State v. Harvey

[Cite as State v. Harvey, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-22-43

        v.

JAQUAVEIUS E. HARVEY,
                                                          OPINION
        DEFENDANT-APPELLEE,

[CASTLE BAIL BONDS - APPELLANT].




                   Appeal from Allen County Common Pleas Court
                           Trial Court No. CR 2020 0383

                                      Judgment Affirmed

                              Date of Decision: May 15, 2023




APPEARANCES:

        April F. Campbell for Appellant

        John R. Willamowski, Jr. for Appellee, State of Ohio
Case No. 1-22-43


EPLEY, J.

       {¶1} Appellant, Castle Bail Bonds, surety for Jaquaveius E. Harvey, appeals

from the judgment of the Allen County Court of Common Pleas after the court

entered a $250,000 forfeiture judgment against it because Harvey failed to appear

for his felony case. For the reasons that follow, the judgment of the court will be

affirmed.

       I.     Facts and Procedural History

       {¶2} In October 2020, Harvey was charged with multiple serious drug crimes

including trafficking in heroin and engaging in a pattern of corrupt activity. He

entered a plea of not guilty and bond was set at $250,000. A few months later, Castle

Bail Bonds (“Castle”) became surety for Harvey, posting bond on his behalf. The

case proceeded with many hearings and motions, until Harvey failed to appear for

his final pre-trial hearing on September 17, 2021. A bench warrant was issued on

September 20, 2021.

       {¶3} On January 10, 2022, after months of Harvey being unaccounted for,

the State filed a motion to forfeit bond. On January 27, Castle filed a motion to be

released from the bond, citing “new” charges (the charges were filed in April of

2021, but Castle claimed to have been unaware of them until recently) that

amounted to a violation of the bond agreement. On February 15, 2022, the court

heard the State’s motion and ordered the entire bond forfeited. It further denied


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Castle’s request to be removed as surety and ordered Castle to show cause on or

before April 12, 2022, why judgment should not be entered against it.

       {¶4} At the April 12 show cause hearing, the court heard testimony from

Dana Barnhart, an agent and recovery officer at Castle. She testified that she had

spent “countless hours between Lima, Ohio and Fort Wayne, Indiana, trying to

recover [Harvey].” Hearing Tr. at 4-5. She also explained that she had hired outside

recover agents to help in the search. Despite the time and effort, agents had been

unsuccessful in the quest to locate Harvey. Barnhart also testified that she had tried

to get the US Marshalls to help in the search, but they allegedly told her that they

needed an invite from the Allen County Prosecutor’s Office to assist. She did admit,

however, that she had not reached out to the West Ohio Crime Task Force or the

prosecutor’s office for assistance.

       {¶5} At the close of the hearing, the court granted a 45-day extension, and

suggested reaching out to the assistant prosecutor assigned to drug cases because

she would have useful contacts with law enforcement who would also be interested

in getting Harvey off the streets. The trial court also noted that it had expanded the

warrant pick-up radius to “nationwide.”

       {¶6} A second show cause hearing took place on May 27, 2022. During that

proceeding, the court heard from Barnhart again, and from Matthew King, the

director of recovery for Dawgtown, Inc., another bail bonds enterprise looking for


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Harvey on another case. King testified that while no one had been able to capture

Harvey, he had spent more than $18,000 looking for him. He also told the court that

he thinks he knows where Harvey is, and on multiple occasions, has been just

minutes too late in recovery efforts. He stated, “I am very confident … that Mr.

Harvey is still here in Lima and is bouncing around from several different

addresses.” Hearing Tr. at 18.

       {¶7} Barnhart also testified on behalf of Castle. She complained that the

prosecutor’s office had been too busy to help, but the Marshalls were actively

looking for Harvey. She stated that she has physically seen him but has been unable

to capture him to this point.

       {¶8} At the close of testimony, the court granted one last 45-day extension

to Castle but made it clear that this was the last shot – they had until July 11 at 7:30

to recover Harvey. There would be no more extensions. When Harvey’s

whereabouts were still unknown on July 11, the court held that Castle had not shown

good cause as to why judgment should not be entered, and ordered the bond forfeited

in the amount of $250,000.

       {¶9} Castle has filed a timely appeal.




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       II.     Bond Forfeiture

       {¶10} In its lone assignment of error, Castle argues that the trial court abused

its discretion when it was ordered to pay the $250,000 bond forfeiture order. We

disagree.

       {¶11} “Bail bonds are contracts between the surety and the state.” State v.

Lott, 

, 

, ¶ 8 (1st Dist.). The surety agrees to ensure

that the defendant appears in court and the state agrees to release the defendant into

the custody of the surety. 

 If a defendant fails to appear for court, there is a breach

of the condition of bond and a trial court may declare a forfeiture of it unless the

surety can be exonerated as provided by law. State v. Guzman, 

, 

 (3d Dist.); State v. Hughes, 

, 

(1986). A final judgment of forfeiture in the case of a recognizance surety bond

consists of two steps: (1) adjudication of bail forfeiture pursuant to R.C. 2937.35,

and (2) a forfeiture show cause hearing under R.C. 2937.36. 

