                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS


ERVIN PAGE, JR., Surety,
Petitioner
                                                                                      FILED
                                                                                   June 3, 2016
vs) No. 15-0409 (Boone County 14-F-72 and 14-B-149)                                 released at 3:00 p.m.
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
STATE of WEST VIRGINIA and                                                           OF WEST VIRGINIA

DAVID D. GRIFFY, SR.,
Defendant Below, Respondent



                                MEMORANDUM DECISION

        Petitioner Ervin Page, Jr., by counsel, Timothy J. LaFon, appeals the Circuit Court of
Boone County’s order denying his motion to set aside the bond forfeiture entered in defendant
David D. Griffy, Sr.’s (hereinafter “Griffy”) criminal actions. Petitioner posted bond for Griffy
in his underlying criminal matters and upon Griffy’s failure to appear for trial, the circuit court
ordered the bond forfeited, entered a judgment of default, and ordered the judgment executed.
Upon petitioner’s motion to set aside the forfeiture, the circuit court found that the requirements
of West Virginia Code § 62-1C-9 (1965) were satisfied and denied petitioner’s motion. The
State, by counsel, Jonathan E. Porter, filed a summary response in support of the circuit court’s
order.

        This court has considered the parties’ briefs, oral arguments, and the appendix record on
appeal. Under the limited circumstances presented in this case and because of the clear error
committed below, we find a memorandum decision reversing the circuit court appropriate under
Rule 21 of the West Virginia Rules of Appellate Procedure. As explained below, we conclude
that the circuit court erred by failing to employ the analysis required in syllabus point three of
State v. Hedrick, 204 W. Va. 547, 514 S.E.2d 397 (1999) and therefore reverse and remand for
further proceedings as necessary and entry of an order consistent herewith.

                      I. FACTUAL AND PROCEDURAL HISTORY

        The facts of this case are somewhat difficult to discern given the scant appendix record
provided. Nevertheless, it appears that on May 6, 2014, Griffy was indicted on three counts of
nighttime burglary, grand larceny and conspiracy and placed on bond in Criminal Action No. 14­
F-72.1 Griffy’s bond was apparently thereafter revoked and he was remanded to the
Southwestern Regional Jail. Thereafter, on July 8, 2014, Griffy was charged in Boone County

1
 The parties fail to identify the precise charges against Griffy, nor does the record contain any
charging documentation. This information is gleaned from the docket sheet.


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Magistrate Court with receiving and transferring stolen property in Criminal Action No. 14-B­
149.2 Bond for the two matters was set at $120,000.00 on August 19, 2014. On August 20,
2014, a bond was posted by petitioner and Griffy’s mother, Edna Griffy, in the amount of
$120,000.00.3 A condition of the bond required Griffy to report to home confinement within
twenty-four hours of posting bond, which he failed to do.

         Trial in Griffy’s criminal matter was set for September 9, 2014, for which a jury was
assembled and a witness transported from jail. Griffy failed to appear for trial. Two days later
on September 11, 2014, the State moved to forfeit the bond. On September 22, 2014, the circuit
court ordered the bond forfeited and a judgment of default against the bond entered; the court
stayed the order until an October 16, 2014, show cause hearing and ordered the circuit clerk to
provide ten days’ notice of the hearing to Ms. Griffy and petitioner as required by West Virginia
Code § 62-1C-9.4 As to petitioner, the circuit clerk sent three notices to three separate addresses:
the first two were returned for insufficient address and “no such address.”5 The third was simply
unclaimed. Neither petitioner nor Ms. Griffy appeared at the hearing; therefore, on December 4,
2014, the circuit court entered an order of execution on the bond.

        Two days prior to the entry of the above order of execution, on December 2, 2014,
petitioner moved to set aside the bond forfeiture arguing that he did not receive ten days’ notice
of the show cause hearing. Moreover, petitioner stated, upon information and belief, that the
reason Griffy did not appear for his trial was because he was incarcerated in South Carolina. A
hearing on the motion to set aside was held on February 10, 2015, at which hearing petitioner

