State v. Garcia

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STATE OF CONNECTICUT v. JAY GARCIA
(AC 39851)
Alvord, Sheldon and Keller, Js.
Syllabus
The plaintiff in error, A Co., a bail bonds company, brought this writ of
error from the decision of the trial court denying a motion it had filed for
discharge from its obligation under a certain bond that it had executed
to obtain the release from custody pending trial of a criminal defendant,
G, who had absconded to Peru. Following G’s failure to appear at a
scheduled court hearing, G was ordered rearrested and his bond for-
feited. In seeking the discharge of its obligation under the bond, A Co.
claimed that the bond was issued by certain of its agents who were not
authorized to issue bonds. A Co. also filed a motion to compel the
defendant in error, the state of Connecticut, to seek extradition of G
because, according to A Co., the state previously had promised to do
so, and the trial court denied that motion. The trial court found that A
Co. had failed to demonstrate good cause to be relieved of its bond
obligations as required by the applicable rule of practice (§ 38-23) and
that the state was under no obligation to pursue extradition. Held:
1. The trial court, in denying A Co.’s motion for discharge from its obligation
under the bail bond, applied the correct legal standard as set forth in
Taylor v. Taintor (83 U.S. [16 Wall.] 366), which provides that a surety
will be discharged of its obligation on a bail bond for good cause only
when the performance of the condition of the bond is rendered impossi-
ble by an act of God, an act of the obligee, which, in this case, is the
state, or an act of law: our Supreme Court previously has applied the
rule in Taylor for determining whether a surety has provided good cause
for being relieved of its obligation on a bond, and although the legislature
expanded the common-law definition of good cause by statute (§ 54-
65c), this court was bound by our Supreme Court’s precedent holding
that the rule in Taylor continued to govern in cases in which the condi-
tions set forth in § 54-65c did not apply, namely, where a criminal defen-
dant voluntarily leaves the country and is not held in governmental
custody elsewhere, which was the case here; moreover, G’s status under
federal immigration law, which made it illegal for him to return to this
country, was not an act of law that made G’s compliance with the bond
obligation impossible, nor did it constitute good cause to excuse A Co.’s
performance under the Taylor rule, as an act of law that renders the
performance on a bond obligation impossible must involve a law opera-
tive in the state where the obligation was assumed, and no laws of this
state made G’s compliance with the bond impossible.
2. A Co. could not prevail on its claim that the trial court, as part of its
good cause analysis, should have considered the relevance of the state’s
indication that it would extradite upon notification that G was in the
custody of Peruvian authorities; there was nothing in the record indicat-
ing that, prior to A Co.’s decision to post bond on behalf of G, the state
promised to extradite G if he fled to another country, which would have
been a factor relevant to good cause because the surety could have
relied on the state’s representation in assessing the risk of G’s nonappear-
ance, A Co. did not challenge the trial court’s finding that the state made
no promise to extradite when the bond was executed, and it provided
no authority for the proposition that a prosecutor’s indication after a
principal has absconded that the state intended to extradite was a rele-
vant consideration to the court’s determination of whether good cause
existed to discharge the obligation on the bond.
Argued September 15—officially released December 12, 2017
Procedural History
Writ of error from the decision of the Superior Court
in the judicial district of New Britain, geographical area
number fifteen, Alexander, J., denying a motion by the
plaintiff in error for discharge from certain surety bond
obligations, brought to the Supreme Court, which trans-
ferred the matter to this court. Writ of error dismissed.
James R. Hardy II, for the plaintiff in error (Afford-
A-Bail, Inc.).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, were Brian Preleski, state’s attor-
ney, and Mary Rose Palmese, supervisory assistant
state’s attorney, for the defendant in error (state).
Opinion
KELLER, J. In this writ of error,1 the plaintiff in error,
Afford-A-Bail, Inc. (Afford), claims that the trial court
improperly denied its motion to discharge its obligation
on a surety bail bond.2 Afford claims that the court, in
denying its motion, improperly concluded that: (1) the
standard for demonstrating ‘‘good cause’’ for discharge
of an obligation upon a surety bail bond pursuant to
Practice Book § 38-233 is the standard first set forth in
Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 369–70, 21 L.
Ed. 287 (1872), rather than a more holistic, equitable
assessment; and (2) the failure of the defendant in error,
the state of Connecticut, to extradite the criminal defen-
dant, Jay Garcia, after representing that it would do so,
was not relevant to the court’s good cause determina-
tion. The state argues that the requirement of good
cause for discharge of the obligation upon the surety
bond pursuant to General Statutes § 54-65c and aspects
of the common-law rule in Taylor as explicated in State
v. Sheriff, 301 Conn. 617, 21 A.3d 808 (2011), were
not satisfied. We conclude that the trial court properly
denied Afford’s motion to discharge its obligation on
the surety bond and, therefore, we dismiss the writ
of error.
