State v. Jackson , 2022 Ohio 1306 ( 2022 )

[Cite as State v. Jackson, 2022-Ohio-1306.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ANTHONY JACKSON,
Defendant,
AABBB ALL AMERICAN BIG BOB’S BAIL BONDING, INC.,
Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 CO 0010Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2015 CR 533
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Reversed and Remanded
[Cite as State v. Jackson, 2022-Ohio-1306.]
Atty. Vito Abruzzino, Columbiana County Prosecutor, 105 S. Market Street, Lisbon, Ohio
44432, for Plaintiff-Appellee and
Atty. Scott Cochran, 19 E. Front Street, Youngstown, Ohio 44503, for Appellant.
Dated:
March 31, 2022
Donofrio, J.
{¶1} Appellant, AABBB All American Big Bob’s Bail Bonding, Inc., appeals from
a Columbiana County Common Pleas Court judgment denying its motion for remission of
the $20,000 bond it paid for defendant Anthony Jackson.
{¶2} In December 2015, a complaint was filed in Columbiana County Municipal
Court against Jackson on charges of having a weapon while under disability and receiving
stolen property. The municipal court set appellant’s bond at $20,000 cash/surety. On
December 14, 2015, appellant posted Jackson’s surety bond. The matter was then bound
over to the Columbiana County Grand Jury. The $20,000 bond continued.
{¶3} On February 18, 2016, the grand jury indicted Jackson on charges of
receiving stolen property and having a weapon while under disability. On June 27, 2017,
Jackson entered into a plea agreement and pleaded guilty to receiving stolen property.
The trial court then set the matter for sentencing.
{¶4} Sentencing was to occur on November 17, 2017. On that date, Jackson
failed to appear. The trial court revoked and forfeited Jackson’s bond and issued a
warrant for his arrest. The court further stated in its judgment entry that appellant had 28
days to produce Jackson and stayed the forfeiture for that time.
{¶5} On August 16, 2018, appellant requested a 45-day extension to
apprehend Jackson. It stated that it had just received notice regarding Jackson’s non-
appearance and the forfeiture. The trial court granted appellant’s request on August 23,
2018, granting it 45 days from that date to apprehend Jackson and produce him to the
court.
{¶6} On December 20, 2018, the trial court put on a judgment entry stating that
appellant had failed to produce Jackson. Therefore, it lifted the previously imposed stay
–3–
on the forfeit. It ordered appellant to forfeiture the surety bond to the clerk of courts by
January 29, 2019.
{¶7} On January 16, 2019, appellant filed a motion to vacate the November 17,
2017 bond forfeiture. It stated that Jackson was arrested on the bench warrant on
January 11, 2019, and was currently in the Columbiana County Jail. Appellant stated that
it made significant efforts to locate and detain Jackson following the notification of
forfeiture. Because Jackson had now been arrested and detained by U.S. Marshalls,
appellant requested that the court vacate the forfeiture order. The state filed a response
in opposition.
{¶8} The trial court denied appellant’s motion to vacate the forfeiture on
February 11, 2019. It stated that appellant did not point to any factors to support vacating
the bond forfeiture and pointed out that it waited 13 months before ultimately lifting the
stay and ordering appellant to forfeit the surety bond. The court ordered appellant to
forfeit the $20,000 bond to the clerk of courts by February 25, 2019.
{¶9} On March 8, 2019, appellant filed a “brief in response to state of Ohio’s
opposition to motion to vacate forfeiture,” which the trial court treated as another motion
to vacate the forfeiture. The court denied this motion on July 11, 2019, and ordered
appellant to forfeit the bond by August 2, 2019.
{¶10} Appellant forfeited the bond and paid the clerk of courts the $20,000 on
August 2, 2019.
{¶11} On May 14, 2020, appellant filed a motion for remission of bond forfeiture.
Appellant argued that Jackson was available to the trial court on or before January 14,
2019, which was before the forfeiture date of January 29, 2019. Thus, it asserted it was
entitled to full remission of the forfeited bond. Alternatively, appellant argued it was
entitled to partial remission.
{¶12} The trial court denied appellant’s motion for remission on April 5, 2021.
Appellant filed a notice of appeal on May 7, 2021. It now raises a single assignment of
error.
{¶13} Appellant’s sole assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
MOTION FOR REMISSION OF BOND FORFEITURE UNDER O.R.C.
