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                            NO. CAAP-13-0004352

                  IN THE INTERMEDIATE COURT OF APPEALS

                          OF THE STATE OF HAWAI#I

                  STATE OF HAWAI#I, Plaintiff-Appellee,
                                    v.
                   DANIEL WOMACK, Defendant-Appellee,
                                    v.
                           EXODUS BAIL BOND,
                    Real-Party-In-Interest-Appellant


          APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                          (CR. NO. 09-1-0878)


                       SUMMARY DISPOSITION ORDER
    (By:     Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)

          Real-Party-In-Interest-Appellant Exodus Bail Bond
(Exodus) appeals from an "Order Denying Motion to Set-Aside Bail
Forfeiture" (Order Denying Set Aside) filed on October 9, 2013 in
the Circuit Court of the First Circuit (circuit court).1
          On appeal, Exodus contends the circuit court erred when
it: (1) did not find "good cause" to set aside the bail
forfeiture judgment because there was nearly a four year delay
between Defendant-Appellee Daniel Womack's (Womack) failure to
appear for trial call and the written notice given to Exodus of
bail forfeiture; (2) refused to issue a subpoena to the military
to release Womack's records; and (3) denied Exodus's request to


     1
         The Honorable Randal K.O. Lee presided.
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enlarge the search period for a second time to locate Womack.2
          Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, as well as relevant
statutory and case law, we resolve Exodus's points of error as
follows.
          Plaintiff-Appellee State of Hawai#i (State) charged
Womack with: two counts of Assault in the Second Degree, in
violation of Hawaii Revised Statutes (HRS) § 707-711(1)(d)
(2014); two counts of Terroristic Threatening in the First
Degree, in violation HRS § 707-716(1)(e) (Supp. 2012); and
Criminal Property Damage in the Third Degree, in violation of HRS
§ 708-822(1)(b) (2014). The court set bail for $15,000 and
Exodus issued bail.
          On August 6, 2009, Womack failed to appear for trial
call, after which the circuit court issued a bench warrant for
his arrest and orally granted the State's request for bail
forfeiture.
          On April 30, 2013, nearly four years after Womack
failed to appear for trial call, the circuit court filed a
"Judgment and Order of Forfeiture of Bail Bond" (Bail Forfeiture
Judgment). On May 28, 2013, Exodus received written notice from
the State of the Bail Forfeiture Judgment and timely filed its
"Motion to Set-Aside Bail Forfeiture" (Motion to Set Aside) on
June 20, 2013. Thereafter, on October 9, 2013, the circuit court
issued its Order Denying Set Aside.



      2
        Exodus's Opening Brief does not comply with Hawai#i Rules of Appellate
Procedure (HRAP) Rule 28 in several ways, which alone raises the potential for
dismissal of the appeal and/or waiver of issues sought to be raised.
Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995).
For example, the statement of the case does not include references to the
record and two out of three points in the argument section of the brief do not
include citations to authority. HRAP Rule 28(b)(3), (7). However, because we
seek to address cases on the merits where possible, we address Exodus's
arguments to the extent they are discernable. Bettencourt, 80 Hawai#i at 230,
909 P.2d at 558. Exodus's counsel is again cautioned to comply with HRAP Rule
28, and future non-compliance may result in sanctions. State v. Miles, 135
Hawai#i 525, 526n.2, 354 P.3d 178, 179n.2 (App. 2015).