The following allegations of fact by Afford and proce-
dural history are necessary for our resolution of this
writ of error.4 In the underlying criminal case, the crimi-
nal defendant, who identified himself to police as Gar-
cia, was arrested and charged with robbery in the first
degree in violation of General Statutes § 53a-134, con-
spiracy to commit robbery in the first degree in violation
of General Statutes §§ 53a-48 and 52a-134, larceny in
the sixth degree in violation of General Statutes § 53a-
125b, and conspiracy to commit larceny in the sixth
degree in violation of §§ 53a-48 and 53a-125b. These
crimes were alleged to have been committed on or
about December 20, 2014. Garcia was arraigned in court
on December 22, 2014. Bond was set at $75,000 and
the case was continued to February 3, 2015. Garcia
subsequently executed a $75,000 bond with surety for
his appearance at future court dates. Afford is the surety
on the bond. On February 3, 2015, Garcia failed to
appear and the court ordered Afford’s bond forfeited
and imposed a six month statutory stay pursuant to
General Statutes § 54-65a.5
On April 29, 2015, Afford filed a motion to vacate
bond forfeiture. In its motion, it asserted the following:
‘‘Upon being arrested by the local authorities, [Garcia]
was processed. However, the true identity of [Garcia]
was never verified or his passport seized, due to the
fact that he is an illegal immigrant. [Garcia’s] legal name
is Jonatan Lovis Mattos. . . .
‘‘Subsequent to the offense date in which [Garcia]
was criminally charged (December 20, 2014), [Afford]
became bo[u]nd by a bail bond, as surety, in the amount
of $75,000 for the appearance of [Garcia]. . . .
‘‘Following the issuance of the bond, [Garcia] was
ordered by this court to appear on February 3, 2015.
[Garcia] failed to appear for his scheduled court hearing
and a rearrest [order] was issued. . . .
‘‘It was discovered that on February 22, 2015, [Garcia]
fled the jurisdiction of the United States from Bradley
International Airport in Windsor Locks . . . and
absconded to Lima, Peru.6 . . .
‘‘Officer Nestor Silva Angeles, of the National Police
of Peru—Division of Criminal Investigations, has con-
firmed the location of [Garcia].7 . . .
‘‘The country of Peru will not detain the defendant
unless the state . . . extradites him.8 . . .
‘‘It is presumed that the Office of the State’s Attorney
[in] New Britain will decline to seek extradition of [Gar-
cia] given his location in another country. . . .
‘‘The bond was written by an agent of [Afford], who
was not authorized to write bonds for subjects who are
classified as undocumented, and as a result, [this agent’s
employment] was terminated from [Afford’s] com-
pany.’’ (Footnotes added.)
On July 21, 2015, the court denied Afford’s motion
and declined to vacate the forfeiture ordered on the
bond. On August 3, 2015, Afford filed a motion for exten-
sion of satisfaction of the bond forfeiture, which was
denied on August 4, 2015.
On September 4, 2015, Afford filed a motion for recon-
sideration of its motion for extension of satisfaction of
the bond forfeiture and a motion to compel the extradi-
tion of Garcia. In the latter motion, Afford alleged that
the denial of its motion to vacate the bond forfeiture
on July 24, 2015, was exclusively based on the fact that
the state had represented that it would extradite Garcia
and had initiated the extradition process. On September
4, 2015, the court granted Afford’s motion for reconsid-
eration of its motion for extension of satisfaction of
the bond forfeiture and extended the stay of the forfei-
ture of the bond.
On October 6, 2015, the court heard argument on
Afford’s motion to compel extradition. Afford also again
moved, by way of an oral motion, to have its obligation
on the bond discharged pursuant to Practice Book
§ 38-23.9
Counsel for Afford provided two arguments in sup-
port of its motion to discharge. First, Afford’s counsel
alleged that the state made a representation in court
three months earlier that it would extradite Garcia back
to the United States and that it should be compelled to
take the necessary steps to extradite Garcia and provide
written documentation of such efforts within thirty
days. In the alternative, counsel requested that Afford’s
obligation on the bond be vacated due to the state’s
lack of action.10 In response to this argument, the state’s
attorney indicated: ‘‘It has been made clear that we
certainly intend to extradite [Garcia]. . . . I don’t know
what inquiries were made, but this is a fully extraditable
offense. That the bondman should not be let off the
bond for that reason because it’s extraditable and
because we intend to extradite once the Peruvian
authorities notify us that [Garcia] is in custody.’’ Coun-
sel for Afford responded that the state’s attorney had
not taken any steps to put an extradition into place.
