State v. Tucker ( 2021 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Ronnie Carrol Tucker, Defendant,
Bail Out Bonding (Surety), Appellant.
Appellate Case No. 2017-002599
Appeal From Pickens County
Perry H. Gravely, Circuit Court Judge
Opinion No. 5796
Heard October 14, 2020 – Filed January 27, 2021
AFFIRMED
Kenneth Clifton Gibson, of The Law Office of Kenneth
Gibson, of Greenville, for Appellant.
Attorney General Alan McCrory Wilson and Senior
Assistant Deputy Attorney General William M. Blitch,
Jr., both of Columbia, for Respondent.
KONDUROS, J.: In this bond estreatment case, Bail Out Bonding (Surety)
appeals the decision of the circuit court ordering a partial estreatment of Ronnie
Carrol Tucker's bond. Surety contends Tucker's entry into a pretrial intervention
(PTI) program was a "deferred disposition" pursuant to section 17-15-20(B) of the
South Carolina Code (2014), thereby releasing it from liability. Tucker failed to
complete PTI and failed to appear for trial. The circuit court partially estreated the
bond. We affirm.
FACTS
Tucker was charged with two counts of unlawful conduct towards a child. The
circuit court authorized Tucker's release from custody pursuant to an appearance
recognizance bond in an order filed on September 29, 2014, specifying the
conditions of Tucker's release. The order mandated:
[Tucker] be released from custody on the condition that
he will personally appear before the designated court at
the place, date and time required to answer the charge
made against him and do what shall be ordered by the
court and not depart the State without the permission of
the court and be of good behavior.
Tucker signed the order indicating he agreed he was obligated to be present at his
trial. Surety also signed the order establishing its obligation to the State in the
amount of $10,000 "should [Tucker] fail in performing the conditions of this
[o]rder." Thereafter, the solicitor allowed Tucker to participate in PTI; however,
Tucker did not successfully complete PTI.1 After Tucker failed to appear for trial
for the criminal charges pending against him, the circuit court issued a bench
warrant on February 16, 2016. The court then ordered Surety to appear in court
and held a hearing on December 15, 2017, to address the bond.
At the bond estreatment hearing, Surety argued Tucker's referral to PTI qualified as
a "deferred disposition" pursuant to section 17-15-20(B), discharging the bond and
ending Surety's liability on the bond. In opposition, the State argued entry into PTI
did not constitute a deferred disposition under the statute and the charges against
Tucker were still pending. The State asserted it sent bond cards to Surety on three
separate dates; Surety denied receiving the cards.
The circuit court ordered the estreatment of twenty-five percent of the $10,000
bond $10,000, which amounted to $2,500. This appeal followed.
STANDARD OF REVIEW
1
The Record does not contain a copy of the PTI agreement between Tucker and
the solicitor's office.
"The trial court's estreatment of a bond forfeiture will not be set aside unless there
has been an abuse of discretion." State v. Policao, 402 S.C. 547, 552, 741 S.E.2d
774, 776 (Ct. App. 2013). "An abuse of discretion occurs when the circuit court's
ruling is based on an error of law." Id. (quoting State v. Lara, 386 S.C. 104, 107,
687 S.E.2d 26, 28 (2009)).
An appellate court reviews the circuit court's ruling on
the forfeiture or remission of a bail bond for abuse of
discretion. An abuse of discretion occurs when the
circuit court's ruling is based upon an error of law, such
as application of the wrong legal principle; or, when
based upon factual conclusions, the ruling is without
evidentiary support; or, when the circuit court is vested
with discretion, but the ruling reveals no discretion was
exercised; or when the ruling does not fall within the
range of permissible decisions applicable in a particular
case, such that it may be deemed arbitrary and capricious.
State v. McClinton, 369 S.C. 167, 170, 631 S.E.2d 895, 896 (2006) (citation
omitted).
LAW/ANALYSIS
Surety contends entry into PTI is a "deferred disposition" under section 17-15-
20(B) of the South Carolina Code (2014), thereby discharging the bond and
relieving the surety of its obligation. We disagree.
Section 17-15-20 establishes the obligations of a person under a bond agreement
and when a bond is discharged. The statute sets forth, in part:
(A) An appearance recognizance or appearance bond
must be conditioned on the person charged personally
appearing before the court specified to answer the charge
or indictment and to do and receive what is enjoined by
the court, and not to leave the State . . . .
