State v. Badilla
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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. FRANK BADILLA, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-CV 09-0539 DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: DN DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. CR2004-011444-002 DT The Honorable Carolyn K. Passamonte, Commissioner AFFIRMED Andrew P. Thomas, Maricopa County Attorney By Davina Bressler, Deputy County Attorney Attorneys for Appellee Phoenix Blumberg & Associates By Bruce E. Blumberg Attorney for Appellant Phoenix B R O W N, Judge ¶1 Frank Badilla appeals the trial court s order forfeiting the bond he posted on behalf of Laura Sicairos-Loza ( defendant ). 1 For the reasons that follow, we affirm. BACKGROUND ¶2 In March 2004, defendant was charged with a felony by direct complaint. Badilla defendant s behalf. posted a $45,000 cash bond on The release order directed her to appear for a preliminary hearing on April 8, 2004, and defense counsel was appointed to represent her. On April 8, a supervening indictment was issued and sent to defendant at her former jail address, but not to the address stated on her release order. The supervening indictment informed arraignment on April 19, 2004. defendant to appear for Defendant failed to appear on that date, but her attorney was present and endorsed on the minute entry. 3, 2004. failed to The trial court continued the arraignment to May On that date, according to the minute entry, defendant appear and defense counsel court, which issued a bench warrant. was set for August 4, 2004. made found notice of defendant supervening had to the A bond forfeiture hearing Defense counsel, defendant, and Badilla were endorsed on the minute entry. court statements not been indictment, 1 At the hearing, the properly and served therefore with the vacated the The defendant in the underlying case is not a party to this appeal. 2 hearing, affirmed the bond previously posted, and affirmed the bench warrant as issued. Defense counsel and Badilla were endorsed on the minute entry. ¶3 Based on a subsequent review of the record, which occurred four and a half years later, 2 the trial court set a new bond forfeiture hearing for February 6, 2009, so that the [d]efendant and the bond poster can appear before the court and show cause why the $45,000.00 cash bond posted March 30, 2004, should not be forfeited. Defense counsel, Badilla were endorsed on the minute entry. nor her counsel however, counsel. was appeared present, at the although February he was defendant, and Neither defendant hearing. not Badilla, represented by At that hearing, Badilla requested a continuance in order to locate and surrender defendant on the bench warrant. The continuance was granted and the hearing was rescheduled for March 13, 2009. Neither the defendant nor Badilla was present at the March 13, 2009, hearing, but Badilla was represented by counsel and another continuance was granted. motion to exonerate the bond in May 2009. Badilla filed a Two additional continuances were granted before the bond forfeiture hearing was conducted on June 26, 2009. 2 The record provides no explanation as to why occurred regarding the bond during this time period. 3 nothing ¶4 After considering Badilla s motion to exonerate, the State s response to the motion, and oral arguments from counsel, the court found there were no reasonable grounds for defendant s failure to appear and no mitigating circumstances, particularly in light of the two minute entries mailed to both the defendant and Badilla regarding the hearings scheduled in May and August 2004. The court therefore ordered the $45,000 cash bond posted by Badilla in March 2004, forfeited. Badilla timely appealed. 3 DISCUSSION ¶5 Badilla argues the trial court abused its discretion in denying his motion to exonerate and forfeiting the appearance bond he posted for defendant in March 2004. court s order discretion, forfeiting but we an appearance interpret appearance bonds de novo. the We review the trial bond court for an rules abuse of governing State v. Old West Bonding Co., 203 Ariz. 468, 471, ¶ 9, 56 P.3d 42, 45 (App. 2002). ¶6 failed Badilla to first properly argues provide that because defendant 3 with the the trial court notice of Badilla filed his notice of appeal on July 24, 2009. A signed final judgment was not entered until August 3, 2009. An appeal made to this court from a superior court ruling before the entry of a signed final judgment is not, however, jurisdictionally defective; rather, it simply takes effect when the clerk of the court enters the final judgment. See Guinn v. Schweitzer, 190 Ariz. 116, 117, 945 P.2d 837, 838 (citing Barassi v. Matison, 130 Ariz. 418, 421-22, 636 P.2d 1200, 120304 (1981)). 