N. Olmsted v. Ness ( 2011 )

[Cite as N. Olmsted v. Ness, 2011-Ohio-3076.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96261
CITY OF NORTH OLMSTED
PLAINTIFF-APPELLEE
vs.
DEBORAH NESS, ET AL.
DEFENDANT
[Appeal By Ted Bowman]
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Rocky River Municipal Court
Case No. 09CRB1199
BEFORE: Celebrezze, J., Blackmon, P.J., and Stewart, J.
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RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEY FOR APPELLANT
James Alexander, Jr.
Pittman & Alexander
2490 Lee Road
Suite 115
Cleveland Hts., Ohio 44118
ATTORNEY FOR APPELLEE
Michael Gordillo
City Prosecutor
City of North Olmsted
5200 Dover Center Road
North Olmsted, Ohio 44070
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Ted Bowman (“appellant”) appeals the judgment of the Rocky
River Municipal Court denying his application for remission of the surety
bond he posted on behalf of the defendant, Deborah Ness, (“defendant”). The
appellee did not file a brief in this appeal; therefore, in considering this
appeal, we “may accept the appellant’s statement of the facts and issues as
correct and reverse the judgment if appellant’s brief reasonably appears to
sustain such action.” App.R. 18(C). After careful review of the record and
relevant case law, we reverse the judgment of the lower court.
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{¶ 2} On June 5, 2009, the city of North Olmsted charged the defendant
with disorderly conduct in violation of North Olmsted Codified Ordinances
509.03(B)(2) and possession of drug paraphernalia in violation of R.C.
2925.14(C)(2). On October 29, 2009, the defendant pled no contest to the
possession of drug paraphernalia charge. On November 9, 2009, the court
imposed a sentence on the defendant that required a jail term, a fine, and
community control. The defendant’s disorderly conduct charge was nolled.
{¶ 3} On May 15, 2010, a probation violation charge was filed against
the defendant pursuant to the November 9, 2009 judgment. On May 20,
2010, the trial court arraigned the defendant on the probation violation
charge and set a bond at $10,000 (ten percent). On May 21, 2010, the
defendant executed the bond, which is captioned “recognizance,” and agreed
to appear in the Rocky River Municipal Court on May 24, 2010. In
accordance with the recognizance agreement, appellant posted the
defendant’s $1,000 bond as suretor. When the defendant failed to appear in
court on May 24, 2010, a capias was issued and an oral hearing was set for
appellant to appear on May 27, 2010 to show cause why the bond should not
be forfeited. On May 27, 2010, appellant appeared in court but was unable
to locate or produce the defendant. On that date, the court entered an order
forfeiting the bond. In furtherance of the forfeiture, the court entered an
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order on June 9, 2010 applying $686 of the bond to “other fines” and $314 to
traffic bond forfeiture.
{¶ 4} On November 19, 2010, appellant filed an application for
remission of penalty or for vacation of the same with the trial court. On
November 23, 2010, the application was denied without a hearing.
Appellant initiated this appeal from the denial of his application for a return
of the bond. He raises two assignments of error.
Law and Analysis
{¶ 5} In his first assignment of error, appellant argues that “[t]he trial
court erred as a matter of law when it improperly forfeited defendant’s bond.”
For the reasons forthcoming, we agree.
{¶ 6} The decision to remit a forfeited bond is a matter within the
sound discretion of the trial court and will not be reversed absent an abuse of
discretion. State v. Patton (1989), 60 Ohio App.3d 99, 101, 573 N.E.2d 1201.
An abuse of discretion connotes that the court’s attitude is arbitrary,
unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140.
{¶ 7} Crim.R. 46(I) provides: “Any person who fails to appear before
any court as required is subject to the punishment provided by the law, and
any bail given for the person’s release may be forfeited.”
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{¶ 8} When the defendant failed to appear in court on May 24, 2010,
the bail was clearly subject to forfeiture. However, pursuant to R.C. 2937.36,
the trial court was required to meet certain statutory requirements upon
ordering the forfeiture. R.C. 2937.36, provides in pertinent part:
{¶ 9} “Upon declaration of forfeiture, the magistrate or clerk of the
court adjudging forfeiture shall proceed as follows: * * * (C) As to
recognizances, he shall notify accused and each surety by ordinary mail at the
address shown by them in their affidavits of qualification or on the record of
the case, of the default of the accused and the adjudication of forfeiture and
require each of them to show cause on or before a date certain to be stated in
the notice, and which shall be not less than twenty nor more than thirty days
from date of mailing notice, why judgment should not be entered against each
of them for the penalty stated in the recognizance. If good cause by production
of the body of the accused or otherwise is not shown, the court or magistrate
shall thereupon enter judgment against the sureties or either of them, so
notified, in such amount, not exceeding the penalty of the bond, as has been
set in the adjudication of forfeiture, and shall award execution therefor as in
civil cases. The proceeds of sale shall be received by the clerk or magistrate
and distributed as on forfeiture of cash bail.” (Emphasis added.)
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{¶ 10} After careful review of the record, we find that the trial court did
not follow the statutory procedure established in R.C. 2937.36(C), which
requires the court to provide a timely show cause hearing before judgment
forfeiting the bond can be entered against a surety. Under R.C. 2937.36(C),
a surety is entitled to at least 20 days notice before he is required to appear in
court, either to produce the defendant or to show cause as to why he cannot
produce the defendant. In the instant case, appellant did not receive at least
20 days notice before the court entered judgment against him. The record
reflects that, prior to forfeiting appellant’s bond, the trial court only gave
appellant a period of three days to produce the defendant to the court from
the date of the defendant’s failure to appear on May 24, 2010. Additionally,
there was nothing in the record showing service of the new hearing date upon
the defendant.
{¶ 11} Consequently, we find that the trial court abused its discretion
when it entered judgment against appellant on the bail bond without
complying with the provisions of R.C. 2937.36(C). See State v. Green, Wayne
App. Nos. 02CA0014 and 02CA0019, 2002-Ohio-5769, ¶16 (“surety and agent
did not receive at least 20 days notice on a show cause hearing before the
court entered judgment against surety”); State v. Ramey, Lucas App. No.
L-08-1040, 2008-Ohio-3275, ¶12 (“A trial court abuses its discretion when it
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does not follow the period required by the statute by giving at least 20 days
notice o[f] a show cause hearing to the surety and agent before they must
appear in court.”).
{¶ 12} Granted, the defendant breached a condition of bond.
Nevertheless, the trial court failed wholly in following the mandates
prescribed by R.C. 2937.36. As such, this court is left with no other recourse
but to vacate the forfeiture of bond and enter judgment in favor of appellant.
{¶ 13} The forfeiture of bond is hereby vacated, and judgment is hereby
entered in favor of appellant entitling him to full reimbursement of the
previously tendered bond. In light of the foregoing, appellant’s remaining
assignment of error is rendered moot.1
{¶ 14} This cause is reversed and remanded to the lower court for
further proceedings consistent with this opinion.
It is ordered that appellant recover of said appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Rocky River Municipal Court to carry this judgment into execution.
Appellant’s second assignment of error states: “The trial court abused its discretion when
1
it denied appellant’s motion for remission without a hearing.”
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A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR