DuBose v. McGuffey (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
DuBose v. McGuffey, Slip Opinion No. 2022-Ohio-8.]
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. 2022-OHIO-8DUBOSE, APPELLEE, v. MCGUFFEY, SHERIFF, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as DuBose v. McGuffey, Slip Opinion No. 2022-Ohio-8.]
Habeas corpus action claiming excessive bail—The sole purpose of bail is to ensure
an accused person’s attendance in court—Under Crim.R. 46, public safety
is not a consideration with respect to the financial conditions of bail—Court
of appeals’ judgment granting writ and ordering reduction of bail affirmed.
(No. 2021-1403—Submitted December 15, 2021—Decided January 4, 2022.)
APPEAL from the Court of Appeals for Hamilton County, No. C-210489,
2021-Ohio-3815.
__________________
Per Curiam.
{¶ 1} On October 27, 2021, the First District Court of Appeals granted a
writ of habeas corpus ordering the reduction of petitioner-appellee Justin DuBose’s
bail from $1,500,000 to $500,000. Respondent-appellant, Charmaine McGuffey,
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Hamilton County sheriff (hereafter, “the state”), has appealed from that judgment.
For the reasons set forth herein, we affirm the judgment of the court of appeals.
I. Background
{¶ 2} On July 18, 2020, Shawn Green was killed in an alleged robbery in
Hamilton County. DuBose and a codefendant, Jamie Shelton, were charged with the
crime. DuBose was indicted on two counts of murder, one count of aggravated
robbery, and one count of aggravated burglary in case No. B 2005815-B. He was
arrested in Las Vegas, Nevada, and returned to Ohio after waiving extradition.
{¶ 3} On November 5, 2020, a bail hearing took place in the Hamilton County
Municipal Court. DuBose’s attorney requested a “reasonable” bail, based on
DuBose’s limited financial means, ties to the community, and lack of a significant
criminal record. The state asked for a bail amount of $1,500,000, to match the bail
amount that a different judge had set for DuBose’s codefendant. In support of the
bail amount, the state asked the judge to consider the circumstances of the crime
(Green was shot in the head after intruders—allegedly DuBose and Shelton—entered
a home to rob its owner of marijuana) as well as the fact that DuBose allegedly fled
to Nevada after the crime. The court set a bail of $750,000 on the murder charge and
a separate $750,000 bail on the aggravated-robbery charge.
{¶ 4} On January 26, 2021, DuBose filed a motion for a bail reduction in the
Hamilton County Court of Common Pleas. A hearing on the motion was held on
February 23, 2021. DuBose emphasized his limited resources, as well as his ties to
the community and lack of a felony record, while the state again focused on the
circumstances of the crime and DuBose’s alleged flight risk. At the close of the
hearing, the trial court stated:
[T]he Court cannot ignore the serious nature of this offense and
alleged conduct that I just heard about fleeing the state.
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So given all of that, I do think that $1.5 million is an excessive
bond, but I am going to reduce it.
The court then reduced the bail to $500,000.
{¶ 5} The next day, however, the trial court restored the original bail amount
because the court had failed to notify the victim’s family of the bail hearing, as
required by Marsy’s Law, Article I, Section 10a, Ohio Constitution. On February 26,
the parties again appeared before the trial court for a hearing on DuBose’s motion for
a bail reduction. The state presented new evidence—a photograph posted on
Facebook showing DuBose with multiple firearms. The victim’s grandmother was
present for the second hearing. She told the trial court, “I would like you to keep his
bond where it was. We don’t feel safe with him out on bond.” She also reported that
her daughter, the victim’s mother, would be “scared to death if he gets out.” The trial
court concluded, “This additional information that I’ve received today changes the
consideration that I had the other day.” The court therefore overruled the motion to
reduce the bail amount.
{¶ 6} On June 28, DuBose filed a second motion to reduce bail. On August
12, at the hearing on the motion, DuBose presented evidence that he had traveled
commercially to Las Vegas, stayed in hotels under his own name, and posted updates
about his whereabouts on Instagram, all to refute the suggestion that his trip to Las
Vegas constituted flight. The state, on the other hand, offered a report from the Las
Vegas police regarding DuBose’s arrest. According to the state, the report indicates
that when the police in Las Vegas initially approached DuBose (on an unrelated
matter), he provided a counterfeit California identification card for “Kevin Polanski”
and claimed to be Polanski.
