State v. Milo

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
18-NOV-2021
07:50 AM
Dkt. 69 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
REXFORD MILO, Defendant-Appellee, and
24HR BEST DEAL BAIL BONDS LLC,
Real Party in Interest-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PC151000243)
SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Real Party in Interest-Appellant 24HR Best Deal Bail
Bonds LLC (Best Deal) appeals from the July 31, 2018 Court Order
Granting in Part and Denying in Part Motion to Set Aside Bail
Bond Forfeiture and Exonerate Bond, Filed April 11, 2018 (Order
Granting/Denying Set Aside), entered by the Circuit Court of the
Third Circuit (Circuit Court).1
Best Deal raised four points of error on appeal,
contending that the Circuit Court: (1 & 4) erred as a matter of
law and abused its discretion when it denied Best Deal's motion
to set aside bail bond forfeiture; and (2 & 3) erred when it
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The Honorable Henry T. Nakamoto presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
transferred the subject bond from the District Court of the Third
Circuit, Puna Division (District Court) to the Circuit Court.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Best Deal's points of error as follows:
Hawaii Revised Statutes (HRS) § 804-51 (2014) sets
forth the procedure for bond forfeiture and provides:
§ 804-51 Procedure. Whenever the court, in any
criminal cause, forfeits any bond or recognizance given in a
criminal cause, the court shall immediately enter up
judgment in favor of the State and against the principal or
principals and surety or sureties on the bond, jointly and
severally, for the full amount of the penalty thereof, and
shall cause execution to issue thereon immediately after the
expiration of thirty days from the date that notice is given
via personal service or certified mail, return receipt
requested, to the surety or sureties on the bond, of the
entry of the judgment in favor of the State, unless before
the expiration of thirty days from the date that notice is
given to the surety or sureties on the bond of the entry of
the judgment in favor of the State, a motion or application
of the principal or principals, surety or sureties, or any
of them, showing good cause why execution should not issue
upon the judgment, is filed with the court. If the motion
or application, after a hearing held thereon, is sustained,
the court shall vacate the judgment of forfeiture and, if
the principal surrenders or is surrendered pursuant to
section 804-14 or section 804-41, return the bond or
recognizance to the principal or surety, whoever shall have
given it, less the amount of any cost, as established at the
hearing, incurred by the State as a result of the
nonappearance of the principal or other event on the basis
of which the court forfeited the bond or recognizance. If
the motion or application, after a hearing held thereon, is
overruled, execution shall forthwith issue and shall not be
stayed unless the order overruling the motion or application
is appealed from as in the case of a final judgment.
This section shall be considered to be set forth in
full in words and figures in, and to form a part of, and to
be included in, each and every bond or recognizance given in
a criminal cause, whether actually set forth in the bond or
recognizance, or not.
(Emphasis added).
Best Deal argues that the bond issued for Defendant-
Appellee Rexford J. Milo's (Milo's) release was not "given" in
the Circuit Court case within the meaning of HRS § 804-51.
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HRS § 804-1 (2014) defines bail, and/or the giving of
bail, as "the signing of the recognizance by the defendant and
the defendant's surety or sureties, conditioned for the
appearance of the defendant at the session of a court of
competent jurisdiction to be named in the condition, and to abide
by the judgment of the court." (Emphasis added). HRS § 804-19
(2014), entitled "Times for appearance," requires, in turn, that
"persons let out on bail[] shall not only attend on the day
appointed in their respective obligations, but at such other
times as the court shall direct, and the obligation continues
until they are discharged by the court." (Emphasis added).
Interpreting HRS § 804-1, this court has articulated
that a recognizance is "a bond or obligation, made in court, by
which a person promises to perform some act or observe some
condition, such as to appear when called. Most commonly, a
recognizance takes the form of a bail bond that guarantees an
unjailed criminal defendant's return for a court date." State v.
Nelson, 139 Hawai#i 147, 161 n.7, 384 P.3d 923, 937 n.7 (App.
2016) (citation, brackets, and ellipsis omitted), aff'd, 140
Hawai#i 123, 398 P.3d 712 (2017). A bail bond is "a contract
between the surety and the government that, if the government
releases the principal from custody, the surety will undertake
that the principal will appear personally at any specified time
and place. It is thus the surety's responsibility to ensure the
principal's attendance." Id. (citations, brackets, and ellipsis
omitted); see also Eastern Star, Inc. v. Union Bldg. Materials
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Corp., 6 Haw. App. 125, 133 n.12, 712 P.2d 1148, 1155 n.12
(1985).
Here, Best Deal acted as surety on the bond for Milo's
release for charges relating to his arrest on April 18, 2015;
that bond required Milo's appearance and compliance with further
orders of a "court of competent jurisdiction," within the meaning
of HRS § 804-1, and Best Deal's "obligation continue[d]" for such
a time as Milo was held to answer until discharge of the bond
under HRS § 804-19.
The Bail/Bond Receipt, Acknowledgment, and Notice to
Appear, BBRA No. 300050753 (BBRA), submitted in a Form J as
provided in Hawai#i Rules of Penal Procedure (HRPP) Rule 46(b)
and signed by Best Deal's Surety Agent, contains a Notification
to Third-Party Surety of Bail Bond Conditions/Obligations
(Notification to Best Deal) stating, in pertinent part:
I have read and understand the terms and conditions of bail
signed by defendant. I understand that this is a continuing
bond that will remain in full force and effect, unless
otherwise ordered by the court, until final determination of
all proceedings in this case, including appeal. If I wish
earlier discharge from liability on this bond, I must
surrender Defendant to the custody of any sheriff, chief of
police, or their authorized subordinates. I understand that
if Defendant fails to appear in court on the day and at the
time indicated on this Receipt, Acknowledgment, and Notice
to Appear Form or any other day and time ordered by the
court, judgment for the full amount of this bail bond shall
be entered in favor of the State. Any request to show good
cause why the court should vacate the judgment of forfeiture
must be filed within thirty (30) days from the date notice
of the entry of judgment in favor of the state is given via
personal service or certified mail, return receipt
requested.
