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State v. Aledkawy

Court of Appeals of Ohio, Second District, Montgomery

August 25, 2017

STATE OF OHIO Plaintiff-Appellee
v.
HANY ALEDKAWY Defendant-Appellee SURETY BABOUCARR NJIE, A/B 10 BAIL BOND Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 15-CR-41

          ANDREW T. FRENCH, Attorney for Plaintiff-Appellee.

          JIMMIE CHRISTON, Attorney for Appellant Surety Baboucarr Njie, A/B 10 Bail Bond.

          ANTONY ABBOUD, Attorney for Defendant-Appellee Hany Aledkawy.

          OPINION

          DONOVAN, J.

         {¶ 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 ...


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