{¶ 7} The trial court denied the second motion to reduce bail. It based its
decision on three factors. First, the trial court noted that DuBose is facing serious
criminal charges that will carry “significant mandatory prison time” if he is
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convicted. Second, the trial court “placed a lot of weight on” the statements of the
victim’s family member and “more importantly, the sentiment and the fear that the
family member had.” And third, the trial court observed that there is “no reasonable
reason to use a fake identity,” which DuBose had allegedly done in Las Vegas. In
its decision, the trial court gave no weight to the state’s allegation that DuBose had
fled to Las Vegas. And the court discounted the state’s argument that the possibility
of future charges against DuBose in Las Vegas might make him unavailable for
trial in this case.
{¶ 8} On September 22, DuBose filed a petition for a writ of habeas corpus
in the First District. After the state filed a response to the petition, the court of
appeals granted the writ. The court of appeals held that bail in the amount of
$1,500,000 was excessive because it did not take into consideration DuBose’s
financial resources, as required by Crim.R. 46(C)(4). 2021-Ohio-3815 at ¶ 27. As
the court of appeals noted, the state did not dispute DuBose’s claim that he and his
family were unable to afford the $1,500,000 bail. Id. at ¶ 19. In the view of the
court of appeals, “DuBose’s high bail was effectively a denial of bail, without the
trial judge making any of the required statutory findings” to hold a defendant
without bail. Id. at ¶ 26. The court therefore granted DuBose’s petition and reduced
his bail to $500,000, no 10 percent bond, but added several nonfinancial conditions,
including that DuBose would be subject to 24-hour lockdown enforced by
electronic monitoring, he could have no direct or indirect contact with the victim’s
family, and he had to surrender his passport. Id. at ¶ 29.
{¶ 9} The state appealed.
II. Analysis
A. Legal background
{¶ 10} “Bail is security for the appearance of an accused to appear and answer
to a specific criminal * * * charge * * *.” R.C. 2937.22(A). All persons are
“bailable by sufficient sureties, except for a person who is charged with a capital
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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.” Ohio Constitution, Article I, Section 9. 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).
{¶ 11} The 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. “Bail ensures appearance. Therefore, the conditions placed on it must relate
to appearance and the reasons for forfeiture to nonappearance.” State ex rel. Baker
v. Troutman, 50 Ohio St.3d 270, 272, 553 N.E.2d 1053 (1990).
{¶ 12} Both the United States Constitution and the Ohio Constitution
prohibit excessive bail. Eighth Amendment to the U.S. Constitution and Article I,
Section 9 of the Ohio Constitution. A bail amount that is “higher than an amount
reasonably calculated to” ensure the accused’s presence in court is “excessive.”
Stack at 5. Habeas corpus is the proper vehicle by which to raise a claim of
excessive bail in pretrial-release cases. Chari v. Vore, 91 Ohio St.3d 323, 325, 744
N.E.2d 763 (2001). The burden of proof in an excessive-bail habeas petition is on
the petitioner. Id. at 326.
{¶ 13} In this appeal, the state presents two propositions of law. Under its
first proposition, the state contends that the court of appeals erred when it reviewed
the trial court’s bail decision de novo, rather than for an abuse of discretion. And
under its second proposition of law, the state asserts that the court of appeals erred
by discounting the statement by the victim’s grandmother regarding her and her
daughter’s concern for their personal safety. The state’s assertions do not have
merit.
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B. The state’s first proposition of law
{¶ 14} Under its first proposition of law, the state argues that the court of
appeals should have reviewed the trial court’s bail determination for an abuse of
discretion. The state asserts that de novo review of a trial court’s bail determination
is inconsistent with Article I, Section 9 of the Ohio Constitution and Crim.R. 46(B),
both of which vest the trial court with discretion over bail determinations.
{¶ 15} In the exercise of its discretion under Crim.R. 46, a trial court may
not impose bail that violates the constitutional prohibition against bail in an amount
higher than an amount reasonably calculated to ensure the accused’s presence in
court. Stack, 342 U.S. at 5, 72 S.Ct. 1, 96 L.Ed. 3. Whether a particular bail
determination is unconstitutionally excessive is a question of law appropriate for
de novo review.
{¶ 16} Moreover, we recently recognized that in an original habeas action,
a court of appeals may receive new evidence and independently weigh the evidence
to make its own bail determination. Mohamed v. Eckelberry, 162 Ohio St.3d 583,
2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5. This is not to say that every case warrants
review. As with any action for habeas relief, the burden is on the petitioner to
establish his right to release, Chari, 91 Ohio St.3d at 325, 744 N.E.2d 763, and the
petitioner must 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).
