            THE STATE OF SOUTH CAROLINA
                 In The Supreme Court

   The State, Respondent,

   v.

   Deangelo Mitchell, Defendant,

   and

   AA Ace Bail by Frances and Palmetto Surety Corp., as
   Surety, Petitioners.

   Appellate Case No. 2016-000980



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                Appeal from Charleston County
          Stephanie P. McDonald, Circuit Court Judge


                      Opinion No. 27747
         Heard April 12, 2017 – Filed November 8, 2017


                         AFFIRMED


   Robert T. Williams, Sr. and Benjamin Allen Stitely, both
   of Williams, Stitely & Brink, PC, of Lexington, for
   Petitioners.

   Attorney General Alan McCrory Wilson and Assistant
   Attorney General V. Henry Gunter, Jr., both of Columbia,
             and Solicitor Scarlett A. Wilson, of Charleston, for
             Respondent.


JUSTICE JAMES: This appeal arises from an order estreating a surety bond and
remitting one-half of the bond forfeiture. The court of appeals affirmed in an
unpublished opinion. State v. Mitchell, Op. No. 2016-UP-070 (S.C. Ct. App. filed
Feb. 17, 2016). We affirm the court of appeals' holding that the bond estreatment
was proper and that the amount of forfeiture remitted was not arbitrary or capricious.
We hold that the circuit court may consider the willfulness of a bondsperson's
actions, in addition to the willfulness of a defendant's actions, when determining
whether, and to what extent, to remit a bond forfeiture.

                  FACTUAL AND PROCEDURAL HISTORY
       Deangelo Mitchell was arrested for possession with intent to distribute
cocaine and was released on a $25,000 surety bond. Subsequently, Mitchell was
arrested for trafficking in cocaine, distribution of cocaine, and involuntary
manslaughter; bond was set at $400,000. Mitchell's bonds were then consolidated
for all his pending charges and the circuit court set a $150,000 surety bond. Bond
conditions included a standard good behavior condition, plus house arrest and
electronic monitoring. AA Ace Bail by Frances and Palmetto Surety Corporation
(collectively, Bond Company) executed the $150,000 surety bond and Mitchell was
released.

       Thereafter, the State moved to revoke Mitchell's bond on the basis that
Mitchell blatantly disregarded the house arrest and electronic monitoring provisions
of his bond and thus, violated the "good behavior" requirement of the bond contract.1
Mitchell appeared at the revocation hearing and testified that he was never informed


1
  The parties have concentrated their arguments upon Mitchell's repeated electronic
monitoring violations as being violations of the "good behavior" condition of his
bond. Arguably, a good behavior violation is committed only when the defendant
has committed another crime while out on bond. Even if repeated violations of the
electronic monitoring provisions are not "good behavior" violations, the bond
covering Mitchell (and most other defendants) clearly includes a provision that the
defendant shall comply with all conditions of bond; since this bond included a
provision that Mitchell would comply with all conditions of bond, and since house
arrest and electronic monitoring were conditions of bond, the result is the same.
of the conditions of his bond and that he was never informed he was violating a
condition of his bond.

       Mitchell's bondsperson, Frances Jenkins, testified at the revocation hearing
that she has been a bondsperson for almost twenty years. She testified she was aware
electronic monitoring was a condition of Mitchell's bond. Jenkins admitted the
monitoring company contacted her two to three times to inform her that Mitchell
was violating the electronic monitoring conditions; she testified that she in turn
contacted Mitchell and told him to "tighten up." Concerning her responsibilities as
a bondsperson, Jenkins initially testified, "I write appearance bonds, not behavior
bonds." Later during her testimony, she conceded that her responsibilities as a
bondsperson include helping to enforce bond conditions other than the defendant's
appearance in court.

       James Robinson, the owner of the monitoring company, testified at the
revocation hearing that his office contacted Mitchell and Jenkins on several
occasions regarding the electronic monitoring violations, and that after continuing
violations, his office notified Jenkins she needed to arrest Mitchell because "it was
very obvious" that he was staying out all night. Robinson testified "it got to where
there was just no compliance" and that Mitchell committed daily house arrest and
electronic monitoring violations. Robinson testified he advised Jenkins that it
appeared Mitchell was "out there doing drug transactions." Robinson testified that
Jenkins refused to pick Mitchell up and responded, "well, that's how he makes a
living." Jenkins denied telling Robinson that she knew Mitchell made money
dealing drugs.

