2017-0557, Petition of Second Chance Bail Bonds (State of New Hampshire v. James Castine)

erred by order ing forfeiture of the entire $10,000 bond. We affirm. other bail conditions. Alternatively, the petitioner argues that the trial court bond only if a defendant fails to appear for a court date, and not for violation of petitioner argues that the trial court erred because it can order forfeiture of a forfeited after the defendant violated se veral bail conditions. On appeal, t he $10,000 bond the petitioner posted for the defendant, James Castine, be Bonds, appeals a n order from the Superior Court (Delker, J.) requiring that a BASSETT, J. The p etitioner, corporate surety Second Chance Bail

James Castine, defendant, filed no brief.

State. assistant attorney general, on the memorandum of law and orally), for the Gordon J. MacDonald, attorney g eneral (Stephen D. Fuller, senior

Winters Law Office, of Concord (Andrew S. Winters orally), for the petitioner. Prieto Law, of Manchester (Joseph Prieto on the brief), and Cohen &

(State of New Hampshire v. James Castine) PETITION OF SECOND CHANCE BAIL BONDS

No. 2017 - 0557 Rockingham

address of the court's home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by E - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well as 2

v. Kinne, 39 N.H. 1 p. 2 29 (1859), in order to challenge the bail forfeiture order. that the petitioner would need to bring a civil proceeding, as described in State State asserts that this direct appeal must be dismissed. The State contends — to bring an appeal of the lower court’s forfeiture order.” Accordingly, the claim” because a “surety does not have the authority — by statute or otherwise under Supreme Court Rule 7 is not the proper vehicle to bring the surety’s Rule 7. See Sup. Ct. R. 7 (1)(A). The State argues that “a mandatory appeal T he petitioner filed this action as a mandatory appeal und er Supreme Court As an initial matter, we address the jurisdictional basis for our review.

followed. excessive. The trial court de nied the p etitioner’s motion and this appeal bond is appropriate, the order to for feit the full amount of the bond is p etitioner filed a motion to reconsider, arguing that even if forfeiture of the compliance with bail conditions,” and ordered the bond forfeited. The th e petitioner “took no steps whatsoever to supervise the defendant’s comply with conditions of bail other than appearance in court, observed that concluded that a surety can be held responsible for a defendant’s failure to no means to supervise the defendant’s drug use or other conduct. The court compliance with bail conditions other than appearance, and that a surety had court dates. It asserted that a surety should not be required to monitor only agreed to an “appearance bond” and the defendant had not missed any court should not have declar ed the bond forfeited because the petitioner had At the show cause hearing in June p. 2 2017, the p etitioner argued that the

April p. 2 24, 2017. The c ourt revoked the defendant’s bail. not be forfeited. The defendant was arrested and appeared before the court on the trial court gave the petitioner 45 days to show cause w hy the bond should his b ail conditions. The warrant required that the b ond be forfeited; however, T he trial court issued a n arrest warrant because the defendant violated

Hampshire to the Carolinas. defendant told the police that he and his girlfriend were m oving from New observ ed suitcases and other belongings in the defendant’s vehicle and the search of the vehicle revealed drugs and drug paraphernalia. The police also responders administered several do ses of Narcan, both individuals revived. A girlfriend passed out in a vehicle in Sturbridge, Massachusetts. After first Less than two weeks later, the police found the defendant and his

$10,000 bond, and the defendant was released from jail. from the use of controlled drugs. On April 6, p. 2 2017, the petitioner posted a defendant live in Epping, notify the court of any change of address, and refrain cash or corporate surety. Among other conditions, the court required that the three counts of s ale of h eroin. The trial c ourt set bail in the amount of $10,000 The record reflects the following facts. The defendant was charged with p. 3 3

proceeding. . . . not issue against them for the amount forfeited. . . . It is a civil by which they are summoned to show cause why execution should prosecuting officers, to bring scire facias against the recognizors, if the recognizance is not paid or settled to the satisfaction of the U pon the forfeiture of a recognizance, the practice in this State is,