The court indicated that the state had no obligation to
seek extradition and denied the motion to compel extra-
dition.
Second, counsel for Afford argued that its ‘‘rogue
agents,’’ for their own monetary gain, lied about Garcia’s
alienage to obtain authorization to write the bond.
Rather than rule on Afford’s oral motion to discharge
its obligation on the bond at that time, the court contin-
ued the hearing and indicated that it would terminate
the stay that had been imposed on the bond forfeiture
2 p.m. on December 14, 2015, if there was no further
information from Afford by that time, and provided
Afford with an opportunity to provide affidavits sub-
stantiating its allegations of fraud on the part of its
rogue agents, to produce Garcia on that date or to prove
that an extradition had been initiated by that date.
Subsequently, on December 8, 2015, Afford filed two
affidavits signed by Shane Burby, the owner of Afford,
and William Munck, its operations manager. According
to both Munck and Burby, former employees named
Daniel Ruiz and Jesus Agosto provided them with ‘‘false
and omitting’’ information as to the status of Garcia’s
employment. The affidavits stated that their agents also
falsely advised them that Garcia was a United States
citizen and his father was a former police officer. This
erroneous information led them to believe that Garcia
was not a flight risk, resulting in approval of the bond
without requiring collateral.
On December 14, 2015, the court, after a hearing,
denied Afford’s oral motion to discharge its obligation
on the surety bond and again denied its motion to com-
pel extradition.11 On December 30, 2015, Afford filed
this writ of error.
On February 6, 2016, the court issued a written memo-
randum of decision articulating its reasons for its denial
of Afford’s oral motion for discharge of its obligation
on the bond and motion to compel extradition.12 The
court stated: ‘‘[Afford’s] arguments and the facts upon
which it relies do not entitle [Afford] to any relief from
this court because they do not constitute good cause
. . . . This court notes that [Afford] was not entitled
to an order vacating bond forfeiture pursuant to . . .
§ 54-65c because it did not provide proof of [Garcia’s]
incarceration in or removal to another country. No
proof was provided because [Garcia] was not, in fact,
incarcerated in Peru, or removed to Peru . . . . It was
the wilful act of the accused which caused his departure
from this country and his nonappearance for trial, not
an act of God, an act of the obligee, or an act of law.
‘‘The [representation by the] state’s attorney’s [office]
. . . that it will extradite [Garcia] is not relevant to the
question at hand. . . . The [state] was not a party to
the agreement between [Garcia] and [Afford], and did
not promise, when the bond was executed, to extradite
[Garcia] in the event that he flees.
‘‘Likewise, the actions of [Afford’s] agents in execut-
ing the bond are not relevant to the determination of
whether good cause has been established . . . . These
actions may have violated [Afford’s] procedures, but
they are not an act of God, an act of the obligee, or an
act of law that prevented [Afford] from fulfilling the
requirements of the bond.’’
I
Afford first claims that the trial court improperly
concluded that the standard for demonstrating ‘‘good
cause’’ for discharge of an obligation upon a bond pursu-
ant to Practice Book § 38-23 is the standard first set
forth in Taylor v. Taintor, supra, 83 U.S. 369–70, rather
than a more holistic, equitable assessment that presum-
ably would consider the alleged fraudulent actions of
its agents and the state’s failure to follow through on its
alleged July 24, 2015 promise to initiate the extradition
process for Garcia as good cause to discharge its obliga-
tion upon the bond.
We begin with the standard of review. ‘‘The interpre-
tation of a rule of practice is a question of law, subject
to plenary review . . . and such an interpretation
begins with the text of the provision at issue.’’ (Citation
omitted.) State v. Sheriff, 301 Conn. 617, 622, 21 A.3d
808 (2011).
