Dubose v. McGuffey , 2021 Ohio 3815 ( 2021 )

[Cite as Dubose v. McGuffey, 2021-Ohio-3815.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JUSTIN DUBOSE, : CASE NO. C-210489
Petitioner, :
vs. : O P I N I O N.
CHARMAINE MCGUFFEY, :
HAMILTON COUNTY SHERIFF,
Respondent. :
Original Action in Habeas Corpus
Judgment of Court: Petition for Writ Granted
Date of Judgment Entry on Appeal: October 27, 2021
Arenstein and Gallagher, William R. Gallagher and Kara C. Blackney, for
Petitioner,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Respondent.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Petitioner Justin Dubose is currently being detained in the Hamilton
County Justice Center because he contends he is unable to post the $1.5 million bail
that has been set in his case. Dubose and codefendant Jamie Shelton were charged
with the murder of Shawn Green. The murder is alleged to have occurred on July 18,
2020, during a robbery. Dubose has been indicted for two counts of murder, one
count of aggravated robbery, and one count of aggravated burglary in the case
numbered B-2005815B. He has filed a petition for a writ of habeas corpus
challenging the amount of his pretrial bail as excessive. The court, upon
consideration thereof, finds that the petition is well taken and is granted.
The Bail Hearings Below
{¶2} Complaints were filed and warrants were issued against Dubose on
October 2, 2020, for murder and aggravated robbery. He was arrested in Las Vegas,
Nevada. He waived extradition and was returned to Hamilton County on November
5, 2020, and appeared before the Hamilton County Municipal Court for a bail
hearing. At the hearing, the state requested that the court impose a $1.5 million
secured bail because a different judge had already set such a bail for his co-
defendant, Shelton. In support of the high bail, the state claimed that Dubose and
Shelton shot the victim in the head after they entered the garage of a home in order
to rob the homeowner of his marijuana. They subsequently fled the scene and
Dubose was arrested in Las Vegas.
{¶3} In support of a lower bail, Dubose’s attorney represented that he had
been retained by Dubose’s mother, Dubose is not employed, and he does not have
2
OHIO FIRST DISTRICT COURT OF APPEALS
the financial means to afford a high bail. He further explained that Dubose is 25
years old and does not have a significant criminal history.
{¶4} After hearing argument, the municipal court judge set a $750,000
secured bail on the murder charge and an additional $750,000 secured bail on the
aggravated-robbery charge, totaling $1.5 million.
{¶5} After he was indicted, Dubose filed a motion to reduce bail before the
common pleas court judge assigned to the case, arguing that the $1.5 million bail was
excessive and the municipal court judge did not consider Dubose’s ability to afford
the bail. In the motion, Dubose asserted that he is a graduate of Colerain High
School, a lifelong resident of Cincinnati, and his entire family lives in Cincinnati. He
claimed he had been working full-time for the same company for over a year. He
further claimed he had no felony convictions, no history of weapons, and no history
of failing to attend court appearances. He claimed that he and his family did not have
the financial means to post the current bail. The motion was set for a hearing on
February 23, 2021.
{¶6} At the hearing, Dubose’s counsel argued that Dubose has strong family
ties to the community, no failures to appear, no felony convictions, does not own a
passport, and cannot afford the $1.5 million bail.
{¶7} In response, the state countered that this was a planned aggravated
robbery inside of a residence by Dubose and Shelton. The state alleged that Dubose
was the “hands-on killer” who shot and killed the victim, who was left for dead when
Dubose and Shelton fled the scene. Dubose and Shelton were later arrested in Las
Vegas. The state argued that Dubose posed a danger to the community and was an
3
OHIO FIRST DISTRICT COURT OF APPEALS
“extremely violent person” and a flight risk. The state asked the judge to keep the bail
as is.
{¶8} The trial court stated that it must consider several factors, including
ties to the community, ability to pay, the serious nature of the offense and the risk of
flight. The court found that although this was a very serious case and Dubose was “a
significant risk of flight,” he was innocent until proven guilty and the $1.5 million
bail was excessive. The court reduced the bail to $500,000 straight with an
electronic monitoring unit (“EMU”).
{¶9} After the court entered its order reducing the bail, it was informed by
the prosecution that there was a failure to comply with Marsy’s Law, in that the
victim’s family had not been notified of the bail hearing. The court immediately
reinstated the original $1.5 million bail and set the matter for a hearing on February
23, 2021, with the victim’s family present.
{¶10} At the hearing, the victim’s grandmother informed the court that she is
terrified of Dubose and feels that she and her family would be in extreme danger if he
were released, even on electronic monitoring. The court kept the bail at $1.5 million.
{¶11} Dubose filed a second motion to reduce bail, which was heard on
August 12, 2021. After hearing argument, the court denied the motion. The court
stated that it would give Dubose the benefit of the doubt that he did not travel to Las
Vegas to avoid prosecution. However, the court noted the seriousness of the charges,
that they included gun specifications and carried mandatory prison time. The court
stated that it placed a lot of weight on the fear of the family members.
