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People v. Fallis

Court of Appeals of Colorado, Fifth Division

October 19, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Thomas Fallis, Defendant-Appellee, and Alfred Perna, Surety-Appellant.

         \Weld County District Court No. 14CR2065 Honorable Thomas J. Quammen, Judge

          Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Zonies Law LLC, Sean Connelly, Denver, Colorado; Eytan Nielsen LLC, Iris Eytan, Dru Nielsen, Tiffany Drahota, Denver, Colorado, for Defendant-Appellee

          The Stout Law Firm, LLC, Stephanie Stout, Greeley, Colorado, for Surety-Appellant

          OPINION

          ASHBY JUDGE

          ¶ 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.

         I. Background

         ¶ 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.

         II. Unjust Enrichment

         ¶ 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 ...


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