State of West Virginia v. Weatherholtz Bail Bonding ( 2017 )


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  •                             STATE OF WEST VIRGINIA
    SUPREME COURT OF APPEALS
    State of West Virginia,                                                           FILED
    Respondent
    May 19, 2017
    RORY L. PERRY II, CLERK
    vs) No. 16-0396 (Berkeley County 14-F-29)                                    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Weatherholtz Bail Bonding,
    Petitioner
    MEMORANDUM DECISION
    Petitioner and defendant below Weatherholtz Bail Bonding, by counsel Paul G. Taylor,
    appeals the March 25, 2016, “Order Denying Weatherholtz Motions to Amend Final Order and
    to Re-Open Evidence” that was entered in the Circuit Court of Berkeley County following entry
    of the court’s prior “Order Denying Weatherholtz Bail Bonding’s Motion to Return and Remit
    Forfeited Bond.” The State of West Virginia, by counsel Benjamin M. Hiller, filed a response in
    support of the circuit court’s order.
    This Court has considered the parties’ briefs and the record on appeal. The facts and legal
    arguments are adequately presented, and the decisional process would not be significantly aided
    by oral argument. Upon consideration of the standard of review, the briefs, and the record
    presented, the Court finds no substantial question of law and no prejudicial error. For these
    reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
    of the Rules of Appellate Procedure.
    Roger C. Doleman (hereinafter “defendant”) was indicted in February of 2014 on a
    variety of charges including first degree robbery, conspiracy to commit robbery, assault during
    the commission of a felony, petit larceny, obstruction, and fleeing from law enforcement by
    means other than a use of a vehicle. Petitioner, a professional bonding company, posted
    defendant’s bond, which was set at $50,000. Following a continuance, trial was set for June 24,
    2015.
    In the interim, in May of 2014, another criminal complaint was filed against defendant
    for driving while revoked for driving under the influence and fleeing the scene of an accident
    with injury. A warrant for defendant’s arrest was issued on June 6, 2014. The State thereafter
    moved to revoke defendant’s bail. The circuit court granted the State’s motion to revoke bail on
    the ground that defendant violated the terms and conditions of his criminal bail agreement and
    issued a capias for his arrest. A copy of the circuit court’s order was forwarded to petitioner.
    Defendant failed to appear for trial on June 24, 2014. The court entered a second order
    revoking defendant’s bond and issued another capias.
    On July 2, 2014, the State filed a motion for forfeiture of bond and to show cause why a
    1
    default should not be entered against petitioner. The circuit court entered an order forfeiting bond
    and a show cause hearing was held on July 14, 2014, where it was determined that petitioner
    failed to show cause why default on the forfeited bond should not be ordered. However, the court
    stayed its ruling, granted petitioner thirty days to apprehend defendant, and further ordered that,
    if defendant was not located within thirty days, counsel for petitioner “has leave to seek an
    additional extension of time by filing a motion with the Court and providing a detailed
    explanation of efforts made by [petitioner] to locate and detain [d]efendant . . . .”
    On September 29, 2014, the circuit court entered an order of default on the forfeited
    bond, ruling that “[m]ore than sixty days have since passed and the Defendant has not been
    returned to the jurisdiction of this Court, nor has [petitioner] moved to extend the time.”
    Furthermore, the State represents, and petitioner does not dispute, that petitioner failed to provide
    the court with detailed information regarding its efforts to apprehend defendant up to that point.
    The court ordered that petitioner immediately remit the forfeited bond amount of $50,000 to the
    clerk of the court.
    On October 2, 2014, petitioner filed a motion to alter, amend, and vacate the court’s
    September 29, 2014, order in which it stated that it “has been diligently attempting to locate
    [defendant] without success[;]” that it “was and is in a position to detail its efforts for the
    Court[;]” that it “has filed suit on its surety agreement with defendant and his family/friends in
    an effort to apply pressure which, hopefully, will force [defendant] to surface[;]” and that it
    “inadvertently failed to timely seek leave of court for a stay on forfeiting [defendant’s] bond and
    an extension of time to locate [defendant].” The State opposed petitioner’s’ motion.
