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STATE OF NORTH CAROLINA v. ANTHONY RICKIE BELTON, Defendant, and
AEGIS SECURITY INSURANCE COMPANY, Surety
2. Penalties, Fines, and Forfeitures--appearance bond forfeiture_-notice
The trial court did not err by denying the surety's appeal from an order entered on 30 January 2004 denying its motion for relief from final judgment of forfeiture of an appearance bond even though surety contends the clerk of court failed to provide notice of the entry of forfeiture as required by N.C.G.S. § 15A-544.4, because: (1) an assistant clerk placed the notice in a bin for outgoing mail; (2) there is no requirement that the clerk of court herself carry notices to the post office in order to mail them; (3) official actions taken by public officers in North Carolina are accorded the presumption of regularity, and thus the official actions of clerks of court are afforded this presumption of regularity; and (4) the trial court, after considering the affidavit of surety's employee tending to show that surety did not receive the notice of forfeiture along with the other evidence in the record, could properly conclude that the clerk had given notice in compliance with N.C.G.S. § 15A-544.4.
Tharrington Smith, L.L.P., by Rod Malone for the State.
Andresen & Vann, by Kenneth P. Andresen and Christopher M. Vann, for Surety.
Aegis Security Insurance Co. (surety) appeals from an order entered on 30 January 2004 denying its motion for relief from the final judgment of forfeiture. We affirm.
The relevant procedural history of this case is as follows: On 22 November 2002 surety signed, by the signature of its attorney in fact, an appearance bond in the amount of $100,000.00 for the pretrial release of criminal defendant Anthony Belton who was charged with first degree murder. The terms of the appearance bond required that Belton appear whenever required by the court, and that he remain at all times amenable to the orders and processes of the [c]ourt.
On 12 February 2003 Belton failed to appear for a court appearance. He was called and failed to appear in open court, and the appearance bond was ordered forfeited. The order of forfeiture listed 12 February 2003 as the date of forfeiture, and 21 July 2003 as the date the forfeiture would become final. The notice of forfeiture was mailed to surety 21 February 2003 as demonstrated by the certificate of service, signed by the assistant clerk of court. The order of forfeiture became a final judgment 21July 2003 and a writ of execution on the final judgment of forfeiture issued 22 July 2003.
On 26 November 2003 surety moved, pursuant to N.C.G.S. § 15A- 544.8(b)(1), to vacate the final judgment of forfeiture, on the grounds that the clerk failed to provide notice of the entry of forfeiture as required by N.C.G.S. § 15A-544.4. This motion was heard in superior court on 18 December 2003.
The evidence presented at the hearing is summarized as follows: Lenoir County Assistant Clerk of Court Jeanee Wheeler testified she mailed the notice of forfeiture to surety on 21 February 2003, by enclosing the notice in an envelope with the proper address label and postage, and then placing the envelope in an office bin for outgoing mail. Wheeler further testified that typically a maintenance worker responsible for mailing letters would collect the outgoing mail from the office bin between 3:00 p.m. and 4:00 p.m. each day. In this way, according to the testimony of Wheeler, mail was placed in the U.S. Postal Service. Surety presented an affidavit by Kelly Fitzpatrick, a risk management agent of surety insurance company, stating that her office had not received the notice of forfeiture.
On 30 January 2004 the trial court entered an order denying surety's motion to set aside the judgment of forfeiture. The order included, in pertinent part, the following findings of fact: 3. On or about 21 February 2003, Jeanee M. Wheeler, Assistant Clerk of Superior Court, prepared a Bond Forfeiture Notice for defendant's failure to appear in Lenoir County Superior Court on 12 February 2003. The addresses for the Surety and the bail agent shown on the Bond Forfeiture Notice are the same addresses noted on the Bond.
4. On 21 February 2003, Jeanee M. Wheeler mailed a Bond Forfeiture Notice to the Surety and the bail agent at the addresses shown on the bond. The notice contained all of the information required by N.C. Gen. Stat. § 15A-544.3.
5. An electronic signature for Judge Paul L. Jones was inserted in the space provided for Judge Paul L. Jones to sign the judgment on the Bond Forfeiture Notice. An electronic signature for Jeanee M. Wheeler was inserted in the space provided for the Assistant Clerk of Court to sign the Certificate of Service on the Bond Forfeiture Notice. Neither Judge Jones' nor Ms. Wheeler's handwritten signatures are on the Bond Forfeiture Notice.
6. The date of forfeiture on the Bond Forfeiture Notice is 12 February 2003. The final judgment date is 21 July 2003.
7. The defendant was not arrested by the Surety or otherwise served with an order for arrest for the failure to appear on the criminal charges in this case prior to 21 July 2003.
8. None of the conditions in N.C. Gen. Stat. § 15A-544.5 were satisfied prior to 21 July 2003.
9. Subsequent to 21 July 2003, Imelda Pate, Assistant District Attorney for Lenoir County, received a telephone call from a New York probation officer informing her of the location of the defendant.
10. Ms. Pate made arrangements to have the defendant arrested in New York and transported to North Carolina.
11. The Surety did not participate or assist in the defendant's arrest and return to North Carolina.
12. The Surety presented evidence alleging that it did not receive a copy of the Bond Forfeiture Notice mailed by Ms. Wheeler on 12 February 2003.
Based on these findings, the trial court made the following conclusions of law:
1. N.C. Gen. Stat. § 15A-544.4(a) states that the court shall give notice of the entry of forfeiture by mailing a copy of the forfeiture to the defendant and to each surety whose name appears on the Bond.
2. N.C. Gen. Stat. § 15A-544.4 (e) states that notice under this section shall be mailed no later than the thirtieth day after the date on which the forfeiture is entered.
