MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Mar 24 2020, 8:46 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Anthony S. Churchward                                    Curtis T. Hill, Jr.
Fort Wayne, Indiana                                      Attorney General of Indiana
                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A-AAA Bail Bonds, Inc. d/b/a                             March 24, 2020
Markey Bonding,                                          Court of Appeals Case No.
Appellant-Intervenor,                                    19A-MI-2133
                                                         Appeal from the Allen Superior
        v.                                               Court
                                                         The Honorable Wendy W. Davis,
State of Indiana,                                        Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         02D04-1807-F6-830



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020                   Page 1 of 9
                                STATEMENT OF THE CASE
[1]   Appellant-Intervenor, A-AAA Bail Bonds, Inc. (Surety), appeals the trial

      court’s denial of its Motion for Relief from Judgment.


[2]   We affirm.


                                                    ISSUE
[3]   Surety presents this court with one issue on appeal, which we restate as:

      Whether the trial court abused its discretion when it denied Surety’s Motion for

      Relief from Judgment seeking to vacate a late surrender fees judgment against

      it.


                      FACTS AND PROCEDURAL HISTORY
[4]   On July 17, 2018, the State filed an Information, charging Ian Hindle (Hindle)

      with theft, carrying a handgun without a license, and operating a vehicle upon a

      highway while his driver’s license was suspended or revoked. The trial court set

      Hindle’s bail at $3,250. On July 26, 2018, Surety posted an appearance bond in

      that amount for Hindle, and he was released on his own recognizance.


[5]   On September 19, 2018, Hindle failed to appear for his omnibus hearing. The

      trial court issued a warrant for Hindle’s arrest and ordered that he be held

      without bail. The trial court also issued to Surety its Notice of Order to

      Produce Defendant on Surety Bond (Order to Produce) directing Surety to

      produce Hindle in court. The Order to Produce provided that if Surety failed to

      produce Hindle within 120 days; failed to show that Hindle’s failure to appear

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020   Page 2 of 9
      was caused by his illness or death, being held in custody, or was the result of

      improper notice; and failed to prove that Hindle’s absence was without Surety’s

      consent, a late surrender fee would be assessed, with the fees escalating as the

      delay of appearance or explanation grew. The Order to Produce provided that

      if the enumerated conditions were not met within 241 to 365 days, a late fee of

      80% of the face value of the bond would be assessed.


[6]   On July 9, 2019, Hindle appeared in court, and the trial court terminated its

      Order to Produce. The trial court also entered its Order for Late Surrender Fees

      directing the Clerk of Allen County to calculate the late surrender fees owed by

      Surety and ordering Surety to pay those fees. On July 10, 2019, the trial court

      entered its Notice of Judgment against Surety in the amount of 80% 1 of the

      bond it had posted, resulting in a judgment against Surety of $2,600.


[7]   On July 18, 2019, Surety filed its Motion for Relief from Judgment, alleging

      that it had received notice that Hindle had been arrested and held in the

      Huntington County Jail since September 17, 2018, on felony charges in an

      unrelated case. Citing Indiana Code section 27-10-2-12(b), Surety argued that,

      because it had proven within 365 days of its receipt of notice of the Order to

      Produce that Hindle’s failure to appear on September 19, 2018, was caused by

      his incarceration, it was entitled to relief from the $2,600 late surrender fees

      judgment against it. On August 14, 2019, the trial court denied Surety’s motion




      1
        The Notice of Judgment contains a line item indicating that a total forfeiture of 20% of the bond was being
      assessed. This appears to be a scrivener’s error.

      Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020                    Page 3 of 9
       without a hearing, ruling that the late surrender fees had been properly assessed

       because Surety had failed to comply with section 27-10-2-12(b) within 120 days

       of the mailing of the Order to Produce.


[8]    Surety now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                              A. Standard of Review

[9]    Surety appeals following the trial court’s denial of its Motion for Relief from

       Judgment. We review a trial court’s reconsideration of its prior ruling for an

       abuse of discretion. Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967, 970 (Ind.

       2014). An abuse of the trial court’s discretion occurs if the trial court’s decision

       is against the logic and effect of the facts and circumstances before it. Id.

       Inasmuch as our review entails issues of statutory interpretation, those are

       reviewed de novo. Rodriguez v. State, 129 N.E.3d 789, 793 (Ind. 2019).


                                               B. Indiana Bail Law

[10]   Surety contends that the trial court abused its discretion by misapplying Indiana

       Code section 27-10-2-12(b) of Indiana’s bail law to deny it relief from the late

       surrender fees judgment. Indiana Code section 27-10-2-12 delineates a surety’s

       rights and obligations in the event that a defendant for whom it has posted bond

       fails to appear. See I.C. § 27-10-2-12, et seq. If a defendant fails to appear, the

       trial court must issue a warrant for the defendant’s arrest, order the surety to

       surrender him immediately, and order the clerk to issue notice of defendant’s



       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020   Page 4 of 9
failure to appear to the surety. I.C. § 27-10-2-12(a)(1)-(2). Subsection 27-10-2-

12(b) provides in relevant part that, upon a defendant’s failure to appear,


        [t]he bail agent or surety must:


        (1) produce the defendant; or


        (2) prove within three hundred sixty-five (365) days:


        (A) that the appearance of the defendant was prevented:


        ****


        (ii) because the defendant was at the scheduled time of
        appearance or currently is in the custody of the United States, a
        state, or a political subdivision of the United States or a state;


        ****


        [and]


        (B) the defendant’s absence was not with the consent or
        connivance of the sureties.


