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Petition of Second Chance Bail Bonds

Supreme Court of New Hampshire, Rockingham

February 13, 2019

James Castine State of New Hampshire

          Argued: September 27, 2018

          Prieto Law, of Manchester (Joseph Prieto on the brief), and Cohen & Winters Law Office, of Concord (Andrew S. Winters orally), for the petitioner.

          Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the memorandum of law and orally), for the State.

          James Castine, defendant, filed no brief.

          BASSETT, J.

         The petitioner, corporate surety Second Chance Bail Bonds, appeals an order from the Superior Court (Delker, J.) requiring that a $10, 000 bond the petitioner posted for the defendant, James Castine, be forfeited after the defendant violated several bail conditions. On appeal, the petitioner argues that the trial court erred because it can order forfeiture of a bond only if a defendant fails to appear for a court date, and not for violation of other bail conditions. Alternatively, the petitioner argues that the trial court erred by ordering forfeiture of the entire $10, 000 bond. We affirm.

         The record reflects the following facts. The defendant was charged with three counts of sale of heroin. The trial court set bail in the amount of $10, 000 cash or corporate surety. Among other conditions, the court required that the defendant live in Epping, notify the court of any change of address, and refrain from the use of controlled drugs. On April 6, 2017, the petitioner posted a $10, 000 bond, and the defendant was released from jail.

         Less than two weeks later, the police found the defendant and his girlfriend passed out in a vehicle in Sturbridge, Massachusetts. After first responders administered several doses of Narcan, both individuals revived. A search of the vehicle revealed drugs and drug paraphernalia. The police also observed suitcases and other belongings in the defendant's vehicle and the defendant told the police that he and his girlfriend were moving from New Hampshire to the Carolinas.

         The trial court issued an arrest warrant because the defendant violated his bail conditions. The warrant required that the bond be forfeited; however, the trial court gave the petitioner 45 days to show cause why the bond should not be forfeited. The defendant was arrested and appeared before the court on April 24, 2017. The court revoked the defendant's bail.

         At the show cause hearing in June 2017, the petitioner argued that the court should not have declared the bond forfeited because the petitioner had only agreed to an "appearance bond" and the defendant had not missed any court dates. It asserted that a surety should not be required to monitor compliance with bail conditions other than appearance, and that a surety had no means to supervise the defendant's drug use or other conduct. The court concluded that a surety can be held responsible for a defendant's failure to comply with conditions of bail other than appearance in court, observed that the petitioner "took no steps whatsoever to supervise the defendant's compliance with bail conditions," and ordered the bond forfeited. The petitioner filed a motion to reconsider, arguing that even if forfeiture of the bond is appropriate, the order to forfeit the full amount of the bond is excessive. The trial court denied the petitioner's motion and this appeal followed.

         As an initial matter, we address the jurisdictional basis for our review. The petitioner filed this action as a mandatory appeal under Supreme Court Rule 7. See Sup. Ct. R. 7(1)(A). The State argues that "a mandatory appeal under Supreme Court Rule 7 is not the proper vehicle to bring the surety's claim" because a "surety does not have the authority - by statute or otherwise - to bring an appeal of the lower court's forfeiture order." Accordingly, the State asserts that this direct appeal must be dismissed. The State contends that the petitioner would need to bring a civil proceeding, as described in State v. Kinne, 39 N.H. 129 (1859), in order to challenge the bail forfeiture order.

         We note that this court has, on occasion, accepted direct appeals brought by sureties within the context of the underlying criminal claim. See State v. McGurk, 163 N.H. 584, 586 (2012); State v. Moccia, 120 N.H. 298, 300 (1980). The State asserts that these cases are not dispositive because the court did not directly address the threshold jurisdictional question of whether "the surety may take a direct appeal in the criminal case from a forfeiture order" in either case. On this point, we agree with the State; however, we are not persuaded that dismissal is appropriate under the circumstances.

         Resolution of this threshold jurisdictional issue requires that we engage in statutory interpretation. When construing statutes, we first look to the plain and ordinary meaning of the words used. Appeal of Rowan, 142 N.H. 67, 71 (1997). We discern legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Petition of Carrier, 165 N.H. 719, 721 (2013). We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result. Id. Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole. Id. This enables us to better discern the legislature's intent and to interpret statutory language in light of the policy or purpose sought to be advanced by the statutory scheme. Id.

         RSA 597:6-e, III states that only "[t]he person, or the state . . . may appeal to the supreme court from a court's release or detention order, or from a decision denying revocation or amendment of such an order. The appeal shall be determined promptly." RSA 597:6-e, III (2001) (emphasis added). Although the statute does not define "the person," the chapter when read as a whole, demonstrates that "the person" is the arrestee or person subject to the bail order. See RSA 597:1 (2001) (stating "all persons arrested for an offense shall be eligible to be released pending judicial proceedings upon compliance with the provisions of this chapter" (emphasis added)). The petitioner is not "the person, ...

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