State v. Mohammed ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-198
Filed 17 October 2023
Durham County, No. 20 CR 050362
STATE OF NORTH CAROLINA
v.
YOUSEF BARAKAT MOHAMMED, DEFENDANT
1ST ATLANTIC SURETY COMPANY, SURETY
Appeal by Durham Public Schools Board of Education from order entered 16
November 2022 by Judge Clayton Jones, Jr., in Durham County District Court.
Heard in the Court of Appeals 20 September 2023.
Tharrington Smith, LLP, by Stephen G. Rawson and Richard A. Paschal, for
Durham Public Schools Board of Education-Appellant.
The Law Offices of Elston, Donnahoo & Williams, P.C., by Brian D. Elston, for
Surety-Appellee.
COLLINS, Judge.
Durham Public Schools Board of Education (“Board”) appeals from an order
granting 1st Atlantic Surety Company’s (“Surety”) petition for relief from a final
judgment of bond forfeiture. The Board argues that the trial court abused its
discretion by granting relief because Surety failed to make a showing of extraordinary
circumstances as required by statute. Because the record contains no evidence that
extraordinary circumstances existed, the order is reversed.
STATE V. MOHAMMED
Opinion of the Court
I. Background
Yousef Barakat Mohammed (“Defendant”) was arrested on 19 February 2020.
On 29 February 2020, Defendant was released on $5,000 secured bond under bail
agent Ashraf M. Mubaslat (“Mubaslat”) and Surety’s custody. Defendant failed to
appear for court on 13 January 2022, and the trial court issued a bond forfeiture
notice on 14 January 2022 with a final judgment date of 16 June 2022.
On 16 June 2022, Mubaslat filed a motion to set aside the forfeiture, indicating
that “[t]he defendant died before or within the period between the forfeiture and this
Motion, as evidenced by the attached copy of the defendant’s death certificate.”
Mubaslat did not attach a death certificate to the motion, but instead he attached a
hand-written note that stated, “Defendant died and we are getting a copy of death
certificate.” The Board objected to Mubaslat’s motion and moved for sanctions
against Surety for failure to provide actual documentation of Defendant’s death. On
14 July 2022, the trial court denied Mubaslat’s motion to set aside the forfeiture. The
trial court entered a separate order finding grounds for sanctions and ordering Surety
to pay $2,500. Surety paid the bond but did not pay the sanctions.
On 26 August 2022, the State moved to abate the criminal charges against
Defendant on the ground that Defendant had died on or about 23 February 2022. The
trial court allowed the State’s motion and ordered that the case be dismissed. On 29
August 2022, Mubaslat and Surety filed a petition seeking relief from the final
judgment of forfeiture, arguing:
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STATE V. MOHAMMED
Opinion of the Court
7. The Defendant died before or within the period between
the forfeiture and this Motion, as evidenced by the attached
copy of the defendant’s death certificate.
8. Filed Motion to set aside knowing the Defendant had
died but was not able to produce documentation.
9. Surety Paid Bond
10. Surety was able to produce the death certificate after
the final Judgment date and Bond was paid.
A photograph of Defendant’s death certificate issued by the Cook County Clerk in
Chicago, Illinois, was attached to the petition. On 14 September 2022, Surety
withdrew and refiled the petition.1
The matter was heard on 9 November 2022. At the hearing, Surety’s counsel
argued that Mubaslat was unable to obtain a copy of Defendant’s death certificate
and had to find Defendant’s family members to get a copy of his death certificate.
However, Mubaslat was not present at the hearing, and no sworn testimony or
affidavits were presented to the court. On 16 November 2022, the trial court entered
an order granting Surety relief from the final judgment of forfeiture. The trial court
found, in relevant part:
4. On or about February 13, 2022, Defendant Mohammed
died.
5. Surety filed a motion to set aside on June 16, 2022, but
did not attach a death certificate to the motion. The Board
attorney filed an objection to said motion and motion for
sanctions and noticed same for hearing on July 13, 2022.
At the July 13, 2022 hearing, the Honorable Judge Dorothy
1 The petition was originally signed by Mubaslat. The refiled petition was signed by counsel
for Surety.
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STATE V. MOHAMMED
Opinion of the Court
Mitchell entered an order denying the motion to set aside
and an order awarding sanctions to the Board in the
amount of 50% of the bond for failure to attach the required
documentation. Neither of those orders was appealed.
6. The bond was paid in full on July 15, 2022. The
sanctions had not been paid as of November 9, 2022.