See Kinne, p. 3 39 N.H. at 137. In Kinne, we held: trial court’s bail forfeiture order is to bring a civil proceeding called scire facias. T he State asserts that the sole means available to a surety to challenge a

the surety the right to file a direct appeal in the underlying criminal case. person, or the state”; accordingly, we conclude that the statute does not give the provisions of this chapter” (emphasis added)). T he petitioner is not “the be eligible to be released pending judicial proceed ings upon compliance with order. See RSA 597:1 (2001) (stating “all persons arrested for an offense shall demonstrates that “the person” is the arrestee or person subject to the bail t he statute does not define “the person,” the chapter when read as a whole, be determined promptly.” RSA 597:6 - e, III (2001) (emphasis added). Although decision denying revocation or amendment of such an order. The appeal shall appeal to the supreme court from a court’ s release or detention order, or from a R SA 597:6 - e, III states that only “[t] he person, or the state. . . may

sought to be advanced by the statutory scheme. Id. intent and to interpret statutory language in light of the policy or purpose statute as a whole. Id. This enables us to better discern t he legislature’s consider words and phrases in isolation, but rather within the context of the purpose and avoid an absurd or unjust result. Id. Moreover, we do not (201 p. 3 3). We construe all parts of a statute together to effectuate its overall legislature did not see fit to include. Petition of Carrier, 165 N.H. 719, 721 consider what the legislature might have said or add language that the (1997). We discern legislative intent from the statute as written and will not and ordinary meaning of the words used. Appeal of Rowan, 142 N.H. 67, 71 in statutory interpretation. W hen construing statutes, we first look to the plain Resolution of this threshold jurisdictional issue requires that we engage

not persuaded that dismissal is appropriate under the circumstances. order” in either case. On this point, we agree with the State; however, we are “the surety may take a direct appeal in the criminal case from a forfeiture court did not directly address the threshold jurisdictional question of whether (1980). The State asserts that these cases are not dispositive because the State v. McGurk, 16 p. 3 3 N.H. 58 p. 4 4, 586 (2012); State v. Mo ccia, 120 N.H. 298, 300 brought by sureties within the context of the underlying criminal claim. S ee We note that this court has, on occasion, accepted direct appeals 4

generally been the practice in New Hampshire courts that the surety is of the bail conditions imposed by the trial court, it asserts that because “it has release. Despite the fact that the petitioner agreed to a bond form that lists all agreed to monitor the d efendant’s compliance with all of the conditions of his argues that the trial court erred when it concluded that the petitioner had We now turn to the merits of the petitioner’s appeal. The petitioner first

200 p. 4 4). extraordinary writ.” State v. Sun Sur. Ins. Co., 99 P.3d 818, 820 & n.1 (Utah a non - party surety who seeks to appeal a bail bond forfeiture order is an case because it is not a party to the criminal case,” and “the proper remedy for the Utah Supreme Court: “[a] surety cannot bring a direct appeal in a criminal a petition for a writ of certiorari. In so concluding, we are in agreement with past practice, we will consider the appeal filed by the petitioner under Rule 7 as N.H. (State v. Campbell), 152 N.H. 515, 517 (2005). Here, consistent with our right to appeal, and only at the discretion of the court.. . .” Petition of State of certiorari is an extraordinary remedy, usually available only in the absen ce of a (quotation omitted)); Appeal of Tamm, 124 N.H. 107, 110 (1983). “Review on practice permits consideration of their petitio n as one for writ of certiorari” 10 as a petition for a writ of certiorari because “[i]t is well - established that our (accepting an appeal of an administrative decision mistakenly filed under Rule 11 petition for a writ of certiorari); Petition of Hoyt, 143 N.H. 533, 534 (1999) (considering a discretionary appeal wrongfully brough t under Rule 7 as a Rule Court Rule 11. S ee Petition of Guardarramos - Cepeda, 154 N.H. 7, 8 - 9 (2006) filed under Rule 7 or Rule 10 as petitions for a writ of certiorari under Supreme cannot be the end of our anal ysis. W e have considered appeals mistakenly provision that authorizes a surety to appeal the trial court’s decision. But that However, neither the parties, nor we, have identified any statutory

readily available mechanism to secure appellate review of such a judgment. days). Therefore, it would be manifestly un just if a surety did not have a professional bondsman if a surety fails to satisfy a judgment in full within 30 revoke the approval and registration that allows a surety to operate as a forfeited recognizance. See, e.g., RSA 598 - A:2 (2001) (allowing the State to corporate sureties face severe consequences for fail ing to pay a judgment on a statutory and regulatory schemes have evolved considerably in 150 years and challenging the trial court’s authority to order that forfeiture. Additionally, the ordered forfeiture after a show cause hearing and the petitioner appeals, judgment should issue against the surety. Id. at 129 - 31. Here, the trial court In Kinne, the State asked this court to resolve in the first instance whether The present case has a much different procedural posture than Kinne.

