Mohamed v. Eckelberry (Slip Opinion) , 2020 Ohio 4585 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Mohamed v. Eckelberry, Slip Opinion No. 2020-Ohio-4585.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4585
MOHAMED v. ECKELBERRY, SHERIFF.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Mohamed v. Eckelberry, Slip Opinion No. 2020-Ohio-4585.]
Habeas corpus—In an original action, an appellate court may permit a habeas
petitioner to introduce evidence to prove his excessive-bail claim and then
exercise its own discretion in imposing an appropriate bail amount—Writ
granted.
(No. 2020-0638—Submitted September 22, 2020—Decided September 25, 2020.)
IN HABEAS CORPUS.
__________________
Per Curiam.
{¶ 1} Petitioner, Hassan Mohamed, filed a petition for a writ of habeas
corpus challenging the amount of his pretrial bond. He is in jail awaiting trial in
the Seneca County Court of Common Pleas on multiple charges of attempted
murder and felonious assault. We allowed the writ and ordered respondent, Seneca
County Sheriff William Eckelberry, to file a return. 159 Ohio St. 3d 1432, 2020-
SUPREME COURT OF OHIO
Ohio-3634, 148 N.E.3d 573. After the sheriff filed his return, we referred the matter
to a master commissioner to conduct a hearing to determine whether Mohamed is
being held unlawfully due to an excessive bond and to make a recommendation
regarding an appropriate bond. 159 Ohio St. 3d 1474, 2020-Ohio-4080, 150 N.E.3d
956.
{¶ 2} After a hearing, the master commissioner concluded that the
$1,000,000 cash or surety bond on which Mohamed is being held is excessive and
recommended modifying the financial conditions of Mohamed’s bail to $200,000,
secured by the deposit of 10 percent of the amount of the bail bond in cash, a surety
bond, or property as allowed by law. The master commissioner recommended that
the nonfinancial conditions of release imposed by the common pleas court remain
in place.
{¶ 3} Mohamed did not file a response to the master commissioner’s
recommendation. The sheriff, however, filed a response challenging the master
commissioner’s conclusion that this court may independently review Mohamed’s
bond without first holding that the common pleas court abused its discretion. The
sheriff also argued that a $1,000,000 bail bond is justified based on the seriousness
of the crimes Mohamed is charged with, Mohamed’s lack of ties to Seneca County,
and the evidence of Mohamed’s guilt. We address the sheriff’s arguments below.
The standard of review
{¶ 4} Relying on In re DeFronzo, 49 Ohio St. 2d 271, 273-274, 361 N.E.2d
448 (1977), the master commissioner concluded that in an original action for a writ
of habeas corpus, an appellate court may receive evidence and exercise its own
discretion concerning a petitioner’s bail, without according deference to the trial
court’s determination. The sheriff does not dispute DeFronzo’s holding but argues
that more recently, this court endorsed an abuse-of-discretion review in Ahmad v.
Plummer, 126 Ohio St. 3d 262, 2010-Ohio-3757, 933 N.E.2d 256. The sheriff notes
2
January Term, 2020
that in Ahmad, this court affirmed a court of appeals’ determination that a trial court
had not abused its discretion in setting bail. Id. at ¶ 3-4.
{¶ 5} To be sure, in Ahmad, we did not expressly repudiate the court of
appeals’ statement about not finding an abuse of discretion. But contrary to the
sheriff’s argument, we did not abandon the rule articulated in DeFronzo. In fact,
in Ahmad, we focused on the court of appeals’ “de novo review of the habeas corpus
claim” and its determination that “Ahmad failed to demonstrate that the pretrial bail
is excessive.” Id. at ¶ 4. Ahmad, therefore, confirms that in an original action, an
appellate court may permit a habeas petitioner to introduce evidence to prove his
claim and then exercise its own discretion in imposing an appropriate bail amount.
