State v. Roulhac ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1070
Filed: 1 September 2020
Martin County, 15 CRS 50823
STATE OF NORTH CAROLINA
v.
PETER LEE ROULHAC, III, Defendant,
and
BRYAN KELLEY, PALMETTO SURETY CORPORATION, Bail Agent/Surety,
and
MARTIN COUNTY BOARD OF EDUCATION, Judgment Creditor.
Appeal by surety from order entered 5 August 2019 by Judge Walter H.
Godwin, Jr., in Martin County Superior Court. Heard in the Court of Appeals 29 April
2020.
Brian Elston Law, by Brian D. Elston, for surety-appellant.
Daniel A. Manning for judgment creditor-appellee.
ZACHARY, Judge.
The Palmetto Surety Corporation appeals from an order denying its motions
seeking, inter alia, “an order instructing the [c]lerk not to enter [final] judgment” of
forfeiture. After careful review, we affirm the trial court’s order.
Background
STATE V. ROULHAC
Opinion of the Court
The undisputed facts of this case are as follows: On 14 December 2016, the
Palmetto Surety Corporation (“Surety”) executed a $100,000 appearance bond
securing the pretrial release of Defendant Peter Lee Roulhac, III, on criminal charges
pending in Martin County Superior Court. After Defendant failed to appear in court
on 5 November 2018, the trial court issued an order for his arrest. On 13 December
2018, the Honorable Wayland J. Sermons, Jr., ordered that the appearance bond be
forfeited. On that same date, an assistant clerk of superior court issued a bond
forfeiture notice and served Surety and Defendant with a copy of the notice of entry
of forfeiture by first-class mail.
On 13 May 2019, Surety moved the trial court (1) to modify the bond forfeiture
pursuant to Rule 60 of the North Carolina Rules of Civil Procedure; (2) to strike the
bond forfeiture; (3) to stay the proceedings; or (4) in the alternative, to grant Surety
relief from the bond forfeiture pursuant to N.C. Gen. Stat. § 15A-544.8 (2019). Surety
argued that “the Clerk did not provide proper notice of the Bond Forfeiture until 38
days past the Defendant’s failing to appear” for his court date, rather than within the
requisite 30-day period; thus, pursuant to N.C. Gen. Stat. § 15A-544.4(e), the “notice
was not timely” and the bond forfeiture could not “become a final judgment.” In the
alternative, Surety asserted that N.C. Gen. Stat. § 15A-544.8 “also authorizes relief
when notice was not provided under” N.C. Gen. Stat. § 15A-544.4 and that the trial
court “should grant relief by not enforcing the bond forfeiture.” The Martin County
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STATE V. ROULHAC
Opinion of the Court
Board of Education objected to the motion, and the trial court heard Surety’s motion
on 15 July 2019.
By order entered 5 August 2019, the Honorable Walter H. Godwin, Jr., denied
Surety’s motions and declared the bond forfeiture a final judgment as of 27 July 2019.
Surety timely appealed.
Discussion
On appeal, Surety contends that the trial court erred (1) “in its application of
N.C. Gen. Stat. § 15A-544.5 to situations governed by the [North Carolina] Rules of
Civil Procedure”; and (2) by failing to modify the order “so it complied with . . . N.C.
Gen. Stat. § 15A-544.4(e)[.]”
Standard of Review
“When the trial court sits without a jury, the standard of review for this Court
is whether there was competent evidence to support the trial court’s findings of fact
and whether its conclusions of law were proper in light of such facts.” State v. Dunn,
200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009) (citing State v. Lazaro,190 N.C.
App. 670, 671, 660 S.E.2d 618, 619 (2008)). Questions of law are reviewed de novo.
State v. Hinnant, 255 N.C. App. 785, 787, 806 S.E.2d 346, 347-48 (2017).
Analysis
“Bail bond forfeiture in North Carolina is governed by N.C. Gen. Stat. §§ 15A-
544.1 – 544.8[.]” State v. Gonzalez-Fernandez, 170 N.C. App. 45, 48, 612 S.E.2d 148,
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STATE V. ROULHAC
Opinion of the Court
151 (2005). “If a defendant who was released . . . upon execution of a bail bond fails
. . . to appear before the court as required, the court shall enter a forfeiture for the
amount of that bail bond in favor of the State against the defendant and against each
surety on the bail bond.” N.C. Gen. Stat. § 15A-544.3(a).
The defendant and each surety whose name appears on the bail bond are to be
served with notice of the entry of bond forfeiture by first-class mail. Id. § 15A-
544.4(a)-(b).
Notice under this section shall be mailed not later than the
30th day after the date on which the defendant fails to
appear as required and a call and fail is ordered. If notice
under this section is not given within the prescribed time,
the forfeiture shall not become a final judgment and shall
not be enforced or reported to the Department of Insurance.
Id. § 15A-544.4(e).
It is well settled that “[t]he exclusive avenue for relief from forfeiture of an
appearance bond (where the forfeiture has not yet become a final judgment) is
provided in [N.C. Gen. Stat.] § 15A-544.5.” State v. Robertson, 166 N.C. App. 669, 670-
71, 603 S.E.2d 400, 401 (2004) (emphasis added). “For bonds that have not become
final judgments, the trial court can only ‘set aside’ a forfeiture if one of seven
enumerated reasons have been established,” as provided in section 15A-544.5(b).
State v. Ortiz, ___ N.C. App. ___, ___, 832 S.E.2d 474, 477 (2019).
