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 AMERICAN SURETY COMPANY, ) ) Appellants. ) ) DIVISION ONE FILED: 08/31/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CV 09-0600 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, ARCAP) Appeal from the Superior Court in Maricopa County Cause No. CR2009-123665-001 DT The Honorable Brian S. Rees, Commissioner AFFIRMED Richard M. Romley, Maricopa County Attorney by Davina Bressler, Deputy County Attorney Peter S. Spaw, Deputy County Attorney Attorneys for Appellee Phoenix Clifford Sherr Attorney for Appellants Phoenix W I N T H R O P, Judge ¶1 Appellants Randolph & Company Bail Bonds, Inc. and American Surety Company (collectively, the Surety ) appeal from a judgment following forfeiting reasons, we a $6300 affirm appearance the For the court s trial bond. order and judgment. FACTS AND PROCEDURAL BACKGROUND ¶2 Police arrested Rodney Sheppard on April 6, 2009, for burglary and theft. $6300 appearance jail. 1 When On April 18, 2009, the Surety posted a bond, Sheppard thus securing failed to Sheppard s appear at release his April from 22 arraignment, the court did not issue an arrest warrant; rather, it vacated and reset the arraignment for April 27. When Sheppard did not appear on April 27, the court issued a bench warrant for his arrest. Glendale police apprehended him later that day. ¶3 hearing. On August 4, 2009, the court held a bond forfeiture Tony Randolph, who is not a lawyer, appeared at the hearing on behalf of Randolph Bail Bonds. The hearing resulted in forfeiture of Sheppard s $6300 bond because Sheppard failed to appear at his April 22 arraignment without good cause. 2 This 1 The Surety issued the bond in the name of Lawrence Grant Rhodes. On April 27, 2009, the court updated the caption to reflect the Defendant s true name as Rodney Sheppard (from Lawrence Grant Rhodes) with an AKA of Lawrence Grant Rhodes. 2 The court s minute entry from the bond forfeiture hearing bases forfeiture on the April 27 date, but throughout the hearing transcript, the court refers to the April 22 arraignment date. See State v. Leon, 197 Ariz. 48, 49 n.3, ¶ 5, 3 P.3d 968, 969 n.3 (App. 1999) (stating that when an express conflict 2 appeal followed, and we have jurisdiction pursuant to Arizona Revised Statutes section 12-2101(B) (2003). ANALYSIS ¶4 The Surety s primary argument is that it was reversible error for the court to forfeit Sheppard s bond based on his non-appearance at the April 22 hearing, which the court vacated and rescheduled. before consider the trial issues The Surety did not raise this argument court, raised however, for the and first we time generally on do appeal. not See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). Consequently, we deem the issue waived. ¶5 Further, in light of this court s recent opinion in State v. Eazy Bail Bonds, 224 Ariz. 227, 229 P.3d 239 (App. 2010), we hold that because the Surety did not appear through counsel in the superior court, it effectively failed to appear at all. Having failed to appear, as a matter of law, the Surety was unable to satisfy its burden of proof on the issue of good cause for Sheppard s failure to appear at his arraignment. We therefore affirm the trial court s order and judgment based on what was essentially the Surety s failure to appear. exists between the court s oral pronouncement and entry, the oral pronouncement generally controls). 3 a minute CONCLUSION ¶6 For the above reasons, we affirm the trial court s order and judgment. ____________/S/______________ LAWRENCE F. WINTHROP, Judge CONCURRING: _____________/S/___________________ PATRICIA A. OROZCO, Presiding Judge ____________/S/____________________ DANIEL A. BARKER, Judge 4

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