                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0535

                                   State of Minnesota,
                                       Respondent,

                                           vs.

                                  Alberto Villa-Barrera,
                                       Defendant,

                             Ability Bonding Company, Inc.,
                                       Appellant.

                                 Filed December 1, 2014
                                        Affirmed
                                     Hudson, Judge

                             Hennepin County District Court
                               File No. 27-CR-12-14467


Michael O. Freeman, Hennepin County Attorney, Minneapolis, Minnesota (for
respondent)

Robert A. Lengeling, Beito & Lengeling, P.A., Minneapolis, Minnesota (for appellant)

         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

HUDSON, Judge

       Appellant challenges the district court’s decision to forfeit defendant’s bail bond

after his second missed court appearance. Specifically, appellant argues that the district

court abused its discretion in forfeiting the bond because the district court did not notify

appellant of defendant’s first missed appearance. Because the district court had no duty

to notify appellant of the first missed appearance, we affirm.

                                         FACTS

       After defendant Alberto Villa-Barrera’s May 10, 2012 initial appearance on a first-

degree drug sales charge, appellant Ability Bonding Company posted a $75,000 bond for

defendant. Defendant failed to appear for his next court hearing on July 5, 2012. The

district court stayed defendant’s bench warrant and rescheduled his hearing for two

weeks later. Appellant was not notified of the missed appearance. Defendant failed to

appear for the rescheduled hearing and the district court forfeited his bond and issued a

bench warrant.

       The district court administrator mailed appellant notice of the forfeited bond three

days after the second missed hearing. Four days before the bond payment was due,

appellant was granted a 90-day payment extension to attempt to locate and recover

defendant. Appellant was unable to locate defendant and requested a second 90-day

extension. The district court denied this request. Appellant then moved for the bond to

be reinstated and discharged because appellant was not notified that defendant missed his

first appearance. The district court denied appellant’s motion.


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       This appeal follows.

                                     DECISION

Failure to Notify

       Appellant argues that defendant’s bail bond—which operates as a surety

contract—must be reinstated because the district court had a contractual duty to notify

appellant of defendant’s first missed appearance. Under Minn. R. Gen. Prac. 702(e), the

surety and the bondsman must receive written notice whenever a bond is forfeited. State

v. Rosillo, 645 N.W.2d 735, 738 (Minn. App. 2002). “Written notice is a procedural

requirement to allow the surety to petition the court for reinstatement and discharge of

[the] forfeited bond or to take other actions to preserve its rights.” Id. at 738–39. But

702(e) does not require that the court administrator provide notice of a missed appearance

where a bond is not forfeited. An administrator’s obligation under rule 702(e) to notify

the surety and bondsman of a bond forfeiture is different from a bonding company’s

claim it was entitled to notice of a defendant’s failure to appear. Id. at 740. A bonding

company cannot absolve itself of blame when it does not monitor a defendant’s

appearances and fails to timely learn of nonappearances. State v. Due, 427 N.W.2d 276,

278 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988).

       In State v. Due, a defendant was released on a bail bond. Id. at 277. After the

defendant failed to appear for a pretrial hearing, a bench warrant was issued. Id. Three

years later, the district court noted the bond was in default and ordered it forfeited. Id.

The bonding company requested the bond be reinstated and discharged, claiming it was

unfair for the state to wait more than three years before giving notice of default. Id. This


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court concluded the state had no duty to notify the bonding company of the defendant’s

nonappearance because: (1) the state did not prevent the bonding company from

producing the defendant and (2) the bonding company was not prevented from

monitoring or learning of the defendant’s nonappearance. Id. at 278.

      Appellant is correct that this court has characterized bail bonds as contracts

governed by traditional principles of contract law. See State v. Rodriguez, 775 N.W.2d

907, 914 (Minn. App. 2009) (“A bail bond is a contract among the bonding company, the

defendant and the court. . . . As a legally binding contract, traditional principles of

contract law . . . may be applied”), review denied (Minn. Feb. 16, 2010). But, in Due,

this court clearly stated that where a bonding company could have learned of a

defendant’s failure to appear, it was not absolved of blame by not monitoring

appearances. 427 N.W.2d at 278. Appellant provides no reason why it could not have

reviewed public records or otherwise learned of defendant’s nonappearance. Further,

appellant’s claim that other counties provide bonding companies with notices of missed

appearances does not provide a legal basis to conclude that Hennepin County has any

such duty.

      Appellant next argues that, had the district court given notice of defendant’s first

failure to appear, defendant would not have had a head start and would not have easily

avoided capture.    A similar argument was made by the bonding company in Due.

