[Cite as State v. McQuay, 2011-Ohio-6709.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 24673
Plaintiff-Appellee :
: Trial Court Case No. 11-CRB-168
v. :
:
LENNON L. McQUAY : (Criminal Appeal from Vandalia
: (Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of December, 2011.
...........
JOE CLOUD, Atty. Reg. #0040301, Vandalia Municipal Prosecutor’s Office, 3973
Dayton-Xenia Road, Beavercreek, Ohio 45432
Attorney for Plaintiff-Appellee
JAMES W. SKOGSTROM, Atty. Reg. #0012000, 2 West Columbia Street, Suite 200,
Post Office Box 1404, Springfield, Ohio 45501
Attorney for Defendant-Appellant
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HALL, J.
{¶ 1} The John Craven General Agency, Inc. (“Craven”), appeals from the
trial court’s denial of its April 2011 motion for return of a forfeited bail bond. In its sole
assignment of error, the Agency contends “[t]he trial court erred and abused its
discretion when it failed to grant remission of the bond to appellant.”
2
{¶ 2} The record reflects that a $5,000 surety bond was posted to assure the
appearance of defendant Lennon L. McQuay at future proceedings.1 After McQuay
failed to appear for a scheduled hearing, the trial court gave Craven notice of its
intent to hold a hearing regarding forfeiture of the $5,000. Craven requested a
continuance to allow more time to locate McQuay. The trial court denied the motion
and ordered Craven to appear and show cause regarding forfeiture. Craven
subsequently failed to show cause and forfeited the $5,000 on April 1, 2011.
Thereafter, on April 18, 2011, Craven filed a motion for return of the money. In a
memorandum accompanying the motion, Craven asserted that its agents had
apprehended McQuay in North Carolina and had returned him to the Montgomery
County Jail, where he remained incarcerated. The following day, McQuay pled guilty
to a reduced charge of assault and received probation. On April 26, 2011, Craven
renewed its pending motion for return of the money. The trial court overruled the
motion on May 6, 2011. The trial court’s full decision and entry states:
{¶ 3} “This matter is before the Court on the Motion for Return of Bond filed
herein. Pursuant to Ohio Revised Code §2937.36 the surety bond is required to be
paid in full unless the Defendant is brought before the Court within thirty (30) days
from the date Defendant failed to appear for court. The Defendant failed to appear
for Pretrial on February 28, 2011, and was not brought before the Court until April 13,
2011.
1
The bond was posted by Sharon Belcher, a representative of John Craven Bail Bonds
(apparently a “dba” for appellant John Craven General Agency, Inc.), acting as attorney-in-fact for
American Contractors Indemnity Company.
3
{¶ 4} “Movant’s Motion is not well-taken and is hereby DENIED.”
{¶ 5} On appeal, Craven primarily argues that the trial court erred in relying
on R.C. 2937.36, which addresses the forfeiture of bail, to deny its motion for the
return or remission of bail, which is governed by a different statute, R.C. 2937.39.
Craven also complains that the trial court failed to afford it an opportunity to be heard
on its motion through the submission of evidence or testimony. In response, the
State argues that a hearing was neither required nor requested on Craven’s motion.
The State further asserts that various facts and circumstances support the denial of
Craven’s motion. As a result, the State insists that no abuse of discretion has been
shown.
{¶ 6} We review a trial court’s disposition of a motion to remit forfeited bail for
an abuse of discretion. State v. Thornton, Montgomery App. No. 20963,
2006-Ohio-786. In ruling on such a motion, a trial court need not always hold an
evidentiary hearing, particularly when a surety fails to request one. State v. Hardin,
Lucas App. Nos. L-03-1131, L-03-1132, L-03-1133, 2003-Ohio-7263, ¶12. In
exercising its discretion, however, a trial court should consider various factors. State
v. Delgado, Clark App. No. 2003-CA-28, 2004-Ohio-69, ¶13-16. These factors, which
we set forth in Delgado, generally relate to the circumstances surrounding the
ultimate appearance of the defendant, the State’s inconvenience, expense, and
delay, as well as the willfulness of the bond violation. Id. “Ohio’s appellate districts
‘uniformly require trial courts to consider and weigh [these] various factors in order to
reconcile the purposes of both bail and bond remission.’” Id. at ¶15, quoting State v.
