[Cite as State v. Lovett, 2015-Ohio-5509.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :   JUDGES:
   Plaintiff-Appellee                           :
                                                :   Hon. William B. Hoffman, P.J.
-vs-                                            :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
JOSHUA LOVETT                                   :
   Defendant-Appellee                           :   Case No. 15-CA-28
                                                :
-and-                                           :
                                                :
CASTLE BAIL BONDS                               :
  Appellant                                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Municipal Court, Case No. 14 CRB 2316



JUDGMENT:                                           REVERSED AND REMANDED




DATE OF JUDGMENT ENTRY:                             December 30, 2015




APPEARANCES:

For Plaintiff-Appellee State of Ohio:               For Appellant Castle Bail Bonds:

CAROLINE J. CLIPPINGER                              BLAISE KATTER
40 West Main St.                                    792 Sheridan Ave.
Newark, OH 43055                                    Columbus, OH 43209
Licking County, Case No.15-CA-28                                                       2

Delaney, J.

       {¶1} Appellant Castle Bail Bonds (“Castle”) appeals from the March 30, 2015

Judgment Entry of the Licking County Municipal Court declaring forfeiture of defendant-

appellee Joshua Lovett’s bond and rendering judgment in favor of appellee state of

Ohio in the amount of $5,000. Lovett is not a party to this appeal.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} Lovett was charged with several offenses in the Licking County Municipal

Court and was given a $5000 surety bond at arraignment. Appellant Castle Bail Bonds

posted the bond on November 25, 2014.

       {¶3} On February 4, 2015, Lovett failed to appear for bench trial. The trial court

issued a Judgment Entry ordering the Clerk to issue a warrant for Lovett’s arrest and

that the case should be set for bond forfeiture hearing, which was duly scheduled for

March 6, 2015.

       {¶4} The file contains a letter from Castle to the trial court filed on March 6,

2015. The letter states Lovett is currently incarcerated on new charges in Franklin

County and “[d]ue to [Lovett’s] current incarceration, Castle Bail Bonds would like to

request that it be removed from [Lovett’s] bond.”

       {¶5} On March 30, 2015, the trial court journalized a Judgment Entry stating

the bond forfeiture hearing scheduled for March 6 went forward and Lovett failed to

appear but the surety, through agent Eric Castle, did appear. The entry notes Castle

submitted the paperwork regarding Lovett’s incarceration and states as follows:

              * * * *.
Licking County, Case No.15-CA-28                                                       3


                         The Court has reviewed the records from the Franklin

              County Common Pleas Court and learned that the same surety

              posted bond on the defendant’s behalf in Case No. 14CR-4467 on

              October 7, 2014.       This occurred prior to the surety posting the

              defendant’s bond in the case at bar on November 25, 2014. The

              Court finds that the surety was aware at the time the bond in this

              case was posted that the defendant was facing a possible prison

              sentence for the pending felonies in Franklin County.

              * * * *.

       {¶6} The trial court went on to find Castle failed to surrender Lovett in advance

of his appearance date and Lovett failed to appear as ordered, but Castle assumed the

risk that Lovett’s appearance could not be secured in light of the pending felony charges

in Franklin County.        Therefore, pursuant to R.C. 2937.40, the trial court declared

forfeiture of the bond and rendered judgment against Castle in the amount of $5,000.

       {¶7} On April 23, 2015, Castle filed a Motion to Reconsider Bond Forfeiture

and the trial court overruled the motion the next day.

       {¶8} Castle now appeals from the judgment entry of the trial court dated March

30, 2015.

       {¶9} Castle raises two assignments of error:

                                 ASSIGNMENTS OF ERROR

       {¶10} “I. THE TRIAL COURT ERRED BY NOT HAVING A SHOW-CAUSE

HEARING BEFORE ENTERING JUDGMENT AGAINST CASTLE BAIL BONDS.”
Licking County, Case No.15-CA-28                                                           4


       {¶11} “II. THE TRIAL COURT ERRED BY NOT ALLOWING CASTLE BAIL

BONDS TO BE DISCHARGED FROM THE BOND UPON WRITTEN APPLICATION.”

                                        ANALYSIS

                                             I.

