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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| ARELIA GOMEZ, | ) |
| an agent of Alaskan Bail Bonds, | ) |
| ) Court of Appeals No. A-9270 | |
| Appellant, | ) Trial Court No. 4FA-03-978 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2132 December 7, 2007 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Charles R.
Pengilly, Judge.
Appearances: Jon Buchholdt, Anchorage
(opening brief), and Eugene B. Cyrus, Chugiak
(reply brief), for the Appellant. Tamara E.
de Lucia, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
This is an appeal brought by Arelia G˘mez, the agent of
a bail bonding company that issued a bail bond to guarantee the
appearance of a criminal defendant, James Haynes. When Haynes
failed to appear for his sentencing hearing, Superior Court Judge
Charles R. Pengilly declared the companys bond forfeit.
About ten months later, after Haynes was captured
(apparently with G˘mezs assistance), G˘mez filed a request for a
remission of the forfeiture under Alaska Criminal Rule 41(h)(4).
Judge Pengilly declined to hold a hearing on G˘mezs request. He
concluded (incorrectly, as we explain here) that G˘mez had
already had the opportunity to argue for remission of the
forfeiture, and that her current motion was merely a tardy
attempt to obtain reconsideration of the judges prior ruling.
G˘mez now appeals the superior courts refusal to hold a
remission hearing under Criminal Rule 41(h)(4). For the reasons
explained here, we agree with G˘mez that she is entitled to a
remission hearing, and we direct the superior court to hold one.
To explain what went wrong in this case, we must first
explain the provisions of Alaska Criminal Rule 41(h), the rule
that governs bail forfeiture and the potential remission of a
forfeiture.
When a criminal defendant fails to appear without
explanation, Criminal Rule 41(h)(1) in effect creates a
rebuttable presumption that the defendants failure to appear was
willful and that the defendants bail should be forfeited.
Rule 41(h)(1) states that if a defendant is released on
bail after posting a bond or other security, and then the
defendant fails to appear in court as required, the court shall
forfeit the security. However, Rule 41(h)(1) further provides
that this judgement of forfeiture may not be enforced until a
hearing is held pursuant to [Rule 41](h)(3) or ... until 30 days
after the date of notice of the judgment of forfeiture (in other
words, until the time for requesting a hearing under Rule
41(h)(3) has expired).
Thus, the judgement of forfeiture required by Rule
41(h)(1) is tentative. The court must not enforce this
forfeiture until the person who pledged the bond or other
security has had an opportunity to seek a hearing under Rule
41(h)(3).
A hearing under Criminal Rule 41(h)(3) has one main
purpose: to allow the defendant, or the person who pledged the
bond or other security, to show that the defendants failure to
appear was not willful.
Under Rule 41(h)(3), either the defendant or the person
who pledged the security has 30 days to file a request for a
hearing to determine whether the defendants failure to appear was
willful. All parties the government, the defendant, and the
person who pledged the security have the right to be heard at
this hearing. Rule 41(h)(3) requires the court to set aside the
judgment of forfeiture if it is proven by a preponderance of the
evidence that the [defendants] failure to appear was not willful.
In addition, Rule 41(h)(3) gives the court the discretion to set
aside the judgment of forfeiture if the court concludes [for any
other reason] that justice does not require the enforcement of
the judgment.
Even if the court confirms the forfeiture of bail at
the Rule 41(h)(3) hearing, or in cases where no one requests a
hearing (so that the judgement of forfeiture becomes final under
Rule 41(h)(1) through the passage of time), this is not the end
of the process. Under Criminal Rule 41(h)(4), the person who
pledged (and lost) the security has one year to seek either a
partial or total remission of the forfeiture.
Rule 41(h)(4) provides:
Within one year after entry of [the]
judgment of forfeiture, a person who has
given or pledged security may apply to the
court for a remission [of the forfeiture],
either in whole or in part, based on the
return of the defendant with the assistance
of the person who gave or pledged [the]
security[,] or upon such other extraordinary
circumstances as justice requires.
To summarize: Criminal Rule 41(h)
provides two separate opportunities for the
issuer of a bail bond to attempt to recover a
forfeited bond. The first of these
opportunities is a hearing under Rule
41(h)(3), where the main issue is whether the
bond really should have been forfeited in the
first place. The second of these
opportunities is a hearing under Rule
41(h)(4), which is premised on the assumption
that the forfeiture was proper, but where the
person who issued the bond has a chance to
show that, because of their help in
recapturing the defendant, or because of
other extraordinary circumstances, the
forfeited money or property should be
remitted in whole or in part.
(This procedure mirrors the bail
law of other jurisdictions across the United
States. See United Bonding Insurance Co. v.
State, 242 So.2d 140, 141-42 (Fla. App.
1970); Daniels v. Material Producers, Inc.,
771 P.2d 205, 207 (Okla. 1989); State v.
Emery, 504 P.2d 1405, 1406 (Or. App. 1973).
See also United States v. Zhang, unpublished,
2000 WL 1532951, *2-5 (S.D. N.Y. 2000), which
is cited in Wright, King, and Kleins Federal
Practice and Procedure as illustrative of the
three stages of bail forfeiture proceedings:
(1) the declaration of forfeiture after the
defendant fails to appear; (2) a request to
set aside the forfeiture based on the
assertion that the failure to appear was not
willful; and (3) a request for remission of a
properly entered forfeiture.1)
Having explained Alaska law
relating to bail forfeiture and remission, we
now turn to the facts of the present case.
