State v. Knight , 255 N.C. App. 802 ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-19
Filed: 3 October 2017
Wilson County, No. 15 CR 701951
STATE OF NORTH CAROLINA,
v.
ANTONIO JERMAINE KNIGHT, JR., Defendant
and
ONTARRIS T. ARMSTRONG, Bail Agent,
and
FINANCIAL CASUALTY & SURETY, Surety.
Appeal by Wilson County Board of Education from order entered 3 October
2016 by Judge William C. Farris in District Court, Wilson County, following a hearing
the same date before Judge John J. Covolo. Heard in the Court of Appeals 7 August
2017.
Schwartz & Shaw, P.L.L.C., by Kristopher L. Caudle and Rebecca M. Williams,
for Wilson County Board of Education, Plaintiff-Appellant.
No brief for Antonio Jermaine Knight, Jr., Defendant.
No brief for Ontarris T. Armstrong, Bail Agent.
Harris & Associates, P.L.L.C., by Robert J. Harris, for Financial Casualty &
Surety, Defendant-Appellee Surety.
McGEE, Chief Judge.
STATE V. KNIGHT
Opinion of the Court
The Wilson County Board of Education (“the Board of Education”)1 appeals
from the trial court’s order reducing a bond forfeiture amount after denying a surety’s
motion to set aside the bond forfeiture. Because we conclude the trial court lacked
statutory authority to reduce the bond forfeiture amount, we vacate the trial court’s
order and remand for further proceedings consistent with this opinion.
I. Background
Antonio Jermaine Knight (“Defendant”) failed to appear in Wilson County
District Court in an underlying criminal matter on 11 March 2016. The Wilson
County Clerk of Court issued a bond forfeiture notice in the amount of $2,000.00 to
Defendant, Financial Casualty & Insurance (“Surety”), and Surety’s bail agent,
Ontarris T. Armstrong (“Bail Agent”), on 14 March 2016. Notice was mailed to all
parties on 17 March 2016.
Clarence Fuller, another bail agent of Surety, filed a motion to set aside the
bond forfeiture (“the motion to set aside”) on 15 August 2016. Form AOC-CR-213,
the preprinted form used for motions to set aside a forfeiture, lists the seven reasons,
pursuant to N.C. Gen. Stat. § 15A-544.5, for which a bond forfeiture may be set aside,
with corresponding boxes for a movant to mark the alleged basis for setting aside the
1 “The Board’s status as appellant in the instant case is due to its status as the ultimate
recipient of the ‘clear proceeds’ of the forfeited appearance bond at issue herein, pursuant to Article
IX, § 7 of the North Carolina Constitution.” State v. Dunn, 200 N.C. App. 606, 607 n.1, 685 S.E.2d
526, 527 n.1 (2009) (citation omitted).
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Opinion of the Court
forfeiture. In the present case, the motion to set aside filed by Surety’s bail agent did
not indicate Surety’s reason for setting aside the forfeiture. A document attached to
the motion, entitled “General Court of Justice (Surety Notice of Defendant’s
Incarceration),” indicated that Defendant was incarcerated on 2 August 2016 with a
projected release date of 5 October 2016. The Board of Education objected to the
motion to set aside the forfeiture on 17 August 2016.
Following a hearing on 3 October 2016, the trial court denied Surety’s motion
to set aside the bond forfeiture, based on its finding that Surety “ha[d] [not]
established one or more of the reasons specified in [N.C.G.S. §] 15A-544.5 for setting
aside [the] forfeiture.” In accordance with N.C.G.S. § 15A-544.5(d)(7) (2017), the trial
court’s order provided that “the forfeiture shall become a final judgment of forfeiture
on the later of this date or one hundred and fifty (150) days after the ‘Date Notice
Given[.]’” Despite denying the motion, the trial court verbally reduced the amount of
the bond forfeiture from $2,000.00 to $300.00.2 A handwritten notation stating
2 No transcript of the hearing appears in the record on appeal, which was settled by operation
of N.C. R. App. P. 11(b) after Surety took no action within the time allowed for responding to the
proposed record on appeal. The Board of Education subsequently filed a motion to amend the record
on appeal to add a narration of the trial court hearing. See N.C.R. App. P. 9(b)(5), 9(c)(1). No objection
was filed, and this Court allowed the motion on 7 August 2017. According to the narration submitted
by the Board of Education, at the hearing on the motion to set aside, an attorney for Surety “did not
argue that any of the statutory bases for set aside had been met, however, [Surety’s attorney]
requested that [the trial court] award some relief on the amount of the bond forfeiture to be paid.”