       {¶12} In its first assignment of error, Castle argues the trial court erred in failing

to schedule a show-cause hearing following its declaration of the forfeiture of the bond.

We agree.

       {¶13} An appellate court reviews a trial court's bond forfeiture decision using an

abuse of discretion standard of review. State v. Lee, 9th Dist. Lorain No. 11CA010083,

2012-Ohio-4329, ¶ 9. In order to find an abuse of discretion, the reviewing court must

determine that the trial court’s decision was unreasonable, arbitrary, or unconscionable

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,

219, 450 N.E.2d 1140 (1983).

       {¶14} R.C. 2937.35(C) describes the process to be followed upon declaration of

bond forfeiture and states in pertinent part with regard to sureties:

                     As to recognizances the magistrate or clerk shall notify the

              accused and each surety within fifteen days after the declaration of

              the forfeiture 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 forty-five nor more than

              sixty days from the date of mailing notice, why judgment should not
Licking County, Case No.15-CA-28                                                       5


             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.

      {¶15} In this case, upon the declaration of forfeiture the trial court proceeded to

enter judgment against Castle. Pursuant to the statute, Castle should have been given

the opportunity to show cause why judgment should not be entered against it. We

therefore find the trial court abused its discretion in prematurely entering judgment

against Castle.

      {¶16} Appellant’s first assignment of error is sustained and this matter is

remanded to the trial court for the purpose of a show cause hearing as described in

R.C. 2937.35(C).

                                               II.

      {¶17} In its second assignment of error, appellant argues the trial court should

have permitted Castle to be removed from the bond. In light of our finding in the first

assignment of error, this argument is premature because it remains to be seen what

decision will result from the show cause hearing.
Licking County, Case No.15-CA-28                                                             6


       {¶18} We also note that the trial court’s judgment entry states a bond forfeiture

hearing was held on March 6, 2015. In this assignment of error, Castle argues about

evidence presented at that hearing and arguments made before the trial court. We

have not been provided with the record of the hearing, however.

       {¶19} In reviewing assigned error on appeal we are confined to the record that

was before the trial court as defined in App.R. 9(A). This rule provides that the record

on appeal consists of “[t]he original papers and exhibits thereto filed in the trial court, the

transcript of proceedings, if any, including exhibits, and a certified copy of the docket

and journal entries prepared by the clerk of the trial court.”

       {¶20} App.R. 9(B) also provides in part “ * * *[w]hen portions of the transcript

necessary for resolution of assigned errors are omitted from the record, the reviewing

court has nothing to pass upon and thus, as to those assigned errors, the court has no

choice but to presume the validity of the lower court’s proceedings, and affirm.”

       {¶21} In Knapp v. Edwards Laboratories the Ohio Supreme Court stated: “The

duty to provide a transcript for appellate review falls upon the appellant.            This is

necessarily so because an appellant bears the burden of showing error by reference to

matters in the record.” 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980).

       {¶22} Appellant has not provided a transcript of the bond forfeiture hearing on

March 6.1 Without a transcript, we must presume the regularity of the trial court’s

proceeding. State v. Ellis, 5th Dist. Ashland No. 11-COA-015, 2011-Ohio-5646, *2.



1 We note in the motion to reconsider Castle stated no hearing took place because the
bailiff told Eric Castle, the agent, that the trial court was unavailable. The same motion
also states, though, that Castle submitted the relevant documentation of Lovett’s
incarceration at the hearing. We are constrained by the record before us, or rather, lack
thereof.
Licking County, Case No.15-CA-28                                                        7


       {¶23} Although we concluded in our discussion of the first assignment of error

that the trial court abused its discretion in failing to schedule a show-cause hearing, we

are not prepared to reach the merits of whether Castle should be released from the

bond on the record before us.

       {¶24} Castle’s second assignment of error is thus overruled.



                                     CONCLUSION

       {¶25} Castle’s first assignment of error is sustained and its second assignment

of error is overruled as premature.     The trial court’s judgment of March 30, 2015

entering judgment against Castle is reversed and this matter is remanded for a show

cause hearing.

By: Delaney, J. and

Hoffman, P.J.

Baldwin, J., concur.