2
  The State’s motion to forfeit the bond at issue in this case indicates that while on bond for the
charges in Criminal Action No. 14-F-72, Griffy was 1) charged with shoplifting and possession
of a stolen vehicle on June 24, 2014; 2) charged with felony fleeing from an officer in a vehicle
on May 16, 2014; and 3) charged and indicted for grand larceny, possession of a stolen vehicle,
obstructing and fleeing from officers on foot from an incident occurring in February, 2014. It is
unclear whether the Magistrate Court charges in 14-B-149 stem from or are the same as any of
these incidents/charges.
3
 The bond placed an encumbrance on two pieces of petitioner’s property and two pieces of Edna
Griffy’s property. Ms. Griffy did not apparently challenge the bond forfeiture below and
consequently does not appear as a party in this appeal.
4
  “When a forfeiture has not been set aside, the court . . . shall enter a judgment of default and
execution may issue thereon: Provided . . . [t]hat if the deposit for bail be by a person other than
the defendant . . . such person making the deposit . . . shall be given ten days’ notice by certified
mail at his last-known address to appear and show cause why a judgment of default should not
be entered.” (emphasis added).
5
  Notice was sent to 188 B Rutledge Road, Charleston, West Virginia, which was returned as
“insufficient address.” A second notice was sent to 324 Call Road, Charleston, West Virginia,
which was returned as “no such address.” The third was sent to 388 Call Road, Charleston, West
Virginia, which was unclaimed and returned to sender on October 3, 2014, thirteen days before
the show cause hearing.
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failed to appear because he was likewise incarcerated. A transcript of this hearing is not
contained in the appendix record.

        On April 8, 2015, the circuit court entered an order denying the motion to set aside the
bond forfeiture. As to the notice issue, the circuit court found that petitioner was provided notice
at “the addresses . . . that were known by the clerk of this Court[.]”6 As to the forfeiture issue,
the circuit court found that Griffy was apprehended “well after” the show cause hearing and that
petitioner did nothing to ensure Griffy complied with his required “report-in” at home
confinement, despite being advised by Griffy’s counsel that he did not report.7 The court further
found that petitioner “gave no information” nor “played any role in the capture and arrest of the
defendant.” Finally, the court found that petitioner “had the opportunity to file a bail piece,
withdrawing his bail posting,” but failed to do so. This appeal followed.

                                  II. STANDARD OF REVIEW

        In the seminal case outlining the standards for bond forfeiture, as discussed more fully
infra, this Court held that “[a] trial court’s decision on whether to remit, under Rule 46(e)(4) of
the West Virginia Rules of Criminal Procedure, a previously forfeited bail bond will be reviewed
by this Court under an abuse of discretion standard.” Syl. Pt. 1, Hedrick, 204 W. Va. 547, 514
S.E.2d 397. Moreover, “[t]he surety bears the burden of establishing that the trial court abused
its discretion in refusing to remit, pursuant to Rule 46(e)(4) of the West Virginia Rules of
Criminal Procedure, all or part of a previously forfeited bail bond.” Syl. Pt. 2, Id. With these
standards in mind, we proceed to the parties’ arguments.

                                        III. DISCUSSION

        Petitioner argues that the circuit court erred by failing to conduct the required analysis set
forth in Hedrick and that further, he was deprived of due process by not receiving proper notice
of the show cause hearing. The State counters that the circuit court “implicitly” applied the
Hedrick factors, as relevant to this particular case, and therefore committed no reversible error.

       Forfeiture and/or setting aside of forfeiture is governed by West Virginia Code § 62-1C-7
through -12 and as incorporated into West Virginia Rule of Criminal Procedure 46. West
Virginia Rule of Criminal Procedure 46, provides, in part, that “[i]f there is a breach of condition
of a bond, the circuit court shall declare a forfeiture of the bail.” W.V.R. Crim. Proc. 46(e)(1);
see W. Va. Code § 62-1C-7 (2008). However, “[t]he court may direct that a forfeiture be set

6
  There is no indication in the record from where these addresses were derived. Petitioner’s
counsel stated during oral argument that at least one of them was an address provided in the bond
paperwork.
7
  The discrepancy between petitioner’s motion and the court’s order about whether Griffy was
incarcerated in North Carolina or South Carolina is unexplained. Moreover, there is nothing in
the record to indicate when or why Griffy was apprehended out of state, or when and how he was
returned to West Virginia. The docket sheet, however, does suggest that he was ultimately
returned as activity on his criminal charges resumed.
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aside, upon such conditions as the court may impose, if it appears that justice does not require
the enforcement of the forfeiture.” W.V.R. Crim. Proc. 46(e)(2) (emphasis added); see W. Va.
Code § 62-1C-8 (1965). In that regard, this Court developed particularized and extensive
guidelines for lower courts to utilize in determining whether a bail bond should be set aside or
remitted, in whole or in part:

               When a trial court is asked to remit all or part of a previously forfeited bail
       bond, pursuant to Rule 46(e)(4)8 of the West Virginia Rules of Criminal
       Procedure, the court shall consider the following criteria to the extent that they are
       relevant to the particular case under consideration: (1) the willfulness of the
       defendant’s breach of the bond’s conditions; (2) the cost, inconvenience and
       prejudice suffered by the government as a result of the breach; (3) the amount of
       delay caused by the defendant’s default and the stage of the proceedings at the
       time of his or her disappearance; (4) the appropriateness of the amount of the
       bond; (5) the participation of the bondsman in rearresting the defendant; (6)
       whether the surety is a professional or a friend or member of the defendant’s
       family; (7) the public interest and necessity of effectuating the appearance of the
       defendant; and (8) any explanation or mitigating factors presented by the
       defendant. These factors are intended as a guide and do not represent an
       exhaustive list of all of the factors that may be relevant in a particular case. All of
       the factors need not be resolved in the State’s favor for the trial court to deny
       remission in full or in part. Moreover, it is for the trial court to determine the
       weight to be given to each of these various factors.