After hearing arguments from both parties, the trial court “found that Surety had not established the
grounds for set aside under N.C. Gen. Stat. § 15A-544.5 and denied Surety’s motion. However, Judge
Covolo then ordered [] Surety to pay a reduced bond forfeiture amount of $300.00.”
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Opinion of the Court
“Surety to pay $300” appears on the trial court’s order, also filed on 3 October 2016.
Surety paid $300.00 to the clerk of court that same day. The Board of Education
appeals.
II. Analysis
The Board of Education contends the trial court lacked statutory authority to
reduce the amount of the bond forfeiture after denying Surety’s motion to set aside
the bond forfeiture. We agree.
A. Standard of Review
In an appeal from an order setting aside a bond forfeiture, “the standard of
review for this Court is whether there was competent evidence to support the trial
court’s findings of fact and whether its conclusions of law were proper in light of such
facts.” State v. Dunn, 200 N.C. App. 606, 608, 685 S.E.2d 526, 528 (2009) (citation
omitted); see also N.C. Gen. Stat. § 15A-544.5(h) (2015) (providing in part that “[a]n
order on a motion to set aside a forfeiture is a final order or judgment of the trial
court for purposes of appeal. Appeal is the same as provided for appeals in civil
actions.”). Questions of law, including matters of statutory construction, are reviewed
de novo. See In re Hall, 238 N.C. App. 322, 324, 768 S.E.2d 39, 41 (2014) (citation
omitted) (“Resolution of issues involving statutory construction is ultimately a
question of law for the courts. Where an appeal presents a question of statutory
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STATE V. KNIGHT
Opinion of the Court
interpretation, full review is appropriate, and we review a trial court’s conclusions of
law de novo[.]”).
B. Surety’s Motion to Set Aside
In North Carolina, bail bond forfeiture is governed by Chapter 15A, Article 26,
Part 2 of our General Statutes. See N.C. Gen. Stat. § 15A-544.1 (2017) (“By executing
a bail bond the defendant and each surety submit to the jurisdiction of the court[.]
. . . The liability of the defendant and each surety may be enforced as provided in this
Part[.]”). “If a defendant who was released . . . upon execution of a bail bond fails on
any occasion to appear before the court as required, the court shall enter a forfeiture
for the amount of that bail bond in favor of the State against the defendant and
against each surety on the bail bond.” N.C. Gen. Stat. § 15A-544.3(a) (2017)
(emphasis added).
N.C. Gen. Stat. § 15A-544.5 (2017) provides that “[t]here shall be no relief from
a forfeiture except as provided in this section.” See State v. Williams, 218 N.C. App.
450, 451, 725 S.E.2d 7, 9 (2012) (“The exclusive avenue for relief from forfeiture of an
appearance bond (where the forfeiture has not yet become a final judgment) is
provided in [N.C.]G.S. § 15A-544.5.” (citation and quotation marks omitted) (internal
parentheses in original)). The statute’s language is unequivocal: “a forfeiture shall
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Opinion of the Court
be set aside for any one of the following [seven] reasons, and none other.”3 N.C. Gen.
Stat. § 15A-544.5(b) (2017) (emphases added); see also State v. Rodrigo, 190 N.C. App.
3 Although not directly at issue in the present case, the exclusive reasons for which a bond
forfeiture may be set aside are as follows:
(1) The defendant’s failure to appear has been set aside by the court
and any order for arrest issued for that failure to appear has been
recalled, as evidenced by a copy of an official court record, including an
electronic record.
