2011-164, State of New Hampshire v. Sean McGurk

Free Bail Bonds (the surety), appeals orders of the

the brief and orally) for the surety. Bernstein, Mello & Chadwick, PLLC on

general, on the brief and orally), for the State.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 United States or of this state, or by sentence of law.” Lamphire v. State also that they were prevented by the act of God, or the government of the

they were prevented from surrendering [the defendant] without their fault, but

State v. Moccia

To invoke RSA 597:30, “sureties must . . . ma[k]e it appear, not only that

surety under the terms provided in the statute.

charges which have been made against him, or at any stage of the proceedings.

We, therefore, assume without deciding that the district court can discharge a

is to produce the accused whenever necessary in the prosecution of the Under the terms of most criminal bail bonds, the obligation of the surety

statute’s language, it applies to the district courts as well as the superior court. As an initial matter, the parties do not dispute that, notwithstanding the

hearing.

RSA 597:30.

forfeiting the bonds and its denial of the surety’s request for an evidentiary not before us. The only issues before us arise out of the trial court’s order surety’s motion to revoke bail until after the defendant’s default, this issue is

such terms as may be deemed just. county commissioners and state’s counsel, may discharge them on of law, the superior court, on petition and notice thereof to the

statute). Although the trial court arguably erred when it delayed ruling upon the

the government of the state or of the United States, or by sentence

N.H. 463, 464 (1906) (interpreting a substantially identical prior version of the denied, filed two motions to reconsider, both of which were also denied., 73 The surety moved to vacate the forfeiture order and, when its motion was

prevented from surrendering their principal by an act of God or of When the sureties in a recognizance, without their fault, are

circumstances. It provides in relevant part:

defendant’s objection.

RSA 597:30 (2001), however, allows a surety to avoid forfeiture in certain

then under RSA 597:31 (2001), the bond “shall be declared forfeited.”

, 120 N.H. 298, 301 (1980). If the defendant fails to appear,

from appearing as scheduled. At that point, it forfeited bail over the motion, however, until the defendant’s ongoing incarceration prevented him moved to revoke the defendant’s bail. The trial court did not rule on this

after the New Hampshire bonds were issued. The surety’s representative then Department of Corrections pending trial there for offenses allegedly committed was entirely appropriate. See p. 3 activity. The bonds guaranteed the defendant’s appearance, so this forfeiture

the bonds because the defendant failed to appear, not because of his criminal

declined to hold an evidentiary hearing. We will not disturb an order denying a language to the statute that the legislature did not see fit to include. Lamphire

to Vermont and commit crimes, the court’s order makes clear that it forfeited noted that the defendant’s failure to appear resulted from his decision to travel bonds as performance rather than appearance bonds. Although the court 3

Finally, the trial court sustainably exercised its discretion when it for releasing . . . sureties” that was unavailable at common law, and add

We also reject the surety’s argument that the trial court treated the

in isolation. State v. McDonald prevents the defendant’s appearance. To do so would “introduce a new ground RSA 597:31. We interpret statutes in the context of the overall statutory scheme, not

or otherwise, many still deny a surety relief under such circumstances. See sureties.”). Although some jurisdictions have supplanted this rule by statute violation of a criminal law of that State, it will not avail to protect him or his 73 N.H. at 464.

not . . . introduce a new ground for releasing . . . sureties.” Id cannot construe it to excuse the surety when another state’s government Lamphire Thus, because the statute applies only in the enumerated situations, we is impossible based on an act of government authority.” We disagree. Am. Jur. 2d Bail and Recognizance § 169, at 483 (2009).

different meaning was intended. Id after the [bond] is executed, the [defendant] is imprisoned in another State for approved usage of the language unless from the statute it appears that a to produce a defendant. See Taylor v. Taintor, 83 U.S. 366, 371 (1872) (“If, law, acts of another state’s government failed to excuse the surety’s obligation

of determining [sureties’] liability” by codifying common law defenses, but “does

, 73 N.H. at 464. The statute, thus, “provide[s] a convenient method

to those listed, each of which “would be a good defence at common law.” of the statute, which is to excuse the surety when surrendering the defendant In this case, the statute’s plain language limits the defenses for sureties discharge only under the listed circumstances “conflict[s] with the clear import sentence of law. Rather, it argues that construing the statute to permit a. We review the trial court’s interpretation of a statute de novo. Id. legislature might have said nor add language that it did not see fit to include.

language of the statute, and construe it according to the common and

Vermont is an act of God, the United States, the state of New Hampshire, or a Here, the surety does not contend that the defendant’s incarceration in p. 4 4

Affirmed

HICKS, CONBOY and LYNN, JJ., concurred.

circumstances under which RSA 597:30 permits discharging a surety.

the defendant’s incarceration in Vermont would nonetheless fall outside the failed to establish prejudice because, whatever a hearing might have revealed, Methodist Church of N.H., 157 N.H. 25 p. 4 4, 257 (2008). Here, the surety has untenable or unreasonable to the prejudice of the party’s case. State v. Korean request for an evidentiary hearing unless a party establishes that it was clearly