(B) Unless a bench warrant is issued, an appearance
recognizance or an appearance bond is discharged upon
adjudication, a finding of guilt, a deferred disposition, or
as otherwise provided by law.
Id.The Pretrial Intervention Act, found in sections 17-22-10 to -170 of the South
Carolina Code (2014 & Supp. 2019), authorizes each circuit's solicitor to establish
and supervise a PTI program:
(A) Each circuit solicitor shall have the prosecutorial
discretion as defined herein and shall as a matter of
such prosecutorial discretion establish a pretrial
intervention program in the respective circuits.
...
(C) A pretrial intervention program shall be under the
direct supervision and control of the circuit solicitor;
however, he may contract for services with any
agency desired.
S.C. Code Ann. § 17-22-30.
A person accepted into the PTI program must:
(1) waive, in writing and contingent upon his successful
completion of the program, his right to a speedy trial;
[and]
(2) agree, in writing, to the tolling while in the program
of all periods of limitation established by statutes or rules
of court . . . .
S.C. Code Ann. § 17-22-90.
The PTI statutory provisions specifically mandate the solicitor and the defendant
shall enter into an agreement, including a timeframe by which the solicitor will
decide to dismiss the charges or to pursue a conviction.
In any case in which an offender agrees to an
intervention program, a specific agreement must be made
between the solicitor and the offender. This agreement
shall include the terms of the intervention program, the
length of the program and a section stating the period of
time after which the prosecutor will either dismiss the
charge or seek a conviction based upon that charge.
S.C. Code Ann. § 17-22-120.
Section 17-22-150 establishes the opportunity available to a defendant upon a
successful completion of the PTI program and the result of unsuccessful
completion.
(a) In the event an offender successfully completes a pretrial
intervention program, the solicitor shall effect a
noncriminal disposition of the charge or charges pending
against the offender. Upon such disposition, the offender
may apply to the court for an order to destroy all official
records relating to his arrest and no evidence of the
records pertaining to the charge may be retained . . . .
(b) In the event the offender violates the conditions of the
program agreement: (1) the solicitor may terminate the
offender's participation in the program, (2) the waiver
executed pursuant to [section] 17-22-90 shall be void on
the date the offender is removed from the program for
the violation[,] and (3) the prosecution of pending
criminal charges against the offender shall be resumed by
the solicitor.
§ 17-22-150.
We note our supreme court has confirmed the solicitor, not the court, makes the
decision to admit a defendant into PTI.
[T]he judge cannot overrule the solicitor's objection to an
applicant's admission to PTI without running afoul of our
constitutional provision requiring a separation of powers.
A circuit judge is a member of the judicial department
and cannot constitutionally exercise the function of a
member of the executive department. The solicitors and
Attorney General are members of the executive branch of
government.
State v. Tootle, 330 S.C. 512, 515, 500 S.E.2d 481, 482 (1998) (citations omitted).
An analysis of the issue on appeal must include a review of not only subsection (B)
of section 17-15-20, but also subsection (A). Section 17-15-20(A) establishes:
An appearance recognizance or appearance bond must be
conditioned on the person charged personally appearing
before the court specified to answer the charge or
indictment and to do and receive what is enjoined by the
court, and not to leave the State, and be of good behavior
toward all the citizens of the State, or especially toward a
person or persons specified by the court.
(emphases added).
Thus, the bond requires the defendant to appear and to do what the court requires.
We note that the solicitor, not the court, authorizes and contracts with a defendant
to participate in PTI, and if the defendant violates its agreement with the solicitor,
"the prosecution of pending criminal charges against the offender shall be resumed
by the solicitor." S.C. Code Ann. § 17-22-150(b)(3) (emphases added). Tucker
did not receive a resolution from the court of the charges against him at the time he
entered PTI. Rather, he entered into an agreement with the solicitor only. Section
17-15-20(A) mandates that a bond is conditioned on the defendant's actions
towards the court, not the solicitor's office.