{¶ 17} Here, the court of appeals noted that neither party requested an
opportunity to submit additional evidence. It also noted that the state did not contest
DuBose’s assertion that neither he nor his family could afford bail in the amount of
$1,500,000 and that the state did not introduce evidence to rebut that assertion.
Thus, unlike this court in Mohamed, the court of appeals did not receive new
evidence in this case. Instead, on the record before it, the court of appeals
concluded that the bail amount was excessive because it did not take into
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consideration DuBose’s financial resources as required by Crim.R. 46(C)(4). De
novo review was the proper standard of review for this question of law.
{¶ 18} The court of appeals did not disturb the trial court’s findings of fact
(nor do we). Rather, the court of appeals concluded that the bail imposed by the
trial court was excessive based on its review of those facts in the context of the
protections provided by the United States and Ohio Constitutions and the statutory
provisions and criminal rules that govern bail. We reject the state’s first proposition
of law.
C. The state’s second proposition of law
{¶ 19} Under its second proposition of law, the state argues that the court of
appeals wrongly disregarded the grandmother’s statement that she and her daughter
would fear for their safety if DuBose were released on bail. The state contends that
although there is a statutory process for holding without bail a criminal defendant
who poses a threat to public safety, the fact that the trial court considered the threat
that DuBose allegedly poses does not automatically mean the court was operating
under that statute and had to meet its requirements. In other words, the state argues
that the potential threat posed by a defendant is a legitimate consideration when
fixing the appropriate amount of bail.
{¶ 20} A judge may impose bail or hold a criminal defendant without bail.
The process of assessing bail is governed by Crim.R. 46. When determining the
amount and conditions of bail, a court must consider “all relevant information,”
including (1) the nature and circumstances of the crime charged and whether the
crime involved a weapon, (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, record of convictions, and (5) whether
the defendant was on parole or subject to another form of court control at the time
of the alleged offense. Crim.R. 46(C); Mohamed, 162 Ohio St.3d 583, 2020-Ohio-
4585, 166 N.E.3d 1132, ¶ 7.
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{¶ 21} Alternatively, 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 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). In the present case,
the court of appeals concluded that the state is trying to hold DuBose without bail
without attempting to meet its burden of proof under the statute, which the court
deemed “improper” because “ ‘setting a high bail in order to keep someone accused
of a crime incarcerated pretrial is both statutorily and constitutionally unlawful.’ ”
2021-Ohio-3815 at ¶ 18, 26, quoting Mohamed at ¶ 24 (Stewart, J., concurring).
{¶ 22} The state contends that the court of appeals erred by reducing the
bail amount on this basis. The state avers that the court of appeals “took the State’s
arguments relative to the safety concerns of the victim’s family and looked at them
in terms of R.C. 2937.222, but Crim.R. 46 also mandates consideration of the
protection or safety of any person or the community at large.” By doing so, the
state contends, the court of appeals dismissed those safety concerns from the
calculus and thereby “elevated [DuBose’s] ability to pay a certain amount for bail
above all other considerations that are provided under Crim.R. 46.”
{¶ 23} As previously noted, Crim.R. 46(C) contains a nonexclusive list of
factors a court must consider when determining the amount of bail. Crim.R.
46(B)(2)(i) authorizes courts to impose “[a]ny other constitutional condition
considered reasonably necessary to ensure appearance or public safety” as a
condition of bail. But Crim.R. 46 was amended effective July 1, 2020. In its current
form, Crim.R. 46(B) provides that
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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.
(Emphasis added.) Thus, the rule distinguishes between the financial conditions of
release and other conditions of release and requires the financial conditions to relate
to the risk of nonappearance.
{¶ 24} As the revised rule makes clear, public safety is not a consideration
with respect to the financial conditions of bail. In making this statement, we do not
minimize the importance of the safety concerns of the victim’s family in this case.
We merely recognize, as did the court of appeals, that under Crim.R. 46(B)(2),
public-safety concerns may be addressed by imposing nonfinancial conditions,
such as restrictions on travel and association, completion of alcohol- and drug-
abuse treatment, and orders of no contact with witnesses in the case. 2021-Ohio-
3815 at ¶ 25, fn. 2. And restrictions like these were placed on DuBose by the court
of appeals. In addition to the nonfinancial conditions of release already imposed
by the court of common pleas, the court of appeals ordered 24-hour lockdown
enforced by electronic monitoring, no contact with the victim’s family, and the
surrender of his passport.
