State v. Concepcion

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-JUN-2022
07:48 AM
Dkt. 31 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
CHRISTIAN CONCEPCION, also known as
Christian Ernie Concepcion, Defendant-Appellee,
and
SCOTTS BAIL BONDS L.L.C., dba Aloha Bail Bonds,
Real Party in Interest-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Hiraoka and Wadsworth, JJ.)

Appellant Scott's Bail Bonds, L.L.C., dba Aloha Bail
Bonds (SBB), appeals from the September 22, 2020 "Findings of
Fact, Conclusions of Law, and Order Denying Scott's Bail Bonds'
Motion to Set Aside Bond Forfeiture," entered by the Circuit
Court of the First Circuit (Circuit Court).1/
On appeal, SBB contends that the Circuit Court
(1) erred by denying SBB's September 10, 2020 "Motion to Set
Aside Bond Forfeiture" (Motion) on the basis that the court
lacked jurisdiction over the Motion, and (2) should have
considered reasons for good cause as to why execution of the
July 14, 2020 "Judgment and Order of Forfeiture of Bail Bond"
(Forfeiture Judgment) should not have issued.
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to

1/
The Honorable Shirley M. Kawamura presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the arguments advanced and the issues raised by the parties, we
resolve SBB's contentions as follows and affirm:
The procedure for forfeiture of bail bonds is set out
in Hawaii Revised Statutes (HRS) § 804-51 (2014), which provides
in relevant part:

Whenever the court, in any criminal cause, forfeits any bond
or recognizance given in a criminal cause, the court shall
immediately enter up judgment in favor of the State and
against the principal or principals and surety or sureties
on the bond, jointly and severally, for the full amount of
the penalty thereof, and shall cause execution to issue
thereon immediately after the expiration of thirty days from
the date that notice is given via personal service or
certified mail, return receipt requested, to the surety or
sureties on the bond, of the entry of the judgment in favor
of the State, unless before the expiration of thirty days
from the date that notice is given to the surety or sureties
on the bond of the entry of the judgment in favor of the
State, a motion or application of the principal or
principals, surety or sureties, or any of them, showing good
cause why execution should not issue upon the judgment, is
filed with the court. If the motion or application, after a
hearing held thereon, is sustained, the court shall vacate
the judgment of forfeiture and, if the principal surrenders
or is surrendered pursuant to section 804-14 or section
804-41, return the bond or recognizance to the principal or
surety, whoever shall have given it, less the amount of any
cost, as established at the hearing, incurred by the State
as a result of the nonappearance of the principal or other
event on the basis of which the court forfeited the bond or
recognizance. If the motion or application, after a hearing
held thereon, is overruled, execution shall forthwith issue
and shall not be stayed unless the order overruling the
motion or application is appealed from as in the case of a
final judgment.

(Emphasis added.)
As the Supreme Court of Hawai#i has "reiterate[d],
once a bond is forfeited pursuant to HRS § 804-51, a surety has
thirty days from the time it receives notice of forfeiture to set
aside the forfeiture judgment[.]" State v. Vaimili, 131 Hawai#i
9, 15, 313 P.3d 698, 704 (2013). "HRS § 804-51 permits the
filing neither of a second motion . . . nor any motion after the
closing of the thirty-day window." State v. Ranger Ins. Co., 83
Hawai#i 118, 124 n.5, 925 P.2d 288, 294 n.5 (1996) ("Without
addressing its merits, the motion to vacate [forfeiture judgment]
did 'not provide a legal basis for the relief requested,' as the
circuit court ruled, because it was not filed within the time
limit imposed by HRS § 804-51, and the circuit court was
therefore without power to consider it.")

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Here, SBB acknowledges that it received notice of the
Forfeiture Judgment on August 7, 2020, and does not dispute that
it electronically filed the Motion on September 10, 2020, more
than thirty days after receiving notice. But SBB argues that the
Motion should nonetheless be deemed timely because counsel
"tendered" the Motion to the Circuit Court on September 3, 2020 —
within the thirty-day period — by emailing a draft of the Motion
to the court chambers to obtain a hearing date. In this regard,
the Circuit Court made the following findings of fact, which SBB
does not expressly challenge:2/

7. On September 3, 2020 at 5:56 p.m., [SBB's
counsel] emailed to the Court via the 12th Division email
address a draft copy of the present Motion requesting that
the Court calendar the Motion.

