State v. Zepeda-Ramires , 2013 Ohio 1224 ( 2013 )

[Cite as State v. Zepeda-Ramires, 2013-Ohio-1224.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN )
STATE OF OHIO C.A. No. 12CA010275
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
LEONEL ZEPEDA-RAMIRES COURT OF COMMON PLEAS
COUNTY OF LORAIN, OHIO
Defendant CASE No. 06-CR-070919
and
ABC BAIL BONDS/SENECA
INSURANCE CO.
Appellant
DECISION AND JOURNAL ENTRY
Dated: March 29, 2013
WHITMORE, Judge.
{¶1} Appellants, ABC Bail Bonds and Seneca Insurance Co., appeal from an order of
the Lorain County Court of Common Pleas, requiring payment of a forfeited bond. This Court
affirms.
I
{¶2} In 2006, Leonel Zepeda-Ramires was indicted on drug related offenses and ABC
Bail Bonds posted a $10,000 surety bond to secure his release pending the resolution of the
charges against him. After being properly summonsed, Zepeda-Ramires failed to appear in court
on July 19, 2006. On that day, at the request of the State, the court issued a warrant for his
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arrest. The court did not address the issue of Zepeda-Ramires’ bond, and the case went dormant
for approximately six years.
{¶3} On May 4, 2012, with Zepeda-Ramires still at large, the court issued a notice of a
hearing to Appellants. The notice informed Appellants that a “[h]earing to show cause why
forfeited $10,000 bond should not be collected” was set for June 25, 2012. Appellants did not
attend the hearing on June 25. The following day, the court found Zepeda-Ramires had failed to
appear on July 19, 2006, and ordered his “[b]ond [ ] revoked and forfeited.” In addition, the
court order set a hearing date for August 13, 2012, for Appellants to show why judgment should
not be entered against them. Appellants did not attend the hearing on August 13, and the court
entered a judgment against them for $10,000.
{¶4} Appellants now appeal and raise two assignments of error for our review. For
ease of analysis, we consolidate the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT VIOLATED R.C.
2937.35 BY FAILING TO FORFEIT THE BOND WHEN THE DEFENDANT
FAILED TO APPEAR IN 2006 OR IN THE ALTERNATIVE CONTINUE THE
CAUSE TO A LATER DATE CERTAIN AND GIVE NOTICE TO THE
SURETY.
Assignment of Error Number Two
THE TRIAL COURT ERRED IN ORDERING APPELLANT SURETY TO
FORFEIT THE BOND AS APPELLANT SURETY’S STATUTORY AND
STATE AND FEDERAL CONSTITUTIONAL DUE PROCESS RIGHTS
WERE VIOLATED BECAUSE THE TRIAL COURT FAILED TO PROVIDE
APPELLANT SURETY WITH AN OPPORTUNITY TO BE HEARD ON A
DATE CERTAIN BETWEEN TWENTY (20) AND THIRTY (30) DAYS
AFTER NOTICE OF BOND FORFEITURE.
3
{¶5} In their two assignments of error, Appellants argue that the court abused its
discretion when it failed to follow the statutory requirements for bond forfeiture.
{¶6} This Court reviews a trial court’s bond forfeiture decision for an abuse of
discretion. State v. Lee, 9th Dist. No. 11CA010083, 2012-Ohio-4329, ¶ 9. An abuse of
discretion indicates that the trial court’s decision was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When reviewing for an abuse of
discretion, an appellate court may not merely substitute its judgment for that of the trial court.
Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{¶7} “A fundamental rule of appellate review is that a reviewing court will not
consider as error any issue that a party was aware of but failed to bring to the trial court’s
attention.” Russell v. City of Akron Housing Appeals Bd., 9th Dist. No. 17271, 1996 WL 1769,
*1 (Jan. 3, 1996), citing Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210 (1982). A failure
to preserve an objection in the trial court constitutes a forfeiture of that issue. State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. “Where a party has forfeited an objection by failing
to raise it, the objection may still be assigned as error on appeal if a showing of plain error is
made.” State v. Feliciano, 9th Dist. No. 09CA009595, 2010-Ohio-2809, ¶ 8. Crim.R. 52(B).
{¶8} In May 2012, the court sent Appellants notice of a “[h]earing to show cause why
forfeited $10,000 bond should not be collected.” Appellants have made no allegation that they
failed to receive the notice or that they were otherwise unaware of the hearing set for June 2012.
Appellants did not attend this June 2012 hearing. Further, there is no evidence Appellants
attempted to notify the court that, to their knowledge, the bond had never been forfeited.
{¶9} At the June 2012 hearing, the court revoked and forfeited the bond and issued a
notice of such to Appellants. This notice also contained a subsequent hearing date, set in
4
compliance with R.C. 2937.36(C), to allow Appellants to show why a judgment should not be
entered against them. Appellants did not attend this hearing and have made no argument that
they failed to receive notice. After Appellants failure to appear, the court entered judgment
against them.
{¶10} Appellants now argue the trial court erred in 2006 when it failed to comply with
R.C. 2937.35 because it did not either (1) forfeit the bond and notify them of a hearing in
compliance with R.C. 2937.36(C), or (2) continue the case for a later date certain, and give
notice to Appellants of the future court date. Appellants further argue that if the bond was not
forfeited until 2012 their due process rights were violated because they were not given an
opportunity to be heard.
{¶11} Given these issues were in existence at the time Appellants received notice of the
June and August 2012 hearings, Appellants should have raised them to the trial court. Instead,
Appellants failed to attend the two court hearings and made no attempt to contact the court prior
to judgment. Appellants’ failure to raise these issues prior to judgment constitutes a forfeiture of
them on appeal and makes them subject only to plain error review. However, Appellants do not
argue plain error in their brief, and we decline to create such an argument on their behalf. See
State v. Hairston, 9th Dist. No. 05CA008768, 2006-Ohio-4925, ¶ 11. Appellants’ assignments
of error are overruled.
III
{¶12} Appellants’ assignments of error are overruled. The judgment of the Lorain
County Court of Common Pleas is affirmed.
Judgment affirmed.
5
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of
this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, P.J.
HENSAL, J.
CONCUR.
APPEARANCES:
LARRY W. ZUKERMAN, PAUL B. DAIKER, S. MICHAEL LEAR, BRIAN A. MURRAY,
RICHARD L. FENBERT, and MARK J. JABLONSKI, Attorneys at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and RICHARD A. GRONSKY, Assistant Prosecuting
Attorney, for Appellee.