[Cite as State v. Worley, 2012-Ohio-484.]


                                        COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. W. Scott Gwin, P.J.
                        Plaintiff-Appellee     :      Hon. John W. Wise, J.
                                               :      Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :      Case No. 2011 CA 0067
JOSEPH M. WORLEY                               :
                                               :
                                               :
                       Defendant-Appellee      :      OPINION
                                               :
JOHN CRAVEN GENERAL AGENCY,                    :
INC.                                           :
                                               :
                           Movant-Appellant    :



CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Case No. 10 CR 00629

JUDGMENT:                                          AFFIRMED


DATE OF JUDGMENT ENTRY:                            February 1, 2012


APPEARANCES:

For Appellant:                                        For Appellee:

JAMES W. SKOGSTROM                                    KENNETH W. OSWALT
2 W. Columbia Street, Suite 200                       LICKING COUNTY PROSECUTOR
P.O. Box 1404
Springfield, OH 45501                                 JUSTIN T. RADIC
                                                      20 S. Second Street, Fourth Floor
                                                      Newark, OH 43055
[Cite as State v. Worley, 2012-Ohio-484.]


Delaney, J.

        {¶1} Movant-appellant John Craven General Agency, Inc. appeals the June 7,

2011 judgment entry of the Licking County Court of Common Pleas denying

appellant’s Motion of the Surety to Set Aside the Judgment and Discharge the Surety.

Defendant-appellee is Joseph M. Worley, and plaintiff-appellee is the State of Ohio.

                            STATEMENT OF THE FACTS AND CASE

        {¶2}      On November 12, 2010, Worley was charged by indictment with one

count of receiving stolen property pursuant to R.C. 2913.51(A), a felony of the fourth

degree. Worley’s bond was set at $5,000 cash or surety before the Licking County

Municipal Court.

        {¶3} Appellant, doing business as AA/Craven Bail Bonds, posted Worley’s

bond as surety, and the bond was continued at arraignment.

        {¶4} Worley failed to appear for pretrial on February 4, 2011, and the trial

court revoked the bond and issued a capias for his arrest.

        {¶5} The trial court scheduled a bond forfeiture hearing on March 7, 2011,

and served notice upon appellant and Worley. Neither appellant nor Worley appeared

at the hearing. The trial court rendered judgment against appellant in the amount of

$5,000.

        {¶6} On March 16, 2011, appellant filed a Motion to Set Aside Judgment and

to Discharge Surety pursuant to Civ.R. 60(B), supplemented by an additional

memorandum. The State opposed the motion and the trial court held an oral hearing.

Appellant argued that Worley had been incarcerated since January 9, 2011, thereby

explaining his failure to appear.
Licking County, Case No. 2011 CA 0067                                                     3


       {¶7} In the meantime, on April 25, 2011, the State sought a warrant for

Worley’s removal from the county of incarceration. Worley appeared before the trial

court, entered a plea of guilty, and was sentenced to a prison term of ten months.

       {¶8} The trial court denied appellant’s motion to set aside the judgment on

June 7, 2011, and appellant appeals from this decision.

       {¶9} Appellant raises one Assignment of Error:

       {¶10} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN

IT DECLINED TO SET ASIDE THE JUDGMENT AND RELEASE THE SURETY

FROM ITS OBLIGATION ON THE BOND POSTED ON BEHALF OF THE

DEFENDANT IN THIS MATTER.”

       {¶11} Appellant asserts that the trial court should have relieved the surety from

judgment because Worley was incarcerated when he failed to appear at the pretrial.

We disagree.

       {¶12} The decision whether to grant a motion for relief under Civ.R. 60(B) lies

within the trial court’s sound discretion. Griffey v. Rajan, 33 Ohio St.3d 75, 77, 514

N.E.2d 1122 (1987). In order to find an abuse of discretion, we must determine the

trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶13} A party seeking relief from judgment pursuant to Civ.R. 60(B) must show:

“1) a meritorious defense or claim to present if relief is granted; 2) entitlement to relief

under one of the grounds set forth in Civ.R. 60(B)(1)-(5); and 3) the motion must be

timely filed.” (emphasis added) GTE Automatic Electric, Inc. v. ARC Industries, Inc.,

47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. A failure to
Licking County, Case No. 2011 CA 0067                                                    4


establish any one of these three requirements will cause the motion to be overruled.

Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 20, 520 N.E.2d 564 (1988); Argo

Plastic Prod. Co. v. Cleveland, 15 Ohio St.3d 389, 391, 474 N.E.2d 328 (1984).

       {¶14} The purpose of bail is to insure that a defendant appears at all stages of

the criminal proceedings. State v. Hughes, 27 Ohio St.3d 19, 20, 501 N.E.2d 622

(1986), citing Crim.R. 46(A), revised. The surety guarantees that it will produce the

defendant in court when called to do so. Id., citing State ex rel. Howard v. Schiele

(1949), 85 Ohio App. 356, 361, 88 N.E.2d 215. Any person who fails to appear before

any court as required is subject to punishment provided by law, and any bail given for

the person’s release may be forfeited. Crim.R. 46(I).

       {¶15} Bond forfeiture requires an opportunity for the accused and the surety to

show cause why judgment should not be rendered against them. R.C. 2937.36(C)

states in pertinent part:

       {¶16} “Upon declaration of forfeiture, the magistrate or clerk of the court

adjudging forfeiture shall proceed as follows:

       {¶17} “***.