(2) All charges for which the defendant was bonded to appear have
been finally disposed by the court other than by the State’s taking
dismissal with leave, as evidenced by a copy of an official court record,
including an electronic record.
(3) The defendant has been surrendered by a surety on the bail bond
as provided by G.S. 15A-540, as evidenced by the sheriff’s receipt
provided for in that section.
(4) The defendant has been served with an Order for Arrest for the
Failure to Appear on the criminal charge in the case in question as
evidenced by a copy of an official court record, including an electronic
record.
(5) The defendant died before or within the period between the
forfeiture and the final judgment as demonstrated by the presentation
of a death certificate.
(6) The defendant was incarcerated in a unit of the Division of Adult
Correction and Juvenile Justice of the Department of Public Safety and
is serving a sentence or in a unit of the Federal Bureau of Prisons
located within the borders of the State at the time of the failure to
appear as evidenced by a copy of an official court record or a copy of a
document from the Division of Adult Correction and Juvenile Justice
of the Department of Public Safety or Federal Bureau of Prisons,
including an electronic record.
(7) The defendant was incarcerated in a local, state, or federal
detention center, jail, or prison located anywhere within the borders of
the United States at the time of the failure to appear, and the district
attorney for the county in which the charges are pending was notified
of the defendant’s incarceration while the defendant was still
incarcerated and the defendant remains incarcerated for a period of 10
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Opinion of the Court
661, 664, 660 S.E.2d 615, 617 (2008) (“Relief from a forfeiture, before the forfeiture
becomes a final judgment, is exclusive and limited to the reasons provided in N.C.
Gen. Stat. 15A-544.5.”).
In the present case, it is undisputed that Surety’s motion was a motion to set
aside a bond forfeiture filed pursuant to N.C.G.S. § 15A-544.5. Surety filed a Form
AOC-CR-213, the form used for motions to set aside a bond forfeiture under N.C. Gen.
Stat. § 15A-544.5(d)(1) (2017), and did so before a final judgment of forfeiture was
entered. The trial court’s order explicitly stated that the motion was denied based on
the court’s finding that Surety “[failed to establish] one or more of the reasons
specified in [N.C.G.S. §] 15A-544.5 for setting aside that forfeiture.” Accordingly, we
agree with the Board of Education that N.C. Gen. Stat. § 15A-544.5 is the controlling
statute in this appeal.
On appeal, the Board of Education does not challenge the trial court’s denial
of Surety’s motion to set aside, since, the Board contends, Surety failed to establish
any of the seven exclusive statutory reasons for which a bond forfeiture may be set
aside. See supra n.3. In response, Surety does not argue that its motion to set aside
days following the district attorney’s receipt of notice, as evidenced by
a copy of the written notice served on the district attorney via hand
delivery or certified mail and written documentation of date upon
which the defendant was released from incarceration, if the defendant
was released prior to the time the motion to set aside was filed.
N.C.G.S. § 15A-544.5(b)(1)-(7) (2017) (emphases added to indicate 2017 amendments).
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STATE V. KNIGHT
Opinion of the Court
should have been allowed because it did satisfy one or more of the reasons set forth
in N.C.G.S. § 15A-544.5. Surety instead asserts the trial court “in its discretion
reduced the bond forfeiture [amount] from $2000 to $300; thus, granting the [m]otion
to [s]et [a]side the bond forfeiture in part.” (emphases added). In making this
argument, Surety improperly relies upon N.C. Gen. Stat. § 15A-544.8, the statute
that sets forth a distinct procedure for seeking relief from final judgments of
forfeiture.4 Because the Board of Education does not challenge the trial court’s
conclusion that Surety failed to establish a reason for setting aside the forfeiture
pursuant to N.C.G.S. § 15A-544.5, and Surety offers no argument under the relevant
statute, we proceed on the presumption that the trial court properly denied the
motion to set aside. See, e.g., Hocke v. Hanyane, 118 N.C. App. 630, 635, 456 S.E.2d
858, 861 (1995) (observing that “the rulings, orders and judgments of the trial judge
are presumed to be correct, and the burden is on the appealing party to rebut the
presumption of verity on appeal.” (citation, alteration, and quotation marks omitted)).
