[Cite as State v. Lott, 2014-Ohio-3404.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130543
TRIAL NO. B-1300760-B
Plaintiff-Appellee, :
vs. : O P I N I O N.
JYMARCUS LOTT, :
Defendant, :
and :
TRACY LOTT, :
Surety-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 6, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Dale Bernhard,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Ngozi V. Ndulue and David Singleton, Ohio Justice and Policy Center, for
Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
Per Curiam.
{¶1} Appellant Tracy Lott appeals the trial court’s judgment forfeiting
three recognizance bonds she had posted for her son defendant Jymarcus Lott. She
argues the trial court erred in forfeiting the bonds because her son’s subsequent
incarceration in Indiana for a probation violation made performance of her surety
obligation legally impossible. She further argues that the trial court erred in failing
to follow the statutory time frame set forth in R.C. 2937.36 before forfeiting the
bonds. Finding neither argument meritorious, we affirm the trial court’s judgment.
Trial Court Proceedings
{¶2} On February 4, 2013, Jymarcus Lott was arrested in Hamilton
County and indicted for having weapons while under a disability, improperly
handling firearms, and trafficking in marijuana. The trial court set his bond at
$7,000. Three days later, Ms. Lott posted three separate recognizance bonds, one for
each charge. She agreed to pay ten percent of Jymarcus’s bonds, which totaled about
$900 with fees. Jymarcus was then released on bond.
{¶3} At the time of his release, Jymarcus was also on probation in
Indiana for the offense of dealing in cocaine, a class B felony. When Jymarcus
reported to his probation officer by phone on February 20, 2013, his scheduled
reporting date, his probation officer told him to report in person in Indiana. When
Jymarcus arrived in Indiana, he was arrested for a probation violation based upon
the pending charges in Hamilton County. As a result, Jymarcus failed to appear in
court for his arraignment on February 22, 2013. A magistrate ordered the three
bonds forfeited, and issued a warrant for Jymarcus’s arrest.
{¶4} On May 7, 2013, the trial court served Ms. Lott and Jymarcus with
notice of the forfeiture. It ordered that Ms. Lott produce Jymarcus on June 12, 2013,
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OHIO FIRST DISTRICT COURT OF APPEALS
or show cause why judgment should not be entered against her and Jymarcus. On
May 20, 2013, Ms. Lott filed a pro se response, attaching documentation from
Jymarcus’s probation officer and the Indiana courts, which showed that Jymarcus
was incarcerated in Indiana.
{¶5} On June 12, 2013, the magistrate held a hearing on the bond
forfeitures. Ms. Lott appeared at the hearing and explained that Jymarcus’s failure
to appear had been caused by his incarceration in Indiana. On June 27, 2013, the
magistrate ordered the bonds forfeited, and entered judgment for the state for
$7,000 jointly and severally against Ms. Lott and her son.
{¶6} In the interim, Ms. Lott had hired counsel, who entered an
appearance on her behalf. On July 11, 2013, Ms. Lott filed objections to the
magistrate’s decision along with an affidavit. On July 18, 2013, the trial court
adopted the magistrate’s decision and entered the bond forfeiture. On July 24, 2013,
the state filed a memorandum opposing Ms. Lott’s objections. Ms. Lott filed a
motion to strike the state’s memorandum, to vacate the judgment, and to consider
the previously filed objections. On August 13, 2013, the trial court denied Ms. Lott’s
objections without explanation. That same day, the trial court denied Ms. Lott’s
motions to strike and to vacate the judgment. The trial court stayed its judgment
pending this appeal.
Bond Forfeiture
{¶7} In her first assignment of error, Ms. Lott argues the trial court
erred in entering the bond-forfeiture judgment.
{¶8} Bail bonds are contracts between the surety and the state. See
State v. Scherer, 108 Ohio App.3d 586, 591, 671 N.E.2d 545 (2d Dist.1995). The
surety agrees to ensure the appearance of the defendant in court and the state agrees
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OHIO FIRST DISTRICT COURT OF APPEALS
to release the defendant into the surety’s custody. Id. If the defendant fails to
appear, there is a breach of the condition of bond and the court may declare a
forfeiture of the bond unless the surety can be exonerated as provided by law. See
State v. Hughes, 27 Ohio St.3d 19, 20, 501 N.E.2d 622 (1986); see also R.C. 2937.35.
