Pantazes v. State

MOYLAN, Judge. If we were to “buy into” the perspective of the appellant/bail bondsman, to wit, that he is simply an ordinary plaintiff (or ordinary defendant) involved in a legal “tussle” with the State over the entitlement to $10,000, his contentions might well have at least a surface plausibility. The very fact of bringing ²⁶ this appeal, however, betrays his fundamental failure to understand just how peripheral his role, as a bondsman, is and how almost coincidéntal his interests are in what is, at a more elemental level, quintessentially a struggle between the State and an absconding criminal defendant. This transcending reality will be explored more fully as the opinion develops.

A Defendant Jumps Bail Jose W. Orellana, who is not a direct party to this appeal, was indicted on February 24, 2000, by the Grand Jury for* Montgomery County on charges of child abuse and two counts of second-degree sexual offense. On March 3, he was released on bail on the basis of a $10,000 bail bond, guaranteeing his appearance in court, posted on his behalf by the appellant, Nickolas Pantazes, a licensed “bail bondsman” and surety as defined by Maryland Rule 4—217(b)(2) and (6). On April 12, 2001, Orellana was tried and convicted of child abuse and one count of second-degree sexual offense. His bail was continued pending sentencing, which was set for July 10, 2001.

On July .10, Orellana failed to appear. The trial judge ordered the bail “revoked” and issued a warrant of arrest for Orellana. The problem that has given rise to this case is that, although the trial judge on July 10 “revoked” Orellana’s status as someone free on bail, he did not formally “forfeit” the bond. The precondition for a forfeiture, however, had been fully satisfied.

Maryland Rule 4-217(f) provides: (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. (Emphasis supplied). When Orellana failed to appear for sentencing, therefore, subsection (i)(l) potentially came into play: ²⁷ (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. (Emphasis supplied).

When a forfeiture is ordered, however, the surety is given a 90-day period of grace, following prompt notice of the forfeiture, in which to produce the defendant in lieu of having the bond forfeited. Subsection (i)(8) provides: (3) Satisfaction of forfeiture. Within 90 days ... 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 forfeiture satisfied with respect to the remainder of the penalty sum.

(Emphasis supplied) Albeit Not Promptly, the Bond Was Forfeited Ultimately recognizing that the earlier “revoking” of Orellana’s bail status did not qualify as a legally effectual forfeiture of the bail bond, Administrative Judge Paul H. Weinstein took corrective action on March 28, 2002. He called the case and, Orellana still being among the missing, ordered that the bond be forfeited nunc pro tunc as of July 10, 2001. The full panoply of procedural safeguards was extended to the appellant on March 28. A formal Notice of Forfeiture of Bond was given to him.

That is not disputed. The appellant was then given 90 days from April 1, 2002, within which, pursuant to subsection(i)(3), to satisfy the forfeiture. That is not disputed. On April 26, the appellant filed a Petition to Strike Purported Forfeiture.

On May 20, Judge Weinstein denied the petition, stating in his Order that he would “reconsider if the ²⁸ defendant was produced as promised by the surety.” Judgment absolute was entered against the appellant for $10,000 on December 4, 2002. On December 12, the appellant filed a Motion for Reconsideration. On December 19, Judge Weinstein denied that motion, stating in his Order: “When the defendant failed to appear for sentence the bond should have been forfeited. The surety cannot escape its obligations to the Court even if the Judge revoked the bond.

That does not cancel the surety’s obligation.” This appeal is from that judgment. A Tardy Forfeiture Is Not Invalid The appellant’s primary argument is that Maryland Rule 4-217(i) contemplates that, upon a defendant’s failure to appear in court, the bond should be forfeited promptly. Wiegand v. State, 112 Md.App. 516, 521 , 685 A.2d 880 (1996) fully agrees, as do we, with that interpretation. Rule 4-217(i) commences with the requirement that, if a defendant fails to appear, the court shall order forfeiture of the bond.

Although, as the State argues, the rule does not set a specific time for the court to enter such an order, common sense would dictate that the order be entered very promptly. (Emphasis supplied). The bond should, indeed, have been forfeited promptly after Orellana’s non-appearance. It was not.

The Wiegand opinion also, however, then goes on to consider what the legal consequences are if and when forfeitures are not, as contemplated by the rule, ordered promptly following the non-appearance of defendants. Judge Wilner, 112 Md.App. at 518 , 685 A.2d 880 , posed the question before the Court: This case is before us because of a regrettable series of lapses and errors on the part of both the court and the clerk. The question is the effect of those lapses and errors. (Emphasis supplied).

