[Cite as State v. McQuay, 2011-Ohio-6709.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                    :
                                                 :    Appellate Case No. 24673
        Plaintiff-Appellee                       :
                                                 :    Trial Court Case No. 11-CRB-168
v.                                               :
                                                 :
LENNON L. McQUAY                                 :    (Criminal Appeal from Vandalia
                                                 :    (Municipal Court)
        Defendant-Appellant                      :
                                                 :
                                             ...........

                                             OPINION

                        Rendered on the 23rd day of December, 2011.

                                             ...........

JOE CLOUD, Atty. Reg. #0040301, Vandalia Municipal Prosecutor’s Office, 3973
Dayton-Xenia Road, Beavercreek, Ohio 45432
      Attorney for Plaintiff-Appellee

JAMES W. SKOGSTROM, Atty. Reg. #0012000, 2 West Columbia Street, Suite 200,
Post Office Box 1404, Springfield, Ohio 45501
      Attorney for Defendant-Appellant

                                                           .............

        HALL, J.

        {¶ 1} The John Craven General Agency, Inc. (“Craven”), appeals from the

trial court’s denial of its April 2011 motion for return of a forfeited bail bond. In its sole

assignment of error, the Agency contends “[t]he trial court erred and abused its

discretion when it failed to grant remission of the bond to appellant.”
                                                                                                       2


        {¶ 2} The record reflects that a $5,000 surety bond was posted to assure the

appearance of defendant Lennon L. McQuay at future proceedings.1 After McQuay

failed to appear for a scheduled hearing, the trial court gave Craven notice of its

intent to hold a hearing regarding forfeiture of the $5,000. Craven requested a

continuance to allow more time to locate McQuay. The trial court denied the motion

and ordered Craven to appear and show cause regarding forfeiture. Craven

subsequently failed to show cause and forfeited the $5,000 on April 1, 2011.

Thereafter, on April 18, 2011, Craven filed a motion for return of the money. In a

memorandum accompanying the motion, Craven asserted that its agents had

apprehended McQuay in North Carolina and had returned him to the Montgomery

County Jail, where he remained incarcerated. The following day, McQuay pled guilty

to a reduced charge of assault and received probation. On April 26, 2011, Craven

renewed its pending motion for return of the money. The trial court overruled the

motion on May 6, 2011. The trial court’s full decision and entry states:

        {¶ 3} “This matter is before the Court on the Motion for Return of Bond filed

herein. Pursuant to Ohio Revised Code §2937.36 the surety bond is required to be

paid in full unless the Defendant is brought before the Court within thirty (30) days

from the date Defendant failed to appear for court. The Defendant failed to appear

for Pretrial on February 28, 2011, and was not brought before the Court until April 13,

2011.




         1
         The bond was posted by Sharon Belcher, a representative of John Craven Bail Bonds
 (apparently a “dba” for appellant John Craven General Agency, Inc.), acting as attorney-in-fact for
 American Contractors Indemnity Company.
                                                                                      3


       {¶ 4} “Movant’s Motion is not well-taken and is hereby DENIED.”

       {¶ 5} On appeal, Craven primarily argues that the trial court erred in relying

on R.C. 2937.36, which addresses the forfeiture of bail, to deny its motion for the

return or remission of bail, which is governed by a different statute, R.C. 2937.39.

Craven also complains that the trial court failed to afford it an opportunity to be heard

on its motion through the submission of evidence or testimony. In response, the

State argues that a hearing was neither required nor requested on Craven’s motion.

The State further asserts that various facts and circumstances support the denial of

Craven’s motion. As a result, the State insists that no abuse of discretion has been

shown.

       {¶ 6} We review a trial court’s disposition of a motion to remit forfeited bail for

an abuse of discretion. State v. Thornton, Montgomery App. No. 20963,

2006-Ohio-786. In ruling on such a motion, a trial court need not always hold an

evidentiary hearing, particularly when a surety fails to request one. State v. Hardin,

Lucas App. Nos.       L-03-1131, L-03-1132, L-03-1133, 2003-Ohio-7263, ¶12. In

exercising its discretion, however, a trial court should consider various factors. State

v. Delgado, Clark App. No. 2003-CA-28, 2004-Ohio-69, ¶13-16. These factors, which

we set forth in Delgado, generally relate to the circumstances surrounding the

ultimate appearance of the defendant, the State’s inconvenience, expense, and

delay, as well as the willfulness of the bond violation. Id. “Ohio’s appellate districts

‘uniformly require trial courts to consider and weigh [these] various factors in order to

reconcile the purposes of both bail and bond remission.’” Id. at ¶15, quoting State v.

