JAMES G. CLEMONS; CINDY CLEMONS CARTER; AND WILLIAM HOWARD CLEMONS V. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 5, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002020-MR
JAMES G. CLEMONS;
CINDY CLEMONS CARTER;
AND WILLIAM HOWARD CLEMONS
APPELLANTS
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
INDICTMENT NO. 02-CR-00069
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
MINTON, JUDGE:
Two of the non-financial conditions of James
Clemons’s pretrial release from jail were to avoid alcohol and
to observe a curfew.
The trial court revoked his bond after
Clemons was caught out drinking past curfew.
1
After jailing
Senior Judge John D. Miller sitting as Special Judge by assignment
of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky
Constitution and KRS 21.580.
Clemons subject to a higher bond, the trial court also ordered
Clemons’s sureties, Cindy Clemons Carter and William Howard
Clemons, to forfeit a portion of the original bond.
The
sureties argue that they did not receive the required notice of
the bond forfeiture hearing and that the amount of the
forfeiture is excessive.
Because we hold that the trial court
may properly order a forfeiture of bond for violation of nonfinancial conditions, that the amount of the forfeiture was not
excessive, and that the issue of notice was not preserved for
appellate review, we find no error in the trial court’s decision
and we affirm.
STATEMENT OF FACTS
Clemons was arrested in August 2001 on charges of
manufacturing and trafficking in methamphetamine.
Clemons’s
father, William H. Clemons, posted a $50,000 cash bond for his
release.
When Clemons appeared for arraignment on the charges,
his original bond was changed to a $20,000 property bond.
Clemons’s brother and sister, William Howard Clemons and Cindy
Clemons Carter, executed the second bond.
The trial court placed several non-financial
conditions on Clemons’s release, including a prohibition against
drinking or possessing any alcoholic beverages, and a
requirement that he stay at home between 6:00 p.m. to 6:00 a.m.
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On July 10, 2003, a state trooper attempting to serve a subpoena
on Clemons found him at approximately 11:00 p.m. at a house some
five miles from his residence.
The officer smelled alcohol on
Clemons’s breath and administered a portable breath test (PBT).
The PBT showed Clemons’s blood alcohol level to be .0516.
Clemons admitted to the officer he had drunk two glasses of
wine.
He also claimed he was out past curfew for purposes of
employment.
According to Clemons, he had been hired to housesit
for a friend.
PROCEDURAL HISTORY
Following the report that Clemons had violated his
bond conditions, the Commonwealth filed a motion to revoke bond.
The revocation hearing was held on July 22, 2003.
The police
officer who administered the PBT and Clemons were the only
witnesses.
At the conclusion of the hearing, the court
concluded Clemons had violated the non-financial conditions of
his bond by drinking alcohol.
Therefore, his bond was revoked,
Clemons was jailed, and a new bond raised to $50,000 cash.
Upon request by defense counsel, a hearing on the
motion to forfeit bond was reassigned to September 16, 2003.
The order reassigning the hearing was supposedly distributed to
counsel for Clemons and the Commonwealth, as well as
individually to the sureties.
For reasons not apparent in the
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record, the hearing was not held on September 16 but, rather, on
August 19, 2003.
Clemons, both sureties, and counsel for all
parties involved were present.
After hearing arguments from
both sides, the court ordered the forfeiture of $5,000 of the
$20,000 bond.
This appeal followed.
THE COURT’S FORFEITURE OF $5,000 WAS NOT EXCESSIVE
The sureties first argue the court’s forfeiture of
$5,000 of the $20,000 property bond was excessive.
In support
of this argument, the sureties argue that during the roughly two
years Clemons was released on bond, he was present at every
court session where his presence was required.
Therefore, the
sureties assert that since Clemons had previously complied with
the conditions of his bond, the $5,000 forfeiture is
unwarranted.
We disagree.
The purpose of posting bonds “is to secure the
defendant’s being arrested and brought to justice.”2
Bonds are
permitted by the court “for the convenience of a person not yet
proved to be guilty, and to protect the state against the
expense of keeping such persons in jail.”3
Bonds are
2
Abrams v. Commonwealth, 254 Ky. 68, 70 S.W.2d 983, 984 (1934); see
also, Johnson Bonding Company, Inc. v. Commonwealth, Ky., 487 S.W.2d
911, 913 (1972).
3
See Abrams, supra.
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discretionary, and the decision to impose, forfeit, or remit
bonds lies solely with the trial court.4
But bonds are also used to impose certain nonfinancial conditions to control the defendant’s behavior while
on pretrial release.
The majority of jurisdictions allow courts
to forfeit a defendant’s bond if one of these conditions is
breached.
5
Kentucky case law has yet to broach the subject of
whether bond forfeiture is appropriate for violation of nonfinancial conditions.
However, the language of the applicable
statute and procedural rule clearly indicates the General
Assembly’s intent that courts have the option to forfeit for
such violations.
KRS6 431.545 plainly states that bond
4
Abraham v. Commonwealth, Ky.App., 565 S.W.2d 152, 158 (1977); see
also, United Bonding Insurance Company, Kent Cox, Agent v.