The seriousness of the crimes
{¶ 6} The sheriff next argues that Mohamed’s $1,000,000 bail bond is not
excessive—and a $200,000 bail bond is inadequate—in view of the fact that
Mohamed is charged with two counts of attempted murder and two counts of
felonious assault, all with firearm specifications. In support, the sheriff again points
to Ahmad, in which a $3,000,000 bail bond on a charge of conspiracy to commit
murder was found not to be excessive. The sheriff thus invites us to compare the
seriousness of the charge in Ahmad’s case to the seriousness of the charges in
Mohamed’s case.
{¶ 7} The nature and circumstances of the crime charged are relevant to any
bail determination. Crim.R. 46(C)(1). But under Crim.R. 46(C), a court also must
consider many other factors that are specific to the accused, such as the weight of
the evidence against the defendant and the defendant’s financial resources. Crim.R.
46(C)(2) and (4). Those factors are not nearly as strong here as they were in
Ahmad’s case. As explained in the master commissioner’s recommendation, while
Mohamed presented alibi evidence, not only was there “substantial evidence
against” Ahmad, but he apparently had no plausible defense. Ahmad, 126 Ohio
St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, at ¶ 11, 17. And the evidence showed
3
SUPREME COURT OF OHIO
that Ahmad and his family had significant resources—likely enough to be able to
afford a $3,000,000 bond. Id. at ¶ 15. In contrast, Mohamed presented evidence
showing that he is in a very different financial situation and cannot afford a
$1,000,000 bond.
{¶ 8} Thus, contrary to what the sheriff argues, our holding in Ahmad does
not validate the bond imposed by the court of common pleas in Mohamed’s case.
The lack of ties to Seneca County
{¶ 9} The sheriff also argues that the master commissioner inappropriately
gave weight to Mohamed’s family ties in Ohio because those ties are not local to
Seneca County. The sheriff refers to Crim.R. 46(C)(4), which directs the court to
consider the defendant’s “length of residence in the community.”
{¶ 10} Contrary to what the sheriff suggests, the master commissioner did
not give weight to any ties between Mohamed and the local community. In fact,
the master commissioner noted that Mohamed does not have any connections in
Seneca County. We may, however, consider Mohamed’s family ties in Ohio and
the fact that he would have a place to live in Columbus as “relevant information”
under Crim.R. 46(C).
{¶ 11} The sheriff also argues that a $1,000,000 bond is justified because if
Mohamed lives in Columbus while awaiting trial, it will be harder for the common
pleas court to monitor him. We reject this argument because it does not relate to
the financial conditions of Mohamed’s pretrial release and therefore is not relevant
to whether Mohamed’s bail is excessive.
The strength of the state’s case
{¶ 12} In his final argument, the sheriff reiterates the evidence against
Mohamed in an attempt to show that the state has, in fact, indicted the right person.
The sheriff argues that the state’s evidence is “far superior” to and “much more
reliable” than Mohamed’s alibi evidence.
4
January Term, 2020
{¶ 13} The master commissioner acknowledged the evidence of
Mohamed’s guilt, while also recommending that we should give substantial weight
to the fact that Mohamed has a plausible alibi defense. The master commissioner
concluded that based on the evidence presented by both parties, it is an open
question whether Mohamed is the perpetrator. That conclusion recognizes our
limited role in this case when it comes to Mohamed’s guilt or innocence: It is
appropriate for us to consider the weight of the evidence against Mohamed, Crim.R.
46(C)(2); but we are not the finders of fact concerning his guilt. A jury must
ultimately determine whether the state’s evidence proves beyond a reasonable
doubt that Mohamed is guilty.
{¶ 14} We reject the sheriff’s final argument because it asks us not to just
recognize that there are factual disputes related to Mohamed’s guilt, but to actually
resolve them.
