State v. Urch

[Cite as State v. Urch, 

.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2019-A-0034
         - vs -                                  :

 ANTHONY JAMES URCH,                             :

                  Defendant,                     :

 THOMAS COOL BAIL BONDING,                       :

                  Appellant.                     :


 Criminal Appeal from the Ashtabula County Court, Western District, Case No. 2018 CRB
 00262 W.

 Judgment: Reversed and Remanded.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Plaintiff-Appellee).

 Jeffrey V. Goodman, 119 West Market Street, Warren, OH 44481 (For Appellant).



MARY JANE TRAPP, J.

        {¶1}      Appellant, Thomas Cool Bail Bonding, L.L.C. (“TCB Bonding”), appeals the

$7,500 bond forfeiture judgment of the Ashtabula County Court, Western District,

regarding the bond it posted on behalf of the defendant, Anthony James Urch (“Mr. Urch”),

in favor of the State of Ohio. Despite notice, neither TCB Bonding nor Mr. Urch appeared
at a January 30, 2019 show cause hearing from which the judgment emanates. TCB

Bonding, however, produced Mr. Urch when it apprehended him and turned him into the

Geneva City Police Department well before the show cause hearing date. The record

reflects Mr. Urch has yet to appear before the trial court to resolve his case.

       {¶2}   On appeal, TCB Bonding argues that the trial court abused its discretion by

entering judgment against it because: (1) it demonstrated good cause pursuant to R.C.

2937.36(C) when it apprehended Mr. Urch and returned him to the “court’s custody” on

November 18, 2018; and (2) TCB Bonding surrendered Mr. Urch to the Ashtabula County

Court, exonerating it from liability on Mr. Urch’s bond pursuant to R.C. 2713.23.

       {¶3}   After reviewing the record and applicable law, we find TCB Bonding’s first

assignment of error to have merit insofar as TCB surrendered Mr. Urch to the Geneva

City Police Department on November 18, 2018. The following day, Mr. Urch appeared in

court, and the trial court released Mr. Urch from jail upon a new $5,000 unsecured

personal recognizance bond for future court appearances. On the same day, the court

received a letter from TCB Bonding asking the court to be discharged from liability for the

first $7,500 surety bond since it produced the body before the date of the show cause

hearing. Thus, we reverse the trial court’s judgment against TCB Bonding since it showed

good cause pursuant to R.C. 2973.36(C), and remand the matter for further proceedings

in accordance with this opinion.

                          Substantive and Procedural History

       {¶4}   A summons to appear was served upon Mr. Urch for knowingly possessing

and consuming beer or intoxicating liquor underage in violation of R.C. 4301.69(E)(1), a

first-degree misdemeanor.       Mr. Urch was first released on a $1,000 personal




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recognizance bond. After failing to appear for his arraignment, the court warned Mr. Urch

in a written notice that if he failed to appear at the reset hearing, a bench warrant for arrest

would be issued or his driver’s license would be forfeited.

       {¶5}   Subsequently, a bench warrant was issued because Mr. Urch, again, failed

to appear. The warrant was recalled after Mr. Urch was in custody, and on the same day,

TCB Bonding posted a $7,500 surety bond. Thereafter, Mr. Urch made appearances at

his arraignment and pretrial hearing where the state recommended dismissal of the

charges.

       {¶6}   The case was set to conclude at a dismissal hearing on November 7, 2018,

but Mr. Urch failed to appear. On the same day, pursuant to R.C. 2937.36, the court

ordered bail forfeited and the clerk of courts to notify Mr. Urch and TCB Bonding of the

forfeiture of bail for failure to appear. Both Mr. Urch and TCB Bonding were ordered to

appear on December 26, 2018, to show cause why judgment should not be entered

against each of them.

       {¶7}   On November 18, 2018, TCB Bonding apprehended Mr. Urch and delivered

him to the Geneva City Police Department. In a letter to the court sent the following day,

TCB Bonding requested that bond be revoked and that it be relieved of all liability for the

$7,500 bond for good cause.

       {¶8}   Mr. Urch was brought before the court. The court again set the matter for

a dismissal hearing on December 26, 2018 (the same day as the show cause hearing)

and released Mr. Urch on a $5,000 personal recognizance bond.

       {¶9}   At the hearing on December 26, 2018, Mr. Glenn Perry, on behalf of TCB

Bonding, appeared unrepresented and Mr. Urch failed to appear. The court inquired as




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to whether TCB Bonding had counsel and informed TCB Bonding that an attorney is “the

only person who can advocate or speak on behalf of a limited liability company.” Mr.

