Gamble v. McGuffy , 2022 Ohio 4542 ( 2022 )

[Cite as Gamble v. McGuffy, 2022-Ohio-4542.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
PETER GAMBLE, : CASE NO. C-220272
Petitioner, :
vs. :
O P I N I O N.
CHARMAINE MCGUFFEY, :
HAMILTON COUNTY SHERIFF,
Respondent. :
Original Action in Habeas Corpus
Judgment of the Court: Writ Denied
Date of Judgment Entry: December 16, 2022
Arenstein and Gallagher, William R. Gallagher and Kara C. Blackney, for petitioner,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex S. Havlin,
Assistant Prosecuting Attorney, for respondent.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Petitioner Peter Gamble files this petition for a writ of habeas corpus in
an original action alleging that he is being held unlawfully under an excessive pretrial
bail by respondent Hamilton County Sheriff Charmaine McGuffey. For the reasons
that follow, we deny Gamble’s petition.
I. Background
{¶2} The state indicted Gamble for aggravated murder, murder, and
felonious assault arising from the shooting death of Jearid Irvin. After Gamble’s
arraignment, the trial court set Gamble’s bond at $750,000 “straight.” Gamble filed a
motion to reduce his bond, and the state responded with a motion to hold Gamble
without bond. The trial court held a hearing on both motions.
{¶3} At the bond hearing, the state presented testimony from an
investigating detective. The detective testified that she had reported to the scene of
Irvin’s death, which happened to be a gas station. When the detective began
investigating, she learned that Irvin and Gamble had gotten into an altercation at a
nearby bank. The detective viewed surveillance video from the bank where Gamble
can be seen following closely behind Irvin, and Gamble and Irvin appeared to be
arguing. The detective also interviewed two bank employees who witnessed Gamble’s
unusual behavior.
{¶4} The detective also viewed surveillance footage from the gas station
where Gamble and Irvin encountered each other after the bank incident. The detective
testified that the video shows Gamble and Irvin engaged in an altercation. Irvin’s
friend tries to intervene, and Gamble pulls out a firearm and fires. Irvin’s friend runs
away, and Irvin can be seen lying on the ground. Gamble then fires at Irvin as he is
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lying on the ground. Irvin gets up and starts running away. Gamble then pursues
Irvin and continues firing. Irvin then falls to the ground. Gamble shoots at Irvin again.
{¶5} In the wake of Irvin’s death and the homicide investigation, the
investigating detective testified that she had concerns regarding the safety of Irvin’s
friend, who was able to run away and avoid being shot, and thus would be a key
eyewitness. The detective also noted that Irvin, Irvin’s friend, and Gamble did not
know each other, so the entire encounter developed quickly.
{¶6} On cross-examination, the detective stated that Gamble had no
misdemeanor or felony convictions. Gamble had family in the Cincinnati area.
Gamble’s attorney also questioned whether Gamble was the aggressor, because one of
the witnesses at the gas station had seen Irvin and another person on top of Gamble
prior to hearing the first shot.
{¶7} The trial court denied the state’s request to hold Gamble without bond,
and the trial court also denied Gamble’s request to reduce his bond.
{¶8} Gamble filed this original action for a writ of habeas corpus under R.C.
2725.04, alleging that his pretrial bail is excessive. In Gamble’s verified petition, he
asserts that he is currently incarcerated in the Hamilton County Justice Center under
a $750,000 bond. Gamble requests that this court lower his bond to $100,000 at ten
percent. Gamble filed the transcript and pertinent trial court entries. The state filed
a response urging this court to deny Gamble’s requested writ. The state also filed
letters written by the deceased victim’s mother and widow.
II. Law
{¶9} The Ohio Constitution, Section 9, Article 1, establishes habeas corpus as
a proper vehicle for alleging an excessive-pretrial-bail claim. This court has
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OHIO FIRST DISTRICT COURT OF APPEALS
determined that we will apply a de novo “standard of review” in an original action
alleging excessive pretrial bail. State v. Sowders, 1st Dist. Hamilton No. C-220114,
2022-Ohio-2401, ¶ 21, relying on Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-
Ohio-4585, 166 N.E.3d 1132, and DuBose v. McGuffey, 168 Ohio St.3d 1, 2022-Ohio-
8, 195 N.E.3d 951. A petitioner bears the burden to demonstrate “ ‘with particularity
the extraordinary circumstances entitling him to habeas corpus relief.’ ” Drew v. State
ex rel. Neil, 2020-Ohio-4366, 158 N.E.3d 684, ¶ 4 (1st Dist.), quoting State ex rel.
Wilcox v. Seidner, 76 Ohio St.3d 412, 414, 667 N.E.2d 1220 (1996).
