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Date: 09-11-2020

Case Style:


Case Number: C-190609

Judge: Pierre H. Bergeron


Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex S. Havlin, Assistant Prosecuting Attorney

Defendant's Attorney:

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Description: Cincinnati, OH - Habeas Corpus

{¶2} In Ohio, appellate courts enjoy original jurisdiction over writs of habeas
corpus and are empowered with the authority to grant such relief. Ohio Constitution,
Article IV, Section 3(B)(1)(c) (“The courts of appeals shall have original jurisdiction in the
following * * * [h]abeas corpus[.]”); R.C. 2725.02 (“The writ of habeas corpus may be
granted by the supreme court, court of appeals, court of common pleas, probate court, or by
a judge of any such court.”). Moreover, a petition for a writ of habeas corpus is the
appropriate channel for a claim of excessive pretrial bail. Chari v. Vore, 91 Ohio St.3d 323,
325, 744 N.E.2d 763 (2001) (“Habeas corpus is the proper remedy to raise the claim of
excessive bail in pre-trial release cases.”). Courts recognize this procedural avenue because
the Ohio Constitution secures the right to reasonable bail. Ohio Constitution, Article 1,
Section 9 (“All persons shall be bailable by sufficient sureties * * * [e]xcessive bail shall not
be required[.]”). Therefore, where an offense is bailable, the right to reasonable bail may
not be denied or infringed. Lazzerini v. Maier, 2018-Ohio-1788, 111 N.E.3d 727, ¶ 2 (5th
{¶3} We treat review of a claim of excessive bail brought in a petition for a writ of
habeas corpus as presenting a type of “hybrid” standard of review. Smith v. Leis, 165 Ohio
App.3d 581, 2006-Ohio-450, 847 N.E.2d 485, ¶ 10 (1st Dist.). As the action is akin to an
appeal from the trial court, we afford “some weight” to the trial court’s decision setting the
bail, but we also recognize that habeas corpus is an original action which normally warrants
independent review. Id. (finding that trial court abused its discretion when setting
petitioner’s bail); In re DeFronzo, 49 Ohio St.2d 271, 273, 361 N.E.2d 448 (1977) (noting an
anomaly in original actions which seek habeas corpus relief for excessive bail, the effect of
which is an appeal from the trial court, but as an original action permits hearings and
findings of fact). Therefore, we first focus our examination on whether the trial court
abused its discretion in setting the bail amount. Garcia v. Wasylyshyn, 6th Dist. Wood No.
WD-07-041, 2007-Ohio-3951, ¶ 6, citing Hardy v. McFaul, 103 Ohio St.3d 408, 2004-Ohio5467, 816 N.E.2d 248, ¶ 7. And if we find an abuse of discretion, we may exercise our own
independent judgment in resetting bail at a reasonable figure based on the evidence
presented to us. Gallagher v. Johnson, 129 Ohio App.3d 775, 779, 719 N.E.2d 60 (11th
Dist.1998), citing DeFronzo at 273. In other words, the petitioner bears the burden of
showing “that appropriate grounds for independent review by this court exist.” Garcia at ¶
{¶4} In bringing a habeas corpus action, the petitioner must establish “(1) the
person whose liberty is restrained, (2) the officer who is confining the prisoner, (3) the place
where the person is imprisoned, and (4) a copy of the commitment or cause of detention.”
Smith at ¶ 13; R.C. 2725.04. Additionally, the petitioner bears the burden to demonstrate
“with particularity the extraordinary circumstances entitling him to habeas corpus relief.”
State ex rel. Wilcox v. Seidner, 76 Ohio St.3d 412, 414, 667 N.E.2d 1220 (1996); Chari at
325 (noting that in a habeas corpus case the burden rests on the petitioner to establish his
or her right to release).
{¶5} In reviewing a claim of excessive bail, we note that the purpose of bail is to
ensure the accused’s presence at trial, and therefore, the reasonableness of the bail amount
“is a question for the exercise of sound discretion by the trial court * * * dependent upon all
the facts and circumstances in each individual case.” Lazzerini, 2018-Ohio-1788, 111 N.E.3d
727, at ¶ 2, citing Bland v. Holden, 21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970); Sargent
v. Leis, 159 Ohio App.3d 658, 2005-Ohio-526, 825 N.E.2d 178, ¶ 10 (1st Dist.), citing
Jenkins v. Billy, 43 Ohio St.3d 84, 85, 538 N.E.2d 1045 (1989) (noting that amount of bail
in within discretion of the trial court). In setting the amount of bail, Crim.R. 46(C) directs
the trial court to factors it should weigh in making this determination, including: the nature
and circumstances of the charged crime, weight of the evidence against the defendant,
confirmation of the defendant’s identity, consideration of the defendant’s familial ties,
employment, financial resources, residence in the community, conviction record, mental
condition, and finally, whether the defendant is on probation, bail, community control or