{¶ 25} For the above reasons, we do not find that the court of appeals
wrongly disregarded the grandmother’s statement in its determination whether the
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financial condition of bail set by the trial court was excessive. Thus, the state’s
second proposition of law has no merit.
D. Was $1,500,000 an excessive bail amount?
{¶ 26} The court of appeals reviewed de novo the bail decision in DuBose’s
case and concluded, on the record before it, that bail in the amount of $1,500,000
was unconstitutionally excessive. In an extraordinary-writ case, we review the
judgment of a court of appeals as if the case had been originally filed in this court.
See State ex rel. Armatas v. Plain Twp. Board of Trustees, 163 Ohio St.3d 304,
2021-Ohio-1176, 170 N.E.3d 19, ¶ 12 (mandamus). We therefore proceed to a de
novo assessment of whether the bail amount set by the trial court was excessive.
{¶ 27} As amended, Crim.R. 46(B) specifies that the 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.” At the same
time, the rule continues to provide:
[I]n determining the types, amounts, and conditions of bail, the court
shall consider all relevant information, including but not limited to:
(1) The nature and circumstances of the crime charged, and
specifically whether the defendant used or had access to a weapon;
(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.
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(Emphasis added.) Crim.R. 46(C). As to many of the factors in this list, the
evidence either weighs in DuBose’s favor or the record contains no relevant
evidence either way.
{¶ 28} For example, although DuBose has prior misdemeanor convictions,
he has no felony record, was not on any form of supervised release at the time of
the crime, and apparently has no prior record of nonappearance in court. The state
made no representation as to the strength of the evidence against DuBose, nor did
the state indicate which defendant allegedly fired the fatal shot. On the other hand,
the evidence was undisputed that DuBose has ties to the community and few or no
financial resources.
{¶ 29} The trial court cited three factors in support of the higher bail
amount: (1) the serious nature of the crime, (2) the safety concerns expressed by
the family, and (3) DuBose’s alleged use of a fake ID. The serious nature of the
crime, standing alone, did not persuade the trial court to impose the higher bail
amount; the judge initially agreed that a $1,500,000 bail for DuBose was excessive
because the serious nature of the charges did not outweigh DuBose’s lack of
financial resources. That conclusion is consistent with our decision in Mohamed,
in which we reduced the bail amount for a defendant who was facing multiple
charges of attempted murder and felonious assault from $1,000,000 to $200,000,
based largely on his inability to afford the higher bail amount. Mohamed, 162 Ohio
St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, at ¶ 6-7. And the reduced amount
of $500,000 in this case is consistent with the bail imposed in other cases alleging
comparable crimes. See, e.g., Johns v. Wasylyshyn, 6th Dist. Wood No. WD-16-
002, 2016-Ohio-564, ¶ 2, 8 ($500,000 bail for a defendant indicted on one count of
murder of a child, two counts of endangering children, and one count of involuntary
manslaughter).
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{¶ 30} By contrast, in cases in which bail has exceeded $1,000,000, courts
have affirmatively found the existence of factors that do not apply to DuBose, such
as strong evidence of guilt and the ability to pay. For example, in Ahmad v.
Plummer, this court held that a bail set at $3,000,000 on a charge of conspiracy to
commit murder was not excessive, because the defendant had assets to afford the
bail amount and there was “substantial evidence against him.” 126 Ohio St.3d 262,
2010-Ohio-3757, 933 N.E.2d 256, ¶ 15-17. More recently, the Sixth District Court
of Appeals affirmed a cumulative $1,400,000 pretrial bail, for a defendant charged
with 9 counts of rape, 12 counts of gross sexual imposition, 6 counts of sexual
battery, and 5 counts of pandering obscenity to a minor. Stevens v. Navarre, 2021-
Ohio-551, 168 N.E.3d 578, ¶ 11, 19 (6th Dist.). In that case, the court of appeals
found it “meaningful” that the victims were minors, and it also noted that there was
substantial evidence against the accused, including testimony from the victims and
DNA evidence. Id. at ¶ 18; see also Drew v. State ex rel. Neil, 2020-Ohio-4366,
158 N.E.3d 684, ¶ 1, 6, 10 (1st Dist.) (no abuse of discretion in setting $5,000,000
bail for a defendant charged with nine counts of rape when the defendant failed to
submit trial-court-hearing transcripts or other evidence in his habeas action).
