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State v. Wharton

Court of Appeals of Idaho

September 14, 2017

STATE OF IDAHO, Plaintiff-Respondent,
v.
TRAVIS WHARTON, Defendant, and ALADDIN BAIL BONDS as claimed agent for AMERICAN CONTRACTORS INDEMNITY COMPANY, Surety/Real Party in Interest-Appellant.

         2017 Opinion No. 34S

         Appeal from the District Court of the Fourth Judicial District, State of Idaho, Elmore County. Hon. Jonathan Medema, District Judge.

         Order denying motion to set aside forfeiture and exonerate bond, affirmed.

          Nevin, Benjamin, McKay & Bartlett, LLP; Christopher D. Sherman, Boise, for appellant. Christopher D. Sherman argued.

          Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.

          HUSKEY, Judge

         Aladdin Bail Bonds (Aladdin)[1] appeals from the district court's order denying Aladdin's motion to set aside forfeiture and exonerate bond posted on behalf of Travis Wharton. Aladdin argues the district court made clearly erroneous factual findings and abused its discretion when it failed to consider Aladdin's efforts to locate and apprehend Wharton under Idaho Criminal Rule 46(h)(1)(B). Aladdin also contends the district court abused its discretion when it failed to consider Aladdin's recovery efforts as a relevant, non-enumerated factor under I.C.R. 46(h)(1). The State asserts Aladdin failed to show error because there is an incomplete record on appeal and Aladdin's argument on appeal is not preserved. We affirm.

         I.

         FACTUAL AND PROCEDURAL BACKGROUND

         The State charged Wharton with trafficking in marijuana and obstructing and delaying an officer. The magistrate set bail in the amount of $100, 000. Benjamin Barrera (Barrera), as a licensed bail agent of the American Contractors Indemnity Company (American Contractors), signed the bail bond posted for Wharton. If Wharton failed to appear, American Contractors agreed to pay Wharton's $100, 000 bond. According to the district court, attached to the bail bond was a power of attorney form issued by American Contractors, which gave Aladdin the power to act as the attorney-in-fact for American Contractors in executing a bail bond.[2]

         Wharton failed to appear for a motion hearing and his trial counsel was unable to explain Wharton's absence. The district court revoked Wharton's bail, issued an arrest warrant, and ordered the bond posted by American Contractors be forfeited. Pursuant to Idaho Code § 19-2915, the clerk of the court sent notice to American Contractors and Aladdin, an agent authorized to receive such notices, of the district court's intention to discharge the order of forfeiture if Wharton was not brought before the court within 180 days of the order of forfeiture.

         Three days before the expiration of the 180-day time period, Aladdin filed a motion to set aside the order of forfeiture and to exonerate American Contractors from further liability under the bond. Aladdin supported its motion with affidavits from Aladdin's bond recovery agents. Aladdin argued the district court should consider Aladdin's efforts to locate and return Wharton as a factor under I.C.R. 46(h). The State filed an objection, arguing the district court should not exonerate the bond because Wharton had a previously dismissed Iowa parole violation, had a previous felony drug conviction, and Wharton was committing new crimes at the time he was located by Aladdin. Aladdin responded that the district court should not consider Wharton's previous parole violation because it is "irrelevant and not an enumerated factor under I.C.R. 46(h)." Aladdin explained that the district court should consider all relevant factors, which were the enumerated factors in I.C.R. 46(h). Because Wharton's previous parole violation was not an enumerated factor, Aladdin argued it was not a relevant factor to consider.

         After a hearing on the motion, the district court denied Aladdin's motion. In considering "the participation of the person posting bail in locating and apprehending the defendant" under I.C.R. 46(h)(1)(B), the district court held it could not attribute Aladdin's efforts to locate and apprehend Wharton to American Contractors or to American Contractors' licensed bail agent, Barrera, because there was no evidence of any agreement or relationship between American Contractors and Aladdin, nor was there any evidence of an agreement or relationship between Barrera and Aladdin. The district court held: "What, if any, agreement or relationship exists between American Contractors and Aladdin has not been shown or even argued to the Court." Further, the district court explained that while it suspected Aladdin and American Contractors had some agreement, there was nothing in the record to support that suspicion. Even if there was evidence of the relationship, the district court stated:

[T]he court is not sure the analysis would change. American Contractors would still be the "person posting bail" even if they had subsequently passed the risk of that undertaking onto someone else. If the order of forfeiture "becomes" a judgment under I.C. ยง ...

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