State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0487

State of Minnesota,
Respondent,

vs.

Leslie James Gahbow,
Defendant,

Midwest Bonding, LLC,
Appellant.

Filed April 8, 2019
Affirmed
Jesson, Judge

Mille Lacs County District Court
File No. 48-CR-15-507

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Joe Walsh, Mille Lacs County Attorney, Timothy S. Kilgriff, Ass istant County Attorney,
Milaca, Minnesota (for respondent)

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

Considered and decided by Ro ss, Presiding Judge; Johnson, Judg e ; a n d J e s s o n ,
Judge.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
On appeal from the district court’s reinstatement and discharge of $75,000 of a
$100,000 bail bond, appellant Midwest Bonding, LLC argues that the district court abused
its discretion by failing to reinstate the entire amount of the bail bond. We affirm.
FACTS
In March 2015, defendant Leslie James Gahbow was charged with t wo counts of
aiding and abetting second-degree murder, two counts of aiding and abetting
second-degree murder while committing a felony, aiding and abetting first-degree assault,
aiding and abetting aggravated r obbery, aiding and abetting sec ond-degree assault with a
dangerous weapon, and failing to render aid to a shooting victim.1 In April 2016, appellant
Midwest Bonding, LLC, posted an appearance bond in the amount o f $100,000 to
guarantee defendant’s appearance in court. Defendant pleaded g uilty on March 6, 2017,
to aiding and abetting simple rob bery, and signed a promise to appear later that month at
the March 30 sentencing hearing. But he did not do so. A numb er of the victim’s family
members attended the sentencing hearing, only to learn the defendant had failed to appear.2
At the hearing, the district court ordered the $100,000 bond to be forfeited and issued a

1 In violation of Minnesota Statutes sections 609.19, subdivisions 1(1) (aiding and abetting
second-degree murder), 2(1) (aiding and abetting second-degree murder while committing
a felony), .221, subdivision 1 (aiding and abetting first-degree assault), .245, subdivision 1
(aiding and abetting aggravated robbery), .222, subdivision 1 ( aiding and abetting
second-degree assault with a dangerous weapon), .662, subdivisi on 3(a)(2) (shooting
victim—duty to render aid), .05, subdivisions 1, 2 (aiding and abetting) (2014).
2 At least one member of the victim’s family completed a victim impact statement prior to
the hearing.

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warrant for the defendant’s arrest. After approximately 55 days at large, law enforcement
apprehended defendant on May 23, 2017. He was sentenced on May 30, 2017.
Midwest Bonding subsequently p etitioned the district court to reinstate and
discharge the bail bond. In support of its petition, Midwest Bonding filed an affidavit from
a managing member. According to the affidavit, Midwest Bonding contacted the defendant
prior to the sentencing hearing to guarantee his appearance. O nce notified that the
defendant had failed to appear at the hearing, Midwest Bonding “immediately began
investigative efforts to locat e [d]efendant . . . includ[ing] f urther attempts to contact
[d]efendant and [i]ndemnitor via telephone, and running an electronic search of all the jails
in Minnesota for [d]efendant to ensure [he] hadn’t already been brought back into custody.”
Midwest Bonding further asserted that it hired U.S. Bail and Fugitive Enforcement to locate
defendant and that the fugitive re covery agency’s efforts inclu ded “investigating the
contact information collected at the time the bond was posted a nd [using] investigative
software to search for the [d]efendant.”
At the motion hearing, Midwest Bonding declined to enter any fu rther evidence in
support of its motion. The state argued that there was a significant amount of prejudice to
the state because the victim’s f amily members attended the sent encing hearing and were
distressed after the defendant failed to appear. The district court granted the petition, and
reinstated and discharged the bond in the reduced amount of $75 ,000. Midwest Bonding
appeals.