4 supervening indictment, defendant had a valid explanation for her failure to appear at the arraignment. that regardless of any defect in the The State counters service of notice of supervening indictment, defendant was informed of her obligation to appear at all subsequently scheduled proceedings and make contact with release. her appointed counsel within two days of her The State further contends that defendant s failure to contact her appointed counsel as ordered or to update the court with any changes deliberate to ignorance her of address the as required proceedings constitutes against therefore cannot excuse her failure to appear. her and Based on the record before us, we agree with the State and conclude that the trial court did not abuse its discretion in forfeiting the bond. ¶7 We note first that Badilla has failed to provide this court with the transcripts of any of the hearings conducted in the superior court. Ariz. 70, 73, 900 See ARCAP 11(b); see Baker v. Baker, 183 P.2d 764, 767 (App. 1995) (noting that appellant is responsible for making certain that the record on appeal contains all transcripts necessary for reviewing court to consider issues raised on appeal and when that party fails to include necessary items, the court assumes that support trial court s findings and conclusions). record does conducted, not the indicate minute that any entries 5 evidentiary reflect the they would Although the hearings presence were of defendant s attorney at the two arraignment hearings and that he or she made statements to the court during at least one of those hearings. Without a transcript, we obviously do not know what defense counsel told the court. Furthermore, Badilla asserts on appeal that at the June 26, 2009, bond hearing, he provided factual and appearance of legal grounds [defendant]. to excuse Because and he explain failed to the non- provide a transcript of the bond hearing, we must presume to the contrary. ¶8 When considering whether to order the forfeiture of an appearance bond the trial court may consider all the relevant circumstances, including, the defendant s willfulness in violating the order to appear, the effort and expense expended by the surety in trying to locate and apprehend the defendant, any intangible costs, or any other aggravating or mitigating factors that prevented the defendant from appearing. In re Bond Forfeiture in Pima County Cause No. CR-20031154, 208 Ariz. 368, 370, ¶ 5, 93 P.3d 1084, 1086 (App. 2004) (citing State v. Old West Bonding Co., 203 Ariz. 468, 475, ¶ 26, 56 P.3d 42, 49 (App. 2002)). Here, the trial court found: [T]he Defendant has never appeared before the court to answer to the charges in this matter following her release on $45,000.00 cash bond [posted] March 30, 2004. The bond poster, Mr. Badilla, has informed the Court that he has had no contact with the Defendant since her release on bond, and that he does not have any information regarding her whereabouts. Although the 6 hearing date noted on the bond receipt did not occur, the bond poster was on notice that the Defendant was required to appear at all subsequent hearings. The Defendant and bond poster were both endorsed on the Minute Entry dated May 3, 2004, which ordered that a Bench Warrant issue, a clear indication that [D]efendant was still required to appear and answer to the charges. The bond poster was again endorsed on the Minute Entry dated August 4, 2004, following a Bond Forfeiture Hearing. That Minute Entry affirmed the warrant and affirmed the previously posted bond. Based upon this notice, the bond poster should have known that the Defendant had a continuing duty to appear. Badilla does not refute the contention that defendant had proper notice of subsequent proceedings and an ongoing obligation to remain in contact with her attorney and the court regarding the charges against her; nor does obligations as the bond poster. 1085 (recognizing that he attempt to negate his See Id. at 369, ¶ 4, 93 P.3d at [i]t is well settled in this jurisdiction that a surety assumes the risk of a defendant s failure to appear ). ¶9 In addition, a defendant may waive the right to be present at any proceeding by voluntarily absenting himself or herself from it. Ariz. R. Crim. P. 9.1. The defendant s voluntary absence may be inferred if the defendant had personal knowledge of the time of the proceeding, his right to be present, and the warning that the proceeding would take place in his absence if he failed to appear. State v. Muniz-Caudillo, 7 185 Ariz. 261, 262, 914 P.2d 1353, 1354 (App. 1996) (citing State v. Tudgay, 128 Ariz. 1, 2, 623 P.2d 360, 361 (1981)); Ariz. R. Crim. P. 9.1. ¶10 As the trial court found, defendant did not personal knowledge of the April 19, 2004, arraignment. have It is undisputed, however, that defendant had personal knowledge of the April obligations 8, 2004, prior to preliminary her failure hearing to and her appear. rights and cash bail The receipt, which was provided to defendant when she was released from custody, informed her that Defendant is to appear on: April 8, 2004 at 08:30 and failure to appear on the above date or any subsequent scheduled court date may result in forfeiture of this bond Defendant s and the arrest. issuance (Emphasis of another added). warrant for the Additionally, the release order prominently warned defendant of her right to be present at all pretrial and trial proceedings concerning this case and that a failure