J-S68035-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BRIAN EDWARD KARL :
:
:
APPEAL OF: ACE BAIL BONDS, LLC, :
:
Appellant : No. 669 EDA 2014
Appeal from the Order entered on January 28, 2014
in the Court of Common Pleas of Pike County,
Criminal Division, No. CP-52-CR-0000145-2005
BEFORE: ALLEN, JENKINS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 09, 2014
Ace Bail Bonds, LLC (hereinafter “Ace”), appeals from the Order
denying the “Motion to Vacate Forfeiture and Exonerate Bond” (hereinafter
“Motion to Vacate Forfeiture”), in this bail bond forfeiture dispute concerning
a bond that Ace’s predecessor-in-interest had paid on behalf of the
defendant involved in the underlying criminal case, Brian Edward Karl
(“Karl”). We affirm.
The trial court concisely set forth the relevant factual and procedural
history underlying this appeal as follows:
On March 20, 2013, the Commonwealth filed a Petition for
Forfeiture of Bail. The Petition alleged that John Butler of the
Bail Store, Inc., [Ace’s predecessor-in-interest,] posted a bail
bond for [Karl’s] $5,000.00 bail in April of 2005 at the time of
[Karl’s] Preliminary Hearing. [Karl] entered a plea [of] guilty to
the charges of Forgery, Fleeing or Attempting to Elude a Police
Officer and Driver Required to be Licensed[,] in September of
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2005. [Karl] then subsequently failed to appear at his
sentencing hearing on December 1, 2005[,] and th[e trial c]ourt
issued a bench warrant for his arrest. The bench warrant
remained outstanding from December of 2005 until September
of 2013. On March 21, 2013, as a result of [Karl’s] failure to
appear, th[e trial c]ourt found [that he] had violated the
conditions of his bail bond[] and forfeited the entire $5,000.00.
On August 5, 2013, an authorized bail piece was signed by th[e
trial c]ourt removing Ace [], which had replaced the Bail Store,
Inc.[,] as the surety for [Karl].
The bench warrant was vacated on September 17, 2013,
after [Karl] was recaptured and surrendered to the Pike County
Correctional Facility. This appeal stems from the Motion to
Vacate [Forfeiture] … filed on October 4, 2013 by a third-party
[hired by Ace], Financial Casualty, alleging that Financial
Casualty had located [Karl] in Florida prior to his apprehension
and surrender to the Pike County Correctional Facility on
September 14, 2013. A body receipt with date of surrender
signed by an intake officer was attached to the Motion as an
exhibit. After a hearing [(hereinafter “the hearing”)] in which
the Commonwealth opposed the Motion [to Vacate Forfeiture,
the trial c]ourt denied [the] Motion …. [Ace], agent for the
surety []Financial Casualty[,] filed a timely appeal of that Order.
Trial Court Opinion, 4/15/14, at 1-2.
On appeal, Ace presents the following questions for our review:
A. Did the trial court abuse its discretion by not conducting a
hearing in which all of the factors bearing on forfeiture and
remission of bail identified [by the Pennsylvania Supreme
Court] in [Commonwealth v.] Hann[, 81 A.3d 57 (Pa.
2013),] were considered?
B. Did the trial court abuse its discretion by not applying all of
the Hann factors[1] to the facts and circumstances of this
case[,] and by failing to interpret Pa. Rule of Criminal
Procedure 536[,] as described in Hann, resulting in an
improper analysis and improper application of Hann to this
case?
1
We discuss these factors in our analysis below.
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Brief for Appellant at 2 (footnote added). We will address Ace’s issues
simultaneously, as they are related.
Our standard of review in cases involving remittance of bail forfeiture
is well established:
The decision to allow or deny a remittance of bail forfeiture
lies within the sound discretion of the trial court. Accordingly, an
appellate court’s review is limited to a determination of whether
the court abused its discretion in refusing to vacate the
underlying forfeiture order. To establish such an abuse, the
aggrieved party must show that the court misapplied the law,
exercised manifestly unreasonable judgment, or acted on the
basis of bias, partiality, or ill-will to that party’s detriment.
Commonwealth v. Gaines, 74 A.3d 1047, 1050 (Pa. Super. 2013) (citation
omitted).