{¶ 31} Only after the February 26 hearing, based on the “additional
information” that the judge had received that day, did the trial court rule in favor of
a higher bail amount. The “additional information” to which the trial court referred
was the statement by the victim’s grandmother that she and her daughter feared
DuBose, a factor upon which the judge “placed a lot of weight.”1 As explained
above, public safety, although of the utmost importance, is not a factor relevant to
the calculation of the bail amount, which is concerned only with ensuring the
defendant’s future appearance in court. While the grandmother’s statement was
1. There was one other new piece of evidence presented at that hearing: a photograph of DuBose
with firearms. However, the state’s brief does not argue that the photograph justifies the higher bail
amount.
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certainly relevant to the trial court’s decision whether DuBose was bailable, once
the trial court determined that bail was appropriate, the financial condition of
DuBose’s bail would operate to alleviate the grandmother’s fear only if it were an
amount sufficient to preclude DuBose’s release. Yet a court may not impose
excessive bail for the purpose of keeping an accused in jail. “Keeping an accused
in jail by excessive bail is as much a denial of his constitutional rights as refusing
to fix bail.” State v. Bevacqua, 147 Ohio St. 20, 22, 67 N.E.2d 786 (1946).
Nonfinancial conditions may be imposed to ensure that a defendant who is released
on bail will pose no threat, and if the state is concerned that those conditions will
be inadequate, a mechanism exists—R.C. 2937.222—to hold the defendant without
bail. Moreover, we note that the trial court did not determine that DuBose actually
posed a threat to the victim’s grandmother or her daughter. There was no
suggestion, for example, that DuBose had made threats against them or that they
will be witnesses against DuBose at trial. Instead, the trial court credited the
unsworn statement without making any inquiry into the basis for her fear of
DuBose.
{¶ 32} The third fact the trial court cited in support of its bail determination
entered the record at the final bail hearing, when the state proffered an unsworn
statement that DuBose was using a fake ID when he was questioned by police in
Las Vegas on an unrelated matter. The trial court had already discounted the state’s
claim that DuBose had been fleeing prosecution, and DuBose had presented
evidence that he had repeatedly posted his whereabouts on social media as he
traveled. When it took those facts, along with the seriousness of DuBose’s alleged
offenses, into consideration after the prior bail hearing, the trial court had held that
bail in the amount of $1,500,000 was excessive. We fail to see why the additional
statement that DuBose used a fake ID when Las Vegas police questioned him on
an unrelated matter should dramatically change the calculation of bail necessary to
ensure DuBose’s presence at trial. And in any case, concerns that DuBose may be
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a flight risk can be addressed by other means, such as a daily reporting requirement
to a probation officer and electronic monitoring.
{¶ 33} For these reasons, we conclude that the trial court’s asserted reasons
for setting a higher bail amount did not provide an adequate legal basis for the bail
amount. Neither the grandmother’s testimony about her family’s safety concerns
nor the unsworn statement that DuBose used a fake ID in Las Vegas is relevant to
the bail amount necessary to ensure DuBose’s presence at trial. As a result, we
hold that the financial condition of bail set by the trial court was unconstitutionally
excessive because it was more than the amount reasonably necessary to ensure
DuBose’s appearance in court. We therefore agree with the court of appeals that
the trial court unlawfully set the bail amount so high so as to ensure that DuBose
could not get out.
{¶ 34} Because we agree with the court of appeals that the trial court’s
financial condition of bail was excessive and the record supports the court of
appeals’ bail-reduction decision, we affirm the judgment of the court of appeals
reducing DuBose’s bail.
III. Conclusion
{¶ 35} For these reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
O’CONNOR, C.J., and STEWART and BRUNNER, JJ., concur.
DONNELLY, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion.
FISCHER, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion.
_________________
DONNELLY, J., concurring.
{¶ 36} The dissenting opinions appear to be missing the point in this case.
The issue regarding the bail set for petitioner-appellee, Justin DuBose, is not
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whether one specific dollar amount or another specific dollar amount is correct.
The issue is that the amount set by the trial court was clearly calculated to be at a
level that DuBose cannot possibly afford to pay. If the evidence showed that
DuBose had lots of money and could afford bail in the amount of $1.5 million,
would the victim’s grandmother feel any safer that DuBose was released after
posting that amount? No. The feeling of safety comes from ensuring that DuBose
cannot leave jail.
{¶ 37} The dissenting opinions also seem to be creating a false dichotomy
that a defendant either deserves to be subject to a bail that he cannot possibly afford
or deserves to be out of jail until he is tried. This also misses the mark. There are
certainly defendants who should be held in state custody until they are tried. The
trial court has the power to order that such defendants be held without bail, but as
clearly explained in the majority opinion, the way to do that is to follow the
procedure in R.C. 2937.222, not to set a bail amount so high that the defendant
cannot afford it.
