State v. Seneca

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

SENECA INSURANCE COMPANY, Appellant.

No. 1 CA-CV 13-0414
FILED 06-17-2014

Appeal from the Superior Court in Yavapai County
No. P1300CR201000704
The Honorable Cele Hancock, Judge

AFFIRMED

COUNSEL

Yavapai County Attorney’s Office, Prescott
By Thomas M. Stoxen
Counsel for Appellee

Eckert & Facciola, P.C., Tempe
By Tamra S. Facciola
Counsel for Appellant
 STATE v. SENECA
Decision of the Court

MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.

GOULD, Judge:

¶1 Seneca Insurance Company (“Seneca”) appeals from the trial
court’s judgment forfeiting an appearance bond. For the reasons that
follow, we affirm.

BACKGROUND1

¶2 On July 16, 2010, Liberty Bail Bonds (“Liberty”) posted a
$150,000 bond (“Bond”) to secure the appearance of Marcus Coleman, a
defendant charged with money laundering. The Bond identifies Liberty
as the “attorney in fact” for Seneca, the surety. In the event of forfeiture,
the Bond directs that Seneca and Liberty receive notice at their respective
addresses in New York and Arizona.

¶3 After his release, Coleman appeared before the trial court for
three hearings. On December 17, 2010, Ohio authorities arrested and
indicted Coleman for receiving a delivery of more than two hundred
pounds of marijuana. Coleman was released on bond on the Ohio
charges, and the trial court in Arizona waived his appearance at the next
hearing. However, when Coleman failed to appear at a May 16, 2012
hearing, the trial court issued a bench warrant, set bond at $500,000, and
sent a copy of its order to Liberty, Coleman, and the State.

¶4 By the time the trial court conducted its bond forfeiture
hearing on February 4, 2013, Ohio authorities had indicted Coleman for
possession of ecstasy and he had been in custody in Ohio since October
13, 2012. Neither Coleman nor his attorney attended the forfeiture
hearing in Arizona. During the hearing, the State reminded the court that

1 We examine the evidence in the light most favorable to supporting the
trial court’s judgment. See State v. Old W. Bonding Co., 203 Ariz. 468, 471,
¶ 9, 56 P.3d 42, 45 (App. 2002).

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it had waived Coleman’s appearance at the May 16, 2012 hearing; as a
result, the State requested forfeiture of the bond based solely upon his
failure to appear at the February 4, 2013 forfeiture hearing. The trial court
accordingly set a bond forfeiture hearing for March 4, 2013 with separate
notices to Seneca and Liberty.

¶5 Prior to the forfeiture hearing, Seneca filed a motion to
exonerate its Bond claiming it had suffered prejudice from the court’s lack
of notice concerning the bench warrant. Seneca argued that based on the
lack of notice, it “could not perform its duty” and had “zero opportunity
to locate the defendant.” Seneca also reported for the first time that
Liberty had surrendered its bond posting authority in October 2011. After
briefing and oral argument, the trial court entered a Rule 54(b) judgment
forfeiting the entire Bond.

¶6 Seneca unsuccessfully moved for a new trial under Rule
59(a) of the Arizona Rules of Civil Procedure. This appeal followed. We
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(5)(a) (2014).

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion By Forfeiting The
Entire Bond.

¶7 Seneca challenges the trial court’s forfeiture of the Bond. We
review the forfeiture decision for abuse of discretion, but construe the
rules governing appearance bonds de novo. State v. Garcia Bail Bonds, 201
Ariz. 203, 205, ¶ 5, 33 P.3d 537, 539 (App. 2001).

¶8 A surety assumes the risk that a defendant will not appear
and a forfeiture will occur. In re Bond Forfeiture in Pima Cnty., 208 Ariz.
368, 369, ¶ 4, 93 P.3d 1084, 1085 (App. 2004). “If at the hearing, 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 . . . .”
Ariz. R. Crim. P. 7.6(c)(2). To obtain reversal of a forfeiture, the surety
must show prejudice from the trial court’s failure to give notice. State v.
Sun Surety Ins. Co., 232 Ariz. 79, 81-82, ¶ 6, 301 P.3d 583, 585-86 (App.
2013).