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     (1)     Exodus's Motion to Set Aside Bail Forfeiture
             (a) "Good cause"
          Exodus contends that the circuit court erred when it
did not find "good cause" to set aside the bail forfeiture,
arguing that the nearly four-year delay between Womack's failure
to appear and the written notice given to Exodus constituted good
cause.
          Under HRS § 804-51 (2014),3 once a surety has notice of
a bail forfeiture judgment, the surety has thirty days after
notice to move to set aside the judgment for good cause. See
State v. Diaz, 128 Hawai#i 215, 223, 286 P.3d 824, 832 (2012).
"[G]ood cause why execution should not issue upon the judgment of
forfeiture may be satisfied by the defendant, prior to the
expiration of the thirty-day search period: (1) providing a
satisfactory reason for his or her failure to appear when



     3
         HRS § 804-51 provides:

                   § 804-51 Procedure. Whenever the court, in any
             criminal cause, forfeits any bond or recognizance given in a
             criminal cause, the court shall immediately enter up
             judgment in favor of the State and against the principal or
             principals and surety or sureties on the bond, jointly and
             severally, for the full amount of the penalty thereof, and
             shall cause execution to issue thereon immediately after the
             expiration of thirty days from the date that notice is given
             via personal service or certified mail, return receipt
             requested, to the surety or sureties on the bond, of the
             entry of the judgment in favor of the State, unless before
             the expiration of thirty days from the date that notice is
             given to the surety or sureties on the bond of the entry of
             the judgment in favor of the State, a motion or application
             of the principal or principals, surety or sureties, or any
             of them, showing good cause why execution should not issue
             upon the judgment, is filed with the court. If the motion or
             application, after a hearing held thereon, is sustained, the
             court shall vacate the judgment of forfeiture and, if the
             principal surrenders or is surrendered pursuant to section
             804-14 or section 804-41, return the bond or recognizance to
             the principal or surety, whoever shall have given it, less
             the amount of any cost, as established at the hearing,
             incurred by the State as a result of the nonappearance of
             the principal or other event on the basis of which the court
             forfeited the bond or recognizance. If the motion or
             application, after a hearing held thereon, is overruled,
             execution shall forthwith issue and shall not be stayed
             unless the order overruling the motion or application is
             appealed from as in the case of a final judgment.

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required; or (2) surrendering or being surrendered." State v.
Camara, 81 Hawai#i 324, 330, 916 P.2d 1225, 1231 (1996)
(quotation marks omitted). A satisfactory reason for failure to
appear may be "uncontrollable circumstances [that] prevented
appearance pursuant to the stipulations in the bond, or that the
default of the principal was excusable." Id. at 330, 916 P.2d at
1231 (citation, quotation marks, and brackets omitted).
          In this case, Exodus did not locate Womack during the
search period. Exodus did not provide a satisfactory reason for
why Womack failed to appear for trial call, and Womack was not
surrendered. Thus, under relevant case law, Exodus did not
satisfy the criteria for showing good cause to set aside the Bail
Forfeiture Judgment.
          (b) Prejudicial effect
           Although Exodus argues that the delayed notification of
bail forfeiture should constitute good cause, the delay is more
properly addressed in terms of whether Exodus was prejudiced.
In State v. Ranger Ins. Co. ex rel James Lindblad, Inc., 83
Hawai#i 118, 925 P.2d 288 (1996), the Hawai#i Supreme Court
analyzed whether a delay of nearly three months between the
circuit court's oral granting of the prosecution's motion for
forfeiture of bail and the entry of a bail forfeiture judgment
constituted reversible error. Id. at 121-22 925 P.2d at 291-92.
The supreme court stated that pursuant to HRS §§ 804-1, -7.4(2),
-17, and -51 (1993):
          upon a defendant's unexcused failure to appear for a court
          proceeding, (1) the defendant's default shall be entered,
          (2) the default shall be evidence of the breach of an
          appearance bond, and (3) if the defendant's bail bond is
          forfeited, the court shall immediately enter a forfeiture
          judgment in favor of the State and against the defendant and
          his or her surety.