Although Practice Book § 38-23 does not specify the
exact legal test to be used by a court in determining
good cause, this state has followed the common-law
rule set forth in Taylor v. Taintor, supra, 83 U.S. 366,
which affirmed the decision of the our Supreme Court
in Taintor v. Taylor, 36 Conn. 242, 255 (1869), that a
surety will be relieved of its obligation on a bail bond
only when ‘‘the performance of the condition [of the
bond] is rendered impossible by the act of God, the act
of the obligee, or the act of the law’’ (Taylor rule).13
Taylor v. Taintor, supra, 83 U.S. 369. This common-
law rule was reaffirmed in State v. Sheriff, supra, 301
Conn. 626. The legislature, by enacting § 54-65c in 2011
and amending it in 2014, has since expanded the com-
mon-law definition of ‘‘good cause.’’14
In Taylor, the criminal defendant and principal on
the bond, Edward McGuire, was released after posting
bond in a Connecticut criminal court. Taylor v. Taintor,
supra, 83 U.S. 368. He later voluntarily left Connecticut
for New York and failed to appear in court as ordered.
Id. Meanwhile, Maine issued a governor’s requisition to
New York to take custody of McGuire so he could be
prosecuted on a pending burglary charge in Maine, and
New York delivered him to proper officers of the state
of Maine. Id. Neither of the two sureties on the bond
knew, when they entered into the recognizance, that
McGuire had a burglary charge pending in Maine. Id.,
369. After McGuire was sent to Maine, he was convicted
and sentenced to a term of incarceration of fifteen
years. Id., 368. During his confinement, the Connecticut
court forfeited the bond. Id.
Henry G. Taintor, the Connecticut state treasurer,
brought an action against McGuire and the sureties on
his bond to collect the debt on the recognizance. Tain-
tor v. Taylor, supra, 36 Conn. 242. The sureties sought
to be discharged from their obligation claiming that
they did not know at the time they posted bond for
McGuire that he had charges pending against him in
Maine. They had not acted in New York to obtain cus-
tody of McGuire after he had left Connecticut. Taylor
v. Taintor, supra, 83 U.S. 368–69. The sureties claimed
they were excused by acts of both the law and the
obligee.
The United States Supreme Court provided examples
of what would satisfy each of the common-law condi-
tions of the Taylor rule. An act of God occurs when
the bonded defendant ‘‘dies before the day’’ on which
he must appear. Taylor v. Taintor, supra, 83 U.S. 369.
An act of the obligee, or the party protected by the
bond, which is the state, occurs when the state does
something that makes it impossible for the defendant
to appear in its courts, such as abolishing the court in
question without qualification. Id. The third condition,
an act of law, arises when the state protected by the
bond takes custody of the defendant and then surren-
ders his custody to another state, thereby exercising
control of the defendant in such a way as to make
compliance with the bond impossible. Id., 369–70.
Because Connecticut had not abolished the court in
which McGuire was required to appear, the court in
Taylor focused on the third condition and stated that
good cause cannot exist as an act of law when McGuire
voluntarily removed himself from Connecticut by cross-
ing the border into New York. Id., 370. ‘‘There is a
distinction between an act of the law proper and the
act of the [criminal defendant], which exposes him to
the control and action of the law. While the former
exonerates, the latter gives no immunity.’’ (Internal quo-
tation marks omitted.) Id.
The defendant sureties in Taylor argued that the case
fell into the act of law condition because even though
McGuire left Connecticut of his own volition, an act
of law rendered his appearance impossible due to the
lawful arrest and transfer of McGuire to Maine as a
result of the cooperation between authorities in New
York and Maine. Id., 368. In rejecting this argument,
the court stated that it considered New York and Maine
‘‘strangers’’ to the bond agreement and held that an
act of law that makes it impossible for the criminal
defendant to appear must derive from the protected
state’s action, in other words, Connecticut’s action,
which did not occur in Taylor. Id., 373–74.
The sureties in Taylor also argued that their obliga-
tion should be discharged because they were not made
aware of McGuire’s pending charge in Maine, but the
Supreme Court considered the sureties at fault for
McGuire’s departure and also stated that it was their
duty to be aware of his arrest when it occurred and to
interpose their claim for custody. Their resulting loss,
the court concluded, was ‘‘due to [the sureties’] own
supineness and neglect.’’ Taylor v. Taintor, supra, 83
U.S. 373. ‘‘The principal in the case before us, cannot
be allowed to avail himself of an impossibility of perfor-
mance he created; and what will not avail him cannot
avail his sureties. His contract is identical with theirs.
They undertook for him what he undertook for himself.’’
Id., 374.
In State v. Sheriff, supra, 301 Conn. 617, the plaintiff
in error, Flavio Bail Bonds, LLC (Flavio), executed three
bonds for David Sheriff, the criminal defendant, for
each of his cases and Sheriff was released from custody.
Id., 619. Subsequently, Sheriff failed to appear and it
was revealed that, two days prior to trial, he had fled
to Jamaica and remained there. Id., 620. Flavio located
a likely address for Sheriff in Jamaica, but the chief
state’s attorney declined to initiate extradition proceed-
ings. Id.