On December 12, 2003, Alaskan Bail
Bonds posted a $25,000 bond to secure James
Hayness appearance on felony charges. Haynes
failed to appear for his sentencing hearing
on January 5, 2004. Accordingly, as directed
by Criminal Rule 41(h)(1), Judge Pengilly
tentatively declared the appearance bond to
be forfeit.
G˘mez received notice of this
forfeiture on January 20, 2004. Pursuant to
Criminal Rule 41(h)(3), the courts notice
informed G˘mez that she had 30 days ... in
which to request a hearing to set aside the
above judgment [of forfeiture].
In early February (that is, within
the 30-day period), G˘mez requested a hearing
on the bail forfeiture. Judge Pengilly held
this hearing on March 4, 2004.
At this March 4th hearing, G˘mez
explained that, in the weeks prior to Hayness
sentencing hearing, both she and Hayness
defense attorney had experienced difficulty
in communicating with Haynes. G˘mez said
that, when she succeeded in having a
telephone conversation with Haynes, Hayness
verbal behavior led her to strongly suspect
that he was using drugs. In addition, G˘mez
told Judge Pengilly that she had had an
overall bad feeling about Haynes.
In response to G˘mezs assertions,
Judge Pengilly pointed out that none of this
was pertinent to the validity of the bond
forfeiture. The judge told G˘mez, You
secured his appearance. He didnt appear.
The bond is forfeited.
Haynes was re-arrested less than
three weeks later, on March 22nd. The
following day (March 23rd), G˘mez faxed an
affidavit to Judge Pengillys chambers. In
her affidavit, G˘mez described her companys
efforts and role in helping the Alaska State
Troopers locate and arrest Haynes.
In particular, G˘mezs affidavit
alleged that her company had spent hundreds
of hours and thousands of dollars on
research, the hiring of outside sources, and
surveillance work to locate Haynes and that,
after locating him, her company immediately
contacted [the state troopers] to assist ...
in [Hayness] arrest. Based on these
assertions, G˘mez respectfully request[ed]
that the bond ... be exonerated.
On April 13th, Judge Pengilly
responded to G˘mezs request by having his
clerk append a handwritten note to the bottom
of her affidavit. This note read: Per Judge
Pengilly no action, bond has already been
forfeited[.]
This was error. Even though G˘mez
(who is not an attorney) failed to specify
that she was seeking a remission hearing
under Criminal Rule 41(h)(4), her affidavit
clearly set forth grounds for seeking
remission of the forfeiture under Rule
41(h)(4).
Judge Pengilly apparently viewed
G˘mezs affidavit as an attempt to re-open the
March 4th hearing. But in her affidavit,
G˘mez did not question Judge Pengillys ruling
at that March 4th hearing; that is, she did
not question the validity of the bail
forfeiture. Rather, she set forth grounds
for total or partial remission of that
forfeiture, based on her role in helping the
troopers recapture Haynes.
Seven months later, in November
2004, G˘mez secured the assistance of an
attorney and (through that attorney) filed a
motion seeking a remission of the bail
forfeiture (and seeking a hearing on this
request). In her motion, G˘mez expressly
asserted that she was entitled to a partial
or whole remission [of the forfeiture]
because she personally assisted the court in
apprehending the defendant. The district
attorneys office filed a non-opposition to
G˘mezs request for a hearing to investigate
these matters.
Nevertheless, Judge Pengilly
summarily denied G˘mezs request for remission
(i.e., denied the request without giving her
a hearing). The judges order (in its
entirety) read:
Bail in [this] case was forfeited at the
conclusion of a hearing held on March 4,
2004. Ms. Gomez has now filed a document
which can only be characterized as a motion
to reconsider that decision. As such, it is
well over a year late [under] Alaska
[Criminal Rule] 42(k). It is DENIED on that
ground.
As already explained, G˘mezs motion
was clearly not a request for reconsideration
of Judge Pengillys ruling at the March 4th
hearing. The March 4th hearing was conducted
pursuant to Criminal Rule 41(h)(3), and the
issue at that hearing was whether Hayness
failure to appear was willful (or whether,
for some other reason, the court should not
confirm the tentative judgement of forfeiture
required by Rule 41(h)(1) because of Hayness
unexplained failure to appear at his
sentencing hearing).
In her November motion, G˘mez did
not argue that Judge Pengilly acted
improperly when, on March 4th, he confirmed
the forfeiture of the appearance bond.
Rather, G˘mez argued that her companys
ensuing (and ultimately successful) efforts
to locate and recapture Haynes constituted a
justification for wholly or partially
remitting that forfeiture under Criminal Rule
41(h)(4).
It was therefore error for Judge
Pengilly to summarily deny G˘mezs request for
remission of the forfeiture. The order of
the superior court is REVERSED, and the
superior court is directed to allow G˘mez to
present her reasons for a total or partial
remission of the bail forfeiture under
Criminal Rule 41(h)(4).
_______________________________
1Charles Alan Wright, Nancy J. King, & Susan R. Klein,
Federal Practice and Procedure: Criminal (3rd ed.
2004), 777, Vol. 3B, p. 288.
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