Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/17/2021
E.g., 09/17/2021

The defendant was arrested for impaired driving and posted bond on same day through the bail agent. The defendant subsequently failed to appear, and an order was issued for her arrest. The court subsequently mailed a bond forfeiture notice to the bail agent. The bail agent filed a motion to set aside the forfeiture using form AOC-CR-213, checking box two which provides that “[a]ll charges for which the defendant was bonded to appear have been finally disposed by the court other than by the State taking a dismissal with leave as evidenced by the attached copy of the official court record” and box four, which provides that “[t]he defendant has been served with an order for arrest for the failure to appear on the criminal charge in the case in question as evidenced by a copy of an official court record, including an electronic record.” Slip. op. at 2-3. An ACIS printout showing that the defendant had been assigned a new court date was attached to the motion.

The local board of education opposed the motion and claimed the right to seek sanctions for reimbursement of all attorney fees and expenses incurred in objecting to this motion if the bail agent provided additional documentation after the date of the objection. Before to the hearing on the board’s objection to the motion to set aside, the bail agent provided the board’s counsel with additional documentation that demonstrated the order for arrest had been served. At the hearing, the board’s counsel conceded that the additional documentation was sufficient to set aside forfeiture, and the trial court granted the bail agent’s motion to set aside. The trial court also ordered sanctions against bail agent in the amount of $500 for failure to attach sufficient documentation to the motion to set aside. Further, the trial court prohibited the bail agent from becoming “surety on any bail bond in Jones County until” it satisfied the judgment.

The court of appeals determined that a trial court may only impose sanctions under G.S. 15A-544.5(d)(8) when the motion to set aside is denied. A trial court cannot order both that the forfeiture be set aside and that sanctions be imposed. Thus, it held that the court abused its discretion when it granted the motion to set aside and imposed sanctions against the bail agent.

The court also held that the board failed to make a proper motion for sanctions as the record did not indicate that the board filed or served the bail agent with a motion for sanctions and notice of the hearing 10 days prior to the hearing.

Further, the court of appeals determined that the trial court exceed its authority by prohibiting the bail agent from becoming surety on any future bonds in Jones County until the judgment was satisfied. Lastly, the appellate court reasoned that the trial court erred in determining that the motion “contained insufficient documentation” as the ACIS printout that was attached to the motion is an official court document. For all of these reasons, the court of appeals determined that the trial court abused its discretion when it sanctioned the bail agent.

The trial court properly denied the Surety’s motion for relief from a bond forfeiture order where the motion was made prior to entry of final judgment and was not based on one of the seven grounds for relief enumerated in G.S. 15A-544.5(b).  The basis for the Surety’s motion for relief was that the clerk did not provide notice of the bond forfeiture within the 30-day period after the date the defendant failed to appear as required by G.S. 15A-544.4(e).  Failure to provide timely notice of a bond forfeiture is not among the seven “reasons for set aside” enumerated in G.S. 15A-544.5, the statute which is the exclusive avenue of relief from a bond forfeiture when the forfeiture has not yet become a final judgment.  The court noted that G.S. 15A-544.8 permits a trial court to set aside a final judgment of forfeiture on the grounds of untimely notice.

The trial court had no statutory authority to enter a bail bond forfeiture where the defendant was not “released” from custody within the meaning of Article 26 of G.S. Chapter 15A because he was subject to an ICE detainer, was picked up by federal agents, and was deported to Mexico.  In 2018, the defendant was charged with a felony and a $100,000 secured bond was set as a condition of his pretrial release.  The defendant and his surety posted the bond, but the defendant was not released.  Instead, he was held for about 24 hours until ICE agents took him into custody directly from deputies from the Granville County Sheriff’s Office and eventually deported him.  Because he had been deported, the defendant failed to appear at trial and, consequently, the trial court entered a bond forfeiture order.  The surety filed a petition for remission of forfeiture under the “extraordinary circumstances” provision of G.S. 15A-544.8(b)(2).  The trial court denied the petition and the court of appeals reversed.  Saying that the case was one of first impression, the court conducted plain-language statutory interpretation and summarized that analysis as follows:

The bond forfeiture statutes apply only to “a defendant who was released” under those statutes. Lemus was never released. Therefore, the trial court had no authority to conduct a forfeiture proceeding and should have granted the petition to set aside the forfeiture for that reason.

 The court went on to reject various procedural and policy arguments advanced by the school board as to why the forfeiture was properly ordered.

Because the trial court’s order setting aside a bond forfeiture failed to make material findings of fact, conclusions of law, or any ruling as to whether a bail agent’s motion to set aside the forfeiture should be considered and set aside under G.S. 15A-544.5(b)(7), rather than under subsection (b)(6), the court vacated the order and remanded for entry of a new order addressing this issue.  On 31 October 2018 the defendant failed to appear in Cumberland County Superior Court on two criminal charges.  It was undisputed that the defendant was in federal custody in Virginia on that date.  After a Bond Forfeiture Notice was issued, the bail agent filed a motion to set aside the forfeiture and checked Box 6 on AOC-CR-213, which corresponds to G.S. 15A-544.5(b)(6), indicating that the basis for the motion was that the defendant was incarcerated within the borders of North Carolina.  As developed at a hearing on the motion, it appeared that the bail agent meant to check Box 7 of AOC-CR-213, which corresponds to G.S. 15A-544.5(b)(7) (generally providing as a basis for a motion to set aside that the defendant was incarcerated anywhere within the borders of the United States).  It also appeared that the trial court may have intended to treat the motion as one under subsection (b)(7) and to grant relief under that subsection.  The order drafted by the school board’s attorney and signed by the trial court did not reflect this apparent intent.  As entered, the order failed to identify a permissible ground for setting aside the bond forfeiture under G.S. 15A-544.5(b) and the court vacated the order for that reason and remanded for additional findings and a determination on the subsection (b)(7) issue.

The defendant’s bond was forfeited after he failed to appear for court. After the defendant was served with an order for arrest for failing to appear, the surety on his bond (1st Atlantic Surety Company) filed a motion to set aside the forfeiture pursuant to G.S. 15A-544.5. The motion was signed by a corporate officer of the surety who was not an attorney. The local Board of Education, as a party in interest on the forfeiture, objected on the grounds that filing the motion was the unauthorized practice of law. The trial court agreed and denied the surety’s motion, and the appellate court affirmed its ruling. Although a surety is permitted to file such a motion under the statute, it is a legal document and petition for use in court and therefore filing it constitutes the practice of law. While an individual bond agent could have filed this motion pro se, G.S. 84-5 dictates that a corporation must appear in court through a licensed attorney and cannot proceed pro se.

The trial court also granted the board’s motion for sanctions against the surety, as allowed by the statute if the motion to set aside the bond forfeiture “was not signed.” The appellate court reversed this part of the order, holding that although the corporate officer’s signature on the motion was not authorized, that is not the equivalent of a motion bearing no signature at all.

In this bond forfeiture case, the trial court erred by granting the sureties relief from a bond forfeiture before the date of the forfeited bond’s final judgment.  The court first determined that the Board of Education’s appeal of the trial court’s grant of relief was timely as it was filed two days after the trial court’s entry of final judgment on the sureties’ motion to strike the forfeited bond, which, the court concluded, occurred upon the entry of the trial court’s written order granting relief rather than upon an earlier oral ruling.  Turning to the merits, the court held that because G.S. 15A-544.5 is the exclusive avenue of relief from a bond forfeiture where the forfeiture has not yet become a final judgment, the trial court erred by granting relief under G.S. 15A-301, a statute that grants judicial officials the authority to recall criminal process in certain circumstances.  By its terms, G.S. 15A-544.5 clearly and unambiguously instructs that it is the exclusive avenue of relief from a bond forfeiture that has not yet become a final judgment.  The trial court’s order specifically stated that none of the seven reasons for setting aside a forfeiture enumerated in G.S. 15A-544.5 existed in this case, and it was error to rely on G.S. 15A-301 as an alternative source of authority.

The trial court did not err by allowing the Surety’s motion to set aside a bond forfeiture. The motion to set aside asserted as a reason that the defendant had been served with an order for arrest for the failure to appear on the criminal charge as evidenced by a copy of an official court record. The court first concluded that in the bond forfeiture proceeding, the trial court did not err by taking judicial notice of the file as evidence that the defendant was served with the order of arrest. A trial court may take judicial notice of earlier proceedings in the same case, including matters in the file not offered into evidence. Here, the trial court took judicial notice of a fact beyond a reasonable controversy. It is undisputed that the defendant was served with the order for arrest before the 150-day deadline for filing a notice to set aside a forfeiture expired and the trial court attached the order for arrest as an exhibit to the court’s order.

     The court went on to reject the Board’s argument that the trial court committed reversible error by granting the Surety’s motion to amend the motion to set aside the bond forfeiture and attach a copy of the order for arrest after expiration of the 150-day deadline for filing the notice. The Surety’s original motion contained a copy of the initial warrant for arrest in the case, not the order for arrest issued after the failure to appear. A bond forfeiture proceeding, while ancillary to the underlying criminal proceeding, is a civil matter to which the Rules of Civil Procedure apply. Under those rules, leave to amend a pleading shall be freely given except when the objecting party can show material prejudice. In this case no undue prejudice was shown; in so holding the court noted that the Surety offered to pay the Board’s attorney’s fees incurred in connection with the hearing.

The trial court erred by partially granting the surety’s motion for relief from bond forfeiture. The defendant absconded during trial while subject to pretrial release conditions of electronic monitoring and a $50,000 secured bond. After a final judgment of forfeiture was entered, the surety filed a petition for remission, arguing that there were extraordinary circumstances that would justify relief. The trial court found that extraordinary circumstances existed and ordered the County Board of Education to remit $7,500 to the surety. The Board appealed, arguing that the surety’s motion did not comply with G.S. 15A-544.8 and that the trial court erred in granting the motion. The court agreed. Under G.S. 15A-544.8, a court may grant relief from a final judgment of forfeiture only when extraordinary circumstances exist that the court, in its discretion, determine should entitle the person to relief or when notice was not properly given to the person seeking relief. The statute requires that a motion for relief state reasons and set forth evidence supporting each reason. Here, the surety’s motion merely alleged that “there were extraordinary circumstances” warranting relief “said circumstances to be presented via affidavit and/or testimony at the hearing on this Motion.” The surety failed to comply with the statutory requirement to set forth evidence. Because of the deficiencies in the motion, the trial court had no grounds on which to grant the motion and it should have been summarily denied

The trial court erred by granting a motion to set aside a bond forfeiture. When the defendant failed to appear in district court, the trial court issued a bond forfeiture notice. The bail agent filed a motion to set aside the forfeiture. However, on the preprinted form used for such motions the bail agent did not check any of the seven exclusive reasons under the statute, G.S. 15A-544.5, for setting aside a bond forfeiture. In addition to the motion, the bail agent submitted a letter stating that it had “been putting forth efforts to locate [the defendant]” but had been unsuccessful in doing so despite spending “$150 checking leads as to where and how” to locate the defendant. The Board of Education objected to the motion. The trial court allowed the surety’s motion to set aside. On appeal, the court held that the trial court erred in allowing the motion to set aside because the surety failed to demonstrate a legally sufficient reason to set aside under the statute. No box was checked on the relevant form and the reasons asserted in the letter attached to the motion did not fall within any of the seven exclusive statutory reasons for setting aside a forfeiture.

The trial court lacked statutory authority to reduce the bond forfeiture amount. After the defendant failed to appear, the clerk of court issued a bond forfeiture notice in the amount of $2,000. A bail agent filed a motion to set aside the bond forfeiture. However, the motion de did not indicate the reason for setting aside the forfeiture. A document attached to the motion indicated that the defendant was incarcerated. The Board of Education objected to the motion to set aside. Following a hearing, the trial court denied the surety’s motion to set aside, finding that it had not established one of the statutory reasons for setting aside the forfeiture. Despite denying the motion, the trial court verbally reduced the amount of the bond forfeiture from $2,000 to $300. The Board of Education appealed, arguing that the trial court lacked authority to reduce the amount of the bond forfeiture after denying the motion to set aside. On appeal, the surety did not argue that the motion to set aside should have been allowed; rather, it asserted that the trial court had discretion to reduce the bond forfeiture amount. The court concluded that the trial court did not have authority under G.S. 15A-544.5 to reduce the amount owed by the surety. The court reasoned that under G.S. 15A-544.5, the trial court may only grant relief from the forfeiture for the reasons listed in the statute, and the only relief it may grant is the setting aside of the forfeiture. Here, having denied the motion to set aside, the trial court had no authority to grant partial relief by reducing the amount owed on the bond.

Over a dissent, the court held that the trial court erred by allowing a motion to set aside a bond forfeiture filed by the bail agent on behalf of the surety. Because the record establishes that at the time the surety posted the bond, it had actual notice that the defendant previously had failed to appear in the same matter the trial court was prohibited by statute from setting aside the bond forfeiture. When the defendant failed to appear in district court an order for arrest was issued, indicating that this was the defendant’s second or subsequent failure to appear on the charges. The defendant was served with the order for arrest and released on a secured bond posted by the bail agent in the amount of $16,000. The release order also explicitly indicated that this was the defendant’s second or subsequent failure to appear in the case. When the defendant again failed to appear, the trial court ordered the bond forfeited. A motion to set aside asserted that the defendant had been surrendered by a surety on the bail bond. At the hearing on the motion, the bail agent presented a letter from the sheriff’s office stating that the defendant had been surrendered. The trial court allowed the motion to set aside. The Board of Education appealed, arguing that the trial court was statutorily barred from setting aside the bond forfeiture and that no competent evidence supported the trial court’s decision to set aside. The Court of Appeals agreed, noting in part that while the statute allows a forfeiture to be set aside where the defendant has been surrendered by a surety, it explicitly prohibits setting aside a bond forfeiture “for any reason in any case in which the surety or the bail agent had actual notice before executing a bail bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed.” G.S. 15A-544.5(f). Here, both the order for arrest and the release order expressly indicated the defendant’s second or subsequent failure to appear on the charges. Thus, the bail agent had actual notice and the trial court lacked authority to set aside the forfeiture for any reason.

