State of Arizona v. Sun Surety Insurance Company

FILED BY CLERK
IN THE COURT OF APPEALS APR 17 2013
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CV 2012-0105
Appellant, ) DEPARTMENT B
)
v. ) OPINION
)
SUN SURETY INSURANCE )
COMPANY, )
)
Appellee. )
)
APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
Cause No. S1100CR201102570
Honorable Joseph R. Georgini, Judge
AFFIRMED
M. Lando Voyles, Pinal County Attorney
By Craig Cameron Florence
Attorneys for Appellant
Eckert & Facciola PLLC
By Tamra Facciola Tempe
Attorneys for Appellee
E S P I N O S A, Judge.
¶1 The state appeals from the trial court’s order exonerating an appearance
bond posted on behalf of criminal defendant Jason Parker, arguing exoneration was not
permissible as a remedy for the court’s earlier failure to notify Parker’s surety that he had
failed to appear for a pretrial hearing. Finding no error, we affirm.
Background
¶2 We view the facts in the light most favorable to upholding the trial court’s
judgment. State v. Garcia Bail Bonds, 201 Ariz. 203, ¶ 5, 33 P.3d 537, 539 (App. 2001).
In October 2011, Parker was indicted on felony charges and was required to post a
secured appearance bond of $3,000 as a condition of his release pending trial. Appellee
Sun Surety Insurance Company posted the bond through its agent Above & Beyond Bail
Bonds (collectively referred to hereafter as “the surety”). When Parker failed to attend a
pretrial hearing on March 20, 2012, the trial court issued a warrant for his arrest. The
court, however, did not notify the surety of Parker’s nonappearance or the consequent
arrest warrant. Parker was taken into custody by the Maricopa County Sheriff’s Office
on April 6. The surety filed a motion seeking to exonerate the bond on the ground it had
never been notified that a warrant had been issued and thus had not had the opportunity to
return Parker to custody itself and thereby avoid or mitigate forfeiture of the bond. The
court granted the surety’s motion and exonerated the bond. We have jurisdiction over the
state’s appeal pursuant to A.R.S. § 12-2101(A)(1). See State v. Sanders, 85 Ariz. 217,
335 P.2d 616 (1959) (exercising jurisdiction over state’s appeal from order exonerating
bond).
Discussion
¶3 We review for an abuse of discretion a trial court’s order exonerating a
bond, see Ariz. R. Crim. P. 7.6(d)(3), but review de novo the court’s interpretation of the
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applicable rules of criminal procedure. See In re Bond of $75,000, 225 Ariz. 401, ¶ 5,
238 P.3d 1275, 1278 (App. 2010). The state first contends the court was required to
forfeit the bond because Parker had failed to appear for the March 20 hearing and his
absence was never explained or excused. Rule 7.6(c)(2), Ariz. R. Crim. P., provides that
if a defendant violates a condition of an appearance bond and the violation is not
explained or excused, “the court may enter an appropriate order of judgment forfeiting all
or part of the amount of the bond.” In the same vein, however, Rule 7.6(d) grants the
court discretion to exonerate the bond. Ariz. R. Crim. P. 7.6(d)(3). In exercising that
discretion, “a trial court may consider all the relevant circumstances.” In re Bond
Forfeiture in Pima Cnty. Cause No. CR-20031154, 208 Ariz. 368, ¶ 5, 93 P.3d 1084,
1086 (App. 2004). Thus, even if a defendant has violated bond conditions, the trial court
nevertheless retains discretion over the disposition of the bond. Accordingly, that Parker
violated the conditions of his bond did not, ipso facto, require forfeiture as the state
suggests. See State v. Old West Bonding Co., 203 Ariz. 468, ¶ 23, 56 P.3d 42, 48 (App.
2002). We therefore consider whether it was a proper exercise of the trial court’s
discretion to order exoneration in this case.
