[Cite as State v. Johnson, 2020-Ohio-55.]


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

STATE OF OHIO

        Appellee
                                                     C.A. No.       19CA011452
        v.

TYSHAWN JOHNSON
     Defendant                                       APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
and                                                  COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
CHUCK BROWN II BAIL BONDS                            CASE No.   17CR096698
    Appellant

                                 DECISION AND JOURNAL ENTRY

Dated: January 13, 2020



        SCHAFER, Judge.

        {¶1}     Appellant-Surety, Chuck Brown II Bail Bonds (“Chuck Brown”) appeals the

judgment of the Lorain County Court of Common Pleas granting in part and denying in part its

motion for remission of bail bond forfeiture. For the reasons that follow, we affirm.

                                                I.

        {¶2}     On September 20, 2016, a complaint was filed against Tyshawn Johnson in the

Lorain Municipal Court charging him with one count of felonious assault in violation of R.C.

2903.11(A)(1), a felony of the second degree, and one count of domestic violence in violation of

R.C. 2919.25(A), a felony of the third degree, and a capias was issued. Johnson was eventually

arrested July 27, 2017. The Lorain Municipal Court set Johnson’s bond at $20,000.00 cash and

the matter was bound over to the Lorain Court of Common Pleas on August 4, 2017. That same
                                                   2


day, Chuck Brown posted a $20,000.00 surety bond on Johnson’s behalf and Johnson was

released on recognizance. The Lorain County Grand Jury subsequently filed an indictment

against Johnson charging him with the same violations listed in the original complaint. Johnson

appeared for his arraignment and entered a plea of not guilty. The matter then proceeded

through the pretrial process until November 8, 2017, when Johnson failed to appear for a final

pretrial as ordered.

       {¶3}    In a journal entry filed November 8, 2017, the trial court issued a capias for

Johnson’s arrest and ordered his “[b]ond revoked and forfeited.” The court ordered the clerk to

notify Johnson and Chuck Brown of the bond revocation and forfeiture and ordered Chuck

Brown to appear on January 3, 2018, and show cause why judgment should not be entered

against it for the $20,000.00 penalty stated in the recognizance.

       {¶4}    Johnson was arrested pursuant to the capias on November 17, 2017. That same

day, Johnson was transported to the hospital for a medical emergency pursuant to the trial court’s

verbal medical furlough, and was admitted to the hospital. At some point, Johnson walked out of

the hospital. On November 20, 2017, the trial court issued another capias for Johnson’s arrest

and ordered that upon his arrest he be held without bond until further order of the court.

       {¶5}    On January 3, 2018, Chuck Brown did not appear for the show cause hearing.

However, upon request of Chuck Brown via telephone, the trial court continued the show cause

hearing until January 10, 2018. Chuck Brown then filed a motion to continue the show cause

hearing for an additional sixty days. The trial court granted the motion and continued the matter

until March 7, 2018. On February 28, 2018, Chuck Brown filed a motion to surrender bond,

remit bond power, and for relief from liability.
                                                3


       {¶6}    Chuck Brown failed to appear for the March 7, 2018 show cause hearing. Upon

request of Chuck Brown via telephone, the trial court continued the show cause hearing to March

21, 2018. However, on March 21, 2018, Chuck Brown again failed to appear for the show cause

hearing. In an entry dated March 21, 2018, and filed March 22, 2018, the trial court denied

Chuck Brown’s motion to surrender bond, remit bond power, and for relief from liability. The

trial court noted that Johnson was still a fugitive and thereafter entered judgment against Chuck

Brown for the full $20,000.00 bond and ordered Chuck Brown to pay the bond to the Lorain

County Clerk of Courts forthwith.

       {¶7}    On March 30, 2018, Chuck Brown filed a motion to stay the execution of the

bond judgment pending defendant’s return, stating that Chuck Brown had commenced all

reasonable efforts at its expense in apprehending Johnson and that Chuck Brown had become

aware that Johnson was being held by the Cuyahoga County Jail. The trial court scheduled a

hearing for the motion to stay on May 16, 2018. Nonetheless, Chuck Brown again failed to

appear for the hearing. In an order dated May 16, 2018, and filed May 17, 2018, the trial court

denied Chuck Brown’s motion to stay execution and ordered Chuck Brown to pay the judgment

issued on March 21, 2018 forthwith.

       {¶8}    On June 27, 2018, Chuck Brown filed a motion to vacate the judgment and be

relieved of liability. The trial court scheduled a hearing for July 18, 2018. Following the

hearing, the trial court denied Chuck Brown’s motion in a journal entry filed July 19, 2018.