{¶9} R.C. 2937.36 governs forfeiture proceedings, and provides that a
surety may be exonerated if good cause “by production of the body of the accused or
otherwise” is shown. See Hughes at 21, citing R.C. 2937.36(C); see also State v.
Berry, 12th Dist. Clermont No. CA2013-11-084, 2014-Ohio-2715, ¶ 10. A surety may
also be exonerated where performance of the conditions in the bond is rendered
impossible by an act of law. See Hughes at 21-22, citing Taylor v. Taintor, 83 U.S.
366, 21 L.Ed 287 (1872). However, the impossibility of performance must have been
unforeseeable at the time the surety entered into the contract. See Scherer at 592.
{¶10} Ms. Lott argues that performance of her surety obligation was
made legally impossible by Jymarcus’s incarceration in Indiana. She contends that
because Jymarcus did not flee the jurisdiction, but complied with his probation
officer’s request to report to her in Indiana, she should not be held liable for his
legally-required absence. She compares Jymarcus’s situation to that of the
defendant in State v. Scherer, 108 Ohio App.3d 586, 671 N.E.2d 545 (2d Dist.1995).
{¶11} We disagree. In Scherer, the Second District held that because the
trial court had ordered Scherer, who was already on probation in Kentucky, to
remain in Kentucky as a condition of his Ohio bond, his failure to appear in court
after he had been incarcerated in Kentucky for violating his probation “did not
proximately result from the negligence of the sureties in failing to prevent his leaving
Ohio.” Id. at 595. As a result, it suspended the sureties’ liability on the bond pending
Scherer’s release from imprisonment in Kentucky. Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Here, unlike in Scherer, the trial court did not permit, much less
require, Jymarcus to leave the jurisdiction. The recognizance bonds that Ms. Lott
had signed expressly provided that Jymarcus “shall not depart without leave, then
this Recognizance be void.” Moreover, Ms. Lott knew that Jymarcus was on
probation in Indiana at the time she posted the bonds. When Jymarcus reported by
phone to his probation officer, it was not unforeseeable that his probation officer,
upon learning of his Ohio criminal charges, would tell him to report in person to
Indiana.
{¶13} In leaving Ohio to report to his probation officer in Indiana without
seeking the trial court’s permission, Jymarcus violated one of the conditions of his
bond. By entering Indiana, he increased the risk of his nonappearance to answer for
his criminal charges in Ohio, the very purpose for which he was released on bail in
the first place. Thus, it was foreseeable that Jymarcus’s pending criminal charges in
Ohio would have violated the terms of his probation in Indiana, and that he would
have been arrested upon reporting to his probation officer in Indiana. As a result, we
cannot say the trial court erred in forfeiting the bonds. See State v. Sexton, 132 Ohio
App.3d 791, 794, 726 N.E.2d 55 (4th Dist.1999) (holding good cause did not exist to
excuse a surety’s failure to produce the defendant, who had violated a condition of
his bond by voluntarily leaving Ohio without permission, and was then subsequently
incarcerated in South Carolina). We, therefore, overrule Ms. Lott’s first assignment
of error.
Timeliness of the Bond-Forfeiture Hearing
{¶14} In her second assignment of error, Ms. Lott argues the trial court
erred by failing to adhere to the mandates of R.C. 2937.36 before holding the bond-
forfeiture hearing.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} R.C. 2937.36 governs the procedures for bond forfeitures. State v.
Holmes, 57 Ohio St.3d 11, 14, 564 N.E.2d 1066 (1991). R.C. 2936.37(C) requires the
court to notify the surety that the criminal defendant has failed to appear in court; the
bond has been forfeited; and a “show-cause” hearing will be held before the court on a
certain date and time. Id. This procedure gives the surety time to locate the defendant
prior to the “show-cause” hearing and, thus, to avoid a possible judgment. See id. at
syllabus.
{¶16} 2011 Am.Sub.H.B. 86 amended R.C. 2937.36 effective September 30,
2011. The amendment changed the notice time frames for recognizances by requiring
the magistrate or court to notify the criminal defendant and each surety within 15 days
of the forfeiture declaration and by extending the time between the mailing of the notice
and the show-cause hearing to 45 to 60 days. Under the prior version of the statute,
there was no deadline by which the court needed to notify the surety of the forfeiture
declaration and the show-cause hearing was required to be held within 20 to 30 days
from the date of the mailing of the notice. See State v. Lee, 9th Dist. Lorain No.
