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2009-UP-198 - State v. Lavender

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State of South Carolina, Respondent,

v.

Kenneth Lee Lavender,

Richard G. Thompson, d/b/a All-Out-Bail Bonding, as Surety, and Troy Bob, a/k/a Tracey Bowen, d/b/a Bonds by Gaynell, Palmetto Surety Corp., as Surety, Defendants

of whom Richard G. Thompson, d/b/a All-Out-Bail Bonding, as Surety, and Troy Bob, a/k/a Tracey Bowen, d/b/a Bonds by Gaynell, Palmetto Surety Corp., as Surety, are the Appellants.

 


Appeal From Greenville County
 Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No. 2009-UP-198
Submitted April 4, 2009 – Filed May 6, 2009  


AFFIRMED


Robert T. Williams, Sr., of Lexington, for Appellants.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Attorney General T. DeWayne Pearson, of Columbia, for Respondent.


PER CURIAM:  This case is an appeal from a bond estreatment matter involving one defendant and two bonding companies. Richard G. Thompson, d/b/a All Out Bail Bonding, and Troy Bob, a/k/a Tracey Bowen, d/b/a Bonds by Gaynell (collectively bonding companies) appeal from an order of the trial court estreating $55,000 on each of the bonding companies' $100,000 bonds.  The bonding companies contend the trial court erred in ordering the amounts estreated on each bond, asserting the court failed to properly consider the necessary elements for bond estreatment and the court abused its discretion in ordering a total estreatment of $110,000 on the two bonds.  We affirm.[1]

FACTUAL/PROCEDURAL BACKGROUND

On April 5, 2005,Kenneth Lee Lavender was arrested on drug trafficking charges.  On August 31, 2005, his bond was set at $200,000 with certain conditions, including that Lavender not leave the state, that he appear at all scheduled hearings and trial, and that he keep the clerk of the State Grand Jury advised of his home address.  He was released on an appearance recognizance bond in the amount of $200,000, with Richard G. Thompson, of All Out Bail Bonding, and Troy Bob,[2] of Bonds by Gaynell, executing the "Order Specifying Methods and Conditions of Release," each being responsible for $100,000.  Lavender failed to appear at a scheduled status conference on April 7, 2006 and a bench warrant was issued for his arrest that same day.

Following the issuance of a rule to show cause to both bonding companies and a September 29, 2006 hearing on the matter, the trial court issued a form order on September 29, 2006, followed by an October 9, 2006 order, estreating the bond in the amount of no more than $90,000 for each bonding company based on an incremental schedule.  Pursuant to the schedule, if Lavender was presented within thirty days of the hearing, the bonding companies would have no financial liability.  For every thirty-day period thereafter, the bonding companies would be responsible in $15,000 increments for the first several months, with $30,000 to be forfeited upon the passing of the sixth month, until Lavender was presented or the total amount reached $90,000 for each company.  The order further provided the bonding companies' relief from further liability was subject to the State's right to request a hearing to determine what, if any, compensation was owed by the companies for costs to the State associated in locating and apprehending Lavender.

The bonding companies filed a motion for relief of judgment from the 2006 order of estreatment. After Lavender was apprehended in February 2007, the State filed a motion for rule to show cause as to criminal and civil contempt in November 2007 based on the bonding companies' failure to comply with the court's graduated scale of estreatment.[3]  At a hearing on the matter, the bonding companies argued that costs to the State should be considered, and the court should take note of the fact that the companies paid $10,000 for a tip regarding a telephone number that ultimately led to Lavender's location in Florida and his subsequent apprehension.  The companies presented evidence that they began searching for Lavender about a week to a week and a half after he absconded, when they discovered Lavender had cut off his electronic monitoring bracelet.  The companies detailed their various attempts to secure Lavender when they believed they had found him, but were unsuccessful in attaining the necessary help from authorities.  Ultimately, the bonding companies paid a confidential informant $10,000 for a cell phone number belonging to Lavender, which the companies then turned over to SLED.

Max Dorsey, a Lieutenant in the vice unit of SLED, testified that after the information was conveyed to him regarding Lavender's phone number, SLED obtained a court order resulting in information from the telephone company as to the area where Lavender was located.  Thereafter, he contacted the Florida Department of Law Enforcement with the information and, after some police work by that department, the Florida authorities were able to capture Lavender.  Dorsey noted two SLED agents travelled to Florida to transport Lavender back to South Carolina.  When asked about the money and man-hours expended by SLED on the matter, he testified as follows:

A:  I’m not sure, Ma'am.  I know we independently, outside of [the owner of one of the bonding companies] and his group of bonding agents, had made some attempts to locate Mr. Lavender.  We too had informants out there that we're working with to find him, many, many man-hours by myself and the other SLED agents assigned to the State Grand Jury. 