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STATE V. ROULHAC
Opinion of the Court
(b) Reasons for Set Aside. – Except as provided by
subsection (f) of this section,1 a forfeiture shall be set aside
for any one of the following reasons, and none other:
(1) The defendant’s failure to appear has been set
aside by the court and any order for arrest issued for
that failure to appear has been recalled . . . .
(2) All charges for which the defendant was bonded
to appear have been finally disposed by the court
other than by the State’s taking dismissal with leave
....
(3) The defendant has been surrendered by a surety
on the bail bond as provided by [N.C. Gen. Stat. §]
15A-540 . . . .
(4) The defendant has been served with an Order for
Arrest for the Failure to Appear on the criminal
charge in the case in question . . . .
(5) The defendant died before or within the period
between the forfeiture and the final judgment . . . .
(6) The defendant was incarcerated in a unit of the
Division of Adult Correction and Juvenile Justice
. . . and is serving a sentence or in a unit of the
Federal Bureau of Prisons . . . at the time of the
failure to appear . . . .
(7) The defendant was incarcerated in a local, state,
or federal detention center, jail, or prison located
anywhere within the borders of the United States at
the time of the failure to appear, or any time
between the failure to appear and the final judgment
date, and the district attorney for the county in
1 Subsection (f) provides that no bond forfeiture “may be set aside for any reason in any case
in which the surety or the bail agent had actual notice before executing a bail bond that the defendant
had already failed to appear on two or more prior occasions in the case for which the bond was
executed.” N.C. Gen. Stat. § 15A-544.5(f). Accordingly, subsection (f) is inapplicable here.
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STATE V. ROULHAC
Opinion of the Court
which the charges are pending was notified of the
defendant’s incarceration while the defendant was
still incarcerated and the defendant remains
incarcerated for a period of 10 days following the
district attorney’s receipt of notice . . . .
N.C. Gen. Stat. § 15A-544.5(b).
Here, Surety argues that the grounds for setting aside a forfeiture as provided
in section 15A-544.5(b) are inapplicable, in that Surety did not move to set aside the
bond forfeiture, but merely to modify it for lack of compliance with subsection (e)’s
provisions.
This Court addressed a similar issue in State v. Sanchez, 175 N.C. App. 214,
623 S.E.2d 780 (2005). In Sanchez, a notice of bond forfeiture was issued after the
defendant failed to appear for his court date on 21 July 2004. 175 N.C. App. at 215,
623 S.E.2d at 780. The clerk mailed the notice of bond forfeiture to the defendant and
his sureties on 27 August 2004, outside of the 30-day period prescribed by N.C. Gen.
Stat. § 15A-544.4(e). Id. The surety then “moved to set aside the entry of forfeiture
pursuant to N.C. Gen. Stat. § 15A-544.4(e) on the grounds that [the] surety was not
provided with notice of the forfeiture within thirty days after entry of forfeiture.” Id.
On appeal, we concluded that because the “surety’s motion to set aside the entry of
forfeiture was not premised on any ground set forth in [N.C. Gen. Stat.] § 15A-544.5,”
the trial court “lacked the authority to grant [the] surety’s motion.” Id. at 218, 623
S.E.2d at 782.
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STATE V. ROULHAC
Opinion of the Court
In the instant case, Surety has adroitly attempted to recharacterize its efforts
to obtain relief from the entry of bond forfeiture. Nonetheless, because Surety moved
for relief from the entry of bond forfeiture prior to it becoming a final judgment, N.C.
Gen. Stat. § 15A-544.5 provides the “exclusive avenue for relief.” Ortiz, ___ N.C. App.
at ___, 832 S.E.2d at 478 (citation omitted); accord State v. Knight, 255 N.C. App. 802,
807-08, 805 S.E.2d 751, 755 (2017); State v. Cobb, 254 N.C. App. 317, 318, 803 S.E.2d
176, 178 (2017); State v. Williams, 218 N.C. App. 450, 451, 725 S.E.2d 7, 9 (2012);
Robertson, 166 N.C. App. at 670-71, 603 S.E.2d at 401. Any relief sought for violation
of N.C. Gen. Stat. § 15A-544.4(e)’s 30-day notice requirement is unavailable prior to
the entry of a final judgment.
Moreover, our General Statutes provide relief from a final judgment where a
surety did not receive the requisite notice. As this Court stated in Sanchez, N.C. Gen.
Stat. § 15A-544.8 provides that the trial court may set aside a final judgment of
forfeiture if “[t]he person seeking relief was not given notice as provided in” N.C. Gen.
Stat. § 15A-544.4. N.C. Gen Stat. § 15A-544.8(b)(1); Sanchez, 175 N.C. App. at 218,
623 S.E.2d at 782. “That the General Assembly specifically made allowance for relief
from final judgment of forfeiture for faulty notice, and omitted the same as a ground
for relief from an entry of forfeiture, suggests the legislature made a conscious choice
in this regard.” Sanchez, 175 N.C. App. at 218, 623 S.E.2d at 782. Despite Surety’s
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STATE V. ROULHAC
Opinion of the Court
contention that this statement from Sanchez is merely dicta, the reasoning is
nevertheless sound and persuasive.
Conclusion
In that the trial court’s findings support its conclusion that Surety failed to
establish any reasons for relief specified in N.C. Gen. Stat. § 15A-544.5(b), we affirm
the trial court’s order.2
AFFIRMED.
Judges DIETZ and MURPHY concur.
2 In light of our conclusion that the trial court properly denied Surety’s motion under N.C. Gen.
Stat. § 15A-544.5, we need not address Surety’s remaining arguments.
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