3. N.C. Gen. Stat. § 15A-544.4 (d) states that notice given under this section is effective when the notice is mailed.
4. Pursuant to N.C. Gen. Stat. § 15A-544.4, notice of the entry of judgment was provided to the Surety and the bail agent at the addresses shown on the bond.
5. N.C. Gen. Stat. § 15A-544.4 does not require that the notice given under this section be received by the Surety or bail agent.
6. N.C. Gen. Stat. § 15A-101.1 authorizes the use of electronic signatures for documents, including orders and notices, that deal with criminal process or procedure.
7. The Order of Forfeiture was signed by Judge Paul L. Jones and is valid and enforceable.
8. The certificate of service certifying that the defendant and each surety named on the Bond Forfeiture Notice were mailed a copy of the notice by first class mail was signed by Jeanee M. Wheeler, Assistant Lenoir County Clerk of Court.
9. The defendant was not arrested by the Surety or otherwise served with an order for arrest for the failure to appear on the criminal charges in this case prior to the final judgment date, 21 July 2003.
10. None of the conditions in N.C. Gen. Stat. § 15A-544.5 were satisfied prior to 21 July 2003.
From this order, surety now appeals.
(a) The court shall give notice of the entry
of forfeiture by mailing a copy of the
forfeiture to the defendant and to each surety
whose name appears on the bail bond.
(b) The notice shall be sent by first-class
mail to the defendant and to each surety named
on the bond at the surety's address of record.
(c) If a bail agent on behalf of an insurance
company executed the bond, the court shall
also provide a copy of the forfeiture to the
bail agent, but failure to provide notice to
the bail agent shall not affect the validity
of any notice given to the insurance company.
(d) Notice given under this section is
effective when the notice is mailed.
(e) Notice under this section shall be mailed
not later than the thirtieth day after the
date on which the forfeiture is entered. If
notice under this section is not given within
the prescribed time, the forfeiture shall not
become a final judgment and shall not be
enforced or reported to the Department of
In addition to these statutory provisions, our review is
guided by numerous principles of common law. The well-established
rule is that findings of fact made by the court in a non-jury trial
have the force and effect of a jury verdict and are conclusive on
appeal if there is evidence to support them[.] Henderson Countyv. Osteen, 297 N.C. 113, 120, 254 S.E.2d 160, 165 (1979) (citation
omitted). A trial court's conclusions of law, however, are
reviewable de novo. Wright v. Auto Sales, Inc., 72 N.C. App. 449,
325 S.E.2d 493 (1985).
There is no requirement that the clerk of court herself carry notices to the post office in order to mail them. See York v. York, 271 N.C. 416, 420, 156 S.E.2d 673, 675 (1967) (The clerk of court in Mecklenburg County would be able to do little except carry letters to the post office if he were physically and personally required to mail them.).
Official actions taken by public officers in North Carolina are accorded the presumption of regularity. See Huntley v. Potter, 255 N.C. 619, 628, 122 S.E.2d 681, 687 (1961) (defining the presumption of regularity as the presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law.) (citations and internal quotation marks omitted). Accordingly, the official actions of clerks of court are afforded this presumption of regularity. See Town of Winston v. Scott, 80 N.C. App. 409, 415, 342 S.E.2d 560, 564 (1986) (When the Clerk of Court certifies that the execution of an instrument has been properly proven the presumption is that the document was properly executed.). Thus, for example, the mailing of notices of tax foreclosures, preparedby an assistant clerk of court for mailing through the sheriff's department, is accorded the presumption of regularity. Osteen, 297 N.C. at 118, 254 S.E.2d at 163. The presumption of regularity of official acts is a true presumption rather than an inferential one. Id. '[T]he presumption is only one of fact and is therefore rebuttable. But in order for the [defendant] to rebut the presumption he must produce 'competent, material and substantial' evidence. . . . Id. (quoting In re Appeal of Amp, Inc., 287 N.C. 547, 563, 215 S.E.2d 752, 762 (1975)). Evidence of nonreceipt of the letter by the addressee . . . is some evidence that the letter was not mailed[.] Wilson v. Claude J. Welch Builders, 115 N.C. App. 384, 386, 444 S.E.2d 628, 629 (1994) (citations omitted).
Applying these principles and the relevant statutes to the facts of the instant case, we conclude that the trial court's finding of fact, that the clerk of court mailed the notice of forfeiture, was supported by sufficient evidence in the record. We further conclude that the trial court correctly concluded that notice of entry of judgment was provided to the [s]urety . . . as required by G.S. § 15A-544.4.
Assistant Clerk of Court Wheeler testified not only about the regular practices of the clerk's office for preparing, collecting, and mailing outgoing mail, but also about the specific practicesconcerning the printing and mailing of forfeiture notices. She explained the office practice for depositing notices into the U.S. mail, and that the mail was picked up from an outgoing bin on a daily basis by an employee responsible for collecting and mailing the outgoing mail. Moreover, the clerk's certificate of service, confirming that the notice had been mailed 21 February 2003, was also before the trial court.
We recognize that the affidavit of surety's employee tended to show that surety did not receive the notice of forfeiture, and that this was relevant to the question of whether or not the clerk had mailed the notice. However, the trial court , after considering this along with the other evidence in the record, could properly conclude that the clerk had given notice in compliance with G.S. § 15A-544.4.
We hold that the evidence in the instant case was sufficient to support the trial court's finding that the assistant clerk of court mailed the notice in compliance with G.S. § 15A-544.4. This finding of fact supports the trial court's conclusion that notice was given according to G.S. § 15A-544.4. The corresponding assignments of error are overruled.
Judges TIMMONS-GOODSON and BRYANT concur.
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