That is precisely the question before us. In both this case and in Wiegand , there were no effective forfeitures of bail bonds promptly ordered following ²⁹ the non-appearance of defendants. In this case, the critical non-appearance of the defendant was on July 10, 2001. There was no effective forfeiture on that date, however, because the court “revoked” the bail rather than “forfeited” the bond.

In the four separate cases dealt with by the Wiegand opinion, it was “a regrettable series of lapses and errors on the part of both the court and the clerk,” 112 Md.App. at 518 , 685 A.2d 880 , that invalidated the ostensible orders of forfeiture. “The State rightly concedes that these initial orders did not constitute effective orders of forfeiture.” 112 Md.App. at 522 , 685 A.2d 880 . In the Wiegand case, as in this, corrective measures, albeit delayed, were then taken to rectify the earlier lapses. Sometime in 1995, it came to light that the defendants had not been produced and that no money had been paid on the bonds. On September 5, 1995, in an effort to correct the problem, the court issued new forfeiture orders in the four cases.

Unlike the earlier procedure, the court actually issued a written order in each case “that the bond in the above named matter be forfeited”; the docket entry reflects that disposition through the notation: “Order to forfeit bond.” The clerk then mailed a copy of each of the four orders to appellant on September 11,1995. 112 Md.App. at 519-20 , 685 A.2d 880 (emphasis supplied). The appellant’s central complaint is that Judge Weinstein’s belated forfeiture of March 28, 2002, was prejudicial to him because it came 264 days after the defendant’s nonappearance on July 10, 2001. In Wiegand , for purposes of comparison, there had been four non-appearances of defendants followed by what were held to have been ineffective forfeiture orders. The corrective action on September 5, 1995 in that case came 1) 411 days, 2) 593 days, 3) 629 days, and 4) 656 days after the various defendants’ respective non-appearances of 1) July 21, 1994; 2) January 20, 1994; 3) December 15,1993; and 4) November 18,1993.

What was, in the light of those protracted delays, “the effect of those lapses and errors”? ³⁰ As to whether evpn those longer delays, all significantly longer than that in this case, should have foreclosed the court from taking the corrective measure of ordering proper, even if belated, forfeitures, Judge Wilner’s opinion held emphatically that they should not. The fact that the court did not enter an effective order of forfeiture promptly should not, and, in our view, does not, of itself, preclude further proceedings to forfeit and collect on the bonds. The requirement of bail bonds, secured by collateral or the undertaking of a surety, is a vital part of our core commitment to avoid, whenever possible, the pretrial detention of accused persons. Whether the accused himself, his family or friends, or a paid surety secures a bail bond, it is the credible threat of a real pecuniary loss that tends to assure the defendant’s appearance in court; at least that is the assumption that necessarily underlies the use of secured bonds as an alternative to detention.

To adopt an approach that tuould require the automatic release of collateral or a surety’s obligation simply because the court or a clerk does not enter a proper forfeiture order precisely as the rule requires would not. only severely undercut that premise but could, in addition, prove fertile ground for the worst kinds of collusion and improprieties between obligors and court personnel. 112 Md.App. at 523-24 , 685 A.2d 880 (emphasis supplied). It is the dispositive lesson of Wiegand that the fact that the trial court in this case “did not enter an effective order of forfeiture promptly” on July 10, 2001, or shortly thereafter, “does not, of itself, preclude further proceedings to forfeit and collect on the bonds,” 112 Md.App. at 523 , 685 A.2d 880 . The Appellant Fully Enjoyed His Procedural Grace Period The appellant in this case, moreover, unlike the appellant in Wiegand , actually received the full benefit of the 90-day grace period afforded him by Rule 4—217(i)(3) within which to “produce the defendant in court.” Although the ³¹ literal wording of that subsection measures the surety’s 90-day grace period “from the date the defendant fails to appear,” the Wiegand opinion pointed out that the literal application of that measuring rod would be unfair in a case, such as this case or Wiegand , in which the forfeiture had not been timely ordered. That section allows a surety to satisfy an order of forfeiture, by producing the defendant in court or paying “the penalty sum of the bond” within 90 days “from the date the defendant fails to appear.” In the ordinary case, of course, that time requirement works quite well.

