Opinion
No. 1 CA-CV 13-0241
03-06-2014
STATE OF ARIZONA, Appellee, v. COPPER CANYON BAIL BONDS; BANKER'S INSURANCE COMPANY, Appellants.
Yavapai County Attorney's Office, Prescott By Sheila Polk and Thomas M. Stoxen Counsel for Appellee Clifford Sherr, Attorney at Law, Phoenix By Clifford Sherr Counsel for Appellants
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. P1300CR201200658
No. P1300CR201200931
No. V1300CR201280307
(Consolidated)
The Honorable Cele Hancock, Judge
REVERSED AND REMANDED
COUNSEL
Yavapai County Attorney's Office, Prescott
By Sheila Polk and Thomas M. Stoxen
Counsel for Appellee
Clifford Sherr, Attorney at Law, Phoenix
By Clifford Sherr
Counsel for Appellants
MEMORANDUM DECISION
Presiding Judge Donn Kessler delivered the decision of the Court, in which Judge Patricia K. Norris and Judge Maurice Portley joined. KESSLER, Presiding Judge:
¶1 Appellants Copper Canyon Bail Bonds and Banker's Insurance Company (collectively "Copper Canyon") appeal from the superior court's judgment forfeiting an appearance bond and order denying a motion for a new trial. For the following reasons, we reverse and remand with instructions to enter an order exonerating the appearance bond.
FACTUAL AND PROCEDURAL HISTORY
¶2 Defendant Samantha Egan was arrested and indicted on several drug-related charges. As a condition of release, the superior court required Egan to post a $50,000 appearance bond. Copper Canyon posted bond on behalf of Egan on July 4, 2012. The bond included two standard conditions: first, that Egan "shall appear on July 30, 2012 . . . and shall submit to the said court to answer [the] charge[s] . . . [against her]" and, second, that she "shall submit to orders and process of [the] court and not depart same without leave." Egan's mother secured the bond with a lien on her home.
¶3 On August 15, 2012, the superior court modified Egan's release conditions to require her to attend a drug rehabilitation program at West Yavapai Guidance Clinic. The court ordered that Egan was required to go to the clinic and "if [Egan] leaves the program at WYGC or has a dirty UA, the court shall be notified. Mother is to provide status to [defense counsel]." When Egan failed to report for drug treatment two days after the superior court modified the release conditions, her mother contacted the court and defense counsel, and the court issued an order simultaneously revoking Egan's release conditions, issuing a bench warrant for her arrest and setting bail at $100,000, and scheduling a bond forfeiture hearing. A week later, Egan was apprehended by the Yavapai County Sheriff's Department. Prior to the forfeiture hearing, Egan accepted a plea agreement resolving her case.
¶4 At the forfeiture hearing, the superior court summarized that after it was informed that Egan did not check into the rehabilitation program on August 17, it ordered her arrest. The court further explained that Egan was aware that she was to be "in treatment or come back to this court. She did not. She went on the run." The State argued that the bond should be forfeited because Egan "had the opportunity to report and she failed to report." Although the court stated it was not happy to forfeit the bond because Egan had misled her mother, it found that Egan's conduct was willful in that she did not follow the orders of the court because "[s]he did not appear at rehab." The superior court ordered the entirety of the bond forfeited based on Egan's willful failure to attend rehabilitation.
¶5 Copper Canyon thereafter moved for a new trial and argued, among other matters, that the bond only applied to court appearances. The State opposed the motion and argued that forfeiture was appropriate because Egan failed to obey the order of the court by not checking into rehabilitation and that Copper Canyon should have apprehended her for failure to submit to the court's order. The court denied the motion without comment. Copper Canyon timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) & (5)(a) (Supp. 2013).
We cite the current versions of statutes when no amendments material to this decision have since occurred.
