Phillip Ohmer v. Commonwealth of Kentucky ( 2021 )

RENDERED: DECEMBER 17, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0263-MR
PHILLIP OHMER APPELLANT
APPEAL FROM PENDLETON CIRCUIT COURT
v. HONORABLE HEATHER FRYMAN, JUDGE
ACTION NO. 19-J-00002
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
VACATING
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BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.
ACREE, JUDGE: Phillip Ohmer appeals the Pendleton Circuit Court’s February
12, 2020 order applying his bail bond to his child support arrearage. He argues the
bond was improperly forfeited. We agree and vacate the circuit court’s order with
instructions to refund bond amount to the surety.
We begin by noting two circumstances that affect this appellate
review. The most significant is that the Commonwealth did not file a timely
appellee brief. Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) provides:
If the appellee’s brief has not been filed within the time
allowed, the court may: (i) accept the appellant’s
statement of the facts and issues as correct; (ii) reverse the
judgment if appellant’s brief reasonably appears to sustain
such action; or (iii) regard the appellee’s failure as a
confession of error and reverse the judgment without
considering the merits of the case.
The Court exercises its discretion pursuant to CR 76.12(8)(c)(ii) and vacates the
circuit court’s order because Ohmer’s brief reasonably appears to sustain such
action.
However, the Court also notes that the certified record is not in
chronological order. That is more reason to rely on Ohmer’s brief to explain what
occurred in the circuit courts.
The action began in Campbell County and the circuit court exercised
its jurisdiction of this case in 2006. However, the Campbell County prosecutor
moved for a change of venue when she learned both parties had moved: “The
Plaintiff resides in Pendleton County, Ky., and the Defendant [Ohmer] resides in
Knox County, Ky.” (Record (R.) 14.) The order transferring venue was entered
on January 21, 2016. (Id.) The order was prepared by the attorney for the
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Campbell County Child Support Office and at the bottom says: “cc: Plaintiff;
Defendant; Counsel for Defendant.” (Id.)
There is no notation from the clerk, either on the order itself or
elsewhere in the record, that a copy of the order was sent to anyone after entry as
required by CR 77.04. From a docket entry dated January 5, 2016, it appears
Ohmer was not represented by counsel. (R. 15.) Furthermore, the record indicates
Ohmer’s last known address was “19 Piper Drive, Corbin, Ky 40701.” (R. 23.)
Corbin is a city in Knox County.
On March 22, 2019, the Commonwealth filed a motion in Pendleton
Circuit Court to review Ohmer’s child support obligation, establish arrearages, and
create a wage garnishment. (R. 99.) The motion was set for a hearing on April 1,
2019 and the Commonwealth mailed the motion to Ohmer at “6428 KY 229,
Barbourville, KY.” (Id.) Nothing in the record indicates Ohmer lived there then or
at any time. As noted, the last known address for Ohmer was in Corbin, Kentucky.
Ohmer did not appear at the hearing. The circuit court did not appoint
a warning order attorney or otherwise attempt to determine Ohmer’s correct
address. Rather, the circuit court entered an order finding Ohmer was $24,541.94
in arrears, set his arrearage payment at $60 a month, and ordered withholding from
his wages. (R. 102.) This order was also sent to the Barbourville address. (Id.)
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Less than a month later, the circuit court issued a show cause order
and set a hearing date for Ohmer to bring proof of back pay from the Social
Security Administration on May 6, 2019. (R. 104.) This order was returned
unserved by the Knox County Sheriff. (Id.)
Ohmer did not appear. This resulted in the circuit court’s issuing a
bench warrant without objection from the Commonwealth. (R. 105.) The
Commonwealth suggested setting a $2,500 bond because the arrearage was close
to $25,000. (Id.) The circuit court agreed and used the applicable form for a bench
warrant summoning Ohmer “[t]o [a]nswer the [f]ollowing: BW $2,500;
CONTEMPT OF COURT; NON-PAYMENT OF CHILD SUPPORT; NO
BAIL/JAIL CREDIT; SUBJECT TO ARREARS[.]” (Id.) Again, no warning order
attorney was appointed to locate Ohmer.
After several months, Ohmer was arrested at 308 Bluegrass Road in
East Bernstadt, Kentucky. (R. 109.) The citation made no mention that any bail
bond relative to the arrest would contain a “subject to arrears” condition. (Id.)