¶9 Seneca contends that the trial court abused its discretion by
failing to consider the prejudice it allegedly suffered due to lack of notice
of the May 2012 bench warrant. Arizona Rule of Criminal Procedure
7.6(c)(1) provides that “the court shall notify the surety, in writing or by

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electronic means, that the warrant was issued.” With proper notice,
Seneca contends, it could have returned Coleman and mitigated its
liability.2

¶10 Seneca disregards the fact that the forfeiture in this case was
based on Coleman’s failure to attend the February 2013 forfeiture hearing.
The trial court noted that the bench warrant for the May 2012 hearing had
been issued in error because the court had already waived Coleman’s
appearance; as a result, the court determined that Coleman had not
“violated a condition of the appearance bond” by failing to appear on May
16, 2012. See Ariz. R. Crim. P. 7.6(c)(1). Seneca received notice of
Coleman’s failure to appear at the February 2013 hearing, and had a full
opportunity to litigate its motion for exoneration at the subsequent
forfeiture hearing.

¶11 Even if we assume the lack of notice to Seneca is relevant,
the trial court still had discretion to forfeit the entire Bond. We have
previously held that a full exoneration of an appearance bond is
mandatory only when a defendant has not violated any condition of the
bond. State v. Old W. Bonding Co., 203 Ariz. 468, 472-73, ¶ 17, 56 P.3d 42,
46-47 (App. 2002). In Old West, the surety claimed that it did not receive
timely notice of the bench warrant and consequently lost the opportunity
to apprehend the defendant before his incarceration. Id. at 475, ¶ 27, 56
P.3d at 49. We held that exoneration was not mandatory despite the lack
of notice, because even if the surety had arrested the defendant after
receiving timely notification, “exoneration of the bond would still have
been discretionary with the court.” Id. at ¶ 28; see also A.R.S. § 13-3974(A)
(Supp. 2013) (“A surety shall be relieved from liability on an appearance
bond on which the defendant is released if . . . [t]he surety surrenders the
defendant on that appearance bond into the custody of the sheriff . . . .”);
Ariz. R. Crim. P. 7.6(d)(1) (a court is required to exonerate a bond only if
there is no further need for it).

¶12 Under Old West, a trial court has discretion to order a full or
partial forfeiture based on consideration of several factors, including:
(1) whether the failure to appear due to incarceration arose from a crime
committed before or after release on bond, (2) the willfulness of the
defendant’s appearance bond violation, (3) the surety’s effort and expense

2 Seneca’s argument requires us to assume that it did not receive
notice of the bench warrant, notwithstanding the fact that the trial court
sent notice to Liberty, Seneca’s attorney-in-fact on the Bond.

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in locating and apprehending the defendant, (4) the costs, inconvenience,
and prejudice to the State, (5) intangible costs, (6) the public interest in
securing the defendant’s appearance, and (7) other mitigating or
aggravating factors. Old West, 203 Ariz. at 475, ¶ 26, 56 P.3d at 49.

¶13 The record does not reflect the trial court was unaware of the
Old West factors, ignored evidence, or misinterpreted the applicable rules.
Coleman failed to appear on February 4, 2013 because he was incarcerated
for an offense allegedly committed in Ohio while out on bond. See id.
Seneca offered no affidavit or other evidence documenting its claimed
prejudice from lack of notice. See id. It also did not provide any
information as to efforts it made, if any, to obtain pertinent information
about Coleman at the time Liberty surrendered its bond-posting authority
in October of 2011. Indeed, Seneca conceded in its motion to exonerate
that it had no knowledge of Coleman’s status between May 16, 2012 and
February 13, 2013, and provided no proof of efforts to monitor or
apprehend him. See id.

¶14 Nevertheless, Seneca argues the trial court erroneously
failed to consider the lack of separate notice to Seneca as at least a
mitigating factor. We disagree. Although the trial court made no express
findings as to lack of notice, we assume the trial court found every fact
necessary to support its ruling, and we will affirm if the evidence
reasonably supports its decision. Twin City Fire Ins. Co. v. Burke, 204 Ariz.
251, 254, ¶ 10, 63 P.3d 282, 285 (2003). We must further presume that the
trial court knew the law and applied it when deciding this case. Fuentes v.
Fuentes, 209 Ariz. 51, 58, ¶ 32, 97 P.3d 876, 883 (App. 2004).