DISCUSSION
¶6 Copper Canyon makes several arguments in asking us to exonerate the bond or to remand the matter to the superior court for a new hearing. First, Copper Canyon argues that the court erred by relying on A.R.S. § 13-3858 (2010) rather than Arizona Rule of Criminal Procedure 7.6 to forfeit the bond, and by otherwise misapplying relevant case law by forfeiting the appearance bond based on Egan's failure to obey a release condition. Second, it contends the court abused its discretion by denying its motion for a new trial because it modified Egan's release conditions, thereby materially and prejudicially altering Copper Canyon's obligations under the appearance bond, and failed to consider the appropriate factors in forfeiting the entire bond. Because we find resolution of the first issue dispositive, we do not address Copper Canyon's second argument. I. Standard of Review
¶7 On appeal, we review the facts in the light most favorable to sustaining the superior court's judgment forfeiting the appearance bond. State v. Old West Bonding Co., 203 Ariz. 468, 471, ¶ 9, 56 P.3d 42, 45 (App. 2002). We review the judgment for an abuse of discretion, but we interpret the rules governing appearance bonds de novo. State v. Liberty Bail Bonds, 233 Ariz. 474, 476, ¶ 8, 314 P.3d 820, 822 (App. 2013). II. Application of A.R.S. § 13-3858
¶8 In ordering the bond forfeited, the superior court explicitly relied on A.R.S. § 13-3858, which is part of the Uniform Criminal Extradition Act. Copper Canyon argues and the State concedes that the proceedings had nothing to do with extradition and that, therefore, application of A.R.S. § 13-3858 was improper.
¶9 Nevertheless, as the State argued in the trial court and argues on appeal, the superior court's reliance on A.R.S. § 13-3858 was essentially immaterial because the standard under that statute is identical to the standard for bond forfeiture under the governing rule, Arizona Rule of Criminal Procedure 7.6. See State v. Veatch, 132 Ariz. 394, 396, 646 P.2d 279, 281 (1982). We agree that reliance on the extradition statute, alone, is not reversible error if forfeiture of the bond was otherwise appropriate under Rule 7.6 and the relevant case law. III. Failure to Obey a Release Condition Does Not Automatically Trigger Bond Forfeiture
¶10 A court may require, as a condition of release, that a defendant post an appearance bond. Ariz. R. Crim. P. 7.3(b)(1). If it appears to the court that the defendant has violated a condition of the appearance bond, the court shall issue a bench warrant for the defendant's arrest and, within 120 days, hold a bond forfeiture hearing. Ariz. R. Crim. P. 7.6(c)(1). If the violation is not explained or excused, the court may order all or part of the bond forfeited. Ariz. R. Crim. P. 7.6(c)(2). "In determining whether to order an appearance bond forfeited, a trial court may consider all the relevant circumstances, including . . . the defendant's willfulness in violating the order to appear, the effort and expense expended by the surety in trying to locate and apprehend the defendant, any intangible costs, or any other aggravating or mitigating factors that prevented the defendant from appearing." In re Bond Forfeiture in Pima Cnty. No. CR-20031154, 208 Ariz. 368, 370, ¶ 5, 93 P.3d 1084, 1086 (App. 2004); see also Old West, 203 Ariz. at 475, ¶ 26, 56 P.3d at 49.
¶11 Appearance bonds must comply with the form approved by the Arizona Supreme Court. See Ariz. R. Crim. P. 7.1(b) (defining appearance bond as "an undertaking, on a form approved by the Supreme Court, to pay to the clerk of the court a specified sum of money upon failure of a person released to comply with its conditions" (emphasis added)). The standard appearance bond includes two conditions: a promise by the defendant to (1) appear before the court to answer the charges against her—with blanks for the related dates—and (2) "submit to the orders and process of the court having jurisdiction of the case." Ariz. R. Crim. P. Form 7. Violation of either condition may trigger the forfeiture procedure. The appearance bond here included both of these standard conditions.
¶12 The superior court ordered the bond forfeited based on Egan's willful failure to attend rehabilitation per her modified release conditions. Accordingly, forfeiture was appropriate only if attending rehabilitation was a condition of the appearance bond and Egan did not explain or excuse her failure to comply. It is undisputed that Egan attended all regularly scheduled court appearances and therefore did not violate the first condition of the appearance bond. Instead, this dispute is over the meaning and scope of the second condition. Copper Canyon contends that attending rehabilitation was not a condition of the appearance bond, and that complying with release conditions is not the same as submitting to the orders and process of the court. The State argues that Egan failed to submit to the superior court's order that she attend rehabilitation, thereby violating the second condition of the appearance bond. We conclude that failure to comply with a release condition is not, alone, a violation of a condition of the appearance bond triggering forfeiture.
