[Cite as State v. Clagg, 2019-Ohio-4527.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
STATE OF OHIO, : : Case No. 19CA2 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY LEECHONA CLAGG, : : Defendant-Appellant. : Released: 10/28/19 _____________________________________________________________ APPEARANCES:
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Brynn Saunders Noe, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Gallipolis Municipal Court’s judgment
entry that in pertinent part forfeited Appellant’s bail for violating a condition
of her bail. On appeal, Appellant asserts that the trial court abused its
discretion when it forfeited her bail based on a violation of a condition of
bail, as opposed to her not appearing in court. Based upon our review of the
law and the record, we sustain Appellant’s assignment of error and reverse
the judgment of the trial court, but only to the extent that it forfeited
Appellant’s bail. Gallia App. No. 19CA2 2
PROCEDURAL HISTORY
{¶2} On November 30, 2018, the State charged Appellant with
misdemeanor theft in violation of R.C. 2913.02(A) in Gallipolis Municipal
Court (“Clagg I”). The court issued an entry that set bond at $10,000 with a
10% cash posting permitted. Appellant pleaded not guilty. Appellant posted
$1,000 bail on December 7, 2018. On February 21, 2019, Appellant
changed her plea to guilty.
{¶3} On March 6, 2019, the State filed a new misdemeanor theft
charge against Appellant (“Clagg II”). Appellant pleaded not guilty to this
charge.
{¶4} On March 21, 2019, the court held a hearing to consider
sentencing in Clagg I and to hold the initial pretrial in Clagg II. At the
hearing, Appellant changed her plea to guilty in Clagg II, which the court
accepted. The court sentenced Appellant to 180 days in jail in each case
with the sentences to be served consecutively.
{¶5} The court issued two judgments filed the same day as the
hearing. The first entry revoked Appellant’s bond in Clagg I (citing Clagg
II), set a new bond at $25,000 with 10% cash posting permitted, and stated
“set for bond forfeiture hearing.” The second entry sentenced Appellant to
180 days in jail on the theft charge in Clagg I and stated in pertinent part: Gallia App. No. 19CA2 3
“consecutive to [Clagg II]; final appealable order; Def. & Surety; notified of
appeal rights; forfeit bond.”1 (Emphasis added.)
{¶6} Appellant timely appealed the March 21, 2019 judgment entry in
Clagg I. Appellant also appealed Clagg II, but that case was subsequently
voluntarily dismissed. Appellant alleges that after a review of both cases her
counsel found no sufficient basis from which to appeal Appellant’s
sentences. Therefore, Appellant appeals the trial court’s March 21, 2019
entry, but only to the extent she challenges the court’s order to forfeit her
bail.
ASSIGNMENT OF ERROR
“A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FORFEITS BAIL BASED ON A VIOLATION OF A CONDITION OF BAIL AS OPPOSED TO THE FAILURE TO APPEAR IN COURT.”
{¶7} Appellant argues the trial court abused its discretion when it
forfeited her bail due to a violation of a condition of bail, as opposed to a
failure to appear in court. Appellant argues that Crim.R. 46(I) permits a
court to forfeit a defendant’s bail only if the defendant fails to appear for a
court date, and cannot forfeit bail for only violating a condition of bail.
Appellant acknowledges State v. McLaughlin, 122 Ohio App.3d 418, 422-
1 On April 29, 2019, the court issued a “nunc pro tunc sentencing entry in Clagg I for the purpose of complying with the requirement that Appellant’s guilty plea and sentence must appear in a single judgment entry. Gallia App. No. 19CA2 4
423, 701 N.E.2d 1048 (10th Dist.), in which the court interpreted former
Crim.R.46(M), and R.C. 2937.35, as permitting a court to forfeit a
defendant’s bail for a violation of a condition of bail, as opposed to a failure
to appear. Appellant argues that after McLaughlin was decided and before
Crim.R. 46 was amended, which she alleges now permits a court to forfeit a
defendant’s bail only if the defendant fails to appear, citing the staff notes to
the 1998 amendment. Therefore, Appellant argues that the trial court’s
judgment entry ordering forfeiture of her bail should be reversed.
{¶8} In response, the State asks us to follow McLaughlin and State v.
Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-2679, a case that
followed McLaughlin and was decided after the amendment to Crim.R. 46.
Both McLaughlin and Sutton hold that pursuant to Crim.R. 46 and R.C.
2937.35 the trial court has the authority to order a bail forfeited for the
violation of a condition of a bail even if a defendant has not failed to appear
for any scheduled court appearance.
