid, and unenforceable against surety when trial court "had no authority" to set bond for or release defendant charged with capital murder, not a bailable offense); People v. Wirtschafter, 305 N.Y. 515, 521-22 (1953) (when convicted defendant was "released on bail in direct contravention of statute" because such release "was expressly forbidden" by state criminal code, bond was without legal authority, "void for all purposes," and unenforceable against surety).
¶9 ABB contends that the "once-lawful bail" became illegal "automatically" upon the issuance of our September 2018 decision, and that our decision "effectively cancelled" the release condition allowing for bond "[e]ven without a mandate." But our decisions do not become effective until the date of issuance of the related mandate. See Borrow v. El Dorado Lodge, Inc., 75 Ariz. 218, 220 (1953); see also Ariz. R. Crim. P. 31.22(a). As we have said, "an appellate proceeding . . . does not terminate until the appellate court's mandate issues." In re Marriage of Flores & Martinez, 231 Ariz. 18, ¶ 10 (App. 2012). Before that time, a party may seek reconsideration or petition for review, or both—as occurred here—"and there is little utility in returning a case to the trial court until all matters related to the appeal are resolved. The requirement for issuance of the mandate avoids the risk that the trial and appellate courts could assume jurisdiction of the same case simultaneously," id. ¶ 11, and potentially reach inconsistent results. We therefore reject ABB's contention that, before the mandate issued, our September 2018 decision was somehow "equivalent" or "analogous" to a conviction in the trial court that rendered High ineligible for bail.
ABB's argument is further flawed because it assumes that, before the trial court granted High's motion for a new trial, he was facing mandatory prison time. But, as the state notes, when the court granted a new trial, there were no allegations of dangerous nature, the state had withdrawn the allegation of aggravators, and High's alleged priors had not been proven to the court. Without these factors alleged or proven, a prison sentence was not mandatory. See A.R.S. § 13-702. Indeed, ABB elsewhere hedges, clarifying that there was only a "reasonable probability" that High would receive a prison sentence. As the trial court noted at the bond forfeiture proceeding, Rule 7.2(c)(1)(A)(i), Ariz. R. Crim. P., permits the court to allow release of even a convicted criminal defendant in such circumstances if it "finds that reasonable grounds exist to believe that the conviction may be set aside on . . . [a] post-trial motion." --------
¶10 At the forfeiture hearing, ABB argued that, after this court issued its memorandum decision, the superior court had "a duty to look at the decision and . . . revoke the bond." On appeal, ABB expands this argument, claiming "failures of this Court, the trial court and the state" and suggesting the violation of various hypothetical duties. But no legal authority establishes such duties. To the contrary, as ABB concedes, "no rules or procedures are in place to assign responsibility to address a defendant's bail status when the state appeals a post-trial order and wins" but a mandate has not yet issued.
¶11 What the law does establish is that ABB, as a professional bondsman, "agree[d] to assume an affirmative duty to the court to remain in regular contact with any defendant released under an appearance bond on which [it was] a surety." Ariz. R. Crim. P. 7.1(h)(4). And ABB bore a duty to ensure that High appeared at all court hearings—a duty it indisputably breached. As the trial court expressly found, ABB "failed its guarantee of [High's] presence at all court proceedings and therefore violated the conditions, terms, and obligations of the bond," and it provided no explanation or excuse for this failure.
¶12 Indeed, ABB has presented no evidence to explain or excuse High's failure to appear or to indicate any factors that prevented him from appearing. See State v. Int'l Fid. Ins. Co., 238 Ariz. 22, ¶ 12 (App. 2015) (surety's burden to establish, by preponderance of evidence, valid excuse or explanation for defendant's failure to appear). The trial court was therefore within its discretion to forfeit the bond in its entirety. See Ariz. R. Crim. P. 7.6(c) (trial court may forfeit "all or part of the bond amount" when criminal defendant "has violated a condition of an appearance bond" and violation "is not excused"); see also In re $75,000 Bond, 225 Ariz. 401, ¶ 18 (App. 2010) (trial court has discretion to forfeit appearance bond in entirety if defendant's absence neither explained nor excused).
¶13 Finally, ABB contends it was "an unwitting surety" that "posted the bond unaware of its invalidity" because "High took advantage" of the situation. But, as established above, the bond was not invalid. And, in Arizona, "a surety assumes the risk of a defendant's failure to appear," and "no one but the surety had any duty to ascertain the wisdom or folly of contracting with the defendant to post a bond that would secure his appearance in court." In re Bond Forfeiture in Pima Cnty. Cause No. CR-20031154, 208 Ariz. 368, ¶ 4 (App. 2004).
Disposition
¶14 We affirm the trial court's judgment forfeiting the bond in its entirety.