State v. Wilhelm

2023 Ohio 3223

• Court: Ohio Court of Appeals
• Decided: September 11, 2023
• Docket: 22 CA 000019
• Status: Published

Opinion

[Cite as State v. Wilhelm, 2023-Ohio-3223.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 22 CA 000019 RANDY A. WILHELM

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 20 CR 11-0282

JUDGMENT: Dismissed

DATE OF JUDGMENT ENTRY: September 11, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHARLES T. MCCONVILLE J.C. RATLIFF PROSECUTING ATTORNEY ROCKY RATLIFF CHRISTINE C. WILLIAMS RATLIFF LAW OFFICE ASSISTANT PROSECUTOR 200 West Center Street 117 East High Street, Suite 234 Marion, Ohio 43302 Mount Vernon, Ohio 43050 Knox County, Case No. 22 CA 000019 2

Wise, P. J.

{¶1} Appellant-Surety Larry Nibert appeals the August 26, 2022, decision of

Knox County Common Pleas Court entering judgment against the surety, Bankers

Insurance Company, for the full amount of a $100,000.00 bond, following a show cause

hearing on forfeiture.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant procedural facts leading to this appeal are as follows.

{¶4} On November 16, 2020, Defendant Randy Wilhelm was charged with one

count of Felonious Assault, a first-degree felony; one count of Bribery, a third-degree

felony; one count of Menacing by Stalking, a fourth-degree felony; one count of

Intimidation of an Attorney in a Criminal Case, a third-degree felony; and one count of

Domestic Violence, a first-degree misdemeanor. The Defendant was subsequently

arrested on November 17, 2020 and was held without bond pursuant to the trial court's

January 5, 2021, Decision and Entry.

{¶5} On May 24, 2021, following several substitutions of counsel, a Motion for

Bond Hearing was filed, and the Defendant was subsequently released on a $100,000.00

cash or surety bond, posted by surety Jason E. Wheaton and Bankers Insurance

Company. This bond was subsequently transferred to bail bondsman, Larry Nibert, by

depositor Jason Wheaton for Mr. Nibert to continue the bond with Bankers Insurance

Company as its agent. Knox County, Case No. 22 CA 000019 3

{¶6} On April 21, 2022, the trial court held a hearing on the motion to withdraw

filed by counsel for the Defendant Randy Wilhelm. The Defendant failed to appear for that

hearing.

{¶7} On May 2, 2022, a bond violation order was filed for failure of Defendant to

comply with Bond Conditions Three (3), which required Defendant to reside at 7720 Keys

Road, Mount Vernon, Ohio, and Five (5), which required Defendant to report to the

Probation Department as instructed for failing to update his GPS ankle monitor. At that

time, the trial Court ordered a warrant for the arrest of the Defendant and also ordered

that the warrant be sealed until the Defendant was apprehended.

{¶8} On June 22, 2022, the trial court ordered the Defendant's bond be revoked

and forfeited with notice to the surety, and the court set a show cause hearing on the

forfeiture for August 11, 2022.

{¶9} On June 30, 2022, the trial court ordered that the statewide warrant for the

arrest of the Defendant be unsealed, and the court amended the warrant to a nationwide

warrant.

{¶10} On July 22, 2022, the surety, Larry Nibert, thereupon filed a Motion to

Release, Discharge, and Exonerate Surety, or in the Alternative, Motion to Extend Time

to Locate the Defendant.

{¶11} By Judgment Entry filed July 25, 2022, the trial court denied the motion.

{¶12} On August 2, 2022, the Defendant failed to appear for trial.

{¶13} On August 10, 2022, the trial court sua sponte extended the time for the

surety to locate the Defendant by fourteen (14) days, and rescheduling the Show Cause

Hearing for August 25, 2022. Knox County, Case No. 22 CA 000019 4

{¶14} At the show cause hearing on August 25, 2022, the agent for the surety

Bankers Insurance Company appeared with counsel. The State was represented by the

Knox County Prosecuting Attorney. The trial court heard the arguments of counsel for the

surety and for the State. At the conclusion of the hearing, the trial court found that, on

August 19 and 20, 2022, the Defendant was involved in an overnight standoff at his

fenced residence compound with multiple law enforcement agencies from outside the

county and the Ohio State Highway Patrol. The law enforcement agencies deployed

armored vehicles, a helicopter, and dozens of law enforcement officers. The officers

engaged the Defendant and his brother in armed conflict through the early morning hours,

when the Defendant fired multiple shots at the helicopter, and at the armored vehicles,

causing property damage, including two rifle rounds into the windshield of one armored

vehicle. The conflict ended with the deaths of the Defendant and his brother.

