County District Court No. 14CR2065 Honorable Thomas J.
Cynthia H. Coffman, Attorney General, Christine Brady, Senior
Assistant Attorney General, Denver, Colorado, for
Law LLC, Sean Connelly, Denver, Colorado; Eytan Nielsen LLC,
Iris Eytan, Dru Nielsen, Tiffany Drahota, Denver, Colorado,
Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for
1 Surety, Alfred Perna, appeals from the district court's
order granting in part the motion of defendant, Thomas
Fallis, for return of the bond premium. We vacate because we
conclude that section 16-4-110, C.R.S. 2017, does not grant
authority to the court to refund a bond premium under the
circumstances of this case.
2 Defendant was charged and arrested for allegedly murdering
his wife. The district court set a $500, 000 bond. Defendant
posted bond through Mr. Perna by paying a $25, 000 premium.
Thereafter, he fully cooperated with all court orders and
appeared at all hearings. Fourteen months later, just before
defendant's trial was to begin, Mr. Perna moved to
surrender defendant back into the custody of the court. The
court granted the motion. Defendant spent several days in
jail while his family secured a second bond and paid another
$25, 000 premium to a different surety to secure
defendant's release. Defendant was ultimately acquitted.
3 Defendant moved for return of the premium he had paid to
Mr. Perna. The court partially granted the motion. The court
concluded that Mr. Perna would be unjustly enriched if he
were allowed to keep the entire premium. The court also
found, however, that Mr. Perna had provided a service and was
entitled to retain a portion of the premium in exchange for
the benefit conferred (fourteen months of freedom). The court
found that the risk taken by Mr. Perna in securing this bond
was similar to a high risk investment contemplated by section
5-12-103(1), C.R.S. 2017, and applied the maximum forty-five
percent usury rate found therein. Accordingly, it ordered Mr.
Perna to return $11, 031.25 to defendant.
4 Mr. Perna contends that the district court erred by
ordering that he refund a portion of the bond premium to
defendant. We agree.
5 "The determination of the amount of premium refund due
to the defendant is a matter within the trial court's
discretion and the court may not be reversed absent an abuse
of that discretion." People v. Anderson, 789
P.2d 1115, 1117 (Colo.App. 1990). A court abuses its
discretion where its decision is manifestly arbitrary,
unreasonable, or unfair, or is based on a misapplication or
misunderstanding of the law. People v. McFee, 2016
COA 97, ¶ 17.
6 In this instance, resolution of Mr. Perna's contention
requires us to interpret section 16-4-110. Thus, our review
is de novo. See People In Interest of J.G., 2016 CO
39, ¶ 13. Our primary goal in interpreting statutes is
to ascertain and give effect to the legislature's intent.
Id. We do this by first looking to the plain
language of the statute, giving words their ordinary
meanings. Id. If the terms are clear, we apply the
statute as written. Id.
7 In ordering Mr. Perna to refund a portion of
defendant's premium, the district court relied primarily
on section 16-4-110(1)(d) and People v. Carrethers,
867 P.2d 189 (Colo.App. 1993). The relevant portion of
section 16-4-110(1)(d) provides that "[i]f a compensated
surety is exonerated by surrendering a defendant prior to the
initial appearance date fixed in the bond, the court, after a
hearing, may require the surety to refund part or all of the
bond premium paid by the defendant if necessary to prevent