       {¶18} “As to recognizances the magistrate or clerk shall notify the accused and

each surety within fifteen days after the declaration of forfeiture by ordinary mail at the

address shown by them…of the default of the accused and the adjudication of

forfeiture and require each of them to show cause on or before a date certain to be

stated in the notice …why judgment should not be entered against each of them for

the penalty stated in the recognizance. If good cause by production of the body of the

accused or otherwise is not shown, the court or magistrate shall thereupon enter
Licking County, Case No. 2011 CA 0067                                                 5


judgment against the sureties or either of them, so notified, in such amount, not

exceeding the penalty of the bond, as has been set in the adjudication of forfeiture,

and shall award execution therefor as in civil cases. ****.”

       {¶19} The trial court complied with R.C. 2937.36 in ordering the bond forfeiture.

Appellant failed to appear and show cause why judgment should not have been

entered against AA/Craven in the amount of five thousand dollars, and failed to

produce the accused.

       {¶20} Appellant now seeks to reverse the trial court’s decision denying the

motion to set aside the judgment, citing State v. Yount, 175 Ohio App.3d 733, 2008-

Ohio-1155, 889 N.E.2d 162. In that case, the Second District Court of Appeals held

that a surety alleged the existence of a meritorious defense when a defendant’s failure

to appear was due to his incarceration in another county. Id. at 737.

       {¶21} Appellant’s position is distinguishable from that of the Yount surety

because appellant failed to appear at the show cause hearing. The Yount surety not

only appeared but also apprised the trial court that she had located the defendant in

another jurisdiction and advised that jurisdiction of the bond forfeiture. Id.

       {¶22} Appellant cites Civ.R. 60(B)(1) as grounds for relief from bond forfeiture:

“On motion and upon such terms as are just, the court may relieve a party or his legal

representative from a final judgment, order, or proceedings for the following reason[]:

mistake, inadvertence, surprise, or excusable neglect.”

       {¶23} Appellant asserts that the mere existence of an alleged meritorious

defense rises to the level of excusable neglect. Appellant asserts that because of the

alleged meritorious defense of Worley’s incarceration in another county, its
Licking County, Case No. 2011 CA 0067                                                   6


nonappearance at the show cause hearing is immaterial. This argument discounts the

role of a surety and misconstrues the meaning of Civ.R. 60(B).

       {¶24} The Ohio Supreme Court has stated that “***the inaction of a defendant

is not ‘excusable neglect’ if it can be labeled as a ‘complete disregard for the judicial

system.’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996),

citing GTE, supra, at 153, 351 N.E.2d 113.        Excusable neglect has been further

defined as some action “not in consequence of the party’s own carelessness,

inattention, or willful disregard of the process of the court, but in consequence of some

unexpected or unavoidable hindrance or accident.” Emery v. Smith, 5th Dist. Nos.

2005CA00051, 2005CA00098, 2005-Ohio-5526, ¶16, citing Vanest v. Pillsbury Co.

124 Ohio App.3d 525, 536, 706 N.E.2d 825 fn. 8 (1997).

       {¶25} Appellant’s reasoning is circular: it asserts a meritorious defense of

Worley’s incarceration, yet justifies its nonappearance at the show cause hearing on

the alleged meritorious defense that it failed to assert. By this reasoning, the trial

court was apparently expected to intuit the existence of a meritorious defense

because Appellant did not appear to present one. Appellant’s argument relies upon

Yount’s holding that incarceration in another county is a meritorious defense, but

appellant overlooks the significance of the fact that the Yount surety “apprised the trial

court at the show-cause hearing that she had located [the defendant] in [another

county],” therefore satisfying the first requirement of Civ.R. 60(B). Yount, supra, 737.

Under all of the circumstances, therefore, the surety’s efforts in Yount did not

constitute a complete disregard for the judicial system. Id. The same is not true in the

instant case.
Licking County, Case No. 2011 CA 0067                                                 7


      {¶26} Based upon the record before us, we find the trial court did not abuse its

discretion in finding that Appellant failed to demonstrate excusable neglect or any

other reason justifying relief from judgment. Appellant has failed to establish one of

the three required prongs for relief under the GTE test, and therefore the motion to set

aside the judgment was properly denied by the trial court.

      {¶27} Appellant’s sole assignment of error is overruled.

      {¶28} The judgment of the Licking County Common Pleas Court is affirmed.

By: Delaney, J.

Gwin, P.J. and

Wise, J. concur.



                                       HON. PATRICIA A. DELANEY



                                       HON. W. SCOTT GWIN



                                       HON. JOHN W. WISE
[Cite as State v. Worley, 2012-Ohio-484.]


               IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                                               :
                        Plaintiff-Appellee     :
                                               :
-vs-                                           :   JUDGMENT ENTRY
                                               :
JOSEPH M. WORLEY                               :
                                               :
                                               :   Case No. 11-CA-67
                       Defendant-Appellee      :

JOHN CRAVEN GENERAL AGENCY,
INC.

                       Movant-Appellant.




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to appellant.




                                             HON. PATRICIA A. DELANEY



                                             HON. W. SCOTT GWIN



                                             HON. JOHN W. WISE