{¶9} In effect, the parties have alleged that Crim.R. 46(I) and R.C.
2937.35 conflict with regard to the circumstance under which a court may
forfeit a defendant’s bail. Section 5(B), Article IV of the Ohio Constitution
provides that “[t]he supreme court shall prescribe rules governing practice
and procedure in all courts of the state, which rules shall not abridge, Gallia App. No. 19CA2 5
enlarge, or modify any substantive right.” “Thus, if a rule created pursuant
to Section 5(B), Article IV conflicts with a statute, the rule will control for
procedural matters, and the statute will control for matters of substantive
law.” (Emphasis added.) Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-
Ohio-4838, 873 N.E.2d 872, ¶ 17, citing Boyer v. Boyer, 46 Ohio St.2d 83,
86, 346 N.E.2d 286 (1976).
{¶10} Initially, we note that typically “[a] trial court's bond-
forfeiture decision is reviewed using an abuse-of-discretion standard.” State
v. Slider, 184 Ohio App.3d 68, 919 N.E.2d 775, ¶ 10 (4th Dist.), citing State
v. Green, 9th Dist. Wayne App. Nos. 02CA0014 through 02CA0019, 2002-
Ohio-5769, ¶ 11, citing Akron v. Stutz, 9th Dist. Summit App. No. 19925,
2000 WL 1636026. However, in this case we examine whether the statute
and/or the rule at issue limit that discretion to some extent.
{¶11} The first step in resolving this issue is to determine whether the
statute and rule truly conflict. R.C. 2937.35, which has never been
amended, provides in pertinent part: “[u]pon the failure of the accused or
witness to appear in accordance with its terms the bail may in open court be
adjudged forfeit, in whole or in part by the court or magistrate before whom
he is to appear.” At the time McLaughlin was decided, former Crim.R.
46(M) provided: “If there is a breach of condition of a bond, the court shall Gallia App. No. 19CA2 6
declare a forfeiture of the bail.” (Emphasis added.) McLaughlin, 122 Ohio
App.3d at 422, 701 N.E.2d 1048 (1997). McLaughlin concluded that both
former Crim.R. 46(M) and R.C. 2937.35 “give the trial court authority to
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[Cite as State v. Clagg, 2019-Ohio-4527.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT GALLIA COUNTY
STATE OF OHIO, : : Case No. 19CA2 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY LEECHONA CLAGG, : : Defendant-Appellant. : Released: 10/28/19 _____________________________________________________________ APPEARANCES:
Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.
Brynn Saunders Noe, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee. _____________________________________________________________
McFarland, J.
{¶1} This is an appeal from a Gallipolis Municipal Court’s judgment
entry that in pertinent part forfeited Appellant’s bail for violating a condition
of her bail. On appeal, Appellant asserts that the trial court abused its
discretion when it forfeited her bail based on a violation of a condition of
bail, as opposed to her not appearing in court. Based upon our review of the
law and the record, we sustain Appellant’s assignment of error and reverse
the judgment of the trial court, but only to the extent that it forfeited
Appellant’s bail. Gallia App. No. 19CA2 2
PROCEDURAL HISTORY
{¶2} On November 30, 2018, the State charged Appellant with
misdemeanor theft in violation of R.C. 2913.02(A) in Gallipolis Municipal
Court (“Clagg I”). The court issued an entry that set bond at $10,000 with a
10% cash posting permitted. Appellant pleaded not guilty. Appellant posted
$1,000 bail on December 7, 2018. On February 21, 2019, Appellant
changed her plea to guilty.
{¶3} On March 6, 2019, the State filed a new misdemeanor theft
charge against Appellant (“Clagg II”). Appellant pleaded not guilty to this
charge.
{¶4} On March 21, 2019, the court held a hearing to consider
sentencing in Clagg I and to hold the initial pretrial in Clagg II. At the
hearing, Appellant changed her plea to guilty in Clagg II, which the court
accepted. The court sentenced Appellant to 180 days in jail in each case
with the sentences to be served consecutively.
{¶5} The court issued two judgments filed the same day as the
hearing. The first entry revoked Appellant’s bond in Clagg I (citing Clagg
II), set a new bond at $25,000 with 10% cash posting permitted, and stated
“set for bond forfeiture hearing.” The second entry sentenced Appellant to
180 days in jail on the theft charge in Clagg I and stated in pertinent part: Gallia App. No. 19CA2 3
“consecutive to [Clagg II]; final appealable order; Def. & Surety; notified of
appeal rights; forfeit bond.”1 (Emphasis added.)
