[Cite as State v. Hawrylak, 2016-Ohio-250.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-15-24

        v.

MICHAEL A. HAWRYLAK,

        DEFENDANT-APPELLEE.                               OPINION

[SURETY CORPORATION OF
AMERICA, ET AL. - APPELLANTS]




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2013CR135

                                      Judgment Affirmed

                           Date of Decision:   January 25, 2016




APPEARANCES:

        Eric J. Hoffman for Appellant, Chuck Brown II Bail Bonds

        Elizabeth H. Smith for Appellee
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ROGERS, J.

       {¶1} Appellants, Surety Corporation of America (“Surety Corporation”)

and Chuck Brown II Bail Bonds (“Brown Bail Bonds”), appeal the judgment of

the Court of Common Pleas of Hancock County denying Brown Bail Bonds’s

motion to intervene and forfeiting Defendant, Michael Hawrylak’s bond. On

appeal, Brown Bail Bonds argues that the trial court erred by (1) denying its

motion to intervene; and (2) forfeiting Hawrylak’s bond. For the reasons that

follow, we affirm the judgment of the trial court.

       {¶2} On June 25, 2013, the Hancock County Grand Jury indicted Hawrylak

on one count of trafficking in cocaine in violation of R.C. 2925.03(A), a felony of

the fifth degree; one count of possession of heroin in violation of R.C. 2925.11(A),

a felony of the second degree; one count of possession of cocaine in violation of

R.C. 2925.11(A), a felony of the third degree; and one count of possession of

marihuana in violation of R.C. 2925.11(A), a felony of the fifth degree.

       {¶3} On July 3, 2013, Hawrylak was arraigned, and the trial court set bond

at $45,000 cash or surety.

       {¶4} On July 5, 2013, U.S. Specialty Insurance Company (“U.S.

Specialty”) posted a surety bond with the Hancock County Clerk of Courts. The

“Recognizance of Accused” filed with the Clerk of Courts named U.S. Specialty

as the bond’s surety.        The attached “Power of Attorney” named Surety


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Corporation as U.S. Specialty’s agent and Martin Pope as U.S. Specialty’s

attorney-in-fact. After U.S. Specialty posted Hawrylak’s bond, Hawrylak was

released.

       {¶5} On January 17, 2014, after Hawrylak failed to report as ordered to the

probation department, the trial court issued a bench warrant for Hawrylak’s arrest.

Thereafter, Hawrylak failed to appear at all scheduled court proceedings.

       {¶6} By entry dated February 3, 2014, the trial court ordered Hawrylak’s

bond forfeited. The next day, the State filed a motion to show cause as to why

judgment should not be entered against the bond’s surety, and a hearing was set

for March 20, 2014. Notice of the foregoing was sent via certified mail to Pope.

       {¶7} On March 20, 2014, Pope was granted a 15 day continuance in order

to locate Hawrylak. However, by late April 2015, Hawrylak’s whereabouts were

still unknown.

       {¶8} On July 29, 2014, the State filed another motion to show cause as to

why judgment should not be entered against the bond’s surety, and a hearing was

set for September 18, 2014. Notice of the foregoing was sent via certified mail to

Pope, Surety Corporation, and U.S. Specialty.

       {¶9} On July 30, 2014, Hawrylak was arrested in Franklin County on

multiple outstanding warrants. The Franklin County trial court set bond and




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ordered that Hawrylak report to Hancock County within five days. Hawrylak

posted bond in Franklin County but never reported to Hancock County.1

        {¶10} On September 5, 2014, Surety Corporation filed a motion to set aside

the forfeiture arguing that it did not receive notice within the time limits

prescribed under R.C. 2937.26(C). By entry dated September 18, 2014, the trial

court granted Surety Corporation’s motion, and the previously ordered forfeiture

was set aside.

        {¶11} A few months later, the State again requested that Hawrylak’s bond

be forfeited, and a forfeiture hearing was set for February 26, 2015. Notice of the

foregoing was sent via certified mail to Hawrylak, Pope, Surety Corporation, and

U.S. Specialty.

        {¶12} In response, Surety Corporation filed a motion to dismiss, arguing

that the trial court’s September 18, 2014 entry released it from liability on

Hawrylak’s bond. In the alternative, Surety Corporation requested a continuance

due to a scheduling conflict. The following day, U.S. Specialty filed an identical

motion.2 The forfeiture hearing was rescheduled for March 26, 2015.




1
 At oral argument, the State indicated that Hawrylak has not yet been apprehended.
2
 Eric Hoffman represented both U.S. Specialty and Surety Corporation during the proceedings below.
Although not evidenced by the record, Hoffman also claims to have represented Chuck Brown and Pope.