Case No. 21 CO 0010–4–
2937.39 AS NO SHOW CAUSE HEARING WAS EVER HELD, THE
DEFENDANT WAS IN CUSTODY AND AVAILABLE TO THE COURT
PRIOR TO THE DATE THE APPELLANT WAS ORDERED TO PAY THE
FORFEITURE BY AND NO HEARING WAS CONDUCTED ON THE
MOTION FOR REMISSION, BUT THE EVIDENCE IN THE RECORD
REQUIRED AT LEAST A PARTIAL REMISSION.
{¶14} Appellant argues the trial court abused its discretion in denying its motion
for remission of bond forfeiture. It claims the court did not follow the proper procedure for
a bond forfeiture against a surety. It asserts that when the court issued the declaration
of forfeiture and set a date by which appellant could show cause why the forfeiture should
not be entered, it never set a hearing. Without a hearing, appellant argues, it was never
given an opportunity to show cause. Appellant asserts that a hearing is required before
the court can issue a judgment.
{¶15} Moreover, appellant asserts that it provided evidence by way of affidavit
that it should have been able to present at a hearing regarding the significant amount of
digital research and surveillance it conducted in an attempt to locate Jackson. And
appellant points out that Jackson was apprehended and available to the court prior to the
time the bond was to be forfeited. Appellant states that it was sharing information with
the U.S. Marshalls who ultimately apprehended Jackson.
{¶16} The denial of a motion for remission of bond is a final appealable order.
State v. Sinkfield, 7th Dist. Mahoning No. 08 MA 75, 2009-Ohio-1033, ¶ 12, citing State
v. Smith, 7th Dist. Jefferson No. 05 JE 49, 2006-Ohio-4614, ¶ 22.
{¶17} Pursuant to R.C. 2937.35:
Upon the failure of the accused or witness to appear in accordance with its
terms the bail may in open court be adjudged forfeit, in whole or in part by
the court or magistrate before whom he is to appear. But such court or
magistrate may, in its discretion, continue the cause to a later date certain,
giving notice of such date to him and the bail depositor or sureties, and
adjudge the bail forfeit upon failure to appear at such later date.
Case No. 21 CO 0010–5–
{¶18} Thus, if the accused fails to appear, the court may order a bond forfeited.
Once the court has determined that a bond is to be forfeited:
As to recognizances the magistrate or clerk shall notify the accused and
each surety within fifteen days after the declaration of the forfeiture by
ordinary mail * * * of the default of the accused and the adjudication of
forfeiture and require each of them to show cause on or before a date
certain to be stated in the notice, and which shall be not less than forty-five
nor more than sixty days from the date of mailing notice, why judgment
should not be entered against each of them for the penalty stated in the
recognizance. If good cause by production of the body of the accused or
otherwise is not shown, the court or magistrate shall thereupon enter
judgment against the sureties or either of them, so notified, in such amount,
not exceeding the penalty of the bond, as has been set in the adjudication
of forfeiture, and shall award execution therefore as in civil cases.
R.C. 2937.36(C).
{¶19} If a court enters judgment on a surety at a hearing held pursuant to R.C.
2937.36, the surety may seek remission of the forfeiture if the accused subsequently
appears, surrenders, or is rearrested. Youngstown v. Durrett, 7th Dist. Mahoning No. 09
MA 57, 2010-Ohio-1313, ¶ 20. The court can then exercise its discretion to remit the
forfeited bond, or a portion thereof. Id., citing R.C. 2937.39.
{¶20} We review a trial court's decision regarding the remission of a forfeited
bond for abuse of discretion. State v. Am. Bail Bond Agency, 129 Ohio App.3d 708, 713,
719 N.E.2d 13 (10th Dist.1998). An abuse of discretion connotes more than an error of
law or judgment; it implies the court's attitude was arbitrary, unreasonable, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶21} Here appellant first argues that the trial court erred in failing to hold a
hearing and provide it with an opportunity to show cause before entering judgment against
it.
{¶22} Pursuant to R.C. 2937.36(C), production of the defendant on the date
specified in the notice of default and adjudication of forfeiture constitutes a showing of
Case No. 21 CO 0010–6–
good cause why judgment should not be entered against each surety of the defendant.
State v. Lee, 9th Dist. Lorain No. 11CA010083, 2012-Ohio-4329, ¶ 10, citing State v.
Holmes, 57 Ohio St.3d 11 (1991), syllabus. R.C. 2937.36(C) requires the trial court to
provide both adequate notice to show cause and a hearing before entering judgment
forfeiting the bond against the surety. Id., citing State v. Green, 9th Dist. Wayne Nos.
