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Clemons v. Commonwealth11/5/2004
AFFIRMING
Two of the non-financial conditions of James Clemons's pretrial release from jail were to avoid alcohol and to observe a curfew. The trial court revoked his bond after Clemons was caught out drinking past curfew. After jailing Clemons subject to a higher bond, the trial court also ordered Clemons's sureties, Cindy Clemons Carter and William Howard Clemons, to forfeit a portion of the original bond. The sureties argue that they did not receive the required notice of the bond forfeiture hearing and that the amount of the forfeiture is excessive. Because we hold that the trial court may properly order a forfeiture of bond for violation of non financial conditions, that the amount of the forfeiture was not excessive, and that the issue of notice was not preserved for appellate review, we find no error in the trial court's decision and we affirm.
STATEMENT OF FACTS
Clemons was arrested in August 2001 on charges of manufacturing and trafficking in methamphetamine. Clemons's father, William H. Clemons, posted a $50,000 cash bond for his release. When Clemons appeared for arraignment on the charges, his original bond was changed to a $20,000 property bond. Clemons's brother and sister, William Howard Clemons and Cindy Clemons Carter, executed the second bond.
The trial court placed several non-financial conditions on Clemons's release, including a prohibition against drinking or possessing any alcoholic beverages, and a requirement that he stay at home between 6:00 p.m. to 6:00 a.m.
On July 10, 2003, a state trooper attempting to serve a subpoena on Clemons found him at approximately 11:00 p.m. at a house some five miles from his residence. The officer smelled alcohol on Clemons's breath and administered a portable breath test (PBT). The PBT showed Clemons's blood alcohol level to be .0516. Clemons admitted to the officer he had drunk two glasses of wine. He also claimed he was out past curfew for purposes of employment. According to Clemons, he had been hired to housesit for a friend.
PROCEDURAL HISTORY
Following the report that Clemons had violated his bond conditions, the Commonwealth filed a motion to revoke bond. The revocation hearing was held on July 22, 2003. The police officer who administered the PBT and Clemons were the only witnesses. At the conclusion of the hearing, the court concluded Clemons had violated the non-financial conditions of his bond by drinking alcohol. Therefore, his bond was revoked, Clemons was jailed, and a new bond raised to $50,000 cash.
Upon request by defense counsel, a hearing on the motion to forfeit bond was reassigned to September 16, 2003. The order reassigning the hearing was supposedly distributed to counsel for Clemons and the Commonwealth, as well as individually to the sureties. For reasons not apparent in the record, the hearing was not held on September 16 but, rather, on August 19, 2003. Clemons, both sureties, and counsel for all parties involved were present. After hearing arguments from both sides, the court ordered the forfeiture of $5,000 of the $20,000 bond. This appeal followed.
THE COURT'S FORFEITURE OF $5,000 WAS NOT EXCESSIVE
The sureties first argue the court's forfeiture of $5,000 of the $20,000 property bond was excessive. In support of this argument, the sureties argue that during the roughly two years Clemons was released on bond, he was present at every court session where his presence was required. Therefore, the sureties assert that since Clemons had previously complied with the conditions of his bond, the $5,000 forfeiture is unwarranted. We disagree.
The purpose of posting bonds "is to s
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