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STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RAMON LORENZO,
Defendant,
and
HOWELL BONDING, INC.,
Interested Party/Surety-Appellant.
COURT OF APPEALS OF NEW MEXICO
APPEAL FROM THE DISTRICT COURT OF CIBOLA COUNTY, Pedro G.
Rael, District Judge
Hector H. Balderas, Attorney General,
Walter M. Hart III, Assistant Attorney General, Albuquerque, NM, for Appellee
Titus and Murphy Law Firm, Tyson K.
Gobble, Farmington, NM, for Appellant
EMIL J. KIEHNE, Judge. WE CONCUR: JULIE J.
VARGAS, Judge, HENRY M. BOHNHOFF, Judge
{1} Howell Bonding,
Inc. (Howell) appeals from a judgment partially forfeiting the bail bond it
posted on behalf of Defendant Ramon Lorenzo. Howell argues that forfeiture of
the bond was improper because the district court did not send it written notice
within four days of the district court’s declaration of forfeiture of the bond,
as required by NMSA 1978, Section
31-3-2(B)(2)(b) (1993). Concluding that
Howell has failed to show that it was prejudiced by the district court’s
failure to strictly comply with the statute, we affirm the district court’s
ruling. We decline to address Howell’s argument on costs.
{2} Defendant was
indicted on several felony charges in connection with a robbery and shooting at
a diner in Milan, New Mexico. Howell posted a $100,000 bond on behalf of
Defendant, who was set to go to trial with a co-defendant on the morning of
October 5, 2015. Without explanation, Defendant failed to appear at his
scheduled trial. The district court stated its intention to forfeit Defendant’s
bond if he did not appear by 1:00 p.m., but Defendant did not appear. The court
issued a bench warrant for Defendant’s arrest that same day. The district court
proceeded with trial against the co-defendant, which ended on October 9, 2015.
{3} The State filed a
request for a hearing on the bond forfeiture on October 19, 2015, and certified
that it mailed the request to Howell that same day. The district court issued a
notice of intent to forfeit the bond on October 23, 2015, and set a hearing on
November 23, 2015. The clerk’s office served this notice on Howell via
certified mail on October 30, 2015.
{4} Howell began
looking for Defendant in the Grants area on November 1, 2015. Howell contacted
the District Attorney’s Office to ask whether the prosecution had any
information which might be helpful to Howell’s search. Howell also spent time
searching for Defendant by contacting his family and friends and by searching
social media websites. Howell went to the Grants area three times, on November
1 for three to four hours, on November 6 or 7 for six hours, and “all day” on
November 21, 2015. Defendant was arrested on November 21, 2015, by a Grants
Police Department officer responding to a call about an individual who was
running through some back yards in a residential area. The arresting officer
recognized that Defendant was “wanted” after arresting him. The arrest was made
while individuals working for Howell who were searching the area were having
dinner at a nearby restaurant, taking a break from their search for Defendant.
The arrest was made in an area that Howell had been searching.
{5} The hearing set for
November 23, 2015 was rescheduled and was ultimately held on two days in
January and February 2016. After presenting evidence about its efforts to
locate Defendant, Howell argued that its bond should not be forfeited because
the district court failed to comply with Section 31-3-2(B)(2)(b), which states
that when a district court declares a bail bond forfeiture due to a criminal
defendant’s nonappearance in court, the district court “shall . . . give
written notice thereof to the surety within four working days of
declaration[.]”
Howell also argued that the late notice prejudiced it by
effectively giving Defendant a head start, making it harder to find him.
{6} At the end of the
hearing, the district court acknowledged that the statutory notice of the
declaration of forfeiture had not been sent to Howell within the required
four-day period, but stated that it would have been impractical to send the
notice during the co-defendant’s jury trial, and that failure to comply with
the four-day deadline did not mean that the bail bond was immune from
forfeiture. The district court said that it would not forfeit the entire bond
amount because notice was not provided to Howell in timely fashion, but that it
would forfeit $30,000 of the bond because of the additional expenses the State
would incur in holding a jury trial for Defendant.