{¶10} Crim.R. 46 governs pretrial release of a defendant. Under Crim.R.
46(B), if a court chooses to issue pretrial bail,
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.
{¶11} Under Crim.R. 46(C), in evaluating the amount of a bond, a court shall
consider the following:
(1) The nature and circumstances of the crime charged, and specifically
whether the defendant used or has access to a weapon;
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OHIO FIRST DISTRICT COURT OF APPEALS
(2) The weight of the evidence against the defendant;
(3) The confirmation of the defendant’s identity;
(4) The defendant’s family ties, employment, financial resources,
character, mental condition, length of residence in the community,
jurisdiction of residence, record of convictions, record of appearance at
court proceedings or of flight to avoid prosecution;
(5) Whether the defendant is on probation, a community control
sanction, parole, post-release control, bail, or under a court protection
order.
{¶12} In DuBose, a divided Ohio Supreme Court determined that under
Crim.R. 46(C), “public safety is not a consideration with respect to the financial
conditions of bail[.]” DuBose, 168 Ohio St.3d 1, 2022-Ohio-8, 195 N.E.3d 951, at ¶ 24.
After the Dubose decision, in November 2022, the Ohio voters approved an
amendment to Section 9, Article 1 of the Ohio Constitution, which now explicitly
provides that when a court determines an amount of bail, “the court shall consider
public safety, including the seriousness of the offense, and a person’s criminal record,
the likelihood a person will return to court, and any other factor the general assembly
may prescribe.”
III. Analysis
{¶13} Gamble argues in his petition that he has no criminal history, he is a
lifelong Cincinnati resident with family in the area, he has maintained employment
prior to his incarceration on the current charges, he has no history of failing to attend
court hearings, and he cannot afford the bail amount set by the trial court. In response,
the state points to the seriousness of the offenses for which Gamble has been charged—
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OHIO FIRST DISTRICT COURT OF APPEALS
namely aggravated murder. Gamble does not dispute that he used a gun to shoot and
kill the victim, but instead he claims he did so in self-defense. The evidence the state
produced at the bail hearing, however, included testimony from a detective who
watched surveillance video showing Gamble prior to the shooting following closely
behind the victim inside a bank. The surveillance video from the gas station where the
shooting occurred showed Gamble continuing to shoot the victim after he collapsed.
{¶14} Gamble has no major criminal history, and there is no evidence that
Gamble has tried to leave the jurisdiction, but where an accused is charged with a
serious offense and faces a long prison sentence, “ ‘the incentive to abscond is greater
and the amount must be such as to discourage the accused from absconding.’ ” Stevens
v. Navarre, 2021-Ohio-551, 168 N.E.3d 578, ¶ 18 (6th Dist.), quoting Bland v. Holden,
21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970). Gamble also asserts that he does not
have the financial resources to afford the bail amount set by the trial court, but Gamble
offers no evidence to support this assertion.
{¶15} The victim’s family members also submitted statements detailing their
fear for the safety of the community should Gamble be released. Gamble and the
victim did not know each other, and the victim’s death was the direct result of an
argument that developed between the two during a chance encounter inside a bank.
The victim’s mother noted her concern for the community based on the rashness of
Gamble’s actions. The trial court also stated at the bond hearing that it had concerns
regarding Gamble’s mental state based on his behavior at the arraignment hearing and
at the bond hearing. At the end of the bond hearing, the trial court ordered that
Gamble undergo a competency evaluation. The investigating detective also mentioned
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OHIO FIRST DISTRICT COURT OF APPEALS
the risk posed to the victim’s friend, who was present with the victim during the
shooting and would be a key eyewitness.
{¶16} Considering the evidence before us, Gamble has not met his burden to
demonstrate extraordinary circumstances entitling him to habeas-corpus relief.
Conclusion
{¶17} We deny Gamble’s petition for a writ of habeas corpus.
Writ denied.
MYERS, P.J., concurs.
CROUSE, J., dissents.
CROUSE, J., dissenting.
{¶18} Because the $750,000 straight bail amount is tantamount to a denial of
bail, I would hold that Gamble’s bail amount is unconstitutionally excessive and grant
his habeas petition.
{¶19} Despite the recent amendment to the Ohio Constitution, which requires
a court to consider public safety when determining an amount of bail, the Ohio
Constitution still states that “Excessive bail shall not be required.” It is
well-established that “[a] bail amount that is ‘higher than an amount reasonably
calculated to’ ensure the accused’s presence in court is ‘excessive.’ ” Dubose v.
McGuffey, 168 Ohio St.3d 1, 2022-Ohio-8, 195 N.E.3d 951, ¶ 12, quoting Stack v.
Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951).