Bringing a writ of error from the trial court’s denial
of its request to have its obligation on the bond compro-
mised or discharged, Flavio contended that its efforts
to locate Sheriff after his failure to appear and the
chief state’s attorney’s subsequent decision not to seek
extradition of Sheriff established good cause for reliev-
ing Flavio of its obligation on the bonds. Id., 618, 621.
Similar to the nature of the claim Afford asserts here—
that the court should have applied a more holistic, equi-
table assessment rather than the Taylor rule—Flavio
argued that the Taylor rule was antiquated and unduly
restrictive and asked our Supreme Court to adopt a
standard consistent with ‘‘emerging jurisprudence,’’
requiring a ‘‘multifaceted examination of the circum-
stances rather than holding tightly to any absolute rule.’’
(Internal quotation marks omitted.) Id., 622. Flavio
asserted that several other jurisdictions employ a ‘‘mul-
tifaceted’’ approach permitting courts to examine a
number of factors beyond the condition in the Taylor
rule when determining whether to discharge a surety
from a bond obligation. Id., 625. Our Supreme Court
declined to expand the Taylor rule, and in applying it,
suggested that unless the state had promised to extra-
dite a criminal defendant should he become a fugitive,
the state’s decision not to seek extradition was not
an act of law warranting a surety’s discharge from its
obligation on a bond. Id., 628.
In State v. Agron, 323 Conn. 629, 148 A.3d 1052 (2016),
which our Supreme Court officially released on Novem-
ber 22, 2016, after Afford filed its brief but before the
state filed its brief,15 the court applied § 54-65c16 in decid-
ing another writ in error involving the denial of a request
to discharge an obligation on a bond as a result of the
principal, Angel Agron, failing to appear in court after
voluntarily fleeing to and remaining in Puerto Rico.
Id., 631. Although bail enforcement agents had located
Agron in Puerto Rico and made him aware of his war-
rants for failure to appear in Connecticut, the state did
not seek extradition. Id. The court held that the word
‘‘detained’’ in § 54-65c does not include being detained
by bail enforcement agents but rather referred to being
detained by and held in the custody of a governmental
entity. Id., 639. The court also suggested, referring to
its previous holding in Sheriff, the facts of which it
considered comparable to the facts which led to the
forfeiture of the bond in Agron, that if a case does not
involve facts falling within the statutory conditions set
forth in § 54-65c, the Taylor rule continues to govern
in cases in which the defendant voluntarily leaves the
country and is not held in governmental custody else-
where. See id.
Afford, like the surety in Sheriff, is requesting that
this court add a new prong to the Taylor rule, namely, a
prong that considers ‘‘extreme, rare, and extraordinary
circumstances,’’ such as it alleged occurred in the pre-
sent case. Because, in Sheriff, our Supreme Court, pre-
sented with a similar argument, reaffirmed the use of
the Taylor rule, this argument bears no further discus-
sion. Insofar as Afford is attempting to persuade us to
revisit the reaffirmation of the Taylor rule in Sheriff,
we cannot do so. See Anderson v. Commissioner of
Correction, 148 Conn. App. 641, 645, 85 A.3d 1240 (‘‘[i]t
is axiomatic that this court, as an intermediate body,
is bound by Supreme Court precedent and [is] unable
to modify it’’ [internal quotation marks omitted]), cert.
denied, 311 Conn. 945, 90 A.3d 976, cert. denied sub
nom. Anderson v. Dzurenda, U.S. , 135 S. Ct. 201,
17
190 L. Ed. 2d 155 (2014).
As part of its first claim, Afford also argues that even
if the trial court properly applied the Taylor rule, the
present situation falls within the act of law condition
of that rule. We apply plenary review to the court’s
application of the Taylor rule to the facts in the present
case. State v. Sheriff, supra, 301 Conn. 628. Afford
asserts that because Garcia is an undocumented alien,
absent the state extraditing him, the law prevents him
from returning to the United States due to his lack of any
valid immigration status that would permit his lawful
reentry. Therefore, an act of law prevented Garcia from
returning to the United States for his scheduled court
appearance, which constitutes good cause under the
Taylor rule excusing Afford’s performance.