7. On September 14, 2022, counsel for the Surety filed a
Petition for Relief from Final Judgment and included a
photograph of the death certificate for Defendant
Mohammed.
8. At the November 9, 2022, hearing on Surety’s Petition
to Remit, counsel for the Surety argued that the bail agent
was unable to obtain the death certificate from the Cook
County, Illinois clerk in time to attach it to the original
motion to set aside, and had to find family members of the
deceased in order to get a copy of the record.
9. The Court finds that the Defendant died during the
150-day period following the failure to appear, and that the
Surety’s difficulty in getting the death certificate from
Cook County along with efforts to contact the Defendant’s
family to obtain the same represent extraordinary
circumstances that entitle the Surety to relief from the
final judgment of forfeiture.
10. Because the July 13, 2022, sanctions order was not
appealed, the Court finds that it has no ability to revisit
that judgment.
Based upon its findings of fact, the trial court concluded that the 13 July
sanctions order should remain in place, but “[t]he circumstances described by Surety
constitute extraordinary circumstances . . ., and the Surety is entitled to relief in full
from the final judgment of forfeiture.” The Board appealed.
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STATE V. MOHAMMED
Opinion of the Court
II. Discussion
A. Standard of Review
A trial court’s decision to grant relief based on the existence of extraordinary
circumstances is reviewed for abuse of discretion. State v. Edwards, 172 N.C. App.
821, 825, 616 S.E.2d 634, 636 (2005) (citation omitted). “A trial court may be reversed
for abuse of discretion only upon a showing that it[s ruling] was so arbitrary that it
could not have been the result of a reasoned decision.” State v. Escobar, 187 N.C.
App. 267, 271, 652 S.E.2d 694, 698 (2007) (quotation marks and citation omitted).
B. Extraordinary Circumstances
The Board argues that the trial court abused its discretion by granting Surety’s
petition for relief because Surety presented no evidence of extraordinary
circumstances that prevented it from obtaining and furnishing Defendant’s death
certificate with its initial motion to set aside the judgment.
A trial court may grant relief from a final judgment of forfeiture if
“extraordinary circumstances exist that the court, in its discretion, determines should
entitle that person to relief.” N.C. Gen. Stat. § 15A-544.8(b)(2) (2022).
“Extraordinary circumstances in the context of bond forfeiture has been defined as
going beyond what is usual, regular, common, or customary . . . of, relating to, or
having the nature of an occurrence or risk of a kind other than what ordinary
experience or prudence would foresee.” Edwards, 172 N.C. App. at 825, 616 S.E.2d
at 636 (quotation marks and citation omitted). “Whether the evidence presented rises
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STATE V. MOHAMMED
Opinion of the Court
to the level of showing extraordinary circumstances is a heavily fact-based inquiry
and therefore, should be reviewed on a case by case basis.” Escobar, 187 N.C. App.
at 270, 652 S.E.2d at 697 (quotation marks and citation omitted). “[T]he arguments
of counsel are not evidence.” State v. Collins, 345 N.C. 170, 173, 478 S.E.2d 191, 193
(1996) (citations omitted).
At the hearing on Surety’s petition, Surety’s counsel argued that Mubaslat was
unable to obtain a copy of Defendant’s death certificate and had to find Defendant’s
family members to get a copy of the death certificate. However, Mubaslat was not
present at the hearing, and no sworn testimony or affidavits were presented to the
court to support counsel’s assertions. The record evidence indicates that Defendant
died, and that Surety did not produce evidence of Defendant’s death until two months
after the bond forfeiture judgment became final. Counsel’s arguments were not
evidence, and the record is devoid of evidence to support the trial court’s finding of
“Surety’s difficulty in getting the death certificate from Cook County along with
efforts to contact the Defendant’s family to obtain the same” or any other
circumstances “going beyond what is usual, regular, common, or customary . . . of, or
relating to, or having the nature of an occurrence or risk of a kind other than what
ordinary experience or prudence would foresee,” Edwards, 172 N.C. App. at 825, 616
S.E.2d at 636 (quotation marks and citation omitted). Without such evidence, the
trial court’s conclusion that extraordinary circumstances existed could not have been
the result of a reasoned decision.
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STATE V. MOHAMMED
Opinion of the Court
III. Conclusion
For the foregoing reasons, the order granting Surety’s petition for relief from
the judgment is reversed.
REVERSED.
Judges TYSON and WOOD concur.
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