                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

        DENNIS P. WILLIAMS, as Third Party Surety, Appellant.

                             No. 1 CA-CV 15-0203
                               FILED 1-19-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-141763-001
         The Honorable Casey J. Newcomb, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Dennis Williams, Scottsdale
Appellant

Maricopa County Attorney’s Office, Phoenix
By Kimberley Felcyn
Counsel for Appellee
                            STATE v. WILLIAMS
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Patricia A. Orozco joined.


P O R T L E Y, Judge:

¶1             Dennis Paul Williams (“Williams”) appeals the judgment
forfeiting an appearance bond. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2           Courtney Hamilton (“Hamilton”) was arrested and charged
with two felonies. Williams posted a $6300 bail bond on her behalf on
September 25, 2015. The bond provided that it could be forfeited if
Hamilton failed to appear at the November 4 hearing.

¶3            Hamilton failed to appear and the trial court issued a bench
warrant for her arrest. The court also set a bond-forfeiture hearing for
January 27, 2015. After the January hearing, the court ordered the bond
forfeited because there was no reasonable cause for Hamilton’s failure to
appear. Williams appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) section 12-2101(A)(1).2

                               DISCUSSION

¶4            Williams argues that the trial court erred because the bond
should have been exonerated as a matter of law under A.R.S. § 13-3974.
Alternatively, he argues the court abused its discretion when it ordered the
entire bond forfeited.3 Because “[t]he primary purpose of an appearance
bond is to assure a defendant’s appearance at the trial or other hearings,”

1 We review the facts in the light most favorable to sustaining the trial
court’s judgment forfeiting the appearance bond. State v. Old W. Bonding
Co., 203 Ariz. 468, 471, ¶ 9, 56 P.3d 42, 45 (App. 2002).
2 We cite to the current version of the statute unless otherwise noted.
3 Williams also argues the Sherriff’s Office’s alleged refusal to accept

custody of Hamilton constituted a breach of duty. Because Williams makes
that argument for the first time on appeal, it is untimely and waived. Odom
v. Farmers Ins. Co. of Ariz., 216 Ariz. 530, 535, ¶ 18, 169 P.3d 120, 125 (App.
2007).

                                      2
                            STATE v. WILLIAMS
                            Decision of the Court

State v. Garcia Bail Bonds, 201 Ariz. 203, 208, ¶ 19, 33 P.3d 537, 542 (App.
2001), we review a forfeiture ruling for an abuse discretion, but consider de
novo the court’s interpretation of any statutes or rules governing bail
bonds. See id. at 205, ¶ 5, 33 P.3d at 539; Patterson v. Mahoney, 219 Ariz. 453,
456, ¶ 9, 199 P.3d 708, 711 (App. 2008) (“When interpreting statutes and
rules, we follow the principles of statutory construction.”).

A. Bond Exoneration under A.R.S. § 13-3974

¶5           Williams first argues the bond should have been exonerated
because he fulfilled his obligation as the surety by physically taking
Hamilton to the Maricopa County Sheriff’s Office located at the courthouse.
We disagree.

¶6            A defendant who posts an appearance bond as a condition of
release under Arizona Rule of Criminal Procedure (“Rule”) 7.3(b), can have
the bond exonerated if, before the day the defendant is required to appear,
the surety surrenders him or her into the custody of the sheriff of the county
where the prosecution is pending. A.R.S. § 13-3974(A)(1); Ariz. R. Crim. P.
7.6(d)(2). Although “surrender” is not defined in the statute, we have
determined that it means “the transfer of physical possession of a defendant
into the custody of the State.” State v. Affordable Bail Bonds, 198 Ariz. 34, 39,
¶ 21, 6 P.3d 339, 344 (App. 2000).

¶7            At the hearing, Williams testified that he tried to turn
Hamilton into “the sheriffs at the Maricopa east court” on October 18, but
they refused to take her into custody. He argued that “any sheriff should
have taken custody of her.” The court disagreed and suggested that he
should have taken her to the sheriff’s central intake office or to the judge,
asking the court to arrest her and relieve him from any further
responsibility.

