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This opinion will be unpublished and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
A18-2058

State of Minnesota,
Respondent,

vs.

Marvin Lynn Elgy,
Defendant,

Midwest Bonding, LLC,
Appellant.

Filed June 17, 2019
Affirmed
Jesson, Judge

Ramsey County District Court
File No. 62-CR-18-627

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

John J. Choi, Ramsey County Attorney, Peter R. Marker, Assistant County Attorney, Erin
M. Schoenbeck, Certified Student Attorney, St. Paul, Minnesota (for respondent)

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

Considered and decided by Worke, Presiding Judge; Jesson, Judg e; and Florey,
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 cour t’s reinstatement and discharg e of $5,000 of a
$20,000 bail bond, appellant Mid west Bonding, LLC challenges th e district court’s
decision to impose a $15,000 penalty when it reinstated and discharged the bail bond. We
affirm.
FACTS
In January 2018, defendant Marvin Lynn Elgy was charged with one count of felony
domestic assault and one count of domestic assault by strangula tion. In March 2018,
appellant Midwest Bonding, LLC, posted an appearance bond in the amount of $20,000 to
ensure defendant’s appearance at future proceedings. On March 29, 2018, defendant
pleaded guilty to domestic assault by strangulation. But defen dant failed to appear at the
May 30, 2018 sentencing hearing, a nd the district court ordered the $20,000 bond to be
forfeited.
On June 30, 2018, defendant was arrested in Washington County. Unaware that the
defendant was in custody, in Au gust 2018, Midwest Bonding petit ioned 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 affidavi t, Midwest Bonding
contacted the defendant and inde mnitor prior to the sentencing hearing to guarantee his
appearance. After learning the defendant failed to appear, Mid west Bonding began
investigative efforts to locate the defendant. When its effort s proved unsuccessful,
Midwest Bonding hired U.S. Bail and Fugitive Enforcement. Neit her Midwest Bonding

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nor the fugitive recovery agent located the defendant in the Washington County’s jail until
November 2018, when he was transported to Ramsey County for sentencing.
At the motion hearing, after c onsidering both parties’ arguments, the district court
reinstated and discharged the bond in the reduced amount of $5, 000. Midwest Bonding
appeals.
D E C I S I O N
Midwest Bonding argues that the district court abused its discretion when it imposed
a 75% penalty when reinstating and discharging the bail bond.
When a bail bond is forfeited following a defendant’s failure t o appear, a district
court “may forgive or reduce the penalty according to the circu mstances of the case and
the situation of the party on an y terms and conditions it consi ders 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.

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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 proving any claimed prejudice. Id. We consider
each of the Shetsky factors in turn.
T h e f i r s t Shetsky factor examines “the purpose of bail, the civil nature of the
proceedings, and the cause, purpos e and length of a defendant’s absence.” Id. Midwest
Bonding asserts that the purpose of bail was satisfied because the defendant was at large
for only 30 days after he had already pleaded guilty.1
A district court “may not treat bail as a way to increase the revenue of the state or
to punish the surety.” State v. Storkamp, 656 N.W.2d 539, 541-42 (Minn. 2003). Rather,
the bail serves a dual purposes of “relieving the accused of imprisonment 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 partially satisfied because the defendant had his
freedom before he pleaded guilty . But the purpose of bail was frustrated when the
defendant failed to appear for sentencing and was not apprehended until 30 days later. Still,
Midwest Bonding asserts that the supreme court has fully reinst ated bail bonds where a
defendant was at large for a longer amount of time. See Askland, 784 N.W.2d at 61 (about

1 It is unclear from the record w hen Midwest Bonding learned tha t defendant was in
custody in Washington County. But as of August 28, 2018, the date it petitioned the court,
Midwest Bonding was unaware that defendant had been apprehended by law enforcement.