02CA0014, 02CA0019, 2002-Ohio-5769, ¶ 17.
{¶23} In this case, the trial court never provided appellant with a hearing where it
could show cause before the court entered the judgment of forfeiture. Thus, the trial court
proceeded to judgment in violation of R.C. 2937.36(C).
{¶24} Appellant further argues that the court erred in overruling its motion for
remission.
{¶25} R.C. 2937.39 provides for the remission of bond as follows:
After judgment has been rendered against surety or after securities
sold or cash bail applied, the court or magistrate, on the appearance,
surrender, or re-arrest of the accused on the charge, may remit all or such
portion of the penalty as it deems just and in the case of previous application
and transfer of cash or proceeds, the magistrate or clerk may deduct an
amount equal to the amount so transferred from subsequent payments to
the agencies receiving such proceeds of forfeiture until the amount is
recouped for the benefit of the person or persons entitled thereto under
order or remission.
R.C. 2937.39 does not set any particular time frame or deadline for filing a motion for
remission of a forfeited bond. State v. Holmes, 7th Dist. Mahoning No. 08 MA 31, 2009-
Ohio-1030, ¶ 14.
{¶26} In Smith, 2006-Ohio-4614, ¶¶ 36-42, this court applied the factors identified
in State v. American Bail Bond Agency, 129 Ohio App.3d 708, 712, 719 N.E.2d 13 (10th
Dist.1998), to consider when a party seeks remission of a forfeited bail bond:
Case No. 21 CO 0010–7–
“1. The circumstances surrounding the subsequent appearance by the
defendant, including the timing, and whether her reappearance was
voluntary;
“2. The reasons for defendant's failure to appear * * *;
“3. The inconvenience, expense, delay and any other prejudice to the
prosecution;
“4. Whether the [sureties were] instrumental in securing the appearance of
the defendant;
“5. Any mitigating circumstances; and
“6. Whether justice requires that the entire amount of the bail remain
forfeited.”
{¶27} In this case, the trial court did not refer to or mention the above factors, or
any other factors, in denying appellant’s motion for remission. In Smith, quoting the Third
District, we found that “‘the appellate districts, upon consideration of this issue, uniformly
require trial courts to consider and weigh various factors in order to reconcile the purposes
of both bail and bond remission.’” Id. at ¶ 44, quoting State v. Jackson, 153 Ohio App.3d
520, 795 N.E.2d 57, 2003-Ohio-2213 (3rd Dist.) at ¶ 9. We further agreed with the Third
District that when considering a request for post-appearance bond remission, the trial
court should balance the reappearance of the accused and the efforts expended by the
surety to effectuate the reappearance against the inconvenience, expense, and delay
suffered by the state and any other relevant factors. Id.{¶28} In the same Third District case on which we relied, the trial court denied
the appellant's motion for remission of bond in a summarized judgment entry and did not
set forth the reasons for its denial. Jackson, 2003-Ohio-2213, at ¶ 10. On this basis, the
appellate court found the trial court’s decision to be arbitrary and an abuse of discretion.
Id. It stated that “[i]n the absence of a record we are unable to ascertain the trial court's
reasons for denying the motion and are unable to review the propriety of its
considerations.” Id.Case No. 21 CO 0010–8–
{¶29} We are faced with the same situation in this case. The trial court here
failed to set out any findings or basis for its decision despite an application of the
remission factors as applied to the facts of this case in appellant’s motion. Moreover, as
stated above, the trial court never provided appellant with a hearing to show cause why
a judgment of forfeiture should not be entered against it.
{¶30} Accordingly, appellant’s sole assignment of error has merit and is
sustained.
{¶31} For the reasons stated above, the trial court’s judgment is hereby reversed
and the matter is remanded to the trial court. On remand, the trial court shall hold a
hearing where appellant has the opportunity to show cause as to why the court should
not order forfeiture of the bond and for further proceedings pursuant to law and consistent
with this Court’s opinion.
Waite, J., concurs.
Robb, J., concurs.
Case No. 21 CO 0010[Cite as State v. Jackson, 2022-Ohio-1306.]
For the reasons stated in the Opinion rendered herein, the sole assignment of error
is sustained. It is the final judgment and order of this Court that the judgment of the Court
of Common Pleas of Columbiana County, Ohio, is reversed. This matter is remanded to
the trial court. On remand, the trial court shall hold a hearing where appellant has the
opportunity to show cause as to why the court should not order forfeiture of the bond and
for further proceedings pursuant to law and consistent with this Court’s opinion. Costs to
be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.