State of Connecticut v. Clayton Gooden (2010)

MEMORANDUM OF DECISION ON THE MOTION OF WILFRED DIAZ OF BORICUA BAIL BONDS TO RELIEVE SURETY OF RESPONSIBILITY

Hartford Police arrested the Defendant, Clayton Gooden, on drug and criminal trespass charges.   The Defendant arranged for Wilfred Diaz, a professional bail bondsman, to post a $65,000.00 bond, securing the Defendant's release.   Gooden, however, failed to appear in court as required on September 11, 2009.   The court at that time ordered him re-arrested, forfeited the $65,000.00 bond and stayed its execution for six months pursuant to Connecticut General Statutes Section 54-65a.¹

On April 8, 2010 counsel for Bondsman Diaz filed the instant motion asking the court to relieve the surety from responsibility for the $65,000.00 bond.   Counsel asserts that the Defendant had been taken into custody in Jamaica and that Connecticut's Office of the Chief State's Attorney declined to pursue extradition.   Counsel claims that the “bondsman is subject to forfeiting the bond for a situation which is entirely out of his control” and seeks in equity “an order of relief from [the] responsibility of the bond.”

The Defendant's Motion raises many interesting questions:

Is the bond issued in this criminal case governed solely by Connecticut General Statutes Section 54-65a and the related section of the Practice Book, 38-22? 2

Do these provisions provide the only remedy for a similarly-situated bondsman or

Are the provisions of Connecticut General Statutes 52-238a, a civil statute, applicable?

What effect, if any, accrues from the filing of Bondsman Diaz's motion?   Are the time limits of 54-65 a tolled?

Since the motion invokes equity, should the surety's common-law rights to apprehend and surrender his principal be considered?   See State v. Nugent, 199 Conn 537 (1986).   What about the surety's right under C.G.S Section 54-65 3 to apply to the court for a mittimus whenever the surety believes that his principal intends to abscond?

Should the court in equity consider the nature of the contract between the Defendant and the bondsman?   Aren't the circumstances from which the bondsman seeks relief part of the risk he assumed when he charged a fee for the bond?

These are fascinating issues, but the court does not consider any of them in determining the Defendant's motion because to do so would be premature.

His motion relies on C.G.S. Section 52-238(a), but the Defendant does not recite the statute in full.   He omits first the two phrases, and they determine the issue:

“In any action on a penal bond, containing any condition which has been broken, such damages only shall be assessed as are equitably due, and judgment shall not be entered for the whole penalty, unless it appears to be due.”   C.G.S. Section 52-238(a) (emphasis added).

Counsel conceded at the hearing on the motion that there is no action of any kind pending for the enforcement of the bond issued by his client.   The State of Connecticut may eventually initiate an action to collect the bond, but unless and until such an action is brought, counsel's arguments, defenses, claims of inequity and all of this court's queries are premature.

A court may one day determine some or all of the questions presented by this motion if and when an action is begun to collect the bond, but until that occurs, the Defendant's motion is premature, and it is DENIED on that basis.

Dated at Hartford, CT this 13th day of July, 2010

Carbonneau, J.