11CA010083, 2012-Ohio-4329, ¶ 9, fn.1; Dept. of Liquor v. Calvert, 195 Ohio App.3d
627, 2011-Ohio-4735, 961 N.E.2d 247, ¶ 15, fn. 2 and 3 (6th Dist.). Thus, R.C.
2937.36(C) now provides that within 15 days of the declaration of forfeiture, “the
magistrate or court shall notify the accused and each surety * * * of the default of the
accused and the adjudication of forfeiture and require each of them to show cause on or
before a date certain to be stated in the notice.” R.C. 2937.36(C) further provides that
the date must be “not less than forty-five or more than sixty days from the date of the
mailing of the notice.”
{¶17} Ms. Lott argues that the trial court erred in forfeiting the bond
because she was not given the requisite 45 to 60 days’ notice preceding the show-
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OHIO FIRST DISTRICT COURT OF APPEALS
cause hearing. Instead, she asserts that the notice that was sent to her referenced the
20-30 day period in the former version of the statute. She argues that the trial
court’s failure to abide by the statutory time frame was prejudicial to her because she
was only able to secure counsel after the bond-forfeiture hearing. She argues that
had the appropriate amount of time been given, she would have been able to secure
counsel to present her meritorious arguments for full consideration at the show-
cause hearing.
{¶18} As support for her argument, Ms. Lott relies upon State v. Ramey,
6th Dist. Lucas No. L-08-1040, 2008-Ohio-3275. But Ramey is distinguishable. In
Ramey, the trial court had scheduled a bond hearing and sent appropriate notice to
the surety. Id. at ¶ 3. The trial court then moved up the date for the hearing and
failed to send notice to the surety of the new hearing date. Id. at ¶ 4. In reversing the
trial court’s judgment forfeiting the bond, the Sixth Appellate District held that the
new hearing date not only violated the statutory notice period, but that the record
contained no attempt by the court to provide the surety notice of the new hearing
date. Id. at ¶ 15. As a result, the Sixth District held that the trial court had abused its
discretion by forfeiting the bond without giving the surety the opportunity to show
cause for the defendant’s nonappearance. Id.
{¶19} In City of Toledo v. Floyd, 185 Ohio App.3d 27, 2009-Ohio-5507,
923 N.E.2d 159 (6th Dist.), the surety, relying upon the Sixth District’s earlier
decision in Ramey, had argued that the trial court had erred in forfeiting the bond
where the surety had not been timely notified of the hearing pursuant to R.C.
2937.36. Id. at ¶ 6. The Sixth District acknowledged that the trial court had violated
the 20-day notice requirement in former R.C. 2937.36 by holding the show-cause
hearing 14 days after the notice had been mailed, but it nonetheless concluded that
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OHIO FIRST DISTRICT COURT OF APPEALS
the surety could not demonstrate any prejudice because the surety had appeared at
the show-cause hearing with the defendant. Id. at ¶ 9.
{¶20} Here, the record reflects that the notice served on Ms. Lott had been
filed on May 7, 2013, for a show-cause hearing before a magistrate on June 12, 2013.
Thus, Ms. Lott was only given 35 days to produce Jymarcus, instead of the statutorily
mandated 45 to 60 days. Ms. Lott, nonetheless, received the notice and filed a written
response on May 20, 2013. Her response demonstrated that on February 20, 2013, two
days prior to the arraignment, she had been fully aware that Jymarcus had been
incarcerated in Indiana for a probation violation. Moreover, Ms. Lott appeared at the
hearing on June 12, 2013, and informed the court that she was unable to produce
Jymarcus because of his incarceration in Indiana.
{¶21} Thus, at the time of the show-cause hearing, the record reflects that
Ms. Lott was fully aware of the situation regarding her son. Giving her additional time
before the hearing would not have produced a different result. She did not need
additional time to locate Jymarcus or to bring him back into the custody of Hamilton
County. Moreover, Ms. Lott was not entitled to counsel at the show-cause hearing, and
nothing in the record indicates that the trial court would have had decided the forfeiture
matter differently had counsel represented Ms. Lott before the magistrate. Thus, Ms.
Lott has not demonstrated any prejudice from the trial court’s technical failure to
comply with R.C. 2937.36. See id.; see also Calvert, 195 Ohio App.3d 627, 2011-Ohio-
4735, 961 N.E.2d 247, at ¶ 26-29. As a result, we overrule her second assignment of
error and affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J, HILDEBRANDT and HENDON, JJ.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry this date.
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