JAMES VICTOR MARTIN, JR. v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 14, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2002-CA-002288-MR
JAMES VICTOR MARTIN, JR.
APPELLANT
APPEAL FROM BRECKINRIDGE CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 02-CR-00034
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
BAKER, KNOPF, AND TACKETT, JUDGES.
KNOPF, JUDGE:
James Martin, Jr., appeals from an order of the
Breckinridge Circuit Court, entered September 9, 2002,
forfeiting to the Commonwealth half of his $20,000.00 bail bond.
Martin contends that the trial court abused its discretion by
ordering forfeiture of the bond upon insufficient grounds.
To
the extent that the forfeiture in this case was excessive, we
agree.
In April 2002, Martin was indicted on charges that he
had committed incest and rape against his six-year-old daughter.
He was arraigned in May 2002, and bond was set at $20,000.00
cash.
A few days later Martin and his surety, his father, James
Martin Sr., executed the bond.
Martin Sr. posted the cash, and
both men promised that Martin would appear for all court
proceedings.
Both also agreed to several collateral conditions
of release including one forbidding Martin Jr. from having any
contact with the alleged victim.
violated the no-contact condition.
On June 7, 2002, Martin
The child’s mother brought
the child to Martin Sr.’s home, where Martin was staying, and
with the mother observing from a distance, Martin visited with
her.
When the visit was brought to the court’s attention, the
court revoked Martin’s bail and ordered that $10,000.00 of the
bond be forfeited.
Martin eventually pled guilty to first-
degree sexual.1
On appeal, Martin argues that the purpose of a bail
bond is primarily to ensure that the released defendant appears
for court proceedings.
Bond forfeiture, he maintains, should be
reserved for cases in which the defendant violates that primary
purpose and misses an appearance.
Forfeiture is not
appropriate, he contends, when, as in the case, the defendant
has breached one of the collateral conditions of release.
He
relies on cases from other jurisdictions, whose bail statutes
1
KRS 510.110.
2
differ from ours, and on Johnson v. Commonwealth,2 which did not
construe this state’s then new statutory provisions concerning
bail, but did hold that bail bonds ought not to be forfeited for
reasons not closely related to the bail.
As the Commonwealth points out, however, and as the
trial court noted, both KRS 431.545 and RCr 4.42 contemplate
bond forfeiture for reasons other than the defendant’s failure
to appear in court.
The statute provides in pertinent part that
[i]f a defendant shall willfully fail to
appear or shall willfully fail to comply
with the conditions of his release . . .
[t]he court may order a forfeiture of the
bail.
RCr 4.42 (1) provides that
[i]f at any time following the release of
the defendant and before the defendant is
required to appear for trial the court is
advised of a material change in the
defendant’s circumstances or that the
defendant has not complied with all
conditions imposed upon his or her release,
the court having jurisdiction may order the
defendant’s arrest and require the defendant
or the defendant’s surety or sureties to
appear and show cause why the bond should
not be forfeited or the conditions of
release be changed, or both. . . . Where the
court is acting on advice that the defendant
has not complied with all conditions imposed
upon his or her release, the Court shall not
change the conditions of release or order
forfeiture of the bail bond unless it finds
by clear and convincing evidence that the
defendant has willfully violated one of the
2
Ky. App., 551 S.W.2d 577 (1977).
3
conditions of his or her release or that
there is a substantial risk of
nonappearance.
The General Assembly has thus placed Kentucky among the majority
of jurisdictions which permit bond forfeiture for the violation
of a bail condition other than nonappearance.3
This does not mean, of course, that forfeiture is
mandated or that it will be appropriate in all cases, no matter
how insignificant the violation.
It does mean, however, that
the matter is entrusted in the first instance to the discretion
of the trial court and may be reviewed in this Court only for
abuse of that discretion.4
The trial court must find, as the
provisions quoted above emphasize, that the violation was
willful.
