State v. Locklear

1

STATE OF NORTH CAROLINA v. ALBERT RAY LOCKLEAR, JR., Defendant, and TERESA A. BLUE, Bail Agent, and 1st ATLANTIC SURETY COMPANY, Surety

No. COA23-1044

Court of Appeals of North Carolina

July 2, 2024

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 3 April 2024.

Appeal by Robeson County Board of Education from orders entered 8 May 2023 by Judge Tiffany Powers in Robeson County No 20CRS054015 Superior Court.

Schwartz Law PLLC, by Richard A. Schwartz and E. Alexander Grosskurth, for Robeson County Board of Education respondent-appellant.

Practus, LLP, by M. Brad Hill, for defendant-appellee.

FLOOD Judge The Robeson County Board of Education (the "Board") appeals from the superior court's orders setting aside a bond forfeiture.^[1] On appeal, the Board argues the superior court erred in (1) setting aside the forfeiture and (2) considering a second, untimely motion to set aside the forfeiture. Our review of the Record reveals the superior court exceeded its statutory authority to set aside the forfeiture under these circumstances and further, that the second motion was, in fact, untimely and should not have been granted. Accordingly, we vacate the superior court's orders.

I. Factual and Procedural Background

On 5 October 2022, Charles B. Shaw, a bail agent on behalf of 1st Atlantic Surety Company ("Surety"), posted a bond for Defendant Albert Locklear, in the amount of $10,000. Defendant was to appear in Robeson County Superior Court on 7 November 2022 for felony probation violation charges. Defendant, however, failed to appear on 7 November 2022, and an order for his arrest was issued on 10 November 2022. That same day, the superior court judge entered a bond forfeiture notice for Defendant's bond and set a final judgment date of 13 April 2023, the date upon which the forfeiture of the bond would become binding if no further action was taken. Notice of the forfeiture was issued to Shaw and Surety on 14 November 2022.

On the final judgment date of 13 April 2023, the day the forfeiture would become binding, Teresa Blue, another bail agent of Surety, filed a Motion to Set Aside the pending forfeiture (the "First Motion"). Blue asserted that Defendant was in Buffalo, New York but could not be detained because the State had not entered Defendant's arrest warrant into the Federal Bureau of Investigation's National Crime Information Center (the "NCIC"). Attached to the First Motion was a notice sent on 20 October 2022 from the Robeson County Clerk's Office to Defendant stating that Defendant's case was scheduled for a hearing on 7 November 2022. Nothing else was included with the First Motion.

The Board timely objected to the First Motion on 24 April 2023. Nearly a month after the 13 April 2023 statutory deadline, Blue filed a second Motion to Set Aside the pending forfeiture (the "Second Motion"), stating that Defendant had been surrendered on 2 May 2023. Attached to the Second Motion was proof of Defendant's surrender. The Second Motion was served upon the Board via personal delivery by Blue; however, the Board did not object to the Second Motion.

An eight-minute hearing on the Board's objection to the First Motion was held on 8 May 2023. At the hearing, Blue restated that Defendant had been in Buffalo, New York at the time he was due to appear in court on 7 November 2022; however, Blue and Surety had not been able to apprehend Defendant and surrender him until 2 May 2023. The superior court found that Blue and Surety had established "one or more of the reasons specified in G.S. 15A-544.5 for setting aside forfeiture" and ordered the forfeiture be set aside. This order was signed 17 May 2023 (the "First

Order").

The superior court, however, also signed the Second Motion on the same day, without any official notice to the parties, ordering the forfeiture to be set aside (the "Second Order"). The Board states it only learned of this Second Order when requesting the court file for this appeal.

The Board appealed the First Order on 6 June 2023. In its notice of appeal, the Board specified it was appealing from the First Order "entered in open court on the 8th of May 2023 and signed on May 17, 2023."

II. Jurisdiction

This Court has jurisdiction to review an appeal from a final judgment from a superior court pursuant to N.C. Gen. Stat. § 7A-27(b). N.C. Gen. Stat. § 7A-27(b)(1) (2023). An order to set aside a forfeiture is a final judgment. N.C. Gen. Stat. § 15A-544.5(h) (2023). An appeal must "designate the judgment or order from which appeal is taken[.]" N.C. R. App. P. 3(d).

