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       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                                July 17, 2018 Session

           STATE OF TENNESSEE v. SAUL ALDABA-ARRIAGA

                    IN RE: RADER BONDING COMPANY

               Appeal from the Criminal Court for Davidson County
                   No. 2016-C-1186 Mark J. Fishburn, Judge


                            No. M2017-01687-CCA-R3-CD



ROBERT H. MONTGOMERY, JR., J., dissenting.


       I dissent from the majority’s holding that the trial court erred in denying Rader
Bonding Company’s motion for exoneration and in denying the motion to alter or amend
the judgment of forfeiture.

       The majority concludes that the grand jury’s return of an indictment for fourth
offense DUI did not initiate new criminal proceedings and was instead a continuation of
the previous proceedings from general sessions court, and I agree. I also agree with the
majority’s conclusion that neither the State nor the grand jury exceeded its authority by
increasing the charges and by including additional charges in the indictment.

       However, I cannot join in the majority’s conclusions that the State increased
Rader’s risk under the bond contract by obtaining an indictment for fourth-offense DUI,
an offense greater than the second-offense DUI which was charged at the time Rader
entered into the bond contract, and that, as a result, Rader was discharged from its
obligation and was entitled to exoneration based upon the increased risk. In my view, the
$10,000 bond set by the judicial commissioner remained in full force and effect for all
charges resulting from the criminal activity that formed the basis for warrants GS742122
and GS742123, even after the grand jury considered the case and issued its indictment
containing a greater DUI offense and additional charges. As noted by the majority,
Tennessee Code Annotated section 40-11-130(a)(1) provides, in pertinent part:

            If a defendant in a criminal case executes a bond or recognizance
      before any court or other person authorized by law to take a bond or
       recognizance for the defendant’s personal appearance before a court to
       answer a criminal charge and there has not been a disposition pursuant to §
       40-11-138(b), the bond or recognizance shall be valid and binding upon the
       defendant and the defendant’s sureties, until the time allowed by law for the
       defendant to appeal a finding of guilt to the court of criminal appeals.

T.C.A. § 40-11-130(a)(1) (2012).

       Code section 40-11-138(b) requires that a bail bondsman or surety be released
from the obligation for a defendant’s bond if the criminal charge is disposed by acquittal,
settlement agreement, diversion, or retirement. See id. § 40-11-138(b)(1) (Supp. 2017).
The majority states that the second offense DUI charge had not been disposed of within
the meaning of Tennessee Code Annotated section 40-111-138, and I agree.

       Code section 40-11-130(a)(1) states that the bond in a criminal case remains in
effect until disposition. Tennessee Rule of Criminal Procedure 8 provides for mandatory
joinder of offenses in the same charging instrument if the offenses are:

             (A)     based on the same conduct or arise from the same criminal
       episode;

              (B)    within the jurisdiction of a single court; and

              (C) known to the appropriate prosecuting official at the time of
       the return of the indictment(s), presentment(s), or information(s).

Tenn. R. Crim. P. 8(a)(1)(A)-(C).

        The affidavits accompanying the general sessions warrants in this case identify the
criminal conduct and criminal episode which form the basis for the warrants. This
information was available to Rader at the time it undertook the Defendant’s bond. After
Rader agreed to act as the Defendant’s surety, the events in this case unfolded
predictably, with the matter proceeding to the grand jury, and several charges related to
the October 4, 2015 criminal episode were returned in a single indictment. Although the
affidavits state that the Defendant “was arrested for DUI 2nd Offense due to a prior DUI
1st offense conviction in Maury County in 2014,” the affidavits state elsewhere that the
Defendant had “a revoked license due to prior DUI charges (two DUI 1st Offenses).”
Thus, the affidavits contained information from which a reader could conclude that the
alleged DUI was, at a minimum, the Defendant’s third such offense. The affidavits also
stated that the Defendant’s “non-governmental state I.D. card” had been checked against
“information from . . . MNPD computers” to ascertain the status of the Defendant’s
driver’s license privileges. From this information, a reader could conclude that further

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information as to the Defendant’s identity, driving record, and driving status might exist.
In addition, the affidavits stated that the driver of the other vehicle was injured, from
which a reader could conclude that additional charges related to the bodily injury might
be forthcoming. The charges that were returned by the grand jury after Rader undertook
the Defendant’s bond were all within the realm of foreseeability, based upon the
information provided in the general sessions warrants.