Regarding forfeiture of a bail bond, this Court has explained that
[u]pon a defendant’s violation of any bail condition, under
Pennsylvania law[,] the bail may be subject to forfeiture.
Pa.R.Crim.P. 536. After forfeiture, the money deposited to
secure the defendant’s appearance or compliance with the
conditions of the bail bond technically becomes the property of
the county. Pa.R.Crim.P. 536(A)(2)(e). However, the bail bond
remains subject to exoneration, set-aside, or remittance by the
court. See Pa.R.Crim.P. 536(C). A forfeiture, once declared by
the court, may be set aside or remitted as justice requires.
Pa.R.Crim.P. 536(A)(2)(d). Equitable principles apply when a
court is faced with the decision whether to modify or remit a
forfeiture.
Gaines, 74 A.3d at 1050-51 (some citations omitted).
In Hann, supra, our Supreme Court stated that, when considering
whether or not justice requires the enforcement of a forfeiture order under
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Rule 536(A)(2)(d), a court should consider several factors, including the
following:
(1) whether the applicant is a commercial bondsman; (2) the
extent of the bondsman’s supervision of the defendant; (3)
whether the defendant’s breach of the recognizance of bail
conditions was willful; (4) any explanation or mitigating factors
presented by the defendant; (5) the deterrence value of
forfeiture; (6) the seriousness of the condition violated; (7)
whether forfeiture will vindicate the injury to public interest
suffered as a result of the breach; (8) the appropriateness of the
amount of the recognizance of bail; and (9) the cost,
inconvenience, prejudice or potential prejudice suffered by the
[Commonwealth] as a result of the breach. That list is not
exhaustive, and trial courts may consider other factors as
interests of justice require.
Hann, 81 A.3d at 67-68 (citation omitted).
Here, Ace argues that the trial court abused its discretion by (1)
denying Ace’s request that the forfeiture of the $5,000 bond be remitted;
and (2) determining that the interests of justice require forfeiture of the
bond. See Brief for Appellant at 4. According to Ace, the trial court
committed reversible error by failing to (1) adequately consider all of the
abovementioned factors set forth in Hann; and (2) adduce sufficient
testimonial or documentary evidence at the hearing to enable the court to
give full consideration to these factors. Id. at 4-11. Specifically, Ace
asserts as follows:
At the time the oral argument took place [at the hearing], Hann
had already been decided and announced. However, very little,
if any[,] testimonial or documentary evidence was offered by
either party [that] was relevant to the Hann factors. The [trial
c]ourt’s [January 28, 2014 Order and Opinion denying the
Motion to Vacate Forfeiture] was rendered approximately three
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months after the Hann decision …. The [trial] court decision
acknowledges Hann and recites the factors, but does not
consider each one in a methodical fashion.
Id. at 6. Ace asserts that the “heart of its case” is that neither Ace nor its
predecessor-in-interest was aware that Karl had absconded until early 2013,
and Ace (acting through Financial Casualty) immediately pursued and
located Karl upon learning that he had absconded. Id. at 8. Ace further
argues that “[b]ecause there is no evidence that the Commonwealth did
anything (other than ask[] for a bench warrant) to capture or retain [Karl],
and spent no money in doing so, the [trial court’s] finding that $5,000 is
adequate compensation to the Commonwealth is nothing more than
arbitrary.” Id. at 11. Accordingly, Ace requests that this Court vacate the
Order denying the Motion to Vacate Forfeiture and remand the matter to the
trial court for it to conduct a hearing in full compliance with Hann. Id. at
12.
In its Pa.R.A.P. 1925(a) Opinion, the trial court rejected Ace’s claims,
reasoning as follows:
First, although [Ace] alleges [that the trial c]ourt did not
properly consider the factors in Hann because only an oral
argument was held, the claim lacks merit. First, [the] hearing
was held regarding the issue and a representative from [Ace’s]
company testified. Following his testimony[,] the District
Attorney cross-examined the representative and then proceeded
to make a final oral argument on the issue. Thus, a full hearing
plus argument was held on the matter.