This court's decision in State v. Firetag Bonding Service is impactful. 345 S.C. 54,
545 S.E.2d 838 (Ct. App. 2001). In that matter, a surety added to the back of a
bond agreement, "NOTICE: NO CONTINUANCE WITHOUT PRIOR CONSENT
FROM BONDING COMPANY." Id. at 55, 545 S.E.2d at 839. When the
defendant failed to appear for trial, the court estreated the bond. Id. On appeal, the
surety argued because the court did not notify the surety the matter was continued
to a later date, the trial court erred by estreating the bond. Id. This court, however,
affirmed the trial court, explaining section 17-15-20(A) establishes an appearance
recognizance bond requires a defendant to personally appear and "to do and
receive what shall be enjoined by the court." Id. at 56, 545 S.E.2d at 839
(emphasis by court) (quoting § 17-15-20). Our court further stated:
As is readily apparent, nothing in this section authorizes
a surety . . . to set the conditions of an appearance
recognizance regarding when and where the defendant
must appear. "What" a defendant must "do and receive,"
i.e., the conditions of the appearance recognizance, are
those things "enjoined by the court," not the surety. The
stamped notation on the back of the appearance
recognizance at issue that seeks to limit the magistrate's
authority to continue the defendant's case constitutes,
therefore, an unauthorized condition. As such, the
notation is nothing more than mere surplusage and in no
way affects the validity of the appearance recognizance
itself.
Id.
The statutory directive requiring a defendant to do what the court enjoins is
applicable here as well. Tucker's entry into PTI—the opportunity the solicitor gave
him—was not "those things 'enjoined by the court.'" Id. Rather, the condition of
the bond required Tucker's appearance in court, and the court did not err in
estreating the bond when Tucker failed to appear.
We now address subsection (B) of section 17-15-20, which allows for the
discharge of a bond under certain circumstances. "Unless a bench warrant is
issued, an appearance recognizance or an appearance bond is discharged upon
adjudication, a finding of guilt, a deferred disposition, or as otherwise provided by
law." Id. The statute provides, therefore, for specific instances in which a bond is
discharged. Surety contends entry into PTI is one of those circumstances. We
disagree.
We turn to our jurisprudence for instances in which the disposition of charges
against a defendant may be addressed at a later time. We note precedent indicates
a court may choose to suspend a rendered sentence to allow a defendant to
participate in the system known as "drug court." In State v. Perkins, our supreme
court described the opportunity available to a defendant for drug court:
The Thirteenth Circuit Drug Court Program (hereinafter
"Drug Court Program" or "Program") is a voluntary
therapeutic program which may be offered to a defendant
that is charged with a drug abuse offense within the
thirteenth circuit jurisdiction. The defendant pleads
guilty to the charge and agrees with the solicitor to enter
the Program. As a result, the trial court imposes a
sentence on the defendant, but suspends the sentence,
conditioned upon the successful completion the Program.
The participant agrees to abide by certain terms and
conditions of participation and may be sanctioned or
ultimately terminated for failure to comply with the terms
of the Program.
378 S.C. 57, 59, 661 S.E.2d 366, 367 (2008).
Another example of the court's authority to defer a complete resolution of charges
was discussed in State v. Campbell, 376 S.C. 212, 656 S.E.2d 371 (2008), in which
the defendant planned to testify against a codefendant. While the issue on appeal
in Campbell is not relevant here, the supreme court referenced the common
practice of an abated sentence as an incentive for testimony: "We note the typical
procedure in this situation is that a defendant pleads guilty pursuant to a plea
agreement and then the defendant's sentencing is held in abeyance until after the
defendant has cooperated at the co[]defendant's trial." Id. at 217, 656 S.E.2d at
373-74.
Surety contends Tucker's entry into PTI was similar to other forms of deferred
resolution of charges against a defendant. We disagree.
Surety specifically argues Tucker's entry into PTI is similar to a conditional
discharge in section 44-53-450(A) of the South Carolina Code (2018). However,
that statute establishes the court's authority to place a defendant on probation, after
a determination of guilt, and require the defendant to participate in a drug
treatment program:
Whenever any person who has not previously been
convicted of any offense under this article or any offense
under any state or federal statute relating to marijuana, or
stimulant, depressant, or hallucinogenic drugs, pleads
guilty to or is found guilty of possession of a controlled
substance, . . . the court, without entering a judgment of
guilt and with the consent of the accused, may defer
further proceedings and place him on probation . . . ,
including the requirement that such person cooperate in a
treatment and rehabilitation program . . . . Upon
violation of a term or condition, the court may enter an
adjudication of guilt and proceed as otherwise provided.
Upon fulfillment of the terms and conditions, the court
shall discharge the person and dismiss the proceedings
against him.