Not to mention the amount of money from the phone records that SLED had to pay for and then his eventual transport back to the State of South Carolina.   

The State requested the court enforce its order of estreatment, which at the point of capture of Lavender amounted to $60,000 per company based on the graduated scale, but allowed $5,000 a piece for each bonding company should be subtracted to reflect the total $10,000 the companies spent on the tip which led to Lavender's arrest.  The State thus requested $55,000 be estreated as to each company.  The bonding companies objected, arguing the State failed to present sufficient evidence of its efforts in terms of monetary expenses and the bonding companies made the effort resulting in the successful apprehension of Lavender.   

After taking the matter under advisement, the court issued its order estreating the companies' bonds in the amount of $55,000 each.  The court noted that under the original order, the companies would have been required to pay $60,000 a piece, but "[a]fter considering the costs to the State as well as the purpose of the bond and the nature and willfulness of the default" the court determined, pursuant to Section 38-53-70 of the South Carolina Code Ann. Section 38-53-70, that justice required each company forfeit $55,000.  This appeal followed.

STANDARD OF REVIEW

In appeals from a decision on the forfeiture or remission of a bail bond, the appellate court reviews the circuit court's ruling for an abuse of discretion.  State v. McClinton, 369 S.C. 167, 170, 631 S.E.2d 895, 896 (2006). 

An abuse of discretion occurs when the circuit court's ruling is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or, when the circuit court is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case, such that it may be deemed arbitrary and capricious. 

Id. (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566 (1987); S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 n.6 (2d Cir. 2001)). 

LAW/ANALYSIS

The bonding companies contend the trial court erred in failing to consider the necessary elements in determining bond estreatments.  They further assert the court abused its discretion in ordering a total of $110,000 estreated.  We disagree.

I.  Failure to Consider Necessary Elements  

The bonding companies first contend the trial court gave only a cursory examination of the factors it was required to consider and failed to properly address the requirements in its ruling.  We disagree.

The issue of whether a bond forfeiture should be remitted and, if so, to what extent is vested in the sound discretion of the trial judge.  State v. Holloway, 262 S.C. 552, 557, 206 S.E.2d 822, 824 (1974).  In making a determination as to remission of the judgment on a forfeited bond, the court is required to "consider the costs to the State or any county or municipality resulting from the necessity to continue or terminate the defendant's trial and the efforts of law enforcement officers or agencies to locate the defendant." S. C. Code Ann. § 38-53-70 (Supp. 2007);  accord Ex parte Polk, 354 S.C. 8, 12, 579 S.E.2d 329, 331 (Ct. App. 2003) (holding section 38-53-70 unambiguously provides the trial court must consider costs to the State in determining remission of judgment on a forfeited bond).  However, in determining whether any remission of the judgment is warranted, the trial court is not limited to considering only the actual cost to the State.   Ex parte Polk, 354 S.C. at 12-13, 579 S.E.2d at 331.  Rather, the court should consider, at a minimum, the following factors:  (1) the purpose of the bond; (2) the nature and willfulness of the default; and (3) any prejudice or additional expense resulting to the State.  Id. at 13, 579 S.E.2d at 331.

Here, the trial court noted in its order the statutorily mandated consideration of costs to the State in determining remission pursuant to section 38-53-70.  It further acknowledged the three minimum factors enumerated in Ex parte Polk that the trial court should consider, and discussed each of these factors as pertinent to the circumstances.  Accordingly, we find no merit to the bonding companies' assertion that the trial court failed to properly consider and address the necessary elements.

II.  Abuse of Discretion

The bonding companies further argue the trial court abused its discretion in ordering estreatment in the amount of $110,000.  They argue the trial court must, after review of the Ex parte Polk factors, "use its discretion in setting an estreatment amount that fairly compensates the State for any costs and prejudice suffered due to the bond skipper's absence" and that nothing in the record indicates the court used any cost analysis or reconciled the estreatment amount to the cost and inconvenience placed on the State.  Accordingly, they contend the amount ordered estreated by the court was punitive, as well as arbitrary and capricious, and represented an abuse of discretion.  We disagree.