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D E C I S I O N
Midwest Bonding argues that the district court abused its discretion when it imposed
a 25% penalty when reinstating and discharging the bail bond.
When a defendant released on bail fails to appear, and the bail bond is forfeited, a
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 (2018); see also Minn. R. Gen. Prac. 702(f) (“Reinstatement may be
ordered on such terms and conditions as the [district] court ma y require.”) We review a
district court’s decision on a petition to reinstate a forfeited bond for an abuse of discretion.
State v. Askland, 784 N.W.2d 60, 62 (Minn. 2010).
The Minnesota Supreme Court has identified four factors a distr ict court must
consider when reinstatement of a forfeited bail 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 bond company as measured 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 In re Shetsky, 60 N.W.2d 40, 46 (Minn. 1953)). These factors are known as the
Shetsky factors. Midwest Bonding bears the burden of establishing the first three Shetsky
factors, but the state bears the burden of providing any eviden ce of prejudice. Id. We
consider each of the Shetsky factors in turn.
Midwest Bonding contends that the purpose of bail was satisfied because the
defendant was only at large for 5 5 days after he had already pl eaded guilty, and he was

5
apprehended and sentenced prior to the petition being filed. C onversely, the state argues
that the purpose of bail was frustrated by defendant’s nearly two-month long absence which
unduly delayed the administration of justice.
A district court “may not treat bail as a way to increase the r evenue of the state or
to punish the surety.” State v. Storkamp, 656 N.W.2d 539, 541-42 (Minn. 2003). Rather,
bail serves a dual purpose: “relieving the accused of imprisonm ent and relieving the state
of the burden of detaining him pending his trial.” Id. at 541. The surety, then, guarantees
“the accused’s presence at trial without in any way impairing or delaying the administration
of justice or prejudicing the state in its prosecution.” Id.
Here, the purpose of bail was satisfied, in part, because the d efendant had his
freedom for almost a year before he pleaded guilty. But the purpose of bail was frustrated
when the defendant failed to app ear at the sentencing hearing, and was not apprehended
until 55 days later. And while the Minnesota Supreme Court has fully reinstated bail bonds
in situations where a defendant was at large for similar or gre ater periods of time, 3 those
decisions relied on other factors favoring reinstatement. See Askland, 784 N.W.2d at 61,
63-64 (bond company took steps to locate, apprehend, and delive r defendant, incurring
more than $3,000 in expenses, wh ich warranted reinstatement in the absence of any
evidence of prejudice to state); Storkamp, 656 N.W.2d at 540-41, 543 (bond company made
“good-faith efforts” to track down and successfully apprehend defendant, incurring $1,200

3Askland, 784 N.W.2d at 61 (about seven months); Storkamp, 656 N.W.2d at 540-41 (about
two months); see also Farsdale v. Martinez, 586 N.W.2d 423, 424-25 (Minn. App. 1998)
(about two months).

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in expenses, which warranted reinstatement despite defendant’s bad faith when the state
was not prejudiced); Farsdale, 586 N.W.2d at 426 (bondsman “made numerous attempts
to locate defendant through contacts with family, friends, and multi-state law enforcement”
and requested that law enforcement expand the scope of their se arch, which led to
defendant’s arrest).
Further, when considering the purpose of bail, Minnesota Statut es section 629.58
(2018) encourages “sureties to l ocate, arrest, and return defau lting defendants to the
authorities to facilitate the timely administration of justice.” Storkamp, 656 N.W.2d at 542.
And the district court appropriately found that “Midwest Bondin g presented no evidence
that their efforts contributed t o the successful apprehension o f [d]efendant by law
enforcement.”
When we turn to the second Shetsky factor, we consider “the good faith of the bond
company as measured by the fault or willfulness of the defendant.” Askland, 784 N.W.2d
at 62. A willful and unjustifiable default by the defendant weighs against forgiveness of a
bond penalty. Shetsky, 60 N.W.2d at 47-48. And when a defendant does not meet the
obligation to appear without a justifiable excuse, this misconduct is attributable to the bond
company. Id. at 48 (“[The defendant’s] willful and unjustifiable default as a principal of
the bail bond is chargeable to his surety.”) Here, on March 6, 2017, the defendant signed
a promise to appear at his March 30 sentencing date. As the di strict court stated, this
indicates that the defendant knew he had a court date. Then, on March 28, 2017, Midwest
Bonding contacted the defendant to ensure his appearance at the sentencing hearing. The
defendant accepted notification of the hearing date through an automated appointment