Conclusion
{¶ 15} Having reviewed the master commissioner’s recommendation,
completed an independent review of the record, and considered the sheriff’s
arguments, we hold that the master commissioner has properly stated the facts and
applied the law. We therefore adopt the master commissioner’s recommendation
but with the following additional nonfinancial conditions: Mohamed shall be
monitored electronically, he shall surrender his passport if he owns one, he will
reside with his father in Columbus and nowhere else, he may travel for necessities
and for reasons related to the care of his father, and he may not leave the state of
Ohio. Mohamed’s petition for writ of habeas corpus is granted and his bail bond is
reduced to $200,000, secured by the deposit of 10 percent of the amount of the bond
in cash, a surety bond, or property as allowed by law. The other nonfinancial
conditions of release imposed by the court of common pleas shall remain in place.
Writ granted.
O’CONNOR, C.J., and FRENCH, FISCHER, and DONNELLY, JJ., concur.
5
SUPREME COURT OF OHIO
STEWART, J., concurs, with an opinion joined by O’CONNOR, C.J.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
_________________
STEWART, J., concurring.
{¶ 16} I join the per curiam opinion in full to ensure that petitioner Hassan
Mohamed’s bail is reduced to an amount that gives him a chance to be released
from jail during the pretrial period. Nevertheless, I remain concerned that the
financial condition of release is still unconstitutionally high and I am skeptical
about the use of electronic monitoring.
Relevant Law Concerning Bail
{¶ 17} As noted in the master commissioner’s report and recommendation:
“Bail is security for the appearance of an accused to appear
and answer to a specific criminal * * * charge.” R.C. 2937.22(A).
That bail is generally available to allow an accused person to be
released before trial is fundamental to the American system of
justice. Pretrial release not only makes it easier for an accused
person to prepare a defense, it also upholds the presumption of
innocence by ensuring that a person is not punished before being
convicted. Stack v. Boyle, 342 U.S. 1, 4, 72 S. Ct. 1, 96 L. Ed. 3
(1951). Although a court may impose bail conditions to protect an
individual or the public, the primary function of bail is to allow for
pretrial release, while also assuring that the accused person will
appear in court when required. Id. at 4-5; United States v. Salerno,
481 U.S. 739, 752-754, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987);
Bland [v. Holden], 21 Ohio St.2d [238,] 239, 257 N.E.2d 397
[(1970]).
6
January Term, 2020
Not every accused person has the right to bail. Carlson v.
Landon, 342 U.S. 524, 545-546, 72 S. Ct. 525, 96 L. Ed. 547 (1952).
But in Ohio, most criminal defendants are presumed to be bailable.
Article 1, Section 9 of the Ohio Constitution. To deny bail to
Mohamed, who is charged with noncapital first- and second-degree
felonies, the common pleas court would need to hold a hearing at
which the state would need to prove by clear and convincing
evidence that (1) “the proof is evident or the presumption great” that
Mohamed committed the offenses, (2) Mohamed “poses a
substantial risk of serious physical harm to any person or to the
community,” and (3) no conditions of release can reasonably
alleviate that risk. R.C. 2937.222. See also Crim.R. 46(A). Nothing
in this court’s record in this case suggests that the state believes
Mohamed poses a substantial public-safety risk or that the common
pleas court held a hearing under R.C. 2937.222. Indeed, the fact that
the common pleas court set bail at all shows that Mohamed is
bailable.
When a criminal defendant is bailable, a court must release
him “on the least restrictive conditions” that “will reasonably
assure” his appearance in court, public safety, and the integrity of
the criminal-justice process. Crim.R. 46(B). Pretrial release may
involve several conditions, both financial and nonfinancial.
Financial conditions of release must be “related to the defendant’s
risk of non-appearance, the seriousness of the offense, and the
previous criminal record of the defendant. Any financial 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.” Id. The Eighth Amendment to the United
7
SUPREME COURT OF OHIO
States Constitution and Article 1, Section 9 of the Ohio Constitution
prohibit “[e]xcessive bail.” A bail bond that is “higher than an
amount reasonably calculated to” assure the accused’s presence in
court is “excessive.” Stack, 342 U.S. at 5, 72 S. Ct. 1, 96 L. Ed. 3.