{7} The district court
later filed a written decision, with findings of fact and conclusions of law,
confirming its oral decision that $30,000 of the $100,000 bond should be
forfeited. In its order, the district court found that Howell had “demonstrated
no prejudice” as a result of the district court’s failure to send the four-day
notice of the bond forfeiture. The district court explained this finding as
follows:
If prejudice could be claimed by
Howell . . . , it would be that Howell could have reduced its liability by
capturing . . . and delivering [Defendant] to the [c]ourt
before the Grants Police Department arrested him. Even this is extremely thin
and only conjecturally supported by the evidence. However, because there is
some chance that Howell may have caught [Defendant] before the [p]olice
arrested him if he had another ten days, there is no prejudice because the
[c]ourt only forfeited $30,000[] of a possible $100,000[] and if Howell had
delivered [Defendant], the [c]ourt obviously would have considered that matter
favorably. The court is being quite lenient in only forfeiting 30 [percent] of
the bond and considers that even though Howell did not deliver [Defendant]
after thirty three days, the time [Defendant] was a fugitive was not
extraordinarily lengthy, minimizing the cost and potential prejudice to the
State.
{8} The district court
further concluded that Section 31-3-2(B)(2)(b) is procedural in nature and that
the four-day notice provision conflicts with Rules of Criminal Procedure
5-406(C) and
5-407 NMRA because the rules do not state a time in which notice
of forfeiture must be provided to a surety. Because the district court found
that the statute was procedural in nature, it found that the rules would
supersede the statute and concluded that the statutory four-day notice
requirement did not control. Though our reasoning differs from that of the
district court, we agree that Howell was not prejudiced by the district court’s
failure to strictly comply with the statute’s four-day notice provision, and
therefore we affirm the district court’s judgment on the bond.
{9} We review a
district court’s order forfeiting a bond for abuse of discretion.
State v.
Pacheco,
2008-NMCA-055, ¶ 25,
143 N.M. 851,
182 P.3d 834. “An abuse of
discretion occurs when a ruling is clearly contrary to the logical conclusions
demanded by the facts and circumstances of the case.”
Benz v. Town Ctr.
Land, LLC,
2013-NMCA-111, ¶ 11,
314 P.3d 688 (internal quotation marks
and citation omitted). We review de novo the parties’ arguments about the
meaning and effect of the four-day notice deadline in Section 31-3-2(B)(2)(b)
because statutory interpretation presents an issue of law.
See State v.
Smith,
2009-NMCA-028, ¶ 8,
145 N.M. 757,
204 P.3d 1267 (“Statutory
interpretation is a question of law, which we review de novo” (internal
quotation marks and citation omitted)).
{10} We may affirm an
order of the district court if it is right for any reason, so long as doing so
does not require us to look beyond the factual allegations that were raised and
considered below, and if it would not be unfair to the appellant to do so.
Atherton
v. Gopin,
2015-NMCA-003, ¶ 36,
340 P.3d 630. Further, we note that “an
error is harmless unless the complaining party can show that it created
prejudice.”
Kennedy v. Dexter Consol. Sch.,
2000-NMSC-025, ¶ 26,
129
N.M. 436,
10 P.3d 115;
see Pacheco,
2008-NMCA-055, ¶ 21 (noting that
surety must demonstrate prejudice as a result of not receiving timely notice);
see also Rule
1-061 NMRA (“No error or defect in any ruling or order or in
anything done or omitted by the court or by any of the parties is ground for
granting a new trial or for setting aside a verdict or for vacating, modifying
or otherwise disturbing a judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial justice. The court at every
stage of the proceeding must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties.”).
B. The law governing bail bonds
{11} The purpose of a
bail bond is to secure the defendant’s appearance at trial.