¶13 This Court discussed the meaning of the "orders and process" condition and its applicability to release conditions in State v. Surety Insurance Co., 127 Ariz. 493, 622 P.2d 52 (App. 1980). There, the superior court forfeited defendant's bond after defendant committed new crimes while on release in violation of the standard release condition that he "refrain from committing any criminal offense." Id. at 494, 622 P.2d at 53; see also Ariz. R. Crim. P. 7.3(a)(2). Appellants argued that "neither the rules nor the statute contemplate the forfeiture of an appearance bond as a consequence of a violation of [a] release order . . . ." Surety Ins. Co., 127 Ariz. at 495, 622 P.2d at 54. The State argued that an appearance bond contemplates two conditions, the first relating to court appearances and the second relating to "obedience to all orders of the court, past and future, going beyond orders relating only to appearances." Id.
¶14 We first noted that the second condition must refer to something other than orders requiring physical appearance because otherwise the two conditions would be redundant. Id. Next, we explained that the condition requiring the defendant to submit to the orders and process of the court was not "tantamount to a promise not to disobey existing orders of the court." Id. Ultimately, we concluded that although "the commission of a crime was a ground for revoking the defendant's release from custody, it was not a breach of the appearance bond justifying forfeiture . . . ." Id.
Conditions of release govern the conduct of the defendant while released from custody and may, in addition, require the defendant to file an appearance bond. Violation of the conditions of release will lead to the revocation of the release causing the defendant to be returned to custody. If he is not amenable to the order requiring his custody, the bond may be forfeited, resulting in a sum of money payable to the State in lieu of the defendant's physical appearance.Id. at 496, 622 P.2d at 55 (emphasis added) (citation omitted). Thus, the order and process condition contemplated by the appearance bond is the order requiring a defendant to return to custody should the court revoke her release for violations of the release conditions.
¶15 The language of both the form bond and the bond in this case dictate the extent of the bonding company's obligation. The first condition indicates specifically that the defendant will appear at a date certain. The second clause, that she "shall submit to orders and process of [the] court," means that she will appear at other court dates or obey court orders requiring her to appear before the court, including returning to custody if a bench warrant is issued for an alleged violation of the release conditions. In light of Surety and the purpose of the bonding process, the second clause cannot mean that the appearance bond ensures she will obey all of her release conditions.
¶16 Our conclusion that an appearance bond is limited to ensuring that the defendant shows up to court hearings is consistent with other jurisdictions that have analyzed the issue. In State v. Darwin, for example, the Washington Court of Appeals reversed a trial court's order forfeiting a bond based on the defendant's noncompliance with release conditions. 856 P.2d 401, 403 (Wash. Ct. App. 1993). The court explained that:
[t]he object of bail is to guarantee the appearance of the accused before the court at such times as the court may direct. . . . A bonding company, by undertaking to guarantee the presence of the defendant, may accept certain conditions of release . . . . By doing so, the surety is guaranteeing the accused's presence in court, should any of the conditions be violated and the court call for the presence of the accused. It defies logic to suggest that by accepting those conditions, the surety is guaranteeing that the accused will not violate any of those conditions. The surety has no means of guaranteeing the accused's behavior, short of locking him up. . . . [T]he bond [here] was not subject to forfeiture without a clear agreement on the part of the surety that its bond could be forfeited if any conditions of release were violated.Id. (emphasis added); see also State v. Holmes, 564 N.E.2d 1066, 1069 (Ohio 1991) ("[S]imply because a condition of release may be imposed upon a defendant does not mean that the breach of such a condition requires the forfeiture of a bail bond.").
The State points out that, unlike Arizona, Ohio considers timely production of the defendant as good cause justifying exoneration of the bond. Holmes, 564 N.E.2d at 1069. Although Holmes was resolved on this basis, we nonetheless find its discussion of release conditions and appearance bond revocation persuasive.
¶17 Furthermore, this interpretation comports with the primary purpose of appearance bonds, which is to assure a defendant's appearance at the trial or other hearings. State v. Bonds, 201 Ariz. 203, 208, ¶ 19, 33 P.3d 537, 542 (App. 2001). An appearance bond is not an insurance policy that ensures a defendant's compliance with all release conditions. A contrary conclusion would substantially increase the obligations imposed on bondsmen, making it unlikely that anyone would post security for a defendant's appearance. For example, the State's argument would subject a bonding company to forfeiture (and the indemnitor to loss of property) if the defendant willfully failed to appear for a meeting with a probation officer or for a urinalysis drug test. A bondsman has no control over that scope of a defendant's behavior and cannot possibly know each time a defendant might fail to show up for a meeting with a probation officer or for a drug test.