Perry told the court that TCB Bonding’s surety bond should have been released because

after it delivered Mr. Urch to the Geneva Police, the court issued a personal recognizance

bond of $5,000. Since TCB Bonding could not proceed without an attorney, the court did

not address TCB Bonding’s argument and reset the show cause hearing for January 30,

2019.

        {¶10} Only the state appeared at the continued hearing. The court found good

cause had not been shown “by production of Mr. Urch or otherwise.” Judgment was

granted against Mr. Urch and TCB Bonding in favor of the State of Ohio in the amount of

$7,500. The court docket reflects that as of February 1, 2019, Mr. Urch continues to be

unavailable for trial or sentencing.

        {¶11} TCB Bonding raises two assignments of error on appeal:

        {¶12} “[1.] The trial court abused its discretion by entering judgment against the

appellant in its January 30, 2019 journal entry because good cause was shown by the

appellant to avoid judgment pursuant to R.C. 2937.36(C), as the appellant arrested and

returned the defendant to the trial court’s custody on November 18, 2018 and this good

cause was shown to vacate forfeiture and the defendant’s subsequent appearances in

court prior to the December 26, 2018, of the bond forfeiture show cause hearing.

        {¶13} “[2.] The trial court abused its discretion by entering judgment against the

appellant in its January 30, 2019 journal entry because the defendant was surrendered

to the Ashtabula County Court by the appellant, which exonerated the appellant from

liability on the defendant’s bond pursuant to R.C. 2713.23.”




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                                   Standard of Review

       {¶14} We review a “trial court’s bond forfeiture decision using an abuse of

discretion standard.” State v. Owens, 11th Dist. Ashtabula No. 2003-A-0088, 2004-Ohio-

5941, ¶12, quoting State v. Green, 9th Dist. Wayne Nos. 02CA0014 & 02CA0019, 2002-

Ohio-5769, ¶11. The term “abuse of discretion” is one of art, “connoting judgment

exercised by a court, which does not comport with reason or the record.” (Citations

omitted.) State v. O’Keefe, 11th Dist. No. 2018-L-088, 

. Stated

differently, an “abuse of discretion,” is the trial court’s “failure to exercise sound,

reasonable, and legal decision-making.” 

 quoting State v. Beechler, 2d Dist. Clark No.

09-CA-54, 

, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).

                          Show Cause Forfeiture Proceedings

       {¶15} In its first assignment of error, TCB Bonding argues the trial court abused

its discretion in entering the judgment against it because good cause was shown to vacate

the forfeiture since it “produced the body of the accused” after Mr. Urch’s failure to appear

at the November dismissal hearing and before the scheduled show cause hearing date.

       {¶16} We find this argument to have merit since TCB Bonding showed good cause

as to why the bond should not have been forfeited against it when TCB Bonding

apprehended Mr. Urch and surrendered him to the Geneva City Police Department. TCB

Bonding then sent a letter to notify the court that it did so, requesting a release from

liability. On the same day, Mr. Urch appeared in open court. The court imposed a new

unsecured $5,000 personal recognizance bond and issued a warrant to discharge and

release Mr. Urch from jail.




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       {¶17} “The purpose of bail is to ensure the accused’s presence in court at all

stages of the proceedings.” State v. Berry, 12th Dist. Clermont No. CA2013-11-084,

, citing State v. Crosby, 12th Dist. Clermont No. CA2009-01-001,

, ¶23, citing State v. Hughes, 

 (1986). One of the

permissible forms of bail is “recognizance,” which is a “written undertaking by one or more

persons to forfeit the sum of money set by the court or magistrate, if the accused is in

default for appearance ….”   

 quoting R.C. 2937.22(A)(3).      One form of a

recognizance is a surety bond. 

 citing R.C. 2937.281; Crim.R. 46(A)(3).

       {¶18} “Thus, where a surety bond serves as recognizance, it ‘is a contract in which

the surety promises the court that it will pay a monetary penalty if the accused who is

released on the bond posted by the surety fails to appear in court when ordered.’” 

quoting State v. Scherer, 

 (2d Dist.1995).

       {¶19} When neither Mr. Urch or TCB Bonding appeared for the November 7, 2018

dismissal hearing, the trial court, pursuant to its statutory authority, ordered the bond

forfeited and set the matter for a show cause hearing, sending notice to both Mr. Urch

and TCB Bonding. “If an accused fails to appear in accordance with the terms of his

release, R.C. 2937.35 gives the court discretion to either immediately declare the bail

forfeit[ed], in whole or in part, or to continue the cause to a later date.” Id. at ¶10, citing

R.C. 2937.35. If at any time the court declares bail forfeited, the forfeiture proceedings

are governed by R.C. 2937.36, which states in pertinent part:

       {¶20} “Upon declaration of forfeiture, the magistrate or clerk of the court adjudging

forfeiture shall proceed as follows:

       {¶21} “…




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       {¶22} “(C) As to recognizances the magistrate or clerk shall notify the accused

and each surety … 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

… 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 ….” (Emphasis added.)