In Taylor, the Supreme Court stated that for the act
of law to render the performance on a bond obligation
impossible, it ‘‘must be a law operative in the [s]tate
where the obligation was assumed.’’ Taylor v. Taintor,
supra, 83 U.S. 371. In Taylor, the surety claimed that
even though the criminal defendant, McGuire, left Con-
necticut on his own volition, an act of law rendered his
appearance impossible when New York arrested him
and transferred him to Maine for prosecution and incar-
ceration there. Id., 371. The court stated that it consid-
ered New York and Maine ‘‘strangers’’ to the bond
agreement, and held that the act of law that makes it
impossible for a defendant to appear must derive from
action on the part of the protected state.18 Id., 374. If
Connecticut, rather than New York, had taken custody
of McGuire and transferred him to Maine pursuant to
its demand, the bond would be excused because an
act of the state had deliberately prevented him from
returning to Connecticut for his court appearance. See
State v. Sheriff, supra, 301 Conn. 627. Here, Garcia
voluntarily leaving the United States for Peru, therefore,
does not meet the act of law condition under the Taylor
rule because Connecticut, the protected state, was not
responsible for making his compliance with the bond
impossible. Accordingly, this claim fails.
II
Afford’s second claim is that, as part of the trial
court’s good cause analysis, the court should have con-
sidered the relevance of the state’s indication that it
would extradite Garcia. We disagree.
Afford relies on dicta in both Sheriff and Agron
regarding the impact of the alleged promise by the
state’s attorney on July 24, 2015, to extradite Garcia,
in determining whether there was good cause to vacate
a bond obligation. In Sheriff, our Supreme Court stated:
‘‘[E]ven if we assume that the chief state’s attorney
could have extradited Sheriff from Jamaica, in the
absence of any promise by the chief state’s attorney
that he would seek extradition of Sheriff in the event
that he fled, the chief state’s attorney had no obligation
to Flavio to extradite Sheriff from Jamaica in order to
fulfill the obligation that Flavio willingly undertook. As
one court has observed, [t]he state is not the surety’s
surety.’’ (Internal quotation marks omitted.) State v.
Sheriff, supra, 301 Conn. 628. In State v. Agron, supra,
323 Conn. 629, the court reiterated, citing Sheriff, that
the state was neither a party to the contract between
the surety, 3-D Bail Bonds, Inc., and Agron and, there-
fore, had no responsibilities arising from that contract,
nor did the state ever promise that it would extradite
Agron in the event that he fled to another country.
Id., 639.
First, we note that this is nonbinding authority
because neither case expressly holds that failure to
fulfill a promise to extradite constitutes good cause
excusing performance under the bond. Second, the lan-
guage on which Afford relies is not applicable to the
present case. Both cases refer to a promise to extradite
in the event the criminal defendant fled. State v. Agron,
supra, 323 Conn. 639, citing State v. Sheriff, supra, 301
Conn. 628. In this case, the only indication in the record
that the state represented it would extradite Garcia is
the prosecutor’s assertion at the October 6, 2015 hear-
ing, after Garcia already had absconded to Peru, that
‘‘we intend to extradite once the Peruvian authorities
notify us that he is in custody.’’ There is nothing in the
record that shows that prior to Afford’s agreement to
post bond on behalf of Garcia, the state promised to
extradite him if he fled to another country.19
The statement in Sheriff regarding a promise to extra-
dite only arguably provides a basis for relief if, ‘‘at the
time bail was posted,’’ the state had promised it would
seek extradition if Garcia left the country and, there-
after, the state refused to extradite him. See State v.
Mungia, 446 N.J. Super. 318, 330–31, 141 A.3d 395 (App.
Div.), cert. denied, 228 N.J. 91, 154 A.3d 709 (2016).
Only then could such a promise possibly be a factor
relevant to good cause because the surety would have
relied on the state’s representation regarding extradi-
tion when it assessed the risk of Garcia’s nonappear-
ance and this promise would have been factored into
what the surety charged for the bond.20
Here, the court found that the state had made no
promise to extradite ‘‘when the bond was executed,’’ a
factual finding Afford does not challenge on appeal.
Afford cites no authority for the proposition that a pros-
ecutor’s indication after a principal has absconded that
the state intends to extradite is a relevant consideration
to the court’s determination of whether good cause
exists to discharge the obligation upon the bond.
The writ of error is dismissed.
In this opinion the other judges concurred.
1
Afford filed the present writ of error in our Supreme Court. Our Supreme
Court transferred it to this court pursuant to General Statutes § 51-199 (c)
and Practice Book § 65-1.
2
Afford first filed a ‘‘motion to vacate bond forfeiture,’’ which the court,
A. Hadden, J., denied on July 21, 2015. Subsequently, on October 6, 2015,
Afford made an oral request to the court, Alexander, J., to have its obligation
on the surety bond discharged. It is the denial of this oral motion by Judge
Alexander on December 14, 2015, that is the judgment from which the
petition for writ of error is brought.