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seven months); Farsdale v. Martinez, 586 N.W.2d 423, 424-25 (Minn. App. 1998) (about
three months). But in those decisions, other factors also favo red reinstatement. See
Askland, 784 N.W.2d at 61, 63 (stating th at reinstatement was warrante d where bond
company took steps to locate, a pprehend, and deliver defendant, incurring more than
$3,000 in expenses, and the state suffered no prejudice); Farsdale, 586 N.W.2d at 426
(bondsman “made numerous attempts to locate respondent through contacts with family,
friends, and multi-state law enforcement” and requested that law enforcement expand the
scope of their search, which led to defendant’s arrest).
Further, when considering the purpose of bail, Minnesota Statut es section 629.58
(2018) serves to encourage “suret ies to locate, arrest, and ret urn defaulting defendants to
the authorities to facilitate the timely administration of justice.” Storkamp, 656 N.W.2d at
542. Here, Midwest Bonding presented no evidence that their ef forts contributed to the
defendant’s apprehension. Although the defendant was at large for only 30 days, because
Midwest Bonding did not assist in securing the defendant’s appearance at sentencing, this
first Shetsky factor is largely neutral.
Turning to the second Shetsky factor, this court considers “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. Here, two days prior to defendant’s sentencing hearing, Mi dwest
Bonding contacted the defendant to ensure his appearance at sen tencing. Defendant

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accepted notification of the hearing date through an automated appointment reminder voice
messaging system. Still, he faile d to appear. And no reason w a s g i v e n f o r h i s
nonappearance.2 This Shetsky factor weighs 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. The district court
found that Midwest Bonding did not meet “its burden with regard to good faith efforts in
totality.” But Midwest Bonding a sserts that it made good-faith efforts to locate the
defendant, and as such, this factor favors reinstatement.
Without question, after the defe ndant failed to appear at sente ncing, Midwest
Bonding’s agents began investiga tive efforts to locate him. An d when its efforts proved
unsuccessful, Midwest Bonding hired a fugitive recovery agent to find the defendant. But
by August 28, 2018—the date Midwest Bonding petitioned the cour t to reinstate and
discharge the bond—neither Midwest Bonding, nor the recovery ag ent, had located the
defendant, who had been in custody in Washington County since June 30, 2018.3
While Midwest Bonding expended some good-faith efforts to locate the defendant,
it ultimately did not produce or apprehend him, despite the fac t that the defendant was in
custody in a neighboring county. This led the district court to note that Midwest Bonding
“fail[ed] to show good faith effo rt to apprehend the defendant, as he was in custody in

2 At the motion hearing, Midwest Bonding conceded that defendant’s nonappearance was
willful.
3 At the motion hearing, counsel for Midwest Bonding referred to their investigation as
“deficient” and stated that “[i]t appears that the recovery age nt that we hired missed the
fact that [defendant] was actually in custody when we filed our petition and affidavit.”

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Washington County.” As such, because Midwest Bonding attempted to locate the
defendant, but failed to find hi m in a neighboring county’s jai l, this Shetsky factor is
marginally in favor of reinstatement and discharge of the bail bond.
Finally, the fourth Shetsky factor considers whether the state was prejudiced in its
administration of justice. Askland, 784 N.W.2d at 62. A defendant’s absence alone does
not satisfy the state’s burden of demonstrating prejudice. Id. at 63. But prejudice to the
state can be demonstrated by a loss of evidence, a loss of witn esses, or a showing that it
was otherwise adversely affected. Id. Here, the state asserts that it was prejudiced because
in the amount of time the defendant was at large—30 days—he com mitted two domestic
abuse no-contact order violations.4 While Midwest Bonding is correct that the defendant
is innocent of these charges until he pleads or is found guilty, the state now bears the cost
of prosecuting these two violations, which would not have occur red if the defendant
appeared at sentencing. Accordingly, this fourth Shetsky factor weighs against full
reinstatement of the bail bond.
Because the relevant factors, considered as a whole, weigh aga i n s t a c o m p l e t e
reinstatement and discharge of the bail bond, the district court acted within its discretion in
imposing a $15,000 penalty.
Affirmed.

4 Midwest Bonding asserts that the state did not argue prejudice to the district court. But
the state specifically mentioned the two new domestic abuse no-contact order violations at
the bond reinstatement hearing.