Wiegand v. State

¹⁸⁸ BELL, Chief Judge. The issue this case presents is whether a bail bondsman, who posts a bail bond for a defendant whose pretrial release conditions prohibit the defendant from leaving the jurisdiction without court approval and who is not given prior notification of the court’s intention to amend the terms of the defendant’s pretrial release, is entitled to be discharged from the obligation of the bail bond when the court actually does amend the conditions of pretrial release. The Circuit Court for Harford County determined that, under the facts of this case, he was not. We shall affirm that judgment.

Ebony Jean Smith (the “defendant” or “Smith”) was arrested and charged with possession of marijuana with the intent to distribute, possession of marijuana and possession of paraphernalia. She was taken before a court commissioner for an initial appearance, including pretrial release determination. Noting the defendant’s lack of family ties, unstable employment status and history, plus short length of State residence— the defendant indicated that she was leaving to return to California — on the date of arrest, the commissioner required, as conditions of pretrial release, among others, a bail bond in the penalty amount of $5000 and that the defendant not leave the State without the court’s permission. The appellant, John C. Wiegand, Bondsman, 1 posted the bail bond on behalf of the defendant.

By executing the bail bond, he accepted its conditions and terms: “THE CONDITION OF THIS BOND IS that the Defendant personally appear, as required, in any court in which the charges are pending, or in which a charging document ¹⁸⁹ may be filed based on the same acts or transactions, or to which action may be transferred, removed, or, if from the District Court, appealed. “IF, however, the Defendant fails to perform the foregoing condition, this bond shall be forfeited forthwith for payment of the above penalty sum in accordance with the law. “IT IS AGREED AND UNDERSTOOD that this bond shall continue in full force and effect until discharged pursuant to Rule 4-217.” After a criminal information was filed, the defendant was arraigned in the Circuit Court and given a trial date of February 12, 1997. Thereafter, she sought permission from the court to visit California. By order dated December 23, 1997, the court granted the defendant permission “to go to California for the period of December 23, 1997 to January 15, 1998. ” When the defendant’s case was called on the trial date, the defendant did not appear, prompting the trial court to issue a writ of body attachment for the defendant. It subsequently issued an order of forfeiture of the bail bond.

The appellant filed a Petition To Strike Bond Forfeiture, 2 in which he alleged that the court’s authorization of the defendant to leave the State, without giving him prior notice “prohibited the bondsman from rescinding said bond and delivering up the Defendant ... before leaving the State, thus greatly increasing the risk to the bondsman.” At the hearing, the appellant recognized that the court had the right to amend the conditions of pretrial release and that “a defendant can always skip and go to California or Timbuktu or wherever, and the bondsman would be put to the same obligation.” Nevertheless, he maintained that this case presented a difference: ¹⁹⁰ “the risk at the time that he actually wrote the bond was that they’re living in Maryland and had been so instructed by the court to stay in Maryland, and under those circumstances, of course, the bondsman then looks at the contract and determines the risk they’re willing to accept.” The court was not persuaded. It ruled: “I don’t agree with you that there’s any distinction between the failure of a criminal defendant to obey a court order to either remain in Maryland or to return from California. If that defendant is going to disobey a court order and become a fugitive from justice, they can do it in many, many different ways, and I don’t see where the fact that Judge Carr authorized this defendant to go to California for a temporary period of time and then to return increases your risk one way or the other.” The court thus denied the appellant’s petition to strike the forfeiture. The appellant timely noted an appeal to the Court of Special Appeals.

Before consideration by the intermediate appellate court, we granted the writ of certiorari to address this important issue. In this Court, the appellant argues that he was discharged of his obligation under the bail bond when, without his knowledge and without giving him notice or an opportunity to be heard, the court amended the terms of pretrial release applicable to the defendant. He points out that, before posting the bail bond for the defendant, he was aware of the conditions of -pretrial release set by the court commissioner and, thus, could assess the risk he was undertaking. More particularly, he notes the condition prohibiting the defendant from leaving the State without the court’s permission.

Acknowledging also that the condition permitted, and so he knew that, the court could modify it, the appellant contends that could occur only after he had been given notice and an opportunity for a hearing. For that proposition, he relies on Md. Rule 4-216(i) which provides: ¹⁹¹ “(i) Amendment of Pretrial Order. After a charging document has been filed, the court, on motion of any party or on its own initiative and after notice and opportunity for hearing, may revoke an order of pretrial release or amend it to impose additional or different conditions of release. If its decision results in the detention of the defendant, the court shall state the reasons for its action in writing or on the record.” The appellant reads the requirement of the rule calling for “notice and an opportunity for a hearing” to include bondsmen. “To interpret the rule otherwise would not be consistent with the intent of the rule,” he submits.

