[Cite as State v. Faccio, 2019-Ohio-4942.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO,                               :       JUDGES:
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Craig R. Baldwin, J.
                                             :       Hon. Earle E. Wise, J.
-vs-                                         :
                                             :
LUIS FACCIO, JR.,                            :       Case No. 2019 CA 0017
                                             :
        Defendant.                           :
                                             :
and                                          :
                                             :
A 1 BONDS, LLC,                              :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Richland County
                                                     Court of Common Pleas, Case No.
                                                     2017CR0703


JUDGMENT:                                            Affirmed


DATE OF JUDGMENT:                                    December 2, 2019

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GARY BISHOP                                          MICHAEL J. KINLIN
Prosecuting Attorney                                 124 Middle Ave., Suite 900
Richland County                                      Elyria, Ohio 44035


By: JOSEPH C. SNYDER
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0017                                                2


Baldwin, J.

          {¶1}    Appellant A1 Bonds, LLC appeals from the January 24, 2019 and February

15, 2019 Judgment Entries of the Richland County Court of Common Pleas.

                             STATEMENT OF THE FACTS AND CASE

          {¶2}    On November 13, 2017, defendant Luis N. Faccio, Jr. (hereinafter

“defendant’) was indicted on three counts of felonious assault in violation of R.C.

2903.11(A)(1), felonies of the second degree, three counts of aggravated assault in

violation of R.C. 2903.12(A)(1), felonies of the fourth degree, and one count of domestic

violence in violation of R.C. 2919.25(B), a misdemeanor of the first degree. At his

arraignment on November 21, 2017, defendant entered a plea of not guilty to the charges.

A hearing on his motion for a bond hearing was held before a Magistrate on November

29, 2017 and December 4, 2017. The Magistrate, in a Decision filed on December 8,

2017, recommended that defendant’s bond, which had been set in the sum of

$100,000.00 cash and personal recognizance, be returned1 to the sum of $30,000.00

cash plus personal recognizance. The trial court, on December 27, 2017, adopted the

Magistrate’s Decision as the order of the court.

          {¶3}    Thereafter, on December 27, 2017, appellant posted bond for defendant in

the amount of $30,000.00 and defendant was released from jail. After defendant failed

to appear at his final pretrial on March 21, 2018, his bond was revoked and a warrant was

issued for his arrest.

          {¶4}    On April 6, 2018, appellee State of Ohio filed a motion seeking forfeiture of

defendant’s bond. The trial court, via a Judgment Entry filed on April 17, 2018, ordered


1   Appellant had posted a $30,000.00 surety bond in the Mansfield Municipal Court.
Richland County, Case No. 2019 CA 0017                                        3


that defendant’s bond was forfeited in court on April 16, 2018 after defendant failed to

appear for his April 2, 2018 jury trial or “otherwise failed to comply with the conditions of

defendant’s $30,000 surety and PR.” An oral evidentiary hearing on the bond forfeiture

was held on June 11, 2018 before a Magistrate. At the hearing, appellant requested

additional time to locate defendant.

        {¶5}     The Magistrate, in a Decision, filed on June 14, 2018, recommended that

judgment be entered against appellant in the amount of $30,000.00. The Magistrate, in

his Decision, found, in relevant part, as follows:

        {¶6}     5. Pursuant to R.C. 2937.36(C) surety, A-1 Bonding was notified that

judgment would be entered against the bonding agency unless it produced the body of

defendant… at the 6-11-18 hearing.

        {¶7}     6. Surety A-1 Bonding failed to produce Mr. Faccio at that hearing and he

is still at large.

        {¶8}     7. The bonding company requested a 90 day stay/continuance in order to

locate Mr. Faccio Jr. but admitted it had no new active leads or addresses for him. Two

to three weeks ago, defendant Faccio escaped from 2 bounty hunters and five to six

police officers in Solon, Ohio. The bonding company believes he is selling drugs in

Cleveland from “word on the street.” The bonding company believes that Mr. Faccio’s

plan is to go to Puerto Rico which is the home of his girlfriend’s mother.

        {¶9}     8. The U.S. Marshall’s Task Forced (SIC) for the Northern District of Ohio

went to an extended stay motel/hotel in March 20187 (SIC) and did not find Mr. Faccio

there and his room had been cleaned out. The task force has advertised Mr. Faccio as

a “Most Wanted” three times since March.
Richland County, Case No. 2019 CA 0017                                       4


       {¶10} On June 22, 2018, appellant filed objections to the Magistrate’s Decision,

asking for additional time to locate defendant. Appellant did not object to the Magistrate’s

findings of fact and conclusions of law. Appellant, in its objections, noted that defendant

had been apprehended on June 17, 2018 and was in the Richland County Jail on June

21, 2018, “where he currently resides pending Court action.” Appellee filed a

memorandum in response to the objection, noting that “[a]t the hearing the facts showed

that [appellant] has no leads for how to locate Defendant.”

       {¶11} Pursuant to a Judgment Entry filed on July 17, 2018, the trial court modified

and adopted the Magistrate’s June 14, 2018 decision. The trial court stated, in its

Judgment Entry, in relevant part, as follows:

              The Court finds that justice does not require the total amount of the

       thirty thousand dollars ($30,000.00) bond remain forfeited. The Court finds

       that the forfeiture of 50% of the bond, or fifteen thousand dollars

       ($15,000.00) bears a reasonable relation to the costs and inconvenience

       incurred in gaining custody of Defendant Faccio and again preparing for the

       rescheduled final pretrial hearing and jury trial.

