State v. Dorsey , 2016 Ohio 3207 ( 2016 )

[Cite as State v. Dorsey, 2016-Ohio-3207.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1289
Appellee Trial Court No. CR0201301955
v.
Rico Dorsey
Defendant
DECISION AND JUDGMENT
[You Walk Bail Bond
Agency—Appellant] Decided: May 27, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Brenda J. Majdalani, Assistant Prosecuting Attorney, for appellee.
Caleb Bower, for appellant.
******
YARBROUGH, J.
I. Introduction
{¶ 1} Appellant, You Walk Bail Bond Agency (“You Walk”), filed an accelerated
appeal from the judgment of the Lucas County Court of Common Pleas, denying its
motion for bond remission. For the following reasons, we affirm.
A. Facts and Procedural Background
{¶ 2} Rico Dorsey (“Dorsey”) was indicted by a Lucas County Grand Jury on
June 18, 2013, for one count of felonious assault, in violation of R.C. 2903.11(A), a
felony of the second degree, and one count of abduction, in violation of R.C.
2905.02(A)(2) and (C), a felony of the third degree. On August 1, 2013, Dorsey posted a
surety bond in the amount of $45,000, secured through You Walk. Dorsey appeared for
several pretrial conferences and other court appearances, before ultimately entering a
guilty plea to the abduction charge as well as an Alford guilty plea to an amended count
of attempted felonious assault, pursuant to R.C. 2923.02(A), a felony of the third degree.
Dorsey failed to appear at his sentencing hearing on July 30, 2014. The court ordered the
bond forfeited on August 1, 2014, and set a forfeiture hearing for September 24, 2014.
{¶ 3} On September 24, 2014, You Walk failed to appear for the forfeiture
hearing. Dorsey was arrested in the state of Wisconsin on September 25, 2014, on
unrelated charges. You Walk filed a motion to vacate forfeiture on October 23, 2014,
which the court denied on November 13, 2014. You Walk then filed an appeal with this
court, which was denied for lack of a final appealable order. You Walk filed an
emergency motion for stay of execution on February 27, 2015, which the court denied.
You Walk then filed a motion for bond remission on August 11, 2015, which the court
again denied in a judgment entry dated October 9, 2015. It is from this order that
appellant files its appeal.
2.
B. Assignment of Error
{¶ 4} On appeal, appellant presents a sole assignment of error for our review:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY
FAILING TO REMIT ANY PORTION OF THE FORFEITED SURETY
BOND, AFTER IMPROPERLY WEIGHING THE FACTORS UNDER
O.R.C. 2937.39.
II. Analysis
{¶ 5} In its sole assignment of error, You Walk argues that the trial court abused
its discretion by denying appellant’s motion for bond remission. You Walk sets forth two
arguments in support of this proposition. First, You Walk argues that the trial court
failed to consider evidence set forth during the hearing for remission. You Walk next
argues that all or a portion of the bond should be remitted because the laws of the state of
Wisconsin rendered it impossible for You Walk to return Dorsey to Lucas County, Ohio.
These arguments are not persuasive.
{¶ 6} For its impossibility argument, You Walk relies on R.C. 2937.36(C), which
reads in pertinent part: “[i]f 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 * * *.” You Walk argues that because Dorsey was found to be in the state of
Wisconsin, his retrieval should be deemed impossible by an act of law. Therefore,
although You Walk agrees it has not produced the “body of the accused,” it argues that
3.
impossibility should be considered “otherwise,” and the bond should not have been
forfeited.
{¶ 7} You Walk’s reliance on R.C. 2937.36(C) is misguided. The state is correct
in its assertion that this argument is an attempt to relitigate the original bond forfeiture
hearing. R.C. 2917.36 sets out procedures for bond forfeiture hearings. In the present
case, the bond was properly forfeited on September 24, 2014, when You Walk failed to
appear for the bond forfeiture hearing. As such, You Walk brought forth no evidence at
that hearing, and the court fully complied with R.C. 2937.36. There is no question that
the bond was properly forfeited. Remission of bond is a wholly separate issue, to which
R.C. 2937.36 has no bearing.
{¶ 8} Appellant also argues that the court abused its discretion by failing to
properly consider necessary factors for bond remission under R.C. 2937.39. At the
outset, we note that we are not convinced that R.C. 2937.39 applies to this case.1
However, assuming arguendo, that the statute applies, we will continue with our analysis.
1
R.C. 2937.39 provides:
After judgment has been rendered against surety or after securities
sold or cash bail applied, the court or magistrate, on the appearance,
surrender, or rearrest of the accused on the charge, may remit all or such
portion of the penalty as it deems just * * *.
At the time of the appeal, defendant had not reappeared or surrendered and had not
been rearrested on this charge. He was arrested on a separate charge in the state of
Wisconsin and Lucas County placed a holder on him for the present case.
4.
{¶ 9} A trial court’s ruling on a motion to remit a forfeited bond pursuant to R.C.
2937.39 is reviewed on appeal under an abuse of discretion standard. State v. Hardin, 6th
Dist. Nos. L-03-1131, L-03-1132, and L-03-1133, 2003-Ohio-7263, ¶ 9; State v. Patton,
60 Ohio App.3d 99, 101, 573 N.E.2d 1201 (6th Dist.1989). An abuse of discretion
implies that the trial court’s attitude was unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 10} In determining whether to remit some or all of a forfeiture, the court should
consider (1) the circumstances of the accused’s reappearance, (2) his or her reason for
failing to appear, (3) the prejudice afforded the prosecution by the accused’s absence,
(4) whether sureties helped return the defendant, (5) mitigating circumstances, and
(6) whether justice requires that the entire amount remain forfeited. State v. Am. Bail
Bond Agency, 129 Ohio App.3d 708, 712-713, 719 N.E.2d 13 (10th Dist.1998), State v.
Duran, 143 Ohio App.3d 601, 604, 758 N.E.2d 742 (6th Dist.2001).
{¶ 11} It is apparent from the record that the trial court considered these factors in
denying You Walk’s motion for bond remission. As to the first two factors, the court
found that You Walk had yet to produce Dorsey. The court also found that You Walk
was not instrumental in securing the reappearance of Dorsey. The court noted that it had
considered the delay and prejudice caused to the prosecution due to the accused’s
disappearance. The court also noted that You Walk did not present any mitigating factors
and considered whether justice required the total amount of the bond to be forfeited.
5.
{¶ 12} After weighing these factors, the court determined that You Walk did not
meet its burden under R.C. 2937.39, and denied the motion for bond remission. This
determination was not unreasonable, arbitrary or unconscionable. Thus denial of You
Walk’s motion for bond remission was not an abuse of discretion. Therefore, You
Walk’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 13} Based on the foregoing, the judgment of the Lucas County Court of
Common Pleas is affirmed. Costs are hereby assessed to You Walk in accordance with
App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
6.