Critical to the appellant’s argument is the notion that the amendment, without notice to the bondsman, of the pretrial release conditions from “ ‘can’t leave’ to ‘can leave’ ” is “a monumental change in the conditions of pretrial release,” that a change in such conditions also changes the risk the bondsman undertook and, further, that the bondsman’s knowledge of the changed conditions would allow him or her to determine on the basis of full information whether to continue the risk. Relevant to the first two propositions, he asserts: “If the notice and opportunity [to be heard] is to be given to the defendant only and not to the Bondsman, then it can be stated that the court can impose greater or lesser conditions on the Bondsman and the Bondsman would have no knowledge of the pretrial release changed conditions. These changed pretrial release conditions would then change the risk to the Bondsman, and would affect the ability of the Bondsman to comply with its obligations to the court under the surety bond.” As to the third, he states that, with notice, “any amendment or change in pretrial release conditions made by the court allows the Bondsman to reevaluate the risk, no matter how minor or how large and to rescind the bail bond.” 3 ¹⁹² To the appellant, it is also relevant that, by writing a bail bond to assure the defendant’s appearance for scheduled court proceedings, he entered into a contract with the State. Because parties to a contract are entitled to notice and, more to the point, the Maryland Rules require it, citing and relying on Maryland Rule 4-217(i), the appellant contends that, by failing to give him notice before changing the conditions of the defendant’s pretrial release, the court discharged him of any obligation under the bond. 4 This is so, he says, because “[t]he ¹⁹³ court, by approving the Defendant’s departure from the State, without notice, terminated any control the Appellant might have had over her.” As expected, the State approaches the issue this case presents from a wholly different perspective.

It disputes that the appellant was due notice of the court’s amendment of the condition of pretrial release related to the defendant’s permission to leave the State, arguing that it is not required by the bond itself, the applicable Maryland Rules, or the common law. Indeed, the State contends that, by virtue of the pretrial release determination, rather than a lack of knowledge or legitimate expectation of notice, the appellant “had every reason to expect that the defendant would seek the court’s permission to go to California.” In fact, it points out, “The pretrial determination not only informed the bondsman that [the defendant] had been trying to return to California when she made her initial appearance, but recognized the possibility that [the defendant] would be able to leave the State if the court granted her permission. No reasonable person in the bondsman’s position should be surprised to find the defendant seeking court permission to return to California, especially in light of the occasion: December 23, or the day before Christmas Eve. That risk was self-evident in the initial appearance report and pretrial release determination.” Thus, the State concludes that the court did not abuse its discretion when it refused to strike the bond forfeiture, a result that is also consistent with that reached by other courts under similar facts and circumstances. 5 ¹⁹⁴ In Allegheny Mutual Cas.

Co. v. State, 234 Md. 278, 282-83 , 199 A.2d 201, 203 (1964), where the defendants, who having failed to appear at trial, within a day or so, voluntarily returned to Baltimore with the bondsman and surrendered themselves to the police, this Court considered the propriety of the denial by the Criminal Court of Baltimore of the insurer’s motion to strike out the forfeiture of the bail bonds. To resolve the issue the Court construed Md.Code (1957, 1973 Repl.Vol.) Art. 26, § 33(b), which read: “In all cases the court shall have the discretionary power to strike out the forfeiture of bond or collateral where the defendant can show reasonable grounds for his nonappearance .... ” 234 Md. at 282 , 199 A.2d at 203 . We concluded that the court has discretionary power to strike out a forfeiture, id. at 282-83 , 199 A.2d at 203 ; see Harding v. State, 250 Md. 188, 190 , 242 A.2d 135, 136 (1968); Irwin v. State, 17 Md.App. 518, 524 , 302 A.2d 688, 691 (1973), but that such discretion is conditioned upon a showing by the defendant of reasonable grounds for the defendant’s nonappearance. Id. at 282, 199 A.2d at 203 .

Then, after reviewing the purpose of bail — rather than to punish the surety or enrich the State’s treasury, the purpose of the bond is to “secure a trial,” id. quoting United States v. Feely, 25 Fed. Cas. 1055, 1057 temn incentive to have the accused return umtó tatthe jurisdiction of the court, id. at 283-84, we concluded further that the discretionary power of the court to strike out a forfeiture is to be liberally construed. The Court also construed “reasonable grounds ... for the nonappearance” in the context of the exercise of that discretion, stating: “The requirement that ‘reasonable grounds’ be shown for the nonappearance of the defendant obviously means something less stringent than an absolutely compelling reason, and we think that in exercising the discretionary power conferred by sec. 33(b), the court should keep this in mind, particularly where, as here, there is no showing of a deliberate purpose to evade the process of the court. The discre ¹⁹⁵ tion thus committed is a sound one, and not an arbitrary or absolute discretion precluding review by this Court.” Id. at 285-86, 199 A.2d at 205-206 . Noting that a liberal construction is required “when the purpose of the bond is fulfilled within a reasonable time and when there has been little or no prejudice to the State,” 234 Md. at 282-283 , 199 A.2d at 203 , we stated our belief that the court did not soundly exercise its discretion when it denied the motion to strike forfeiture.

Maryland Rule 4-217(i) now sets forth the procedure for forfeiting bail bonds, and it is based on the successor to Art. 26, § 33(b), Md.Code (1957, 1996 Repl.Vol.) Art. 27, § 616½ (e), 6 which mandates certain of the procedures set ¹⁹⁶ forth in the Rule. Subsection (i)(2) of the Rule addresses the striking of a forfeiture for cause. It provides: “(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.” See Md. Rule 4-217(i)(2).