On appeal, the Board argues that this Court should review the Second Order, despite the Board not explicitly raising the issue on appeal because, until requesting the court file for this appeal, it was unaware a second order was signed. Blue and Surety argue, however, that because the Board failed to take appeal from the Second Order, this appeal is moot, and thus, this Court is without jurisdiction. Particularly, Blue and Surety contend that even if this Court were to grant relief from the First Order, the Second Order-which granted the same relief as the First Order-is still in place, thus rendering the Board's appeal moot. See Roberts v. Madison Cnty. Realtors Ass'n, Inc., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996) ("A case is 'moot' when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy.").

This Court has held that "a notice of appeal should be deemed sufficient to confer jurisdiction on the appellate court [of] any issue if, from the content of the notice, it is likely to put an opposing party on guard the issue will be raised[.]" Smith v. Independent Life Ins. Co., 43 N.C.App. 269, 274, 258 S.E.2d 864, 867 (1979). We may

liberally construe a notice of appeal . . . to determine whether it provides jurisdiction[.] [A] mistake in designating the judgment . . . should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.

Strauss v. Hunt, 140 N.C.App. 345, 350, 536 S.E.2d 636, 640 (2000). Additionally, even "if a party technically fails to comply with procedural requirements in filing papers with the court, [this Court] may determine that the party complied with the rule if the party accomplishes the 'functional equivalent' of the requirement." Id. at 350, 536 S.E.2d at 640.

In Strauss, this Court determined that while the defendant had failed to appeal one of two orders, the order that was not appealed "was based on the same grounds as the two disputed assignments of error[.]" Id. at 350, 536 S.E.2d at 640. We reasoned that it could "be plainly inferred that defendant intended to appeal" from both orders. Id. at 350, 536 S.E.2d at 640.

Here, the Board appealed from the only order it was aware had been signed- the First Order. Despite this technical error, the two orders are based on the same ground of disputes-ordering the forfeiture to be set aside. Like Strauss, in which this Court held it could be plainly inferred the defendant intended to appeal from both orders that were based on the same grounds, it can be plainly inferred here that the Board would have intended to appeal both orders, especially if the Board had known the Second Order was signed. See id. at 350, 536 S.E.2d at 640. Because both orders grant the same relief, this Court concludes the Board complied with the procedural rules by accomplishing the functional equivalent and appealing the relief that was granted. See id. at 350, 536 S.E.2d at 640.

Thus, this Court has jurisdiction to hear the appeal from both the First and Second Orders, and the appeal is not moot. See id. at 350, 536 S.E.2d at 640.

III. Standard of Review

This Court reviews a superior court's order setting aside a bond forfeiture to determine whether there was "competent evidence to support the [superior] court's findings of fact and whether its conclusions of law were proper in light of such facts." State v. Hinnant, 255 N.C.App. 785, 787, 806 S.E.2d 346, 347 (2017) (citation omitted). "Questions of law, including matters of statutory construction, are reviewed de novo" Hinnant, 255 N.C.App. at 787, 806 S.E.2d at 347-48. "Under a de novo review, this Court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Parker, 290 N.C.App. 650, 653, 893 S.E.2d 544, 547 (2023), rev. denied, 898 S.E.2d 308 (N.C. 2024) (citation omitted) (cleaned up).

IV. Analysis

On appeal, the Board argues the superior court erred in (1) setting aside the forfeiture and (2) considering a second, untimely motion to set aside the forfeiture.

A. First Order

"Bail bond forfeiture in North Carolina is governed by N.C. Gen. Stat. §§ 15A-544.1 - 544.8." State v. Roulhac, 273 N.C.App. 396, 398, 848 S.E.2d 512, 513 (2020) (citation omitted) (cleaned up). If a defendant fails to appear in court after the execution of a bond, "the court shall enter a forfeiture for the amount of that bail bond in favor of the State against the defendant and against each surety on the bail bond." N.C. Gen. Stat. § 15A-544.3(a) (2023).

The court may not grant relief from a forfeiture except as provided in N.C. Gen. Stat. § 15A-544.5(b). See N.C. Gen. Stat. § 15A-544.5(a) (2023) ("There shall be no relief from a forfeiture except as provided in this section. The reasons for relief are those specified in subsection (b) of this section."). Subsection ...