Rebecca Ohmer, Ohmer’s daughter-in-law, posted the $2,500 bond
and served as surety. (R. 112.) According to the Pretrial Bail Bond, Form AOC-
365.1, on December 4, 2019, Ohmer resided at 5248 KY Hwy 229, Barbourville,
Kentucky. (R. 112.) The conditions of Ohmer’s release to which Rebecca and
Ohmer agreed were as follows: (1) no further violations of law; (2) no
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consumption of alcohol or illegal use of controlled substances; and (3) make all
scheduled court dates.1 (Id.) Rebecca was given a Bond Information Sheet, (R.
114), informing her of the relevant consequences of Ohmer’s violation of the
Pretrial Bail Bond conditions:
1. When you post a bond, you are guaranteeing that the
defendant will appear in court for each and every court
appearance AND that the defendant will comply with
all of the Court’s other obligations. This means you
will not get your bond money back, if the defendant[:]
a. Fails to appear for any court appearance;
b. Fails to pay all fines, court costs, fees,
restitution, etc. by the date ordered;
c. Fails to complete the diversion agreement, if
ordered by the Judge; or
d. Fails to complete all hours of community
service, alcohol/drug education/counseling,
etc. if ordered by the Judge.
2. When the money you deposit is the full amount of the
bond, you will get back the full amount of the bond.
....
4. The surety’s bond money will never be used to pay the
defendant’s fines, etc. unless surety provides the Court
with a notarized statement granting explicit permission
for the bond to be used to pay the defendant’s fines, etc.
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The conditions can be checked off in a box next to the condition. There is also a spot to
handwrite in conditions. The last condition, make all scheduled court dates, was handwritten.
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(Id.)
There was no reference at all to the possibility that, even if Ohmer
complied with the Pretrial Bail Bond conditions, Rebecca’s $2,500 posting of bail
as Ohmer’s surety would be forfeited.
On December 16, 2019, Ohmer appeared for the scheduled court
hearing. (R. 117.) At that hearing, the circuit court asked Ohmer if he was aware
the bond money was going to be applied to his child support obligation. Ohmer
said he was not aware and if he had known that, he would have stayed in jail. He
explained his circumstances to the court. When the paternity action commenced in
Campbell Circuit Court, he was in the process of serving a 12-year prison term.
For some period of time, he had custody of the child. At the time of this hearing,
his income was $741 a month. He applied for Social Security benefits and was
seeking a lump sum settlement for back benefits.
The Court appointed a public defender, and Ohmer gave the circuit
court his permanent address as 287 Bluegrass Drive in East Bernstadt. (Id.) The
circuit court reserved the question of whether the bond would be forfeited.
On January 6, 2020, the parties again appeared before the court. (R.
118.) The Commonwealth did not have the paperwork, i.e., the evidence to
support the amount of Ohmer’s existing arrearage but urged the court to apply the
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bond to the arrearage. Ohmer continued his objection. The circuit court ordered
Rebecca to appear and continued the case. (R. 120.)
At the next hearing, the Commonwealth still did not have the
necessary evidence to establish the existing arrearage but did produce a payment
sheet indicating Ohmer made $1,235 in payments toward the arrearage. The
custodial parent agreed the sum was accurate. Once the court reached the issue of
the bond forfeiture, Rebecca produced the Bond Information Sheet discussed
above. She explained that she “posted money that belongs to grandkids and was
told that the bond would be returned.” (R. 123.)
The circuit court perused the Pretrial Bail Bond, the Bond Information
Sheet, and other documents in the record. The circuit judge stated the Pretrial Bail
Bond was inaccurate because it did not mention the “subject to arrearage”
condition. He expressed concern that returning the $2,500 to Rebecca or the
“grandkids” would set a precedent that when documents signed by the surety fail to
inform the person posting bond that it was subject to arrearage, the bond could be
returned. It concluded such a precedent would undermine the whole purpose of
having a child support docket. Ultimately, the circuit court denied the return of the
bond. However, the court held that “payment of bond is stayed pending appeal.”
This appeal followed.
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This Court reviews rulings regarding bonds solely for abuse of
discretion. Commonwealth v. Peacock, 701 S.W.2d 397, 398 (Ky. 1985).
Ohmer makes two arguments: (1) the bond was improperly forfeited;
and (2) the circuit court’s finding of contempt for failure to appear prior to
Rebecca’s posting of bail was error because he was not given a proper hearing.
We address his second argument first.
When Ohmer filed his notice of appeal in February 2020, the circuit
court had not yet conducted a hearing on the contempt charge. The hearing was set
for March 2, 2020. That issue, therefore, is not properly reviewable by this Court.
