[Cite as State v. Hawrylak, 2016-Ohio-250.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-15-24
v.
MICHAEL A. HAWRYLAK,
DEFENDANT-APPELLEE. OPINION
[SURETY CORPORATION OF
AMERICA, ET AL. - APPELLANTS]
Appeal from Hancock County Common Pleas Court
Trial Court No. 2013CR135
Judgment Affirmed
Date of Decision: January 25, 2016
APPEARANCES:
Eric J. Hoffman for Appellant, Chuck Brown II Bail Bonds
Elizabeth H. Smith for Appellee
Case No. 5-15-24
ROGERS, J.
{¶1} Appellants, Surety Corporation of America (“Surety Corporation”)
and Chuck Brown II Bail Bonds (“Brown Bail Bonds”), appeal the judgment of
the Court of Common Pleas of Hancock County denying Brown Bail Bonds’s
motion to intervene and forfeiting Defendant, Michael Hawrylak’s bond. On
appeal, Brown Bail Bonds argues that the trial court erred by (1) denying its
motion to intervene; and (2) forfeiting Hawrylak’s bond. For the reasons that
follow, we affirm the judgment of the trial court.
{¶2} On June 25, 2013, the Hancock County Grand Jury indicted Hawrylak
on one count of trafficking in cocaine in violation of R.C. 2925.03(A), a felony of
the fifth degree; one count of possession of heroin in violation of R.C. 2925.11(A),
a felony of the second degree; one count of possession of cocaine in violation of
R.C. 2925.11(A), a felony of the third degree; and one count of possession of
marihuana in violation of R.C. 2925.11(A), a felony of the fifth degree.
{¶3} On July 3, 2013, Hawrylak was arraigned, and the trial court set bond
at $45,000 cash or surety.
{¶4} On July 5, 2013, U.S. Specialty Insurance Company (“U.S.
Specialty”) posted a surety bond with the Hancock County Clerk of Courts. The
“Recognizance of Accused” filed with the Clerk of Courts named U.S. Specialty
as the bond’s surety. The attached “Power of Attorney” named Surety
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Corporation as U.S. Specialty’s agent and Martin Pope as U.S. Specialty’s
attorney-in-fact. After U.S. Specialty posted Hawrylak’s bond, Hawrylak was
released.
{¶5} On January 17, 2014, after Hawrylak failed to report as ordered to the
probation department, the trial court issued a bench warrant for Hawrylak’s arrest.
Thereafter, Hawrylak failed to appear at all scheduled court proceedings.
{¶6} By entry dated February 3, 2014, the trial court ordered Hawrylak’s
bond forfeited. The next day, the State filed a motion to show cause as to why
judgment should not be entered against the bond’s surety, and a hearing was set
for March 20, 2014. Notice of the foregoing was sent via certified mail to Pope.
{¶7} On March 20, 2014, Pope was granted a 15 day continuance in order
to locate Hawrylak. However, by late April 2015, Hawrylak’s whereabouts were
still unknown.
{¶8} On July 29, 2014, the State filed another motion to show cause as to
why judgment should not be entered against the bond’s surety, and a hearing was
set for September 18, 2014. Notice of the foregoing was sent via certified mail to
Pope, Surety Corporation, and U.S. Specialty.
{¶9} On July 30, 2014, Hawrylak was arrested in Franklin County on
multiple outstanding warrants. The Franklin County trial court set bond and
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ordered that Hawrylak report to Hancock County within five days. Hawrylak
posted bond in Franklin County but never reported to Hancock County.1
{¶10} On September 5, 2014, Surety Corporation filed a motion to set aside
the forfeiture arguing that it did not receive notice within the time limits
prescribed under R.C. 2937.26(C). By entry dated September 18, 2014, the trial
court granted Surety Corporation’s motion, and the previously ordered forfeiture
was set aside.
{¶11} A few months later, the State again requested that Hawrylak’s bond
be forfeited, and a forfeiture hearing was set for February 26, 2015. Notice of the
foregoing was sent via certified mail to Hawrylak, Pope, Surety Corporation, and
U.S. Specialty.
{¶12} In response, Surety Corporation filed a motion to dismiss, arguing
that the trial court’s September 18, 2014 entry released it from liability on
Hawrylak’s bond. In the alternative, Surety Corporation requested a continuance
due to a scheduling conflict. The following day, U.S. Specialty filed an identical
motion.2 The forfeiture hearing was rescheduled for March 26, 2015.
1
At oral argument, the State indicated that Hawrylak has not yet been apprehended.
2
Eric Hoffman represented both U.S. Specialty and Surety Corporation during the proceedings below.
Although not evidenced by the record, Hoffman also claims to have represented Chuck Brown and Pope.