Additionally, based upon the rationale contained in
Hann[,] the previous Order issued by th[e trial c]ourt granting
forfeiture was not in error. The original bond was posted by
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[Karl] in April of 2005. [Karl] then willfully failed to appear at
his sentencing hearing on December 1, 2005[,] and had a bench
warrant issued for his arrest. No evidence was presented of
mitigating factors[,] nor was an explanation provided by [Karl
that] would have excused his conduct. [Karl] then remained
free and out of custody for seven years and three months before
the Commonwealth motioned to forfeit bail.
Further, as indicated during the hearing[, Ace] did little in
terms of supervision after [Karl] was released on bond. Nothing
was presented at the hearing or filed with th[e trial c]ourt that
provided any indication that [Ace or its predecessor] sought or
retained [Karl] in any way[, until 2013, when Ace, acting
through its agent, Financial Casualty, searched for Karl and
found him living in Florida]. The only explanation provided by
[Ace] at the hearing was that, due to issues with the company’s
internal records[, Ace] was unaware that [Karl] was still at
large.[2]
Furthermore, there is a deterrence factor in allowing all or
partial forfeiture so that both defendants and the bail bondsmen
are aware of the conditions of bail and the necessity to follow all
such conditions. While the violation in this matter was not
“serious” to the same extent as the violation in Hann, it was not
simply a minor violation[,] since [Karl] continued to evade the
law for seven years.
Additionally, th[e trial c]ourt’s decision to forfeit bail
vindicated the injury to the public interest suffered in this
matter. When a defendant on bail continues to avoid the
punishment of a crime[,] such behavior jeopardizes the propriety
of bail as well as its availability in the future.
Finally, [Karl] was still evading the law when th[e trial
c]ourt granted the Motion[,] and the Commonwealth was still
unsure if [Karl] might ever be found. While such fact did not
completely prejudice the disposition of the case[,] since [Karl]
had already pled guilty[,] th[e trial c]ourt did not find such factor
to be dispositive. The Commonwealth had already spent time
2
Ace asserts in its brief that “[i]n early 2013, … Ace [] was notified by its
auditors and regulators that [Karl’s b]ail constituted an outstanding liability.
This was the first time that anyone with [Ace or its predecessor] was made
aware that [] Karl was unaccounted for.” Brief for Appellant at 3.
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and energy to recapture [Karl], including seeking a bench
warrant for his arrest. Of great significance considered by th[e
trial c]ourt was the inconvenience suffered by the
Commonwealth for over seven years of being unable to
apprehend and sentence an admitted criminal.
Trial Court Opinion, 4/15/14, at 4-5 (footnote added). Our review confirms
that the trial court’s sound rationale is supported by the record and the law,
and we discern no abuse of discretion in this regard. See id.
Moreover, we disagree with Ace that the trial court committed
reversible error by failing to specifically address each one of the Hann
factors set forth above “in a methodical fashion.” See Brief for Appellant at
6. Initially, the trial court did, in fact, set forth all of the Hann factors in its
Order denying the Motion to Vacate Forfeiture. See Order, 1/28/14, at 3-4.
Additionally, the trial court discussed many of the relevant Hann factors in
its Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, 4/15/14, at 4-5.
Nowhere in Hann does the Supreme Court require trial courts to discuss, in
detail, each of the enumerated factors. Indeed, the Hann Court emphasized
that the factors were only some potentially relevant considerations, and that
“forfeiture decisions should be based upon an examination of the totality of
the circumstances presented in the individual case, and no one point or
factor should be talismanic in making that determination.” Hann, 81 A.3d
at 67; see also id. at 68 (reiterating that “courts should look to these as
well as other factors as justice dictates on a case-by-case basis,
understanding that the parameters of each will be applied differently to each
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individual forfeiture proceeding.”). Finally, to the extent that Ace argues
that the trial court failed to offer any analysis on some of the Hann factors
(such as (a) whether the applicant is a commercial bondsman; (b) whether
Karl’s absconding was willful; and (c) the deterrence value of forfeiture of
the bond), we determine that these factors did not necessitate a detailed
discussion by the trial court, since the record regarding these matters was
clear.
Based upon the foregoing, we conclude that the trial court properly
exercised its discretion in denying the Motion to Vacate Forfeiture, and
discern no error by the court in its consideration of the Hann factors.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2014
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