Jackson, 153 Ohio App.3d 520, 2003-Ohio-2213, ¶9. In Delgado, this court found an
                                                                                                        4


abuse of discretion where the trial court denied a motion for bond remission without

evaluating the relevant factors. In that case, the trial court overruled the motion

based solely on a finding that a surety assumes the risk of forfeiting bail. Id. at

¶18-19. Finding reversible error, this court reasoned:

       {¶ 7} “The risk of forfeit is inherent in any bail situation, however, and

remission is only at issue if the surety fails to timely produce a defendant. If trial

courts only had to consider which party bore the risk of non-production, there would

be no reason to entertain motions for remission. The balancing test requires courts to

do more, by mandating that they evaluate and weigh various factors. Because the

trial court in the present case failed to comply with these requirements, its decision

was necessarily arbitrary, and was an abuse of discretion.” Id. at ¶19.

       {¶ 8} The trial court committed a similar error here. As set forth above, it

relied on R.C. 2937.36 to find bond remission inappropriate. R.C. 2937.36 provides,

inter alia, that after a defendant fails to appear the court must notify the surety and

give it an opportunity to show cause why judgment should not be entered for bail

forfeiture. Delgado, at ¶12. One way for a surety to show cause is to produce the
                                                           2
defendant within a certain number of days. R.C. 2937.36(C). Failure to show cause

results in judgment being entered against the surety for bail forfeiture. Id.

       {¶ 9} The parties agree that Craven failed to show cause why judgment

should not be entered on the forfeiture. As a result, the $5,000 bail was forfeited. The

issue raised by Craven’s motion for return of the forfeited funds, however, concerned

         2
          At the time of the trial court’s ruling, a surety had no more than thirty days from the mailing of the
 show-cause notice to bring the defendant before the court to avoid entry of judgment for bail forfeiture.
 That time recently was extended to sixty days through an amendment to R.C. 2937.36.
                                                                                                      5


whether it was entitled to relief from the judgment of forfeiture. Craven brought its

motion under R.C. 2937.39, which authorizes remission of forfeiture. It states: “After

judgment has been rendered against surety or after securities sold or cash bail

applied, the court or magistrate, on the appearance, surrender, or re-arrest of the

accused on the charge, may remit all or such portion of the penalty as it deems just *

* *.” As set forth above, this court has directed trial courts to consider various factors

when exercising their discretion to remit forfeited bail under R.C. 2937.39.

       {¶ 10} In its analysis, the trial court denied remission under R.C. 2937.39

based solely on a finding that its judgment of forfeiture had been proper under R.C.

2937.36. But Craven’s failure to avoid the entry of judgment on the bail forfeiture has

no bearing on whether it is entitled to remission under R.C. 2937.39. Every motion for

remission presupposes a proper judgment of forfeiture. See R.C. 2937.39 (providing

that the opportunity for remission arises“[a]fter judgment has been rendered against

surety”). In short, the trial court erred by refusing to give consideration to return of the

forfeited bail simply because the money properly had been forfeited. On remand, the

trial court should exercise its discretion by evaluating Craven’s motion in light of the
                                                       3
factors this court identified in Delgado, supra.

       {¶ 11} Craven’s assignment of error is sustained. The judgment of the

         3
           With regard to the remission factors, “[t]he court itself should know what costs and inconvenience
 the court incurred. However, because the cost and inconvenience to the State involves facts peculiarly
 within the State’s knowledge, and is susceptible to proof by the State because of that peculiar knowledge,
 the State should be required to offer evidence showing what costs and inconvenience it incurred. Any
 omission to produce important and relevant evidence in its possession raises a presumption that, if
 produced, such evidence would be unfavorable to the State. * * * On remand, though the surety bears the
 ultimate burden of proof on its request to remit a portion of the forfeited bond, the court should require the
 State to come forward with evidence in its possession relevant to prove the cost and inconvenience
 incurred by the State, its witnesses, and law enforcement authorities.” Thornton, at ¶19-20 (Grady, J.,
 concurring).
                                                                        6


Vandalia Municipal Court is reversed, and the cause is remanded for further

proceedings consistent with this opinion.

                                            .............

FAIN and FROELICH, JJ., concur.



Copies mailed to:

Joe Cloud
James W. Skogstrom
Hon. Cynthia M. Heck