1 p. 5 5 p. 4 47 (10th ed. 2014). Kinne, however, is distinguishable. some m atter of record should not be enforced . . . .” Black’s Law Dictionary requiring the person against whom it is issued to appear and show cause why Id. (emphasis added). Black’s Law Dictionary defines “scire facias” as “[a] writ 5

it conclud ed that the surety had agreed to monitor the d efendant’s compliance We first address the petitioner’s argument that the trial court erred when

(quotation omitted). untenable or unreasonable to the prejudice of [that party’s] case.” Id. sustainable, a party “must demonstrate that the court’s ruling was clearly N.H. 29 p. 5 5, 296 (2001). To show that the trial court’s decision is not sufficient to sustain the discretionary judgment made.” State v. Lambert, 147 of discretion, we consider “whether the record establishes an objective basis In determining whether a trial court ruling is a n unsustainable exercise

(reviewing bail bond forfeiture for “abuse of discretion”). discretion”); Sur. Midland Ins. Co. v. State, 62 p. 5 5 P.2d 90, 90 (Nev. 1981) P.3d 923, 935 (Haw. Ct. App. 2016) (reviewing bail bond forfeiture for “abuse of substitute our discretion for that of the district court”); State v. Nelson, 384 standard of review in bond forfeiture cases, “[i] t is clear that we cannot v. Parr, 594 F.2d 440, 443 - 44 (5th Cir. 1979) (stating, in the context of the deferential standard of review in bond forfeiture cases. See, e.g., United States W e note that appellate courts in other jurisdictions utilize a similarly

standard. regarding bail bond forfeiture using our unsustainable exercise of discretion review is ap propriate. Accordingly, we will review trial court decisions substantial discretion in this arena, we conclude that a deferential standard of discretion). Given that the legislature has chosen to vest the trial court with Rowan, 142 N.H. at 71 (stating that the word “may” is permissive and indicates court may think proper.” RSA p. 5 597:33 (2001) (emphases added); s ee Appeal of amount of any forfeited recognizance . . . or for such part thereof as . . . the 597:32 (2001) (emphasis added), and “may render judgment for the whole 2018). The trial court also “may strike off a def ault upon a recognizance,” RSA judge “determines,” or is detained. RSA 59 7:2, I, III (Supp. 2017) (amended defendant is released on personal recognizance, released with conditions the broad discretion. The trial court has the discretion to decide whether a reflect the fact that the applicable statutory scheme vests the trial court with trial court decisions regarding bail and recognizances. Our standard must We have not articulated the applicable standard for appellate review for

the cost and inconvenience to the State.” We disagree. “the decision to forfeit the entire $10,000 bond bears no reasonable relation to appearance. The petitioner further contends that the trial court erred because if a defendant violates a non - appea rance condition but never misses a court because RSA p. 5 597:31 (2001) does not give the court authority to order forfeiture all court dates.” In addition, the petitioner asserts that the trial court erred “solely to monitor th e D efendant’s compliance with respect to his appearance at responsible for the D efendant’s appearance,” its obligation in this case was p. 6 6

condition that is rea sonably necessary to assure the appearance of the person which explicitly authorizes the court to issue bail orders that include “any . . . 597:31. This interpretation advances the overall purpose of RSA chapter 597, accordingly, we conclude that the defendant defaulted for purposes of RSA perform his legal or contractual duty to abide by all of his bond conditions; answer.” Black’s Law Dictionary, supra at 507. Here, the defendant failed to or failure to perf orm a legal or contractual duty” and “[t]o fail to appear or a default. The term “default” is commonly understood to mean “[t]he omission defendant’s failure to appear in court is the sole circumstance that can trigger 597:31. The statute does not define default, nor does it state that the proceedings to be had immediately for the re covery of such f orfeiture.” RSA default, the recognizance shall be declared forfeited, and the state may cause RSA 597:31 provides that “[i]f any party recognized to appear makes

court erred when it ordered forfeiture. We disagree. bond when the defendant violates non - appearance bail conditions, the trial Forfeiture” statute, does not empower trial courts to declare the forfeiture of a The petitioner next argues that because RSA 597:31, the “Declaration of

in court.” monitor the defendant’s bail conditions and not just to secure his appearance concluding “that Second Chance Bail Bond [s] assumed responsibility to order bail forfeit ure. We hold, therefore, that the trial court did not err in petitioner’s agreement in this case, nor constrain the trial court’s discretion to petitioner’s representation, a court “practice” would not operate to nullify the bonds and forfeiture. However, e ven if we were to accept the accuracy of the representations regardi ng the “general practice” in the trial court regarding bail Notably, t here is no evidence in the record to support the petitioner’s

proceedings against the corporate surety for forfeiture of the bond.” terms of the bond made it clear that breach of ‘any condition(s)’ could result in surety or surety.” (Emphasis omitted.) The trial court found that “the express against the defendant for Personal Recognizance and against the corporate condition(s) Cash Bail shall be forfeited to the State and execution may issue The bond form also provides that “[i]f the defendant does not comply with any