{¶15} The trial court found that “[b]ased upon the failure of the Defendant to

appear for hearings in the case, and the failure of the surety to secure his arrest or his

appearance, and the risk and expense to the State to secure the arrest of the Defendant,

the Court hereby renders judgment against the surety, Bankers Insurance Company for

the entire amount of the bond of $100,000. The surety is ordered to deposit $100,000

cash with the Clerk’s office within 5 business days of the date of this entry.”

{¶16} The trial court then set the matter for “further hearing to receive evidence

regarding the costs to the State and other law enforcement agencies which were incurred

to secure the arrest of the Defendant.” The trial court added that “[t]he surety may present

evidence and arguments for remission at that time.” Knox County, Case No. 22 CA 000019 5

{¶17} Appellant-Surety Larry Nibert now appeals, raising the following

Assignments of Error:

ASSIGNMENT OF ERROR

{¶18} “I. THE TRIAL COURT ERRED IN ENTERING A BOND FORFEITURE

JUDGMENT AGAINST APPELLANT SURETY LARRY NIBERT WHEN DEFENDANT

WILHELM' S FAILURE TO APPEAR WAS THE RESULT OF HIS DEATH PRIOR TO

THE SHOW CAUSE HEARING ON BOND FORFEITURE.

{¶19} “II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

ENTERING A BOND FORFEITURE JUDGMENT AGAINST APPELLANT SURETY

LARRY NIBERT AFTER FAILING TO FOLLOWING THE MANDATES OF R.C. 2937.35

AND R.C. 2937.36.”

I., II.

{¶20} In his two Assignments of Error, Appellant-Surety Larry Nibert argues the

trial court erred in entering a bond forfeiture against him in this case.

Final Appealable Order

{¶21} Appellee State of Ohio filed a Motion to Dismiss the instant appeal, on the

grounds that a bond forfeiture order is not a final appealable order.

{¶22} Before we can reach the merits of the assignments of error, we must

determine whether the order being appealed is final and appealable. Section 3(B)(2),

Article IV of the Ohio Constitution limits this Court's appellate jurisdiction to the review of

final judgments of lower courts. To be final, an order also must fit into one of the categories

set forth in R.C. §2505.02. See General Electric Supply Co. v. Warden Electric, Inc.

(1988), 38 Ohio St.3d 378, 380, 528 N.E.2d 195. Knox County, Case No. 22 CA 000019 6

{¶23} R.C. §2505.02(B) confines its definition of a final order “that may be

reviewed, affirmed, modified, or reversed” as:

{¶24} “An order that affects a substantial right in an action which in effect

determines the action and prevents a judgment, an order that affects a substantial right

made in a special proceeding or upon summary application in an action after judgment,

or an order that vacates or sets aside a judgment or grants a new trial * * *.”

{¶25} A surety bond is a contract in which the surety promises the court that it will

pay a monetary penalty if the accused who is released on the bond posted by the surety

fails to appear in court when ordered. R.C. § 2937.35; Rules Crim.Proc., Rule 46(A)(3).

{¶26} In State v. Hughes, the Ohio Supreme Court noted,

The purpose of bail, as stated in Crim.R. 46(A) “is to insure that the

defendant appears at all stages of the criminal proceedings.” See, also,

Bland v. Holden (1970), 21 Ohio St.2d 238, 257 N.E.2d 397 [50 O.O.2d

477]. The surety, by posting bail bond, guarantees that it will produce the

defendant in court when called. State ex rel. Howell v. Schiele (1949), 85

Ohio App. 356, 88 N.E.2d 215 [40 O.O. 234], affirmed (1950), 153 Ohio St.

235, 91 N.E.2d 5 [41 O.O. 249]. If the defendant does not make a court

appearance, there is a breach of a condition of the bond and the court must

declare a forfeiture of the bail, Crim.R. 46(M), unless the surety is

exonerated “as provided by law.” Crim.R. 46(N).

