Big Boyz Bail Bond, Inc. v. State

BIG BOYZ BAIL BOND, INC. ON BEHALF OFLEXINGTON NATIONAL INSURANCE CORPORATION v. STATE OF MARYLAND, ET AL.

No. 1637

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

March 16, 2021

Circuit Court for Baltimore County

Case No. 03-K-14-006223

UNREPORTED

Berger, Leahy, Reed, JJ.

Opinion by Reed, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

On October 30, 2014, Big Boyz Bail Bond, Inc. (hereinafter "Appellant") posted a $150,000 bail bond for James Ferguson (hereinafter "Defendant"), who was facing five counts of first-degree assault and five counts of second-degree assault. On February 9, 2015, the State of Maryland (hereinafter "the State") amended its indictment against Defendant and added a number of additional charges, including one count of first-degree murder. The Appellant was never notified of the amended indictment. The Defendant was never re-arrested on the newly added charges, and his bail status was not changed. He was also never given new conditions of release specific to the additional charges.

The court scheduling information record seems to indicate that he had a trial date of April 8, 2015 which was cancelled. On June 9, 2015 he had another hearing scheduled, that was described as a "waiver or speedy trial hearing." On June 25, 2015, Defendant was scheduled for a Show Cause Hearing on June 29^th, which he subsequently failed to attend. The Circuit Court for Baltimore County ordered that the $150,000 bail bond posted by Appellant be forfeited absent Defendant's capture. The court after that set a criminal motions hearing date on July 7, 2015 and then a trial date on September 14^th through the 17^th of 2015. After Appellant failed to capture Defendant, Appellant satisfied the bond forfeiture. Subsequently, Appellant filed a petition to strike and remit the bail bond posted. The Circuit Court for Baltimore County did not have a hearing and denied Appellant'spetition.¹ It is from this denial that Appellant files this timely appeal. In doing so, Appellant brings one question for our review, which we have rephrased for clarity:²

I. Did the circuit court err in denying Appellant's Petition to Strike Bond Forfeiture and for Remission of Bond on the grounds of material increase in risk when, after Appellant posted the bond, the State added additional charges?

The essential problem in this case is a legal question and it cannot be solved by having a hearing to gather more facts but by deciding the legal issue under Maryland law. For the reasons stated, we reverse the denial of the Petition to Strike and remand for the striking of the forfeiture and return of the $150,000 bail.

FACTUAL AND PROCEDURAL BACKGROUND

On October 24, 2014, Defendant was arrested and charged with five counts of first-degree assault and five counts of second-degree assault. According to the Statement of Probable Cause, Defendant allegedly pointed a gun at a "group of people with whom he had been in a verbal dispute" at a bowling alley parking lot. The police caught Defendant as he was fleeing from the scene. When the police arrived on scene, Defendant was in aparking lot across the street. While on the scene, the officers rendered aid to one of Defendant's victims, Brandon Britton, who had passed out in a vehicle while the police were investigating the crime scene. The officers noted that Mr. Britton showed no signs of life. All of this information was contained in the statement of charges prepared by the police. The statement of charges also included a reference to a video of the incident. Additionally, the statement of charges said that homicide detectives were notified. Thereafter, homicide detectives interviewed Defendant. A summary of Defendant's statement to detectives was included in the statement of probable cause. Defendant stated that he began to run when a helicopter shined a light on him in the parking lot. Although there were no allegations that the gun was discharged, or that Defendant physically attacked anyone, an individual at the scene was found unconscious and later pronounced dead after efforts by the officer to revive him. This individual had not been shot. No gun was recovered from the scene. Defendant was across the street when the individual died at the scene. Again, all of this information was in the statement of probable cause.

After Defendant was arrested, a Baltimore County District Court Commissioner set Defendant's bond at $500,000. On October 27, 2014, during a bail review, Defendant's bond was reduced to $150,000. Subsequently, Appellant's services were retained by Defendant's girlfriend, Teresa Komotho. Appellant agreed to post Defendant's bond and guarantee Defendant's appearance in court. In deciding to post Defendant's $150,000 bail bond, Appellant reviewed Defendant's "ties to the community, history of appearing in court when required, and the severity of, and potential penalties associated with, the charges that the State had lodged against him."