{¶12} In this habeas petition, Dubose argues that the $1.5 million bail
ordered by the common pleas court judge is excessive and unreasonable, and the
4
OHIO FIRST DISTRICT COURT OF APPEALS
judge did not properly consider his financial resources as required by Crim.R. 46(C)
and the Ohio Supreme Court. Dubose requests that this court reduce his bail to
$500,000 with EMU, which was the bail originally set by the common pleas court.
The Standard of Review
{¶13} “[I]n 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.” Mohamed v. Eckelberry, 162
Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5.
{¶14} Thus, Mohamed suggests that our standard of review is de novo.1 See
Hartman v. Schilling, 160 Ohio St.3d 1486, 2020-Ohio-5506, 158 N.E.3d 617, ¶ 2
(Kennedy, J. dissenting) (stating that the court applied a de novo standard of review
in Mohamed); see also Stevens v. Navarre, 2021-Ohio-551, 168 N.E.3d 578, ¶ 8 (6th
Dist.) (“[W]e glean from Mohamed that we must conduct a de novo review in our
determination of whether the pretrial bail is excessive.”).
{¶15} Our record consists of the verified habeas petition, the exhibits
attached thereto, and the response of the respondent. Neither party requested an
opportunity to submit additional evidence.
The $1.5 million Bail is Excessive
{¶16} While the nature and circumstances of the crime charged are certainly
relevant to any bail determination, Crim.R. 46(C) also requires the court to “consider
many other factors that are specific to the accused, such as the weight of the evidence
and the defendant’s financial resources.” Mohamed at ¶ 7. “Any financial conditions
[of release] shall be in an amount and type which are least costly to the defendant
1 As a result, this de novo standard supplants the prior “hybrid” standard of review that this court
historically applied. Drew v. State ex. rel. Neil, 2020-Ohio-4366, 158 N.E.3d 684, ¶ 3 (1st Dist.).
5
OHIO FIRST DISTRICT COURT OF APPEALS
while also sufficient to reasonably assure the defendant’s future appearance in
court.” Crim.R. 46(B). Imposing an unreasonably high bail that everyone knows the
defendant cannot afford is tantamount to a denial of bail, but it is done in a manner
that avoids compliance with the due-process requirements for the statutory denial of
bail.
{¶17} We must remember that “[t]he sole purpose of bail is to ensure a
person’s attendance in court.” State ex rel. Sylvester v. Neal, 140 Ohio St.3d 47,
2014-Ohio-2926, 14 N.E.3d 1024, ¶ 16; R.C. 2937.22 (A) (“Bail is security for the
appearance of an accused to appear and answer to a specific criminal or quasi-
criminal charge in any court or before any magistrate at a specific time or at any time
to which a case may be continued, and not depart without leave.”). “Bail is excessive
when it is higher than is reasonably necessary to serve the government’s interest in
ensuring the accused’s appearance at trial.” Mohamed, 162 Ohio St.3d 583, 2020-
Ohio-4585, 166 N.E.3d 1132, at ¶ 29 (Kennedy, J., dissenting), citing United States v.
Salerno, 481 U.S. 739, 753-755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), and Stack v.
Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951).
{¶18} “[S]etting a high bail in order to keep someone accused of a crime
incarcerated pretrial is both statutorily and constitutionally unlawful.” Mohamed at
¶ 24 (Stewart, J., concurring), citing R.C. 2937.222, State v. Bevacqua, 147 Ohio St.
20, 22, 67 N.E.2d 786 (1946), and Stack at 4. “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.” Id.{¶19} That is exactly what occurred here. Dubose’s counsel repeatedly
proffered that neither Dubose nor his family can afford the $1.5 million bail, a point
6
OHIO FIRST DISTRICT COURT OF APPEALS
reiterated in the verified habeas filing before us. The state has never contested this
point or introduced contrary evidence, and, indeed, the thrust of its arguments at the
bail hearings is that the bail must be so high that Dubose cannot get out.
{¶20} The state made this point in various ways. At the February 23, 2021,
bail hearing, the prosecutor told the court, “So not only for the safety of the
community, but I don’t think he would come back if he got out. I would ask the court
to keep the bond as it was [$1.5 million].” A few days later, the state reiterated, “And
I know the Court set a bond and also put on an EMD provision on that bond: but the
feeling is that that’s just an ankle bracelet and you can either cut that off or violate it,
and it doesn’t really protect somebody if the person wants to violate it. Certainly
there’d be notice to probation or EMD that there’s a violation, but in that time period
after he goes off his range, then that person could do whatever they want.” And at the
final bail hearing, the prosecutor warned, “if the defendant were released, [the
victim’s family] would feel they were in danger from Mr. Dubose.”
{¶21} The state’s point is not that the court should set a bail at a level to
“ensure a person’s attendance in court.” Neal, 140 Ohio St.3d 47, 2014-Ohio-2926,
14 N.E.3d 1024, at ¶ 16. Rather, it is that the bail must be sufficiently high that
Dubose can never get out.