Specifically, the Due bonding company argued that “it would have been able to locate

[the defendant] and deliver him up for trial had the state acted more promptly.” Id. The

Due court concluded, as we do here, that the district court did not abuse its discretion by


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not notifying the bond company when the defendant failed to appear. See id. We also

note that in Due the bond was forfeited three years after the missed appearance while

here the bond was forfeited after only 15 days. 427 N.W. 2d at 277. Additionally, the

defendant in this matter was released on bail two months prior to his first missed court

appearance, giving him a significant amount of time to abscond prior to his scheduled

hearing.

Shetsky Factors

      With respect to the merits of appellant’s claim, we first note that, by agreeing to

act as a surety, a bonding company promises to ensure that the defendant will appear to

answer the charges against him. State v. Williams, 568 N.W.2d 885, 888 (Minn. App.

1997), review denied (Minn. Nov. 18, 1997). The district court’s decision not to reinstate

or discharge a bail bond is reviewed for abuse of discretion. State v. Vang, 763 N.W.2d

354, 357 (Minn. App. 2009). A district court abuses its discretion when its ruling is

based “on an erroneous view of the law.” State v. Storkamp, 656 N.W.2d 539, 541

(Minn. 2003). In determining whether the district court abused its discretion, this court

considers the factors set forth by In re Application of Shetsky, 239 Minn. 463, 471, 60

N.W.2d 40, 46 (1953):

             (1) the purpose of bail, the civil nature of the proceedings,
             and the cause, purpose, and length of the defendant’s absence;
             (2) the good faith of the surety as measured by the fault or
             willfulness of the defendant; (3) the good-faith efforts of the
             surety—if any—to apprehend and produce the defendant; and
             (4) any prejudice to the state in its administration of justice.




                                            5
Rodriguez, 775 N.W.2d at 912 (quotations omitted). The surety bears the burden to

prove that reinstatement and discharge of the bond is justified. Shetsky, 239 Minn. at

472, 60 N.W.2d at 46. The state bears the burden to prove any claimed prejudice. State

v. Askland, 784 N.W.2d 60, 62 (Minn. 2010).

Purpose of bail, civil nature of proceedings, and cause, purpose, and length of
defendant’s absence

       “The primary purpose of bail . . . [is] to insure the prompt and orderly

administration of justice without unduly denying liberty to the accused whose guilt has

not been proved.” Shetsky, 239 Minn. at 471, 60 N.W.2d at 46. One purpose of a bail

bond is to encourage the surety to pay the penalty for failing to ensure the defendant’s

presence without requiring the state to litigate to recover the defaulted amount. Id. at

469, 60 N.W.2d at 45. “Another is to encourage sureties to locate, arrest, and return

defaulting defendants to the authorities to facilitate the timely administration of justice.”

Vang, 763 N.W.2d at 358.

       Here, the defendant’s bench warrant has been active for over two years and his

whereabouts are still unknown. The primary purpose of bail has not been accomplished

because defendant remains absent despite an extension of the bond payment’s due date.

       This factor weighs against reinstatement and discharge of the bail bond.

Good faith of surety as measured by willfulness of defendant

       A defendant’s willfulness or bad faith is attributable to the surety. Shetsky, 239

Minn. at 474, 60 N.W.2d at 48. Appellant has not articulated any good cause for




                                             6
defendant’s absence. There is no indication that the state has done anything to impede

appellant’s efforts to produce defendant.

       This factor weighs against reinstatement and discharge of the bail bond.

Good faith efforts to apprehend defendant

       Appellant claims that they have made efforts to recover defendant by:

investigating defendant’s whereabouts upon notification of forfeiture; speaking to

defendant’s family members; and sending a recovery agent to defendant’s address in

Washington. Appellant twice stated that they were “confident they will have defendant

in custody” given their requested 90-day extensions.

       But even when efforts to retrieve a defendant have been made, this court has

upheld a district court’s refusal to reinstate the bond. See, e.g., Williams, 568 N.W.2d at

888; Rodriguez, 775 N.W.2d at 913–14. After reviewing the record, it appears that

appellant’s efforts to locate defendant have been somewhat sporadic. Despite appellant’s

claims that a second extension would allow them to apprehend defendant, his

whereabouts remain unknown.

       This factor is neutral.

Prejudice to the state

       This factor is “concerned solely with prejudice to the State in prosecuting the

defendant.” Askland, 784 N.W.2d. at 63. Here, defendant remains at large; therefore, the

state has been prejudiced by its inability to prosecute the defendant.

       This factor weighs against reinstatement and discharge.




                                             7
      Because the Shetsky factors weigh against reinstatement and discharge of the bond

and the district court had no duty to notify appellant of defendant’s first missed

appearance, we conclude the district court did not abuse its discretion by forfeiting the

bond and denying appellant’s motion to reinstate and discharge it.

      Affirmed.




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