State v. Worley ( 2012 )

[Cite as State v. Worley, 2012-Ohio-484.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2011 CA 0067
JOSEPH M. WORLEY :
:
:
Defendant-Appellee : OPINION
:
JOHN CRAVEN GENERAL AGENCY, :
INC. :
:
Movant-Appellant :
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 10 CR 00629
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 1, 2012
APPEARANCES:
For Appellant: For Appellee:
JAMES W. SKOGSTROM KENNETH W. OSWALT
2 W. Columbia Street, Suite 200 LICKING COUNTY PROSECUTOR
P.O. Box 1404
Springfield, OH 45501 JUSTIN T. RADIC
20 S. Second Street, Fourth Floor
Newark, OH 43055
[Cite as State v. Worley, 2012-Ohio-484.]
Delaney, J.
{¶1} Movant-appellant John Craven General Agency, Inc. appeals the June 7,
2011 judgment entry of the Licking County Court of Common Pleas denying
appellant’s Motion of the Surety to Set Aside the Judgment and Discharge the Surety.
Defendant-appellee is Joseph M. Worley, and plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 12, 2010, Worley was charged by indictment with one
count of receiving stolen property pursuant to R.C. 2913.51(A), a felony of the fourth
degree. Worley’s bond was set at $5,000 cash or surety before the Licking County
Municipal Court.
{¶3} Appellant, doing business as AA/Craven Bail Bonds, posted Worley’s
bond as surety, and the bond was continued at arraignment.
{¶4} Worley failed to appear for pretrial on February 4, 2011, and the trial
court revoked the bond and issued a capias for his arrest.
{¶5} The trial court scheduled a bond forfeiture hearing on March 7, 2011,
and served notice upon appellant and Worley. Neither appellant nor Worley appeared
at the hearing. The trial court rendered judgment against appellant in the amount of
$5,000.
{¶6} On March 16, 2011, appellant filed a Motion to Set Aside Judgment and
to Discharge Surety pursuant to Civ.R. 60(B), supplemented by an additional
memorandum. The State opposed the motion and the trial court held an oral hearing.
Appellant argued that Worley had been incarcerated since January 9, 2011, thereby
explaining his failure to appear.
Licking County, Case No. 2011 CA 0067 3
{¶7} In the meantime, on April 25, 2011, the State sought a warrant for
Worley’s removal from the county of incarceration. Worley appeared before the trial
court, entered a plea of guilty, and was sentenced to a prison term of ten months.
{¶8} The trial court denied appellant’s motion to set aside the judgment on
June 7, 2011, and appellant appeals from this decision.
{¶9} Appellant raises one Assignment of Error:
{¶10} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT DECLINED TO SET ASIDE THE JUDGMENT AND RELEASE THE SURETY
FROM ITS OBLIGATION ON THE BOND POSTED ON BEHALF OF THE
DEFENDANT IN THIS MATTER.”
{¶11} Appellant asserts that the trial court should have relieved the surety from
judgment because Worley was incarcerated when he failed to appear at the pretrial.
We disagree.
{¶12} The decision whether to grant a motion for relief under Civ.R. 60(B) lies
within the trial court’s sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514
N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine the
trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶13} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:
“1) a meritorious defense or claim to present if relief is granted; 2) entitlement to relief
under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and 3) the motion must be
timely filed.” (emphasis added) GTE Automatic Electric, Inc. v. ARC Industries, Inc.,
47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. A failure to
Licking County, Case No. 2011 CA 0067 4
establish any one of these three requirements will cause the motion to be overruled.
Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo
Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984).
{¶14} The purpose of bail is to insure that a defendant appears at all stages of
the criminal proceedings. State v. Hughes, 27 Ohio St.3d 19, 20, 501 N.E.2d 622(1986), citing Crim.R. 46(A), revised. The surety guarantees that it will produce the
defendant in court when called to do so. Id., citing State ex rel. Howard v. Schiele
(1949), 85 Ohio App. 356, 361, 88 N.E.2d 215. Any person who fails to appear before
any court as required is subject to punishment provided by law, and any bail given for
the person’s release may be forfeited. Crim.R. 46(I).
{¶15} Bond forfeiture requires an opportunity for the accused and the surety to
show cause why judgment should not be rendered against them. R.C. 2937.36(C)
states in pertinent part:
{¶16} “Upon declaration of forfeiture, the magistrate or clerk of the court
adjudging forfeiture shall proceed as follows:
{¶17} “***.
