[Cite as State v. McKay, 2017-Ohio-7918.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                 )

STATE OF OHIO                                        C.A. No.       16CA011031

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
CHRISTOPHER J. MCKAY                                 COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Defendant                                    CASE Nos. 12CR085910
                                                                12CR085800
        and                                                     12CR084925

CAESAR BAIL BOND CO.

        Appellant

                                DECISION AND JOURNAL ENTRY

Dated: September 29, 2017



        HENSAL, Presiding Judge.

        {¶1}    Caesar Bail Bond Co. appeals an order of the Lorain County Court of Common

Pleas that denied its motion for bond remission. For the following reasons, this Court reverses.

                                                I.

        {¶2}    After the Grand Jury issued multiple indictments against Christopher McKay,

Caesar posted surety bonds for him that totaled $19,000. When Mr. McKay failed to show for

his arraignment, the trial court ordered the bonds forfeited and scheduled a show cause hearing

on their forfeiture. At the hearing, which Caesar did not attend, the prosecutor informed the

court that Mr. McKay had been apprehended in Nebraska on a different offense, so it was only

seeking to recover its costs of extraditing Mr. McKay to Ohio, not the entire $19,000. The trial
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court subsequently amended its forfeiture order, ordering Caesar to “be responsible for the

Sheriff’s actual transport costs of [Mr. McKay] * * * in lieu of full bond forfeiture.”

       {¶3}    Fifteen months later, the Lorain County Sheriff contacted a prisoner transport

service and learned that it would cost $4,328.57 to bring Mr. McKay from Nebraska. He

forwarded that information to the prosecutor, who sent Caesar an invoice for $4,328.57. Caesar

paid the amount in full. Caesar’s owner testified that, after sending in the payment, he sought

reimbursement from the person who co-signed Mr. McKay’s contract, Mr. McKay’s mother.

When he spoke to Mr. McKay’s mother, however, she told him that Mr. McKay had never been

brought to Ohio. The record indicates that, before the Sheriff investigated how much it would

cost to transport Mr. McKay to Ohio, the trial court held a video conference with a Nebraska

correctional institution, during which it accepted Mr. McKay’s guilty pleas and sentenced him

for the offenses.

       {¶4}    The sentences that the trial court imposed for Mr. McKay’s Ohio offenses were

shorter than a sentence he was already serving in Nebraska. The trial court also ordered Mr.

McKay to serve each of his Ohio sentences concurrent with all of his other sentences. After the

sentences for the Ohio offenses were over, Caesar moved for remission of the $4,328.57 it had

paid, arguing that the State’s “actual” extradition costs had ended up being $0.00. Following a

hearing, the trial court denied Caesar’s motion, concluding that Caesar’s payment of the

$4,328.57 had satisfied the judgment against it, resolving the matter. Caesar has appealed,

assigning as error that the trial court abused its discretion when it denied its motion for

remission.
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                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO REMIT
       THE ENTIRE AMOUNT OF THE FORFEITED SURETY BOND, AND
       FAILING TO WEIGH THE FACTORS UNDER O.R.C. 2937.39.

       {¶5}    Caesar argues that the trial court abused its discretion when it failed to remit the

entire amount it paid under the order of forfeiture and for failing to weigh the factors typically

used in determining whether to remit a forfeited bond. Revised Code Section 2937.39 provides:

       After judgment has been rendered against surety or after securities sold or cash
       bail applied, the court or magistrate, on the appearance, surrender, or rearrest of
       the accused on the charge, may remit all or such portion of the penalty as it deems
       just and in the case of previous application and transfer of cash or proceeds, the
       magistrate or clerk may deduct an amount equal to the amount so transferred from
       subsequent payments to the agencies receiving such proceeds of forfeiture until
       the amount is recouped for the benefit of the person or persons entitled thereto
       under order or remission.

This Court has recognized that Section 2937.39 grants a trial court “broad discretion” in

determining whether to remit a forfeited bond. State v. Hollis, 9th Dist. Lorain No. 3913, 1986

WL 7749, *1 (July 9, 1986). The parties agree though that the factors identified in State v. Am.

Bail Bond Agency, 129 Ohio App.3d 708 (10th Dist.1998), provide guidance to a court in

deciding whether to remit a forfeited bond. Id. at 712-713. The State argues the court may also

consider any other factor it deems relevant. See State v. Jackson, 153 Ohio App.3d 520, 2003-

Ohio-2213, ¶ 9 (3d Dist.).

       {¶6}    The trial court does not appear to have considered the factors identified by the

parties or any other factors in determining whether to remit Caesar’s payment because it

considered its judgment “satisfied and the matter resolved[.]” The State likewise argues that

Caesar’s payment satisfied the judgment against it. Upon review of Chapter 2739, however, we
                                                4


do not believe that Caesar’s payment of $4,328.57 precluded it from seeking remission under

Section 2937.39.

       {¶7}    “Bail is security for the appearance of an accused to appear and answer to a

specific criminal or quasi-criminal charge in any court or before any magistrate at a specific time

or at any time to which a case may be continued, and not depart without leave.”               R.C.

