[Cite as State v. C.L. , 2021-Ohio-3396.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. C.L.

Defendant

and

T-BONDS Appellant C.A. No. 20CA011699

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 14CR090081

DECISION AND JOURNAL ENTRY Dated: September 27, 2021

CALLAHAN, Judge. {¶1} Appellant, T-Bonds, appeals an o rder of the Lorain County Court of Common

Pleas that forfeited bond. This Court reverses.

I. {¶2} On August 11, 2014, C.L. was charged with one count of gross se xual imposition. He pleaded not guilty, and T-Bonds posted a $5,000 bond as sure ty to secure his appearance. In October 2014, an indictment issued that charged C.L. with gross sexual imposition and assault. C.L. failed to appear for arrai gnment, and the trial court revo ked his bond on December 2, 2014. The docket does not bear any indication that the clerk served n otice of the forfeiture upon TBonds.2

{¶3} Nothing further occurred in the case until March 29, 2019, when the State of Ohio moved to set a hearing on the forfeiture of C.L.’s bond, noting that C.L. remained at large. The

certificate of service indicates that the motion was sent to co unsel for T-Bonds. Five days later, the trial court journalized an or der that scheduled a show caus e hearing on April 15, 2019. The

bottom of the order indicates that counsel for C.L. and the Sta te were provided with a copy, but

not counsel for T-Bonds. The doc ket does not bear indication t hat the clerk served notice of the forfeiture on T-Bonds at any point. Nonetheless, counsel for T -Bonds appeared on April 15, 2019, and requested a continuance, which the trial court grante d. A second continuance was granted in August 2019 and, shortly thereafter, T-Bonds filed a brief addressing whether there was good cause for the bail not t o be forfeited. In that brief , T-Bonds argued that the notice required by law had not been given, resulting in inability to l ocate C.L. Seven further continuances were granted so tha t T-Bonds could make further at tempts to locate him. On November 2, 2020, with C.L. still at large, the trial court den ied T-Bonds’ final request for a continuance and heard arguments regarding forfeiture. On Novem ber 4, 2020, the trial court

ordered the bond forfeited. T-B onds filed this appeal.

II.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST THE SURETY IN VIOLATION OF R.C. 2937.36 AS NOTICE WAS NEVER GIVEN TO THE SURETY OF FORFEITURE. {¶4} T-Bonds’ first assignment of erro r argues that the trial court erred by forfeiting bond when notice of the forfeiture was never served in complian ce with R.C. 2937.36(C). This Court agrees.3

{¶5} Crim.R. 46 permits pre trial release subject to financial condit ions in the form of unsecured bail bond, bail bond secured by a deposit, or a suret y bond. Crim.R. 46(B)(1). “A surety bond is a contract in which the surety promises the cour t that it will pay a monetary penalty if the accused who is released on the bond posted by th e surety fails to appear in court

when ordered.” State v. Scherer , 108 Ohio App.3d 586, 590 (2d Dist.1995). A surety does not have a duty to perform unless the accused fails to appear. Id . In the event of nonappearance, the surety can still be excused from payment if it demonstrates “go od cause by production of the body of the accused or other wise[.]” R.C. 2937.36(C). See also Scherer at 590-591. This Court generally reviews a trial court’ s determination that bond shoul d be forfeited for an abuse of discretion, but we review the int erpretation and application of R.C. 2937.36 de novo. State v.

T.G-B. , 9th Dist. Lorain No. 19CA011556, 2020-Ohio-4343, ¶ 7. But see State v. Dye , 5th Dist. Fairfield No. 17 CA 00045, 2018-Ohio-4551, ¶ 34 (concluding tha t a trial court abused its discretion by entering judgment against a surety on a bond with out meeting the relevant notice requirements). {¶6} R.C. 2937.36(C) 1 governs the forfeiture of recognizance bonds, providing that [u]pon declaration of forfeiture, the magistrate or clerk of th e court adjudging forfeiture shall * * * notify the accused and each surety within fifteen days after the declaration of forfeiture by ordinary mail * * * of the default of the accused and the adjudication of forfeiture and require each of them to show cause on or before a date certain to be stated in the notice, and which sha ll not be less than forty-five nor more than sixty days from the date of mailing no tice, why judgment should not be entered against each of them for the penalty stat ed in the recognizance. (Emphasis added.) The notice requirement in R.C. 2937.36(C) se rves to provide the surety with time to locate the defendant before the show cause hearing and avoid a judgment. Univ. Hts. v.

1 R.C. 2935.36 was amended in 2011. The time requirements now p resent in the statute were not contained in the previous version.4

Allen , 8th Dist. Cuyahoga No. 107211, 2019-Ohio-2908, ¶ 17, quoting State v. Lott , 1st Dist. Hamilton No. C-130543, 2014-Ohio-3404, ¶ 15. “‘The sweep of R. C. 2937.36(C) is broad enough to cover those situations w here the surety is unaware of the non-appearance of the defendant-principal until the bond is forfeited. In those situ ations, the surety has a due process expectation of the notice and opportunity to show good cause pr ovided for in R.C. 2937.36(C).’”

Allen at ¶ 18, quoting State v. Martin , 2d Dist. Montgomery No. 21716, 2007-Ohio-3813, ¶ 22. {¶7} In this case, the trial court journalized an order on December 2, 2014, that revoked C.L.’s bond upon his failure to appear. Under R.C. 293 7.36(C), “the magistrate or clerk” was obligated to notify the surety of the forfeiture by ordinary mail within fifteen days, but it is undisputed that notice was not provided. 2 The use of the word “shall” indicates that this obligation was mandato ry, not permissive. See Dorrian v. Scioto Conservancy Dist. , 27 Ohio St.2d 102 (1971), paragraph one of the syllabus. As the Suprem e Court of Ohio has explained, “‘“Shall” means must.’ * * * And ‘[t]he word “must” is mandat ory. It creates an obligation.’”

Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, ¶ 13, quoting Application of Braden , 105 Ohio App. 285, 286 (1st Dist.1957) and Willis v. Seeley , 68 N.E.2d 484, 485 (C.P.1946). Absent an expression of legisla tive intent that is clear and un equivocal from the language of the statute itself, this Court ca nnot construe R.C. 2937.36(C) as a nything but mandatory. See

Dorrian at 108 and paragraph one of the syllabus. See also State v. Morgan , 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 21-23.

2 In addition, T-Bonds raised co mpliance with R.C. 2937.36(C) in writing shortly after the trial court ultimately sche duled a show cause hearing. T-B onds’ argument was timely asserted and has not been forfeited on appeal. See generally State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, ¶ 10.5

{¶8} Although it is apparent from the record that notice was not pro vided to T-Bonds in compliance with R.C. 2937.36(C) , courts do not generally fin d error in connection with the forfeiture of bond without a showing of prejudice. In a case i n which statutory notice of the forfeiture was not at issue, the Supreme Court of Ohio has conc luded that “‘[t]he good cause contemplated’” by a former ver sion of R.C. 2937.36(C) “‘goes to the presentation of good and sufficient reasons for the nonappearance, not to good and suffi cient reasons why the surety could

not locate the defendant.’” State v. Ward , 53 Ohio St.2d 40, 42 (1978), quoting State v. Ward , 3d Dist. Putnam No. 1-76-59, 1976 WL 189013, *3 (Dec. 22, 1976). When compliance with the statutory notice provisions is at issue, however, courts have a lso accounted for the surety’s due process interest in receiving notice. Thus, in those circumsta nces, courts consider whether the surety “could have demonstrated good cause * * * had [it] recei ved the statutory notice[.]” See Dept. of Liquor Control v. Calvert , 195 Ohio App.3d 627, 2011-Ohio-4735, ¶ 27 (6th Dist.)

. See

also State v. Jackson , 1st Dist. Hamilton No. C-200153, 2021-Ohio-1646, ¶ 22; State v. Wane , 12th Dist. Butler Nos. CA 2020-01-010, CA2020-01-011, CA2020-01- 014, CA2020-01-015, 2020-Ohio-4874, ¶ 22. Although this Court would not suggest th at the passage of time necessarily contributes to a dem onstration of prejudice in ever y case, in this case—as T-Bonds noted in its argument before the trial court—the five-year dela y hampered its ability to locate C.L. despite its efforts to fi nd him in both Florida and Puerto Rico. {¶9} In reaching this conclusion, this Court also emphasizes that it is incumbent upon sureties to remain abreast of court proceedings in cases in whi ch they undertake to secure the appearance of the accused. Nonetheless, given the mandatory na ture of R.C. 2937.36(C), the failure of notice over a period of five years, and the prejudic e that T-Bonds suffered in this case,6

this Court concludes that the t rial court erred by ordering the bond forfeited absent compliance with the notification req uirements of R.C. 2937.36(C). {¶10} T-Bond’s first assignment of error is sustained.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED IN ENTERING JUDGMENT AGAINST THE SURETY IN VIOLATION OF R.C . 2937.36 AS A SHOW CAUSE HEARING WAS NOT SET WITHIN FORTY-FIVE TO SIXTY DAYS OF NOTICE TO THE SURETY. {¶11} T-Bonds’ second assignment of erro r argues that the trial court erred by entering judgment forfeiting the bond after failing to conduct a show ca use hearing within the timeframe provided by R.C. 2937.36(C). In light of this Court’s resoluti on of T-Bonds’ first assignment of error, the second assignm ent of error is moot. See App.R. 12(A)(1)(c).

III. {¶12} T-Bonds’ first assignment of erro r is sustained. The second as signment of error is moot. The judgment of the Lorai n County Court of Common Pleas is reversed, and this matter is remanded for proceedings c onsistent with this opinion. Judgment reversed and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file stamped by the Clerk of the Cour t of Appeals at which time the7

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellee.

L YNNE S. CALLAHAN FOR THE COURT

SUTTON, J. CONCURS. CARR, P.J. DISSENTING. {¶13} I respectfully dissent from the judgment of the majority. On a ppeal, T-Bonds raises issues concerning whether the trial court complied with the timing requirements in R.C. 2937.36. However, T-Bonds has faile d to demonstrate that it wa s prejudiced by any errors made by the trial court. See State v. Patel, 9th Dist. Summit No. 24024, 2008-Ohio-4692, ¶ 55 (noting it is the duty of the appellant t o demonstrate error on appeal) ; see also State v. Ward , 53 Ohio St.2d 40, 42 (1978). As to the first assignment of error, T-Bo nds has made no argument or showing that it was prejudiced by any failure to follow the sta tutory requirements. With respect to the second assignment of error, T-Bonds fails to point to an ything in the record demonstrating that it was actually prejudiced by the lack of compliance with the statutory requirements. Instead, it offers conclusory a ssertions and policy reasons for the timing requirements. Accordingly, I would conclude t hat T-Bonds failed to meet its b urden on appeal to demonstrate prejudice, especially regarding the showing of good and suffici ent reasons for C.L.’s

nonappearance.8

APPEARANCES: GIOVANNA V. BREMKE, Attorne y at Law, for Appellant. J.D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assi stant Prosecuting Attorney, for Appellee.