State v. Alliance ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Plaintiff/Appellee,
v.
ALLIANCE BAIL BONDS, Intervenor/Appellant.
No. 1 CA-CV 17-0564
FILED 6-12-2018
Appeal from the Superior Court in Maricopa County
No. CR2016-001615-004
The Honorable Thomas A. Kaipio, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Kimberly Felcyn
Counsel for Plaintiff/Appellee
DuMond Law PLLC, Phoenix
By Samantha Kelli DuMond
Counsel for Intervenor/Appellant
STATE v. ALLIANCE
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Alliance Bail Bonds (“Alliance”) appeals a superior court
order forfeiting an appearance bond totaling $2700. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Mark Hopkins was charged with credit card theft, a Class 5
felony, in March 2016. Alliance posted a $2700 appearance bond on behalf
of Hopkins. On January 27, 2017, Hopkins pled guilty pursuant to a plea
agreement. 1 On April 10, 2017, Hopkins failed to appear for sentencing. The
superior court granted defense counsel’s oral motion to continue
sentencing to allow Hopkins to appear. The court held in abeyance the
issuing of a bench warrant until the continued court date. When Hopkins
failed to appear on April 18, the court issued a bench warrant and set a bond
forfeiture hearing.
¶3 On May 1, 2017, Hopkins moved to quash the bench warrant,
stating he had been in a clinical detox facility for five days during “the last
hearing date.” The motion did not differentiate between the April 10 or 18
court dates. The court set oral argument on the motion to quash for May 18.
On that date, Hopkins was present in court and the superior court quashed
the bench warrant. The court sentenced Hopkins as stipulated in the plea
agreement.
¶4 The superior court subsequently held a bond-forfeiture
hearing. Alliance argued Hopkins had reasonable cause for his failure to
appear because he was in a detox facility at the time of the April 2017
1 The plea agreement is not part of the record on appeal, but we take
judicial notice of the superior court record for plea agreement information.
See Bobrow v. Bobrow, 241 Ariz. 592, 599, ¶ 33, n.12 (App. 2017) (appellate
court may take judicial notice of superior court records).
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STATE v. ALLIANCE
Decision of the Court
hearing. Alliance did not differentiate between the two hearings Hopkins
missed in April. The superior court found no evidence was presented
proving Hopkins was in a detox facility at the time of a hearing, and even
if Hopkins was in detox, he could have moved beforehand to continue the
hearing. Accordingly, the superior court found Hopkins had no reasonable
cause for his failure to appear. After considering mitigation factors, the
court forfeited the entire $2700 amount. Alliance timely appealed, and we
have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1).
DISCUSSION
¶5 After the violation of a condition of an appearance bond, the
superior court may order forfeiture of the bond, in part or in full. Ariz. R.
Crim. P. 7.6(c)(3); State v. Old W. Bonding Co., 203 Ariz. 468, 474, ¶ 23 (App.
2002). Forfeiture is discretionary, and the court may consider factors
including:
(1) whether the defendant’s failure to appear due to
incarceration arose from a crime committed before or after
being released on bond; (2) the willfulness of the defendant’s
violation of the appearance bond; (3) the surety’s effort and
expense in locating and apprehending the defendant; (4) the
costs, inconvenience, and prejudice suffered by the state as a
result of the violation; (5) any intangible costs; (6) the public’s
interest in ensuring a defendant’s appearance; and (7) any
other mitigating or aggravating factors.
Old W. Bonding Co., 203 Ariz. at 475, ¶¶ 25–26. We review a superior court
order forfeiting a bond for an abuse of discretion, and view the record on
appeal in the light most favorable to upholding the superior court’s
decision. In re Bond Forfeiture in Pima County Cause Number CR-20031154,
208 Ariz. 368, 369, ¶ 2 (App. 2004).
A. Alliance’s Late Filing of the Transcripts in this Case Could Be an
Independent Basis to Affirm the Superior Court’s Decision.
¶6 The transcript from the August 15, 2017 bond-forfeiture
hearing was not originally part of this court’s record on appeal at the time
the State filed its answering brief. The State correctly argued that without
the transcript it could not respond to Alliance’s claims, and this court was
obligated to assume the correctness of the superior court’s adjudication of
the issues. Myrick v. Maloney, 235 Ariz. 491, 495, ¶ 11 (App. 2014) (missing
transcripts are presumed to support the superior court’s decision). After the
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STATE v. ALLIANCE
Decision of the Court
State filed its answering brief, Alliance submitted the transcript to this
court. If we believed the argument presented at the August 2017 hearing
was material to our decision, we could have sanctioned Alliance and
allowed the State to file a supplemental brief considering the transcripts.