       {¶9}    On September 14, 2018, Chuck Brown filed a motion for remission, requesting

the trial court grant a full remission of the bond. Following a hearing on December 5, 2018, the

trial court granted Chuck Brown’s motion in part, ordering that $14,000.00 of the forfeited bond

be remitted.
                                                 4


       {¶10} Chuck Brown filed this timely appeal, raising four assignments of error for our

review. Because the arguments and issues in Chuck Brown’s four assignments of error are

intertwined and interrelated, we elect to consider them together.

                                                II.

                                     Assignment of Error I

       The trial court erred in granting a [judgment] against the surety and in favor
       of the State where it was the State’s negligence that allowed the defendant to
       escape custody[.]

                                    Assignment of Error III

       The trial court erred in granting a judgment against the surety and failing to
       grant a full remission when the defendant was already in custody.

                                     Assignment of Error II

       The trial court erred in not properly considering all of the factors when
       determining the amount of bond to remit.

                                    Assignment of Error IV

       The trial court abused its discretion in retaining $6,000.00 of the $20,000.00
       bond in light of the facts and circumstances in the within matter.

       {¶11} In its first assignment of error, Chuck Brown contends that the trial court erred

when it granted judgment in favor of the State because it was the State’s negligence that allowed

the defendant to escape custody. In its second assignment of error, Chuck Brown argues that the

trial court did not properly consider necessary factors when determining the amount of bond to

remit. Chuck Brown argues in its third assignment of error that the trial court erred by not

remitting the full amount of the bond because Johnson was in the State’s custody at the time

judgment was entered. In the fourth assignment of error, Chuck Brown contends that the trial

court abused its discretion based on the facts and circumstances of this case. As an initial matter,

we note that although Chuck Brown’s first and third assignments of error state that that the trial
                                                  5


court erred in granting judgment, all four of Chuck Brown’s assignments of error essentially

argue that the trial court abused its discretion when it did not remit the full bond amount. We

disagree.

       {¶12} The purpose of bail is to ensure that a defendant appears at all stages of the

criminal proceedings. State v. Hughes, 27 Ohio St.3d 19, 20 (1986). “[W]here a surety bond

serves as a recognizance, it ‘is a contract in which the surety promises the court that it will pay a

monetary penalty if the accused who is released on the bond posted by the surety fails to appear

in court when ordered.’” State v. Berry, 12th Dist. Clermont No. CA2013-11-084, 2014-Ohio-

2715, ¶ 9, quoting State v. Scherer, 108 Ohio App.3d 586, 590 (2d Dist.1995). If a defendant

fails to appear in court when ordered, a trial court may order the bail forfeited in whole or in part.

R.C. 2937.35. Pursuant to R.C. 2937.36(C),

       [u]pon declaration of forfeiture, the magistrate or clerk of the court adjudging
       forfeiture shall proceed as follows:

       ***

       (C) As to recognizances the magistrate or clerk shall notify the accused and each
       surety within fifteen days after the declaration of the forfeiture * * * of the default
       of the accused and the adjudication of forfeiture and require each of them to show
       cause on or before a date certain to be stated in the notice * * * why judgment
       should not be entered against each of them for the penalty stated in the
       recognizance. If good cause by production of the body of the accused or
       otherwise is not shown, the court or magistrate shall thereupon enter judgment
       against the sureties or either of them, so notified, in such amount, not exceeding
       the penalty of the bond, as has been set in the adjudication of forfeiture, * * * .

       {¶13} After judgment has been rendered against a surety, a trial court may, upon the

appearance of the defendant, remit all or part of the penalty it deems just. R.C. 2937.39. When

determining whether remission of some or all of a forfeiture is appropriate, a trial court should

consider:
                                                 6


       (1) the circumstances of the accused’s reappearance, (2) his or her reason for
       failing to appear, (3) the prejudice afforded the prosecution by the accused’s
       absence, (4) whether sureties helped return the defendant, (5) mitigating
       circumstances, and (6) whether justice requires that the entire amount remain
       forfeited.

State v. Dorsey, 6th Dist. Lucas No. L-15-1289, 2016-Ohio-3207, ¶ 10, citing State v. Am Bail

Bond Agency, 129 Ohio App.3d 708, 712-713 (10th Dist.1998). “This Court has recognized that

[R.C. 2937.39] grants a trial court ‘broad discretion’ in determining whether to remit a forfeited

bond.” State v. McKay, 9th Dist. Lorain No. 16CA011031, 2017-Ohio-7918, ¶ 5, citing State v.