C. Reduction of Bond Amount
4 Surety’s reliance on N.C.G.S. § 15A-544.8 is misplaced because Surety filed the motion to set
aside before entry of a final judgment of forfeiture occurred. “A forfeiture becomes a final judgment of
forfeiture on the 150th day after notice of forfeiture is given, unless a motion to set aside the forfeiture
is either entered on or before or is pending on that date.” State v. Gonzalez-Fernandez, 170 N.C. App.
45, 48-49, 612 S.E.2d 148, 151 (2005) (citing N.C. Gen. Stat. § 15A-544.6) (emphasis added). Notice of
forfeiture is effective when the notice is mailed. N.C. Gen. Stat. § 15A-544.4 (2017). In the present
case, notice of forfeiture was mailed on 17 March 2016. Surety’s bail agent filed the motion to set aside
on 15 August 2016, the day the forfeiture would have become a final judgment. Thus, there was a
motion to set aside “pending on that date,” and the forfeiture did not become a final judgment by
operation of the statute.
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Opinion of the Court
The sole question before us is whether the trial court had authority, pursuant
to N.C.G.S. § 15A-544.5, to reduce the amount owed by Surety on the executed bond.
We conclude it did not.
In construing a statute, we must first ascertain the
legislative intent to ensure that the purpose and intent of
the legislation are satisfied. In making this determination,
we look first to the language of the statute itself. If the
language used is clear and unambiguous, this Court must
not engage in judicial construction but must apply the
statute to give effect to the plain and definite meaning of
the language.
Bryant v. Adams, 116 N.C. App. 448, 457, 448 S.E.2d 832, 836 (1994) (citation
omitted). Our Supreme Court has instructed that “[reviewing c]ourts should give
effect to the words actually used in a statute and should neither delete words used
nor insert words not used in the relevant statutory language during the statutory
construction process.” Midrex Techs., Inc. v. N.C. Dep’t of Revenue, 369 N.C. 250, 258,
794 S.E.2d 785, 792 (2016) (citation and internal quotation marks omitted).
As discussed above, by its plain language, N.C.G.S. § 15A-544.5 provides the
“exclusive” relief for setting aside a bond forfeiture that has not yet become a final
judgment. See N.C. Gen. Stat. § 15A-544.5(a) (2017). The reasons enumerated
therein for which a forfeiture may be set aside are both mandatory and exhaustive.
See, e.g., State v. Lazaro, 190 N.C. App. 670, 673, 660 S.E.2d 618, 620 (2008) (holding
trial court erred in granting surety’s motion to set aside bond forfeiture because
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Opinion of the Court
“deportation is not listed as one of the . . . exclusive grounds that allowed the court to
set aside a bond forfeiture.”).
The only “relief” authorized under N.C.G.S. § 15A-544.5 is the setting aside of
the bond forfeiture. The statute provides that, “[i]f at the hearing the [trial] court
allows the motion, the court shall enter an order setting aside the forfeiture.” N.C.G.S.
§ 15A-544.5(d)(6) (emphasis added). Conversely, if a movant fails to establish any of
the reasons enumerated in N.C.G.S. § 15A-544.5, the court must deny the motion to
set aside. Once a motion to set aside is denied, a final judgment date is prescribed by
statute:
If at the hearing [on the motion to set aside] the court does
not enter an order setting aside the forfeiture, the
forfeiture shall become a final judgment of forfeiture on the
later of:
a. The date of the hearing.
b. The date of final judgment specified in G.S. 15A-544.6.
N.C.G.S. § 15A-544.5(d)(7). There is no “partial” relief provided under the plain
language of the statute.
In addition to the statutory language itself, “[o]ther indicia considered by this
Court in determining legislative intent are the legislative history of an act and the
circumstances surrounding its adoption[.]” Taylor v. City of Lenoir, 129 N.C. App.