¶4 The notice requirement of Rule 7.6(c)(1) provides: “Within ten days after
the issuance of the warrant, the court shall notify the surety, in writing or by electronic
means, that the warrant was issued.” Notwithstanding the state’s unsupported assertion
to the contrary, we have previously recognized that this requirement provides protection
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for the surety.1 See Old West, 203 Ariz. 468, ¶ 24, 56 P.3d at 48-49; State v. Jackson,
184 Ariz. 296, 301 n.5, 908 P.2d 1081, 1086 n.5 (App. 1995). In Old West, we observed
that the notice requirement was adopted in response to a request by the Professional Bail
Agents of Arizona, Inc., and concluded “[t]he evident purpose of this addition to Rule 7.6
. . . was to allow a surety an opportunity to avoid or mitigate the forfeiture either by
locating and surrendering the defendant in compliance with Rule 7.6(d)(2) or by
presenting circumstances to the court that would warrant exoneration pursuant to Rule
7.6(d)(3).” 203 Ariz. 468, ¶ 24, 56 P.3d at 48-49. Here, it is undisputed the trial court
did not provide the requisite notice that a warrant had issued, and the surety argues that
the lack of notice deprived it of any “real opportunity to try and locate and return the
defendant to custody prior to his arrest.” This is the precise scenario described in Old
West.
¶5 Relying on In re Bond Forfeiture in CR-94019213, 191 Ariz. 304, 955 P.2d
541 (App. 1998), and Jackson, 184 Ariz. 296, 908 P.2d 1081, the state contends the
1
Paraphrasing, but not citing, our decision in State v. Rogers, 117 Ariz. 258, 261,
571 P.2d 1054, 1057 (App. 1977), the state asserts, “The notice provision of Rule 7.6(c)
is designed as a prompt enforcement provision for the benefit of the State as oblige[e;] it
is not for the benefit of the surety.” But not only is that assertion contradicted by Old
West, 203 Ariz. 468, 56 P.3d 42, the statement in Rogers from which the state apparently
draws its contention made no reference to a requirement that the court provide notice of
the defendant’s arrest because that requirement had not yet been added to the Rules of
Criminal Procedure; rather, it discussed the former ten-day time limitation for initiating
forfeiture proceedings. See 192 Ariz. LIV (1998) (enlarging deadline to hold bond
forfeiture hearing from ten days to 120 days following violation); see also State v.
Jackson, 184 Ariz. 296, 301 n.5, 908 P.2d 1081, 1086 n.5 (App. 1995) (requirement
under A.R.S. § 13-3973, repealed by 1999 Ariz. Sess. Laws, ch. 261, § 38, that surety be
provided notice of defendant’s failure to appear “protect[ed] the surety”). The argument
is therefore unpersuasive.
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procedural violation in this case did not warrant exoneration of the bond because the
surety suffered no prejudice from the lack of notice. Specifically, the state maintains
“there is no basis to exonerate the bond . . . if the surety is given the full opportunity to
contest the forfeiture before the entry of a forfeiture order.” But this argument ignores
our observation in Old West that a surety who is not properly notified of the defendant’s
failure to appear is deprived of an opportunity to apprehend the defendant itself and
thereby possibly obtain exoneration of at least part of the bond. 203 Ariz. 468, ¶ 24, 56
P.3d at 48-49; see also Ariz. R. Crim. P. 7.6(d)(2) (bond may be exonerated if surety
surrenders defendant).
¶6 Although in Bond Forfeiture CR-94019213 we affirmed an order of
forfeiture because the surety had not demonstrated actual prejudice resulting from the
trial court’s failure to give notice, 191 Ariz. 304, ¶ 10, 955 P.2d at 544, the case before us
is in a much different procedural posture: it comes to us on appeal from an order
granting exoneration, not forfeiture. In Bond Forfeiture CR-94019213, we did not hold
that a surety must show actual prejudice arising from the lack of notice in order to obtain
exoneration of the bond from the trial court in the first instance—indeed, such a
requirement would not be supported by Rule 7.6(d)(3). 191 Ariz. 304, ¶ 10, 955 P.2d at
544. Rather, we concluded that when a bond has been forfeited in the lower court, the
surety must show prejudice resulting from the lack of notice to obtain reversal of the
forfeiture order on appeal. Id.; see also Ariz. Const. art. VI, § 27 (appellate court may
not reverse for mere “technical error”).
5
¶7 Jackson, too, is distinguishable because it concerned the trial court’s failure
to hold a hearing within ten days of the defendant’s failure to appear under A.R.S.
