Financial Casualty Insurance v. State

MOTION FOR RECONSIDERATION KENNEY, J. Appellant, Financial Casualty Insurance Company (“Financial Casualty”), 1 posted a bond for George Butch Spencer. When Spencer failed to appear for trial, the Circuit Court for Baltimore County ordered the bond forfeited and later entered judgment against Financial Casualty for the full amount of the bond. 4 Aces Bail Bonds, Inc., 2 “on behalf of’ Financial Casualty, filed a Petition for Remission, which the circuit court denied. In this timely appeal, Financial Casualty presents one question for our review, which we have revised: did the trial court abuse its discretion in denying the Petition for Remission? FACTUAL AND PROCEDURAL BACKGROUND On March 3, 2009, Spencer was charged by criminal information with various narcotics charges.

Bail was set at $25,000, and Spencer was “released from commitment” on March 9, 2009 when Financial Casualty, through bondsman Calvin Jones, posted a bond in that amount. The bond states that it “shall continue in full force and effect until discharged pursuant of Rule 4-217.” ²⁵⁰ Spencer did not appear for trial on October 15, 2009. The docket entry states, in pertinent part, “Bail forfeited. Bench Warrant issued.” The next day, October 16, 2009, a warrant was issued for Spencer’s arrest.

An undated letter from the court was sent to bondsman Jones, stating, in pertinent part: As Surety for [Spencer], you have 90 days (14th day of January, 2010) to satisfy this forfeiture by either producing [Spencer] in court, or by paying the penalty sum on the bond. If the bail forfeiture has not been stricken, or satisfied within 90 days, a judgment will be entered against [Spencer] and Surety for the penalty sum of the bail, with interest from the date of the forfeiture. The record further indicates that a “Notice of Recorded Judgment” in the amount of $25,000 “plus interests and costs” was entered on March 31, 2010 against Spencer and Financial Casualty. The docket entry for May 27, 2010 reflects a “Forfeiture of $25,000.00.” On February 7, 2011, writs of habeas corpus were sent from the court to Jones and the Warden of the Baltimore City Detention Center, stating: “You are hereby COMMANDED TO HAVE THE BODY of ...

Spencer before” the court on March 7, 2011. A “criminal Postponement Hearing Request Form,” dated March 7, 2011 states that “[Spencer] not brought from Balto City jail,” and the case was reset for April 7, 2011. 3 Writs were also sent on March 14, 2011, commanding Spencer’s presence on April 7, 2011. A “Criminal Postponement Hearing Request Form,” dated April 7, 2011, states Spencer’s location as “city jail,” and the case was reset to June 2, 2011. The “Peace Officer’s Return” section of the bench warrant that was issued on October 16, 2009 indicates that the warrant and charging document were served on Spencer on April 23, ²⁵¹ 2011. 4 Another section of the warrant, dated April 25, 2011, states that “[Spencer] is currently at the Baltimore County Detention Center.” The “Report of Prisoner Brought to Circuit Court for Baltimore County,” dated April 26, 2011, states that Spencer was remanded to “BCBC,” which likely stands for the Baltimore County Bureau of Corrections.

A handwritten note on the document in the section entitled “Bail Hearing Held” states “Bench Warrant [Spencer] adv why he was picked up.” On May 5, 2011, a writ of habeas corpus was sent to the Baltimore County Bureau of Corrections commanding Spencer’s appearance on June 2, 2011. On August 22, 2011, Spencer pled guilty to the manufacture and distribution of narcotics; the other charges against him were nolle prossed. He was sentenced to 10 years incarceration, “suspend all but time served.” On June 9, 2011, 4 Aces Bail Bonds, Inc., “on behalf of’ Financial Casualty, filed a Petition for Remission with the circuit court, citing § 5-208 of the Criminal Procedure Article. The Petition, in pertinent part, states: 1.

That on or about the 10th day of April 2009, [5] a bond in the amount of $25,000.00 was posted in the Circuit Court of Maryland guaranteeing the appearance of [Spencer] at trial. 2. On the 16th day of October 2009, [Spencer] failed to appear for trial in the Circuit Court. A bench warrant was issued and the bond was ordered forfeited, to be payable within ninety (90) days. 3. On the 31st day of May 2010, [Financial Casualty] in the amount of $25,000.00 plus interest made payment of the bond. ²⁵² 4.