Mohamed thus is entitled to bail in an amount that is attainable yet
high enough to compel him to appear in court when required.
(Ellipsis and fourth set of brackets sic.)
Release on Least Restrictive Conditions
{¶ 18} By adopting the master commissioner’s legal analysis, a majority of
this court necessarily agrees that Mohamed has the constitutional right to pretrial
release in this case. It also agrees that it must impose only the least restrictive
financial and nonfinancial conditions necessary to assure that Mohamed returns to
court. But that is not really what this court is doing today when it imposes a
$200,000 financial condition with the additional requirement that Mohamed submit
to electronic monitoring.
{¶ 19} The record simply does not support the imposition of a bail-bond
amount of $200,000, secured by the deposit of 10 percent of the bail amount in
cash, a surety bond, or property as allowed by law when the evidence shows that
Mohamed has been out of work for over a year because he has been sitting in jail
on an excessive bond. Furthermore, testimony given on behalf of Mohamed’s
family shows that the family can afford to post only $5,000. Again, as the majority
opinion acknowledges by reference to the master commissioner’s report, the
purpose of bail is to allow release, not guarantee detention. I question the reason
for imposing a financial condition of release that appears to be unattainable for
Mohamed with the possible end result being that he ends up where he started—in
jail because of a bail bond he cannot afford.
8
January Term, 2020
{¶ 20} When a court is considering the imposition of a financial
condition—which of course, is supposed to both allow for release while also
inducing reappearance—it is imperative that the court account for what the accused
can actually afford to pay. It should go without saying that a wealthy person may
need a higher financial condition to induce appearance, whereas a person with
significantly fewer financial resources would require less. In other words, the
inducement inherent in financial conditions works only in situations in which
(1) the accused is able to post the bond and be released and (2) the threat of losing
the posted bond makes it worthwhile to return to court.
{¶ 21} Furthermore, I find electronic monitoring, one of Mohamed’s
nonfinancial conditions of release to be excessive in this case. The record before
this court shows that Mohamed is a former nursing student with no criminal record.
Also, respondent, Seneca County Sheriff William Eckelberry, has submitted no
evidence that should lead us to think that Mohamed will fail to appear if he is
released. Although the charges against Mohamed are serious and carry the
possibility of significant prison time if he is convicted, that fact alone is not enough
to presume that he is a flight risk and that he therefore must be electronically
monitored.
{¶ 22} Additionally, electronic monitoring comes with its own costs.
Electronic monitoring may require the accused to pay an upfront installation fee in
addition to monthly monitoring fees, and there is undoubtedly a social stigma that
attaches when a person is seen wearing an electronic-monitoring device. Given the
already significant financial condition that this court has imposed, which is
sufficient to induce Mohamed’s return to court assuming that his family has the
ability to post the bail-bond amount, I do not believe that electronic monitoring
serves any necessary purpose here.
{¶ 23} I realize that given Mohamed’s relative success at securing a
significant reduction in bail through a habeas proceeding in Ohio’s highest court,
9
SUPREME COURT OF OHIO
the concerns I raise in this concurrence may seem inordinate. But this is precisely
why I am compelled to write separately. When a trial court is presented with
information or evidence that a person accused of one or more felony offenses is a
flight risk or poses a threat to public safety and should not be released from jail
during the pretrial period, the court can hold a pretrial-detention hearing pursuant
to R.C. 2937.222(A). This process allows the trial court to detain a person, without
bail, during the pretrial period when clear and convincing evidence establishes that
the accused should not be released. R.C. 2937.222(A) and (B). If the trial court
does deny bail, the accused’s due-process rights are further protected in that he has
the right to an immediate and expediated appeal of that decision. R.C.
2937.222(D). Unfortunately, what often happens is that a trial court will set a bail
amount, without regard to an accused’s ability to pay, and in an amount high
enough that the accused’s pretrial detention is effectively guaranteed. By doing
this, the trial court bypasses the due-process protections afforded to the accused in
R.C. 2937.222. In this case, the presumedly innocent Mohamed has been in jail for
over a year on a $1,000,000 bond.
