[Cite as State v. Faccio, 2019-Ohio-4942.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, J.
-vs- :
:
LUIS FACCIO, JR., : Case No. 2019 CA 0017
:
Defendant. :
:
and :
:
A 1 BONDS, LLC, :
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2017CR0703
JUDGMENT: Affirmed
DATE OF JUDGMENT: December 2, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP MICHAEL J. KINLIN
Prosecuting Attorney 124 Middle Ave., Suite 900
Richland County Elyria, Ohio 44035
By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0017 2
Baldwin, J.
{¶1} Appellant A1 Bonds, LLC appeals from the January 24, 2019 and February
15, 2019 Judgment Entries of the Richland County Court of Common Pleas.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 13, 2017, defendant Luis N. Faccio, Jr. (hereinafter
“defendant’) was indicted on three counts of felonious assault in violation of R.C.
2903.11(A)(1), felonies of the second degree, three counts of aggravated assault in
violation of R.C. 2903.12(A)(1), felonies of the fourth degree, and one count of domestic
violence in violation of R.C. 2919.25(B), a misdemeanor of the first degree. At his
arraignment on November 21, 2017, defendant entered a plea of not guilty to the charges.
A hearing on his motion for a bond hearing was held before a Magistrate on November
29, 2017 and December 4, 2017. The Magistrate, in a Decision filed on December 8,
2017, recommended that defendant’s bond, which had been set in the sum of
$100,000.00 cash and personal recognizance, be returned1 to the sum of $30,000.00
cash plus personal recognizance. The trial court, on December 27, 2017, adopted the
Magistrate’s Decision as the order of the court.
{¶3} Thereafter, on December 27, 2017, appellant posted bond for defendant in
the amount of $30,000.00 and defendant was released from jail. After defendant failed
to appear at his final pretrial on March 21, 2018, his bond was revoked and a warrant was
issued for his arrest.
{¶4} On April 6, 2018, appellee State of Ohio filed a motion seeking forfeiture of
defendant’s bond. The trial court, via a Judgment Entry filed on April 17, 2018, ordered
1 Appellant had posted a $30,000.00 surety bond in the Mansfield Municipal Court.
Richland County, Case No. 2019 CA 0017 3
that defendant’s bond was forfeited in court on April 16, 2018 after defendant failed to
appear for his April 2, 2018 jury trial or “otherwise failed to comply with the conditions of
defendant’s $30,000 surety and PR.” An oral evidentiary hearing on the bond forfeiture
was held on June 11, 2018 before a Magistrate. At the hearing, appellant requested
additional time to locate defendant.
{¶5} The Magistrate, in a Decision, filed on June 14, 2018, recommended that
judgment be entered against appellant in the amount of $30,000.00. The Magistrate, in
his Decision, found, in relevant part, as follows:
{¶6} 5. Pursuant to R.C. 2937.36(C) surety, A-1 Bonding was notified that
judgment would be entered against the bonding agency unless it produced the body of
defendant… at the 6-11-18 hearing.
{¶7} 6. Surety A-1 Bonding failed to produce Mr. Faccio at that hearing and he
is still at large.
{¶8} 7. The bonding company requested a 90 day stay/continuance in order to
locate Mr. Faccio Jr. but admitted it had no new active leads or addresses for him. Two
to three weeks ago, defendant Faccio escaped from 2 bounty hunters and five to six
police officers in Solon, Ohio. The bonding company believes he is selling drugs in
Cleveland from “word on the street.” The bonding company believes that Mr. Faccio’s
plan is to go to Puerto Rico which is the home of his girlfriend’s mother.
{¶9} 8. The U.S. Marshall’s Task Forced (SIC) for the Northern District of Ohio
went to an extended stay motel/hotel in March 20187 (SIC) and did not find Mr. Faccio
there and his room had been cleaned out. The task force has advertised Mr. Faccio as
a “Most Wanted” three times since March.
Richland County, Case No. 2019 CA 0017 4
{¶10} On June 22, 2018, appellant filed objections to the Magistrate’s Decision,
asking for additional time to locate defendant. Appellant did not object to the Magistrate’s
findings of fact and conclusions of law. Appellant, in its objections, noted that defendant
had been apprehended on June 17, 2018 and was in the Richland County Jail on June
21, 2018, “where he currently resides pending Court action.” Appellee filed a
memorandum in response to the objection, noting that “[a]t the hearing the facts showed
that [appellant] has no leads for how to locate Defendant.”
{¶11} Pursuant to a Judgment Entry filed on July 17, 2018, the trial court modified
and adopted the Magistrate’s June 14, 2018 decision. The trial court stated, in its
Judgment Entry, in relevant part, as follows:
The Court finds that justice does not require the total amount of the
thirty thousand dollars ($30,000.00) bond remain forfeited. The Court finds
that the forfeiture of 50% of the bond, or fifteen thousand dollars
($15,000.00) bears a reasonable relation to the costs and inconvenience
incurred in gaining custody of Defendant Faccio and again preparing for the
rescheduled final pretrial hearing and jury trial.