    By order entered October 10, 2014, the circuit court denied the motion to alter, amend,
    and vacate its prior order, finding that “[m]ore than one hundred days have passed since the
    Defendant absconded from his bail on serious felony charges and crimes of personal violence,”
    and that there exists “no good cause to vacate its prior order.”
    In December of 2014, defendant was arrested in the State of Maryland by Maryland
    authorities on Maryland charges. In April of 2015, after defendant was convicted and sentenced
    for the Maryland crimes, he was transferred to West Virginia through the interstate agreement on
    detainers process.
    On September 8, 2015, the State filed a motion for contempt against petitioner on the
    ground that petitioner had failed to remit the forfeited bond to the clerk, as previously ordered. A
    show cause hearing was scheduled for October 5, 2016. On September 28, 2015, petitioner filed
    an objection to the State’s motion for contempt, claiming that it never received a copy of the
    October 10, 2014, order denying its motion to alter, amend, and vacate the default order and also
    recounting, in an attached exhibit, its “extensive efforts to apprehend [defendant].”1
    1
    The copy of petitioner’s “Exhibit A” included in the appendix record on appeal, which
    was attached to petitioner’s objection to the State’s motion for contempt, appears to be only a
    partial copy. It is also unsigned and unsworn. It is unclear who authored the exhibit.
    2
    By order entered October 19, 2015, following the October 5, 2015, hearing, the parties
    entered into an agreed order in which petitioner was to remit the previously forfeited bond of
    $50,000 no later than October 19, 2015. Also on that date, the circuit court entered a separate
    order granting petitioner’s request for a thirty-day leave to file a motion for return of the forfeited
    bond, to which the State did not object.
    On October 30, 2015, petitioner filed a motion to return and remit forfeited bond. In its
    subsequently filed memorandum in support of the motion, petitioner again recounted its
    extensive efforts to apprehend defendant. The State filed a response.2
    On January 4, 2016, the circuit court held a hearing on petitioner’s motion. Tommy
    Weatherholtz, petitioner’s principal, was present at the hearing but was not called to testify.
    Petitioner called defendant as its only witness. The essence of defendant’s testimony was that he
    saw Mr. Weatherholtz on numerous occasions while he was on the run and that he moved from
    place to place in order to avoid being apprehended by petitioner. According to petitioner,
    defendant’s testimony corroborated its claim that it expended much effort in its attempt to find
    and apprehend defendant in order to return him to the custody of the circuit court. By order
    entered February 16, 2016, the court denied petitioner’s motion.
    Petitioner thereafter filed a motion to re-open evidence so as to address the finding in the
    February 16, 2016, order that petitioner failed to present evidence of its efforts to apprehend
    defendant. Petitioner contemporaneously filed a motion to alter or amend the February 16, 2016,
    order under West Virginia Rule of Civil Procedure 59(e), or, in the alternative, a motion for
    relief from that order under Rule 60. The circuit court denied petitioner’s motions by order
    entered March 25, 2016. This appeal followed.
    In its first assignment of error, petitioner argues that the circuit court erred in failing to
    remit all or any portion of the forfeited bond. This Court has previously held that “[a] trial
    court’s decision on whether to remit, under Rule 46(e)(4) of the West Virginia Rules of Criminal
    Procedure, a previously forfeited bail bond will be reviewed by this Court under an abuse of
    discretion standard.” Syl. Pt. 1, State v. Hedrick, 
    204 W. Va. 547
    , 
    514 S.E.2d 397
    (1999).
    Furthermore, it is petitioner, as the surety, who bears the burden of establishing such an abuse of
    discretion. 
    Id., at 548,
    514 S.E.2d at 398, at syl. pt. 2 (holding that “[t]he surety bears the burden
    of establishing that the trial court abused its discretion in refusing to remit, pursuant to Rule
    46(e)(4) of the West Virginia Rules of Criminal Procedure, all or part of a previously forfeited
    bail bond.”).