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        {¶13} On March 25, 2015, Steven Powell filed a notice of appearance of

co-counsel on behalf of Brown Bail Bonds.3

        {¶14} After Hawrylak failed to appear at the March 26, 2015 hearing, the

trial court declared Hawrylak’s bond forfeited. Thereafter, the State filed a motion

to show cause as to why judgment should not be entered against the bond’s surety,

and a hearing was set for May 28, 2015. Notice of the foregoing was sent via

certified mail to Pope, Surety Corporation, Hoffman, and U.S Specialty.

        {¶15} On May 28, 2015, Brown Bail Bonds filed a motion to intervene

claiming that it had an interest in the pending proceedings. Specifically, Brown

Bail Bonds averred that U.S. Specialty and Surety Corporation were the

underwriters of Hawrylak’s bond with Brown Bail Bonds acting as a direct agent

for Pope.

        {¶16} That same day, a hearing was held concerning the State’s motion to

show cause and Brown Bail Bonds’s motion to intervene. No testimony was

presented, but Brown Bail Bonds offered into evidence a “Bail Bond Agent

Contract” between U.S. Specialty, Surety Corporation, Brown Bail Bonds, and

Pope. The contract identified Pope as an “agent” of U.S. Specialty and Surety

Corporation and Charles C. Brown II as a “supervisory agent” of U.S. Specialty

and Surety Corporation.

3
 Despite the styling of Powell’s notice of appearance, Powell was the only counsel of record for Brown
Bail Bonds.


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       {¶17} In response, the State argued that Brown Bail Bonds was not listed as

a surety in the documents filed with the Clerk of Courts and therefore should not

be allowed to intervene. The trial court agreed, noting that the bond’s “paper trail”

lacked any reference to Brown Bail Bonds. Aug. 17, 2015 Hrg., p. 9.

       {¶18} By entry dated June 11, 2015, the trial court denied Brown Bail

Bonds’s motion and ordered immediate payment of Hawrylak’s bond.

       {¶19} It is from this judgment that Surety Corporation and Brown Bail

Bonds appeal, with Brown Bail Bonds presenting the following assignments of

error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ABUSED IT [SIC] DISCRETION WHEN
       IT OVERRULED APPELLANT’S MOTION TO INTERVENE
       AS A PARTY BECAUSE APPELLANT WAS THE
       SUPERVISING AGENT FOR SURETY CORPORATION OF
       AMERICA, U.S. SPECIALTY INSURANCE COMPANY AND
       MARTIN POPE.

                            Assignment of Error No. II

       THE TRIAL COURT ERRED IN ITS ISSUANCE OF
       JUDGMENT FORFEITING THE SURETY BOND FOR THE
       REASON THAT ON SEPTEMBER 18, 2014, THE COURT
       HAD ISSUED AN ENTRY SETTING ASIDE THE BOND
       FORFEITURE BECAUSE THE DEFENDANT HAD BEEN
       ARRESTED AND TAKEN INTO CUSTODY IN FRANKLIN
       COUNTY, OHIO AND THUS WAS AVAILABLE TO THE
       COURT.




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                           Assignment of Error No. III

       THE COURT ERRED IN ISSUING JUDGMNET OF
       FORFEITURE OF THE BOND FOR THE REASON THAT
       THE HANCOCK COUNTY CLERK OF COURTS FAILED
       TO COMPLY WITH THE NOTICE REQUIREMENT
       PROVISIONS OF THE OHIO REVISED CODE 2937.36.

                            Assignment of Error No. IV

       THE TRIAL COURT ERRED IN ISSUING JUDGMENT OF
       FORFEITURE OF THE BOND FOR THE REASON THAT
       THE SURETY HAD A STATUTROY DEFENSE UNDER
       2937.40.

       {¶20} Before we address Brown Bail Bonds’s assignments of error, we note

that Surety Corporation also filed a notice of appeal in this case. However, despite

filing its notice of appeal, Surety Corporation failed to file its brief. App.R. 18(C)

provides that “[i]f an appellant fails to file the appellant’s brief within the time

provided by this rule, or within the time as extended, the court may dismiss the

appeal.” Accordingly, Surety Corporation’s appeal is dismissed.

                             Assignment of Error No. I

       {¶21} In its first assignment of error, Brown Bail Bonds argues that the trial

court abused its discretion by denying its motion to intervene. Specifically, Brown

Bail Bonds argues that the evidence established that it had an interest in the

forfeiture proceedings that would be adversely affected absent intervention. We

disagree.



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       {¶22} In reviewing a trial court’s denial of a motion to intervene, the proper

standard of review is whether the trial court’s action constituted an abuse of

discretion. Indiana Ins. Co. v. Murphy, 165 Ohio App.3d 812, 2006-Ohio-1264, ¶

4 (3d Dist.). A trial court will be found to have abused its discretion when its

decision is contrary to law, unreasonable, not supported by the evidence, or

grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18

(2d Dist.). When applying the abuse of discretion standard, a reviewing court may

not simply substitute its judgment for that of the trial court. State v. Slappey, 3d

Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12.