{¶ 24} I do not mean to suggest that determining a bail amount that satisfies
all the requirements of Crim.R. 46 is an easy decision to make. It is not. However,
setting a high bail in order to keep someone accused of a crime incarcerated pretrial
is both statutorily and constitutionally unlawful. See R.C. 2937.222; State v.
Bevacqua, 147 Ohio St. 20, 22, 67 N.E.2d 786 (1946) (“Keeping an accused in jail
by excessive bail is as much a denial of his constitutional rights as refusing to fix
bail”); Stack, 342 U.S. at 4, 72 S. Ct. 1, 96 L. Ed. 3. Additionally, the practice of
inflating a bail-bond amount is terribly harmful to our system of justice, resulting
in bloated jail populations, economic harm, and trauma to individuals, families, and
communities. The Vera Institute, Justice Denied: The Harmful and Lasting Effects
of Pretrial Detention, https://www.vera.org/downloads/publications/Justice-
Denied-Evidence-Brief.pdf (accessed Sept. 24, 2020) [https://perma.cc/X2WJ-
10
January Term, 2020
K5G6]. Boiled down to its essence, setting high bail amounts accomplishes with
money what courts could not otherwise achieve without following the due-process
requirements in R.C. 2937.222. This practice turns the purpose of bail—which is
to allow an accused to be released pretrial—on its head.
{¶ 25} This case presented us with a golden opportunity to set a clear
example of what bail determinations should look like by demonstrating what it
means to impose the least restrictive conditions necessary to accomplish release
while assuring an accused’s return to court. We have squandered that opportunity:
maybe because we have succumbed to the same fears that motivate trial courts to
impose excessive bonds in the first place or maybe because this unconstitutional
practice has gone on for so long that it has simply become a comfortable routine.
Regardless of the reason, it is incumbent on the judicial system to get it right and
to impose bail in a constitutional manner. Stack at 4 (bail is excessive under the
Eighth Amendment of the United States Constitution if it is set at an amount higher
than reasonably necessary to assure the accused’s presence in court).
O’CONNOR, C.J., concurs in the foregoing opinion.
_________________
KENNEDY, J., dissenting.
{¶ 26} Because petitioner, Hassan Mohamed, has failed in his burden to
demonstrate that he is being unlawfully confined based on excessive bail imposed
by the trial court in his criminal case, I dissent. Our review in this case is hybrid.
This is an original action for a writ of habeas corpus, so we review de novo the
evidence presented in the trial court and any new evidence submitted to this court.
However, the determination of the amount of bail is committed solely to the trial
court’s discretion, and the accused is not unlawfully confined (and therefore not
entitled to habeas relief) when the order setting bail is not an abuse of that
discretion. Mohamed has the burden of going forward with evidence and proving
that the trial court’s decision was unreasonable, arbitrary, or unconscionable or
11
SUPREME COURT OF OHIO
otherwise exhibited perversity of will, passion, prejudice, partiality, or moral
delinquency. As Mohamed does not prove that the amount of bail set by the trial
court resulted from an abuse of discretion, the order setting bail is valid, he is
lawfully confined, and he is not entitled to a writ of habeas corpus ordering a
reduction of bail.
{¶ 27} The new precedent set today is troubling. In this watershed case,
this court has announced that it will exercise its original jurisdiction in habeas
corpus to review de novo the trial court’s determination of the amount of bail and,
in the exercise of its sole, unreviewable discretion, substitute its judgment for that
of the trial court. This new right would now be open to all criminal defendants in
this state who are dissatisfied with the amount of bail that has been imposed by a
trial court. The discretion to set bail, however, is committed to the trial court by
Article I, Section 9 of the Ohio Constitution and Crim.R. 46. The majority’s
decision today is nothing more than the usurpation of the trial court’s power to set
bail in the disguise of the extraordinary remedy, a writ of habeas corpus.