3
Practice Book § 38-23 states: ‘‘Where bail has been posted by a bondsman
or other surety, such bondsman or surety shall not be relieved of any
obligation upon the bond except with the permission of the judicial authority
and for good cause shown.’’
4
We refer to Afford’s declarations as to the factual basis for seeking a
discharge of its obligation on the bond as allegations because the record
reflects that no testimony or other documentary evidence was introduced
in support of them, and the court, in its memorandum of decision, made
few factual findings. It appears that the state and the court assumed,
arguendo, that Afford’s allegations, as set forth in its motion to vacate bond
forfeiture and attachments thereto and two affidavits subsequently filed
with the court, were true.
5
General Statutes § 54-65a provides in relevant part: ‘‘Whenever an
arrested person is released upon the execution of a bond with surety in an
amount of five hundred dollars or more and such bond is ordered forfeited
because the principal failed to appear in court as conditioned in such bond,
the court shall, at the time of ordering the bond forfeited . . . order a stay
of execution upon the forfeiture for six months.’’
6
Attached to Afford’s motion to vacate bond forfeiture was a letter from
Michelle Vetrano-Antuna, a deportation officer in the Department of Home-
land Security, Immigration and Customs Enforcement, dated March 17, 2015,
which purportedly verifies that Jonatan Lovis Mattos departed the United
State for Lima, Peru, on February 3, 2015. Despite the letter’s source, Afford
makes no claim that Garcia was deported to Peru.
7
Also attached to Afford’s motion to vacate bond forfeiture was a docu-
ment, written in Spanish, with an accompanying translation, purportedly
signed by Nestor Silva Angeles of the Policia Nacional Del Peru on March
26, 2015.
8
The court ultimately found that Afford failed to ‘‘provide proof of [Gar-
cia’s] incarceration in or removal to another country. No proof was provided
because [Garcia] was not, in fact, incarcerated in Peru, or removed to Peru.
. . . It was the wilful act of the accused which caused his departure from
this country and his nonappearance for trial . . . .’’
9
Practice Book § 38-23 provides: ‘‘Where bail has been posted by a bonds-
men or other surety, such bondsman or surety shall not be relieved of any
obligation upon the bond except with the permission of judicial authority
and for good cause shown.’’
10
These alleged prior representations as to the state’s commitment to
extraditing Garcia and initiating the extradition process cannot be verified
because Afford has not provided this court with the transcript of the court
hearing of July 24, 2015.
11
Inexplicably, we have not been provided with a transcript of the court
proceedings on December 14, 2015.
12
See Practice Book § 64-1 (a).
13
Death of the principal the day prior to a court appearance is an example
of an act of God. See State v. Sheriff, supra, 301 Conn. 624. Where the
court before which the principal is about to appear is ‘‘abolished, without
qualification,’’ that is an ‘‘act of the obligee.’’ Id. If the principal is arrested
in the state where the obligation is given and sent out of the state by the
governor, upon the requisition of the governor of another state, that is an
act of law. Id.
14
General Statutes § 54-65c provides: ‘‘A court shall vacate an order forfeit-
ing a bail bond and release the professional bondsman, as defined in section
29-144, or the surety bail bond agent and the insurer, as both terms are
defined in section 38a-660, if (1) the principal on the bail bond (A) is detained
or incarcerated (i) in another state, territory or country, or (ii) by a federal
agency, of (B) has been removed by United States Immigration and Customs
Enforcement, and (2) the professional bondsman, the surety bail bond agent
or the insurer provides satisfactory proof of such detention, incarceration
or removal to the court and the state’s attorney prosecuting the case, and
(3) the state’s attorney prosecuting the case declines to seek extradition of
the principal.’’
Afford neither alleged nor proved that Garcia was detained or incarcerated
in Peru or anywhere else, or that he had been deported by United States
Immigration and Customs Enforcement, and, thus, makes no claim that this
case satisfied one of the additional conditions for vacating a bond in § 54-
65c. For cases not within the statute, the three common-law conditions of
the Taylor rule, reaffirmed in Sheriff, remain binding precedent. See State
v. Agron, 323 Conn. 629, 639, 148 A.3d 1052 (2016).
15
Afford did not file a reply brief.
16
Section 54-65c became effective on October 1, 2011, subsequent to the
issuance of the decision in Sheriff. See Public Acts 2011, No. 11-45, § 24 (1).