Syl. Pt. 3, Hedrick, 204 W. Va. 547, 514 S.E.2d 397 (emphasis added) (footnote added).

         There appears to be little question that the circuit court, at least in its order, did not
expressly or comprehensively address the Hedrick factors. At best, the circuit court addressed
the first—willfulness of breach—and fifth—petitioner’s lack of effort in apprehending Griffy—
factors.9 The circuit court’s order fails entirely to address the cost, inconvenience and prejudice
to the State, the amount of delay caused, the appropriateness of the amount of the bond, the
precise identity of the surety, and the public interest in effectuating Griffy’s appearance.
Moreover, to whatever extent these factors were considered not to be relevant, the order makes



8
  “Remission” of a forfeited bail bond is governed by West Virginia Rule of Criminal Procedure
46(e)(4), but provides merely that bond may be remitted “under the conditions applying to the
setting aside of forfeiture in paragraph (2) of this subdivision.”
9
  In fairness to the circuit court, however, petitioner appeared in his motion to simply be arguing
about notice. Petitioner made merely an oblique reference to equity in his motion, noting briefly
that since Griffy was in custody in South Carolina, he would be subject to extradition. Since a
transcript of the hearing is not in the appendix, it is unclear if the parties augmented their
arguments orally to specifically address the Hedrick factors or if the circuit court more fully
addressed the factors.


                                                 4

no such finding.10 We recognize that our holding in Hedrick is issued with the caveat that the
factors “are not exhaustive,” are to be analyzed only as “relevant in a particular case,” and are to
be given the weight deemed appropriate by the circuit court. However, it is plain that an analysis
under the construct of Hedrick is mandatory as evidenced by the language indicating the circuit
“shall consider the following criteria . . .” Syl. Pt. 3, Hedrick (emphasis added). To whatever
extent the non-exhaustive factors in Hedrick are inapplicable, irrelevant, or even inadequate
under the circumstances, it is incumbent upon the circuit court to indicate as much, along with
any supportive findings or analysis.

        As should be apparent, however, our decision does not purport to pass on the issue of
whether or not forfeiture is warranted under the particular facts and circumstances of this case.
Without question, the circuit court has extraordinarily broad latitude in assessing the Hedrick
factors and their effect on an impending forfeiture. Nothing herein should be construed as
prematurely infringing upon the discretion afforded under Hedrick, rather, we remand for
development of a supportive record and analysis consistent therewith. We therefore conclude
that the circuit court erred in failing to conduct a proper analysis pursuant to Hedrick and remand
for any additional evidentiary development or proceedings as necessary to form the basis of a
proper Hedrick analysis.11


                                       IV. CONCLUSION

       For the reasons set forth above, this Court reverses the April 7, 2015, order of the Circuit
Court of Boone County and remands for further proceedings as appropriate.

                                                                      Reversed and remanded.



10
   Moreover, the record is of such a condition that it is difficult, if not impossible, for this Court
to make an independent assessment of the Hedrick factors. Even the circumstances surrounding
Griffy’s apprehension in one of the Carolinas—likely one of the most important factors—is
completely undeveloped or supported in the record.
11
   As to petitioner’s contention that he failed to receive notice of show cause hearing, we
likewise find that this issue was insufficiently developed below, but is ultimately rendered moot
by our reversal and remand. However, we note petitioner’s concession during oral argument that
one of the notices sent reached the proper address as provided by petitioner, but was simply
“unclaimed.” West Virginia Code § 62-1C-9 requires that notice be sent, certified mail, to “his
[the surety’s] last-known address.” This Court has stated that “due process does not require that
the method of service absolutely provide a defendant with notice. It is sufficient if it is
reasonably calculated to provide such notice.” Hartwell v. Marquez, 201 W. Va. 433, 440, 498
S.E.2d 1, 8 (1997); see also Nobles v. Sidiropolis, 182 W.Va. 217, 387 S.E.2d 122 (1989)
(finding refusal to claim certified mail inadequate to defeat notice where statute requires nothing
further).



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ISSUED: June 3, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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