A16-2003

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2002
A16-2003

State of Minnesota,
Respondent,

vs.

Andrew James Remer, Defendant (A16-2002),

Daniel Clyde Rothbauer, Jr., Defendant (A16-2003),

Midwest Bonding, LLC,
Appellant.

Filed July 3, 2017
Reversed and remanded
Rodenberg, Judge

Dakota County District Court
File Nos. 19HA-CR-15-1977, 19HA-CR-15-2420

James C. Backstrom, Dakota County Attorney, G Paul B eaumaster, Assistant County
Attorney, Hastings, Minnesota (for respondent)

James McGeeney, Doda & McGeeney, P.A., Rochester, Minnesota (for appellant)

Considered and decided by Jesson, Pr esiding Judge; Rodenberg, Judge; and
Bratvold, Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In these consolidated appeals, appellant bonding company argues that the district
court abused its discretion by refusing to rein state and discharge previously forfeited bail
bonds (bonds) in full. Becaus e the district court erred in its application of the factors
identified by the Minnesota Supreme Court to guide a district court’s exercise of its
discretion, we reverse and remand.
FACTS
Andrew Remer and Daniel Rothbauer Jr. we re each arrested. Conditions of release
were established for each of them by a distri ct court. Appellant Midwest Bonding LLC
entered into separate bond agreements with each of them in the amounts of $90,000 and
$30,000 respectively. Both were released pretrial based on bonds issued by appellant and
posted with the district court; each failed to appear at his respective pretrial hearing. The
district court issued warrants and ordered the bonds forfeited.
In Remer’s case, appellant moved to re instate the bond and filed an affidavit
explaining that it both attempted to contact Remer before his pretrial hearing and attempted
to locate him after he failed to appear. Appellant explained that Remer was located in the
custody of another jurisdiction, and that appellant made efforts to ensure that Remer would
be brought to Dakota County. The district court reinstated 75% of Remer’s bond.
Appellant requested and was granted a he aring on whether the bond should be
reinstated and discharged without penalty. Three days before the hearing, the state
dismissed all charges against Remer. At the hearing, the state expl ained that Remer had

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been apprehended by federal authorities imme diately after his release from the Dakota
County jail on the bond. He had been in fe deral custody since then, accounting for his
nonappearance. The district court indicated th at the bond would be reinstated, stating,
“You have a winner.” But the district court later issued a written order requiring forfeiture
of 25% of the bond, from which appellant appealed.
In Rothbauer’s case, one week after the b ond was forfeited for his failure to appear,
the Dakota County sheriff’s department apprehended him. Rothbauer then pleaded guilty.
Appellant moved to reinstate and discharge the bond, and filed an affidavit stating that it
had attempted to contact Rothbauer and th e indemnitor on the bond one day before the
missed hearing. The indemnitor told appellant that Rothbauer was in the custody of another
state. The day after the missed hearing, a ppellant attempted to locate Rothbauer and
eventually hired a fugitive recovery agent.
Appellant requested and was granted a hearing on whether the bond should be
reinstated and discharged without penalty. Appellant argued that the four-factor test from
In re Application of Shetsky , 239 Minn. 463, 471, 60 N.W.2d 40, 46 (1953), favored
reinstatement of the bond. The state appeared at the hearing, but took no position on the
motion and did not argue or pres ent evidence of prejudice. The same district court judge
who forfeited the bond in Remer’s case issued an order reinstating and discharging 50% of
the bond, from which appellant appealed.
We consolidated the two appeals. The state filed no brief in either case.

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D E C I S I O N
Appellant argues that the district court ab used its discretion in both cases, because
the factors from Shetsky favor reinstatement of each bond without penalty.
If a defendant released on bail fails to ap pear and the bail bond is forfeited, “the
[district] court may forgive or reduce the penalty according to the circumstances of the case
and the situation of the party on any terms and conditions it considers just and reasonable.”
Minn. Stat. § 629.59 (2016); see also Minn. R. Gen. Pract. 702(f) (“Reinstatement may be
ordered on such terms and conditions as the [d istrict] court may require.”). We review a
district court’s denial of a petition to rein state a forfeited bail b ond for an abuse of
discretion. State v. Askland, 784 N.W.2d 60, 62 (Minn. 2010). “A district court abuses its
discretion when it bases its conclusions on an erroneous view of the law.” Id.
The Minnesota Supreme Court has identifie d the factors a district court must
consider when reinstatement of a bond is requested:
(1) the purpose of bail, the civil nature of the proceedings, and
the cause, purpose and length of a defendant’s absence; (2) the
good faith of the bo nd company as measur ed by the fault or
willfulness of the defendant; (3) the good-faith efforts of the
bond company to apprehend and produce the defendant; and
(4) any prejudice to the State in its administration of justice.