{¶6} Appellant timely appealed the March 21, 2019 judgment entry in
Clagg I. Appellant also appealed Clagg II, but that case was subsequently
voluntarily dismissed. Appellant alleges that after a review of both cases her
counsel found no sufficient basis from which to appeal Appellant’s
sentences. Therefore, Appellant appeals the trial court’s March 21, 2019
entry, but only to the extent she challenges the court’s order to forfeit her
bail.
ASSIGNMENT OF ERROR
“A TRIAL COURT ABUSES ITS DISCRETION WHEN IT FORFEITS BAIL BASED ON A VIOLATION OF A CONDITION OF BAIL AS OPPOSED TO THE FAILURE TO APPEAR IN COURT.”
{¶7} Appellant argues the trial court abused its discretion when it
forfeited her bail due to a violation of a condition of bail, as opposed to a
failure to appear in court. Appellant argues that Crim.R. 46(I) permits a
court to forfeit a defendant’s bail only if the defendant fails to appear for a
court date, and cannot forfeit bail for only violating a condition of bail.
Appellant acknowledges State v. McLaughlin, 122 Ohio App.3d 418, 422-
1 On April 29, 2019, the court issued a “nunc pro tunc sentencing entry in Clagg I for the purpose of complying with the requirement that Appellant’s guilty plea and sentence must appear in a single judgment entry. Gallia App. No. 19CA2 4
423, 701 N.E.2d 1048 (10th Dist.), in which the court interpreted former
Crim.R.46(M), and R.C. 2937.35, as permitting a court to forfeit a
defendant’s bail for a violation of a condition of bail, as opposed to a failure
to appear. Appellant argues that after McLaughlin was decided and before
Crim.R. 46 was amended, which she alleges now permits a court to forfeit a
defendant’s bail only if the defendant fails to appear, citing the staff notes to
the 1998 amendment. Therefore, Appellant argues that the trial court’s
judgment entry ordering forfeiture of her bail should be reversed.
{¶8} In response, the State asks us to follow McLaughlin and State v.
Sutton, 6th Dist. Lucas No. L-03-1104, 2004-Ohio-2679, a case that
followed McLaughlin and was decided after the amendment to Crim.R. 46.
Both McLaughlin and Sutton hold that pursuant to Crim.R. 46 and R.C.
2937.35 the trial court has the authority to order a bail forfeited for the
violation of a condition of a bail even if a defendant has not failed to appear
for any scheduled court appearance.
{¶9} In effect, the parties have alleged that Crim.R. 46(I) and R.C.
2937.35 conflict with regard to the circumstance under which a court may
forfeit a defendant’s bail. Section 5(B), Article IV of the Ohio Constitution
provides that “[t]he supreme court shall prescribe rules governing practice
and procedure in all courts of the state, which rules shall not abridge, Gallia App. No. 19CA2 5
enlarge, or modify any substantive right.” “Thus, if a rule created pursuant
to Section 5(B), Article IV conflicts with a statute, the rule will control for
procedural matters, and the statute will control for matters of substantive
law.” (Emphasis added.) Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-
Ohio-4838, 873 N.E.2d 872, ¶ 17, citing Boyer v. Boyer, 46 Ohio St.2d 83,
86, 346 N.E.2d 286 (1976).
{¶10} Initially, we note that typically “[a] trial court's bond-
forfeiture decision is reviewed using an abuse-of-discretion standard.” State
v. Slider, 184 Ohio App.3d 68, 919 N.E.2d 775, ¶ 10 (4th Dist.), citing State
v. Green, 9th Dist. Wayne App. Nos. 02CA0014 through 02CA0019, 2002-
Ohio-5769, ¶ 11, citing Akron v. Stutz, 9th Dist. Summit App. No. 19925,
2000 WL 1636026. However, in this case we examine whether the statute
and/or the rule at issue limit that discretion to some extent.
{¶11} The first step in resolving this issue is to determine whether the
statute and rule truly conflict. R.C. 2937.35, which has never been
amended, provides in pertinent part: “[u]pon the failure of the accused or
witness to appear in accordance with its terms the bail may in open court be
adjudged forfeit, in whole or in part by the court or magistrate before whom
he is to appear.” At the time McLaughlin was decided, former Crim.R.
46(M) provided: “If there is a breach of condition of a bond, the court shall Gallia App. No. 19CA2 6
declare a forfeiture of the bail.” (Emphasis added.) McLaughlin, 122 Ohio
App.3d at 422, 701 N.E.2d 1048 (1997). McLaughlin concluded that both
former Crim.R. 46(M) and R.C. 2937.35 “give the trial court authority to
order forfeiture of bail upon violation of a condition of bond even where no
failure to appear has occurred.” Id. at 422, 423.
