State v. Pacheco

2008 NMCA 055, 182 P.3d 834, 143 N.M. 851
New Mexico Court of Appeals·Decided March 12, 2008·No. 27,255·Published·Cited by 7 cases

Opinion

OPINION

FRY, Judge.

{1} Surety A-Affordable Bail Bonds (A-Affordable) appeals from a judgment of the district court forfeiting the bond that A-Affordable posted on behalf of Defendant Ismael Pacheco. A-Affordable argues that the district court (1) failed to provide notice of forfeiture as required by statute, (2) abused its discretion in ordering forfeiture of the bond, and (3) entered inconsistent findings on the relationship between A-Affordable and Amigo Bail Bonds (Amigo). We affirm.

BACKGROUND

{2} The issues in this case arise from the relationship between two bonding companies in connection with one bond securing Defendant’s appearance and from the notice provided to the companies when Defendant failed to appear for trial. On October 7, 2004, Defendant was indicted in Sandoval County on several felony counts. At Defendant’s arraignment, the district court set bond at $100,000, to be posted via ten percent cash or corporate surety.

{3} Defendant’s wife and his father-in-law, who was also Defendant’s employer, went to Amigo on November 9, 2004, seeking bail bonding services. Defendant’s family filled out an application for bail and contract with Amigo, paid a premium to Amigo, and conveyed a mortgage to a piece of real property in Colorado to secure the bond. However, Amigo was not licensed to offer bail bonds in Sandoval County, so as a “professional favor,” A-Affordable posted bond for Defendant on behalf of Amigo. Amigo and A-Affordable entered into a “hold-harmless” agreement, whereby A-Affordable secured a letter of credit from a bank for $10,000, and Amigo held the mortgage on the property with the right of foreclosure.

{4} A-Affordable posted bond on November 12, 2004, bearing the name “A-Affordable,” and the district court issued a receipt for $100,000. The day before trial, December 5, 2005, Defendant was present at a hearing on his motions to suppress. The trial was scheduled to begin the next day, Tuesday, December 6, 2005, but Defendant failed to appear, and the district court issued a bench warrant. Two days later, on Thursday, December 8, 2005, the district court filed a notice of forfeiture and order to show cause, ordering Defendant and A-Affordable to appear for a hearing on Tuesday, December 13, 2005, to show cause why judgment in the amount of the bond should not be entered against them. The notice that was filed with the court clerk directed the clerk to mail the notice to A-Affordable “forthwith.” A-Affordable received the notice on December 14, 2005, the day after the scheduled hearing. The postmark on the mailed notice was December 13, 2005.

{5} Neither A-Affordable nor counsel representing it appeared at the December 13 hearing. However, Gary Gutierrez, Amigo’s principal, announced his appearance for A-Affordable when the district court called the case. Gutierrez addressed the district court, discussed the steps he had taken to find Defendant, and requested that the court give him thirty days to find Defendant. The district court stated that it would not enter judgment for thirty days, thereby giving Gutierrez additional time to apprehend Defendant. If Defendant was apprehended in that time, the district court would reconsider the forfeiture of the bond. But if Defendant was not in custody at the end of the thirty days, the court would enter the judgment. The district court set a hearing for January 13, 2006, and notice of that hearing was faxed to A-Affordable on December 13, 2006.

{6} At the January 13 hearing, Gutierrez again appeared for A-Affordable, with no mention to the district court of the relationship between Amigo and A-Affordable. Despite having received notice, no one actually affiliated with A-Affordable appeared at the hearing. Gutierrez had not been able to locate Defendant, and he requested yet another thirty days in which to find Defendant. The district court said it would issue judgment forfeiting the bond for the full $100,000, but again, it announced that it would not sign the judgment for another thirty days. The district court stated that if Defendant was not in custody within the thirty days, the court would not hold another hearing, it would sign the judgment and send a copy to A-Affordable, and A-Affordable would be liable for the judgment ten days later.

{7} Defendant was never found, and on June 29, 2006, over six months after the trial date, the district court entered a judgment of forfeiture, which ordered A-Affordable to pay $100,000 by July 7, 2006. A-Affordable did not pay the judgment, and sometime after that, the Thirteenth Judicial District Court refused to allow A-Affordable to do business in eases pending in the district.

{8} In September 2006, attorney Ken Neundorf filed an entry of appearance and motion to stay on behalf of A-Affordable, the “[sjurety of record,” and Amigo, the “responsible surety.” In the motion, Neundorf explained the agreement between Amigo and A-Affordable to the court, Amigo’s attempts to locate and apprehend Defendant, Amigo’s steps toward foreclosure on the bond’s collateral, and asked the district court to stay the judgment to allow A-Affordable to remain in business and to permit Amigo to continue to look for Defendant.

{9} The district court held a hearing on the motion to stay on September 22, 2006, at which Neundorf explained the relationship between Amigo and A-Affordable and the efforts in progress by Gutierrez and Amigo. Gutierrez offered to put $5,000 in the court registry immediately and asked the court revisit the issue within a few months, at which time Gutierrez could essentially continue to pay the bond down little by little if Defendant remained at large. Amigo offered this solution in exchange for the district court’s permitting A-Affordable to write bonds. The assistant district attorney (ADA) argued that Amigo lacked standing and that A-Affordable was the surety of record in default. The ADA further argued that Neundorf could not represent both Amigo and A-Affordable because he would have a conflict of interest. The district court agreed that because the bond was written by A-Affordable, the matter should not proceed without A-Affordable’s representative, and it observed that Neundorf may “find [himself] in a conflict.”

{10} Subsequently, on October 11, 2006, Attorney James Bierly entered an appearance on behalf of A-Affordable and filed a motion for relief from judgment on bond forfeiture. In the motion, A-Affordable asked the district court to set aside the judgment against it because A-Affordable claimed it did not receive statutory notice. On October 19, 2006, the district court held a hearing on A-Affordable’s motion at which separate counsel for A-Affordable was present. Amigo was also present and represented by counsel at the hearing, and the State again objected to Amigo’s presence on the ground that it lacked standing. A-Affordable raised several concerns at the hearing, including the fact that the district court had not complied with the four-day notice requirements in NMSA 1978, § 31-3-2 (1993). The district court noted that the notice for the hearing to show cause was filed with the court clerk on December 8, 2005, and pursuant to statute, that the clerk is designated as the surety’s agent to receive notice.

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State v. Pacheco, 2008 NMCA 055, 182 P.3d 834, 143 N.M. 851 (N.M. Ct. App. 2008).

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