       {¶23} “By implication, R.C. 2937.36(C) provides that a surety may be released

from liability under its bond if it can show good cause.” (Citation omitted.) Berry at ¶11.

       {¶24} We agree with TCB Bonding that pursuant to R.C. 2937.36(C), good cause

was shown by “producing the body of the accused” when TCB Bonding apprehended Mr.

Urch on November 18, 2018 and surrendered him into the custody of the Geneva City

Police Department. Mr. Urch appeared before the court the next day. While neither Mr.

Urch or TCB Bonding appeared for the November 7th hearing that prompted the court to

forfeit the bond and set the matter for a show cause hearing, when TCB Bonding

produced Mr. Urch before the show cause hearing “judgment should not [have been]

entered against [it] for the penalty stated in the recognizance.” R.C. 2973.36(C).

       {¶25} Moreover, a new bond for which Mr. Urch was solely liable secured his

presence for future court appearances. See Accredited Sur. And Cas. Co., Inc. v. Florida,

 (Fla.App.1980) (the release of the defendant on her own

recognizance constituted a new contract to appear between only her and the state. The

surety was not a party to that new contract and therefore was not liable for the defendant’s

subsequent failure to appear).




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       {¶26} Suffice it to say that a motion requesting release from liability rather than

mere correspondence to the court and an appearance with counsel at the first show cause

hearing would have resolved this matter without resort to appellate practice.

       {¶27} TCB Bonding’s first assignment of error is with merit, and we reverse and

remand on this basis.

                  Exoneration from Liability Pursuant to R.C. 2713.23

       {¶28} In its second assignment of error, TCB Bonding argues the trial court

abused its discretion because it surrendered Mr. Urch to the Ashtabula County Sheriff on

November 18, 2018, which exonerated it from liability on Mr. Urch’s bond pursuant to R.C.

2713.23.

       {¶29} Although we find TCB Bonding’s first assignment of error to have merit and

reverse on that basis, we briefly note that this argument fails for the simple reason that

R.C. 2713.23 is applicable only in civil cases.         The Fifth District Court of Appeals

addressed this issue in State v. AAA Sly Bail Bonds, 5th Dist. Richland No. 17-CA-56,

. The court explained as follows:

       {¶30} “Chapter 2713 of the Ohio Revised Code contemplates ‘Arrest and Bail’ in

the civil context. R.C. 2713.01 provides that ‘[i]n a civil action, a defendant can be

arrested before judgment only in the manner prescribed by R.C. 2713.01 to R.C. 2713.29.

… R.C. 2713.02 sets forth that ‘an order of arrest’ is to be issued by the clerk of court

upon the filing of an affidavit by the plaintiff stating the nature and amount of the plaintiff’s

claim and facts ‘establishing one or more of the listed particulars.’ R.C. 2713.03 requires

the plaintiff or a surety to execute a bond that plaintiff will pay the defendant’s damages

up to double the amount in the affidavit in the event the order of arrest was wrongfully




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obtained. R.C. 2713.21 addresses the discharge of bail when a defendant is surrendered

in a civil case, while R.C. 2713.23 sets forth when bail is exonerated in a civil case.”

(Emphasis added.) Id. at ¶21. The court went on to explain that forfeiture of bail in

criminal proceedings is governed by Crim.R. 46 and R.C. Chapter 2937. Id. at ¶22-24,

quoting 

 (1986) (Forfeiture proceedings are governed by R.C. 2937.36);

State v. Bryson, 5th Dist. Stark Nos. 2007-CA-00108 & 2007-CA-00132, 

 (“The procedure for bail forfeiture is found in R.C. Chapter 2937”).

       {¶31} We find the same reasoning applies in this case. “Because this matter

involved a criminal case, R.C. 2713.21 and R.C. 2713.23 providing for the discharge and

the exoneration of bail in a civil case are not applicable.” Id. at ¶25, citing State v. Wade,

9th Dist. Lorain No. 17CA011081, 

.

       {¶32} TCB Bonding’s second assignment of error is without merit.

       {¶33} The judgment of the Ashtabula County Court, Western District, is reversed

and remanded.



THOMAS R. WRIGHT, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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