       {¶12} The trial court remitted 50% of the forfeited bond, or $15,000.00, and

ordered that appellant pay to the Richland County Clerk of Court the 50% forfeited portion

of the bond, or $15,000.00.

       {¶13} Defendant, on August 14, 2018, pleaded guilty to all of the counts. He was

sentenced on October 10, 2018.

       {¶14} On October 23, 2018, appellee filed a Motion for Contempt against

appellant due to appellant’s failure to pay the $15,000.00 as ordered. In response,
Richland County, Case No. 2019 CA 0017                                         5


appellant filed a request for an itemization of all of the costs associated with the

apprehension and delay of the prosecution of defendant. Appellee filed a memorandum

in response and appellant filed a response. A contempt hearing was scheduled for

January 17, 2019.

       {¶15} Appellant, on December 18, 2018, filed a Motion for Reconsideration of the

trial court’s decision to order only $15,000.00 to be remitted to the surety and appellee

filed a memorandum in response to such motion. The contempt hearing was held on

January 17, 2019.

       {¶16} As memorialized in a Judgment Entry filed on January 24, 2019, the trial

court overruled the request for itemization of costs and the motion for reconsideration and

found appellant to be in indirect civil contempt of the trial court’s July 17, 2018 order. The

trial court ordered that Michael Jackson and Anthony Horn. Sr., as appellant’s officers,

each serve twenty-five (25) days in jail and that each pay a fine in the amount of $200.00.

The trial court gave appellant until February 8, 2019 to purge the contempt by depositing

$15,000.00 with the Richland County Clerk of Courts.

       {¶17} Pursuant to a Judgment Entry filed on February 15, 2019, the trial court

overruled appellant’s motion requesting a stay of the judgment.

       {¶18} Appellant now appeals, raising the following assignments of error on

appeal:

       {¶19} “I. THE TRIAL COURT ERRED IN HOLDING THE SURETY IN

CONTEMPT WHEN THE TRIAL COURT DID NOT PROPERLY CONSIDER ALL OF

THE FACTORS IN DETERMINING THE AMOUNT OF THE BOND TO REMIT.”
Richland County, Case No. 2019 CA 0017                                       6


       {¶20} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN HOLDING THE

SURETY IN CONTEMPT FOR FAILING TO PAY THE $15,000.00 BOND FORFEITURE

WHEN THE DEFENDANT WAS IN CUSTODY BEFORE THE BOND FORFEITURE

WENT INTO EFFECT.”

       {¶21} “III. THE TRIAL COURT ERRED IN REFUSING TO GRANT THE

SURETY’S REQUEST FOR ITEMIZATION OF COSTS ASSOCIATED WITH THE

APPREHENSION AND DELAY OF THE PROSECUTION OF THE DEFENDANT.”

       {¶22} However, we find that it is unnecessary to address the merits of appellant’s

arguments because appellant did not appeal from the trial court’s July 17, 2018 Judgment

Entry and this Court is without jurisdiction to consider appellant’s appeal now. The July

17, 2018 Judgment Entry was not timely appealed and has become final. The Order that

is the subject of the present appeal concerns appellant’s compliance with the July 17,

2018 Order. Appellant may not challenge the substance of the July 17, 2018 Order by

appealing the subsequent compliance Order. See Lundy v. Lundy, 11th Dist. Trumbull

No.2012–T–0100, 2013–Ohio–3571, ¶ 34 (“when considering an appeal from a trial

court's finding of contempt, the appellant cannot raise as a defense challenges to the

merits of the underlying order from which the appellant did not directly appeal”). See also

Bruce v. Bruce, 3rd Dist. Logan No. 8–82–3, 1982 WL 6849, *2 (Aug. 11, 1982) (since

the appellant failed to appeal from the decree in which the order leading to the contempt

was made, the order “remained a subsisting enforceable order which the trial court had

no right to review or reverse when the issue of validity was raised merely in defense of

the contempt motion ”).
Richland County, Case No. 2019 CA 0017                                        7


       {¶23} Appellant now challenges the trial court’s order that appellant pay to the

Richland County Clerk of Court the 50% forfeited portion of the bond, or $15,000.00.

Appellant had an opportunity to litigate the claims it sets forth in the instant appeal via a

timely direct appeal from the trial court’s July 17, 2018 Judgment Entry. Appellant,

however, did not do so and appellant’s arguments are, therefore, barred under the

doctrine of res judicata. State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967).

The Perry court explained the doctrine as follows: “Under the doctrine of res judicata, a

final judgment of conviction bars the convicted defendant from raising and litigating in any

proceeding, except an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the trial which

resulted in that judgment of conviction or on an appeal from that judgment.” Id.

       {¶24} Appellant's arguments could have been raised on direct appeal from the

trial court's July 17, 2018 Judgment Entry, and res judicata applies even though appellant

never pursued a direct appeal from such order. Appellant cannot use the trial court’s

January 24, 2019 Judgment Entry finding appellant in contempt to now attack that trial

court’s July 17, 2018 Judgment Entry.

       {¶25} Appellant’s assignments of error are, therefore, overruled.
Richland County, Case No. 2019 CA 0017                                8


       {¶26} Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

Wise, Earle, J. concur.