{¶20} As set forth in Dubose:
if the state believes that a person poses a danger to the community and
must be held without the possibility of release, then the state must
follow the procedures set forth in R.C. 2937.222 for an order of
detention without bail. In order to hold a person without bail under that
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OHIO FIRST DISTRICT COURT OF APPEALS
statute, the judge must find by clear and convincing evidence that “the
proof is evident or the presumption great that the accused committed
the [serious offense] with which the accused is charged, * * * that the
accused poses a substantial risk of serious physical harm to any person
or to the community, and * * * that no release conditions will reasonably
assure the safety of that person and the community.” R.C. 2937.222(B).
Id. at ¶ 21.
{¶21} On March 31, 2022, which was the day of the hearing for Gamble’s
motion to reduce bond, the state filed a motion pursuant to R.C. 2937.222 for an order
of detention without bond. At the request of the defendant, the case was continued to
April 11, 2022, for a hearing on the pending bond motions. In the meantime, the judge
recused herself and the case was rerolled to a different judge. On April 18, 2022, the
case was again continued to April 26, 2022, for a bond hearing at the request of the
defendant.
{¶22} At the April 26 bond hearing, the defense argued that because the
hearing was not held within five days of the filing of the state’s R.C. 2937.222 motion,1
the court did not have jurisdiction to hold Gamble without bond. The state argued
that the delay was not the fault of the state because the continuances were requested
by the defense. The state further argued that it was not prepared to argue the
jurisdictional issue because the defense did not previously raise the issue. The court
1R.C. 2937.222 states, “Except for good cause, a continuance on the motion of the accused shall not
exceed five court days unless the motion of the accused waives in writing the five-day limit and
states in writing a specific period for which the accused requests a continuance. A continuance
granted upon a motion of the accused that waives in writing the five-day limit shall not exceed five
court days after the period of continuance requested in the motion.”
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OHIO FIRST DISTRICT COURT OF APPEALS
went ahead and held a hearing on both motions. At the conclusion of the hearing, the
court took the matter under advisement.
{¶23} The court also referred Gamble for a competency evaluation. The record
reflects that Gamble was extremely distraught during the hearing. The court noted
that “he has been crying the entire time or clearly visibly upset.” The court was
concerned that he could not help in his defense. Defense counsel informed the court
that while Gamble “is an emotional young man in terms of being torn up about this,”
he did not have any concern about Gamble’s competency. Nevertheless, a competency
evaluation was ordered.
{¶24} The competency report was submitted to the court on March 31, 2022,
presumably finding Gamble competent to stand trial. That same day, the court denied
the state’s motion to detain Gamble without bond and denied Gamble’s motion to
reduce bond. The judge’s reasoning for these decisions is not on the record.
{¶25} In its response to the habeas petition, the state’s argument focuses on
whether Gamble has met his burden of demonstrating that he is unable to make the
$750,000 straight bond. The state argues that Gamble “offers no specific information
in support of [his] statement” that he cannot make the bond. The majority also holds
that Gamble “offers no evidence to support his assertion.” I disagree.
{¶26} The state acknowledges that Gamble was found to be indigent
immediately following his arrest because he was unable to work due to his pretrial
detention. He was assigned a public defender. The state points out that private
counsel signed on to the case approximately two months after his arrest. However,
there is no information in the record regarding what the fee arrangement is or who, if
anyone, is paying counsel’s fee, if any.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶27} Nevertheless, it is clear from Gamble’s motion to reduce bond, that prior
to his arrest he worked full-time making $17 per hour.2 Gamble also pays child
support for two children, and his motion indicates that he is in good standing with his
payments. The motion states that he lives in an apartment, and not a home that he
owns. Thus, it is clear from the motion that Gamble is not a rich man by any means.
{¶28} At the bond hearing, Gamble’s attorney told the court that Gamble was
prepared to testify to the accuracy of the statements set forth in his motion to reduce
bond. The court agreed that counsel “could just ask him about paragraphs one through
whatever * * * .” However, before counsel could begin his questioning, the state asked
for a sidebar. There is no transcript in the record of this sidebar discussion. After the
sidebar, the court stated, “You’re representing to the court that all those paragraphs
from the top–first–the second paragraph on page three to the first to the last
paragraph on page [sic] are true and correct?” Counsel responded, “Yes ma’am.” To
which the court responded, “Okay, that’s all I need to know.” The state did not ask to
cross-examine Gamble about any of those statements. The state also did not argue
that Gamble had not met his burden of demonstrating that he could not afford the
$750,000 straight bond.