    In syllabus point three of Hedrick, we established some relevant criteria that circuit courts
    must consider when contemplating whether to remit forfeited bail:
    When a trial court is asked to remit all or part of a previously forfeited bail
    bond, pursuant to Rule 46(e)(4) of the West Virginia Rules of Criminal
    Procedure, the court shall consider the following criteria to the extent that they
    2
    Meanwhile, defendant pleaded guilty to first degree robbery, assault during the
    commission of a felony, and felony failure to appear, and was sentenced thereon.
    3
    are relevant to the particular case under consideration: (1) the willfulness of
    the defendant’s breach of the bond’s conditions; (2) the cost, inconvenience
    and prejudice suffered by the government as a result of the breach; (3) the
    amount of delay caused by the defendant’s default and the stage of the
    proceedings at the time of his or her disappearance; (4) the appropriateness of
    the amount of the bond; (5) the participation of the bondsman in rearresting
    the defendant; (6) whether the surety is a professional or a friend or member
    of the defendant’s family; (7) the public interest and necessity of effectuating
    the appearance of the defendant; and (8) any explanation or mitigating factors
    presented by the defendant. These factors are intended as a guide and do not
    represent an exhaustive list of all of the factors that may be relevant in a
    particular case. All of the factors need not be resolved in the State’s favor for
    the trial court to deny remission in full or in part. Moreover, it is for the trial
    court to determine the weight to be given to each of these various factors.
    204 W.Va. at 
    548-49, 514 S.E.2d at 398-99
    , syl. pt. 3.
    On appeal, petitioner argues that the circuit court failed to weigh the Hedrick factors in an
    appropriate manner and, thus, abused its discretion in concluding that the forfeited bond should
    not be remitted. Petitioner argues that it was defendant and not petitioner who intentionally failed
    to appear at trial; that the State failed to present any evidence that it sustained a pecuniary loss in
    connection with defendant’s disappearance and the State’s efforts to find him; that the State was
    not prejudiced because its witnesses were ready to testify at trial; and that defendant was
    returned to West Virginia within the two-year time period required by West Virginia Code § 62­
    1C-12(b) (providing, in part, that a “bail bondsman shall be reimbursed the full amount of the
    bond forfeiture . . . if the bail bondsman returns the defendant . . . within two years of the
    forfeiture of the bond.”). Petitioner argues further that it expended enormous efforts in capturing
    defendant even though it did not physically apprehend him. Petitioner contends that it was not
    personally notified that defendant failed to appear, giving defendant a one-month “head start to
    avoid apprehension[;]” and that, once notified, petitioner searched and surveilled the homes of
    defendant’s relatives in West Virginia and Pennsylvania, as well as the home and vehicle of
    defendant’s girlfriend in Delaware. Although none of these efforts produced defendant,
    petitioner represents that it “developed” an address in Hagerstown, Maryland for defendant’s
    whereabouts that it gave to United States Marshals, and that the Hagerstown Police Department
    apprehended defendant at that address in December of 2014. According to petitioner, this proves
    that it was directly responsible for defendant’s capture. Finally, petitioner argues, the circuit
    court should have considered an additional factor—that petitioner, as a professional bonding
    company, provides an important public function and, in addition to the expenses it incurred in
    searching for defendant, the refusal to remit the forfeited bond will have a deleterious impact on
    its business.3
    Based upon our review of the record on appeal and the arguments of counsel, we find no
    3
    As for the factor regarding the appropriateness of the bond amount, the parties
    stipulated that the $50,000 bond amount was reasonable and appropriate.
    4
    error and conclude that the circuit court did not abuse its discretion in the manner in which it
    considered the factors in Hedrick and in refusing to remit the forfeited bond. First, defendant’s
    bond violation was substantial and intentional given that he purposefully did not appear for trial
    to avoid prosecution and remained at large for more than a year. Second, the cost, inconvenience,
    and prejudice the State suffered as a result of the breach consisted of a fourteen month delay,
    disruption and delay of the circuit court’s docket, the fact that the case occupied the prosecutor’s
    office for a longer period than would otherwise be necessary, and the expenditure of
    considerable court resources. Third, there was a lengthy delay caused by defendant’s failure to
    appear, which occurred on the eve of trial. Furthermore, although petitioner recounted his efforts
    to apprehend defendant and claims that it was directly responsible for defendant’s ultimate
    capture by Maryland authorities, such efforts are but one factor to be considered. As this Court
    has stated, “such efforts alone are insufficient to justify full remission.” 
