Lazzerini v. Maier ( 2018 )

[Cite as Lazzerini v. Maier, 2018-Ohio-1788.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
FRANK D. LAZZERINI JUDGES:
Hon. John W. Wise, P. J.
Petitioner Hon. Patricia A. Delaney, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2018 CA 00025
GEORGE T. MAIER, SHERIFF
Respondent OPINION
CHARACTER OF PROCEEDING: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: May 2, 2018
APPEARANCES:
For Petitioner For Respondent
DONALD J. MALARCIK JOHN D. FERRERO
BRIAN M. PIERCE PROSECUTING ATTORNEY
54 East Mill Street KATHLEEN O. TATARSKY
Suite 400 ASSISTANT PROSECUTOR
Akron, Ohio 44308 110 Central Plaza South, Suite 510
Canton, Ohio 44702-0049
Stark County, Case No. 2018 CA 00025 2
Wise, John, P. J.
{¶1} Petitioner, Frank D. Lazzerini, has filed a Petition for Writ of Habeas Corpus
alleging unlawful detention due to excessive bail. Respondent has filed an Answer,
Return, and Motion to Dismiss.
{¶2} An indictment has been issued against Petitioner containing 272 felony
counts. Those counts include Telecommunications Fraud, Grand Theft, Tampering with
Records, Involuntary Manslaughter, Aggravated Trafficking in Drugs, and Trafficking in
Drugs.
The principles governing habeas corpus in these matters are well
established. Under both the United States and Ohio Constitutions,
‘excessive bail shall not be required.’ If the offense is bailable, the right to
reasonable bail is an inviolable one which may not be infringed or denied.
In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454 N.E.2d 987, and
Lewis v. Telb (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d 1376.
The purpose of bail is to secure the attendance of the accused at trial. Bland
v. Holden (1970), 21 Ohio St.2d 238, 50 O.O.2d 477, 257 N.E.2d 397.
In Ohio, the writ of habeas corpus protects the right to reasonable
bail. In re Gentry. A person charged with the commission of a bailable
offense cannot be required to furnish bail in an excessive or unreasonable
amount. In re Lonardo (1949), 86 Ohio App. 289, 41 O.O. 313, 89 N.E.2d
502. Indeed, bail set at an unreasonable amount violates the constitutional
guarantees. Stack v. Boyle (1951), 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3.
Stark County, Case No. 2018 CA 00025 3
Pursuant to Crim.R. 46, in determining what is reasonable bail, the
court must weigh various factors: the nature and circumstances of the
offense charged, the weight of the evidence, the accused's history of flight
or failure to appear at court proceedings, his ties to the community, including
his family, financial resources and employment, and his character and
mental condition. After weighing these factors, the trial judge sets the
amount of bail within his sound discretion. In a habeas corpus action to
contest the reasonableness of bond, this court must determine whether the
trial court abused its discretion. Jenkins v. Billy (1989), 43 Ohio St.3d 84,
538 N.E.2d 1045; In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454
N.E.2d 987; Lewis (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d
1376; and In re Green (1995), 101 Ohio App.3d 726, 656 N.E.2d 705. In re
Periandri, 142 Ohio App. 3d 588, 591, 756 N.E.2d 682, 684 (8th Dist.).
What bail is or is not reasonable is a question for the exercise of
sound discretion by the court. The decision is dependent upon all the facts
and circumstances in each individual case. Bland v. Holden (1970), 21 Ohio
St.2d 238, 257 N.E.2d 397 [50 O.O.2d 477].” Petition of Gentry, 7 Ohio
App. 3d 143, 145, 454 N.E.2d 987, 989-90 (1982).
{¶3} An abuse of discretion occurs when a court's decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶4} Bail in the underlying case was set in the amount of $5,000,000. Petitioner
filed a motion requesting modification of the bail. A hearing was held wherein the parties
Stark County, Case No. 2018 CA 00025 4
presented arguments in support of their positions. No evidence was offered in support
of the arguments.
{¶5} At the hearing on the motion to modify the bail amount, the trial court relied
on the seriousness of the offenses charged which include two involuntary manslaughter
counts, engaging in a pattern of corrupt activity, 28 counts of aggravated trafficking in
drugs, 9 of which include major drug offender specifications, in its decision to keep the
bond at five million dollars. Further, the trial court found the probability of appearing in
court was lessened due to the substantial and unprecedented number of charges against
Relator, as well as due to the potential significant sentence.
{¶6} We cannot say under these circumstances that we find the trial court
abused its discretion in setting the bond in this case.
{¶7} The Supreme Court has further held,
[I]n a habeas corpus proceeding, “where the return sets forth a
justification for the detention of the petitioner, the burden of proof is on the
petitioner to establish his right to release.” Id. at 288, 22 O.O.2d at 342, 189
N.E.2d at 137. In satisfying this burden of proof, the petitioner must first
introduce evidence to overcome the presumption of regularity that attaches
to all court proceedings. Id. at 288, 22 O.O.2d at 342, 189 N.E.2d at 137.
Thus, in habeas corpus actions, “the state makes a prima facie case
by showing by what authority it holds the prisoner” and the “burden of
proceeding then shifts to the prisoner to introduce facts which would justify
the granting of bail. See, e.g., Muller v. Bridges (1966), 280 Ala. 169, 170,
Stark County, Case No. 2018 CA 00025 5
190 So.2d 722, 723.Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744
N.E.2d 763 (2001).
{¶8} Respondent directs this Court to the fact Petitioner’s failure to present any
evidence in support of his claims such as proof of Petitioner’s financial status, medical
licensure status, and passport status.
{¶9} Because Petitioner has not introduced evidence demonstrating he is
entitled to the issuance of a writ of habeas corpus and because we cannot find the trial
court abused its discretion in setting the bond, the motion to dismiss is granted.
By: Wise, John, P. J.
Delaney, J., and
Wise, Earle, J., concur.
JWW/d 0418