Commonwealth, Ky., 461 S.W.2d 536, 538 (1971).
5
See, e.g., State v. Korecky, 777 A.2d 927, 933-934 (N.J. 2001) (“the
majority rule in other jurisdictions is that bail may be forfeited
for a violation of a condition other than nonappearance.”) (citing,
State v. Williams, 730 A.2d 677, 680 (Me. 1999) (affirming
forfeiture of bail after finding defendant possessed alcohol in
violation of condition of release); State v. Hernandez, 1 Neb.App.
830, 511 N.W.2d 535, 538-39 (1993) (holding bond properly forfeited
because defendant breached "crime-free" condition); State v.
McLaughlin, 122 Ohio App.3d 418, 701 N.E.2d 1048, 1051 (1997)
(holding partial forfeiture of appearance bond proper when defendant
violated bond condition that he have "no contact" with victim);
Bridges v. Superior Court, 121 R.I. 101, 396 A.2d 97, 101 (1978)
("[B]ail system is designed to ensure the accused's presence at
court and to keep the accused as much under control of the court as
if he were actually in the custody of a court officer."); State v.
Badzmierowski, 171 Wis.2d 260, 490 N.W.2d 784, 786 (App. 1992)
(holding bond properly forfeited when defendant violated bond nocontact condition).
6
Kentucky Revised Statutes.
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forfeiture is appropriate if a defendant “shall willfully fail
to appear or shall willfully fail to comply with the conditions
of his release . . . .”7
Likewise, RCr8 4.42 states:
(1) If 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 bail bond
should not be forfeited or the conditions of
release be changed, or both.
. . . .
(3) 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 wilfully
[sic] violated one of the conditions of his
or her release or that there is a
substantial risk of nonappearance.9
Based on these rules, we believe the trial court was
acting within its authority when it forfeited $5,000 of the
$20,000 property bond posted for Clemons’s release.
There was
clear and convincing evidence at the forfeiture hearing that
7
KRS 431.545 (emphasis added).
8
Kentucky Rules of Criminal Procedure.
9
RCr 4.42(1), (3) (emphasis added).
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Clemons had, in fact, violated his release conditions.
Not only
did the trooper testify that Clemons’s blood alcohol level was
.0516, but Clemons himself testified he had been drinking wine.
Since his bond conditions affirmatively stated Clemons was
prohibited from drinking, consuming, or possessing alcoholic
beverages, his actions were clearly in violation.
Likewise, we do not believe the forfeiture of $5,000
was excessive.
There are no clear-cut rules defining what is
and what is not “excessive.”
However, as discussed, discretion
regarding bond issues lies with the trial court.
We do not have
the authority to reverse that decision unless we determine there
has been an abuse of discretion.
In this case, we do not
believe the $5,000 forfeiture constitutes such an abuse.
Finally, the sureties’ argument that forfeiture was
improper because Clemons had until that time complied with his
release conditions is without merit.
not based upon a reward system.
The bond conditions were
And there is no merit to an
argument that the trial judge should have waived bond forfeiture
for Clemons’s violation of the conditions merely because of his
previous compliance.
Thus, we affirm.
THE NOTICE ISSUE WAS NOT PRESERVED AT THE TRIAL LEVEL
The sureties’ second point of contention is that the
court failed to give them proper notice of the August 19, 2003,
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forfeiture hearing.
They argue that under RCr 4.52, they should
have received notice twenty days prior to the hearing.
This argument is also without merit due to failure to
preserve the issue at the trial level.
It is the responsibility
of counsel “to present to the trial court those questions of law
which may become issues on appeal.”10
If an issue is not
properly preserved, this Court may only review the matter for
“[a] palpable error which affects the substantial rights of a
party . . . .”11
After viewing the entire videotape of the August 19,
2003, forfeiture hearing, we conclude that there was no error
affecting the rights of the sureties.
All interested parties
were personally present and represented by counsel at the
hearing.
No mention whatsoever was made of lack of notice, nor
was a continuance requested.
Likewise, both sides were given a
fair opportunity to present their case.
Since failure to
preserve the issue did not lead to palpable error, we are
without authority to review this issue.
However, even if the notice issue had been preserved
and notice had, in fact, been deficient, we agree with the
Commonwealth that the sureties did not establish prejudice.
10
Todd v. Commonwealth, Ky., 716 S.W.2d 242, 248 (1986); see also,
Turner v. Commonwealth, Ky.App., 460 S.W.2d 345, 346 (1970);
RCr 9.22 (emphasis omitted).
11
RCr 10.26.
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Again, as stated, all parties were present and represented by
counsel.
Each side was given ample opportunity to present an
argument before the court.
RCr 9.24 states, “[t]he court...
must disregard any error or defect in the proceeding that does
not affect the substantial rights of the parties.”
Because we
believe the sureties were in no way prejudiced, we disregard any
alleged error or deficiency in the notice.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Mike Moulton
Elizabethtown, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Matthew D. Nelson
Assistant Attorney General
Frankfort, Kentucky
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