to appear could result in a warrant for her arrest and the proceedings going forward in her absence. Moreover, the release order notified defendant of her obligation to continue to reside at the present address or alternatively to notify the court promptly in the event [she] change[d] [her] place of residence. It also notified defendant that a public defender had been appointed to represent her, provided appointed 8 counsel s contact information, and ordered her to contact appointed counsel within 2 days of release [from] jail. ¶11 Even assuming that defendant did not receive the notice of supervening indictment resetting the April 8, 2004, hearing for April 19, 2004, she was given notice of her obligation to appear before the court on April 8, 2004, and at all subsequently scheduled hearings as detailed on the release order. The properly record noticed defendant s reflects of behalf that subsequent at both her appointed hearings of the was appeared and counsel on arraignment proceedings scheduled by the court. Further, nothing in the record suggests that at defendant appeared the court in anticipation of the preliminary hearing scheduled for April 8, 2004, or that she made any effort to contact her appointed attorney or the court to update her address or to learn despite her being ordered to do so. Ariz. at 262, 914 P.2d at 1354 of upcoming proceedings See Muniz-Caudillo, 185 (finding that defendant had voluntarily absented himself from proceedings, even though he did not have actual notice of original or continued trial dates, in view of the fact that prior to trial, court admonished defendant that if he did not appear the trial would continue in his absence and defendant failed to keep in contact with counsel to ascertain trial dates). Moreover, Badilla was noticed on all minute entries at his last known address and personally appeared 9 at the hearing where the bond and bench warrant of March 30, 2004, were affirmed. Badilla again appeared at the February 6, 2009, bond forfeiture hearing and requested additional time to locate and surrender the Defendant on the bench warrant but failed to produce defendant at any of the subsequently scheduled bond forfeiture hearings. ¶12 Nor do we find persuasive Badilla s assertion that the trial court improperly imposed a time limit within which Badilla could seek exoneration when it referred to the five-year period that elapsed from the time the bond was posted until Badilla filed for exoneration. The reference to the five-year period was illustrate offered opportunity merely to to comply with the that defendant requirement to had appear ample on the charges and Badilla had similarly ample opportunity to locate and surrender her for this purpose. We therefore decline to find any error on this basis. ¶13 Finally, Badilla argues the trial court erred in finding that no reasonable excuse or mitigating circumstances existed explaining defendant s failure to appear. He contends that the defendant s release on bond was based on a contract between defendant and the State, which required defendant to appear on April 8, 2008, for a preliminary hearing but did not equate to a notice and a requirement to appear for subsequent hearings. For the reasons discussed 10 above, supra ¶ 10, we disagree. contract Moreover, when a surety posts a bond it is not a between the defendant and the State as Badilla contends; it is a contract between the surety and the State wherein the surety agrees with the state to produce the defendant at the necessary court appearance or pay the penalty in the amount of the bond. Gearing v. State, 24 Ariz. App. 159, 160, 536 P.2d 1051, 1052 (1975); see also Ariz. R. Crim. P. 7.1(e) (stating that a surety is one . . . who executes an appearance bond and binds himself or herself to pay its amount if the person released fails to comply with its conditions ). In keeping with the obligations of this contract, the surety has the duty to keep informed of the defendant s whereabouts and his required court appearances or suffer the consequences. Gearing, 24 Ariz. App. at 160, 536 P.2d at 1052. ¶14 When Badilla posted the appearance bond for the defendant, he accepted the responsibility for keeping track of defendant and ensuring she appear before the court as required by the terms of her release. contact with the defendant He admits that he has had no since her release information about her current whereabouts. and has no It is undisputed that defendant has never appeared before the court to answer the charges against her and Badilla has not offered any reason for her absence or his failure to remain informed in that regard. The trial court did not err in concluding that no reasonable 11 excuse or mitigating circumstances existed explaining defendant s failure to appear. CONCLUSION ¶15 For the foregoing reasons, we affirm the trial court s order forfeiting Badilla s $45,000 bond. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ______________________________ JON W. THOMPSON, Judge /s/ ______________________________ SHELDON H. WEISBERG, Judge 12
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