On the 3rd day of May 2011, [Spencer] was surrendered and the bail warrant was served. At the hearing-on the Petition, the following exchange occurred: [FINANCIAL CASUALTY’S COUNSEL]: Well, your hon- or, ... [§ 5-208(c) of the Criminal Procedure Article], proof that he’s [confined] in a correctional institution in the United States. He’s in Baltimore County Detention Center. [THE COURT]: But, I mean, the fact that they later get picked up on something. The question is what if any efforts did [the surety] have anything to do with that eventual detention?

And did it, did, you know, I mean, the bail is posted to ensure their presence. When they don’t show up the fact that they get arrested for something else a year or so down the road doesn’t mean you get your money back, unless I’m missing something in this Statute. [FINANCIAL CASUALTY’S COUNSEL]: Okay. Well, your honor, in the Statute I mean it’s said, I mean, evidence of confinement in a correctional institution. We, we, we know— [THE COURT]: Within 180 days. [FINANCIAL CASUALTY’S COUNSEL]: Yes.

I mean, we, we know he’s incarcerated in the Baltimore County—I mean, he’s here. We know he’s incarcerated in the Baltimore County Detention Center. I mean, the [surety] sponsored, I mean, had people looking for him, there, diligent efforts to find him. I mean, he was just picked up on something else and a warrant was issued in May.

And the warrant was served in the, it was served in May. [THE COURT]: In this case let me look. I mean, there were different time lines on each of these. The Petition for Remission on Mr. Spencer it represents that on April 10th of 2009 bond was posted. In October he failed to appear and a warrant was issued.

In May of 2010 bond was forfeited. And then a year later he was picked up on something else. ²⁵³ [FINANCIAL CASUALTY’S COUNSEL]: Yes. On ... May 3rd, 2011 your honor. [THE COURT]: And he was picked up on another matter?

Not brought in by any representative of the [surety], is that correct? [FINANCIAL CASUALTY’S COUNSEL]: I believe he was picked up on another matter your honor. [THE COURT]: Okay. I mean, I don’t think [Financial Casualty] is entitled to remission under those facts. It’s not within the 180 days. [He was not] picked up based upon efforts by the [surety]. He was picked up on another criminal offense and you know, almost two years down the road comes back in through the Court’s custody.

Um, as I read the Statute under those circumstances I don’t believe that remission is appropriate. The court entered an order denying the Petition for Remission, and Financial Casualty noted this timely appeal. DISCUSSION The issue before us involves a discrete set of facts and the application of a statute and Maryland Rule that have since been amended. The defendant, Spencer, did not appear as required in the Circuit Court for Baltimore County.

Over a year later, he was “committed,” after being arrested on other charges, to the Baltimore County Department of Corrections. Ultimately, he entered a plea of guilty to a charge in Baltimore County for which Financial Casualty posted the bond at issue in this case, and he was sentenced. A bail bond is “a written obligation of a defendant, with or without a surety or collateral security, conditioned on the appearance of the defendant” before the court “as required and providing for the payment of a penalty sum according to its terms,” Md. Rule 4—217(b)(1), when “the defendant fails to ‘well and truly make his appearance before’ the court and to answer to the charges.” Allegheny Mut. Casualty Co. v. State, 35 Md.App. 55, 57 , 368 A.2d 1032 (1977); see also Restatement (First) of Security § 203 (1941) (“A bail bond is a ²⁵⁴ bond to obtain the release of a person from imprisonment and to secure his appearance to answer legal process.”); Tyler v. Capitol Indem.

Ins. Co., 206 Md. 129, 136-37 , 110 A.2d 528 (1955) (The “obligation is either to produce the principal when required by the court or at such earlier date as the surety may elect or, failing to produce the principal when required by the court, to pay the sum specified in the bond.”). With the posting of the bond, “the principal is released from the custody of officers of the law and is considered as being in the custody of a surety of his own selection, whose duty is to assure the principal’s subsequent appearance” before the court. Tyler, 206 Md. at 134-35 , 110 A.2d 528 (quoting Rest. § 203 comment b).