Mohamed’s Petition Is Fatally Defective
{¶ 28} As an initial matter, Mohamed’s petition is subject to dismissal
because it is unverified. S.Ct.Prac.R. 12.01(B) requires that all habeas petitions be
brought pursuant to R.C. Chapter 2725, and pursuant to R.C. 2725.04, all petitions
must be verified by the petitioner or his or her representative. Either Mohamed or
his attorney was required to swear to the truth of the facts contained in the petition.
See Davis v. Sheldon, 159 Ohio St. 3d 147, 2020-Ohio-436, 149 N.E.3d 467, ¶ 8,
citing Chari v. Vore, 91 Ohio St. 3d 323, 327-328, 744 N.E.2d 763 (2001). Neither
did so. Therefore, the unverified petition is “fatally defective and is subject to
dismissal.” Watkins v. Collins, 111 Ohio St. 3d 425, 2006-Ohio-5082, 857 N.E.2d
78, ¶ 37. But because the majority ordered a return of the writ and decides this case
on the merits, I likewise address the merits of the petition.
12
January Term, 2020
The Right to Bail
{¶ 29} The Eighth Amendment to the United States Constitution provides
that “[e]xcessive bail shall not be required.” Bail is excessive when it is higher than
is reasonably necessary calculated to serve the government’s interest in ensuring
the accused’s appearance at trial. See United States v. Salerno, 481 U.S. 739, 753-
755, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); Stack v. Boyle, 342 U.S. 1, 5, 72 S. Ct.
1, 96 L. Ed. 3 (1951). “[T]he fixing of bail ‘is peculiarly a matter of discretion with
the trial court.’ ” United States v. Mitchell, 733 F.2d 327, 331 (4th Cir.1984),
quoting United States v. Wright, 483 F.2d 1068, 1069 (4th Cir.1973); see also
Carlson v. Landon, 342 U.S. 524, 544-545, 72 S. Ct. 525, 96 L. Ed. 547 (1952)
(attorney general did not abuse his discretion in setting bail).
{¶ 30} Similarly, the Ohio Constitution provides a right to bail. Article I,
Section 9 states:
All persons shall be bailable by sufficient sureties, except for
a person who is charged with a capital offense where the proof is
evident or the presumption great, and except for a person who is
charged with a felony where the proof is evident or the presumption
great and where the person poses a substantial risk of serious
physical harm to any person or to the community. Where a person
is charged with any offense for which the person may be
incarcerated, the court may determine at any time the type, amount,
and conditions of bail. Excessive bail shall not be required; nor
excessive fines imposed; nor cruel and unusual punishments
inflicted.
The General Assembly shall fix by law standards to
determine whether a person who is charged with a felony where the
proof is evident or the presumption great poses a substantial risk of
13
SUPREME COURT OF OHIO
serious physical harm to any person or to the community.
Procedures for establishing the amount and conditions of bail shall
be established pursuant to Article IV, Section 5(b) of the
Constitution of the state of Ohio.
{¶ 31} The General Assembly enacted R.C. 2937.222, which lays out the
considerations for a trial court in determining whether to deny bail to an accused.
Those considerations are not at issue here, however, because the trial court has
already determined that Mohamed is bailable.
The Amount of Bail Is Committed to a Trial Court’s Discretion
{¶ 32} In accordance with Article I, Section 9 of the Ohio Constitution, this
court promulgated Crim.R. 46 to establish the procedures for establishing the
amount and conditions of bail. Crim.R. 46(B) provides that if a trial court
determines that denying bail is not required by statute,
the court shall release the defendant on the least restrictive
conditions that, in the discretion of the court, will reasonably assure
the defendant’s appearance in court, the protection or safety of any
person or the community, and that the defendant will not obstruct
the criminal justice process. If the court orders financial conditions
of release, those financial conditions shall be related to the
defendant’s risk of non-appearance, the seriousness of the offense,
and the previous criminal record of the defendant. Any financial
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.