174, 177, 497 S.E.2d 715, 718 (1998) (citation and quotation marks omitted) (second
alteration in original); but see Electric Supply Co. v. Swain Electrical Co., 328 N.C.
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Opinion of the Court
651, 656, 403 S.E.2d 291, 295 (1991) (advising that reviewing courts need only
examine legislative history if, “after analyzing the text, structure, and policy of the
statute, we are still in doubt as to legislative intent[.]” (citation omitted)).
As the Board of Education notes, our General Assembly enacted S.L. 2000-133,
entitled “An Act to Modernize Bail Bond Forfeiture Proceedings[,]” during the 1999-
2000 legislative session. S.L. 2000-133 repealed N.C. Gen. Stat. § 15A-544, the
statute formerly governing bail bond forfeiture, and replaced it with the statutory
provisions now codified at N.C.G.S. §§ 15A-544.1 through 544.8. Under former
N.C.G.S. § 15A-544, trial courts had discretion to “remit” part or all of a bond
forfeiture, and could do so before or after entry of a final judgment of forfeiture. See
N.C. Gen. Stat. §§ 15A-544(c), (e), (h) (repealed by S.L. 2000-133, eff. 1 January 2001).
Among other things, S.L. 2000-133 created a new procedure for “setting aside” a bond
forfeiture prior to the entry of a final judgment. The newly-enacted N.C.G.S. § 15A-
544.5 established the “exclusive” relief from a bond forfeiture prior to the entry of
final judgment, and enumerated the specific reasons for which a forfeiture “shall” be
set aside, “and none other.” See N.C.G.S. §§ 15A-544.5(a)-(b). Importantly, N.C.G.S.
§ 15A-544.5 omitted any reference to language found in former N.C.G.S. § 15A-544(e)
that authorized a trial court to “remit” a bond forfeiture “in whole or in part, upon
such conditions as the court may impose, if it appears [to the trial court] that justice
requires the remission of part or all of the judgment.”
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Opinion of the Court
By contrast, S.L. 2000-133 retained some of the discretionary language found
in former N.C.G.S. § 15A-544 in establishing a separate procedure for seeking relief
from final judgments of forfeiture. Under current N.C.G.S. § 15A-544.8, a trial court
“may” grant relief from a final judgment of forfeiture if, inter alia, “extraordinary
circumstances exist that the [trial] court, in its discretion, determines should entitle
[the movant] to relief.” See N.C.G.S. § 15A-544.8(b)(2). Additionally, N.C.G.S. § 15A-
544.8 provides that, “[a]t the hearing [on a motion for relief from final judgment of
forfeiture][,] the court may grant the [moving] party any relief from the judgment that
the court considers appropriate, including the refund of all or a part of any money
paid to satisfy the judgment.” See N.C.G.S. § 15A-544.8(c)(4) (emphases added).
These provisions echo language found in former N.C.G.S. § 15A-544(h), which
provided that, “[f]or extraordinary cause shown, the court which has entered
judgment upon a forfeiture of a bond may, after execution, remit the judgment in
whole or in part and order the clerk to refund such amounts as the court considers
appropriate.” See State v. Lopez, 169 N.C. App. 816, 820, 611 S.E.2d 197, 199 (2005)
(observing that language in N.C.G.S. § 15A-544.8, granting trial courts broader
discretion in providing relief from final judgments of forfeiture, “also appeared in the
predecessor statute (N.C. Gen. Stat. § 15A-544(e) and (h)), [and] requires that we
review such decisions [only] for an abuse of discretion.” (citation omitted) (internal
parentheses in original)).
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Opinion of the Court
We agree with the Board of Education that the General Assembly’s decision to
omit discretionary language with respect to motions to set aside, and retain such
language with respect to final judgments of forfeiture, “suggests the [L]egislature
made a conscious choice in this regard.” See State v. Sanchez, 175 N.C. App. 214, 218,
623 S.E.2d 780, 782 (2005); see also Long v. Hammond, 164 N.C. App. 486, 497, 596
S.E.2d 839, 846 (2004) (finding construction of one statutory section as not requiring
the element of intent was bolstered by the fact that another section, within the same
article and amended at the same time, “[did] possess an element of intent. We credit
the [L]egislature with deliberate composition of its statutes unless there is some
construction and policy concern sufficient to raise an ambiguity.” (emphasis added)).