       {¶12} According to R.C. 2937.36, a trial court must notify (“by ordinary mail

at the address shown by them in their affidavits of qualification or on the record of

the case”) the defendant and the defendant’s surety of the defendant’s failure to

appear and the court’s declaration of the forfeiture within 15 days of the order. R.C.

2937.36(C). After recognizance is declared forfeited, the surety and defendant must

show cause (between 45 and 60 days of the date of the mailing notice) why judgment


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should not be entered against them for the penalty stated in the recognizance. R.C.

2937.36(C). “When good cause is not shown, the trial court must enter judgment

against them in an amount which does not exceed the face of the bond.” 

 A surety

can be exonerated if good cause “by production of the body of the accused or

otherwise” is shown. R.C. 2937.36(C).

       {¶13} An appeals court reviews a bond forfeiture decision for an abuse of

discretion. 

. See also State v. Thornton, 2d Dist. Montgomery No.

20963, 

. To constitute an abuse of discretion, a trial court’s

action must be arbitrary, unreasonable, or unconscionable. Ojalvo v. Bd. of Trustees

of Ohio State Univ., 

, 

 (1984).

       {¶14} Castle’s main argument is that Harvey made his capture impossible

during the timeframe given by the trial court. It argues that Harvey was being

protected by a network of people including the mother of some of his children and

a criminal syndicate known as SKU, a local group designed to protect people who

break the law. Appellant’s Brief at 7.

       {¶15} To make in-roads against the forces attempting to hide Harvey, Dana

Barnhart and Matthew King testified to the lengths the bail bond companies went to

capture him. Barnhart noted that she had spent “countless hours” looking for Harvey

in both Ohio and Indiana, had hired outside investigators, and recounted that on

several occasions she had seen Harvey but was unable to get a hold of him. King


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stated that he had spent more than $18,000 on the search, but lamented the difficulty

of the job because of Harvey’s associates’ work in hiding him. Both Barnhart and

King told the court that they had gotten warnings from Harvey and others,

threatening their safety if the search continued.

       {¶16} A surety bond is a contract and is subject to the rules governing

performance of contracts. State v. Scherer, 

, 

 (2d Dist.1995). “The common law tests for impossibility of performance

applicable to a bond forfeiture are prevention by an act of God, the act of the obligee,

or the act of law.” State v. Johnson, 2d Dist. Montgomery No. 21074, 2006-Ohio-

417, ¶ 20; see 

 (“According to the rule concerning impossibility of

performance, a promisor may be excused from an obligation to the promisee when

the performance promised is rendered impossible by operation of law, if that

impossibility was not foreseeable to the promisor.”). In this case, it is clear that

Harvey’s capture was not impossible. The presentation of his “body” in court was

not prevented by an act of God – he was not killed in a tornado or other natural

disaster, nor was it prevented by an act of law – and he was not incarcerated in

another jurisdiction that refused extradition (See 

). Further, unlike

Castle’s contention, the State did not hinder its ability to capture Harvey. In fact, the

prosecutor’s office got the US Marshalls involved in the hunt for Harvey and the




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trial court extended the pick-up radius on the warrant. He was wanted on many

serious felonies spanning multiple cases.

       {¶17} There is no question that Harvey (and his compatriots) made it difficult

for Castle, but the “escape of a defendant is the business risk of a bail surety. It is

precisely the situation which a surety guarantees against.” 

; State v.

Hughes, 

, 

 (1986). “Sureties make calculated

business judgments in determining to insure a defendant’s appearance. As part of

this evaluation of risk, it is foreseeable that a person would flee[.]” State v. Jackson,

1st Dist. Hamilton No. C-200153, 

, vacated on other grounds.

Castle must have known that Harvey was a flight risk (especially with the serious

charges levied against him) and chose to act as surety anyway. Further, the testimony

presented at the hearings, especially the May 27 hearing, belies the assertion that

Harvey’s capture was impossible as both Barnhart and King stated that they were

close to bringing him in. Hearing Tr. at 25.

       {¶18} Finally, it must be noted that Castle had at least constructive

knowledge that Harvey was on the run since September 20, 2021 (when the court

issued the bench warrant after he failed to appear for the final pre-trial hearing), but

waited until February to start its hunt. Then, the trial court granted extensions on

April 12, 2022, and again on May 27, 2022, until it finally ordered the bond forfeited

on July 12. Based on the leeway granted by the court and the legal analysis above,


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we conclude that the trial court did not abuse its discretion when it ordered the bond

forfeited. Castle’s assignment of error is overruled.

       III.   Conclusion

       {¶19} The judgment of the trial court is affirmed.

                                                                 Judgment Affirmed

MILLER, P.J. and ZIMMERMAN, J., concur.

/jlr



… Judge Christopher B. Epley of the Second District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.




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