{¶27} 27 Ohio St.3d 19, 20, 501 N.E.2d 622(1986). Accord, State v. Bryson, 5th

Dist. Stark Nos. 2007-CA-00108, 2007-CA-00132, 2008-Ohio-193, ¶ 13 (“The procedure Knox County, Case No. 22 CA 000019 7

for bail forfeiture is found in R.C. Chapter 2937.”); State v. AAA Sly Bail Bonds, 5th Dist.

Richland No. 17-CA-56, 2018-Ohio-2943, ¶ 24

{¶28} However, in a criminal case, a bond forfeiture order is not a final appealable

order. State v. Smith, 7th Dist. Jefferson No. 05 JE 49, 2006–Ohio–4614, ¶ 21, citing

State v. McLaughlin (1997), 122 Ohio App.3d 418, 420, 701 N.E.2d 1048; State v.

Williams (1973), 40 Ohio App.2d 310, 312, 319 N.E.2d 223; State v. Stuber, 3d Dist.

Hancock No. 5–02–49, 2003–Ohio–2938; Dept. of Liquor Control v. Calvert, 6th Dist.

Sandusky No. S-10-055, 2011-Ohio-4735.

{¶29} In deciding whether a decision is final and appealable, we look at the intent

of the trial court to determine whether the entry was meant to be the final judgment in the

matter. See Millies v. Millies (1976), 47 Ohio St.2d 43, 44, 1 O.O.3d 26, 350 N.E.2d 675.

“This intent can be ascertained by looking to the circumstances surrounding the issuance

of the entry. * * * [A] document is likely to be considered a judgment entry where it contains

a ‘sufficiently definitive formal statement’ indicating the court's intent to conclude the

litigation by such entry.” State v. Crosby, 12th Dist. No. CA2009–01–001, 2009-Ohio-

4936, 2009 WL 2991129, ¶ 16, citing Peters v. Arbaugh, (1976), 50 Ohio App.2d 30, 32,

4 O.O.3d 17, 361 N.E.2d 531, quoting Millies, at 45, 1 O.O.3d 26, 350 N.E.2d 675.

{¶30} In the case sub judice, a review of the trial court’s order of forfeiture

indicates that the trial court set the matter for further hearing to allow the State to present

evidence as to the costs incurred and the surety to present evidence for remission. We

therefore find that it was not the intent of the trial court for the August 26, 2022, Journal

Entry to be a final appealable order. We further find said Entry lacks the Civ.R. 54(B)

certification. Knox County, Case No. 22 CA 000019 8

{¶31} We find no compelling reason to permit the surety to pursue an immediate

appeal to challenge forfeiture while these issues remain pending in the trial court. Nothing

will prevent the surety from pursuing the present appellate issues these issues have been

finally determined. Piecemeal litigation and piecemeal appeals are disfavored in Ohio law.

See Kildow v. Home Town Improvements, 5th Dist. Muskingum No. CT2001–0057, 2002–

Ohio–3824, ¶ 10. We therefore find Appellant-Surety's arguments in this case are

premature.

{¶32} Accordingly, there is no final appealable order, and this Court is without

jurisdiction to proceed. We therefore dismiss the appeal.

{¶33} For the reasons stated in the foregoing opinion, the appeal from the decision

of the Knox County Court of Common Pleas is dismissed.

By: Wise, P. J.

Baldwin, J., concurs.

Delaney, J., dissents.

JWW/kw 0829 Knox County, Case No. 22 CA 000019 9

Delaney, J., dissenting

{¶34} I respectfully dissent from the majority opinion dismissing the appeal for lack

of a final, appealable order. For the following reasons, I would deny the Appellee State of

Ohio’s Motion to Dismiss the appeal and address the merits of Appellant-Surety Larry

Nibert’s appeal.

{¶35} It is clear that “[a] final judgment of forfeiture in the case of a recognizance

surety bond has two steps: (1) an adjudication of bail forfeiture under R.C. 2937.35 and

(2) a bond forfeiture show cause hearing under R.C. 2937.36. State v. Guzman, 3rd Dist.

Allen No. 1-19-11, 2020-Ohio-539, 2020 WL 774300, ¶ 9, citing Youngstown v. Edmonds,

7th Dist. Mahoning No. 17 MA 0126, 2018-Ohio-3976, ¶ 13. (Emphasis added).