State v. Amador,
1982-NMSC-083, ¶ 13,
98 N.M. 270,
648 P.2d 309. It is not intended to be a
source of revenue for the state.
Id. By releasing a defendant on a bail
bond, “[t]he state is relieved of the expense and burden of keeping the
defendant pending his trial.”
Id. “The state is also aided in its
efforts to recapture a fugitive defendant by the bondsman, who, it is presumed,
will be moved by an incentive to prevent judgment (on the forfeiture) or, if it
has been entered, to absolve it and to mitigate its penalties.”
Id.
(internal quotation marks and citation omitted). To promote the purpose of
bail, bondsmen should be encouraged to enter into bail contracts.
Id. ¶
14.
{12} The surety on a bail
bond is considered to have custody of the defendant.
Id. ¶ 7. The
bondsman’s obligation, however, is not to produce the defendant at trial, but
rather is “an obligation to answer, to the extent of the penalty, for the
default of the []defendant[] in the event []he[] did not appear on the date set
for trial.”
Id. ¶ 5 (omission, internal quotation marks, and citation
omitted).
A surety becomes liable on a bail bond when the defendant
fails to appear as required, and the surety cannot avoid that liability by
explaining where the defendant was or by obtaining a delay of the trial to try
to find the defendant.
Id. Rather, if the defendant fails to appear in
court for his or her trial, the surety may only attempt to mitigate its
liability by locating the defendant and bringing him or her to court.
Id.
C. Failure to comply with Section 31-3-2(B)’s
four-day notice requirement does not preclude a district court from entering
judgment on a bail bond unless the surety proves that it was prejudiced by the
failure
{13} Howell argues
[BIC
4-17] that the district court should not have entered any judgment on the
bail bond because it failed to provide Howell with the four-day notice required
by Section 31-3-2(B), which provides as follows:
Whenever a person fails
to appear at the time and place fixed by the terms of his bail bond, the court:
(1) may issue a
warrant for his arrest; and
(2) may declare a
forfeiture of the bail. If the court declares a forfeiture, it shall:
(a) declare such
forfeiture at the time of nonappearance;
(b) give
written notice thereof to the surety within four working days of the
declaration; and
(c) issue a
bench warrant for the person’s arrest.
Although the district court declared a forfeiture of the bond
and issued an arrest warrant on October 5, 2015, when Defendant failed to
appear for trial, no one disputes that it did not send Howell the required
notice within four business days. The evidence did not reveal the exact date
when Howell received actual notice of Defendant’s non-appearance, but it
appears that Howell received actual notice within several days after October
19, 2015, when the State filed its request for a hearing on the bond forfeiture
and served that request on Howell.
{14} Howell argues that
Section 31-3-2(B) provided it with a right to timely notice of Defendant’s
non-appearance, and because it did not receive this notice, the district court
could not enter judgment forfeiting the bond. Howell argues that strict
compliance with the four-day notice requirement is required because that notice
is intended to protect a surety’s property interest and to alert the surety to
the defendant’s non-appearance so that it can promptly begin searching for him
or her. According to Howell, failure to comply with the four-day notice
requirement makes it more likely that a fugitive defendant will be able to
elude pursuers and endangers the public due to the risk that a fugitive may
commit more crimes while on the run.
{15} We do not doubt that
Section 31-3-2(B) is intended to promote the objectives described by Howell,
and we do not condone the district court’s failure to comply with the statute’s
notice provision, but we do not agree that a district court’s failure to comply
with the four-day notice requirement automatically releases Howell from all
liability on the bail bond. First, the statute itself does not say what, if
any, consequence should flow from a violation of the four-day notice
requirement. If the Legislature had intended that a district court’s violation
of the four-day notice requirement would automatically result in freeing a surety
from all further obligation, then presumably it would have said so. It seems
unlikely to us that the Legislature intended to do so, because if that were the
law, then any inadvertent failure by a district court to comply with the notice
deadline would mean that the surety would have no further incentive to help the
state to locate a fugitive criminal defendant. As our Supreme Court said in
Amador,
one of the principal benefits of a bail bond to the state is that it provides
the bail bond agent with a strong incentive to help recover fugitive
defendants.