Id. at 122, 925 P.2d at 292 (internal quotation marks and
brackets omitted). The supreme court concluded that "[h]aving
orally granted the prosecution's motion for bail forfeiture, the
circuit court should, sua sponte, 'immediately' have entered a
forfeiture judgment." Id. (emphasis added). Despite the fact

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that the forfeiture judgment was not entered immediately in
Ranger, the supreme court held that the surety was not prejudiced
by the delay. Id.
          The supreme court concluded that because the surety had
actual notice of the defendant's failure to appear, the surety
likely benefitted from the delay in entering the forfeiture
judgment rather than being prejudiced by it. Id. Therefore, the
supreme court held "that the circuit court's 'delayed' entry of
forfeiture judgment resulted in no prejudice to the [s]urety and
did not render the judgment void or otherwise unlawful." Id.
          In this case, the record is unclear and the circuit
court did not make any findings as to whether Exodus had actual
notice of Womack's failure to appear for trial call on August 6,
2009, prior to the Bail Forfeiture Judgment being entered on
April 30, 2013 and the written notice on May 28, 2013. The
circuit court minutes indicate that at the trial call, Kevin
O'Grady, Womack's attorney, stated that he "did not know where
[Womack] was and he contacted [Exodus] and they also were not in
contact with [Womack]." This indicates that Exodus may have had
notice that Womack was missing and would not appear as required.
However, the transcript from the trial call is not in the record,
and the court minutes are not a substitute for the transcript
because they "are merely prepared for the court's own use."
State v. English, 68 Haw. 46, 52, 705 P.2d 12, 16 (1985)
(citation, quotation marks, and brackets omitted).
          In light of Ranger, if Exodus had actual notice of
Womack's failure to appear at the trial call in or around the
same time period, Exodus was not prejudiced by the delay in
entering the Bail Forfeiture Judgment. The record is not clear
as to whether Exodus did in fact have such actual notice.
Therefore, we conclude under Ranger that the case should be
remanded for the circuit court to determine whether Exodus had
actual notice of Womack's non-appearance in or around the time
period of the trial call, and whether Exodus was prejudiced by
the delayed entry of the Bail Forfeiture Judgment.

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      (2)   Subpoena to the Military
          Exodus contends that the circuit court erred when it
did not issue a subpoena to the military to release Womack's
records to assist Exodus in determining Womack's whereabouts. In
the first hearing on Exodus's Motion to Set Aside on June 25,
2013, the circuit court denied Exodus's request for a subpoena on
the basis that Exodus needed to first do its due diligence in
contacting the military before the court would step in. At the
second hearing held on September 24, 2013, Exodus could not
provide any further information as to what efforts it had made to
contact the military and obtain Womack's records.
          Based on this record, we conclude that the circuit
court did not abuse its discretion in denying Exodus's request to
subpoena Womack's military records.
     (3) Extension of search period
          Exodus contends that the circuit court erred when it
denied Exodus's request to enlarge the search period.4 Based on
Camara, Exodus was required to show good cause within the thirty-
day search period. 81 Hawai#i at 330, 916 P.2d at 1231.
Therefore, the circuit court did not abuse its discretion when it
denied Exodus's request to extend the time to locate Womack even
further beyond the thirty-day search period.
          Therefore,
          IT IS HEREBY ORDERED that the "Order Denying Motion to
Set-Aside Bail Forfeiture," filed on October 9, 2013 in the
Circuit Court of the First Circuit is affirmed to the extent that
Exodus did not show "good cause" to set aside bail forfeiture.
However, this case is remanded to the circuit court for further
proceedings regarding whether Exodus was prejudiced by the




      4
         The circuit court had already continued the hearing on Exodus's Motion
to Set Aside, allowing Exodus additional time to search for Womack.

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delayed entry of the Bail Forfeiture Judgment, consistent with
this decision.
          DATED: Honolulu, Hawai#i, November 27, 2015.


On the briefs:

Anthony T. Fujii,
for Real-Party-In-                         Presiding Judge
Interest-Appellant.

Stephen K. Tsushima,
Deputy Prosecuting Attorney,               Associate Judge
City and County of Honolulu,
for Plaintiff-Appellee.
                                           Associate Judge




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