{¶12} The trial court remitted 50% of the forfeited bond, or $15,000.00, and
ordered that appellant pay to the Richland County Clerk of Court the 50% forfeited portion
of the bond, or $15,000.00.
{¶13} Defendant, on August 14, 2018, pleaded guilty to all of the counts. He was
sentenced on October 10, 2018.
{¶14} On October 23, 2018, appellee filed a Motion for Contempt against
appellant due to appellant’s failure to pay the $15,000.00 as ordered. In response,
Richland County, Case No. 2019 CA 0017 5
appellant filed a request for an itemization of all of the costs associated with the
apprehension and delay of the prosecution of defendant. Appellee filed a memorandum
in response and appellant filed a response. A contempt hearing was scheduled for
January 17, 2019.
{¶15} Appellant, on December 18, 2018, filed a Motion for Reconsideration of the
trial court’s decision to order only $15,000.00 to be remitted to the surety and appellee
filed a memorandum in response to such motion. The contempt hearing was held on
January 17, 2019.
{¶16} As memorialized in a Judgment Entry filed on January 24, 2019, the trial
court overruled the request for itemization of costs and the motion for reconsideration and
found appellant to be in indirect civil contempt of the trial court’s July 17, 2018 order. The
trial court ordered that Michael Jackson and Anthony Horn. Sr., as appellant’s officers,
each serve twenty-five (25) days in jail and that each pay a fine in the amount of $200.00.
The trial court gave appellant until February 8, 2019 to purge the contempt by depositing
$15,000.00 with the Richland County Clerk of Courts.
{¶17} Pursuant to a Judgment Entry filed on February 15, 2019, the trial court
overruled appellant’s motion requesting a stay of the judgment.
{¶18} Appellant now appeals, raising the following assignments of error on
appeal:
{¶19} “I. THE TRIAL COURT ERRED IN HOLDING THE SURETY IN
CONTEMPT WHEN THE TRIAL COURT DID NOT PROPERLY CONSIDER ALL OF
THE FACTORS IN DETERMINING THE AMOUNT OF THE BOND TO REMIT.”
Richland County, Case No. 2019 CA 0017 6
{¶20} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THE
SURETY IN CONTEMPT FOR FAILING TO PAY THE $15,000.00 BOND FORFEITURE
WHEN THE DEFENDANT WAS IN CUSTODY BEFORE THE BOND FORFEITURE
WENT INTO EFFECT.”
{¶21} “III. THE TRIAL COURT ERRED IN REFUSING TO GRANT THE
SURETY’S REQUEST FOR ITEMIZATION OF COSTS ASSOCIATED WITH THE
APPREHENSION AND DELAY OF THE PROSECUTION OF THE DEFENDANT.”
{¶22} However, we find that it is unnecessary to address the merits of appellant’s
arguments because appellant did not appeal from the trial court’s July 17, 2018 Judgment
Entry and this Court is without jurisdiction to consider appellant’s appeal now. The July
17, 2018 Judgment Entry was not timely appealed and has become final. The Order that
is the subject of the present appeal concerns appellant’s compliance with the July 17,
2018 Order. Appellant may not challenge the substance of the July 17, 2018 Order by
appealing the subsequent compliance Order. See Lundy v. Lundy, 11th Dist. Trumbull
No.2012–T–0100, 2013–Ohio–3571, ¶ 34 (“when considering an appeal from a trial
court's finding of contempt, the appellant cannot raise as a defense challenges to the
merits of the underlying order from which the appellant did not directly appeal”). See also
Bruce v. Bruce, 3rd Dist. Logan No. 8–82–3, 1982 WL 6849, *2 (Aug. 11, 1982) (since
the appellant failed to appeal from the decree in which the order leading to the contempt
was made, the order “remained a subsisting enforceable order which the trial court had
no right to review or reverse when the issue of validity was raised merely in defense of
the contempt motion ”).
Richland County, Case No. 2019 CA 0017 7
{¶23} Appellant now challenges the trial court’s order that appellant pay to the
Richland County Clerk of Court the 50% forfeited portion of the bond, or $15,000.00.
Appellant had an opportunity to litigate the claims it sets forth in the instant appeal via a
timely direct appeal from the trial court’s July 17, 2018 Judgment Entry. Appellant,
however, did not do so and appellant’s arguments are, therefore, barred under the
doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).
The Perry court explained the doctrine as follows: “Under the doctrine of res judicata, a
final judgment of conviction bars the convicted defendant from raising and litigating in any
proceeding, except an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial which
resulted in that judgment of conviction or on an appeal from that judgment.” Id.
{¶24} Appellant's arguments could have been raised on direct appeal from the
trial court's July 17, 2018 Judgment Entry, and res judicata applies even though appellant
never pursued a direct appeal from such order. Appellant cannot use the trial court’s
January 24, 2019 Judgment Entry finding appellant in contempt to now attack that trial
court’s July 17, 2018 Judgment Entry.
{¶25} Appellant’s assignments of error are, therefore, overruled.
Richland County, Case No. 2019 CA 0017 8
{¶26} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, Earle, J. concur.