Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court T.C. NO. 15-CR-41
T. FRENCH, Attorney for Plaintiff-Appellee.
CHRISTON, Attorney for Appellant Surety Baboucarr Njie, A/B
10 Bail Bond.
ABBOUD, Attorney for Defendant-Appellee Hany Aledkawy.
1} This matter is before the Court on the notice of
appeal of appellant Surety Baboucarr Njie, A/B 10 Bail Bond
(hereinafter "Njie"), challenging the trial
court's order forfeiting a portion of the bail bond that
he posted on behalf of his bond client, defendant Hany
Aledkawy. Njie filed a timely notice of appeal with this
Court on April 22, 2016.
2} On January 14, 2015, Aledkawy was indicted for
one count of sexual battery (parent), in violation of R.C.
2907.03(A)(5), a felony of the third degree; one count of
sexual imposition, in violation of R.C. 2907.06(A)(4), a
misdemeanor of the third degree; and one count of unlawful
sexual conduct with a minor, in violation of R.C. 2907.04, a
felony of the third degree. On January 27, 2015, Njie posted
a recognizance bond in the amount of $50, 000.00 on behalf of
Aledkawy. Aledkawy was released on the further condition that
he remain on electronic home monitoring (EHDP).
3} On April 22, 2015, the conditions of
Aledkawy's bond were modified in order to allow him to
work as a cab driver. The new conditions were as follows: 1)
Aledkawy would be removed from EHDP monitored by Pre-trial
Services and be placed on EHDP to be monitored by Njie; 2)
Aledkawy would be permitted to travel within a seventy-mile
radius in order to operate as a cab driver; and 3) Aledkawy
was required to surrender his passport.
4} Thereafter, Aledkawy surrendered his United
States passport to Pre-trial Services. We note that the
record establishes that unknown to Pre-trial Services,
Aledkawy had a second Egyptian passport that he had turned
over to Njie. Njie did not reveal the existence of the second
passport to the trial court until the forfeiture hearing. In
addition to surrendering his U.S. passport, Aledkawy turned
in his EHDP equipment that had been issued by Pre-trial
Services. Aledkawy, however, was not simultaneously placed on
EHDP by Njie. Njie did not discover that Aledkawy had been
removed from EHDP for several days. When Njie became aware
that Aledkawy was not on any type of EHDP, he attempted to
locate Aledkawy. Njie was unable to locate Aledkawy. Njie was
later informed that Aledkawy had traveled to New York,
somehow obtained an "emergency" passport, and
thereafter, fled the United States. The record establishes
that Njie was aware that Aledkawy had left Ohio, and
ultimately the country, in April of 2015, but failed to
notify the trial court.
5} After Aledkawy failed to appear at a pre-trial
hearing scheduled on June 4, 2015, the trial court issued a
capias for his arrest on June 5, 2015. On June 8, 2015, the
trial court issued an order forfeiting Aledkawy's bond.
The trial court also ordered Njie to show cause why judgment
should not be entered against him for the full amount of the
forfeited bond. Njie failed to respond to the show cause
order, and on July 23, 2015, the trial court entered judgment
against him in the amount of $50, 000.00.
6} On October 23, 2015, Njie filed a motion
requesting the trial court to reconsider its ruling with
respect to the bond forfeiture. In his motion, Njie argued
that he never received notice of the show cause order issued
by the trial court. On March 9, 2016, the trial court held a
hearing regarding Njie's motion to reopen the forfeiture
issue. At the hearing, the trial court heard testimony from
Njie and Thomas Marquis from Pretrial Services regarding the
events surrounding Aledkawy's absconding from the U.S.
7} In an order issued on March 25, 2016, the trial
court granted Njie's motion and vacated its prior
forfeiture order of July 23, 2015. Nevertheless, the trial
court found that Njie had failed to show cause why judgment
should not be entered against him and entered judgment for
the partial forfeiture of the recognizance bond in the amount
of $5, 000.00. Specifically, the trial court found that
Aledkawy's flight from the U.S. with an illegal passport
was partially due to Njie's own neglect as well as
Pre-trial Services' failure to properly transfer control
of Aledkawy's EHDP. The trial court also emphasized that
a defendant absconding is a "business risk of bail
surety." Accordingly, the trial court entered judgment
against Njie in the amount of $5, 000.00 rather than the
entire amount of the original bond.
8} It is from this judgment that Njie now appeals.
9} Njie's sole assignment of ...