Id.We recognize multiple examples in our jurisprudence of the deferred and abated
disposition of criminal matters but find them dissimilar to entry into PTI. The
solicitor's invitation to a defendant to enter into PTI allows a solicitor, not the
court, to hold pending charges in abeyance during the pendency of PTI. The
disposition of the outstanding charges against the defendant are not addressed by
the court until PTI is successfully completed or the pending charges are resumed
because a defendant does not complete PTI. Further, upon entry into PTI, the
defendant has not pled guilty. Thus, the characteristics of PTI are unlike other
matters in which a court defers disposition of charges against a defendant.
Tucker did not plead guilty, was not found guilty, and was not placed on probation
by the court. The circuit court did not render a decision regarding the charges
against him. Rather, the solicitor and Tucker entered into an agreement to allow
Tucker an opportunity to participate in PTI. The PTI statute clearly establishes
criminal charges remain pending during the intervention program and the offender
will be prosecuted if he does not successfully complete PTI. As such, entry into
the PTI program does not qualify as a deferred disposition under section 17-15-
20(B).
In addition to finding entry into PTI is not a deferred disposition and the charges
against Tucker were still pending upon entry into PTI, we also find Surety is
obligated on the bond pursuant to contract law. Our jurisprudence indicates a
surety bond is a contract, subject to the rules of contract interpretation:
We have held that the State's right to estreatment or
forfeiture of a bail bond issued in a criminal case arises
from the contract, i.e., the bail bond form signed by the
parties. The parties to such a contract typically include
the defendant; the person or company which acts as
surety for the bond, if any; and the state and local
government entities identified on the bond form. We
routinely have applied contract principles to resolve
various issues arising in bond forfeiture cases.
State v. McClinton, 369 S.C. 167, 171, 631 S.E.2d 895, 897 (2006). "The State's
right to estreatment is governed by contract." State v. Cochran, 358 S.C. 24, 27,
594 S.E.2d 844, 845 (2004).
If the bond agreement is breached, the liability of the surety is established, unless
the court orders otherwise. Pride v. Anders, 266 S.C. 338, 341, 223 S.E.2d 184,
186 (1976). "Since it was undisputed that the condition of the recognizances had
been breached by the failure of the defendants to appear, the recognizances were
forfeited and the liability of appellant-surety to pay the amount of the penalty then
became fixed, unless relieved or exonerated by action of the court." Id. at 340, 223
S.E.2d at 185.
"The obligation of a surety is not to the State to produce the defendant, but is rather
'an obligation to answer, to the extent of the penalty, for the default of the
defendants, as principals.'" State v. Mitchell, 421 S.C. 365, 372, 807 S.E.2d 193,
196 (2017) (quoting Pride, 266 S.C. at 341, 223 S.E.2d at 186).
Under the terms of the bond agreement, Surety agreed to indebt itself to the State
in the amount of $10,000 "should [Tucker] fail in performing the conditions of this
[o]rder." When Tucker failed to appear for trial, "the liability of the surety became
fixed." 266 S.C. at 340, 223 S.E.2d at 185. "Since it was undisputed that the
condition of the recognizances had been breached by the failure of the defendants
to appear, the recognizances were forfeited and the liability of appellant-surety to
pay the amount of the penalty then became fixed, unless relieved or exonerated by
action of the court." Id. (emphasis added).
We also find it noteworthy the Firetag decision indicated defendant's failure to
appear alone was sufficient to authorize the court to estreat the bond. "Indeed,
[defendant's] failure to appear on August 16, 1999, was alone a sufficient basis for
the magistrate to forfeit the amount of the appearance recognizance,
notwithstanding the stamped notation." 345 S.C. at 56, 545 S.E.2d at 839. Surety
contracted to be indebted to the State in the amount of $10,000 should Tucker fail
to appear for trial. The principles of contract law dictate Surety was bound by its
obligation. Because the circuit court did not act to relieve Surety of its promise,
Surety remained liable.
CONCLUSION
We find the circuit court did not abuse its discretion by its partial estreatment of
the bond. Tucker's acceptance into PTI by the solicitor was not a deferred
disposition by the court; the PTI statutory provisions establish the charges
remained pending; and, because Surety was contractually liable for the failure of
Tucker to appear for trial, the court did not err in estreating the bond. Accordingly,
the circuit court's decision is
AFFIRMED.
LOCKEMY, C.J., and MCDONALD, J., concur.