       Nevertheless, the majority reasons that the increase in the DUI offense from
second offense DUI to fourth offense DUI amounted to a unilateral alteration in the terms
of the bonding agreement without statutory authority. I disagree. The majority relies
upon Florida law as persuasive authority in this regard, but I remain unpersuaded. As the
majority notes, the State and the grand jury were not limited by the actions and findings
of the general sessions court. See State v. D’Anna, 506 S.W.2d 200, 203 (Tenn. Crim.
App. 1973). The elements of second offense DUI and fourth offense DUI are the same:
only the punishment differs. See T.C.A. §§ 55-10-401 (Supp. 2013) (amended 2014), 55-
10-402(2)(A), (4) (Supp. 2014) (amended 2015, 2016, 2018).

       In setting a bond, a magistrate or judge must take into account the following
factors:

              (1)    The defendant’s length of residence in the community;

              (2)    The defendant’s employment status and history;

              (3)    The defendant’s family ties and relationships;

              (4)    The defendant’s reputation, character and mental condition;

              (5)    The defendant’s prior criminal record, including prior
       releases on recognizance or bail;

              (6)    The identity of responsible members of the community who
       will vouch for the defendant’s reliability;

               (7)   The nature of the offense and the apparent probability of
       conviction and the likely sentence, insofar as these factors are relevant to
       the risk of nonappearance; and

            (8)    Any other factors indicating the defendant’s ties to the
       community or bearing on the risk of willful failure to appear.



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Id. § 40-11-115(b)(1)-(8) (2012). The nature of the offense, the probability of conviction,
and the likely sentence comprise only a small portion of the many factors to be
considered in determining a defendant’s bond. It follows, then, that the increase in the
DUI offense from second offense to fourth offense was minor in terms of the bonding
agreement and therefore not a unilateral alteration to the agreement.

        I am mindful that the State had implied covenants not to interfere with the
covenant between the Defendant and his sureties, not to impair the obligation, and not to
take any action against the Defendant which increased the risks of the sureties or affected
the sureties’ remedy against the Defendant, and that a material breach relieves the
sureties of the obligation. See In re Sanford & Sons Bail Bonds, Inc., 96 S.W.3d 199, 204
(Tenn. Crim. App. 2002) (relying on Reese v. United States, 76 U.S. 13, 21-22 (1869)).
For a surety to be relieved of its obligation in this situation, however, the State’s breach
of its implied covenant must have been the cause of the surety’s inability to fulfill its
obligation. Id.; see In re Paul’s Bonding Co., 62 S.W.3d 187, 196 (Tenn. Crim. App.
2001).

        I note, as well, that to the extent Rader had concerns about any increased risk by
virtue of the fourth offense DUI charge returned by the grand jury, Rader had the option,
to surrender the Defendant in exoneration if “[t]he bondsman or surety has good cause to
believe the defendant will not appear as ordered by the court having jurisdiction[.]” See
T.C.A. § 40-11-132(2) (2012). Previously, this court has affirmed a trial court’s rejection
of a bonding company’s motion for exoneration when the bonding company failed to
avail itself of the remedy provided by Code section 40-11-132(2). See In re E&W
Bonding Co., No. M2004-02097-CCA-R3-CD, 2005 WL 1931402, at *5 (Tenn. Crim.
App. Aug. 11, 2005), perm. app. denied (Tenn. Dec. 19, 2005). In that case, the bonding
company argued, as does Rader in this case, that the State unilaterally increased the risk
that the defendant would not appear because the State indicted the defendant for an
additional and more serious charge. Id. This court noted that the forfeiture of bail bonds
and the circumstances in which a bonding company may be relieved from its obligation
are strictly regulated by statute. Id. This court stated that, pursuant to statute, the
bonding company’s remedy was to surrender the defendant if it became concerned the
defendant would not appear in court. Id. Because the bonding company failed to avail
itself of this remedy, however, the trial court did not abuse its discretion in denying the
motion for exoneration. See id.

        Although the majority and I disagree as to whether a unilateral alteration to the
bonding agreement occurred by virtue of the existence of the fourth offense DUI charge,
in my view, resolution of our disagreement is unnecessary to determine the outcome in
this case. Rader did not offer any evidence at the exoneration hearings, and the record
fails to show, that the increase in the DUI offense from second offense DUI to fourth
offense DUI was the cause of Rader’s inability to ensure the Defendant’s appearance or

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otherwise to produce the Defendant to the court. For this reason, Rader failed to establish
that exoneration was appropriate on the basis of any purported unilateral alteration by the
State of the bonding agreement. I conclude, therefore, that the trial court did not abuse its
discretion in denying Rader’s motion for exoneration and its motion to alter or amend the
judgment of forfeiture.

       For these reasons, I dissent.

                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




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