We are persuaded that, considered together, the plain language used in N.C.G.S.
§ 15A-544.5 and the statute’s legislative history demonstrate that the General
Assembly intended to limit a trial court’s authority in setting aside a bond forfeiture
before the entry of a final judgment.
Under N.C.G.S. § 15A-544.5, a trial court may only grant relief from a
forfeiture for the reasons listed in the statute, and the only relief it may grant is the
setting aside of the forfeiture. Cf. Lopez, 169 N.C. App. at 819, 611 S.E.2d at 199(noting that whether to grant relief under N.C.G.S. § 15A-544.8 is “entirely within
the discretion of the [trial] court[.]”). The trial court must either allow the motion
and set aside the bond forfeiture in its entirety, or deny the motion to set aside, in
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Opinion of the Court
which case the original forfeiture will become a final judgment in accordance with the
relevant statutory provisions. See N.C.G.S. §§ 15A-544.5(d)(6)-(7), 15A-544.6. Once
the forfeiture becomes a final judgment, a party may initiate a new proceeding
seeking relief pursuant to N.C.G.S. § 15A-544.8.
In State v. Cortez, 215 N.C. App. 576, 715 S.E.2d 881 (2011), this Court held
that a trial court lacked jurisdiction “to enter and affirm [] second orders of
forfeiture[,]” because
the Sureties would currently be liable for two separate
failures to appear and, therefore, liable for two times the
actual amount of the bonds executed in [the] [d]efendant’s
case . . . [and] the Sureties may not be held liable for more
than the amount agreed upon pursuant to the bonds they
actually executed[.]
Id. at 580, 715 S.E.2d at 884 (emphasis added). We now hold that, when a motion to
set aside a forfeiture is denied under N.C.G.S. § 15A-544.5, an obligor also may not
be held liable for less than the amount agreed upon pursuant to the bond it actually
executed. A conclusion to the contrary would contravene the Legislature’s
demonstrated intent to divest the trial courts of discretionary authority to modify
bond forfeitures before entry of final judgment occurs, and “result[] in unnecessary
inefficiencies and confusion.” Id.; see also State v. Evans, 166 N.C. App. 432, 434, 601
S.E.2d 877, 878 (2004) (observing that, unlike a trial court’s grant of relief from a
final judgment of forfeiture under N.C.G.S. § 15A-544.8, “the setting aside of a
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Opinion of the Court
forfeiture that has not become final imposes no burden on any party[.]” (emphasis
added)).
We also note that allowing a trial court to deny a motion to set aside a bond
forfeiture, but reduce the amount owed on the bond, would undermine the purpose of
bail, “which is to secure the appearance of the principal in court as required.” State
v. Hollars, 176 N.C. App. 571, 574, 626 S.E.2d 850, 853 (2006) (citation and internal
quotation marks omitted). The prospect of a bond reduction, notwithstanding
forfeiture, could create a disincentive for sureties and their agents to “diligently
pursue defendants.” See State v. Coronel, 145 N.C. App. 237, 247, 550 S.E.2d 561,
568 (2001).
In the present case, the trial court denied Surety’s motion to set aside based
on its finding that no reason existed pursuant to N.C.G.S. § 15A-544.5 to set aside
the forfeiture. Having denied the motion to set aside, the trial court had no authority
to grant “partial relief” by reducing the amount owed on the bond.
III. Conclusion
Because we find no statutory basis upon which a trial court may deny a motion
to set aside a bond forfeiture pursuant to N.C.G.S. § 15A-544.5, but reduce the
amount owed on the executed bond, the trial court’s order is vacated. On remand,
the trial court shall enter an order directing Surety to pay the amount of the bond as
executed, less any amounts already paid.
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Opinion of the Court
VACATED AND REMANDED.
Judges TYSON and INMAN concur.
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