7
reminder voice messaging system. But he did not appear. 4 The first and second Shetsky
factors together weigh against full reinstatement of the bond.
The third Shetsky factor considers “the good-faith efforts of the bond company t o
apprehend and produce the defendant.” Askland, 784 N.W.2d at 62. Midwest Bonding
asserts that this factor favors reinstatement because it made good-faith efforts to apprehend
and produce the defendant.
While the hiring of recovery age nts may demonstrate the good-f aith efforts of
Midwest Bonding, here there is a question of what the recovery agents actually did to locate
and apprehend the defendant. I n its thorough analysis, the dis trict court found that
“Midwest Bonding provided insuffi cient evidence to show it made good faith efforts to
locate [d]efendant after he willfully failed to appear.” Specifically, the district court found
that Midwest Bonding only made thr ee phone calls—one call to th e indemnitor before
sentencing, one call to the defendant after he failed to appear, and one call to the indemnitor
after the defendant’s failure to appear. And while Midwest Bonding hired a recovery agent
to apprehend the defendant, the district court noted that Midwe st Bonding provided no
evidence of the specific steps th e recovery agent actually took in its efforts.5 Ultimately,
the defendant was located and apprehended by law enforcement. Midwest Bonding

4 At the motion hearing, Midwest Bonding conceded that the defen dant’s non-appearance
was willful.
5 The only evidence of the steps taken by the recovery agent is provided in the affidavit
from the managing member of Midwest Bonding. But that individu al is not an agent of
the recovery agency, nor did he indicate how he knew this information.

8
presented no evidence that it c ontributed to the defendant’s ar rest. Overall, this Shetsky
factor weighs slightly against full reinstatement of the bond.6
As to the final Shetsky factor, the general rule is that relief from forfeiture will not
be granted when the prosecution has been deprived of proof by delay or has otherwise been
adversely affected. Shetsky, 60 N.W.2d at 45. Here, the state alleges that the delay in
prosecution prejudiced it because “it was incapable of administering justice in providing a
prison sentence to the defendant and closure to the victim’s fa mily.”7 A d e f e n d a n t ’ s
absence alone does not satisfy the state’s burden of demonstrating prejudice. Askland, 784
N.W.2d at 63. But the question here is whether the impact on the victim can demonstrate
that the state was “otherwise adversely affected.” Shetsky, 60 N.W.2d at 45 . At the
sentencing that defendant failed to attend, a number of the vic tim’s family members were
present, with at least one family member having filed a victim impact statement prior to
the hearing. But the family member was unable to read her statement. As the district court
aptly stated, when reflecting on that sentencing hearing:
[T]here were victim’s family m e m b e r s w h o w e r e g r e a t l y
distressed, who did not have the closure they might have
otherwise had, because [the defendant] was not here. So, it
isn’t something to be taken lightly. It was a significant

6 Even if this factor weighs in favor of the reinstatement and discharge of the bond, a district
court may deny a motion to reinstate without abusing its discretion even if the surety makes
these good-faith efforts. See State v. Williams, 568 N.W.2d 885, 888 (Minn. App. 1997)
(stating that the district court did not abuse its discretion i n denying motion to reinstate
even though surety assisted in apprehending the defendant), review denied (Minn. Nov. 18,
1997); see also State v. Rodriguez , 775 N.W.2d 907, 913-14 (Minn. App. 2009) (same),
review denied (Minn. Feb. 16, 2010). And there is no authority allowing one factor to
control over all Shetsky factors. See Storkamp, 656 N.W.2d at 543.
7 The victim was killed during the robbery to which the defendant pleaded guilty.

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distressful thing for those and it was visible in the courtroom
that it was distressful to them.

Still, Midwest Bonding asserts that there is no caselaw indica ting that suffering by
a victim’s family is considered prejudice to the state. But be cause sentencing is a part of
prosecuting the defendant, and because the family’s input is part of the sentencing process,
the district court could consider the suffering of the victim’s family due to the defendant’s
failure to appear at the sentencing hearing, when analyzing pre judice to the state. This
fourth Shetsky factor weighs marginally against full reinstatement of the bail bond.
Because the relevant factors, considered as a whole, weigh agai nst a complete
reinstatement and discharge of the bail bond, the district cour t acted well within its wide
discretion in imposing a $25,000 penalty.
Affirmed.