Id. (citing Shetsky, 239 Minn. at 471, 60 N.W.2d at 46). Appellant bears the burden of
establishing that these factors weigh in favor of reinstatement, but the state bears the burden
of proving any claimed prejudice. Id.
“The primary purpose of bail in a criminal case is not to increase the revenue of the
state or to punish the surety but to insure the prompt and orderly administration of justice

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without unduly denying liberty to the accused whose guilt has not been proved.” Shetsky,
239 Minn. at 471, 60 N.W.2d a6 46. Bail “secure[s] the attendance of the accused” in order
to determine “all questions touching upon his guilt or innocence.” Id. at 470, 60 N.W.2d
at 46.
Shetsky recognized that, in some instances, a defendant’s failure to appear may be
justified by the circumstances, and that a su rety should not be penalized in those
circumstances. Id. at 469, 60 N.W.2d at 45. A defendant may be justified in missing court
in cases of serious illness, accident, or “det ention in the custody of another jurisdiction,
whereby the defendant is prevented from appearing for trial as required by the terms of his
bond.” Id. at 469 n.4, 60 N.W.2d at 45 n.3. But when a defendant “willfully does not meet
the conditions of his or her bond without a justifiable excuse, this misconduct is attributable
to the surety” and will weigh against forgiveness of a bond penalty. State v. Storkamp, 656
N.W.2d 539, 542 (Minn. 2003); State v. Vang, 763 N.W.2d 354, 358 (Minn. App. 2009).
Here, the purpose of bail was satisfied in each case. Remer was taken into custody
by federal authorities immediately upon leavin g the Dakota County jail, and his Dakota
County charges were ev entually dismissed in favor of federal charges. The state knew
where he was. Rothbauer was in the custody of th e Dakota County sheriff’s department
within one week of hi s missed hearing, and he thereaft er pleaded guilty. Appellant’s
affidavit, which was not contradicted or cha llenged by the state, sugg ests that Rothbauer
returned to Dakota County after being in the custody of another jurisdiction. Because both
defendants were in custody at the time of their Dakota County hearings, their absences
were not willful and there is no lack of good faith to attribute to appellant. The

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administration of justice was not significantly delayed and all ques tions concerning the
defendants’ guilt were resolved in a ti mely fashion. The first and second Shetsky factors
weigh in favor of appellant’s request for reinstatement and discharge.
The district court identified the third and fourth Shetsky factors as justifying the
imposed penalties on a ppellant as surety. The district court found that full mitigation of
the forfeitures was not justified under the third factor, because appellant had not put forth
sufficient efforts before the missed hearings to ensure that the defendants appeared for their
hearings. The district court did not believe that calling a defendant and an indemnitor the
day before a hearing, to remind the defendant of the hearing, was sufficient under the third
Shetsky factor.
We are aware of no Minnesota precedent re quiring the type of prehearing efforts
that the district court re quired to satisfy the third Shetsky factor. When considering the
third Shetsky factor, Minnesota appellate courts have considered the posthearing efforts of
the bond company to locate and apprehend the defendant. See Storkamp, 656 N.W.2d at
542-43 (indicating that the good-faith efforts of the surety to appreh end an unjustifiably
absent defendant will support reinstatemen t of a bond, if the state experienced no
prejudice); Shetsky, 239 Minn. at 474, 60 N.W.2d at 48 (affirming the forfeiture because
the surety made no effort to arrest or pr oduce the defendant before relieving itself of
liability); Vang, 763 N.W.2d at 359 (affirming forfeiture of majority of bond where efforts
of the surety did not lead to the return of defendant, who remained at large); Farsdale v.
Martinez, 586 N.W.2d 423, 426 (Minn. App. 1998) (reversing forfeiture of bond based, in
part, on the surety’s aid in locating the absent defendant); State v. Due, 427 N.W.2d 276,