2937.22(A). Under Criminal Rule 46, bail can take many forms, including “[a] surety bond, a

bond secured by real estate or securities * * * or the deposit of cash.” Crim.R. 46(A)(3). What

happens when bail is declared forfeited depends on the type of bail. If the bail was a cash

deposit, “the magistrate or clerk shall proceed forthwith to deal with the sum deposited as if the

same were imposed as a fine for the offense charged and distribute and account for the same * *

*.” R.C. 2937.36(A). If it was a security, “the magistrate or clerk shall proceed to sell the same

* * *.” R.C. 2937.36(B). If it was a recognizance, such as a surety bond, the court must

schedule a show cause hearing. R.C. 2937.36(C). Then, if the defendant is not produced for the

show case hearing

       the court or magistrate shall thereupon enter judgment against the sureties * * * 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.

Id.

       {¶8}    Section 2937.39 authorizes a court to remit a forfeited bond after the “securities

[are] sold[,]” the “cash bail applied[,]” or “judgment has been rendered against a surety[.]” It

anticipates that, in some situations, by the time the court orders remission, there may have been

“previous application and transfer of cash or proceeds[.]”         Id.   It, therefore, provides a

mechanism for the clerk of courts to recoup any remitted bail by allowing the clerk to “deduct an
                                               5


amount equal to the amount so transferred from subsequent payments to the agencies receiving

such proceeds of forfeiture * * *.” Id.

       {¶9}    The State is correct that this Court will not review questions that do not involve

live controversies and that satisfaction of a judgment will render an appeal from that judgment

moot. Bankers Trust Co. of California, N.A. v. Tutin, 9th Dist. Summit No. 24329, 2009-Ohio-

1333, ¶ 6, 8. Caesar, however, is not appealing the judgment of bond forfeiture that was entered

against it under Section 2937.36(C). Instead, it is seeking review of the denial of its separate

statutory right to request remission of a bond that has been forfeited. R.C. 2937.39. Neither the

trial court nor the State have identified any authority for the proposition that a surety may not

seek remission under Section 2937.39 if it has already satisfied a judgment entered under Section

2937.36(C). This Court has also uncovered no such authority. Other districts have not identified

any prohibitions on the filing of a motion for remission after the forfeiture judgment has been

paid. State v. Ramos, 6th Dist. Lucas No. L-11-1269, 2012-Ohio-4997, ¶ 6, 19 (reversing denial

of motion for remission even though forfeiture judgment was already paid); see also City of

Youngstown v. Durrett, 7th Dist. Mahoning No. 09 MA 57, 2010-Ohio-1313, ¶ 10; State v.

Munn, 5th Dist. Stark No. 2006CA00335, 2007-Ohio- 4432, ¶ 4. In fact, the case that the parties

agree sets forth the factors that a court should consider in deciding whether to order remission

was a case in which the surety paid the forfeited bond before moving for remission. Am. Bail

Bond Agency, 129 Ohio App.3d 708, at 711. The State’s position would effectively allow

someone who submits a cash bail to have more rights under Section 2937.39 than someone who

pays the same amount after judgment is entered on a surety bond.

       {¶10} We, therefore, conclude that the trial court erred when it declined to exercise its

discretion under Section 2937.39 and denied Caesar’s motion for remission merely because its
                                                 6


forfeiture judgment had been satisfied. See State v. Cheadle, 2d Dist. Darke No. 2011 CA 19,

2012-Ohio-2965, ¶ 11 (reversing denial of motion to remit bond when it was “not apparent from

the record that the trial court applied the relevant factors in reaching its conclusion.”). Caesar’s

assignment of error is sustained.

                                                III.

       {¶11} Caesar’s assignment of error is sustained. The judgment of the Lorain County

Court of Common Pleas is reversed, and this matter is remanded for proceedings consistent with

this decision.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.



                                                       JENNIFER HENSAL
                                                       FOR THE COURT
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CALLAHAN, J.
CONCURS.

CARR, J.
DISSENTING.

       {¶12} I respectfully dissent. The trial court did not enter judgment for a specific amount.

Instead, the trial court modified its prior order forfeiting the full bond amount of $19,000 to only

require Caesar to pay the actual costs of transport in lieu of full bond forfeiture. The Sheriff then

notified Caesar of the exact amount of $4,328.57 to be paid. Caesar sent a check to the Sheriff in

the amount of $4,328.57 specifically endorsing the check for the purpose of satisfying the bond

judgment.

       {¶13} Under these circumstances, Caesar satisfied the judgment against him by paying

the amount the court required him to pay in lieu of total bond forfeiture. The court order only

required him to pay actual transport costs.

       {¶14} Caesar voluntarily accepted the amount specified by the trial court. He never

contested the amount prior to satisfying the judgment against him. Instead, Caesar waited a year

and a half and then filed a motion to remit bond after paying the amount that was voluntarily

agreed upon.

       {¶15} I would dismiss the appeal as moot.


APPEARANCES:

GIOVANNA V. SCALETTA-BREMKE, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
