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Gomez v. State (12/7/2007) ap-2132

Gomez v. State (12/7/2007) ap-2132

     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

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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
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
          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
          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
          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
          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

          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
          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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