    Hedrick, 204 W. Va. at 557
    , 514 S.E.2d at 407. This Court has further advised that the purpose of bond is to assure a
    defendant’s appearance in court and, when a surety fails in its duty to insure that the defendant
    appears for trial, the bond is necessarily forfeited. 
    Id. at 558,
    214 S.E.2d at 408. Petitioner’s
    unsuccessful efforts to apprehend defendant do not satisfy its obligation such that petitioner
    “should be entitled to full remission of the forfeited bond. To find otherwise would be to
    diminish the duty of a bonding company or other surety to act diligently to assure that its bailees
    conform to the conditions of their bonds in order to avoid forfeiture.” 
    Id. Furthermore, petitioner
    is a professional bonding company, with experience and
    knowledge of its rights and duties, see id.; as such, it assumes the financial risk of securing the
    presence of criminal defendants for trial. Petitioner knew, or should have known, that
    defendant’s disappearance on the eve of trial and for such a long period, would result in
    petitioner being liable for the bond posted. Moreover, given the violent nature of defendant’s
    crimes, the public had a real and significant interest in justice being served in a timely manner.
    Finally, petitioner’s claim that it will suffer financial hardship if the bond is not remitted ignores
    the risk associated with its professional services, for which it is paid to assure that criminal
    defendants appear for trial. Based upon the foregoing, we conclude that petitioner failed to
    satisfy its burden of establishing that the circuit court abused its discretion in refusing to remit
    the forfeited bond.
    We next address petitioner’s second, fourth, and fifth assignments of error, as they are
    interrelated. Petitioner argues that the circuit court erred in requiring petitioner to “verify” the
    efforts it took to apprehend defendant because verification of such efforts is not a requirement
    for remission of bond under Hedrick or otherwise. Petitioner argues further that its constitutional
    right to access the courts4 was violated when the circuit court noticed the January 4, 2016,
    hearing as an “argument” hearing but proceeded to take evidence without giving notice to
    petitioner. Finally, petitioner argues that the circuit court abused its discretion in refusing
    petitioner’s subsequent request to demonstrate its efforts to apprehend defendant.
    Based upon our review, we find petitioner’s arguments to be without merit. First,
    notwithstanding petitioner’s argument to the contrary, the circuit court did not refuse to remit the
    forfeited bond solely based upon petitioner’s failure to verify its efforts to apprehend defendant.
    4
    See W.Va. Const. Art. III, § 17.
    5
    As set forth in detail in its January 16, 2016, order, the circuit court considered all of the relevant
    Hedrick factors and determined that remission of the forfeited bond was not warranted. As
    previously discussed herein, whether petitioner participated in defendant’s rearrest was but one
    factor. We note, however, that petitioner attempted to recount its efforts to apprehend defendant
    in pleadings filed below. “It is black letter law that ‘[s]tatements made by lawyers do not
    constitute evidence in a case.’ West Virginia Fire & Cas. Co. v. Mathews, 209 W.Va. 107, 112 n.
    5, 
    543 S.E.2d 664
    , 669 n. 5 (2000).” Barbina v. Curry, 
    221 W. Va. 41
    , 48, 
    650 S.E.2d 140
    , 147
    (2007). See also Crum v. Ward, 146 W.Va. 421, 457, 
    122 S.E.2d 18
    , 38 (1961) (Haymond,
    President, dissenting) (stating that “[e]very trial judge knows, as every trial lawyer knows, and
    every appellate court judge should know, that the statements of counsel in an argument are not
    evidence . . . .”). Thus, to the extent the circuit court deemed petitioner’s representations in this
    regard to be inadequate evidence of one of the Hedrick factors, we find that the court did not
    abuse its discretion.