14
January Term, 2020
Compare R.C. 2937.23(A)(3) (“In all cases, the bail shall be fixed with
consideration of the seriousness of the offense charged, the previous criminal
record of the defendant, and the probability of the defendant appearing at the trial
of the case”).
{¶ 33} Crim.R. 46(B) expressly commits the amount of bail required to the
discretion of a trial court. Therefore, review of the trial court’s determination of
the amount of bail is for the abuse of discretion. Jenkins v. Billy, 43 Ohio St. 3d 84,
85, 538 N.E.2d 1045 (1989); Bland v. Holden, 21 Ohio St. 2d 238, 239, 257 N.E.2d
397 (1970) (“The amount of bail is largely within the sound discretion of the
court”).
{¶ 34} This accords with the decisions of other courts of last resort that the
amount of bail is a discretionary determination. See, e.g., State v. Visintin, 143
Haw. 143, 162, 426 P.3d 367 (2018); State v. Pratt, 204 Vt. 282, 2017 VT 9, 166
A.3d 600, ¶ 20; State v. Brown, 2014-NMSC-038, 338 P.3d 1276, ¶ 4; Myers v. St.
Lawrence, 289 Ga. 240, 241-242, 710 S.E.2d 557 (2011); Querubin v.
Commonwealth, 440 Mass. 108, 120, 795 N.E.2d 534 (2003), fn. 10. It also gels
with our own recognition that when excessive-bail cases are “considered as appeals,
it is reasonable to require some finding of error or abuse of discretion before
allowing the writ to issue overturning or modifying the decision of the trial court.”
In re DeFronzo, 49 Ohio St. 2d 271, 273, 361 N.E.2d 448 (1977).
Review of Bail Decisions
{¶ 35} However, Ohio law does not permit an interlocutory appeal of a trial
court’s order setting bail, and we have recognized that a petition for a writ of habeas
corpus is the proper vehicle to raise an excessive-bail claim. Chari, 91 Ohio St. 3d
at 325, 744 N.E.2d 763; State v. Bevacqua, 147 Ohio St. 20, 67 N.E.2d 786 (1946),
syllabus.
{¶ 36} We have suggested that there is a hybrid nature to these types of
claims, pointing to “the ‘anomaly in original actions which are filed seeking habeas
15
SUPREME COURT OF OHIO
corpus on the grounds of excessive bail because the effect of such cases is an appeal
from a decision of the trial court; yet, such cases are also considered as original
actions so as to permit hearings and findings of fact.’ ” Ahmad v. Plummer, 126
Ohio St. 3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 2, quoting DeFronzo, 49 Ohio
St.2d at 273, 361 N.E.2d 448. Relying on Ahmad and DeFronzo, the majority
decides that the trial court’s determination of the amount of bail is subject to de
novo review in this court and that we are vested with the discretion to substitute our
judgment for that of the trial court to determine the amount of bail.
{¶ 37} In my view, that analysis is incorrect. This is an original action, and
we take a de novo review of the evidence presented in the trial court and any new
evidence submitted to this court. Ahmad at ¶ 2. But the focus remains on whether
the petitioner is entitled to a writ of habeas corpus, and “ ‘habeas corpus in Ohio is
generally appropriate in the criminal context only if the petitioner is entitled to
immediate release from prison or some other type of physical confinement.’ ” Smith
v. Leis, 106 Ohio St. 3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 13, quoting State ex
rel. Smirnoff v. Greene, 84 Ohio St. 3d 165, 167, 702 N.E.2d 423 (1998).
{¶ 38} Mohamed therefore bears the burdens of going forward with
evidence and persuading this court that he is unlawfully confined, Chari, 91 Ohio
St.3d at 326, 744 N.E.2d 763, and he is not entitled to immediate release on reduced
bail unless he first demonstrates that the bail set by the trial court is unreasonable
and excessive. As explained above, the trial court is vested with discretion to set
the amount and conditions of bail pursuant to Article I, Section 9 of the Ohio
Constitution and Crim.R. 46 as well as our caselaw, and it follows that Mohamed
is not entitled to a writ of habeas corpus unless he proves that the trial court abused
its discretion in setting the amount and conditions of bail—if the trial court did not
exceed its discretion, then Mohamed is not being unlawfully confined.
