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Unpublished Opinion No. 2009-UP-198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: Im 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 Bobs 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.