    With regard to the nature of the January 4, 2016, hearing, the transcript reveals that it was
    petitioner’s counsel who sought to introduce evidence at the hearing. Petitioner’s counsel
    proceeded to question defendant in an effort to “corroborate” petitioner’s unsubstantiated claims
    regarding its efforts to apprehend defendant. Although petitioner’s principal, Tommy
    Weatherholtz, was also present at the hearing, counsel elected not to elicit sworn testimony from
    him in this regard. Given these facts, we conclude that petitioner was not denied an opportunity
    to be heard or otherwise denied access to the courts. As for petitioner’s claim that his
    subsequently filed motion to reopen the evidence was improperly denied, we likewise find no
    error. Petitioner was afforded more than ample time and opportunity to properly present evidence
    of its efforts to apprehend defendant, but failed to do so.
    Finally, petitioner assigns as error the circuit court’s narrow construction of West
    Virginia Code § 62-1C-12(b), which provides:
    Notwithstanding any provision of this code to the contrary, when a bail
    bondsman, as defined in article ten [§§ 51-10-1 et seq.], chapter fifty-one of this
    code, has a surety bond forfeited because of the failure of a defendant to appear
    before a court or magistrate, that bail bondsman shall be reimbursed the full
    amount of the bond forfeiture, be it cash or surety, if the bail bondsman returns
    the defendant to the custody of the court or magistrate, within two years of the
    forfeiture of the bond.
    (Emphasis added).
    Petitioner argues that defendant was returned to the custody of the circuit court within
    two years of the forfeiture of the bond. According to petitioner, even though it did not personally
    deliver defendant, his capture was primarily due to petitioner’s efforts. Thus, petitioner argues,
    the spirit and intent of West Virginia Code § 62-1C-12(b) dictate that petitioner receive the full
    amount of the forfeited bond and to conclude otherwise is manifestly unfair.
    This issue is one of statutory construction. “‘Where the issue on appeal from the circuit
    court is clearly a question of law or involving an interpretation of a statute, we apply a de novo
    standard of review.’ Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 
    194 W. Va. 138
    , 
    459 S.E.2d 415
    6
    (1995).” Syl. Pt. 1, Frantz v. Palmer, 
    211 W. Va. 188
    , 
    564 S.E.2d 398
    (2001).
    Upon our de novo review, we conclude that the circuit court did not err in construing
    West Virginia Code § 62-1C-12(b) in such a way that petitioner was not entitled to
    reimbursement of the forfeited bond. “‘A statutory provision which is clear and unambiguous
    and plainly expresses the legislative intent will not be interpreted by the courts but will be given
    full force and effect.’ Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 
    65 S.E.2d 488
    (1951).” Syl. Pt.
    6, State ex rel. Biafore v. Tomblin, 
    236 W. Va. 528
    , 
    782 S.E.2d 223
    (2016). The clear and
    unambiguous language of West Virginia Code § 62-1C-12(b) provides for reimbursement “if the
    bail bondsman returns the defendant to the custody of the court . . . within two years of the
    forfeiture of the bond.” (Emphasis added). It is undisputed that defendant was arrested in
    Maryland by Maryland authorities on Maryland charges. Defendant was thereafter transferred to
    West Virginia through the interstate agreement on detainers process. West Virginia Code § 62­
    1C-12(b) clearly required petitioner to return defendant to the custody of the circuit court as a
    condition precedent to reimbursement of the forfeited bond. Petitioner failed to satisfy this
    statutory requirement. Thus, it was not error for the circuit court to conclude that petitioner was
    not entitled to reimbursement of the forfeited bond under the statute.
    For the foregoing reasons, we affirm.
    Affirmed.
    ISSUED: May 19, 2017
    CONCURRED IN BY:
    Chief Justice Allen H. Loughry II
    Justice Robin Jean Davis
    Justice Margaret L. Workman
    Justice Menis E. Ketchum
    Justice Elizabeth D. Walker
    7