{¶18} “As to recognizances the magistrate or clerk shall notify the accused and
each surety within fifteen days after the declaration of forfeiture by ordinary mail at the
address shown by them…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 …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
Licking County, Case No. 2011 CA 0067 5
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. ****.”
{¶19} The trial court complied with R.C. 2937.36 in ordering the bond forfeiture.
Appellant failed to appear and show cause why judgment should not have been
entered against AA/Craven in the amount of five thousand dollars, and failed to
produce the accused.
{¶20} Appellant now seeks to reverse the trial court’s decision denying the
motion to set aside the judgment, citing State v. Yount, 175 Ohio App.3d 733, 2008-
Ohio-1155, 889 N.E.2d 162. In that case, the Second District Court of Appeals held
that a surety alleged the existence of a meritorious defense when a defendant’s failure
to appear was due to his incarceration in another county. Id. at 737.
{¶21} Appellant’s position is distinguishable from that of the Yount surety
because appellant failed to appear at the show cause hearing. The Yount surety not
only appeared but also apprised the trial court that she had located the defendant in
another jurisdiction and advised that jurisdiction of the bond forfeiture. Id.
{¶22} Appellant cites Civ.R. 60(B)(1) as grounds for relief from bond forfeiture:
“On motion and upon such terms as are just, the court may relieve a party or his legal
representative from a final judgment, order, or proceedings for the following reason[]:
mistake, inadvertence, surprise, or excusable neglect.”
{¶23} Appellant asserts that the mere existence of an alleged meritorious
defense rises to the level of excusable neglect. Appellant asserts that because of the
alleged meritorious defense of Worley’s incarceration in another county, its
Licking County, Case No. 2011 CA 0067 6
nonappearance at the show cause hearing is immaterial. This argument discounts the
role of a surety and misconstrues the meaning of Civ.R. 60(B).
{¶24} The Ohio Supreme Court has stated that “***the inaction of a defendant
is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the judicial
system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996),
citing GTE, supra, at 153, 351 N.E.2d 113. Excusable neglect has been further
defined as some action “not in consequence of the party’s own carelessness,
inattention, or willful disregard of the process of the court, but in consequence of some
unexpected or unavoidable hindrance or accident.” Emery v. Smith, 5th Dist. Nos.
2005CA00051, 2005CA00098, 2005-Ohio-5526, ¶16, citing Vanest v. Pillsbury Co.
124 Ohio App.3d 525, 536, 706 N.E.2d 825 fn. 8 (1997).
{¶25} Appellant’s reasoning is circular: it asserts a meritorious defense of
Worley’s incarceration, yet justifies its nonappearance at the show cause hearing on
the alleged meritorious defense that it failed to assert. By this reasoning, the trial
court was apparently expected to intuit the existence of a meritorious defense
because Appellant did not appear to present one. Appellant’s argument relies upon
Yount’s holding that incarceration in another county is a meritorious defense, but
appellant overlooks the significance of the fact that the Yount surety “apprised the trial
court at the show-cause hearing that she had located [the defendant] in [another
county],” therefore satisfying the first requirement of Civ.R. 60(B). Yount, supra, 737.
Under all of the circumstances, therefore, the surety’s efforts in Yount did not
constitute a complete disregard for the judicial system. Id. The same is not true in the
instant case.
Licking County, Case No. 2011 CA 0067 7
{¶26} Based upon the record before us, we find the trial court did not abuse its
discretion in finding that Appellant failed to demonstrate excusable neglect or any
other reason justifying relief from judgment. Appellant has failed to establish one of
the three required prongs for relief under the GTE test, and therefore the motion to set
aside the judgment was properly denied by the trial court.
{¶27} Appellant’s sole assignment of error is overruled.
{¶28} The judgment of the Licking County Common Pleas Court is affirmed.
By: Delaney, J.
Gwin, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
[Cite as State v. Worley, 2012-Ohio-484.]
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
JOSEPH M. WORLEY :
:
: Case No. 11-CA-67
Defendant-Appellee :
JOHN CRAVEN GENERAL AGENCY,
INC.
Movant-Appellant.
For the reasons stated in our accompanying Opinion on file, the judgment of the
Licking County Court of Common Pleas is affirmed. Costs assessed to appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE