Appeal from the Superior Court of the District of Columbia; (Hon. Robert I. Richter, Trial Judge)
Before Ferren,* Steadman, and Sullivan, Associate Judges.
The opinion of the court was delivered by: Sullivan
SULLIVAN, Associate Judge: Appellant, Indiana Lumbermen's Mutual Insurance Company ("Indiana Lumbermen"), appeals from the trial court's order denying without a hearing its motion to set aside a bond forfeiture pursuant to Super. Ct. Crim. R. 116 (h)(2). Indiana Lumbermen contends that the trial court abused its discretion in (1) denying its motion to set aside the bond forfeiture on the basis of impossibility of performance and (2) failing to conduct a hearing to ascertain whether the forfeiture should have been set aside. We affirm.
Kenneth Rogers ("Rogers"), a/k/a Barry Winston Amos, was charged with two counts of forgery and uttering in June 1979 and released under a previous bail bond, not at issue in this proceeding. Neither Rogers nor his attorney appeared at his scheduled arraignment on those charges. Consequently, a bench warrant was issued for his arrest, and that first bond was forfeited.
Rogers remained at large for nine years *fn1 until he was apprehended in the District of Columbia in April 1988. Following his rearrest, Rogers appeared before the trial court and entered a plea of not guilty. The trial Judge then ordered Rogers held in custody unless a $10,000 bail bond was posted to guarantee his appearance on his scheduled court dates. Indiana Lumbermen posted the $10,000 appearance bond which is now the subject of this appeal.
As a condition of his release on bond, the trial Judge ordered Rogers to appear at a status hearing on May 5, 1988. Rogers arrived late for the May 5th hearing. The trial Judge warned him about being late, and then, after being advised of the potential penalties for failing to appear, Rogers was once again released and scheduled to appear for a further status hearing on June 2, 1988. Rogers failed to appear for the June 2nd status hearing. His counsel was in attendance, but no representative from Indiana Lumbermen was present. The trial Judge therefore issued another bench warrant and ordered that the appearance bond guaranteed by Indiana Lumbermen be forfeited.
On August 4, 1988, Rogers was arrested by Maryland authorities on a charge of Daylight Housebreaking. Upon learning Rogers was in custody in a Baltimore jail, Indiana Lumbermen advised the District of Columbia Superior Court of his whereabouts, placed detainers against him, and offered to pay the expenses of transporting him to the District of Columbia, provided the government would request extradition. Neither the trial court nor the government, however, took action to bring Rogers to the District of Columbia for trial. Subsequently, Rogers was sentenced on August 1, 1989 to a twenty-five year term without parole in the Maryland State Correctional Institution at Hagerstown for Daytime Housebreaking, running from February 21, 1988 to the year 2113.
On February 5, 1993 the Superior Court Criminal Finance Office made demand upon Indiana Lumbermen for the $10,000 bail guaranteed by the bond, due and payable on May 7, 1993. On May 3, 1993, Indiana Lumbermen moved to set aside the bond forfeiture. The trial Judge denied that motion in a written opinion dated May 4, 1993.
Super Ct. Crim. R. 116 (h) governs the forfeiture of bail bonds. It states, in relevant part, the following:
(1) Declaration. If there is a breach of condition of a bond, the court shall declare a forfeiture of the bail.
(2) Setting aside. The court may direct that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that Justice does not require the enforcement of the forfeiture.
"Whether the trial court should set aside a forfeiture of a personal appearance bond is within the trial court's sound discretion, and the trial court's decision will be reversed only upon a showing of abuse of discretion." American Bankers Ins. Co. v. United States, 596 A.2d 598, 601 (D.C. 1991) (footnote and citation omitted). In exercising its ...