{¶ 39} Because the ultimate standard of review in determining whether
Mohamed is unlawfully confined on excessive bail is an abuse of discretion, we are
16
January Term, 2020
not permitted to substitute our judgment for that the trial court’s. Nor is it the
function of a habeas proceeding to provide the petitioner a second bail hearing.
Rather, the habeas remedy is available to protect the accused’s constitutional rights
against the trial court’s abuse of its discretion in setting an excessive bail. See
generally Bevacqua, 147 Ohio St. at 22, 67 N.E.2d 786.
Review for the Abuse of Discretion
{¶ 40} Because this matter is an original action, Mohamed must present
evidence to prove his entitlement to a writ. But that does not permit this court to
substitute its judgment for the trial court’s. Rather, any evidence submitted must
be relevant to demonstrating that the confinement is unlawful because the trial court
abused its discretion in setting bail. An “ ‘ “abuse of discretion” * * * implies that
the court’s attitude is unreasonable, arbitrary or unconscionable.’ ” (Ellipsis in
White.) State v. White, 118 Ohio St. 3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 46,
quoting State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980). It also
exists when there is “perversity of will, passion, prejudice, partiality, or moral
delinquency.” Pons v. Ohio State Med. Bd., 66 Ohio St. 3d 619, 621, 614 N.E.2d
748 (1993).
{¶ 41} Here, there is insufficient evidence that the trial court abused its
discretion. Mohamed’s complaint is not verified and not supported by an affidavit.
Although he asserts that the trial court held a bond hearing and an evidentiary
hearing at which counsel requested a reduction of bail, no transcript of those
hearings have been submitted to this court. Nor does he present new evidence in
this court to prove an abuse of discretion because the trial court set bail based on
improper considerations, such as passion, prejudice, or bias, which would vitiate
the trial court’s bail order or because it relied on unlawful factors in reaching its
decision. See Stack, 342 U.S. at 7, 72 S. Ct. 1, 96 L. Ed. 3 (discussing bail that “has
not been fixed by proper methods”).
17
SUPREME COURT OF OHIO
{¶ 42} Instead of arguing that the trial court relied on improper factors,
Mohamed just disagrees with the trial court’s weighing of the evidence. And
assuming for the sake of argument that a trial court could ever abuse its discretion
by failing to consider evidence that was never presented to it, the new evidence
submitted to this court fails to establish that the bail set was excessive.
{¶ 43} Mohamed asserts his alibi, but respondent, Seneca County Sheriff
William Eckelberry counters this with evidence that there is eyewitness testimony
that Mohamed is the perpetrator. Mohamed points to evidence of his financial
condition, but courts have rejected the view that bail is excessive merely because
the accused cannot afford it. 4 LaFave, Criminal Procedure, Section 12.2(b), 38-
44 (4th Ed.2015) (citing cases). He submitted testimony that he has family ties in
Columbus and asserts that he has no criminal record, but sheriff Eckelberry
responds that Mohamed proved no ties to Seneca County where the trial is being
held and that the charges are serious—attempted murder and felonious assault with
a firearm, which, if convicted, carries mandatory prison time.
{¶ 44} Mohamad bears both the burdens of production and persuasion, but
he fails to establish that the trial court abused its discretion in setting the amount of
bail. Absent a showing that the trial court abused its discretion in setting bail,
Mohamed’s confinement is not unlawful and a writ of habeas corpus will not lie.
For these reasons, I dissent and would deny the writ.
DEWINE, J., concurs in the foregoing opinion.
_________________
Law Office of Eric J. Allen, Ltd., and Eric J. Allen, for petitioner.
Derek W. DeVine, Seneca County Prosecuting Attorney, for respondent.
_________________
18