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{¶13} On March 25, 2015, Steven Powell filed a notice of appearance of
co-counsel on behalf of Brown Bail Bonds.3
{¶14} After Hawrylak failed to appear at the March 26, 2015 hearing, the
trial court declared Hawrylak’s bond forfeited. Thereafter, the State filed a motion
to show cause as to why judgment should not be entered against the bond’s surety,
and a hearing was set for May 28, 2015. Notice of the foregoing was sent via
certified mail to Pope, Surety Corporation, Hoffman, and U.S Specialty.
{¶15} On May 28, 2015, Brown Bail Bonds filed a motion to intervene
claiming that it had an interest in the pending proceedings. Specifically, Brown
Bail Bonds averred that U.S. Specialty and Surety Corporation were the
underwriters of Hawrylak’s bond with Brown Bail Bonds acting as a direct agent
for Pope.
{¶16} That same day, a hearing was held concerning the State’s motion to
show cause and Brown Bail Bonds’s motion to intervene. No testimony was
presented, but Brown Bail Bonds offered into evidence a “Bail Bond Agent
Contract” between U.S. Specialty, Surety Corporation, Brown Bail Bonds, and
Pope. The contract identified Pope as an “agent” of U.S. Specialty and Surety
Corporation and Charles C. Brown II as a “supervisory agent” of U.S. Specialty
and Surety Corporation.
3
Despite the styling of Powell’s notice of appearance, Powell was the only counsel of record for Brown
Bail Bonds.
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{¶17} In response, the State argued that Brown Bail Bonds was not listed as
a surety in the documents filed with the Clerk of Courts and therefore should not
be allowed to intervene. The trial court agreed, noting that the bond’s “paper trail”
lacked any reference to Brown Bail Bonds. Aug. 17, 2015 Hrg., p. 9.
{¶18} By entry dated June 11, 2015, the trial court denied Brown Bail
Bonds’s motion and ordered immediate payment of Hawrylak’s bond.
{¶19} It is from this judgment that Surety Corporation and Brown Bail
Bonds appeal, with Brown Bail Bonds presenting the following assignments of
error for our review.
Assignment of Error No. I
THE TRIAL COURT ABUSED IT [SIC] DISCRETION WHEN
IT OVERRULED APPELLANT’S MOTION TO INTERVENE
AS A PARTY BECAUSE APPELLANT WAS THE
SUPERVISING AGENT FOR SURETY CORPORATION OF
AMERICA, U.S. SPECIALTY INSURANCE COMPANY AND
MARTIN POPE.
Assignment of Error No. II
THE TRIAL COURT ERRED IN ITS ISSUANCE OF
JUDGMENT FORFEITING THE SURETY BOND FOR THE
REASON THAT ON SEPTEMBER 18, 2014, THE COURT
HAD ISSUED AN ENTRY SETTING ASIDE THE BOND
FORFEITURE BECAUSE THE DEFENDANT HAD BEEN
ARRESTED AND TAKEN INTO CUSTODY IN FRANKLIN
COUNTY, OHIO AND THUS WAS AVAILABLE TO THE
COURT.
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Assignment of Error No. III
THE COURT ERRED IN ISSUING JUDGMNET OF
FORFEITURE OF THE BOND FOR THE REASON THAT
THE HANCOCK COUNTY CLERK OF COURTS FAILED
TO COMPLY WITH THE NOTICE REQUIREMENT
PROVISIONS OF THE OHIO REVISED CODE 2937.36.
Assignment of Error No. IV
THE TRIAL COURT ERRED IN ISSUING JUDGMENT OF
FORFEITURE OF THE BOND FOR THE REASON THAT
THE SURETY HAD A STATUTROY DEFENSE UNDER
2937.40.
{¶20} Before we address Brown Bail Bonds’s assignments of error, we note
that Surety Corporation also filed a notice of appeal in this case. However, despite
filing its notice of appeal, Surety Corporation failed to file its brief. App.R. 18(C)
provides that “[i]f an appellant fails to file the appellant’s brief within the time
provided by this rule, or within the time as extended, the court may dismiss the
appeal.” Accordingly, Surety Corporation’s appeal is dismissed.
Assignment of Error No. I
{¶21} In its first assignment of error, Brown Bail Bonds argues that the trial
court abused its discretion by denying its motion to intervene. Specifically, Brown
Bail Bonds argues that the evidence established that it had an interest in the
forfeiture proceedings that would be adversely affected absent intervention. We
disagree.
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{¶22} In reviewing a trial court’s denial of a motion to intervene, the proper
standard of review is whether the trial court’s action constituted an abuse of
discretion. Indiana Ins. Co. v. Murphy, 165 Ohio App.3d 812, 2006-Ohio-1264, ¶
4 (3d Dist.). A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18
(2d Dist.). When applying the abuse of discretion standard, a reviewing court may
not simply substitute its judgment for that of the trial court. State v. Slappey, 3d
Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12.