It assumes that the court and the clerk have complied with their duties under the rule by promptly entering an order of forfeiture and notifying the surety of that order. Where the effective order of forfeiture is not entered promptly, however, that provision cannot operate as intended. 112 Md.App. at 524 , 685 A.2d 880 (emphasis supplied). Wiegand held that the only fair way to measure the 90-day grace period in the case of a tardy order of bond forfeiture would be to begin the count as of the date of the “late-filed order of forfeiture.” The only sensible way to do that in this case is to construe the time period specified in Rule 4-217(i)(3) as commencing on the date the late-filed orders of forfeiture were actually entered. We can think of no other approach—and none has been suggested to us—that would better effectuate what we believe was the Court’s intent. 112 Md.App. at 525 , 685 A.2d 880 (emphasis supplied).

In this case, the “late-filed order of forfeiture” was made on March 28, 2002. Although the order of forfeiture was dated nunc pro tunc, the starting date for counting the 90-day window for production was not. Judge Weinstein gave the appellant 90 days to produce the defendant counting from April 1. The appellant was not in any way short-changed proeedurally. ³² Did a 264-Day “Head Start” Produce A Mission Impossible?

In a variation on the theme of his earlier primary-contention, the appellant additionally argues that he should be excused from the forfeiture because the court’s tardiness in ordering the forfeiture severely handicapped his efforts to locate the defendant. His argument is that the “trail” that might still have been fresh on July 10, 2001, had, by March 28, 2002, turned inscrutably cold. He argues that it is unfair to expect him to produce a defendant after the State’s dilatoriness gave the fugitive a 264-day “head start.” Interestingly, the appellant proffered nothing to Judge Weinstein (nor to us) as to what measures he had taken prior to trial to monitor Orellana’s movements or to supply himself with a list of possible contacts in case the defendant disappeared. See Tyler v. Capitol Indemnity Ins.

Co., 206 Md. 129, 135 , 110 A.2d 528 (1955). Although Rule 4-217(i)(2) allows a surety to “show reasonable grounds for the defendant’s failure to appear,” the appellant offered no information as to what steps he took after Orellana’s disappearance to locate him through relatives, through friends, through employment, through automobile registration, through telephone usage, through credit cards, etc. He does not suggest what heightened security measures were taken after Orellana was convicted but nonetheless remained on bail pending sentencing. Allegheny Mutual Casualty Co. v. State, 35 Md.App. 55, 57 , 368 A.2d 1032 (1977) (“[T]he burden of demonstrating the good cause is upon the surety.”). Nor does he suggest that he ever “hired a bounty hunter to apprehend” Orellana, as discussed in Harcum v. State, 121 Md.App. 507, 515 , 710 A.2d 358 (1998).

The appellant simply serves up the truism that a trail is not as fresh on the 264th day as it was on the first day. That is self-evidently true, but the recovery mission in this case was not nearly as daunting as that in Frank v. State, 99 Md.App. 227 , 636 A.2d 484 (1994). In that case, Frank appealed the forfeiture of two $100,000 bonds after two defendants failed to appear for trial. Frank “made diligent efforts ³³ to locate the defendants,” 99 Md.App. at 229 , 636 A.2d 484 , including two trips to Haiti.

The two defendants had fled to Haiti and extradition efforts, pursued by Frank, were “unsuccessful because the United States and Haiti had no diplomatic relations following the ouster of Haiti’s President.” 99 Md.App. at 229-30 , 636 A.2d 484 . This Court rejected Frank’s argument that the “impossibility” of producing the defendants absolved him from the forfeiture of the bonds. We reject appellant’s contention that the circuit court should have stricken forfeiture of the bonds because it was impossible to produce the defendants. The purpose of a bail bond system is to insure that the party accused is present at trial. 99 Md.App. at 231 , 636 A.2d 484 (emphasis supplied).

Judge Wenner explained our holding more fully, 99 Md.App. at 232 , 636 A.2d 484 . We note that in the typical contract case, the promisor may not rely on the defense of “impossibility” as an excuse for non-performance if the promissor assumed the risk. In the cases at hand, the bonds securing the defendants’ appearance were conditioned upon their appearance for trial. Consequently, appellant assumed the risk that the defendants would not appear. ...

The defendants voluntarily fled the country. Appellant insured against that flight, and must now suffer the consequence. (Emphasis supplied). In the very words of Frank , Orellana in this case “voluntarily fled” the jurisdiction of the court.

The “appellant insured against that flight, and must now suffer the consequence.” In the Frank opinion, 99