State v. Mottolese (Allstate Bail Bonds, Appellant), 2015 VT 81
By Elizabeth Kruska
Let’s start with a quick lesson on bail. Except in some pretty limited circumstances, when a person is charged with a crime, he or she is entitled to be bailed. That is, that the state cannot hold someone in jail simply because he or she is accused of having committed a crime. That’s that whole “presumption of innocence” business we defense lawyers are so protective of all the time.
People are supposed to be released, and are trusted that they’ll come back to show up for their court hearings. Generally speaking, telling people to come back does the trick. But sometimes there are factors that cause a court to worry that a person won’t show up. It’s possible someone lives out of state and it would be inconvenient to come back. It’s also possible a person has a track record of not showing up for court. When factors like these (but not limited to these) are present, the court could impose some amount of monetary bail. The thought is that if a person has to pay money to help guarantee his or her freedom, that he or she will show up in the future, lest the money get forfeited to the court.
Sometimes bail is set as low as a couple hundred dollars. If a person pays the full amount of bail in cash to the court, they get it back when the case is finished. It’s sort of like a security deposit.
But if bail is set really high—in the tens of thousands of dollars—a person might end up sitting in jail simply because that amount of cash isn’t available to be paid to the court. That’s where a bail bond agent, or surety, comes in. Bail bond agents are essentially insurers. For a fee—usually a percentage of the bail ordered by the court—the bail bond agent will bail out an accused person. That way the accused gets to be out of jail while the case is pending, but for a fraction of the cost of bail set by the court.
If the bailed person doesn’t show up, the State can ask that the bail posted (whether posted by the individual or by a surety) be forfeited to the court.
What happened here is exactly this. Mr. Mottolese got arrested in Bennington County for some theft-related charges. The court set bail at $35,000. A couple weeks later, through the help of a bail bond from Allstate Bail Bonds, he was able to post bail and go home. He was from New York state, and his bail conditions allowed him to go back there. Since this was a Bennington County case, and Bennington County borders upstate New York, it’s entirely possible Mr. Mottolese actually lived pretty close but just on the other side of a state border.
Six months or so go by, and Mr. Mottolese wound up in jail in New York for unrelated charges. As a result, he ended up missing his court hearing in Bennington County. The State moved for forfeiture of the bail that was posted. Allstate, the bond agent, indicated to the court they’d seek a surety warrant for Mr. Mottolese in order to bring him back to court in Vermont. Another hearing was held and the court said it couldn’t issue a surety warrant because Mr. Mottolese was already in jail at the time they requested the warrant.
Allstate then asked the court to reduce the amount of money that would get forfeited just to be the amount that would cover the costs of extradition from New York to Vermont. At this point, remember, Allstate is on the hook for $35,000; extradition costs would probably be a few thousand. The State argued that the Court should be able to receive the full $35,000. The Court agreed, and reasoned that if a bail bond agent were on the hook only for the cost of transportation, that it would “erode the obligations of the Surety.” In other words, setting high bail with no actual consequences if the person doesn’t show up, but then reducing the amount that the surety would have to pay, would become meaningless. Maybe people would skip town all the time on their sureties.
Allstate appealed, and SCOV reversed. SCOV reviews bail forfeiture for abuse of discretion, and reviews questions of law de novo.
Since Vermont doesn’t have a case exactly on point with this, SCOV looked to other courts in other states for some guidance. SCOV points out that bail forfeiture only exists if a person doesn’t show up; if bail could be forfeited for any other reason, such as violating bail conditions, it becomes a punishment. That’s not allowed.
Sometimes people don’t show up for court. Sometimes they forget or they just don’t want to. Sometimes, though, they are unavailable to appear due to an act of law, such as being jailed in another jurisdiction. It’s generally accepted that an act of law of one state that prevents a defendant from appearing in the state where bail was posted means that there gets to be a reduction in forfeiture. Although usually people are in jail because of another crime committed, SCOV doesn’t find that the fact of being jail in another state is willful nonappearance.
SCOV looks at Vermont’s bail statute. It says that if someone doesn’t show up, that bail shall be forfeited. “Shall” means “must.” But reading further down the statute, it says that the court may adjust the amount of the forfeiture. SCOV reads that to mean that there has to be some kind of forfeiture, but it doesn’t necessarily have to be the full amount. A court is supposed to look at the circumstances surrounding the nonappearance leading to the forfeiture request. If a person is in jail in another state, and that is not as a result of fleeing, then the court can consider it.
In this case, there was no evidence that Mr. Mottolese was trying to avoid coming to court in Vermont. He was in jail in New York for something unrelated to the Vermont charges. He lived in New York, and his bail conditions permitted him to live there.
Also, Allstate tried to do what they could to get Mr. Mottolese back. They tried to get a surety warrant, but that was denied by the court. There wasn’t any evidence that Allstate acted in bad faith in any way during the course of their obligation to the court as surety.
SCOV finds that since it was physically and legally impossible for Mr. Mottolese to travel back to Vermont for his court hearings, and none of this was Allstate’s fault, that they shouldn’t have to forfeit the full $35,000 bail amount.
The State was worried that if the full amount wasn’t forfeited that it would put the burden of finding defendants and ensuring their appearance on the State. SCOV bats this away and says that it’s easy for a state to put a detainer on a defendant incarcerated out of state. A detainer is essentially a communication from State 1 to State 2 that says, “hey, we know this person is in your jail; please detain him for us due to an outstanding warrant in our state. We’ll come pick him up.”
SCOV also says that once the detainer was in place that Allstate pretty much lost all its power to do anything. This would be because it would then be up to the State of Vermont to engage in the formal extradition process, which pretty much cuts Allstate out of the equation. Thus, forfeiting the whole amount would just punish Allstate, and they didn’t do anything wrong. SCOV isn’t about to punish a blameless business.
So, SCOV orders that the trial court figure out how much extradition from New York would cost, and how much any trial delays cost, and orders that amount to be how much gets forfeited. The case was remanded with instructions for the trial court to figure out those costs.