NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Honorable Randal K.O. Lee presided. 1

NO. CAAP-13-0004352

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee,

v.

DANIEL WOMACK, Defendant-Appellee,

v.

EXODUS BAIL BOND, 

Real-Party-In-Interest-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CR. NO. 09-1-0878)

SUMMARY DISPOSITION ORDER

(By: Fujise, Presiding Judge, Reifurth and Ginoza, JJ.)

Real-Party-In-Interest-Appellant Exodus Bail Bond

(Exodus) appeals from an "Order Denying Motion to Set-Aside Bail

Forfeiture" (Order Denying Set Aside) filed on October 9, 2013 in

the Circuit Court of the First Circuit (circuit court). 

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On appeal, Exodus contends the circuit court erred when

it: (1) did not find "good cause" to set aside the bail

forfeiture judgment because there was nearly a four year delay

between Defendant-Appellee Daniel Womack's (Womack) failure to

appear for trial call and the written notice given to Exodus of

bail forfeiture; (2) refused to issue a subpoena to the military

to release Womack's records; and (3) denied Exodus's request to
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Exodus's Opening Brief does not comply with Hawai#i Rules of Appellate 2

Procedure (HRAP) Rule 28 in several ways, which alone raises the potential for

dismissal of the appeal and/or waiver of issues sought to be raised. 

Bettencourt v. Bettencourt, 80 Hawai#i 225, 230, 909 P.2d 553, 558 (1995). 

For example, the statement of the case does not include references to the

record and two out of three points in the argument section of the brief do not

include citations to authority. HRAP Rule 28(b)(3), (7). However, because we

seek to address cases on the merits where possible, we address Exodus's

arguments to the extent they are discernable. Bettencourt, 80 Hawai#i at 230,

909 P.2d at 558. Exodus's counsel is again cautioned to comply with HRAP Rule

28, and future non-compliance may result in sanctions. State v. Miles, 135

Hawai#i 525, 526n.2, 354 P.3d 178, 179n.2 (App. 2015).

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enlarge the search period for a second time to locate Womack.2

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the arguments advanced and the issues raised, as well as relevant

statutory and case law, we resolve Exodus's points of error as

follows.

Plaintiff-Appellee State of Hawai#i (State) charged

Womack with: two counts of Assault in the Second Degree, in

violation of Hawaii Revised Statutes (HRS) § 707-711(1)(d)

(2014); two counts of Terroristic Threatening in the First

Degree, in violation HRS § 707-716(1)(e) (Supp. 2012); and

Criminal Property Damage in the Third Degree, in violation of HRS

§ 708-822(1)(b) (2014). The court set bail for $15,000 and

Exodus issued bail. 

On August 6, 2009, Womack failed to appear for trial

call, after which the circuit court issued a bench warrant for

his arrest and orally granted the State's request for bail

forfeiture. 

On April 30, 2013, nearly four years after Womack

failed to appear for trial call, the circuit court filed a

"Judgment and Order of Forfeiture of Bail Bond" (Bail Forfeiture

Judgment). On May 28, 2013, Exodus received written notice from

the State of the Bail Forfeiture Judgment and timely filed its

"Motion to Set-Aside Bail Forfeiture" (Motion to Set Aside) on

June 20, 2013. Thereafter, on October 9, 2013, the circuit court

issued its Order Denying Set Aside. 
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HRS § 804-51 provides: 3

§ 804-51 Procedure. Whenever the court, in any

criminal cause, forfeits any bond or recognizance given in a

criminal cause, the court shall immediately enter up

judgment in favor of the State and against the principal or

principals and surety or sureties on the bond, jointly and

severally, for the full amount of the penalty thereof, and

shall cause execution to issue thereon immediately after the

expiration of thirty days from the date that notice is given

via personal service or certified mail, return receipt

requested, to the surety or sureties on the bond, of the

entry of the judgment in favor of the State, unless before

the expiration of thirty days from the date that notice is

given to the surety or sureties on the bond of the entry of

the judgment in favor of the State, a motion or application

of the principal or principals, surety or sureties, or any

of them, showing good cause why execution should not issue

upon the judgment, is filed with the court. If the motion or

application, after a hearing held thereon, is sustained, the

court shall vacate the judgment of forfeiture and, if the

principal surrenders or is surrendered pursuant to section

804-14 or section 804-41, return the bond or recognizance to

the principal or surety, whoever shall have given it, less

the amount of any cost, as established at the hearing,

incurred by the State as a result of the nonappearance of

the principal or other event on the basis of which the court

forfeited the bond or recognizance. If the motion or

application, after a hearing held thereon, is overruled,

execution shall forthwith issue and shall not be stayed

unless the order overruling the motion or application is

appealed from as in the case of a final judgment.

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(1) Exodus's Motion to Set Aside Bail Forfeiture

(a) "Good cause"

Exodus contends that the circuit court erred when it

did not find "good cause" to set aside the bail forfeiture,

arguing that the nearly four-year delay between Womack's failure

to appear and the written notice given to Exodus constituted good

cause.

Under HRS § 804-51 (2014), once a surety has notice of 3

a bail forfeiture judgment, the surety has thirty days after

notice to move to set aside the judgment for good cause. See

State v. Diaz, 128 Hawai#i 215, 223, 286 P.3d 824, 832 (2012). 

"[G]ood cause why execution should not issue upon the judgment of

forfeiture may be satisfied by the defendant, prior to the

expiration of the thirty-day search period: (1) providing a

satisfactory reason for his or her failure to appear when
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required; or (2) surrendering or being surrendered." State v.

Camara, 81 Hawai#i 324, 330, 916 P.2d 1225, 1231 (1996)

(quotation marks omitted). A satisfactory reason for failure to

appear may be "uncontrollable circumstances [that] prevented

appearance pursuant to the stipulations in the bond, or that the

default of the principal was excusable." Id. at 330, 916 P.2d at

1231 (citation, quotation marks, and brackets omitted). 

In this case, Exodus did not locate Womack during the

search period. Exodus did not provide a satisfactory reason for

why Womack failed to appear for trial call, and Womack was not

surrendered. Thus, under relevant case law, Exodus did not

satisfy the criteria for showing good cause to set aside the Bail

Forfeiture Judgment.

(b) Prejudicial effect

Although Exodus argues that the delayed notification of

bail forfeiture should constitute good cause, the delay is more

properly addressed in terms of whether Exodus was prejudiced. 

In State v. Ranger Ins. Co. ex rel James Lindblad, Inc., 83

Hawai#i 118, 925 P.2d 288 (1996), the Hawai#i Supreme Court

analyzed whether a delay of nearly three months between the

circuit court's oral granting of the prosecution's motion for

forfeiture of bail and the entry of a bail forfeiture judgment

constituted reversible error. Id. at 121-22 925 P.2d at 291-92. 

The supreme court stated that pursuant to HRS §§ 804-1, -7.4(2),

-17, and -51 (1993):

upon a defendant's unexcused failure to appear for a court

proceeding, (1) the defendant's default shall be entered,

(2) the default shall be evidence of the breach of an

appearance bond, and (3) if the defendant's bail bond is

forfeited, the court shall immediately enter a forfeiture

judgment in favor of the State and against the defendant and

his or her surety.

Id. at 122, 925 P.2d at 292 (internal quotation marks and

brackets omitted). The supreme court concluded that "[h]aving

orally granted the prosecution's motion for bail forfeiture, the

circuit court should, sua sponte, 'immediately' have entered a

forfeiture judgment." Id. (emphasis added). Despite the fact
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that the forfeiture judgment was not entered immediately in

Ranger, the supreme court held that the surety was not prejudiced

by the delay. Id. 

The supreme court concluded that because the surety had

actual notice of the defendant's failure to appear, the surety

likely benefitted from the delay in entering the forfeiture

judgment rather than being prejudiced by it. Id. Therefore, the

supreme court held "that the circuit court's 'delayed' entry of

forfeiture judgment resulted in no prejudice to the [s]urety and

did not render the judgment void or otherwise unlawful." Id.

In this case, the record is unclear and the circuit

court did not make any findings as to whether Exodus had actual

notice of Womack's failure to appear for trial call on August 6,

2009, prior to the Bail Forfeiture Judgment being entered on

April 30, 2013 and the written notice on May 28, 2013. The

circuit court minutes indicate that at the trial call, Kevin

O'Grady, Womack's attorney, stated that he "did not know where

[Womack] was and he contacted [Exodus] and they also were not in

contact with [Womack]." This indicates that Exodus may have had

notice that Womack was missing and would not appear as required. 

However, the transcript from the trial call is not in the record,

and the court minutes are not a substitute for the transcript

because they "are merely prepared for the court's own use." 

State v. English, 68 Haw. 46, 52, 705 P.2d 12, 16 (1985)

(citation, quotation marks, and brackets omitted). 

In light of Ranger, if Exodus had actual notice of

Womack's failure to appear at the trial call in or around the

same time period, Exodus was not prejudiced by the delay in

entering the Bail Forfeiture Judgment. The record is not clear

as to whether Exodus did in fact have such actual notice. 

Therefore, we conclude under Ranger that the case should be

remanded for the circuit court to determine whether Exodus had

actual notice of Womack's non-appearance in or around the time

period of the trial call, and whether Exodus was prejudiced by

the delayed entry of the Bail Forfeiture Judgment.
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 The circuit court had already continued the hearing on Exodus's Motion 4

to Set Aside, allowing Exodus additional time to search for Womack. 

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(2) Subpoena to the Military

Exodus contends that the circuit court erred when it

did not issue a subpoena to the military to release Womack's

records to assist Exodus in determining Womack's whereabouts. In

the first hearing on Exodus's Motion to Set Aside on June 25,

2013, the circuit court denied Exodus's request for a subpoena on

the basis that Exodus needed to first do its due diligence in

contacting the military before the court would step in. At the

second hearing held on September 24, 2013, Exodus could not

provide any further information as to what efforts it had made to

contact the military and obtain Womack's records.

Based on this record, we conclude that the circuit

court did not abuse its discretion in denying Exodus's request to

subpoena Womack's military records.

(3) Extension of search period

Exodus contends that the circuit court erred when it

denied Exodus's request to enlarge the search period. Based on 4

Camara, Exodus was required to show good cause within the thirtyday search period. 81 Hawai#i at 330, 916 P.2d at 1231. 

Therefore, the circuit court did not abuse its discretion when it

denied Exodus's request to extend the time to locate Womack even

further beyond the thirty-day search period.

Therefore,

IT IS HEREBY ORDERED that the "Order Denying Motion to

Set-Aside Bail Forfeiture," filed on October 9, 2013 in the

Circuit Court of the First Circuit is affirmed to the extent that

Exodus did not show "good cause" to set aside bail forfeiture. 

However, this case is remanded to the circuit court for further

proceedings regarding whether Exodus was prejudiced by the 
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delayed entry of the Bail Forfeiture Judgment, consistent with

this decision.

DATED: Honolulu, Hawai#i, November 27, 2015.

On the briefs:

Anthony T. Fujii, 

for Real-Party-In- Presiding Judge

Interest-Appellant.

Stephen K. Tsushima,

Deputy Prosecuting Attorney, Associate Judge

City and County of Honolulu,

for Plaintiff-Appellee.

Associate Judge