4. The defendant shall keep the peace and be of good behavior. Court in which this case is pending of any change of address. 3. The defendant immediately shall notify any New Hampshire answer this charge when n otified to report to the court. 2. The defendant shall appear in any New Hampshire Court to charge . . .. 1. The defendant shall appear in this court to answer to this

form which sets forth the following bail conditions: with all conditions of bail. The petitioner acknowledges that it agreed to a bond p. 7 7

determining the amount of forfeiture: “T he superior court may render judgment N.H. at 296. RSA 59 p. 7 7:33 vests t he court with broad discretion when under our unsustainable exercise of discretion standard. See Lambert, 147 We review the trial court’s decision to order forfeiture of the entire bond

are not persuaded. no reasonable relation to t he cost or inconvenience incurred by the State. We circumstances present in this case, complete forfeiture is excessive and bears forfeiture of the entire $10,000 bond. The petitioner contends that, under the The petitioner next argues that the trial court erred when it ordered

court did not err when it ordered forfeiture in this case. breach of a condition other than failure to appear, we conclude that the trial between for feiture of a surety bond for breach of an appearance condition and appearance. See id. Accordingly, find ing no sound reason to distinguish preventing breach of the condition — when it agrees to conditions other than same motivation and essential obligations — supervising the defendant and bond. See State v. Korecky, p. 7 777 A.2d 927, 934 (N.J. 2001). A surety has the a criminal proceeding, it does so for economic gain: the premium paid for the When a surety obligates itself to guarantee the presence of a defendant at

we are persuaded that the majority rule is more sound. 5 p. 7 71, 573 (Ill. App. Ct. 1979); State v. Cardinal, 520 A. 2d 984, 987 (Vt. 1986), courts have reached a different conclusion, see, e.g., In re E.H., 397 N.E. 2d because defendant breached “crime - free” co ndition). Although a number of 511 N.W. 2d 535, 538 - 39 (Neb. Ct. App. 1993) (holding bond properly forfeited alcohol in violation of condition of release was appropriate); State v. Hernandez, 1999) (observing that forfeiture of bail after finding defendant possessed marijuana and drug paraphernalia”); State v. Williams, 730 A. 2d 677, 680 (Me. violated a “travel restriction” condition and a “promise not to possess 654 (5th Cir. 1993) (holding that forfeiture was appropriate when the defendant defendant’ s commission of a crime.”); United States v. Terrell, 983 F. 2d 653, failure to appear, but also for other violations of bond cond itions, including the (“[A] bail bond and its collateral may be forfeited not only for the defendant’ s failure to appear. See United States v. Gigante, 85 F. 3d 83, 85 (2d Cir. 1996) concluded that bonds may be forfeited for breach of bail conditions other than The majority of courts that have addressed this issue have also

statute that prohibited “the sale and keeping for sale of intoxicating liquor”). condition required him to be “of good behavior” and refrain from violating a to “illegally keeping for sale 10 gallons of spirituous liquor” and his bail (1 p. 8 894) (holding that a defendant defaulted on his bond when he pleaded guilty of a bail condition unrelated to appearance. See State v. Wheeler, 6 p. 7 7 N.H. 511 statutory scheme, we held that a cou rt can declare a bond forfeited for breach community.” RSA 597:2, III(b)(3). Indeed, in a different era, under a different as required and to assure the safety of the person or of any other person or the 8

defendant and t he public,” and that “forfeiture may entice the defendant or The court also noted that “the issue in this case, is protection of both the defendant to answer the charges, danger to himself, and danger to others.” “were serious and implicate all three bail considerations: availability of the weigh in favor of forfeiture.” It reasoned that the defendant’s bail vi olations The trial court also found that the “other factors outlined in Korecky also

omitted.) occasional losses therefore must be expected.” (Quotation and brackets of risk is substantial, and its fees are commensurate with the risk, and that venture, the object of which is profit. . . . [T] he return it seeks for assumption court went on to observe that a surety is “engaged in an entrepreneurial effort,” it was not inequitable to order forfeiture of the entire bond. The trial T he trial court reasoned that, given the petitioner’s “total and utter lack of ensure that he would comply with the [bail] provision.” (Quotation omitted.) to home visits,” but that it “mad e no effort to supervise [the] defendant to attending drug treatment or submitting to random drug screens, or submitting The court found that the petitioner “could have imposed conditions . . . such as for high risk defendants, and telephonic check - ins for lower risk defendants. bail bond companies supervise defendants through electronic GPS monitoring complete forfeiture was appropriate, the trial court noted that other corporate nothing to supervise the defendant.” In a subsequent order explaining why that the petitioner had “failed to fulfill its role as surety” because it “did T he trial court in this case addressed all of the Korecky factors, observing

