Appeal from the Superior Court in Maricopa County No. CR2007-171597-002, CR2011-120058-001 The Honorable Brian S. Rees, Judge Pro Tempore
Maricopa County Attorney's Office, Phoenix By Kimberly Felcyn Counsel for Appellee.
Clifford M. Sherr Attorney at Law, Phoenix By Clifford M. Sherr Counsel for Appellants.
Chief Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Patricia K. Norris joined.
JOHNSEN, Chief Judge.
¶1 By law, an appearance bond may be forfeited if a criminal defendant fails to appear in court when required. Arizona Rule of Criminal Procedure 7.2(c)(1) provides that when a defendant enters a guilty plea that "will in all reasonable probability" result in incarceration, the superior court may not release the defendant, but must keep or take him into custody immediately. This consolidated appeal arises from bond forfeitures ordered after two defendants who were released after entering guilty pleas that mandated incarceration failed to return to court. On appeal, the bondsmen argue their bonds should have been exonerated because pursuant to Rule 7.2(c)(1), the court should not have released the defendants after accepting their pleas. We hold the superior court had discretion to accept the parties' stipulated waiver of Rule 7.2(c)(1) and, for that reason, affirm the forfeitures.
FACTS AND PROCEDURAL BACKGROUND
¶2 Ameri-Bail Bonds and Lexington National Insurance Company posted a $12, 000 appearance bond securing the release of Scott Alan Sokol, who was charged with armed robbery, a Class 2 dangerous felony. A release order required Sokol, among other things, to "[a]ppear to answer and submit to all further orders of the court."
¶3 Sokol pled guilty to two felonies pursuant to a plea agreement mandating incarceration of up to six years. The superior court accepted Sokol's guilty plea but did not order him taken into custody as required by Rule 7.2(c)(1). Instead, the court released him pending sentencing two months later, noting in its minute entry that "[t]he parties agreed not to invoke Rule 7.2." There is no indication in the record that the bondsmen were sent a copy of the minute entry that reported the court's acceptance of Sokol's plea and subsequent release. After Sokol failed to appear for a status conference shortly after the plea proceeding, the court issued a bench warrant for his arrest and, pursuant to Arizona Rule of Criminal Procedure 7.6(c), scheduled a bond forfeiture hearing.
¶4 In the other case, Liberty Bail Bonds and Banker's Insurance Company posted a $25, 000 appearance bond securing the release of Miguel Fernando Peña, who was charged with sale or transportation of marijuana, a Class 2 felony, and money laundering, a Class 3 felony. Like Sokol's, Peña's release order required him, among other things, to "[a]ppear to answer and submit to all further orders and processes of the court having jurisdiction."
¶5 Peña pled guilty to the charged offenses; his plea agreement mandated a term of incarceration. The superior court accepted the plea but released Peña pending a status conference set for five months later, noting in the minute entry that "[o]n stipulation of counsel, . . . the defendant will not be remanded at this time." The minute entry the court issued was not endorsed to the bondsmen. After Peña, like Sokol, failed to appear for his sentencing, the court issued a bench warrant for his arrest and scheduled a bond forfeiture hearing.
¶6 The superior court consolidated the forfeiture hearings and entered a judgment forfeiting both bonds. The court found no reasonable cause existed for the defendants' failures to appear. The court noted on the record that it had conferred with the judges who had released Sokol and Peña after taking their pleas. The forfeiture judgment recites that "based upon those discussions, " the court "took judicial notice that in criminal divisions of the Maricopa County Superior Court the judges interpreted Arizona Rules of Criminal Procedure, Rule 17.4(a) as permitting them the 'flexibility' to lawfully allow a Defendant, who would otherwise be subject to incarceration pursuant to Arizona Rule of Criminal Procedure, Rule 7.2(c)(1) to be released pending sentencing."
¶7 We have jurisdiction of the bondsmen's timely appeals pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ...