State v. Reyes

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NOT DESIGNATED FOR PUBLICATION

No. 118,054

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CARLOS REYES,
Defendant,

and

BIG MIKE'S BAIL BONDS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID J. KAUFMAN, judge. Opinion filed August 3, 2018.
Affirmed.

Jess W. Hoeme, of Joseph, Hollander & Craft LLC, of Wichita, for appellant.

Thomas J. Weilert, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before LEBEN, P.J., STANDRIDGE, J., and RYAN W. ROSAUER, District Judge, assigned.

PER CURIAM: Big Mike's Bail Bonds (Surety) was the surety for a bond posted in
a criminal case for Carlos Reyes. When Reyes did not appear for trial, the bond was
forfeited. The State moved for judgment on the bond forfeiture, which the district court
granted. On appeal, Surety claims the district court erred in denying its request to sever
the forfeiture action from the underlying criminal matter and in entering judgment on the
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bond forfeiture without first allowing Surety to present a case in opposition to the motion
for judgment. Surety also claims that the court erroneously quashed subpoenas it served
on an assistant district attorney and a deputy sheriff. Finding no error, we affirm.

FACTS

In June 2016, Reyes was charged with indecent liberties with a child and
aggravated burglary. Bond was set at $100,000. Surety posted an appearance bond for
Reyes, who then was released from custody. The bond guaranteed Reyes' appearance at
the district court's direction. Reyes did not appear for his December 12, 2016 trial date, so
the court ordered the forfeiture of Reyes' bond and issued a warrant for his arrest.

The State filed a motion for judgment against both Reyes and Surety on the bond
forfeiture. Surety moved to sever the forfeiture action from the underlying criminal
matter and served subpoenas on Assistant District Attorney Randall Hubert and Deputy
Sheriff Steve Saffell.

On April 27, 2017, the State filed a motion to quash the subpoena served on
Hubert. The district court held a hearing on the State's motion later that day. After
argument by the parties, the district court quashed the subpoena.

On May 12, 2017, the State filed a motion to quash the subpoena served on
Deputy Saffell. On May 19, 2017, the district court held a hearing on the State's motion
for judgment on the bond forfeiture, Surety's motion to sever the forfeiture actions from
the underlying criminal matter, and the State's motion to quash the subpoena served on
Saffell. After Surety proffered evidence in support of severance and in opposition to
judgment on the forfeiture, counsel argued their respective positions on the motions
before the court. The court took the matter under advisement and later that day issued an
order denying Surety's motion to sever the forfeiture action, granting the State's motion
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for judgment on the bond forfeiture, and finding the State's motion to quash the subpoena
served on Saffell was moot. Surety appeals.

JURISDICTION

As a preliminary matter, the State contends this court lacks jurisdiction because
there was no final judgment in the criminal case. Whether this court has jurisdiction is a
question of law over which we exercise unlimited review. See State v. Hall, 298 Kan.
978, 982-83, 319 P.3d 506 (2014).

A surety is in an unusual position in a criminal case. The parties to a criminal case
are the State and the defendant. The surety is a third party who posts a bond on the
defendant's behalf as an assurance that the defendant will appear before the court. The
surety agrees to forfeit the bond amount if the defendant defaults on the terms of the
bond. See State v. Dahmer, No. 99,384, 2009 WL 2242422, at *1 (Kan. App. 2009)
(unpublished opinion).

The district court has jurisdiction over a surety within the criminal action. K.S.A.
2017 Supp. 22-2807(4) states, in relevant part:

"By entering into a bond the obligors submit to the jurisdiction of any court having power
to enter the judgment upon default and irrevocably appoint the clerk of that court as their
agent upon whom any papers affecting their liability may be served."

The Kansas Criminal Code clearly provides for a judgment to be entered against
the surety in a criminal matter. But the State does not challenge the district court's
jurisdiction as set forth K.S.A. 2017 Supp. 22-2807(4); instead, it claims the appellate
court does not have jurisdiction to entertain the Surety's appeal until the underlying
criminal judgment is final. The State argues the criminal judgment in this particular case
is not final because Reyes has not been convicted and sentenced.
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It is true that the defendant may not appeal in a criminal case until he or she is
sentenced. See, e.g., Hall, 298 Kan. at 985 ("'[J]udgment in a criminal case becomes
effective, and the time period for an appeal starts running, when the defendant's sentence
is pronounced from the bench.'"). But that rule does not prevent this court from hearing
an appeal from a surety on a judgment that is final as to the surety. The State
acknowledges that this court has heard appeals from cases in which judgment is entered
against a surety. See, e.g., State v. Anguiano, No. 100,717, 2009 WL 3082586, at *1-2
(Kan. App. 2009) (unpublished opinion).

This court has jurisdiction to review final decisions from the district court. See
K.S.A. 2017 Supp. 22-3601(a) ("Any appeal permitted to be taken from a district court's
final judgment in a criminal case shall be taken to the court of appeals, except in those
cases reviewable by law in the district court or in which a direct appeal to the supreme
court is required."). Here, the district court ordered judgment on the bond forfeiture
against Surety. Because the decision was final as to the surety, we have jurisdiction to
consider the appeal.

ANALYSIS

Having resolved the issue of jurisdiction, we turn to the three arguments presented
by Surety on appeal: (1) The district court erred by granting the State's motion for
judgment on the bond forfeiture, (2) the district court erred by quashing Surety's
subpoena to Hubert, (3) the district court erred in finding as moot the motion to quash the
subpoena served on Deputy Saffell. We address each of Surety's arguments in turn.

Judgment on the bond forfeiture

The crux of Surety's argument on this issue is that the district court entered
judgment on the bond forfeiture without first severing the forfeiture action from the
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underlying criminal matter, which deprived Surety the opportunity to present a viable
defense. Forfeiture of appearance bonds is governed by K.S.A. 2017 Supp. 22-2807,
which provides a specific framework to enforce forfeiture of a surety bond. Relevant here
are the following provisions of the statute:

K.S.A. 2017 Supp. 22-2807(1)
 The district court is required by statute to declare a bond forfeited when the
"defendant fails to appear as directed by the court and guaranteed by an
appearance bond."

K.S.A. 2017 Supp. 22-2807(3)
 The district court has discretion to set aside such a forfeiture if it appears that
justice does not require its enforcement.
 The district court must set aside a forfeiture if, prior to entering judgment on
the forfeiture, the surety can prove that the defendant is incarcerated
somewhere within the United States.

K.S.A. 2017 Supp. 22-2807(4)
 When a forfeiture has not been set aside and the State has filed a motion
requesting it, the district court is required by statute to enter a judgment of
default on the forfeiture.
 The State's motion for judgment and notice of hearing must be served on the
clerk of the court and, in turn, the clerk of the court must mail copies of the
motion and notice of hearing to the obligors at their last known addresses.
 "No judgment may be entered against the obligor in an appearance bond until
more than 60 days after notice is served as provided herein."

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On December 12, 2016, Reyes failed to appear for trial as directed. On that same
day, the district court complied with K.S.A. 2017 Supp. 22-2807(1) by ordering forfeiture
of Reyes' bond, which was guaranteed by Surety. On January 21, 2017, the State filed a
motion for judgment on the bond forfeiture. Pursuant to K.S.A. 2017 Supp. 22-2807(4),
the State's motion for judgment and notice of hearing was served on the clerk of the court
and, in turn, the clerk of the court mailed Surety copies of the motion for judgment and
the notice of hearing. The original hearing date was set for March 24, 2017, which was
scheduled more than 60 days after notice was served as required by K.S.A. 2017 Supp.
22-2807(4).

At some point while the State's motion was pending, Surety's attorney contacted
the district attorney's office to tell it that Surety believed Reyes was in Mexico. Surety
asked whether the district attorney's office intended to extradite Reyes. The district
attorney's office refused to engage with Surety's attorney. Given this refusal, Surety
served a subpoena on Hubert seeking any records relating to the district attorney's
decision on whether the district attorney planned to extradite Reyes. The State moved to
quash the subpoena. Finding that the requested documents were privileged, work product,
and irrelevant to judgment on the bond forfeiture, the district court granted the State's
motion to quash.

Surety also served a subpoena on Deputy Saffell with the Sedgwick County
Sherriff's Department seeking any correspondence with the district attorney's office about
the same issue. The State filed a motion to quash the subpoena.

On May 19, 2017, the district court held a hearing on the State's motion for
judgment on the bond forfeiture, Surety's motion to sever the issue of forfeiture from the
underlying criminal matter, and the State's motion to quash the subpoena served on
Saffell. As argued in its motion, Surety asked the court at this hearing to sever the
forfeiture action and proceed in a separate civil matter because Surety wanted to present
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evidence under seal in opposition to the motion for judgment on the bond forfeiture.
Surety explained its belief that the State decided to forgo extraditing Reyes from Mexico
in favor of dropping the prosecution in order to collect the bond. Surety argued that,
under these facts, the bond would become a voidable contract because the State's refusal
to extradite Reyes made it impossible for Surety to produce him.

The district court ultimately denied Surety's motion to sever the forfeiture action
from the underlying criminal matter, holding that neither the judicial branch nor parties to
litigation control the State's decision regarding whether to prosecute criminal cases. The
district court went on to grant the State's motion for judgment on the forfeiture. The court
held that the bond was forfeited by its terms when Reyes failed to appear in court on
December 12, 2016, and "the State did not cause, create, encourage, or agree to [Reyes']
failure to appear." Even assuming the facts Surety alleged were true—that the district
attorney would not extradite Reyes—the court reiterated that the State had no obligation
to continue to prosecute pending cases at the direction of the court or the parties to the
litigation.

Although Surety never filed a motion to set aside the forfeiture under K.S.A. 2017
Supp. 22-2807(3), the court specifically rejected the notion that setting aside the
forfeiture was necessary to serve the ends of justice. Having determined it was
unnecessary to set aside the bond forfeiture under K.S.A. 2017 Supp. 22-2807(3), the
court held that K.S.A. 2017 Supp. 22-2807(4) mandated the entry of judgment on the
bond forfeiture. The court therefore entered judgment and ordered execution on the
judgment. Given its decision, the court then held the State's motion to quash the subpoena
served on Deputy Saffell was moot.

Surety claims the district court erred in denying its request to sever the forfeiture
action and treat it as a separate civil case. While it is true that the forfeiture proceeding is
a civil case, that fact does not mean that a separate civil action had to be filed in order to
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enter judgment on the forfeiture. When a surety enters into a security bond in a criminal
case, the surety impliedly agrees that liability may be determined without the initiation of
a separate action. By statute, sureties who post an appearance bond in a Kansas criminal
case submit to the jurisdiction of any court having power to enter judgment and liability
for that judgment "may be enforced on motion without the necessity of an independent
action." (Emphasis added.) K.S.A. 2017 Supp. 22-2807(4). "The importance of (this rule)
is that it permits the liability of a surety to be enforced through an expeditious, summary
procedure without the necessity of an independent action." 11A Wright, Miller & Kane,
Federal Practice and Procedure § 2972, p. 503 (2012) (discussing analogous federal rule
of criminal procedure).

Ultimately, we review for an abuse of discretion the district court's decision to
enter judgment on (enforce) the bond forfeiture without the necessity of an independent
action. The abuse of discretion standard is well known:

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based." State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011).

Although not entirely clear from its briefing, it appears Surety's argument is that
the district court's decision to deny Surety's request to sever the bond forfeiture from the
underlying criminal case is based on an error of law. Specifically, Surety claims the
court's decision not to litigate the matter in an independent civil action deprived it of the
opportunity to conduct discovery and mount a defense in response to the State's motion
for judgment on the bond forfeiture, which resulted in a denial of procedural due process.
We disagree.
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The basic elements of procedural due process are notice and an opportunity to be
heard. State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000). Appellate review of
alleged due process violations is a question of law over which this court has unlimited
review. Hemphill v. Kansas Dept. of Revenue, 270 Kan. 83, 89, 11 P.3d 1165 (2000).
With regard to notice, the record reflects that Surety had almost two months' notice of the
hearing on the State's motion for judgment on forfeiture. As for the opportunity to be
heard, the pleadings filed and the transcript of proceedings establish that Surety was
provided an opportunity to be heard in a meaningful manner. Surety asked the court to
sever the forfeiture proceedings so it could present information under seal regarding
Reyes' location so that the State could extradite Reyes back to the United States from
Mexico. Surety proffered that, if the court denied the State's motion to quash, Deputy
Saffell would testify that the district attorney did not intend to pursue extradition of
Reyes from Mexico. Based on this proffer, Surety argued it would be unfair to enter
judgment on the forfeiture against Surety when the State was no longer interested in
prosecuting Reyes.

The district court provided Surety with the notice required and a meaningful
opportunity to be heard with regard to the State's motion for judgment on the bond
forfeiture. For this reason, Surety was not deprived of its right to due process of the law
and the court did not abuse its discretion in denying Surety's request for a separate civil
action or in granting the State's motion for judgment on the bond forfeiture.