       {¶23} This case concerns whether an entity can intervene in a criminal

forfeiture proceeding. Although this case is criminal in nature, there is no criminal

rule governing intervention. “If no procedure is specifically prescribed by rule,

the court may proceed in any lawful manner not inconsistent with the rules of

criminal procedure, and shall look to the rules of civil procedure and to the

applicable law if no rule of criminal procedure exists.” Crim.R. 57(B); State v.

Dillon, 3d Dist. Hancock No. 5-06-50, 2007-Ohio-4934, ¶ 18. In other words,

while the Ohio Rules of Civil Procedure generally do not apply in criminal

matters, they may apply where there is no criminal rule on point. Dillion at ¶ 18;

State v. Belknap, 11th Dist. Portage No. 2002-P-0021, 2004-Ohio-5636, ¶ 25.




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       {¶24} Civ.R. 24(A) addresses when a party can intervene in a civil case. It

provides, in relevant part:

       Intervention of right. Upon timely application anyone shall be
       permitted to intervene in an action: (1) when a statute of this state
       confers an unconditional right to intervene; or (2) when the applicant
       claims an interest relating to the property or transaction that is the
       subject of the action and the applicant is so situated that the
       disposition of the action may as a practical matter impair or impede
       the applicant’s ability to protect that interest, unless the applicant’s
       interest is adequately represented by existing parties.

       {¶25} Civ.R. 24(A) establishes four elements that must be met before a

party may intervene: (1) the intervenor must claim an interest relating to the

property or transaction that is the subject of the action; (2) the intervenor must be

so situated that the disposition of the action may, as a practical matter, impair or

impede the intervenor's ability to protect his or her interest; (3) the intervenor must

demonstrate that his or her interest is not adequately represented by the existing

parties; and (4) the motion to intervene must be timely. Fairview Gen. Hosp. v.

Fletcher, 69 Ohio App.3d 827, 830-831 (10th Dist.1990); Henderson v. Luhring,

5th Dist. Ashland No. 02-COA-017, 2002-Ohio-4208, ¶ 15; State v. Schulte, 154

Ohio App.3d 367, 2003-Ohio-3826, ¶ 6 (1st Dist.). The intervenor bears the

burden of proving each element, and the failure to meet any one of the elements

will result in a denial of the motion. Deutsche Bank Natl. Trust Co. v. Hill, 5th

Dist. Perry No. 14 CA 00021, 2015-Ohio-1575, ¶ 25; St. Sylvester Church v.

Haren-Williams, 7th Dist. Monroe No. 842, 2001 WL 674197, *1 (June 18, 2001).

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       {¶26} Here, the only evidence before the trial court was (1) the

“Recognizance of Accused” and “Power of Attorney” filed with the Clerk of

Courts naming U.S. Specialty as the bond’s surety, Surety Corporation as its

agent, and Pope as its attorney-in-fact; and (2) the “Bail Bond Agent Contract”

establishing that an agency relationship existed between U.S. Specialty, Surety

Corporation, Pope, and Charles C. Brown II. No testimony was presented.

       {¶27} Even if we assume, arguendo, that the “Bail Bond Agent Contract”

was sufficient to establish Brown Bail Bonds’s interest in the bond, there was no

evidence presented that (1) entering a judgment against U.S. Specialty, Surety

Corporation, and/or Pope would impair or impede Brown Bail Bonds’s ability to

protect its interest or (2) that Brown Bail Bonds’s interest was not adequately

represented by U.S. Specialty, Surety Corporation and/or Pope. At the hearing,

Brown Bail Bonds’s counsel simply stated that Brown Bail Bonds was “going to

be on the hook for this.” Aug. 17, 2015 Hrg., p. 7.

       {¶28} Ultimately, Brown Bail Bonds bore the burden of establishing that

(1) it had an interest in the bond; (2) entering judgment against the bond’s sureties

would impair or impede its ability to protect that interest; (3) its interest was not

adequately represented by the existing parties; and (4) its motion was timely. At

most, Brown Bail Bonds established that it had an interest in Hawrylak’s bond,

and this alone is insufficient to establish a right to intervene.


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       {¶29} Based on the foregoing, we find that the trial court did not abuse its

discretion in denying Brown Bail Bonds’s motion to intervene. Accordingly, we

overrule Brown Bail Bonds’s first assignment of error.

                        Assignments of Error Nos. II, III, & IV

       {¶30} In its second, third, and fourth assignments of error, Brown Bail

Bonds argues that the trial court erred in forfeiting Hawrylak’s bond. Having

found that the trial court did not err in denying Brown Bail Bonds’s motion to

intervene, it follows that Brown Bail Bonds is not a party to the underlying action

and, therefore, Brown Bail Bonds lacks standing to raise these alleged errors. See,

e.g., White v. Continental Express, Inc., 3d Dist. Shelby No. 17-04-04, 2004-Ohio-

5092, ¶ 5. Accordingly, we overrule Brown Bail Bonds’s second, third, and fourth

assignments of error.

       {¶31} Having found no error prejudicial to Brown Bail Bonds, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                  Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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