{¶36} If an accused fails to appear in court, then bail may be adjudged forfeited

under R.C.2937.35. The trial court completed this first step via its order of June 22, 2022.

Majority Opinion, ¶8. I agree such order is not a final, appealable order under the statute

as it is interlocutory in nature. See also, Dept. of Liquor Control v. Calvert, 6th Dist.

{¶37} The trial court then proceeded to the second step on August 25, 2022 by

conducting a show cause hearing under R.C. 2937.36. At that hearing, the Appellant-

Surety presented argument it was impossible to produce Defendant Wilhelm to court as

he was killed during a confrontation with the police on August 20, 2022. The trial court

rejected the Appellant-Surety’s argument and entered a judgment against the surety for

the full amount of the bond on August 26, 2022. It also ordered the Appellant-Surety to

deposit said sum within five days. Knox County, Case No. 22 CA 000019 10

{¶38} Additionally, the trial court set for the matter for “further hearing” on October

20, 2022, “to receive evidence regarding the costs to the State and other law enforcement

agencies which were incurred to secure the arrest of the Defendant”. The trial court added

that “[t]he surety may present evidence and arguments for remission at that time”.

{¶39} Presumably, this hearing was to be conducted pursuant to R.C. 2937.39. It

“provides a surety with a mechanism for requesting that a court remit all or a portion of a

forfeited recognizance bond if the statutory elements are met.” AAA Sly Bail Bonds

(Jefferson), 5th Dist. Richland No. 17-CA-56, 2018-Ohio-2943, ¶ 18.

{¶40} However, R. C. 2937.36 is the only forfeiture provision that authorizes

judgments against a surety. R.C. 2937.39, the remission of penalty provision states:

“After judgment has been rendered against a surety * * * the court * * *on the

appearance, surrender, or re-arrest of the accused on the charge, may remit all or

such portion as it deems just and in the case of previous application and transfer

of case or proceeds, the magistrate or clerk may deduct an amount equal to the

amount so transferred from subsequent payments to the agencies receiving such

proceeds of forfeiture until the amount recouped for the benefit of the person or

person entitled thereto under order or remission.” (Italics added).

{¶41} I would find the August 26, 2022 forfeiture judgment is a final appealable

order under R.C. 2050.02(B) as it “affects a substantial right made in a special

proceeding”, in this case, a statutory bond forfeiture. As succinctly stated by the surety

“the trial court has affected the substantial rights of Appellant Surety Larry Nibert by

determining that no good cause exists so as not to forfeit the bond and ordering Appellant

to pay the entire amount of the bond with five (5) days. This analysis is not affected by Knox County, Case No. 22 CA 000019 11

the fact the trial court set the matter for a further hearing, as the factors relevant to

remittance under R.C. 2937.39 are entirely different from those assessed in determining

whether good cause exists so as not to forfeit the bond under R.C. 2937.36. (Appellant’s

Memorandum Contra State’s Motion to Dismiss, p. 4.)

{¶42} The remittance of penalty provision speaks in terms of refunding funds to a

surety at a future date, which potentially could be months or years after the judgment has

been rendered under R.C. 2937.36. It is future remedy to pursue at the appropriate time

if the statutory factors are satisfied, which may not be possible in this case as this Court

has held the death of an accused is not a permissible factor for remission of a bond under

R.C. 2937.39. See, State v. Salaam, 5th Dist. Delaware No. 18-0060, 2018-Ohio-4815,

(the subsequent death of the accused is not contemplated under the clear and

unambiguous language of R. C. 2937.39 and therefore, none of the requirements of R.C.

2937.39 were met).

{¶43} In this case, Appellant-Surety is directly challenging the trial court’s

determination as to a showing of good cause under R.C. 2937.36. It failed to persuade

the trial court not to enter judgment under the second part of the test under the statute,

thereby requiring the deposit of $100,000 to the court and incurring a significant liability.

{¶44} By addressing the arguments of Appellant-Surety, the validity of this

judgment can be addressed sooner to protect the rights of the Appellant-Surety. If a court

exercises its discretion to remit the forfeited bond, or a potion thereof, at a later date, it is

a separate final order.

{¶45} Accordingly, I would proceed to address the merits of this appeal. Knox County, Case No. 22 CA 000019 12