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State v. Liberty Bail Bonds

Court of Appeals of Arizona, First Division

December 5, 2013

STATE OF ARIZONA, Appellee,
v.
LIBERTY BAIL BONDS and BANKER'S INSURANCE COMPANY, as Real Parties in Interest for Defendant Miguel Fernando Pena, Appellants, and AMERI-BAIL BONDS and LEXINGTON NATIONAL INSURANCE COMPANY, as Real Parties in Interest for Defendant Scott Alan Sokol, Appellants.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

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 decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Jon W. Thompson joined.

MEMORANDUM DECISION

JOHNSEN, Judge

¶1 In these consolidated appeals, bondsmen appeal the superior court's order forfeiting their appearance bonds. The bondsmen argue the court abused its discretion by concluding the defendants failed to offer good cause for their failures to appear. For the following reasons, we affirm the court's findings.[1]

FACTS AND PROCEDURAL BACKGROUND

¶2 After the State indicted Scott Alan Sokol on a charge of armed robbery, a Class 2 dangerous felony, the superior court granted Sokol's release upon the condition that he post a secured appearance bond and remain under house arrest with electronic monitoring. [2] Ameri-Bail Bonds and Lexington National Insurance Company (collectively "Lexington") posted a $12, 000 appearance bond securing his release. After Sokol failed to appear at a status conference, the court issued a bench warrant for his arrest and, pursuant to Arizona Rule of Criminal Procedure ("Rule") 7.6(c), scheduled a bond forfeiture hearing. Sokol was arrested 20 days after the status conference "at a location that was not his house." By the time of the forfeiture hearing, Sokol was in the custody of the Department of Corrections and was not present at the hearing. The bondsmen asserted the State had some evidence that at a hearing after Sokol's arrest, the judge hearing Sokol's case had "felt that the failure to appear was an accident because of confusion over the court dates." The court hearing the forfeiture matter, however, found no reasonable cause for Sokol's failure to appear and no evidence in mitigation.

¶3 Miguel Fernando Pena was charged with transportation of marijuana, a Class 2 felony, and money laundering, a Class 3 felony. Liberty Bail Bonds and Banker's Insurance Company (collectively "Banker's") posted a $25, 000 appearance bond securing his release. After Pena, like Sokol, failed to appear at a later proceeding, the court issued a bench warrant for his arrest and scheduled a bond forfeiture hearing. About five weeks later, officers arrested Pena after they encountered him during a traffic stop. At the forfeiture hearing, Pena testified he had failed to appear at his sentencing hearing because he narrowly avoided being kidnapped and feared for his life. The court found there was no reasonable cause for his failure to appear.

¶4 The court consolidated the bond hearings in both matters and entered a consolidated judgment forfeiting the bonds. The bondsmen timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") section 12-2101(A)(1) (2013).[3]

DISCUSSION

¶5 Upon a defendant's failure to appear in court as required, the superior court schedules a hearing "requiring the parties and any surety to show cause why the bond should not be forfeited." Ariz. R. Crim. P. 7.6(c)(1). At the forfeiture hearing, if the violation of a release condition "is not explained or excused, the court may enter an appropriate order of judgment forfeiting all or part of the amount of the bond, which shall be enforceable by the state as any civil judgment." Ariz. R. Crim. P. 7.6(c)(2). The bondsman must provide by a preponderance of the evidence an explanation or excuse for a defendant's failure to appear. State v. Bail Bonds USA, 223 Ariz. 394, 397, ¶ 11, 224 P.3d 210, 213 (App. 2010). The explanation or excuse required by Rule 7.6(c)(2) must be a reasonable cause. State v. Old W. Bonding Co., 203 Ariz. 468, 471, ¶ 14, 56 P.3d 42, 45 (App. 2002).

¶6 The superior court is the trier of fact at a forfeiture hearing and, contrary to the bondsmen's argument on appeal, it has discretion pursuant to Rule 7.6(c)(2) to accept or reject the credibility of any witness's testimony. Haas v. ...


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