Hollis, 9th Dist. Lorain No. 3913, 1986 WL 7749, *1 (July 9, 1986). An abuse of discretion

implies that a trial court acted unreasonably, arbitrarily, or unconscionably.       Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying this standard, a reviewing court is

precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio

State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

       {¶14} In this case, after Johnson failed to appear for a final pretrial as ordered, the trial

court issued a capias for Johnson’s arrest and ordered his “[b]ond revoked and forfeited” on

November 8, 2017. The court ordered the clerk to notify Johnson and Chuck Brown of the bond

revocation and forfeiture and ordered Chuck Brown to appear on January 3, 2018, and show

cause why judgment should not be entered against it for the $20,000.00 penalty stated in the

recognizance. Meanwhile, Johnson was arrested on November 17, 2017, but was soon after

transported and admitted to the hospital due to a medical emergency. At some point, the trial

court became aware that Johnson walked out of the hospital and the trial court issued a new

capias for his arrest on November 20, 2017. Johnson did not appear in this matter again until the

capias was withdrawn and a new bond was set on May 22, 2018.
                                                7


        {¶15} After Chuck Brown’s failure to appear at several show cause hearings, the trial

court entered judgment against Chuck Brown for the full $20,000.00 bond on March 21, 2018.

Chuck Brown eventually filed a motion for full remission of the bond. Chuck Brown and the

State were represented at the December 5, 2018 hearing.             Charles C. Brown II, the

“[o]wner/operator/agent” of Chuck Brown, offered testimony on behalf of Chuck Brown.

Following the hearing, the trial court issued a general judgment granting Chuck Brown’s motion

in part, and ordering that $14,000.00 of the forfeited bond be remitted. Neither Chuck Brown

nor the State requested findings of fact and conclusions of law.

        {¶16} On appeal, Chuck Brown argues that the trial court abused its discretion when it

did not remit the full bond amount because the circumstances of this case constitute good cause

for full remittance. The circumstances cited by Chuck Brown include the claims that (1) the

State was negligent “in its duty to confine [Johnson] and prevent his escape[;]” (2) Johnson “was

only missing for a little over [one] hundred days” and the State did not present any evidence of

cost, prejudice, or delay caused by Johnson’s absence; (3) Johnson was in custody before

judgment was granted; and (4) Chuck Brown hired three different attorneys to represent it in the

trial court and two of them “neglected their responsibilities and failed to appear for hearings

before the [trial c]ourt.”

        {¶17} First, contrary to Chuck Brown’s contention that Johnson was “in custody” and

“not properly guarded” when he walked out of the hospital, the record shows that Johnson was

on medical furlough authorized by the trial court. Because Johnson was not in custody, Chuck

Brown’s argument that the State was negligent “in its duty to confine [Johnson] and prevent his

escape” is without merit. Moreover, the Supreme Court of Ohio has expressly held “that the

arrest and subsequent release of [a] defendant * * * will not serve to exonerate [a surety]’s
                                                  8


liability on [a defendant’s] bond.” Hughes, 27 Ohio St.3d at 22. The Supreme Court reasoned

that “‘[t]he escape of a defendant is the business risk of a bail surety. It is precisely the situation

which a surety guarantees against.’” Id. at 22, quoting State v. Ohayon, 12 Ohio App.3d 162,

165 (8th Dist.1983).

       {¶18} Chuck Brown also argues that the State did not present any evidence of cost,

prejudice, or delay caused by Johnson’s absence. The prejudice afforded to the prosecution is

one factor a trial court should consider when determining whether remittance is appropriate.

Dorsey, 2016-Ohio-3207 at ¶ 10, citing Am Bail Bond Agency, 129 Ohio App.3d at 712-713.

Although the State did not present evidence at the hearing, the record shows that Johnson was a

fugitive from November 8, 2017, until November 17, 2017.               The record also shows that,

following his medical furlough, another capias was issued on November 20, 2017. Johnson

appeared on May 22, 2018, and the capias was withdrawn and a new bond was set. The original

jury trial, scheduled for April 2, 2018, had been canceled due to Johnson absconding.

Additionally, the record shows that although several hearings were scheduled regarding issues

related to the bond forfeiture, neither Chuck Brown nor his counsel appeared at any hearings

until after the bond was forfeited.

       {¶19} “[W]hen considering a request for post-appearance bond remission pursuant to

R.C. 2937.39, a trial court should balance the reappearance of the accused and the efforts

expended by the surety to effectuate the reappearance against the inconvenience, expense, and

delay suffered by the state and any other factors the court finds relevant.” State v. Jackson, 153

Ohio App.3d 520, 2003-Ohio-2213, ¶ 9 (3d Dist.). Mr. Brown testified that he did not hire any

recovery agents and instead “spent hours looking for [Johnson]” himself at addresses in Lorain

and elsewhere. Mr. Brown did not state how many hours he expended nor did he state what, if
                                                  9


any, resources he used to attempt to locate Johnson. Mr. Brown did not directly respond to the

State’s question on cross-examination as to whether he “expended any funds[,]” replying instead,

“[w]ell, they don’t get paid until they catch somebody.” Mr. Brown also stated that he learned

Johnson was in the Cuyahoga County Jail from a third party and, to his knowledge, Johnson was

apprehended by the sheriff’s department.          Thus, Chuck Brown was not instrumental in

apprehending Johnson.