¶8            Williams failed to take Hamilton to the appropriate location
and surrender her into the sheriff’s physical custody at any time before the
November 4 hearing.4 Consequently, the court did not err by finding he
was not entitled to the exoneration of the bond.


4 Williams unsuccessfully attempted to surrender Hamilton after the
November 4 hearing. The attempt was untimely and could not have, as a
matter of law, resulted in the complete exoneration of his bond because §
13-3974 provides that the defendant must be surrendered “on or before the
day and time the defendant is ordered to appear.” A.R.S. § 13-3974(A)(1)
(emphasis added).

                                       3
                             STATE v. WILLIAMS
                             Decision of the Court

¶9             Williams also contends the bond should have been
exonerated under Taylor v. Taintor, which held that “bail will be exonerated
where the performance of the condition is rendered impossible by . . . the
act of the law.” 83 U.S. 366, 369 (1872). The condition Williams relies on –
an impossibility caused by an act of law – does not apply here. In Taylor,
the sureties could not produce the defendant because he had been tried,
convicted, and sentenced to prison in Maine, and was unavailable to be
produced in Fairfield County, Connecticut. Id. at 368-69. Here, Hamilton
was not in jail in a different state or in any custody. Williams failed to
properly surrender her into the physical custody of the Maricopa County
Sheriff. As a result, Taylor is inapplicable. Therefore, the court did not err
in its ruling.

B. Full Forfeiture of the Bond

¶10           Williams also argues the court abused its discretion when it
ordered the entire bond forfeited. We review the issue for an abuse of
discretion. See State v. Int’l Fid. Ins. Co., 238 Ariz. 22, 25, ¶ 7, 355 P.3d 624,
627 (App. 2015).

¶11           Once the condition of an appearance bond has been violated,
the court must issue a bench warrant for the person’s arrest and set a
forfeiture hearing. Ariz. R. Crim. P. 7.6(c)(1). The court may then forfeit all
or part of the appearance bond if “at the hearing, the violation is not
explained or excused.” Ariz. R. Crim. P. 7.6(c)(2).

¶12            Hamilton testified that she missed her November 4 hearing
for two reasons. First, she had experienced drug-induced psychosis, which
made her paranoid. Second, she was fearful because her public defender
had told her she would go to prison if she attended the hearing. After
listening to the testimony, the court determined that having “some anxiety”
did not constitute good cause for missing a court date.

¶13           In determining how much of the bond to forfeit, the court can
consider “the willfulness of the defendant’s violation of the appearance
bond,” along with “the surety’s effort and expense in locating and
apprehending the defendant,” and “any other mitigating or aggravating
factors.” State v. Old W. Bonding Co., 203 Ariz. 468, 475, ¶ 26, 56 P.3d 42, 49




                                        4
                            STATE v. WILLIAMS
                            Decision of the Court

(App. 2002).5 In addition to the other evidence presented at the hearing, the
court also questioned Williams and learned that he owned his home “free
and clear,” had substantial savings, and had no major expenses. As a result,
the court found no mitigating factors that warranted exonerating any
portion of the bond.

¶14            Based on the record before the trial court and because the
decision to forfeit a bond, or some portion of it, is within the sound
discretion of the court, we find no abuse of discretion. Accordingly, we
affirm the forfeiture of the $6300 bond. See In re Bond Forfeiture in Pima Cnty.
Cause No. CR-20031154, 208 Ariz. 368, 369, ¶ 4, 93 P.3d 1084, 1085 (App.
2004).

                               CONCLUSION

¶15           Based on the foregoing, we affirm the judgment.




                                 :ama




5We note that Williams had also posted two $900 bonds for Hamilton.
After noting Williams’ efforts to surrender Hamilton, the court exonerated
both $900 bonds.



                                        5