On October 30, 2014, Defendant was released on Appellant's $150,000 bond. The bond order included an order that "Defendant personally appear, as required, in any court in which the charges are pending, or in which a charging document may be filed based on the same acts or transactions..." (Emphasis added). The bail bond also stated that the bond shall continue in full force and effect until discharged pursuant to Rule 4-217. The only condition of release was that the Defendant have no contact with any of the listed victims. On November 17, 2014, Defendant was indicted, and his case was forwarded to the Circuit Court for Baltimore County. On February 9, 2015, the State added a number of additional charges against Defendant stemming from the alleged verbal dispute at the bowling alley, including one count of first-degree murder.³

On June 29, 2015, Defendant failed to appear for a Show Cause Hearing at the Circuit Court for Baltimore County. Consequently, the Honorable Robert E. Cahill, Jr. ordered that the $150,000 bail bond posted by Appellant be forfeited. The circuit court then afforded Appellant 90 days - until September 29, 2015 - to capture defendant or forfeit the $150,000 bail bound. Subsequently, Appellant filed a "Petition for Extension of Time to Produce Defendant" and on September 9, 2015, the Honorable Michael Finifter granted Appellant's petition, giving Appellant an additional 90 days - until December 28, 2015 - to capture Defendant. However, Appellant was unable to locate and capture Defendantprior to December 28, 2015, and on December 14, 2015, Appellant satisfied the bail bond by remitting a check to the Circuit Court for Baltimore County.⁴

A little more than a year and a half later, on May 25, 2017, Appellant filed a Petition to Strike Bond Forfeiture and for Remission of Bond ("Petition to Strike")⁵ on the grounds that the State's additional charges on February 9, 2015, constituted a material increase in the risk placed on Appellant. On June 22, 2017, the circuit court denied Appellant's petition. The order stated "[u]pon consideration of the Petition to Strike Bond forfeiture and the State's answer to the Petition is hereby DENIED." It is from this order that Appellant files this timely appeal.

STANDARD OF REVIEW

Whether a defendant's failure to appear was reasonable, under Maryland Rule 4-217, is ordinarily reviewed for abuse of discretion. See Wiegand, 393 Md. at 195 (2001) (citing Alleghany Mut. Cas. Co. v. State, 234 Md. 278, 282-83 (1964)). Although we ordinarily review an order denying a motion to strike forfeiture of a bond agreement for abuse of discretion, where the issue is one of statutory construction or contract interpretation, and the evidence is not in dispute, the de novo standard of review applies. See Muhammad v. Prince George's County Board of Education, 246 Md. App. 349 (2020) ("[O]ur review of a trial court's interpretation of a contract...is a question of law and is subject to a de novo standard of review.); Damon v. Robles, 245 Md. App. 233 (2020)(Statutory interpretation is a legal issue that is reviewed de novo.); See also e.g. People v. American Bankers Ins. Co., Cal. App. 4th 348, 350 (Cal. App. 1992).

DISCUSSION

A. Parties' Contentions

Appellant argues that the Petition to Strike should have been granted because the State's decision to amend Defendant's indictment by adding the first-degree murder charge qualifies as a reasonable ground for Defendant's failure to appear and to strike the bail bond forfeiture. Specifically, Appellant relies on Maryland Rule 4-217(i)(3), which states that if a "defendant or surety can show reasonable grounds for the defendant's failure to appear" the court "shall (A) strike out the forfeiture in whole or in part; and (B) set aside any judgment entered thereon pursuant to subsection 5(A) of this section, and (C) order the remission in whole or in part of the penalty sum paid pursuant to subsection (4) of this section." Appellant further argues that "the additional charges, including [the] first-degree murder [charge], lodged after Appellant took the calculated risks to post [Defendant's] bond resulted in a material increase in the risk on the bond which Appellant did not agree to accept."

Appellant asserts that "(1) courts across the country have held that a material change in risk to the surety after the bond has been posted constitutes cause to discharge the bond"; (2) Maryland has recognized this principle of law; and (3) the additional first-degree murder charge against Defendant amounted to a material increase "in the risk to the surety that warrants discharge of the bond." Finally, Appellant argues that the terms of the bail bond agreement does not mean Appellant agreed to ensure the appearance of Defendant toanswer for charges which materially increased Appellant's risk...