Subpoenas

Surety claims the district court erred in quashing the subpoenas served on Hubert
and Deputy Saffell. This court reviews the district court's decision on a motion to quash a
subpoena for an abuse of discretion. See State v. Gonzalez, 290 Kan. 747, Syl. ¶ 3, 234
P.3d 1 (2010). Judicial discretion is abused if the judicial action is arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person could agree with the district court. State v.
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Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011). The party claiming the district court
abused its discretion bears the burden of showing the abuse. State v. Stafford, 296 Kan.
25, 45, 290 P.3d 562 (2012).

Assistant District Attorney Randall Hubert

Surety issued a subpoena to Hubert seeking records "related to the District
Attorney's decision regarding extradition of the fugitive, Carlos Reyes." The State moved
to quash the subpoena, arguing Surety was not authorized to issue subpoenas under the
Kansas Criminal Code and Surety's requests were overbroad and sought irrelevant,
privileged, confidential, and protected information.

"When a claim of privilege, confidentiality, or irrelevance is raised in response to
a discovery request, a district court has a duty to permit discovery of only relevant
documents, thereby protecting against unnecessary and damaging disclosure of irrelevant
confidential material." Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, Syl. ¶ 18,
244 P.3d 642 (2010); see also K.S.A. 2017 Supp. 60-226(b) (discovery allowed for any
matter, not privileged, that is relevant to subject matter involved in pending action).
Accordingly, we first must determine whether the requested documents were relevant.

The district court held a hearing on the motion to quash the subpoena. Surety
argued that the documents regarding the State's decision not to extradite Reyes would
support Surety's argument that the State's inaction rendered the contract voidable. The
district court rejected Surety's argument, holding Surety's contract with the court was
breached when Reyes did not appear for trial and such a breach was a risk a surety takes
in writing bonds. The court noted the State was not required to make a statement about its
strategy in prosecuting a case. Ultimately, the court granted the State's motion to quash
the subpoena, finding the information sought by Surety was privileged, work product,
and irrelevant to the issue of the judgment on a forfeiture bond.
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The district court did not abuse its discretion in determining that the requested
information was irrelevant to issue of the judgment on the forfeiture of the bond. Whether
the State intended to extradite Reyes had no bearing on Surety's liability for the judgment
on the forfeiture. The terms of Surety's bond guaranteed Reyes' presence at discretion of
the court. The bond was in default when Reyes did not appear for trial on December 12,
2016. See K.S.A. 2017 Supp. 22-2807(1) (court "shall" declare forfeiture if defendant
does not appear). Surety acknowledged that the State did not do anything to prevent
Reyes from appearing for trial. Rather, Surety argues that the State impeded Surety's
ability to produce Reyes after the bond was in default. This court previously rejected a
similar argument in Dahmer, 2009 WL 2242422, at *4. In that case, the surety argued the
State was required to mitigate its damages by pursuing its own means of getting the
defendant transferred to Kansas after his arrest. The Dahmer court rejected that argument,
stating:

"Acceptance of American Surety's argument would shift the burden of compliance with
the terms of the appearance bond from the surety, which had agreed to be jointly liable
for any breach of the terms of the bond, to the State, which had made no such agreement.
The surety appearance bond is a specific promise that the defendant will appear
combined with sufficient security, i.e., the bond amount, such that the court is satisfied
that the defendant will keep the promise." 2009 WL 2242422, at *4.

Here, the State had no obligation to help Surety locate and extradite Reyes or to
continue to prosecute him. So evidentiary proof of whether the State intended to extradite
Reyes was irrelevant to the court's decision on the motion for judgment of forfeiture on
the bond. Thus, Surety did not meet its burden to show the district court abused its
discretion when it quashed Hubert's subpoena. See Ward, 292 Kan. at 550.




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Deputy Sheriff Steve Saffell

Surety argues the district court erred in finding moot the State's motion to quash
the subpoena served on Deputy Saffell. In support of error, Surety argues the subpoena
was "filed in response to the State's motion for judgment on forfeiture . . . [and] should
have been determined prior to the hearing on the motion for which the subpoenaed
information would have been used." Like the information requested from Hubert, the
information requested from Saffell also was irrelevant to issue of the judgment on the
forfeiture of the bond. Because the district court already had granted the State's motion
for judgment on the bond forfeiture, it did not err in finding moot the State's motion to
quash Saffell's subpoena.

Affirmed.