1982-NMSC-083, ¶ 13. If a surety received the windfall of a release
from liability due to a court’s failure to meet the notice deadline, then it
would have no further incentive to search for the fugitive, which would
increase the risk of the fugitive avoiding capture or committing additional
crimes, the very risks that Howell itself argues the statute was intended to
guard against.
{16} Second, this Court
has not interpreted the deadlines in Section 31-3-2 as absolute requirements
that must be satisfied before judgment may be entered on a bail bond. Instead,
we have held the failure to satisfy a deadline in Section 31-3-2 may provide a
surety with grounds for relief if it can prove that it was prejudiced by that
failure. In
Pacheco,
2008-NMCA-055, ¶ 4, a criminal defendant failed to
appear for trial. The district court timely provided the surety with the
four-day notice required by Section 31-3-2(B), but did not give it timely
notice under Section 31-3-2(E) of its intent to enter judgment on the bond and
to hold a hearing at which the surety could appear and show cause why the bond
should not be forfeited.
Pacheco,
2008-NMCA-055, ¶¶ 15-22. That
lack of notice, however, was not prejudicial, because at the show-cause
hearing, the district court gave the surety more time to look for the defendant
and did not enter judgment on the bond for six more months.
Id.
¶ 21. This Court therefore declined to reverse the judgment of forfeiture
due to the lack of prejudice.
Id. ¶¶ 21-22.
{17} To be sure,
Pacheco’s
holding concerned the notice provision in Section 31-3-2(E), but Howell has
provided us with no reason why
Pacheco’s rationale should not also apply
to Section 31-3-2(B). We also believe that our interpretation of the statute is
more consistent with our Supreme Court’s statement in
Amador that a
surety’s liability on a bail bond is triggered the instant that a defendant
fails to appear for trial, and that thereafter, the surety may only attempt to
mitigate its liability.
1982-NMSC-083, ¶ 5. A surety’s demonstration that it
was prejudiced by a district court’s failure to provide notice in accord with
Section 31-3-2(B) would be such a mitigating circumstance.
{18} Accordingly, we hold
that a district court’s failure to comply with the four-day notice requirement
in Section 31-3-2(B) does not automatically absolve a surety from liability on
a bail bond; instead, the surety’s liability is diminished only to the extent
that it can demonstrate that the failure to provide it with timely notice
prejudiced its ability to locate the defendant.
{19} We conclude that it
is unnecessary to resolve the parties’ extensively briefed dispute about
whether the four-day notice provision is “substantive” or “procedural,” because
whether the surety’s right to timely notice is substantive or procedural, the
surety must demonstrate prejudice to obtain relief, and as we explain below,
Howell did not do so here. We also need not resolve their lengthy dispute about
whether Section 31-3-2(B)(2)(b)’s four-day notice provision conflicts with, and
is therefore overridden by, the more generous notice provisions in Rules of
Criminal Procedure 5-406 or 5-407, because whatever deadline applies, the
surety must demonstrate prejudice, which Howell failed to do here.
1 Finally, we decline to address the
State’s argument, offered as an alternative basis for affirmance, that if
Section 31-3-2(B) is substantive in nature, then it violates the constitutional
separation of powers. Since we do not need to decide whether Section
31-3-2(B)’s notice provision is substantive or procedural in nature, we do not
need to decide this constitutional issue.
D. Howell failed to demonstrate that it was
prejudiced by the district court’s failure to comply with Section 31-3-2(B)’s
notice provision
{20} Howell claims that
it was prejudiced because the district court’s failure to provide it with
timely notice of Defendant’s failure to appear gave him a “head start” of
several weeks, thus interfering with its ability to locate Defendant. Here,
however, the district court specifically found that Howell had failed to carry
its burden to demonstrate the existence of prejudice resulting from the
district court’s failure to comply with the four-day notice requirement.
