State v. Randolph

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) RANDOLPH & COMPANY BAIL BONDS, ) INC.; and IVORY CROW, ) ) Appellants. ) __________________________________) DIVISION ONE FILED: 01-28-2010 PHILIP G. URRY,CLERK BY: DN No. 1 CA-CV 09-0182 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CR 2006-111568-001 DT The Honorable Lisa Ann VandenBerg, Commissioner VACATED AND REMANDED Andrew P. Thomas, Maricopa County Attorney By Sarah L. Corcoran, Deputy County Attorney Attorneys for Appellee Phoenix Hendrickson Law Firm, P.L.L.C. By Troy R. Hendrickson Attorneys for Appellants Tempe D O W N I E, Judge ¶1 Crow Randolph & Company Bail Bonds ( Randolph ) and Ivory appeal appearance remand. the bond. superior For court s the order following forfeiting reasons, we a $25,000 vacate and FACTS AND PROCEDURAL BACKGROUND ¶2 In Gary March Dewayne hearings, 2006, Miles. resulting criminal Miles in charges repeatedly bench were filed failed warrants and to two failed to appear on December 19, 2007, appear prior forfeitures that are not at issue in this appeal. again against at bond When Miles a third bench warrant was issued, and bond was set at $25,000. ¶3 as Miles was arrested on September 27, 2008. agent for American Surety Company, appearance bond on October 4, 2008. surrendered Miles and sought posted Randolph, the $25,000 Two days later, Randolph exoneration of the bond. On October 8, 2008, Randolph posted a new $25,000 appearance bond to secure Miles s release. On October 14, 2008, Miles again failed to appear, but was represented by counsel, resulting in a fourth bench warrant and a new bond set at $70,000. ¶4 On personally December or through 16, 2008, failed Following counsel. Miles the superior court exonerated the October 4 bond. to appear hearing, the The hearing was continued to January 20, 2009, to allow Randolph time to locate and surrender Miles on the October 8 bond. ¶5 On January claiming a property requested because a his 20, interest continuance, attorney Crow appeared in arguing could not 2 the for October prejudice appear the due as to first 8 bond. time, He an indemnitor a scheduling conflict.1 Crow submitted an affidavit stating he had paid the deposit for the bond. The superior court denied a continuance, stating: THE COURT FINDS that there has not been satisfactory demonstration that Mr. Crow has any standing in this proceeding. Therefore, IT IS ORDERED DENYING Bond Poster Ivory Crow s Motion to Continue Bond Forfeiture Hearing filed this date. In addition, the superior court found no reasonable cause for Miles s failure to appear on October 14, 2008, and forfeited the October 8 bond. Crow timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(B) (2003). DISCUSSION ¶6 Crow argues the court erred standing to contest the bond forfeiture. in ruling he lacked According to Crow, he established standing by alleging an interest in the property through his affidavit. ¶7 Our recent decision in State v. Copperstate Bail Bonds, 222 Ariz. 193, 213 P.3d 342 (App. 2009), which involved the same legal question and the same appellant, is dispositive of this appeal. In that case, the superior court ruled Crow 1 On January 20, 2009, Crow s attorney filed a notice of appearance and a motion to continue the bond forfeiture hearing because he had a different court hearing scheduled at the same time. 3 lacked standing to contest forfeiture of an appearance bond he claimed to have posted in a different criminal matter. 194-95, ¶ 9, 213 P.3d at 343-44. Id. at We held that a depositor or indemnitor does have standing to contest the forfeiture of a bond in a bond forfeiture proceeding. P.3d at 344. Id. at 195, ¶ 14, 213 We found Crow had alleged a property interest sufficient to create a factual question about his standing by submitting an uncontested posted the bond. affidavit, which stated that he Id. at 195-96, ¶¶ 15-16, 213 P.3d at 344-45. We remanded for the superior court to determine whether Crow had an interest in and thus standing to contest the forfeiture proceedings. ¶8 In Id. at 196 n.5, ¶ 16, 213 P.3d at 345 n.5. the case at bar, Crow likewise submitted an uncontested affidavit stating he paid the deposit for Miles s bond. Under Copperstate, Crow raised a factual issue that the superior court must resolve to determine his standing.2 2 We do not reach Crow s argument he was deprived of due process because his $2500 deposit was forfeited, and he remains liable for the remaining $22,500. Crow is not challenging the sufficiency of the notice and hearing procedure for bond forfeiture under Arizona Rule of Criminal Procedure 7.6(c)(1)(2). He simply contends the continuance denial deprived him of an opportunity to be heard before his property was forfeited. Due process protection vests only when a person has a property interest that is protectible. Shelby Sch. v. Ariz. State Bd. of Educ., 192 Ariz. 156, 168, ¶ 55, 962 P.2d 230, 242 (App. 1998) (citation omitted). Whether Crow has a property interest that is protectible is the issue to be determined on remand. 4 CONCLUSION3 ¶9 The superior court erred in summarily ruling that Crow lacked standing to challenge the bond forfeiture. the court standing to and make for a factual further determination proceedings We remand for regarding consistent with Crow s this decision. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 3 We reject the State s contention that the bond forfeiture must be affirmed simply because Miles failed to appear. Even after a violation, the superior court has discretion to consider when, and in what amount, to forfeit or exonerate a bond. State v. Old W. Bonding Co., 203 Ariz. 468, 474, ¶ 23, 56 P.3d 42, 48 (App. 2002). See Ariz. R. Crim. P. 7.6(d)(3) ( In all other instances, the decision whether or not to exonerate a bond shall be within the sound discretion of the court. ). The court considers several factors, including: the surety s effort and expense in locating and apprehending the defendant; [] the cost, inconvenience, and prejudice suffered by the state as a result of the violation; [] any intangible costs; [] the public s interest in ensuring a defendant s appearance; [] any other mitigating or aggravating factors. Old W. at 475, ¶ 26, 56 P.3d at 49 (citation omitted). The State concedes Crow could have offered relevant information. 5

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