Korecky, 777 A.2d at 934 - 35 (citations omitted).

by the St ate as a result of the breach. the cost, inconvenience, prejudice or potential prejudice suffered appropriateness of the amount of the recognizance of bail; and (9) “injury to public interest” suffered as a result of the breach; ( p. 8 8) the of the condition violated; (7) whether forfeiture will vindicate the defendant; (5) the deterrence value of forfeiture; (6) the seriousness willful; (4) any explanation or mitigating factors presented by the defendant’ s breach of the recognizance of bail conditions was of the bondsman’ s supervision of the defendant; (3) whether the (1) whether the applicant is a commercial bondsman; (2) the extent

factors: other than appearance,” trial courts should consider a non - exclusive list of Korecky. In Koreck y, the court stated that “[i]n cases involving a condition the analytical framework outlined by the New Jersey Supreme Court in party liable.” RSA 5 p. 9 97:33 (emphas e s added). Here, the trial court employed according to any special circumstances in evidence affecting the case or the for such part thereof as, after hearing counsel, the court may think proper, for the whole amount of any forfeited recognizance and interest and costs, or 9

forum. See Petition of Kilton, 156 N.H. 632, 645 (2007). M atters of public condition other than failure to appear, it makes its arg ument in the wrong public policy, courts should not be able to order forfeiture for breach of a 721. Therefore, to the extent that the petitioner argues that, as a matter of responsibility is to interpret the law as it is written. See Carrier, 165 N.H. at implications for both defendants and corporate sureties. H owever, our defendant violates conditions other than failure to appear may have practical We too are mindful that a trial court’s decision to order forfeiture when a

is needed could establish a bona fide effort to police the bail conditions.” under those circumstances, a “surety’s judgment that less rigorous supervision low risk of violating bail cond itions.” The trial court went on to observe that, defendant and mak [ing] an informed judgment that the defendant presents a reasoning that a surety could meet its obligation to supervise by “evaluat [ing] a intense super vision on every defendant in order to avoid the risk of forfeiture,” corporate sureties in New Hampshire. It noted that a surety need not “impose T he trial court was mindful of the impact that its ruling could have on

effective to have to constantly monitor each and every defendant. compliance, those powers are not unfe ttered and it is not cost - While bail bondsmen have specific powers to help ensure said defendants will comply with non - appearance conditions. it is simply too risky a gamble for bail bondsmen to be confident to the Court and subsequently s ent to jail. With many defendants, possible that countless defendants would be instantly surrendered unlikely they would be able to stay in business. It is entirely stringently as the Court would require them to under its order, it is If bail bondsmen were required to supervise defendants as

Korecky, 777 A.2d at p. 9 939.) The petitioner argues: defendants without significant financial resources, to obtain bonds. ’” (Quoting have on the cost of surety bonds and the “‘ ability of defendants, particularly the trial court failed to adequately consider t he impact that its order would forfeiture of a bond for violation of bail conditions other than failure to appear, Finally, t he petitioner argues that, even if a trial court may order

unsustain able exercise of discretion. demonstrated that the trial court’s decision to order complete forfeiture was an the record and the trial court orders, we conclude that the petitioner has not appearance, he did not appear “voluntarily” before the court. H aving reviewed that the defendant had been arrested and was in custody at the time of his determinative,” and “does not weigh in favor of [the petitioner]” because, given Korecky, 777 A.2d at p. 9 935). I t concluded, however, that “this factor is not prejudice or potential prejudice . . . as a r esult of the breach,’” (quoting acknowledged that “the State did not suffer much, if any, ‘cost, inconvenience, surety to seek treatment for the [defendant’s] addiction.” The court p. 10 10

concurred. LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,

LLC, 170 N.H. 569, 575 (2018). brief, are deemed waived. See Halifax - American Energy Co. v. Provider Power, Other issues that the petitioner raised in the notice of appeal, but did not

the task of addressing the petitioner’s concerns. See i d. policy are reserved for the legislature, and we therefore leave to the legislature