§ 13-3973, repealed by 1999 Ariz. Sess. Laws, ch. 261, § 38, and former Rule 7.6. 184
Ariz. at 300, 908 P.2d at 1085; see also Old West, 203 Ariz. at 477, 56 P.3d at 51,
quoting Ariz. R. Crim. P. 7.6(d) (1973) (trial court required to set show-cause hearing
within ten days of violation of bond condition). Despite the untimeliness of the hearing,
we affirmed the trial court’s order forfeiting the bond, concluding that the failure to
comply with the ten-day rule had not prejudiced the surety because opportunity to contest
the forfeiture had not been withheld—merely delayed. Jackson, 184 Ariz. at 300-01, 908
P.2d at 1085-86. In this case, however, the provision violated was the notice
requirement, the purpose of which is to allow the surety an opportunity to find and
surrender the defendant and thereby mitigate any forfeiture. Old West, 203 Ariz. 468,
¶ 24, 56 P.3d at 48-49. Any such opportunity necessarily ended upon the defendant’s
arrest.
¶8 Relying on Gearing v. State, 24 Ariz. App. 159, 536 P.2d 1051 (1975), the
state also suggests the trial court’s violation of the notice requirement was not a ground
for exoneration of the bond because the surety had a duty to stay apprised of the
proceedings in Parker’s criminal case. See id. at 160, 536 P.2d at 152 (surety has duty
“to keep informed of the defendant’s whereabouts and his required court appearances”).
But the continued applicability of Gearing is questionable because when that case was
decided, “there [wa]s no notice requirement anywhere in the Criminal Rules” requiring
the court “to notify the surety of the bond forfeiture on the failure of the defendant to
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appear at trial.” Id. This, of course, is no longer the case. See 192 Ariz. LIV (1998)
(adding to Rule 7.6(c)(1) that court shall notify surety of any violation of appearance
bond); cf. State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990)
(legislative amendment of statute raises presumption of intentional change to existing
law). Thus, although Rule 7.1(f)(3), Ariz. R. Crim. P., still places an affirmative
obligation on a surety to “remain in regular contact” with a bonded criminal defendant,
the countervailing notice requirement of Rule 7.6(c)(1) tempers this obligation by also
imposing a duty on the trial court to provide notice of a defendant’s violation of an
appearance bond.2 Accordingly, although “a surety assumes the risk of a defendant’s
failure to appear,” Pima Cnty. No. CR-20031154, 208 Ariz. 368, ¶ 4, 93 P.3d at 1085, it
is nevertheless entitled to notice of such failure in order to mitigate or avoid forfeiture of
the bond. See Ariz. R. Crim. P. 7.6(d)(2); Old West, 203 Ariz. 468, ¶ 24, 56 P.3d at 48-
49. And the state has cited no authority for limiting the trial court’s discretion to
exonerate a bond in order to cure a notice defect, other than State v. Rogers, 117 Ariz.
258, 571 P.2d 1054 (App. 1977), superseded by rule as stated in Old West, 203 Ariz.
468, 56 P.3d 42. See Ariz. R. Crim. P. 7.6(d)(3); see also Pima Cnty. No. CR-20031154,
208 Ariz. 368, ¶ 5, 93 P.3d at 1086 (“In determining whether to order an appearance bond
forfeited, a trial court may consider all the relevant circumstances . . . .”).
2
It is not difficult to conceive that even if a surety maintains regular contact with a
defendant as required by Rule 7.1(f)(3), the defendant might not alert the surety of his
failure to attend a court hearing, thereby still leaving the surety without notice of an
outstanding warrant.
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¶9 Finally, the state suggests that even if the trial court had discretion to
exonerate the bond, it failed to exercise any discretion in this matter as demonstrated by
the judgment in which the court stated that the failure to provide notice “mandates the
exoneration of the bond in its entirety.” Asserting the surety’s “argument was [that] the
lack of notice mandated exoneration and precluded the court from exercising discretion,”
the state argues a remand for further proceedings is warranted. However, the surety did
not argue exoneration was mandatory but maintained only that it was “the fair thing to
do.” Moreover, the record as a whole, including that the state supplied the form of
judgment and mandatory language contained therein, persuades us that the court believed
the circumstances of this case militated in favor of exoneration and its order was the
product of its exercise of discretion.
Conclusion
¶10 A surety may not be entitled to exoneration of its bond any time a trial
court fails to provide the notice required by Rule 7.6(c)(1), but the state has not
established that the trial court erred by exonerating the bond in the present case. We
accordingly find no abuse of discretion, and the order of exoneration is therefore
affirmed.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Michael Miller
MICHAEL MILLER, Judge
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