Subsection 27-10-2-12(c) provides in relevant part that


        [i]f the bail agent or surety does not comply with the terms of
        subsection (b) within one hundred twenty (120) days after the
        mailing of the notice required under subsection (a)(2), a late
        surrender fee shall be assessed against the bail agent or surety as
        follows:


Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020   Page 5 of 9
               ****


               (4) If compliance occurs more than two hundred forty (240) days
               but not more than three hundred sixty-five (365) days after the
               mailing of the notice, the late surrender fee is eighty percent
               (80%) of the face value of the bond.


                                               C. Surety’s Claim

[11]   Surety argues that, pursuant to subsection 27-10-2-12(b), if a surety proves

       within 365 days of the notice to produce that a defendant’s failure to appear

       was caused by the defendant’s incarceration and was without the consent of the

       surety, the surety is not liable for any late surrender fees. Surety more

       specifically argues that the statute previously only provided for the escalating

       late surrender fees as set out in subsection 27-10-2-12(c), and Surety contends

       that the fact that the legislature subsequently added the 365-day time period is

       evidence that subsection (b) was intended to relieve a surety of all late surrender

       fees if it complies within 365 days.


[12]   This court addressed the same claim in Gaeta v. State, 953 N.E.2d 1212 (Ind. Ct.

       App. 2011), trans. denied. On April 25, 2007, the State charged Gaeta with

       multiple felonies, and on May 7, 2007, Roche Surety posted an appearance

       bond for him. Id. at 1213. Gaeta failed to appear for a hearing on February 15,

       2008, and the trial court complied with the bail statute by issuing a warrant for

       Gaeta’s arrest as well as a notice to produce to Roche Surety. Id. 364 days

       after notice of Gaeta’s failure to appear was given to Roche Surety, it produced

       evidence to the trial court that Gaeta’s failure to appear was due to his being


       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020   Page 6 of 9
       terminally ill in Mexico and being unable to travel, all without Roche Surety’s

       consent. 2 Id. at 1213-14. The trial court subsequently found that Roche Surety

       had complied with Indiana Code section 27-10-2-12 between 241 and 365 days

       after the required notice had been given and assessed it a late surrender fee of

       80% of the face value of the bond it had posted for Gaeta. Id. at 1214.


[13]   On appeal, Roche Surety argued that the addition of the 365-day language to

       section 27-10-2-12(b) in 1989 evinced the intent of the legislature “to exempt

       compliance under subsection (b)(2) ‘from the more restrictive late surrender

       time tables imposed under subsection (c) of the statute, at least to the extent that

       the required proof under (b)(2) can be accomplished in 365 days.’” Id. at 1215

       (quoting Gaeta’s Brief). This court disagreed, holding that Indiana Code

       section 27-10-2-12 was not ambiguous and that a plain reading of subsection (c)

       revealed that it “clearly imposes late surrender fees when a bail agent or surety

       does not produce the defendant or show proof under subsection (b)(2) within

       120 days of the mailing of the notice required under (a)(2).” Id. at 1216. The

       court found that the statute then provided for escalating late surrender fees as an

       incentive for sureties to produce a defendant or prove his inability to appear.

       Id. at 1216-17. The court affirmed the trial court’s imposition of the 80% late

       surrender fee because Roche Surety had not complied with subsection (b) until




       2
         In addition to proving that a defendant’s failure to appear was caused by incarceration, I.C. § 27-10-2-
       12(b)(2)(A)(i) provides that a surety may prove that a defendant’s failure to appear was caused by
       “defendant’s illness or death[.]”

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020                      Page 7 of 9
       more than 240 days but not more than 365 days after the notice of Gaeta’s

       failure to appear had been issued by the trial court. Id. at 1217.


[14]   Surety’s claim is identical to that already considered and rejected by this court

       in Gaeta. Surety does not address Gaeta, let alone convince us that its holding

       was flawed or inapplicable to its case. Surety does not contend that the statute

       at issue is ambiguous or in need of construction. We find Gaeta to be

       persuasive and see no need to revisit its reasoning and conclusions.


[15]   In its Order to Produce, the trial court provided Surety with notice of the

       provisions of Indiana Code section 27-10-2-12 and the possibility of late

       surrender fees. Surety produced Hindle on July 9, 2019, and on July 18, 2019,

       it filed its Motion for Relief from Judgment claiming that Hindle’s failure to

       appear was due to his incarceration. Surety does not deny that both of these

       events took place within 241 and 365 days of the mailing of the Order to

       Produce. Because Surety did not comply until that timeframe, the trial court

       properly assessed Surety a late surrender fee of 80% of the face value of the

       bond it had issued. See I.C. § 27-10-2-12(c)(4). Because the trial court properly

       applied the statute, we find no abuse of discretion in its denial of Surety’s

       Motion for Relief from Judgment. See Mitchell, 3 N.E.3d at 970.


                                             CONCLUSION
[16]   Based on the foregoing, we conclude that the trial court properly applied

       Indiana Code section 27-10-2-12 and, therefore, it did not abuse its discretion

       when it denied Surety’s Motion for Relief from Judgment.

       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020   Page 8 of 9
[17]   Affirmed.


       Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 19A-MI-2133 | March 24, 2020   Page 9 of 9