¶15 Throughout its brief and in its trial court filings, Seneca
claimed no knowledge of Coleman’s status and never explained its failure
to be apprised of his whereabouts. At oral argument, Seneca complained
about its lack of notice that Liberty had ceased to do business; however,
the record is silent as to what efforts, if any, Seneca made to review the
status of its bond agents such as Liberty. More to the point, as the surety,
Seneca was required to stay apprised of Coleman’s status and take steps
to assure all court appearances. Rule 7.6(c)(1) does not require the trial
court to update Seneca about any developments apart from its issuance of
a bench warrant.

¶16 If Seneca had fulfilled its obligations as surety, it could have
mitigated its prejudice by apprehending and surrendering Coleman after
his first Ohio arrest in December 2010 and prior to his incarceration in
October 2012. See In re Bond in Amount of $75,000, 225 Ariz. 401, 406-07,

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¶ 15, 238 P.3d 1275, 1280-81 (App. 2010) (explaining that a warrant is not a
prerequisite to initiating forfeiture proceedings). Seneca also could have
kept in contact with Liberty to obtain information on Coleman until
Liberty ceased operation. However, nothing in the record shows that it
chose to do so.

¶17 Accordingly, based on the record, we find no abuse of
discretion in the full forfeiture of the Bond. See In re Bond Forfeiture in CR-
94019213, 191 Ariz. 304, 306-07, ¶¶ 9-11, 955 P.2d 541, 543-44 (App. 1998)
(holding that a court could not presume prompt notice to the surety
would cure the violation of a release condition).

II. Seneca Did Not Suffer Prejudice from the Delay of the Hearing.

¶18 Seneca alternatively argues that the trial court violated Rule
7.6(c)(1) by conducting a forfeiture hearing more than 120 days after the
issuance of the bench warrant. The rule requires the court to “set a
hearing within a reasonable time not to exceed 120 days.” Ariz. R. Crim.
P. 7.6(c)(1). The trial court issued the bench warrant on May 16, 2012, but
did not set the February 4, 2013 hearing until December 18, 2012.

¶19 Although Seneca claims prejudice from the delay, it supplies
no affidavit or other substantiating proof. Although holding a hearing
earlier, with notice to Seneca, may have increased Seneca’s chances of
apprehending Coleman, we cannot presume that the effort would have
succeeded. See State v. Jackson, 184 Ariz. 296, 301 n.5, 908 P.2d 1081, 1086
n.5 (App. 1995). Like the trial court, we decline to presume prejudice
under these circumstances. See In re Bond Forfeiture In CR-94019213, 191
Ariz. at 306-07, ¶¶ 8-9, 955 P.2d at 543-44 (declining to presume prejudice
from one-year delay in holding hearing and affirming bond forfeiture).

III. Seneca Misplaces Its Reliance Upon Sun Surety.

¶20 The parties dispute whether a surety’s obligations have been
altered by the amendment to Rule 7.6(c) requiring notice of bench
warrants. As authority for this argument, Seneca relies upon State v. Sun
Surety, 232 Ariz. 79, 301 P.3d 583.

¶21 Seneca’s reliance on Sun Surety is misplaced. In Sun Surety,
the surety posted a $3000 appearance bond for a defendant indicted for a
felony. Id. at 80, ¶ 2, 301 P.3d at 584. Five months later, the defendant
failed to attend a pretrial hearing, and the trial court issued a bench
warrant without notice to the surety. Id. The sheriff apprehended the
defendant sixteen days later, and the surety requested and secured a full

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exoneration of its bond. Id. We upheld the exoneration on appeal, stating
that the trial court could, in its discretion, consider the lack of notice in
determining whether to exonerate the bond. Sun Surety, 232 Ariz. at 83,
¶¶ 9-10, 301 P.3d at 587. We cautioned, however, that 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).” Id. at ¶ 10.

¶22 In short, Sun Surety does not alter the obligations of a surety;
the decision simply emphasizes that a trial court has broad discretion in
determining whether to exonerate or forfeit a bond.

CONCLUSION

¶23 We affirm the trial court’s decision forfeiting the bond
posted by Seneca.

:gsh

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