8. On September 4, 2020 at 10:31 a.m., the 12th
Division replied to [SBB's counsel], setting the hearing on
the Motion for September 21, 2020 at 10:30 a.m. and
requesting that he file the Motion[] accordingly.[ 3/]

9. On September 10, 2020, at 11:55 a.m. [SBB's
counsel] filed the Motion to Set Aside Bond Forfeiture.

(Footnote added.)
While SBB claims it "tendered" the Motion within the
required thirty-day period when it emailed a copy to the Circuit
Court and requested a hearing date, such a tendering does not
satisfy HRS § 804-51's requirement that the Motion be filed
within the thirty-day window.
The Hawai#i Electronic Filing and Service Rules (HEFSR)
require every attorney representing a party to a case maintained
in the Judiciary Information Management System (JIMS) to
(1) register as a Judiciary Electronic Filing System (JEFS) user,
and (2) electronically file each document as an Adobe Portable
Document Format (PDF) document through JEFS. HEFSR Rules 1, 2.2,
4.1(a). "Electronic filing means (1) the submission of documents

2/
Unchallenged factual findings are deemed binding on appeal. Okada
Trucking Co. v. Bd. of Water Supply, 97 Hawai #i 450, 459, 40 P.3d 73, 82
(2002).
3/
SBB claims on appeal that it "received" the Circuit Court's
September 4, 2020 email on September 10, 2020, but it does not provide any
discernible record citation to support this assertion, it did not raise this
issue in its Motion, and no transcript of the hearing on the Motion has been
included in the record.

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NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

by authorized JEFS Users for docketing and storage in JIMS and
(2) the conversion and/or transmission of documents by JIMS Users
directly into JIMS." HEFSR Rule 1 (bold typeface omitted). "The
electronic filing of a document is deemed complete for all
purposes under any of the Hawai#i Rules of Court when a Notice of
Electronic Filing is generated." HEFSR Rule 3.1. Except for
conventionally filed documents, "a document filed through JEFS or
JIMS for docketing and storage in JIMS is deemed filed at the
date and time stated on the Notice of Electronic Filing." HEFSR
Rule 3.3. By contrast, the HEFSR provide that "[t]he clerk shall
electronically file any paper document conventionally filed[,]"
and that "[t]he receipt date and time reflected on the
conventionally filed document and subsequently filed in JIMS
shall be deemed the filing date. . . ." HEFSR Rule 2.5.
Therefore, even assuming SBB sent a copy of its unfiled motion to
the Circuit Court via email, as counsel was required to
electronically file documents on behalf of SBB and could not
conventionally file the Motion, the September 10, 2020 electronic
filing date governs.4/ See State v. Crisp, CAAP-XX-XXXXXXX, 2019
WL 1715771, at *2 (Haw. App. Apr. 17, 2019).
Accordingly, the Circuit Court correctly ruled it had
no jurisdiction to consider SBB's Motion. See Ranger Ins. Co.,
83 Hawai#i at 124 n.5, 925 P.2d at 294 n.5. Thus, we also reject
SBB's argument that the circuit court should have considered
reasons for good cause as to why execution of Forfeiture Judgment
should not have issued.5/ Id.

4/
In urging the court to deem the Motion timely filed, SBB cites In
re Doe, 101 Hawai#i 220, 65 P.3d 167 (2003). That case is distinguishable
inasmuch as it is a family court case governed by the Hawai #i Family Court
Rules and to which the HEFSR did not apply. SBB also appears to argue that
the court should apply HEFSR Rule 10 to excuse counsel's late filing. But
HEFSR Rule 10, which pertains to technical failures of JEFS or JIMS, does not
apply here because SBB does not contend (or point to any record support) that
a technical failure of JEFS or JIMS prevented it from timely filing the
Motion.
5/
While not listed in its points of error, SBB appears to contend
that because the defendant was "brought into custody within three days of
missing Court . . . [i]t should be argued that the bail forfeiture should have
been set aside sua sponte[.]" HRS § 804-51 "provides that once the court
enters a judgment of forfeiture a surety is entitled to relief only by filing
a motion within thirty days demonstrating good cause for setting the judgment
of forfeiture aside[.]" Vaimili, 131 Hawai #i at 11, 313 P.3d at 700 (emphasis
added). As the Circuit Court here entered the Forfeiture Judgment, SBB was
required to seek relief under HRS § 804-51.

4
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For the foregoing reasons, the Circuit Court's
September 22, 2020 Findings of Fact, Conclusions of Law, and
Order Denying Scott's Bail Bonds' Motion to Set Aside Bond
Forfeiture is affirmed.

DATED: Honolulu, Hawai#i, June 28, 2022.

On the briefs:
/s/ Katherine G. Leonard
Anthony Fujii, Presiding Judge
for Real Party in Interest-
Appellant.
/s/ Keith K. Hiraoka
Loren J. Thomas, Associate Judge
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellee. /s/ Clyde J. Wadsworth
Associate Judge

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