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State v. Mottolese

Supreme Court of Vermont

June 12, 2015

State of Vermont
Joseph Mottolese (Allstate Bail Bonds, Appellant)

On Appeal from Superior Court, Bennington Unit, Criminal Division Nancy Corsones, J.

Alexander Burke, Bennington County Deputy State’s Attorney, Bennington, for Plaintiff-Appellee.

James A. Valente of Costello, Valente & Gentry, P.C., Brattleboro, for Appellant Allstate Bail Bonds.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.


¶ 1. Appellant Allstate Bail Bonds (“Allstate”) challenges the trial court’s decision granting the State’s motion for forfeiture of bond. On appeal, Allstate argues that the trial court abused its discretion in declining to reduce the amount of bail forfeiture when Allstate could not produce defendant due to his out-of-state incarceration. We agree that Allstate is entitled to a reduction in bail forfeiture, and therefore reverse.

¶ 2. On June 17, 2013, defendant was arraigned for grand larceny and possession of stolen property. Two days later, the court set bail at $35, 000. Defendant posted bail on July 2, 2013 through a bond procured from Allstate. Allstate delivered a surety bond for defendant and signed a “Surety Bond” contract with the State, which provides in relevant part:

In order to secure the defendant’s release I/we, the undersigned, do voluntarily agree to act as surety for the defendant and to become firmly bound to the Court to guarantee the appearance of the defendant at all required court proceedings, including execution of sentence. I/We, the undersigned, understand that as surety it is my/our responsibility to know when and where the defendant is to appear.

As a condition of his release, defendant could reside in his home state of New York.

¶ 3. On January 10, 2014, defendant was incarcerated in New York on separate charges. As a result of his incarceration, defendant failed to appear at Bennington Superior Court for final calendar call on February 4, 2014, a required appearance. The next day, the court issued a warrant for defendant’s arrest. On March 11, 2014, the State of Vermont filed a motion to forfeit bail due to defendant’s failure to appear. See 13 V.S.A. § 7560a(a)(2)(A). A hearing on the motion was held March 25, 2014, but after Allstate suggested it would seek a surety warrant, the court continued the hearing to May. Soon after, Allstate requested a surety warrant, seeking to collect defendant upon release in New York and return him to Vermont. See 13 V.S.A. § 7562. On May 2, 2014, the court denied the request, stating that under State v. Marsh, 173 Vt. 531, 789 A.2d 939 (2001) (mem.), the court had no authority to issue a surety warrant when defendant was incarcerated at the time Allstate made its request.

¶ 4. On May 29, 2014, the court held the second hearing on the State’s motion to forfeit bail. Again, defendant did not appear due to being incarcerated. Allstate moved for a reduction in forfeiture to an amount consistent with the cost of extradition. See 13 V.S.A. §§ 7560a(d), 7570. [1] The State contested that a reduction would ignore Allstate’s obligation to secure defendant’s appearance in court.

¶ 5. On June 17, 2014, the court ordered full forfeiture, finding that defendant’s incarceration did not justify relief from forfeiture. It explained that “[i]f the [c]ourt limited the Surety’s obligation to paying for transportation costs, then it would leave the State with the burden of finding Defendants and ensuring they attend court proceedings, ” and “doing so would erode the obligations of the Surety.” Allstate appeals the order, requesting return of its forfeited security less the costs of extradition. We reverse the trial court’s order because, as we explain below, an examination of the totality of circumstances through factors relevant to forfeiture reveals that denial of a reduction in forfeiture was inappropriate and would not shape the behavior of future bail-bond sureties in a way the Legislature intended.

¶ 6. We review a trial court's decision to forfeit bail for an abuse of discretion. See State v. Brown, 2005 VT 104, ¶ 10, 179 Vt. 22, 890 A.2d 79. Abuse of discretion requires a showing that the trial court withheld its discretion entirely or that it was exercised for clearly untenable reasons or to a clearly untenable extent. State v. Hutchins, 134 Vt. 441, 443, 365 A.2d 507, 508 (1976). We must also examine the trial court’s interpretation of Vermont’s bail statutes and correlated case law. On such questions of law, our review is de novo. In re T.S.S., 2015 VT 55, ¶ 15, ___ Vt. ___, ___ A.3d ___.

ΒΆ 7. This Court has not squarely addressed whether a bail-bond surety is entitled to relief from full liability where a defendant's appearance is prevented by incarceration in another jurisdiction, so we first look to our existing case law on the general rights and responsibilities of bail-bond ...

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