¶18 Our conclusion is also consistent with the statutory scheme governing bail and release. Violations of release conditions and violations of appearance bond conditions are governed by separate statutes and rules. Section 13-3968 (2010) and Arizona Rule of Criminal Procedure 7.5 govern the procedures and consequences for a defendant's violation of release conditions. "Upon a verified application by the prosecuting attorney alleging that a defendant . . . has willfully violated the conditions of [her] release," the court may issue a warrant for the defendant's arrest and order the defendant to appear for a hearing on the violation. A.R.S. § 13-3968(A); see also Ariz. R. Crim. P. 7.5(a). "After a hearing and upon a finding that the defendant has willfully violated the conditions of [her] release, the court may impose different or additional conditions," or, if the defendant committed a new felony during the release period or poses a substantial danger, the court may revoke the defendant's release. A.R.S. § 13-3968(B); see also Ariz. R. Crim. P. 7.5(c). Accordingly, the proper course of action when a defendant disobeys a release condition is to issue a warrant for the defendant's arrest and to hold a hearing on whether to modify or revoke the release conditions. Once that warrant is issued, the surety has a duty to ensure that the defendant returns to custody. See A.R.S. § 13-3885(A) (2010) (authorizing surety to arrest defendant); A.R.S. § 13-3974 (2010) (explaining that an appearance bond may be exonerated if the surety returns the defendant to custody before she is ordered to appear in court); State v. Copperstate Bail Bonds, 222 Ariz. 193, 196, ¶¶ 1720, 213 P.3d 342, 345 (App. 2009).
The statute has since been amended to require exoneration under these circumstances. See A.R.S. § 13-3974 (Supp. 2013).
¶19 In so holding, we disagree with the State that Surety is inapplicable because it involved a release condition that restrained action (the prohibition on committing new crimes), while here the condition that Egan attend rehabilitation required some "positive action" in response to the order. The State overlooks that at the time this Court decided Surety, the standard appearance bond form included as a condition that the defendant "will at all times hold himself amenable to the orders and process of the court." 127 Ariz. at 495, 622 P.2d at 54. We reasoned that "[t]he word 'amenable' implies some positive action in response to an order, not restraint of action in obedience to an order." Id. Thus, our distinction between positive action and restraint or obedience derived from the form's use of the word "amenable." Since then, the appearance bond form as been changed to replace the phrase "will at all times hold himself amenable" with the phrase "submit to the orders and process of the court . . . ." Ariz. R. Crim. P. Form 7. The word "submit" means "[t]o surrender or yield (oneself) to the will or authority of another," or "[t]o allow oneself to be subjected." Webster's II New Riverside University Dictionary, 1154. This definition does not similarly imply some positive action.
¶20 Here, upon learning that Egan failed to attend rehabilitation, the superior court issued a warrant for her arrest. Instead of scheduling a hearing on modification or revocation of Egan's release conditions, however, the court in the same order immediately revoked Egan's release and scheduled a hearing on bond forfeiture. Further, at the bond forfeiture hearing, the superior court focused on Egan's willful failure to attend rehabilitation. It is evident, then, that the court conflated Egan's release condition violation with a violation of the appearance bond. The State has not argued any alternative violation triggering bond forfeiture beyond Egan's failure to comply with her release conditions. Accordingly, the trial court should not have forfeited the bond in response to Egan's failure to attend rehabilitation.
In its answering brief, the State briefly suggests that Egan failed to take positive action both to report to rehabilitation "and subsequently to turn herself in to authorities after the trial court's [bench warrant issued]." The references to Egan being on the run are made in passing, however, and in the context of whether violating the release condition was adequately excused or explained. The State did not preserve the argument that not returning to custody was, itself, an independent basis for forfeiture, and the superior court clearly ordered the bond forfeited solely because Egan failed to report to rehabilitation. Supra ¶ 4.
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¶21 Because we conclude that the court erred in reading Egan's release conditions into the conditions of the appearance bond, we need not address Copper Canyon's other arguments.
CONCLUSION
¶22 For the foregoing reasons, we reverse the superior court's forfeiture judgment and remand with instructions to enter an order exonerating the bond.