Under this Rule, the court is required to strike out the forfeiture, in whole or in part, whenever either the defendant or the surety shows reasonable grounds for the defendant’s failure to appear. Significantly, the focus is on the defendant’s nonappearance and the validity of any reasons for that nonappearance, rather than on the ¹⁹⁷ bondsman or issues affecting the bondsman’s assessment of the risk of posting bond. In the case sub judice, at the time of the proceedings under review, the defendant had not appeared and, thus, did not, and could not have, provided “reasonable grounds” for her nonappearance. Nor has the appellant offered any explanation for the nonappearance.

Moreover, the appellant has not suggested, much less presented evidence, that this case falls within Art. 27, § 616)6 (e)(8), that is, the defendant is incarcerated in a penal institution in the United States and her return to Maryland at expiration of her sentence and at no expense to the State has been assured. See also Art. 27, § 616)6 (e)(5), which provides: “(5) Any court exercising criminal jurisdiction may not exercise a forfeiture of the bond or collateral posted by a surety and shall return the bond or collateral to the surety where: “(i) The defendant fails to appear in court; and “(ii) The surety produces evidence, in compliance with the time constraints of paragraph (2) of this subsection, that: “1. The defendant is incarcerated in a penal institution outside the State; “2. The State’s Attorney is unwilling to issue a detain-er and subsequently extradite the defendant; and “3.

The surety agrees in writing to defray the expense of returning the defendant to the jurisdiction in accordance with paragraph (2) of this subsection.” To be sure, a bail bond is a contract of suretyship: “a tripartite agreement among a principal obligor, his obligee, and a surety.” General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 259 , 492 A.2d 1306, 1309 (1985). It is a direct and original undertaking under which the surety is primarily or jointly liable with the principal obligor and, therefore, responsible at once if the principal obligor fails to perform. Id. at 259 , 492 A.2d at 1309 . Indeed, a surety ordinarily is bound with his principal by the same instrument, executed at the same time, and on the same consideration.

Id. Thus, a ¹⁹⁸ bail bond is an undertaking by the bondsman to furnish bail on behalf of the defendant, see Tyler v. Capitol Indem. Ins. Co., 206 Md. 129, 134-36 , 110 A.2d 528, 530-31 (1955).

See also Stamatiades v. Merit Music Service, Inc., 210 Md. 597, 612-15 , 124 A.2d 829, 837-38 (1956); In re Lexington Surety & Indemnity Co., 272 N.Y. 210 , 5 N.E.2d 204, 205 (1936), as well as a contract with the State, see Tyler, 206 Md. at 139-40 , 110 A.2d at 532-33 , under which the bondsman is obligated to assure the appearance of the defendant in court as required. As noted, the appellant argues that the court’s amendment of the defendant’s conditions of pretrial release to permit her to leave the State, after initially refusing that permission was a significant change and resulted in a material increase in the risk which he undertook. Appropriately, the State concedes the proposition underlying the argument, i.e., a change in the agreement by the principal and the obligee, without notice or consent by the surety, when it materially changes the risk, entitles the surety to discharge, acknowledging that, when it is applicable, there is ample authority to support it. See Restatement (Third) of Suretyship & Guaranty (1995) § 41, which, as pertinent, provides: “If the principal obligor and the obligee agree to a modification, other than an extension of time or a complete or partial release, of the principal obligor’s duties pursuant to the underlying obligation: * * ❖ * “(b) the secondary obligor 7 is discharged from any unperformed duties pursuant to the secondary obligation: ¹⁹⁹ “(i) if the modification creates a substituted contract or imposes risks on the secondary obligor fundamentally different from those imposed pursuant to the transaction prior to modification.” Earlier, Restatement (First) of Security § 128 (1941) discharged a compensated surety, when, without its consent, “the principal and the creditor modify their contract otherwise than by extension of time of payment” and “the modification materially increases [the surety’s] risk.” See Greenwell v. American Guaranty Corp., 262 Md. 102, 107 , 277 A.2d 70, 78 (1971).

This is not a basis for the discharge of the bondsman in this case. The modification in the case sub judiee did not create a substituted contract or impose risks “fundamentally different” from those undertaken. Nor did the modification “materially increase[ ]” the risk the bondsman accepted. The appellant admits as much: “The lower court argues that there is no distinction to be made of the Defendant skipping with or without permis-sion____Appellant agrees.

However, that argument is a ‘red herring.’ The issue before this court is Appellant was not given notice pursuant to the rules to reassess the risk of the bond issued. It is irrelevant whether the Appellant would have rescinded the bond.” Moreover, the appellant’s entitlement to discharge is belied by the very terms of the bail bond itself. The bail bond, which the appellant executed and agreed to, provides that “this bond shall continue in full force and effect until discharged pursuant to Rule 4-217.” That rule delineates five situations, the occurrence of which results in the discharge of the bail bond. See Md. Rule 4 — 217(j)(l), which provides: “(1) Discharge.

The bail bond shall be