{¶12} In 1998, a year after McLaughlin was decided, Crim.R. 46 was
amended. In pertinent part, division M was deleted and CrimR. 46(I) stated:
“Failure to Appear; Breach of Conditions. Any person who fails to appear
before any court as required is subject to the punishment provided by the
law, and any bail given for the person's release may be forfeited. If there is a
breach of condition of bail, the court may amend the bail.” (Emphasis
added.) The staff note to this amendment states that “[t]he amended rule
permits a court to forfeit bail only upon a person’s failure to appear.”
(Emphasis added.) Staff Note, Crim.R.46. Consequently, we find that under
Crim.R. 46(M) as amended in 1998, a court may forfeit a defendant’s bail
only if the defendant fails to appear for a court date.
{¶13} In pertinent part R.C. 2937.35 states: “Upon the failure of the
accused or witness to appear in accordance with its terms the bail may in
open court be adjudged forfeit, in whole or in part by the court or magistrate
before whom he is to appear.” (Emphasis added.) McLaughlin held in part Gallia App. No. 19CA2 7
that R.C. 2937.35 supported its conclusion that a court may forfeit a
defendant’s bail for violating a condition of bail. We disagree.
{¶14} “[A] court in interpreting a statute must give effect to the words
utilized, cannot ignore words of the statute, and cannot supply words not
included.” E. Ohio Gas Co. v. Limbach, 61 Ohio St.3d 363, 365, 575
N.E.2d 132 (1991), citing Wheeling Steel Corp. v. Porterfield, 24 Ohio St.2d
24, 263 N.E.2d 249 (1970). McLaughlin’s interpretation of R.C. 2937.35
ignores the language “upon the failure of the accused * * * to appear” a
court may forfeit bail. Therefore, we decline to follow McLaughlin and find
that under R.C. 2937.25 only upon a failure to appear can a court forfeit a
defendant’s bail.
{¶15} The Ninth District, relying on McLaughlin, has also held that a
court may forfeit a defendant’s bond upon a violation of a condition of bond
in City of Akron v. Stutz, 9th Dist. Summit No. 19925, 2000 WL 1636026,
*3 (Nov. 1, 2000). We disagree with Stutz for the same reasons we disagree
with McLaughlin. Moreover, even though Stutz was decided after Crim.R,
46 was amended, it never considered the staff note that indicated that
Crim.R. 46(I) was to be interpreted as permitting a court to forfeit bail only
upon a failure to appear. Gallia App. No. 19CA2 8
{¶16} Therefore, we find that Crim.R. 46(I) does not conflict with
R.C. 2937.35, so Section 5(B), Article IV of the Ohio Constitution is not
implicated in our analysis. However, both the rule and statute do limit a
court’s authority to forfeit bond to only those defendants who fail to appear
in court. Accord State ex rel. Sylvester v. Neal, 2014-Ohio-2926, 140 Ohio
St.3d 47, 14 N.E.3d 1024, ¶ 16 (“The sole purpose of bail is to ensure a
person's attendance in court.”). State v. Holmes, 57 Ohio St.3d 11, 14, 564
N.E.2d 1066 (1991).
{¶17} Even though a court cannot forfeit a bail for a violation of a
condition of that bail, a court nevertheless has other options in dealing with
defendants who violate conditions of their bail, including amending bail or
revoking bail, which “rescind[s] the defendant's authority to remain at large
(or released) on bond; [but it] does not * * * forfeit the bond.” 26 Ohio
Jurisprudence 3d Criminal law: Procedure Section 728, citing State v. Slider,
184 Ohio App.3d 68, 2009-Ohio-4179, 919 N.E.2d 775 (4th Dist.).
{¶18} Appellant posted bond in Clagg I, and while she was on bond,
she committed another theft. But, there is no evidence in the record that
Appellant missed any court appearances, or any such allegation by the State.
As such, the trial court erred when it forfeited Appellant’s bail in Clagg I for
violating a condition of her bail. Accordingly, we reverse the trial court’s Gallia App. No. 19CA2 9
March 21, 2018 judgment entry in Clagg I, but only to the extent that it
ordered Appellant’s bail to be forfeited.
JUDGMENT REVERSED. Gallia App. No. 19CA2 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED and costs be assessed to Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallipolis Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________ Matthew W. McFarland, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.