The overriding purpose of requiring a criminal defendant to post bond before his release from custody is to ensure the defendant's appearance before the courts at appropriate times.  Ex parte Polk, 354 S.C. at 11, 579 S.E.2d at 330; State v. Workman, 274 S.C. 341, 343, 263 S.E.2d 865, 866 (1980).   When a bond is violated by the defendant's failure to appear, the State has a right to full estreatment.  State v. Cochran, 358 S.C. 24, 27, 594 S.E.2d 844, 845 (2004).  As guarantor, the surety on an appearance bond undertakes the risk of forfeiture in the event the defendant fails to appear as required.  Ex parte Polk, 354 S.C. at 11, 579 S.E.2d at 330.  When the terms of the bond are breached, the bond is estreated by a conditional order and the bondsman is then entitled to notice and an opportunity to be heard to show cause as to why the estreatment order should not become final.  State v. Boatwright, 310 S.C. 281, 286, 423 S.E.2d 139, 142 (1992) (Toal, J., dissenting).  Once the bond has been estreated by the conditional order, another hearing may be held to determine the amount, if any, to be remitted.  Id.  However, presentment of an accused after default does not entitle a surety to a remission of the forfeiture as a matter of right.  Holloway, 262 S.C. at 555-56, 206 S.E.2d at 824.

Turning to the Ex parte Polk factors, it is undisputed Lavender was charged with serious drug offenses for which the court required a substantial bond in the amount of $200,000 in an effort to ensure Lavender's appearance. Lavender failed to appear as required on April 7, 2006 and was not captured until some ten months later.  The only evidence of record is that Lavender willfully absconded from the jurisdiction, remaining at large for a substantial period of time.  Accordingly, he was willfully in default of his appearance bond, and his actions placed the bonding companies in default of their obligation to produce Lavender at his scheduled hearing.[4]  Finally, the record clearly shows the State incurred considerable expenses in the apprehension of Lavender.  Although it did not quantify a specific dollar expenditure as the bonding companies desired, the record shows the State worked independently of, as well as with, the bonding companies in its attempts to locate Lavender.  Agent Dorsey testified he had his own informants out there that they worked with in order to locate Lavender, and he and the other SLED agents assigned to the State Grand Jury "spent many, many man-hours" on Lavender's apprehension.  Additionally, the State incurred expenses related to obtaining a court order to acquire information from the telephone company, worked with the authorities in Florida to capture Lavender, and sent two SLED agents to Florida to transport Lavender back to South Carolina. 

Here, the bonding companies each undertook the risk of forfeiture of $100,000 a piece on Lavender's appearance bond.  After Lavender absconded from the jurisdiction, the court, in its initial order of estreatment, provided a graduated scale of estreatment, allowing the companies to benefit by the earliest capture and surrender of Lavender.  At the point of Lavender's apprehension, the bonding companies faced estreatment in the amount of $60,000 under the prior order.  Upon reconsideration, and after analysis of the Ex parte Polk factors, the trial court used its discretion in remitting an additional $5,000 for each company, leaving them liable for only $55,000 on their original $100,000 potential obligations.

Based on the foregoing, we cannot say the trial court abused its discretion by ordering estreatment in the total amount of $110,000.  Accordingly, the order of the trial court is        

AFFIRMED.

HUFF, WILLIAMS, and KONDUROS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.

[2] Apparently, Troy Bob’s real name is Tracey Bowen.

[3] Due to some irregularities in regard to notice of the previous estreatment order to all the parties, the court continued the hearing and the State subsequently withdrew its motion for criminal and civil contempt.

[4] While the bonding companies focus on the companies' actions in attempting to locate and apprehend Lavender, our courts have only indicated the focus on the willfulness component is from the perspective of the criminal defendant.  See Boatwright, 310 S.C. at 284, 423 S.E.2d at 141 (noting although the criminal defendant's failure to appear was not found to be willful where he had been extradited to another state, he otherwise breached the conditions of his bond when he breached the condition of good behavior);  Workman, 274 S.C. at 343-44, 263 S.E.2d at 866 (stating "[e]ven assuming Workman acted wilfully when he breached the good behavior condition of his [appeal] bond, those offenses bore no relation to the offenses for which he had been convicted and the State was not prejudiced thereby").  However, even assuming, without deciding, that the matter is properly considered in light of willfulness from the sureties' perspective, the trial court here clearly considered in its order the efforts of the bonding companies to apprehend Lavender in regard to the willfulness of default factor.