{¶29} It is unclear to me what additional evidence the state or the majority
believes that Gamble must provide to show that he cannot afford a $750,000 bond—
an amount that most people would agree is extremely high, especially for someone
making $17 per hour. Gamble was prepared to testify at the bond hearing and both
the state and the court indicated that his testimony was not necessary because they
2 Gamble’s hourly wage multiplied by 2080 working hours per year amounts to $35,360 per year.
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OHIO FIRST DISTRICT COURT OF APPEALS
would accept the statements made in the bond motion. There was no indication that
either the state or the court disbelieved the statements set forth in Gamble’s motion.
{¶30} The state’s focus at the bond hearing was on the nature and
circumstances of the crime charged, that Gamble had a weapon, and that he is a danger
to the community. This is because the state was trying to hold Gamble without bond.
There is no doubt that the allegations in this case are serious and tragic. Gamble shot
and killed Irvin when they were engaged in a physical altercation at a gas station. But
the majority discounts some important testimony from the bond hearing.
{¶31} The investigating detective testified that after a verbal altercation
occurred between Gamble and Irvin at a nearby bank, Irvin and another individual
seemed to have followed Gamble to the gas station because they pulled into the
parking lot at a high rate of speed after Gamble was already there. The detective agreed
that the surveillance video showed Irvin and the other individual jump out of their van
and engage in another verbal altercation with Gamble. Irvin and Gamble got into a
physical altercation and Gamble shot Irvin in the abdomen. The detective testified
that the video showed Irvin on top of Gamble on the ground. In addition, the detective
acknowledged that two witnesses at the gas station told investigators that after they
heard the shot, they saw Irvin on top of Gamble. The detective was asked on
cross-examination, “So you’re aware that at least two different people that were in the
Shell station, one was an employee who said [Gamble] was getting his ass whooped by
two guys?” The detective responded, “Yes.” Counsel then asked, “Would you agree with
me that during your interview with Mr. Gamble he was pretty distraught?” The
detective answered, “Yes” and she agreed that Gamble was crying.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} I raise these additional facts because we are to consider the nature and
circumstances of the crime charged, whether the defendant had access to a weapon,
and the weight of the evidence against him. Crim.R. 46(C). Gamble has a
concealed-carry license and, at age 31, has no criminal record. He is alleged to have
committed a very serious crime, but according to the investigating detective, was
engaged in a physical altercation with someone he did not know after that person
pursued him into the gas station parking lot after a verbal altercation at a nearby bank.
According to the detective, he was extremely distraught after the shooting and
expressed remorse for his actions. He claims he acted in self-defense. While it is
appropriate for us to consider the facts surrounding the allegations, “we are not the
finders of fact concerning his guilt.” Mohamed v. Eckelberry, 162 Ohio St.3d 583,
2020-Ohio-4585, 166 N.E.3d 1132, ¶ 13. It will be up to a jury to decide whether
Gamble committed murder or acted in self-defense.
{¶33} In order for Gamble to be detained without bond, the state was required
to prove three things by clear and convincing evidence: 1) “the proof is evident or the
presumption great that the accused committed the offense with which the accused is
charged,” 2) “that the accused poses a substantial risk of serious physical harm to any
person or to the community,” and 3) “that no release conditions will reasonably assure
the safety of that person and the community.” R.C. 2937.222. By denying the
state’s motion to detain Gamble without bond, the judge necessarily found that the
state had not met its burden and Gamble was bailable.
{¶34} Under both the United States and Ohio Constitutions, excessive bail is
unconstitutional. With the new Ohio constitutional amendment, safety of the
community can be considered in setting the amount of bail. But how to apply these
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two parts of Section 9, Article 1 of the Ohio Constitution at the same time seems rather
tricky to me. Certainly, a bail of $750,000 would not be too much for someone like
Elon Musk to pay. So, I question how we would protect the safety of the community
with cash bail if Musk were charged with this offense? Really, the only way to do so
would be to detain him without bond.
{¶35} The judge below held that Gamble was bailable by denying the state’s
motion to detain him without bond. Thus, she necessarily found that Gamble did not
pose a substantial risk of serious physical harm to any person or to the community and
that there were release conditions that will reasonably assure the safety of the
community.
{¶36} I believe that Gamble put forth sufficient evidence that he could not
afford the $750,000 straight bail. And most importantly, the state never contested
this at the bond hearing.
{¶37} Gamble is a lifelong resident of Hamilton County, is the father of two
children and before these charges, he maintained a steady job. He has no criminal
record and possessed a concealed-carry license. While the facts of this case are
disturbing, Gamble is still innocent until proven guilty. Because the bail in this case is
excessive, it is unconstitutional. Accordingly, I would grant Gamble’s habeas petition
and order that his bail be reduced to $100,000 at ten percent, which is an amount that
Gamble claims he can afford.
{¶38} For all of these reasons, I dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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