See ARCAP 11(c)(1)(B) (“If the appellant will contend on appeal that a
judgment, finding or conclusion, is unsupported by the evidence or is
contrary to the evidence, appellant must include in the record transcripts of
all proceedings containing evidence relevant to that judgment, finding or
conclusion.”); Baker v. Baker, 183 Ariz. 70, 73 (App. 1995) (appellant is
responsible for providing the necessary transcripts for this court to consider
the issues raised on appeal); Romero v. Sw. Ambulance, 211 Ariz. 200, 205,
¶ 14 (App. 2005) (court declines to exercise discretion to impose sanction
for failure to file transcripts). However, because the transcript does not
present any evidence outside of Alliance’s argument, we will consider it as
part of the record on appeal and issue a merits decision. Adams v. Valley
Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (the court prefers to resolve
cases on the merits).
B. The Superior Court Did Not Abuse Its Discretion by Forfeiting the
Entire Bond Based on the Lack of Evidence Presented by Alliance.
¶7 Alliance, as the surety, was given an opportunity at the
forfeiture hearing to show “reasonable cause” why Hopkins did not appear
as ordered in April 2017. See Ariz. R. Crim. P. 7.6(c)(2); Old W. Bonding Co.,
203 Ariz. at 471, ¶ 14. “[T]he burden of proof rests with the surety to show
reasonable cause.” State ex rel. Corbin v. Superior Court (Hopwood), 2 Ariz.
App. 257, 261 (1965).
¶8 Alliance first argues the court should have continued the
forfeiture hearing so it could establish why a motion to continue was not
filed when Hopkins knew he was going to miss the April 18, 2017 hearing.
To the extent Alliance’s argument at the forfeiture hearing could be
considered a motion to continue, continuances are within the sound
discretion of the superior court and predicated on good cause shown. Evans
v. Lundgren, 11 Ariz. App. 441, 445 (1970). If Alliance wanted evidentiary
support for its argument that Hopkins missed the hearing because he
entered a clinical detox facility, it was Alliance’s burden to establish the
record. See State v. Bail Bonds USA, 223 Ariz. 394, 397, ¶ 11 (App. 2010)
(surety has burden to “show by a preponderance of the evidence an excuse
or explanation for [the defendant’s] failure to appear”); Hopwood, 2 Ariz.
App. at 261. Similarly, if Alliance wanted to show Hopkins’s trial counsel
was deficient for failing to file a motion to continue, it was Alliance’s
burden to make that offer of proof. State v. Hernandez, 232 Ariz. 313, 386,
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STATE v. ALLIANCE
Decision of the Court
¶ 37 (2013) (lack of an offer of proof forecloses argument on appeal). It was
not prepared to do so at the forfeiture hearing.
¶9 Other than a conclusory statement as part of the motion to
quash the bench warrant, there was no evidence presented that would
establish that Hopkins was in a detox facility on either day in April 2017
when he missed hearings, nor was there any evidence regarding the
communications between Hopkins and his trial counsel prior to the
hearings. Additionally, a five-day stay in a detox facility does not explain
Hopkins’s absence from the hearings on both April 10 and 18, eight days
apart. The superior court did not abuse its discretion by not continuing the
forfeiture hearing.
¶10 Alliance also claims the superior court addressed Hopkins’s
failure to appear on May 18, 2018, when the bench warrant was quashed
and Hopkins was sentenced. Alliance argues that because the minute entry
states the warrant was quashed, and indicated that it was an unopposed
motion with “good cause appearing,” that the superior court meant to also
vacate the forfeiture hearing. However, the minute entry is silent regarding
the bond forfeiture proceeding, and we have no other record regarding
what was discussed at the May 18 sentencing. See Myrick, 235 Ariz. at 495,
¶ 11.
¶11 Finally, Alliance contends the discretionary factors set forth
in Old West demonstrate the court abused its discretion. We disagree. The
factors set forth in Old West are not mandatory, rather they are suggested
“relevant considerations” that a court may review. Old W. Bonding Co., 203
Ariz. at 475, ¶ 26. None of the factors presented in Old West are dispositive
or require a court to exonerate a bond, see id., and this court will not
substitute its judgment for that of the superior court on these discretionary
factors, see Castro v. Ballesteros-Suarez, 222 Ariz. 48, 52, ¶ 11 (App. 2009).
¶12 Because Alliance is not the prevailing party on appeal, we
decline its request for attorney’s fees.
CONCLUSION
¶13 Affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
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