This Court has said that [t]he purpose of the bond or security is to secure a trial, its object being to combine the administration of justice with the convenience of a person accused, but not proved, to be guilty. If the accused does not appear the bail may be forfeited, not as a punishment to the surety or to enrich the Treasury of the State[.] Irwin v. State, 17 Md.App. 518, 524 , 302 A.2d 688 (1973). Rather, the threat of forfeiture is an incentive to the surety to ensure the accused’s timely presence at trial. Allegheny Mut.

Casualty Co., 35 Md.App. at 58 , 368 A.2d 1032 . In the event of forfeiture, the surety’s incentive is redirected from avoiding forfeiture to seeking the “[Remission of the forfeiture” by returning the absconding defendant to the jurisdiction of the court. Allegheny Mut. Casualty Co. v. State, 234 Md. 278, 284 , 199 A.2d 201 (1964) (emphasis added).

Without the possibility of remission, “there would be no inducement to the [surety] to have the defendant arrested and brought to justice.” Id. Section 5-208 of the Criminal Procedure Article, as in effect at the time of these proceedings, states, in pertinent part: 6 ²⁵⁵ (b) In General.—(1) Subject to paragraph (2) of this subsection, a court that exercises criminal jurisdiction shall strike out a forfeiture of bail or collateral and discharge the underlying bail bond if the defendant can show reasonable grounds for the defendant’s failure to appear. (2) The court shall: (i) allow a surety 90 days after the date of the defendant’s failure to appear or, for good cause shown, 180 days to return [7] the defendant before requiring the payment of any forfeiture of bail or collateral; and (ii) strike out a forfeiture of bail or collateral and deduct only the actual expense incurred for the defendant’s arrest, apprehension, or surrender, if: 1. the defendant is returned; and 2. the arrest, apprehension, or surrender occurs more than 90 days after the defendant’s failure to appear or at the end of the period that the court allows to return the defendant. (c) Confinement of defendant.—Evidence of confinement of a fugitive defendant in a correctional facility in the United States is a wholly sufficient ground to strike out a forfeiture, [8] if assurance is given that the defendant will come ²⁵⁶ back to the jurisdiction of the court on expiration of the sentence at no expense to the State, county, or municipal corporation.

Maryland Rule 4-217 (“Bail bonds.”), as in effect at the time of these proceedings, states, in pertinent part: (f) Condition of bail bond. The condition of any bail bond taken pursuant to this Rule shall be that the defendant personally appear as required in any court in which the charges are pending, or in which a charging document may be filed based on the same acts or transactions, or to which the action may be transferred, removed, or if from the District Court, appealed, and that the bail bond shall continue in effect until discharged pursuant to section (j) of this Rule. (i) Forfeiture of bond. (1) On defendant’s failure to appear—Issuance of warrant.

If a defendant fails to appear as required, the court shall order forfeiture of the bail bond and issuance of a warrant for the defendant’s arrest. The clerk shall promptly notify any surety on the defendant’s bond, and the State’s Attorney, of the forfeiture of the bond and the issuance of the warrant. (2) Striking out forfeiture for cause. If the defendant or surety can show reasonable grounds for the defendant’s failure to appear, notwithstanding Rule 2-535, the court shall (A) strike out the forfeiture in whole or in part; and (B) set aside any judgment entered thereon pursuant to subsection (4)(A) of this section, and (C) order the remission in whole or in part of the penalty sum paid pursuant to subsection (3) of this section. ²⁵⁷ (3) Satisfaction of forfeiture.

Within 90 days from the date the defendant fails to appear, which time the court may extend to 180 days upon good cause shown, a surety shall satisfy any order of forfeiture, either by producing the defendant in court or by paying the penalty sum of the bond. If the defendant is produced within such time by the State, the court shall require the surety to pay the expenses of the State in producing the defendant and shall treat the order of the forfeiture satisfied with respect to the remainder of the penalty sum. (4) Enforcement of forfeiture. If an order of forfeiture has not been stricken or satisfied within 90 days after the defendant’s failure to appear, or within 180 days if the time has been extended, the clerk shall forthwith: (A) enter the order of forfeiture as a judgment in favor of the governmental entity that is entitled by statute to receive the forfeiture and against the