      The circuit court found Mitchell's claims of ignorance as to the conditions of
his bond were not credible and revoked the bond for repeated violations of the terms
and conditions of the bond. Mitchell was placed in custody until he pled guilty and
was sentenced to a term of incarceration.

       On August 8, 2012, the State filed a Notice of Forfeited Recognizance seeking
estreatment of the bond posted by Bond Company. The circuit court held two
hearings on the motion, and on July 9, 2014, the circuit court issued its order
estreating $75,000 of the $150,000 bond.

      In its order, the circuit court first noted that pursuant to Ex parte Polk, 354
S.C. 8, 579 S.E.2d 329 (Ct. App. 2003), the purpose of the bond "was to assure not
only Mr. Mitchell's appearance, but also his good behavior while out on bond,"
noting the additional conditions of the bond order imposing house arrest and
electronic monitoring. Second, the court found Mitchell's violations, "as well as Ms.
Jenkins' admitted failure to fulfill her obligations as the bondsperson and take
appropriate action to address them, were clearly willful." Finally, the court found
that the State incurred expenses in addressing this matter and that the State was
prejudiced because this case, in addition to other cases brought to the court's
attention, resulted in the issuance of a moratorium on the use of electronic
monitoring in the circuit. The court of appeals affirmed both the circuit court's
decision to estreat the bond and the amount estreated. Mitchell, Op. No.
2016-UP-070.

                           STANDARD OF REVIEW
      "An appellate court reviews the circuit court's ruling on the forfeiture or
remission of a bail bond for abuse of discretion." State v. McClinton, 369 S.C. 167,
170, 631 S.E.2d 895, 896 (2006).

             An abuse of discretion occurs when the circuit court's
             ruling is based upon an error of law, such as application of
             the wrong legal principle; or, when based upon factual
             conclusions, the ruling is without evidentiary support; or,
             when the circuit court is vested with discretion, but the
             ruling reveals no discretion was exercised; or when the
             ruling does not fall within the range of permissible
             decisions applicable in a particular case, such that it may
             be deemed arbitrary and capricious.

Id.
                                   DISCUSSION

       Bond Company contends estreatment was improper because the sole purpose
of a surety is to insure the defendant's appearance for court, not the defendant's
behavior. Bond Company concedes that a bond may be estreated for a violation of
a bond condition but argues that once the defendant is surrendered to the State, the
entire amount of estreatment must be remitted, as long as the State has suffered no
prejudice. Bond Company further contends that even if estreatment were proper, the
amount remitted was arbitrary and capricious because Mitchell appeared for court,
the State incurred no costs from locating or prosecuting Mitchell, and the State
otherwise suffered no prejudice. We disagree.2
      An appearance recognizance bond:

             must be conditioned on the person charged personally
             appearing before the court specified to answer the charge
             or indictment and to do and receive what is enjoined by
             the court, and not to leave the State, and be of good
             behavior toward all the citizens of the State, or especially
             toward a person or persons specified by the court.

S.C. Code Ann. § 17-15-20(A) (2014). Upon breach of a condition of the
recognizance, the recognizance is forfeited and the liability of the surety to pay the
amount of the penalty becomes fixed, "unless relieved or exonerated by action of the
court." Pride v. Anders, 266 S.C. 338, 340, 223 S.E.2d 184, 185 (1976) (citing State
v. Edens, 88 S.C. 302, 70 S.E. 609 (1911)).

      The procedure for estreatment of bonds in the instant case is controlled by
South Carolina Code § 17-15-170 (2014). See State v. Holloway, 262 S.C. 552, 554,
206 S.E.2d 822, 823 (1974). The circuit court followed the requisite procedure.
Section 17-15-170 provides that whenever the recognizance is forfeited by
noncompliance with its conditions, the State shall immediately notify any party
bound in the forfeited recognizance to appear and show cause "why judgment should
not be confirmed against him." At the show cause hearing, if the person so bound
"does not give a reason for not performing the condition of the recognizance as the
court considers sufficient, then the judgment on the recognizance is confirmed."
S.C. Code Ann. § 17-15-170.




