This opinion will be unpublished and

 may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000)

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-1462

 

 

State of Minnesota,

Respondent,

 

vs.

 

Andrew Jerel Storkamp,

Defendant,

Bartsh Bail Bonds,

Appellant.

 

 

Filed March 26, 2002

Affirmed

Anderson, Judge

 

Stearns County District Court

File No. K6005003

 

Roger S. Van Heel, Stearns County Attorney, Richard J. May, Assistant Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN  56303-4773 (for respondent)

 

Michael J. Michalski, Michalski Law Office, 923 West St. Germain St., P.O. Box 393, St. Cloud, MN  56302-0393 (for appellant)

 

            Considered and decided by Harten  , Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge.

            The district court denied appellant’s motion for reinstatement and discharge of a bail bond.  Because we find that the district court did not abuse its discretion in denying the motion, we affirm.

FACTS

            On November 28, 2000, Andrew Storkamp (defendant) was arrested and charged with possession of a controlled substance in the second degree under Minn. Stat. § 152.022, subd. 2(1) (2000).  On November 30, 2000, the district court set bail in the amount of $5,000; defendant posted a bail bond that he obtained from Bartsh Bail Bonds (appellant).  Defendant failed to appear for a scheduled omnibus hearing. 

The district court issued a warrant for defendant’s arrest and later increased defendant’s bail to $8,000.  Defendant posted an additional $3,000 appearance bond on February 15, 2001, also obtained through appellant, but defendant again failed to appear for the scheduled omnibus hearing.  On April 9, 2001, the district court notified appellant and ordered forfeiture of the original $5,000 bond.  The $3,000 bond was apparently overlooked and not forfeited.[1] 

Appellant returned defendant to custody on June 3, 2001.  Appellant moved the district court to reinstate and discharge the $5,000 bond.  Appellant argued it had spent more than $1,200 to recover defendant. 

            The district court issued findings, attributed defendant’s bad faith in failing to appear to appellant, and denied appellant’s request.  This appeal followed.

D E C I S I O N

            “In reviewing a trial court’s order concerning discharge of a bail bond, we determine whether the trial court abused its discretion.”  State v. Williams, 568 N.W.2d 885, 887 (Minn. App. 1997) (citations omitted), review denied (Minn. Nov. 18, 1997).  Appellant alleges that the district court abused its discretion when it refused to reinstate and discharge the bond. 

            When a bond-underwriting company agrees to act as surety for a defendant, the company assures the district court that the defendant will personally appear and answer the charges against him.  State v. Due, 427 N.W.2d 276, 278 (Minn. App. 1988), review denied (Minn. Sept. 28, 1988). 

            But Minn. Stat. § 629.59 (2000) allows a district court to

forgive or reduce the [forfeiture of the bond if the defendant fails to appear] according to the circumstances of the case and the situation of the party on any terms and conditions it considers just and reasonable.

 

            Several factors are considered in determining if the district court abused its discretion in its bail-forfeiture decision, including

the purpose of bail and the civil nature of the proceedings and the burden of proof as well as the cause, purpose, and length of defendant’s absence; the good faith of the surety as measured by the fault or wilfulness of the defendant; the good faith efforts of the surety--if any--to apprehend and produce the defendant; and the prejudice--by way of delay or otherwise--to the state, in its administration of justice.

 

In re Application of Shetsky, 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953).  The surety bears “the burden of proof to establish a justification for a mitigation of forfeited bail * * * .”  Id. at 472, 60 N.W.2d at 46. 

            We cannot say that the district court’s decision was an abuse of discretion.  First, although it is certainly laudable that appellant found and returned defendant to custody, there is no doubt that defendant acted in bad faith and willfully defaulted on his bail.  “A willful and unjustifiable default by the defendant weighs against forgiveness of a bond penalty.”  Williams, 568 N.W.2d at 888 (citation omitted).  Defendant affirmatively advised appellant that he was in town but, nonetheless, would not turn himself in.  Further, defendant missed not one, but two court appearances.  This is the type of behavior that directly supports bond forfeiture.  Shetsky, 239 Minn. at 471, 60 N.W.2d at 46.

            Appellant argues that the district court found that “[t]he surety * * * made good faith efforts to apprehend and produce the defendant,” and that this finding favors reinstatement and discharge of the bond.  But the district court concluded that appellant’s efforts were not sufficient to overcome defendant’s willful and unjustifiable failure to appear and, on this record, we cannot say that an abuse of discretion occurred. 

Appellant further argues that Shetsky supports its claim that an abuse of discretion occurred because, among other things, the district court should have weighed the prejudice to the state from delay against the amount of the forfeiture.  Shetsky merely provides a list of nonexclusive factors for the district court to consider; although a different result is certainly defensible, the district court here properly considered appellant’s arguments and the various factors in concluding that forfeiture of the initial $5,000 bond was appropriate.  See id. at 470-74, 60 N.W.2d at 45-48. 

While we cannot conclude, after analyzing and applying the Shetsky factors to the present controversy, that the district court abused its discretion, the result here is troublesome.  Shetsky’s focus on agency principles, imputing to the surety defendant’s bad faith in absconding, puts entirely too much emphasis on defendant’s wrongful conduct instead of on much more practical considerations such as prejudice to the prosecuting authority and the efforts of the surety to return defendant to custody.  Shetsky’s analysis, combined with our deferential standard of review in these matters, comes perilously close to the prediction of Chief Justice Loring, dissenting in Shetsky, who noted, “it would seem futile under any circumstances to apply for relief from forfeiture.”  Id. at 476, 16 N.W.2d at 49.

Finally, appellant also cites Farsdale v. Martinez, 586 N.W.2d 423 (Minn. App. 1998), for support.  But Farsdale is factually dissimilar.  While the Farsdale court concluded that the district court abused its discretion in ordering a bond forfeiture, it also concluded that the defendant appeared for trial, which is the “primary purpose” of a bail bond, but then missed his sentencing hearing because he justifiably feared for his life.  Id. at 425-26.  Here, defendant did not appear for two scheduled omnibus hearings and no justification has been offered for his absences. 

            Affirmed.