[Cite as N. Olmsted v. Ness, 2011-Ohio-3076.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                           JOURNAL ENTRY AND OPINION
                                    No. 96261



                       CITY OF NORTH OLMSTED
                                                      PLAINTIFF-APPELLEE

                                                vs.

                           DEBORAH NESS, ET AL.
                                                      DEFENDANT

                                [Appeal By Ted Bowman]



                                 JUDGMENT:
                           REVERSED AND REMANDED


                                     Civil Appeal from the
                                  Rocky River Municipal Court
                                     Case No. 09CRB1199


        BEFORE: Celebrezze, J., Blackmon, P.J., and Stewart, J.
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      RELEASED AND JOURNALIZED:               June 23, 2011


ATTORNEY FOR APPELLANT

James Alexander, Jr.
Pittman & Alexander
2490 Lee Road
Suite 115
Cleveland Hts., Ohio 44118


ATTORNEY FOR APPELLEE

Michael Gordillo
City Prosecutor
City of North Olmsted
5200 Dover Center Road
North Olmsted, Ohio 44070



FRANK D. CELEBREZZE, JR., J.:

      {¶ 1} Ted Bowman (“appellant”) appeals the judgment of the Rocky

River Municipal Court denying his application for remission of the surety

bond he posted on behalf of the defendant, Deborah Ness, (“defendant”). The

appellee did not file a brief in this appeal; therefore, in considering this

appeal, we “may accept the appellant’s statement of the facts and issues as

correct and reverse the judgment if appellant’s brief reasonably appears to

sustain such action.” App.R. 18(C). After careful review of the record and

relevant case law, we reverse the judgment of the lower court.
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     {¶ 2} On June 5, 2009, the city of North Olmsted charged the defendant

with disorderly conduct in violation of North Olmsted Codified Ordinances

509.03(B)(2) and possession of drug paraphernalia in violation of R.C.

2925.14(C)(2). On October 29, 2009, the defendant pled no contest to the

possession of drug paraphernalia charge. On November 9, 2009, the court

imposed a sentence on the defendant that required a jail term, a fine, and

community control. The defendant’s disorderly conduct charge was nolled.

     {¶ 3} On May 15, 2010, a probation violation charge was filed against

the defendant pursuant to the November 9, 2009 judgment.           On May 20,

2010, the trial court arraigned the defendant on the probation violation

charge and set a bond at $10,000 (ten percent).        On May 21, 2010, the

defendant executed the bond, which is captioned “recognizance,” and agreed

to appear in the Rocky River Municipal Court on May 24, 2010.               In

accordance   with   the   recognizance    agreement,   appellant   posted   the

defendant’s $1,000 bond as suretor. When the defendant failed to appear in

court on May 24, 2010, a capias was issued and an oral hearing was set for

appellant to appear on May 27, 2010 to show cause why the bond should not

be forfeited. On May 27, 2010, appellant appeared in court but was unable

to locate or produce the defendant. On that date, the court entered an order

forfeiting the bond. In furtherance of the forfeiture, the court entered an
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order on June 9, 2010 applying $686 of the bond to “other fines” and $314 to

traffic bond forfeiture.

      {¶ 4} On November 19, 2010, appellant filed an application for

remission of penalty or for vacation of the same with the trial court. On

November 23, 2010, the application was denied without a hearing.

Appellant initiated this appeal from the denial of his application for a return

of the bond. He raises two assignments of error.

                                 Law and Analysis

      {¶ 5} In his first assignment of error, appellant argues that “[t]he trial

court erred as a matter of law when it improperly forfeited defendant’s bond.”

 For the reasons forthcoming, we agree.

      {¶ 6} The decision to remit a forfeited bond is a matter within the

sound discretion of the trial court and will not be reversed absent an abuse of

discretion. State v. Patton (1989), 60 Ohio App.3d 99, 101, 573 N.E.2d 1201.

An abuse of discretion connotes that the court’s attitude is arbitrary,

unreasonable, or unconscionable.      Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140.

      {¶ 7} Crim.R. 46(I) provides:   “Any person who fails to appear before

any court as required is subject to the punishment provided by the law, and

any bail given for the person’s release may be forfeited.”
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      {¶ 8} When the defendant failed to appear in court on May 24, 2010,

the bail was clearly subject to forfeiture. However, pursuant to R.C. 2937.36,

the trial court was required to meet certain statutory requirements upon

ordering the forfeiture. R.C. 2937.36, provides in pertinent part:

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

court adjudging forfeiture shall proceed as follows: * * * (C) As to

recognizances, he shall notify accused and each surety by ordinary mail at the

address shown by them in their affidavits of qualification or on the record of

the case, 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, and which shall be not less than twenty nor more than thirty days

from date of mailing 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 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. The proceeds of sale shall be received by the clerk or magistrate

and distributed as on forfeiture of cash bail.” (Emphasis added.)
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      {¶ 10} After careful review of the record, we find that the trial court did

not follow the statutory procedure established in R.C. 2937.36(C), which

requires the court to provide a timely show cause hearing before judgment

forfeiting the bond can be entered against a surety. Under R.C. 2937.36(C),

a surety is entitled to at least 20 days notice before he is required to appear in

court, either to produce the defendant or to show cause as to why he cannot

produce the defendant. In the instant case, appellant did not receive at least

20 days notice before the court entered judgment against him. The record

reflects that, prior to forfeiting appellant’s bond, the trial court only gave

appellant a period of three days to produce the defendant to the court from

the date of the defendant’s failure to appear on May 24, 2010. Additionally,

there was nothing in the record showing service of the new hearing date upon

the defendant.

      {¶ 11} Consequently, we find that the trial court abused its discretion

when it entered judgment against appellant on the bail bond without

complying with the provisions of R.C. 2937.36(C). See State v. Green, Wayne

App. Nos. 02CA0014 and 02CA0019, 2002-Ohio-5769, ¶16 (“surety and agent

did not receive at least 20 days notice on a show cause hearing before the

court entered judgment against surety”); State v. Ramey, Lucas App. No.

L-08-1040, 2008-Ohio-3275, ¶12 (“A trial court abuses its discretion when it
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does not follow the period required by the statute by giving at least 20 days

notice o[f] a show cause hearing to the surety and agent before they must

appear in court.”).

       {¶ 12} Granted,       the     defendant       breached      a    condition      of    bond.

Nevertheless, the trial court failed wholly in following the mandates

prescribed by R.C. 2937.36. As such, this court is left with no other recourse

but to vacate the forfeiture of bond and enter judgment in favor of appellant.

       {¶ 13} The forfeiture of bond is hereby vacated, and judgment is hereby

entered in favor of appellant entitling him to full reimbursement of the

previously tendered bond. In light of the foregoing, appellant’s remaining

assignment of error is rendered moot.1

       {¶ 14} This cause is reversed and remanded to the lower court for

further proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

Rocky River Municipal Court to carry this judgment into execution.



          Appellant’s second assignment of error states: “The trial court abused its discretion when
       1


it denied appellant’s motion for remission without a hearing.”
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     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA ANN BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
