 [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.