protection order. Crim.R. 46(C)(1-5). Therefore, examining the propriety of the amount of
bail requires a consideration of these factors as well as any conditions of bail. Smith at ¶ 16.
Crim.R. 46 was recently amended (effective July 1, 2020, after Mr. Drew’s hearing) to
require the least amount of monetary bail: any monetary conditions “shall be in an amount
and type which are least costly to the defendant while also sufficient to reasonably assure
the defendant’s future appearance in court.” Crim.R. 46(B).
{¶6} Here, Mr. Drew maintains that the trial court improperly deemed him a flight
risk, pointing to his age, finances, and familial and community ties to imply that the trial
court misapplied the Crim.R. 46 factors. But Mr. Drew failed to supply the transcripts of
the trial court hearing from which we might review the trial court’s evaluation of the Crim.R.
46 factors. See Armendariz v. McFaul, 8th Dist. Cuyahoga No. 82703, 2003-Ohio-2327, ¶
6-10 (review of transcript of the hearing on motion to reduce bail amount revealed that the
trial court did not abuse its discretion in refusing to reduce bail amount); Hardy, 103 Ohio
St.3d 408, 2004-Ohio-5467, 816 N.E.2d 248, at ¶ 10 (presumption of regularity where
petitioner failed to include transcript of bail hearing in which the trial court noted its
reasons for its bail amount). Nor did Mr. Drew present any other evidence which supports
his claims that he is not a flight risk, such as proof of his financial status or passport status.
See Lazzerini at ¶ 8 (noting that petitioner failed to introduce evidence to support his claims
regarding excessive bail). To be sure, he makes conclusory statements, but we need more
than that to grant relief, particularly when we lack a transcript of what transpired before the
trial court.
{¶7} In original actions, one means of providing substantiation of certain factual
matters is through the vehicle of the stipulated factual record. 1st Dist. Loc.R. 33.2 (“To
facilitate the consideration and disposition of original actions, counsel, when possible,
should submit an agreed statement of facts.”). While the parties did tender us a stipulated
set of facts, these facts steer well clear of any of the considerations under Crim.R. 46 or any
examination of the review undertaken by the trial court. Nor does Mr. Drew offer us
probative information relevant to other factors the trial court needs to consider in setting
the amount of bail, such as the strength of the evidence against him or the nature and
circumstances of the crimes charged. See Miller v. Reid, 8th Dist. Cuyahoga No. 96110,
2010-Ohio-6485, ¶ 10 (though nothing in record indicated that petitioner was flight risk, in
light of all the circumstances the trial court did not err in increasing bail).
{¶8} Mr. Drew does tender a chart that he created reflecting bail amounts in other
similar alleged offenses (including some claimed to be more serious offenses) that portrays
his $5 million bail as an excessive outlier. We acknowledge this comparative evidence is
troubling, to say the least, but standing alone, it cannot translate into a ticket to a writ. A
petitioner must marshal a more powerful evidentiary record highlighting the problems
inherent in the trial court’s decision before triggering our independent review.
{¶9} As a last gasp, Mr. Drew concludes that the only rational explanation for the
amount of bail is the high media attention on the case, but he again fails to transform this
suspicion into something of evidentiary quality. See Johnson v. LaRose, 7th Dist. Mahoning
No. 18 MA 0135, 2019-Ohio-5443, ¶ 6 (unsupported and uncorroborated statements by
petitioner are insufficient to overcome the presumption of regularity of the court’s
judgment); Chari, 91 Ohio St.3d at 328, 744 N.E.2d 763 (dismissal of habeas corpus petition
appropriate where it was “replete with unsupported, legal conclusions” that the bail was
unlawful, excessive, and unconstitutional).
{¶10} Therefore, while we recognize that this case involves an extremely high bail
and one that might ordinarily give us pause, Mr. Drew has not made a proper showing of the
excessiveness of bail under the circumstances of the case. See Lewis v. Telb, 26 Ohio
App.3d 11, 12, 497 N.E.2d 1376 (6th Dist.1985) (noting that before relief may be afforded in
petitions of this nature it must be clear that the amount of bail set was unreasonable and the
necessary criteria under Crim.R. 46 was not applied in setting the amount of bail); Jenkins,
43 Ohio St.3d at 85, 538 N.E.2d 1045 (“[P]etitioner alleges no facts that indicate an abuse of
discretion by the trial court or that appropriate grounds for independent review by this
court exist.”). Ultimately, we find nothing to demonstrate an abuse of discretion on the
record presented by Mr. Drew.

Outcome: Based on the foregoing, we accordingly deny Mr. Drew’s habeas corpus

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