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278 (Minn. App. 1988) (affirming forfeiture where a surety was not notified that defendant
failed to appear, because this “in no way pr evented” the surety from learning of the
nonappearance or from attempting to locate and arrest the defendant), review denied (Minn.
Aug. 16, 1988). Only in State v. Rodriguez did we affirm a refusal to reinstate a bond
because of a lack of prehearing efforts to ensure that the defendant appeared at trial. 775
N.W.2d 907, 913-14 (Minn. App. 2009), review denied (Minn. Feb. 16, 2010). But in that
case, the bond company failed to correctly id entify the defendant in its records before
posting bond, despite public record of the defe ndant’s multiple aliases, and it also moved
for reinstatement while the defendant remained at large. Id.
Moreover, because each defe ndant missed his hearing b ecause he was in custody
elsewhere, additional prehearing efforts to ensure attendance would have been unavailing.
We appreciate the frustration experienced by a district court when a defendant fails to
appear, but it is not the task of th is court to extend existing law. Tereault v. Palmer, 413
N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). The district
court’s analysis of the third Shetsky factor was based on “an err oneous view of the law.”
Askland, 784 N.W.2d at 62.
Appellant established that it put forth good -faith efforts to lo cate and produce the
defendants after they missed their hearings . Remer was located in federal custody.
Appellant began searching for Rothbauer the da y after the missed hearing and before it
received notice that the bond had been forfeite d. It hired a fugitive recovery agent.
Rothbauer was returned to the custody of the Dakota County sheriff’s department within a
week of the missed hearing.

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As to the final factor, “[t]he general rule is that relief from forfeiture will not be
granted where the prosecution has been deprived of proof by delay or has otherwise been
adversely affected.” Shetsky, 239 Minn. at 470, 60 N.W.2d at 45. If the state provides
such evidence of prejudice, it will weigh heavily against re instatement of the bond.
Storkamp, 656 N.W.2d at 542. Where the prej udice suffered by the state amounts to
additional expenses incurred in effectuating the capture of the defendant, the district court
may “deduct that amount from the bond remission amount.” Farsdale, 586 N.W.2d at 426
(reversing forfeiture of $50,000 where the defendant had only been at large for two months,
the state only expended $414 in effectua ting his capture, and the forfeiture was
substantially disproportionate to the claimed prejudice).
The state does not claim prejudice in either of these cases and produced no evidence
that expenses were incurred in effectuating th e capture of either defendant. Nor were the
prosecutions of the defendants prejudiced: no w itnesses or evidence were lost in either
case. See Askland, 784 N.W.2d at 63 (finding no prejudice to the state when there was no
claim of loss of evidence, witnesses, or expense in defendant’s 177-day absence, and where
the defendant pleaded guilty once he was located and returned to court). Neither defendant
was at large when the bond company sought reinstatement and discharge of the bonds. See
Vang, 763 N.W.2d at 359 (affirming forfeiture where defendant remained at large);
Rodriguez, 775 N.W.2d at 914 (holding that the state was prejudiced because it was unable
to proceed with a prosecution in the defendant’s absence); Due, 427 N.W.2d at 278
(affirming forfeiture when three years had passed without the defendant being located and
apprehended). Although the district court iden tified that the administration of justice is

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always prejudiced when a defendant fails to a ppear, nothing in either record supports a
finding of prejudice to the state under existing Minnesota law (and the state made no such
claim to the district court and makes none o n a p p e a l ) . D e s p i t e s o m e d e g r e e o f
inconvenience to the court and its processes, the state was not prejudiced. This factor
favors reinstatement of the bonds.
Because the relevant factors weigh in fa vor of reinstatement of the bonds, and
because the district court’s application of those factors was based on an erroneous view of
the law, we reverse and remand with instruc tion to reinstate and discharge the full bond
amounts in each case.
Reversed and remanded.