The Court

FOOTNOTES

FN1. (a) Whenever an arrested person is released upon the execution of a bond with surety in an amount of five hundred dollars or more and such bond is ordered forfeited because the principal failed to appear in court as conditioned in such bond, the court shall, at the time of ordering the bond forfeited:  (1) Issue a rearrest warrant or a capias directing a proper officer to take the defendant into custody, (2) provide written notice to the surety on the bond that the principal has failed to appear in court as conditioned in such bond, except that if the surety on the bond is an insurer, as defined in section 38a-660, the court shall provide such notice to such insurer and not to the surety bail bond agent, as defined in section 38a-660, and (3) order a stay of execution upon the forfeiture for six months.   When the principal whose bond has been forfeited is returned to custody pursuant to the rearrest warrant or a capias within six months of the date such bond was ordered forfeited, the bond shall be automatically terminated and the surety released and the court shall order new conditions of release for the defendant in accordance with section 54-64a.   When the principal whose bond has been forfeited returns to court voluntarily within five business days of the date such bond was ordered forfeited, the court may, in its discretion, and after finding that the defendant's failure to appear was not wilful, vacate the forfeiture order and reinstate the bond.   Such stay of execution shall not prevent the issuance of a rearrest warrant or a capias.(b) Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate of that portion of the forfeited amount as may be fixed by the court or as may be established by a schedule adopted by rule of the judges of the court..  FN1. (a) Whenever an arrested person is released upon the execution of a bond with surety in an amount of five hundred dollars or more and such bond is ordered forfeited because the principal failed to appear in court as conditioned in such bond, the court shall, at the time of ordering the bond forfeited:  (1) Issue a rearrest warrant or a capias directing a proper officer to take the defendant into custody, (2) provide written notice to the surety on the bond that the principal has failed to appear in court as conditioned in such bond, except that if the surety on the bond is an insurer, as defined in section 38a-660, the court shall provide such notice to such insurer and not to the surety bail bond agent, as defined in section 38a-660, and (3) order a stay of execution upon the forfeiture for six months.   When the principal whose bond has been forfeited is returned to custody pursuant to the rearrest warrant or a capias within six months of the date such bond was ordered forfeited, the bond shall be automatically terminated and the surety released and the court shall order new conditions of release for the defendant in accordance with section 54-64a.   When the principal whose bond has been forfeited returns to court voluntarily within five business days of the date such bond was ordered forfeited, the court may, in its discretion, and after finding that the defendant's failure to appear was not wilful, vacate the forfeiture order and reinstate the bond.   Such stay of execution shall not prevent the issuance of a rearrest warrant or a capias.(b) Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate of that portion of the forfeited amount as may be fixed by the court or as may be established by a schedule adopted by rule of the judges of the court.

FN2. Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate in the following amount:  (1) 46 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 210 days of the date such bond was ordered forfeited;  (2) 38 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 240 days of the date such bond was ordered forfeited;  (3) 30 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 270 days of the date such bond was ordered forfeited;  (4) 23 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 300 days of the date such bond was ordered forfeited;  (5) 15 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 330 days of the date such bond was ordered forfeited;  (6) 7 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited..  FN2. Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate in the following amount:  (1) 46 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 210 days of the date such bond was ordered forfeited;  (2) 38 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 240 days of the date such bond was ordered forfeited;  (3) 30 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 270 days of the date such bond was ordered forfeited;  (4) 23 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 300 days of the date such bond was ordered forfeited;  (5) 15 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within 330 days of the date such bond was ordered forfeited;  (6) 7 percent of the amount of the bond ordered forfeited if the arrested person is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited.

FN3. Any surety in a recognizance in criminal proceedings, who believes that his principal intends to abscond, shall apply to a judge of the Superior Court, produce his bail bond or evidence of his being a surety, and verify the reason of his application by oath or otherwise.   Thereupon, the judge shall immediately grant a mittimus, directed to a proper officer or indifferent person, commanding him immediately to arrest the principal and commit him to a community correctional center.   The Community Correctional Center Administrator shall receive the principal and retain him in a community correctional center until discharged by due order of law.   The surrender of the principal shall be a full discharge of the surety upon his bond or recognizance..  FN3. Any surety in a recognizance in criminal proceedings, who believes that his principal intends to abscond, shall apply to a judge of the Superior Court, produce his bail bond or evidence of his being a surety, and verify the reason of his application by oath or otherwise.   Thereupon, the judge shall immediately grant a mittimus, directed to a proper officer or indifferent person, commanding him immediately to arrest the principal and commit him to a community correctional center.   The Community Correctional Center Administrator shall receive the principal and retain him in a community correctional center until discharged by due order of law.   The surrender of the principal shall be a full discharge of the surety upon his bond or recognizance.

Carbonneau, John L., J.