17
Afford’s plea that this court take note of the ‘‘vast changes that have
taken place in the evolution of the bail bond system’’ which require ‘‘expan-
sion of [the] antiquated rule[s] . . . determining when a surety should be
released from its obligation’’ is undermined by the fact that the Taylor rule
has recently been altered by the legislature’s enactment of § 54-65c in 2011;
Public Acts 2011, No. 11-45, § 24 (1); and its amendment in 2014; Public
Acts 2014, No. 14-184, § 4; to include provisions for discharge of an obligation
on a bond in situations where the principal is detained or incarcerated in
another state, territory or country or detained by a federal agency, or has
been removed by United States Immigration and Customs Enforcement. See
General Statutes § 54-65c (A) (i), (A) (ii) and (B). Because we presume that
the legislature was aware of the common-law Taylor rule and only altered
the rule in some respects rather than making sweeping changes to it, and
did so after the Supreme Court in Sheriff reaffirmed the viability of the
rule, we recognize ‘‘only those alterations of the common law that are clearly
expressed in the language of the statute because the traditional principles
of justice [on] which the common law is founded should be perpetuated.’’
State v. Courchesne, 296 Conn. 622, 669, 998 A.2d 1 (2010).
18
The dissent in Taylor accepted the argument that the criminal defen-
dant’s appearance was rendered impossible by an act of law because of
New York’s legal duty to remit him, upon demand, to Maine. Taylor v.
Taintor, supra, 83 U.S. 377 (Field, J., dissenting). The majority rejected this
argument because that the cooperation between New York and Maine, which
made it impossible for the defendant to appear in court in Connecticut, was
a creature of Maine, New York and federal law. Taylor v. Taintor, supra,
83 U.S. 374–75.
19
There was also no compelling reason to extract a promise to extradite
from the state at the time. Afford claims it executed the bond because its
agents misrepresented that the defendant was a United States citizen, not
because the state, prior to the time the bond was executed, asserted that
it would extradite Garcia in the event he fled the country. The state should
not have to bear the loss from Afford’s failure to monitor its agents. The
obligation of the bail bondsman is to ensure his principal’s appearance in
court. State v. Nugent, 199 Conn. 537, 545, 508 A.2d 728 (1986). Although
sureties have the right to utilize agents, the agent and the bail bondsman
continue to share the obligation to make sure the principal appears in court.
Id., 549. Further, because an agent acts to the benefit of the principal, ‘‘the
acts of an agent, however, are ascribable or chargeable to the principal.’’
Connecticut Air Services, Inc. v. Danbury Aviation Commission, 211 Conn.
690, 696, 561 A.2d 120 (1989). The doctrine recognizes that ‘‘every man who
prefers to manage his affairs through others, remains bound to so manage
them that third persons are not injured by any breach of legal duty on the
part of such others while they are engaged upon his business and within
the scope of their authority.’’ (Emphasis omitted; internal quotation marks
omitted.) Gutierrez v. Thorne, 13 Conn. App. 493, 498, 537 A.2d 527 (1988).
20
The state suggests in its brief that a surety’s reliance on the state’s
promise to extradite before the bond is issued, which somehow binds the
state ‘‘by something akin to equitable estoppel,’’ would be problematic for
the surety because a state prosecutor has control only of seeking extradition.
After seeking extradition, the state prosecutor has no control beyond that
point because extradition is a national power that pertains to the national
government and not to the states. Valentine v. United States ex rel.
Neidecker, 299 U.S. 5, 8, 57 S. Ct. 100, 81 L. Ed. 5 (1936). The federal
government might refuse to seek extradition, and even if it pursued the
matter, the foreign sovereign might refuse to extradite. State v. Mungia,
446 N.J. Super. 318, 331, 141 A.3d 395 (App. Div.), cert. denied, 228 N.J. 91,
154 A.3d 709 (2016). Equitable estoppel is a mechanism used against the
state ‘‘(1) only with great caution; (2) only when the action in question has
been induced by an agent having authority in such matters; and (3) only
when special circumstances make it highly inequitable or oppressive not to
estop the agency.’’ (Internal quotation marks omitted.) Shanahan v. Dept.
of Environmental Protection, 305 Conn. 681, 708, 47 A.3d 364 (2012). The
state argues that the second requirement could not be satisfied because all
a prosecutor can do is promise to try to extradite, but can never guarantee
that such request for extradition would be honored. As a result, it may be
unwise for a surety to rely on such a promise when assessing the risk of
flight to another country because it might be difficult to assert reasonable
reliance on a promise to seek extradition as a basis for equitably estopping
the state from enforcing the bond when a defendant flees the country.