(Emphasis added). The Defendant's Acknowledgment of Terms and
Conditions for Release on Bail or Recognizance, signed by Milo
and incorporated in the Notification to Best Deal, states, in
pertinent part:
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In order to be admitted to bail and released from custody or
released on recognizance, I agree to comply with the terms
and conditions of release on bail or recognizance set forth
herein, all conditions imposed by law, and any additional
conditions that a court may later impose on me. I
specifically understand and agree that:
• I must appear in person for all court hearings,
including the hearing set forth above. If I fail to
appear, my release will be revoked, a bench warrant
will be issued for my arrest, and I may be charged for
bail jumping or contempt of court.
. . . .
• If, at any time, I fail to appear in court on the day
and at the time indicated on this Receipt,
Acknowledgment, and Notice to Appear Form or any other
day and time ordered by the court, any cash or bond
posted for my release WILL BE FORFEITED to the State
and NOT RETURNED.
Although the BBRA states that Milo was to appear in the
District Court for his preliminary hearing to answer the charges
in Case No. C10023134, nothing in the BBRA provides that the
District Court was the only court in which Milo could be held to
answer. Rather, as set forth in both the BBRA and HRS § 804-19,
the obligation continued through "all proceedings in this case,
including appeal," and until discharged by the court, with such
modifications as the court may have later imposed. Necessarily,
this obligation could, and often must, continue from the District
Court to the Circuit Court. See, e.g., HRPP Rule 5(c)(7)(iii)-
(8) (in a felony prosecution, "[t]he district court, as
authorized by [HRS] chapter 804, may admit the defendant to bail
or modify bail any time prior to the filing of the written order
committing the case to circuit court"; within 7 days of the oral
order of commitment, the district court clerk "shall transmit to
the circuit court . . . any bail deposited"); State v. Henley,
136 Hawai#i 471, 473, 480-81, 363 P.3d 319, 321, 328-29 (2015)
(defendant charged by complaint and bailed in district court
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bound over to circuit court upon his demand for a jury trial
where bail evidently continued and was then increased); see also
HRS § 806-8 (2014) (providing that in certain circumstances, such
as the case at bar, the prosecution may elect to pursue a
superseding indictment).
In addition, the Paper Bond issued by Best Deal states:
CIRCUIT, FAMILY, or DISTRICT COURT OF THE STATE
OF HAWAII
Police Report Number(s): C10023134
DEFENDANT: Rexford Milo, DOB: [**-**-**], having been
admitted to bail and ordered to appear in court in the
State of Hawaii.
KNOW ALL MEN BY THESE PRESENTS:
THAT THE UNDERSIGNED SURETY, OR SURETIES, AS SURETY, HEREBY
UNDERTAKE THAT THE SAID DEFENDANT WILL APPEAR AND ANSWER ALL
CHARGES MENTIONED IN WHATEVER COURT IT MAY BE PROSECUTED
WITHIN THE STATE OF HAWAII, AND WILL AT ALL TIMES BE
AMENABLE TO THE ORDERS AND PROCESS OF THE COURT , AND, WILL
APPEAR FOR JUDGEMENT, AND RENDER SELF IN EXECUTION THEREOF,
OR FAILING TO PERFORM EITHER OF THESE CONDITIONS WILL PAY TO
THE STATE OF HAWAII, AS PROVIDED IN [HRS § 804-51]
THE SUM OF: Twelve thousand dollars ($12,000.00).
BOND VALID ONLY FOR THOSE CHARGES LISTED UNDER THE ABOVE
REPORT AND OR CRIMINAL NUMBERS AS OF THE DATE STATED HEREIN.
BOND IS CANCELLED AND SURETY EXONERATED UPON SENTENCING, DAG
PLEA OR DISMISSAL.
(Bold emphasis added; format altered).
In light of the identification of each of the circuit,
family, and district courts, and the broad language guaranteeing
Milo's appearance "in whatever court [the charges] may be
prosecuted," Best Deal's obligation was not limited to securing
Milo's presence in the District Court, as Best Deal contends.
Rather, the obligation attached to Milo being held to answer for
the charges contained in the Arrest Report, C10023134, whether
prosecuted in the District Court or Circuit Court.
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We conclude that Best Deal was the surety in the
"criminal cause" of Milo's prosecution in the District Court, and
that its obligations as stated in the bond documents continued
through the superseding indictment in the Circuit Court. Thus,
we reject Best Deal's argument that it was not a surety or
principal when Milo failed to appear in the Circuit Court.
Accordingly, we reject Best Deal's related arguments that the
March 28, 2016 Order of Forfeiture of Bail and Final Judgment of
Forfeiture (Forfeiture Judgment) should never have been issued
and the Circuit Court erred in failing to set aside the
Forfeiture Judgment.
For these reasons, the Circuit Court's July 31, 2018
Order Granting/Denying Set Aside is affirmed.
DATED: Honolulu, Hawai#i, November 18, 2021.
On the briefs:
/s/ Lisa M. Ginoza
Matthew Nardi, Chief Judge
for Real Party in Interest-
Appellant. /s/ Katherine G. Leonard
Associate Judge
Michael S. Vincent,
Dean A. Soma, /s/ Keith K. Hiraoka
Steve A. Bumanglag, Associate Judge
Deputy Attorneys General,
State of Hawai#i,
for Plaintiff-Appellee.
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