{¶22} At the end of the day, this is an argument for the denial of bail. But it is
unconstitutional to achieve a de facto denial of bail without satisfying the rules for a
true denial of bail. See Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835
N.E.2d 5, ¶ 64 (“Thus, the amendment to Section 9, Article I was designed to expand
the types of offenses and circumstances under which bail could be denied, not to
limit an accused’s access to a surety once bail is granted.”). (Emphasis omitted.)
7
OHIO FIRST DISTRICT COURT OF APPEALS
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.
Ohio Constitution, Article I, Section 9.
{¶23} If the state believes that Dubose represents such a danger to the
community that he must be held without bail, then it must make a motion pursuant
to R.C. 2937.222, at which point “the judge shall hold a hearing to determine
whether an accused person charged with aggravated murder when it is not a capital
offense, murder, a felony of the first or second degree, a violation of section 2903.06
of the Revised Code, a violation of section 2903.211 of the Revised Code that is a
felony, or a felony OVI offense shall be denied bail.” R.C. 2937.222(A).
{¶24} The statute places the burden on the state to prove “that the proof is
evident or the presumption great that the accused committed the offense with which
the accused is charged, of proving that the accused poses a substantial risk of serious
physical harm to any person or to the community, and of proving that no release
conditions will reasonably assure the safety of that person and the community.” Id.That provision further provides:
8
OHIO FIRST DISTRICT COURT OF APPEALS
No accused person shall be denied bail pursuant to this section unless the
judge finds by clear and convincing evidence that the proof is evident or
the presumption great that the accused committed the offense described
in division (A) of this section with which the accused is charged, finds by
clear and convincing evidence that the accused poses a substantial risk of
serious physical harm to any person or to the community, and finds by
clear and convincing evidence that no release conditions will reasonably
assure the safety of that person and the community.
R.C. 2937.222(B).
{¶25} In other words, this statute exists to address the exact concerns raised
by the state below and in response to Dubose’s habeas petition. The court’s decision
in Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132,
the Ohio Constitution, Crim. R. 46, and R.C. 2937.222 all reinforce the point that if
the state elects not to pursue that statutory path, the focus of the monetary bail
amount must be on assuring the defendant’s appearance and not simply artificially
inflating the amount so that no one can satisfy it.2
{¶26} In this case, Dubose’s high bail was effectively a denial of bail, without
the trial judge making any of the required statutory findings. This is improper.
Underscoring the point, despite the fact that the trial court found Dubose to be a
2 While we acknowledge that Crim.R. 46(B) also requires the court to consider “the protection or
safety of any person or the community” when determining an appropriate bail, the rule lists
numerous nonfinancial conditions that can be imposed to address this factor. These conditions
include, but are not limited to, restrictions on travel, association, or place of abode, regulation of
the person’s contact with witnesses or others associated with the case, completion of drug and/or
alcohol assessment and compliance with treatment regulations, and “[a]ny other constitutional
condition considered reasonably necessary to reasonably assure appearance or public safety.” The
rule states that financial conditions of release “shall be related to the defendant's risk of non-
appearance, the seriousness of the offense, and the previous criminal record of the defendant”
and must 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.”
9
OHIO FIRST DISTRICT COURT OF APPEALS
flight risk, it originally found the $1.5 million bail to be excessive. It lowered the bail
to $500,000, but, in order to ensure his appearance in court and for the safety of the
community, also required an EMU. If the state wishes to have Dubose detained
without bail because it believes he poses a substantial risk of serious physical harm to
any person or to the community and no release conditions will reasonably assure the
safety of that person and the community, then it must comply with R.C. 2937.222.
{¶27} After reviewing the record presented to this court, we find that the $1.5
million bail is excessive because it does not take into consideration Dubose’s
financial resources as required by Crim.R. 46(C)(4). Dubose represented below and
reiterated in the verified filing before us that he does not have the resources to post
such a high bail, and the state has not presented any argument or evidence to the
contrary. By requesting in his habeas petition that this court lower his bail to
$500,000 straight with EMU, Dubose is effectively agreeing that this bail amount is
attainable yet high enough to compel him to appear in court when required. The
additional condition of EMU also addresses concerns regarding the safety of the
victim’s family and the community.
{¶28} We finally would like to note that the trial judge below engaged in
thoughtful consideration of the bail in this case, convening no less than three
separate bail hearings. Determining a bail that satisfies all of the requirements of
Crim.R. 46 is not an easy decision to make. But, as explained above, it is unlawful to
set a bail so high that it “accomplishes with money what courts could not otherwise
achieve without following the due-process requirements in R.C. 2937.222.”
Mohamed, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, at ¶ 25 (Stewart,
J., concurring).
10
OHIO FIRST DISTRICT COURT OF APPEALS
{¶29} Accordingly, Dubose’s petition for a writ of habeas corpus is hereby
granted and his bail in the case numbered B-2005815B is reduced to $500,000
straight, no ten percent, with the additional conditions of 24-hour lockdown EMU,
no direct or indirect contact with the victim’s family and petitioner shall surrender
his passport if he owns one. All other non-financial conditions of release imposed by
the court of common pleas shall also remain in place.
Petition for writ granted.
BERGERON, P.J., concurs,
WINKLER, J., dissents.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
11