       {¶20} Chuck Brown next contends that it is “fundamentally unfair” for the State to

retain any of the bond because Johnson was in the custody of the Cuyahoga County Jail when the

trial court entered judgment against Chuck Brown. In support of its argument, Chuck Brown

cites to Youngstown v. Durrett, 7th Dist. Mahoning No. 09 MA 57, 2010-Ohio-1313. In Durrett,

the Seventh District determined that a trial court’s refusal to remit any of a forfeited bond was an

abuse of discretion where several factors weighed in favor of remission, including that fact that

the defendant had “reappeared, entered a plea, was sentenced, and released for time served” prior

to the show cause hearing and entry of judgment. Id. at ¶ 27. Although the Seventh District

considered these facts in the context of bond remission pursuant to R.C. 2937.39, it recognized

that “[p]ursuant to R.C. 2937.36(C), production of the body of the defendant on the date or dates

specified in the notice of default and adjudication of forfeiture constitutes a showing of good

cause why judgment should not be entered against each surety of the defendant.” State v.

Holmes, 57 Ohio St.3d 11 (1991), syllabus; Durrett at ¶ 29.

       {¶21} The circumstances of this case are distinguishable from Durrett. First, unlike the

trial court in Durrett, the trial court in this case did not refuse to remit any of the forfeited bond.

Rather, the trial court remitted $14,000.00 of the forfeited $20,000.00 bond to Chuck Brown.

Second, the defendant in Durrett had reappeared, entered a plea, was sentenced, and released for
                                                10


time served prior to the show cause hearing being held. In this case, Johnson did not appear at

any of the scheduled show cause hearings, and this matter was still pending with an active capias

for Johnson’s arrest when the trial court entered judgment on Chuck Brown’s motion to remit.

Third, neither Chuck Brown nor his attorney appeared at any scheduled show cause hearing to

present evidence of Johnson’s incarceration or any other evidence to show cause why judgment

should not have been entered against it. See Berry, 2014-Ohio-2715 at ¶ 11 (“In addition to

‘production of the body of the accused,’ one of the other ways to show good cause is to present

evidence of the accused’s incarceration.”).

       {¶22} As stated above, the circumstances of an accused’s reappearance should be

considered when determining whether remission of some or all of a forfeiture is appropriate.

Dorsey, 2016-Ohio-3207 at ¶ 10, citing Am Bail Bond Agency, 129 Ohio App.3d at 712-713. As

recognized above, Chuck Brown was not instrumental in securing Johnson’s arrest. On appeal,

Chuck Brown states that if the trial court had been timely notified of Johnson’s incarceration,

“there may likely have been no need for remission or this appeal.” Chuck Brown does not

explain how this notification should have occurred, and instead attempts to concede that “none of

the parties were aware that [Johnson] was already in custody when the judgment was granted in

March of 2018.” A review of the transcript of the December 5, 2018 hearing, however, shows

that Mr. Brown testified he became aware that Johnson was in the custody of the Cuyahoga

County Jail prior to the show cause hearing, but that neither he nor his attorney notified the trial

court until after the trial court had already entered judgment against Chuck Brown. The record

does not contain any information as to when Johnson was arrested in Cuyahoga County.

       {¶23} Finally, Chuck Brown argues that a strong mitigating factor is that Chuck Brown

hired three different attorneys to represent it in the trial court and two of them “neglected their
                                                11


responsibilities and failed to appear for hearings before the [trial c]ourt.” Mr. Brown testified at

the hearing that he does “look at the court dockets[,]” but after hiring an attorney, he did not

“necessarily look at the dockets” and expected the attorney to keep him “abreast of what’s going

on.” Nonetheless, a bail bondsman is presumed to have knowledge of the trial court’s docket on

the cases in which he has posted bond. See State v. Barnes, 6th Dist. Sandusky No. S-10-025,

2011-Ohio-799, ¶ 28, (“[A] surety has a duty to follow the progress of a defendant’s case.”),

citing State v. Stevens, 30 Ohio St.3d 25, 27 (1987).

       {¶24} Based on the foregoing, we conclude that Chuck Brown has not shown that the

trial court abused its discretion when it granted its motion in part and ordered $14,000.00 of the

$20,000.00 judgment be remitted.         Therefore, Chuck Brown’s assignments of error are

overruled.

                                                III.

       {¶25} Chuck Brown’s first, second, third, and fourth assignments of error are overruled.

                                                                               Judgment affirmed.




       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
                                                12


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 Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CALLAHAN, P.J.
HENSAL, J.
CONCUR.


APPEARANCES:

MICHAEL J. KINLIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and DANIELLELA BEARDEN, Assistant
Prosecuting Attorney, for Appellee.