2
  Bond company also contends that any estreatment must be conditional upon the
surrender of the defendant to the State under S.C. Code Ann. § 38-53-70 (2015) and
that they are relieved of liability because Mitchell appeared in court. We hold this
issue is not preserved for this Court's review. Even if the issue was preserved,
section 38-53-70 is inapplicable to this case because it only applies to an estreatment
being paid in installments resulting from a defendant's failure to appear in court.
Here, Mitchell appeared for court and estreatment was ordered based upon Mitchell's
violation of the good behavior condition and upon the willful noncompliance of
Mitchell and Jenkins.
       Thereafter, a second hearing may be held to determine the amount, if any, to
be remitted. Holloway, 262 S.C. at 555, 206 S.E.2d at 823. The court may "remit
the whole or any part of the forfeiture as may be deemed reasonable" upon affidavit
sufficiently stating the forfeiture resulted "from ignorance or unavoidable
impediment and not from wilful default." S.C. Code Ann. § 17-15-180 (2014).

       The circuit court is vested with discretionary power to determine whether a
bond forfeiture should be remitted, and if so, to what extent. State v. Workman, 274
S.C. 341, 343, 263 S.E.2d 865, 866 (1980). But see United States v. Parr, 560 F.2d
1221, 1224 (5th Cir. 1977) ("Neither frustration nor its kinsman vindictiveness
should be of weight in tipping the scales by which the elements of the court's
discretion is weighed."). "[I]n determining whether any remission of the judgment
is warranted, the trial court is not limited to considering only the actual cost to the
State." Ex parte Polk, 354 S.C. at 12–13, 579 S.E.2d at 331. "[T]he following
factors, at the least, should be considered in determining whether, and to what extent,
the bond should be remitted: (1) the purpose of the bond; (2) the nature and
wilfulness of the default; (3) any prejudice or additional expense resulting to the
State." Id. at 13, 579 S.E.2d at 331 (emphasis added).

        We respectfully reject Bond Company's argument that a surety is relieved of
all liability upon the surrender of a defendant to the State. The obligation of a surety
is not to the State to produce the defendant, but is rather "an obligation to answer, to
the extent of the penalty, for the default of the defendants, as principals." Pride, 266
S.C. at 341, 223 S.E.2d at 186. The surrender of a defendant after default does not
entitle a surety to a remission of the forfeiture "as a matter of right." Holloway, 262
S.C. at 555–56, 206 S.E.2d at 824.

       Although this Court most frequently addresses conditions of a bond breached
by a defendant's failure to appear, a professional bondsperson "is certainly aware
that an appearance bond carries conditions beyond the defendant's appearance in
court." State v. Boatwright, 310 S.C. 281, 283, 423 S.E.2d 139, 141 (1992). "The
bond may also be estreated if the defendant breaches terms or conditions of the bond
other than appearance." Id. at 286, 423 S.E.2d at 142 (Toal, J., dissenting).

       Here, despite Bond Company's procurement of Mitchell's appearance in court,
the record supports the circuit court's finding that Mitchell committed daily
violations of the house arrest and electronic monitoring conditions of his bond.
Accordingly, we conclude the circuit court did not abuse its discretion in estreating
Mitchell's bond for repeated noncompliance with a condition of bond.
      We further conclude that the three factors enumerated in Polk, supra, are not
the exclusive considerations of the circuit court in determining whether to remit a
bond forfeiture and, if so, to what extent the forfeiture should be remitted. Indeed,
in Polk, the court of appeals correctly noted that the circuit court may consider other
relevant factors. We hold that in the bond estreatment setting, it is proper for a circuit
court to consider the bondsperson's willful failure to monitor the defendant's
compliance with conditions of bond in determining whether justice requires the
enforcement of a forfeiture order.

        Here, the circuit court properly considered the bondsperson's willful failure to
fulfill her obligations as the bondsperson, in addition to the Polk factors. The circuit
court deliberately analyzed each relevant factor pertinent to the circumstances of this
case, including: (1) Mitchell's willful daily violations of the condition of house arrest
and (2) the bondsperson's total failure to supervise Mitchell and do her part to
remedy his noncompliance. Though some circuit judges might have remitted more,
and though some might have remitted less, the circuit court weighed the relevant
factors and set forth clear factual findings. In adherence to our standard of review,
we hold the circuit court did not abuse its discretion in ordering estreatment and in
remitting $75,000 of the amount forfeited.

                                   CONCLUSION

      We hold that in an estreatment proceeding, the circuit court may consider
evidence of a bondsperson's willful failure to fulfill their obligations as the
bondsperson, in addition to the factors expressed in Polk, in determining whether,
and to what extent, a bond forfeiture should be remitted. We hold the circuit court
acted within its discretion in determining the amount of the bond forfeiture to be
remitted. The court of appeals' decision is affirmed.

AFFIRMED.

BEATTY, C.J., KITTREDGE, J., and Acting Justices James E. Moore and
William P. Keesley, concur.