Over a dissent, the court held that where a motion to set aside the forfeiture of an appearance bond did not contain the required documentation to support a ground in G.S. 15A-544.5, the trial court lacked statutory authority to set aside the forfeiture. When the defendant failed to appear on a $30,000 bond, the trial judge ordered that the bond be forfeited. A bail agent for the surety moved to set aside the forfeiture, asserting that the defendant had been surrendered. Specifically, the motion stated that the “defendant has been surrendered by a surety on the bail bond as provided by G.S. 15A-540, as evidenced by the attached ‘Surrender of Defendant By Surety’ (AOC-CR-214)” (ground (b)(3) under G.S. 15A-544.5). However, no AOC form was attached to the motion. Instead, an ACIS printout was attached. The printout pertained to a traffic offense but included no reference to the case in which the bond was forfeited; nor did the printout indicate that the defendant had been surrendered. The information in the ACIS printout does not meet the requirement of a sheriff’s receipt contemplated by the statute.

(1) Even though the surety’s name was not listed on the first page of form AOC-CR-201 (Appearance Bond for Pretrial Release) the surety was in fact the surety on a $570,000.00 bond, where among other things, the attached power of attorney named the surety and the surety collected the premium on the bond and did not seek to return it until 3 years later when the trial court ordered a forfeiture. (2) The trial court did not err by concluding that the surety’s exclusive remedy for relief from a final judgment of forfeiture is an appeal pursuant to G.S. 15A-544.8. (3) The trial court did not err in granting the Board monetary sanctions against the surety and the bondsmen pursuant to G.S. 15A-544.5(d)(8). The court rejected the surety’s argument that the Board’s sanctions motion was untimely. (4) The trial court properly considered the relevant statutory factors before imposing monetary sanctions against the surety under G.S. 15A-544.5(d)(8) where there was no evidence that the surety’s failure to attach the required documentation was unintentional. (5) The trial court did not abuse its discretion by imposing a monetary sanction of $285,000 on the surety.

The trial court did not err by denying the surety’s motion to set aside a bond forfeiture when the trial court’s ruling was properly based on G.S. 15A-544.5(f) (no forfeiture may be set aside when the surety had actual notice before executing a bond that the defendant had already failed to appear on two or more prior occasions in the case for which the bond was executed). 

(1) The trial court did not err by denying the surety’s motion to set aside a bond forfeiture when the defendant was not surrendered until 9:40 pm on the day the 150-day time limit in G.S. 15A-544.5 expired and the surety’s motion to set aside was not filed until the next day. The court rejected the surety’s argument that the 150-day period should not expire when the courthouse closes, but should be extended until 11:59 pm. (2) The trial court did not abuse its discretion by failing to fully remit the forfeited amount pursuant to G.S. 15A-544.8(b)(2). The surety had argued that because the trial court found extraordinary circumstances warranting partial remission, remission should be in full unless the trial court makes specific findings supporting partial remission, but cited no authority for this proposition.

The county school board’s notice of appeal from a judge’s order affirming the Clerk’s ruling setting aside bond forfeitures divested the Clerk and trial court of jurisdiction to enter a second forfeiture while the appeal was pending.

(1) A bail agent may file a motion to set aside a forfeiture. (2) Filing such a motion by a bail agent does not constitute unauthorized practice of law. (3) A bail agent may appear pro se at a hearing on a motion to set aside forfeiture if the agent has a financial liability to the surety as a result of the bond. However, a bail agent may not appear at the motion hearing in court to represent the corporate surety.

A probation violation was a separate case from the original criminal charges for purposes of G.S. 15A-544.6(f) (providing that no more than two forfeitures may be set aside in any case).

The trial court properly denied the surety’s motion to set aside a bond forfeiture under G.S. 15A-544.5(b)(7) (defendant incarcerated at the time of the failure to appear). The statute refers to a one continuous period of incarceration beginning at the time of the failure to appear and ending no earlier than 10 days after the date that the district attorney is notified of the incarceration. In this case, the period of incarceration was not continuous.

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