Jackson, 153 Ohio App.3d 520, 2003-Ohio-2213, ¶9. In Delgado, this court found an
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abuse of discretion where the trial court denied a motion for bond remission without
evaluating the relevant factors. In that case, the trial court overruled the motion
based solely on a finding that a surety assumes the risk of forfeiting bail. Id. at
¶18-19. Finding reversible error, this court reasoned:
{¶ 7} “The risk of forfeit is inherent in any bail situation, however, and
remission is only at issue if the surety fails to timely produce a defendant. If trial
courts only had to consider which party bore the risk of non-production, there would
be no reason to entertain motions for remission. The balancing test requires courts to
do more, by mandating that they evaluate and weigh various factors. Because the
trial court in the present case failed to comply with these requirements, its decision
was necessarily arbitrary, and was an abuse of discretion.” Id. at ¶19.
{¶ 8} The trial court committed a similar error here. As set forth above, it
relied on R.C. 2937.36 to find bond remission inappropriate. R.C. 2937.36 provides,
inter alia, that after a defendant fails to appear the court must notify the surety and
give it an opportunity to show cause why judgment should not be entered for bail
forfeiture. Delgado, at ¶12. One way for a surety to show cause is to produce the
2
defendant within a certain number of days. R.C. 2937.36(C). Failure to show cause
results in judgment being entered against the surety for bail forfeiture. Id.
{¶ 9} The parties agree that Craven failed to show cause why judgment
should not be entered on the forfeiture. As a result, the $5,000 bail was forfeited. The
issue raised by Craven’s motion for return of the forfeited funds, however, concerned
2
At the time of the trial court’s ruling, a surety had no more than thirty days from the mailing of the
show-cause notice to bring the defendant before the court to avoid entry of judgment for bail forfeiture.
That time recently was extended to sixty days through an amendment to R.C. 2937.36.
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whether it was entitled to relief from the judgment of forfeiture. Craven brought its
motion under R.C. 2937.39, which authorizes remission of forfeiture. It states: “After
judgment has been rendered against surety or after securities sold or cash bail
applied, the court or magistrate, on the appearance, surrender, or re-arrest of the
accused on the charge, may remit all or such portion of the penalty as it deems just *
* *.” As set forth above, this court has directed trial courts to consider various factors
when exercising their discretion to remit forfeited bail under R.C. 2937.39.
{¶ 10} In its analysis, the trial court denied remission under R.C. 2937.39
based solely on a finding that its judgment of forfeiture had been proper under R.C.
2937.36. But Craven’s failure to avoid the entry of judgment on the bail forfeiture has
no bearing on whether it is entitled to remission under R.C. 2937.39. Every motion for
remission presupposes a proper judgment of forfeiture. See R.C. 2937.39 (providing
that the opportunity for remission arises“[a]fter judgment has been rendered against
surety”). In short, the trial court erred by refusing to give consideration to return of the
forfeited bail simply because the money properly had been forfeited. On remand, the
trial court should exercise its discretion by evaluating Craven’s motion in light of the
3
factors this court identified in Delgado, supra.
{¶ 11} Craven’s assignment of error is sustained. The judgment of the
3
With regard to the remission factors, “[t]he court itself should know what costs and inconvenience
the court incurred. However, because the cost and inconvenience to the State involves facts peculiarly
within the State’s knowledge, and is susceptible to proof by the State because of that peculiar knowledge,
the State should be required to offer evidence showing what costs and inconvenience it incurred. Any
omission to produce important and relevant evidence in its possession raises a presumption that, if
produced, such evidence would be unfavorable to the State. * * * On remand, though the surety bears the
ultimate burden of proof on its request to remit a portion of the forfeited bond, the court should require the
State to come forward with evidence in its possession relevant to prove the cost and inconvenience
incurred by the State, its witnesses, and law enforcement authorities.” Thornton, at ¶19-20 (Grady, J.,
concurring).
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Vandalia Municipal Court is reversed, and the cause is remanded for further
proceedings consistent with this opinion.
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FAIN and FROELICH, JJ., concur.
Copies mailed to:
Joe Cloud
James W. Skogstrom
Hon. Cynthia M. Heck