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Passmore v. Commonwealth

Court of Appeals of Kentucky

July 19, 2019

CASSANDRA PASSMORE, SURETY FOR DEFENDANT JESSE PASSMORE APPELLANT
v.
COMMONWEALTH OF KENTUCKY; and JESSE PASSMORE APPELLEES

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE AUDRA J. ECKERLE, JUDGE ACTION NO. 17-CR-000203-001

          F. Todd Lewis BRIEFS FOR APPELLANT

          Andy Beshear, James P. Judge, BRIEF FOR APPELLEE, COMMONWEALTH OF KENTUCKY:

          BEFORE: KRAMER, NICKELL, AND L. THOMPSON, JUDGES.

          OPINION

          KRAMER, JUDGE:

         Cassandra Passmore appeals a January 9, 2018 order of the Jefferson Circuit Court which (1) denied her motion for exoneration and a refund regarding a bail bond she posted as surety for appellee Jesse Passmore, and which instead (2) granted the Commonwealth's motion to have the bond deemed forfeited. Upon review, we reverse.

         On December 2, 2016, the Louisville Metro Police Department's SWAT team executed a no-knock search warrant on a home occupied by appellee Jesse Passmore. Jesse became combative when the team entered, and a search of the premises revealed guns and drugs. Jesse was arrested and charged with multiple offenses including possession of a handgun by a convicted felon; possession of a firearm by a convicted felon; illegal possession of a controlled substance (methamphetamine) while in possession of a firearm; and nine counts of third-degree assault.

         On December 3, 2016, the Jefferson District Court entered its first order regarding the terms of Jesse's bail, fixing it in the amount of $25, 000 and adding a nonfinancial condition: "Not to violate any local, state, or federal laws." On December 5, 2016, during Jesse's in-person arraignment and following a motion from the Commonwealth, the district court then entered a second order regarding the terms of Jesse's bail, adding another nonfinancial condition: Due to the nature of his offenses, it directed Jesse to "not be in possession of any firearm or deadly weapon." However, no one posted bail for Jesse at that time, so he remained in the custody of the Louisville Metro Department of Corrections.

         The following month, the Jefferson Circuit Court assumed jurisdiction after a grand jury indicted Jesse on all counts. Jesse was arraigned on January 30, 2017, whereupon the circuit court entered an order regarding discovery and fixing the terms of Jesse's bail. In pertinent part, the circuit court stated in its order that "Bail shall remain at $25, 000 full cash." Below that, the circuit court's pre-printed order also included the following sentence: "The Defendant shall comply with the following non-financial condition(s) of release:___." As indicated, the line following that latter sentence of the circuit court's order was left blank. Indeed, before September 26, 2017, nothing in the circuit court's record indicated there would be any nonfinancial conditions attached to the terms of Jesse's bail.

         On September 26, 2017 - the date Jesse was released from custody after Cassandra posted a cash bond in the requisite amount of $25, 000 - the circuit court's record only indicated that the terms of Jesse's bail were subject to the nonfinancial conditions generally associated with bail.[1] Jesse promised and Cassandra undertook to ensure under penalty of forfeiture that: (1) Jesse would appear in court when his attendance was required; and (2) Jesse would otherwise render himself "amenable to the orders and process of this and any other court in which this proceeding may be pending for any and all purposes and at all stages (including, in the event of indictment, proceedings thereafter) in accordance with RCr 4.54."

         As an aside, both of those nonfinancial conditions were set forth in a boilerplate paragraph of a pre-printed AOC-365.1 form that Cassandra executed before posting Jesse's bail, which memorialized the terms of Jesse's release from custody and Cassandra's obligations as his surety. Like the circuit court's pre-printed arraignment order of January 30, 2017, the AOC-365.1 form included space for the Jefferson Circuit Clerk to indicate whether any other nonfinancial conditions accompanied the terms of Jesse's release. The form also included a checklist for the clerk to indicate whether any of the following nonfinancial conditions also applied:

• Report to your local pretrial services office located at ___
Telephone ___
No further violations of law
• No contact with alleged victim
• Not to be on the property of ___
• No illegal use of alcohol or controlled ...

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