Other factors bearing on the propriety of forfeiture
or its amount include the seriousness of the condition violated;
the deterrence value of the forfeiture; the cost, inconvenience,
prejudice, or potential prejudice suffered by the Commonwealth
as a result of the breach; whether forfeiture will vindicate a
serious injury to the public interest; the appropriateness of
3
See State v. Korecky, 777 A. 2d 927 (N.J. 2001) (collecting
cases).
4
Cf. Abraham v. Commonwealth, Ky. App., 565 S.W.2d 152 (1977)
(trial court generally enjoys broad discretion in matters
related to bail); United States v. Gambino, 17 F.3d 572 (2nd Cir.
1994) (discussing the similar federal rules).
4
the amount of the bond; and any mitigating factors presented by
the defendant.5
As the trial court found, the breach in this case—open
visitation for at least half-an-hour outside Martin Sr.’s home-is not disputed and was plainly willful.
We also agree with the
trial court that the breach was serious.
An accused rapist
should not have contact with his alleged victim and the
principal witness against him, particularly an infant victim.
The breach was potentially prejudicial to the Commonwealth.
In
light of these factors, we are not persuaded that the trial
court abused its discretion by ordering that a portion of the
bond be forfeited.
We are persuaded, however, that the amount of the
forfeiture was excessive.
Martin.
The money forfeited did not belong to
The defendant’s father pledged his life savings and
apparently had every intention of seeing to it that Martin
complied with the no-contact order.
The child’s mother brought
the child to his house against his wishes and advice.
To be
sure, neither he nor Martin did all that he might have done to
prevent the contact once the child had arrived, but the fact
that the situation was thrust upon him is a mitigating
circumstance.
Although it was potentially prejudicial, the
5
State v. Korecky, supra; State v. Werner, 667 A. 2d 770 (R.I.
1995).
5
visit did not in fact interfere with the prosecution or impose
costs upon the Commonwealth.
appearances in court.
value.
Martin did not miss any
Nor is this a case with much deterrence
In light of these many countervailing factors, a
$10,000.00 forfeiture is excessive.
Accordingly, we affirm the September 9, 2002, order of
the Breckinridge Circuit Court to the extent that it forfeits a
portion of Martin’s bail bond, but we reverse the order to the
extent that the forfeiture is excessive and remand for
reconsideration of the forfeiture amount in light of the factors
discussed above.
TACKETT, JUDGE, CONCURS.
BAKER, JUDGE, CONCURS IN PART AND DISSENTS IN PART.
BAKER, JUDGE, CONCURRING IN PART AND DISSENTING IN
PART:
I concur in part and respectfully dissent in part.
I
concur with so much of the majority’s opinion which posits that
forfeiture of a portion of the bond was proper; however, I
dissent with that part of the majority’s opinion which declares
the amount of bond forfeiture ($10,000) excessive.
While the majority initially recognizes that bond
forfeiture is within the sound discretion of the circuit court,
it nevertheless invades that discretion by subsequently
concluding the amount of forfeiture was excessive.
The majority
cites to myriad “countervailing factors” to support its
6
conclusion of excessiveness; however, just as there are certain
factors or evidence supporting the appellant’s position, there
are likewise compelling factors or evidence opposing same.
It
is precisely in such a conflicting environment that the
discretion of the circuit court should prevail.
In the case at hand, I view Martin’s particular bond
violation to be most egregious.
As a condition of the bond, the
circuit court forbade Martin from having contact with his sixyear old daughter.
This condition was undoubtedly placed upon
Martin for the protection of the young girl.
Martin was
originally indicted upon charges of incest and rape of his
daughter and eventually pled guilty to first-degree sexual
abuse.
The circuit court found, and the majority agreed, that
Martin’s “breach in this cases – open visitation for at least
half-an-hour outside Martin Sr.’s home – is not disputed and was
plainly willful.”
Under these circumstances, due deference
should be afforded the trial court, as I perceive no abuse of
its discretion.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lawrence R. Webster
Pikeville, Kentucky
Albert B. Chandler III
Attorney General of Kentucky
Dennis W. Shepherd
Assistant Attorney General
Frankfort, Kentucky
7
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