{¶23} This case concerns whether an entity can intervene in a criminal
forfeiture proceeding. Although this case is criminal in nature, there is no criminal
rule governing intervention. “If no procedure is specifically prescribed by rule,
the court may proceed in any lawful manner not inconsistent with the rules of
criminal procedure, and shall look to the rules of civil procedure and to the
applicable law if no rule of criminal procedure exists.” Crim.R. 57(B); State v.
Dillon, 3d Dist. Hancock No. 5-06-50, 2007-Ohio-4934, ¶ 18. In other words,
while the Ohio Rules of Civil Procedure generally do not apply in criminal
matters, they may apply where there is no criminal rule on point. Dillion at ¶ 18;
State v. Belknap, 11th Dist. Portage No. 2002-P-0021, 2004-Ohio-5636, ¶ 25.
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{¶24} Civ.R. 24(A) addresses when a party can intervene in a civil case. It
provides, in relevant part:
Intervention of right. Upon timely application anyone shall be
permitted to intervene in an action: (1) when a statute of this state
confers an unconditional right to intervene; or (2) when the applicant
claims an interest relating to the property or transaction that is the
subject of the action and the applicant is so situated that the
disposition of the action may as a practical matter impair or impede
the applicant’s ability to protect that interest, unless the applicant’s
interest is adequately represented by existing parties.
{¶25} Civ.R. 24(A) establishes four elements that must be met before a
party may intervene: (1) the intervenor must claim an interest relating to the
property or transaction that is the subject of the action; (2) the intervenor must be
so situated that the disposition of the action may, as a practical matter, impair or
impede the intervenor's ability to protect his or her interest; (3) the intervenor must
demonstrate that his or her interest is not adequately represented by the existing
parties; and (4) the motion to intervene must be timely. Fairview Gen. Hosp. v.
Fletcher, 69 Ohio App.3d 827, 830-831 (10th Dist.1990); Henderson v. Luhring,
5th Dist. Ashland No. 02-COA-017, 2002-Ohio-4208, ¶ 15; State v. Schulte, 154
Ohio App.3d 367, 2003-Ohio-3826, ¶ 6 (1st Dist.). The intervenor bears the
burden of proving each element, and the failure to meet any one of the elements
will result in a denial of the motion. Deutsche Bank Natl. Trust Co. v. Hill, 5th
Dist. Perry No. 14 CA 00021, 2015-Ohio-1575, ¶ 25; St. Sylvester Church v.
Haren-Williams, 7th Dist. Monroe No. 842, 2001 WL 674197, *1 (June 18, 2001).
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{¶26} Here, the only evidence before the trial court was (1) the
“Recognizance of Accused” and “Power of Attorney” filed with the Clerk of
Courts naming U.S. Specialty as the bond’s surety, Surety Corporation as its
agent, and Pope as its attorney-in-fact; and (2) the “Bail Bond Agent Contract”
establishing that an agency relationship existed between U.S. Specialty, Surety
Corporation, Pope, and Charles C. Brown II. No testimony was presented.
{¶27} Even if we assume, arguendo, that the “Bail Bond Agent Contract”
was sufficient to establish Brown Bail Bonds’s interest in the bond, there was no
evidence presented that (1) entering a judgment against U.S. Specialty, Surety
Corporation, and/or Pope would impair or impede Brown Bail Bonds’s ability to
protect its interest or (2) that Brown Bail Bonds’s interest was not adequately
represented by U.S. Specialty, Surety Corporation and/or Pope. At the hearing,
Brown Bail Bonds’s counsel simply stated that Brown Bail Bonds was “going to
be on the hook for this.” Aug. 17, 2015 Hrg., p. 7.
{¶28} Ultimately, Brown Bail Bonds bore the burden of establishing that
(1) it had an interest in the bond; (2) entering judgment against the bond’s sureties
would impair or impede its ability to protect that interest; (3) its interest was not
adequately represented by the existing parties; and (4) its motion was timely. At
most, Brown Bail Bonds established that it had an interest in Hawrylak’s bond,
and this alone is insufficient to establish a right to intervene.
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{¶29} Based on the foregoing, we find that the trial court did not abuse its
discretion in denying Brown Bail Bonds’s motion to intervene. Accordingly, we
overrule Brown Bail Bonds’s first assignment of error.
Assignments of Error Nos. II, III, & IV
{¶30} In its second, third, and fourth assignments of error, Brown Bail
Bonds argues that the trial court erred in forfeiting Hawrylak’s bond. Having
found that the trial court did not err in denying Brown Bail Bonds’s motion to
intervene, it follows that Brown Bail Bonds is not a party to the underlying action
and, therefore, Brown Bail Bonds lacks standing to raise these alleged errors. See,
e.g., White v. Continental Express, Inc., 3d Dist. Shelby No. 17-04-04, 2004-Ohio-
5092, ¶ 5. Accordingly, we overrule Brown Bail Bonds’s second, third, and fourth
assignments of error.
{¶31} Having found no error prejudicial to Brown Bail Bonds, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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