Although Howell provided generalized testimony to support its belief that
Defendant could have been found sooner if Howell had received timely notice,
the district court found that Howell’s claim was “extremely thin and only
conjecturally supported by the evidence.”
See State v. McDaniel,
2004-NMCA-022, ¶ 6,
135 N.M. 84,
84 P.3d 701 (stating that prejudice must be
more than speculative). We do not second-guess the district court’s credibility
determinations or reweigh the evidence ourselves.
See State v. Garcia,
2011-NMSC-003, ¶ 5,
149 N.M. 185,
246 P.3d 1057 (stating that an appellate
court does not second-guess the fact-finder’s credibility determinations,
reweigh evidence, or substitute its judgment for that of the fact-finder).
{21} Despite its
rejection of Howell’s prejudice claim, the district court nevertheless declined
to forfeit the entire $100,000 bond amount, and instead entered judgment for
$30,000, acknowledging as a mitigating circumstance the possibility that Howell
might have located Defendant before the police if the statutory notice had
timely been provided to Howell. The district court also considered Howell’s
efforts to locate Defendant as a mitigating circumstance, despite its doubts
about whether those efforts were “totally reasonable.” In addition, the
district court stated that Defendant’s time as a fugitive was not
“extraordinarily lengthy,” which minimized the cost and potential prejudice to
the State. But the district court also recognized that some forfeiture was
called for, because Defendant had not appeared for his scheduled trial with his
co-defendant, thus forcing the State to incur the expense of conducting two
jury trials.
{22} We believe
that the district court’s determination was well within the discretion provided
to it by Section 31-3-2(C), which states that the court “may direct that a
forfeiture be set aside, upon such conditions as the court may impose, if it
appears that justice does not require the enforcement of the forfeiture.” The
district court’s decision was also within the discretion provided to it by
Section 31-3-2(E), which states that “[i]f good cause is not shown [why
judgment should not be entered against the surety for the amount of the bail
bond], the court may then enter judgment against the obligors on the
recognizance, for such sum as it sees fit, not exceeding the penalty fixed by
the bail bond or recognizance.” Although Howell plainly believes that no
forfeiture should have been ordered at all, its mere disagreement with the
district court’s decision to order a partial forfeiture of the bond does not
suffice to establish that the district court abused its discretion.
{23} Howell also argues
that even if a partial forfeiture was warranted, the $30,000 amount was
arbitrarily set, because “[t]he State did not present any evidence as to the
costs to the State because of . . . Defendant’s failure to appear[,]” and it
states that “[t]here are no facts or evidence on the record that correlate to
the forfeiture amount of $30,000[].” Howell does not direct us to any place in
the record where this particular argument was preserved. But even if it was
preserved, we conclude that it is waived as undeveloped because Howell’s
argument on this point is three sentences long and does not cite the record or
any authority in support of this claim.
See In re Adoption of Doe,
1984-NMSC-024, ¶ 2,
100 N.M. 764,
676 P.2d 1329 (“Issues raised in
appellate briefs which are unsupported by cited authority will not be reviewed
by us on appeal.”).
E. Howell’s challenge to the district court’s cost
award lacks merit because the district court awarded no costs
{24} Howell’s
final argument is that it was “punitive in nature and not in the spirit of the
law” to award both costs and a partial forfeiture of the bond.
[BIC 23-24]
But although the district court stated its intent to award “costs to the State
in an amount to be determined at a future hearing[,]”
[2 RP 637] Howell
does not direct us to any order awarding costs against it. We have been unable
to locate any such award in the record, perhaps because the State informed the
district court that it was not seeking costs.
Because the State declined
to seek costs and because it appears that the district court awarded no costs,
we reject this claim.
{25} We affirm the
district court’s judgment.