His first argument, however, has merit. We begin by quoting the
applicable rule, Kentucky Rules of Criminal Procedure (RCr) 4.42. It reads:
(1) If at any time following the release of the defendant
and before the defendant is required to appear for trial
the court is advised of a material change in the
defendant’s circumstances or that the defendant has
not complied with all conditions imposed upon his or
her release, the court having jurisdiction may order
the defendant’s arrest and require the defendant or the
defendant’s surety or sureties to appear and show
cause why the bail bond should not be forfeited or the
conditions of release be changed, or both.
(2) A copy of said order shall be served on the defendant
and the defendant’s surety or sureties. The court shall
order the arrest of the defendant only when it has
good cause to believe the defendant will not appear
voluntarily upon notice to appear.
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(3) Where the court is acting on advice that the defendant
has not complied with all conditions imposed upon
his or her release, the court shall not change the
conditions of release or order forfeiture of the bail
bond unless it finds by clear and convincing evidence
that the defendant has [willfully] violated one of the
conditions of his or her release or that there is a
substantial risk of nonappearance.
(4) Where the court is acting on advice of a material
change in the defendant’s circumstances, it shall not
change the conditions of release or order forfeiture of
the bail bonds unless it finds by clear and convincing
evidence that a material change in circumstances
exists and that there is a substantial risk of
nonappearance.
(5) Before the court may make the findings required for
change of conditions or forfeiture of bail under this
rule, the defendant and the defendant’s surety or
sureties shall be granted an adversary hearing
comporting with the requirements of due process.
Whenever the court changes conditions of release
(except upon motion of the defendant) or orders
forfeiture of bail, it must furnish the defendant and
the defendant’s surety or sureties with written reasons
for so doing.
Under RCr 4.42, both the defendant and the defendant’s surety are
entitled to notice of all the conditions under which a bond can be lawfully
forfeited. Before a forfeiture can occur, RCr 4.42 also mandates that the court find
by clear and convincing evidence that the defendant violated a condition of his
release or that a material change in circumstances exists and that there is a
substantial risk of nonappearance. The court must conduct a hearing comporting
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with due process and render written findings outlining the reasons for forfeiture per
RCr 4.42. Commonwealth ex rel. Putnam v. Polston, 607 S.W.3d 722, 726 (Ky.
App. 2020).
Furthermore, bail bonds are written contracts among a defendant, the
Commonwealth, and a surety. RCr 4.00(a); Miller v. Commonwealth, 192 Ky.
709, 234 S.W. 307 (1921); see also Passmore v. Commonwealth, 580 S.W.3d 558,
564-65 (Ky. App. 2019).
Ohmer’s conditions are specifically stated in his bond paperwork. He
was present at every hearing after the bond was posted, no evidence was solicited
that he was in violation of any of the listed conditions, and no condition was stated
that his bond would be subjected to arrears. There is no clear or convincing
evidence he violated any condition of his release under the bond.
“The purpose of a bail bond is to insure that the accused will reappear
at a given time by requiring another to assume personal responsibility for him, on
penalty of forfeiture of property.” Cohen v. United States, 82 S. Ct. 526, 528, 7 L.
Ed. 2d 518 (1962). Forfeiture of a bond for reasons never made known to the
surety “would become ‘excessive’ in the sense of the Eighth Amendment because
it would be used to serve a purpose for which bail was not intended.” Id. Ohmer
did everything required by his bond paperwork. Neither he nor Rebecca had any
knowledge the bond would eventually be applied to his child support arrearage.
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Ohmer, according to this record, never failed to appear for a court date
when he was served with notice at a correct address. Had Ohmer been notified of
the earlier court dates he missed, there might never have been a need for a bond if
he had attended. When the clerk and the court failed to assure proper notice,
Ohmer’s failure to appear was all but guaranteed.
Ohmer’s brief reasonably appears to sustain his argument that the
circuit court imposed a bond condition not reflected in the Pretrial Bail Bond or
Bond Information Sheet. The bond was to assure Ohmer’s appearance before the
circuit court. Ohmer did appear and there is no evidence he failed to satisfy any
condition expressly set out in or necessarily implied from the terms of the Pretrial
Bail Bond.
Therefore, this Court vacates the February 12, 2020 Order for
Application of Bond to Child Support Arrearage with instructions that the circuit
court return the bond amount to the surety.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Travis Bewley
Jennifer Wade
Laura Anne Fitzer
Frankfort, Kentucky
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