{¶ 38} Having spent 14 years as a trial-court judge and having set thousands
of bonds, I am appalled by the brazen accusations made in some of the dissenting
opinions that the justices joining the majority opinion are making Ohio less safe
and disrespecting victims simply by telling our courts that they must follow the
rules if they want to hold defendants in custody prior to trial without the possibility
of release before the trial. If a defendant does not appear to be bailable, a trial court
may not prevent the defendant’s pretrial release by misapplying Crim.R. 46(B) and
(C), which apply to defendants who are bailable. The trial court must instead
follow the procedures to deny bail under R.C. 2937.222. See Crim.R. 46(A) (“A
defendant may be detained pretrial, pursuant to a motion by the prosecutor or the
court’s own motion, in accordance with the standards and procedures set forth in
the Revised Code”). The fact that a defendant might have committed a terrible
crime does not allow us to ignore the law.
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_________________
KENNEDY, J., dissenting.
{¶ 39} This case presents the question whether appellee, Justin DuBose, has
satisfied his burden to demonstrate that he is being unlawfully confined based on
excessive bail imposed by the trial court in his criminal case.
{¶ 40} Our review in this case is hybrid. This is an appeal from an original
action for a writ of habeas corpus, and the court reviews de novo the evidence
presented in the lower courts and any new evidence submitted to this court. The
trial court’s discretion to set the amount of bail is authorized by Article I, Section
9 of the Ohio Constitution and Crim.R. 46. An accused is not unlawfully confined
and therefore not entitled to habeas relief unless the trial court abused its discretion
when setting the amount of bail. DuBose had the burden of presenting evidence
and proving that the trial court’s decision to set his bail at $1,500,000 was
unreasonable, arbitrary, or unconscionable or that it otherwise exhibited perversity
of will, passion, prejudice, partiality, or moral delinquency. DuBose did not prove
that the amount of bail set by the trial court resulted from an abuse of discretion.
Because the evidence before us indicates that DuBose absconded from justice after
allegedly committing murder with a firearm and that he poses a threat to the
victim’s family and the community, the order setting bail at $1,500,000 is valid, he
is lawfully confined, and he is not entitled to a writ of habeas corpus ordering a
reduction of the bail amount. I therefore dissent and would reverse the judgment
of the First District Court of Appeals granting a writ of habeas.
The Right to Bail
{¶ 41} 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 calculated to serve the government’s interest in ensuring the accused’s
appearance at trial. See United States v. Salerno, 481 U.S. 739, 752-755, 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. 316
January Term, 2022
(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, 544-546, 72 S.Ct. 525, 96 L.Ed. 547 (1952) (attorney
general did not abuse his discretion in setting bail).
{¶ 42} 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 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.
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{¶ 43} The General Assembly enacted R.C. 2937.222, which establishes the
considerations that a trial court must undertake when determining whether to deny
bail to an accused. Because the trial court has already determined that DuBose is
bailable, those considerations are not at issue here.
The Amount of Bail Is Within a Trial Court’s Discretion
{¶ 44} In accordance with Article I, Section 9 of the Ohio Constitution, this
court promulgated Crim.R. 46 to establish the procedures for setting 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.
(Emphasis added.) 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”).
{¶ 45} Crim.R. 46(B) expressly commits the amount of bail required to the
discretion of a trial court. Therefore, the standard for reviewing a trial court’s
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determination of the amount of bail is the abuse-of-discretion standard. 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”).
{¶ 46} 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, ¶ 39; 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 is also
consistent 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
{¶ 47} 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 v. Vore, 91 Ohio St.3d
323, 325, 744 N.E.2d 763 (2001); State v. Bevacqua, 147 Ohio St. 20, 67 N.E.2d
786 (1946), syllabus. 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 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 at
273. Relying on Ahmad and DeFronzo, this court recently held that a trial court’s
determination of the amount of bail is subject to de novo review by this court and
suggested that this court is vested with the discretion to substitute its judgment for
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that of the trial court and determine the amount of bail. See Mohamed v. Eckelberry,
162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 4-5.
{¶ 48} In my view, that analysis is incorrect. This is an appeal from an
original action, and we review de novo the evidence presented in the trial court and
any new evidence submitted to the court of appeals or to this court. Ahmad at ¶ 2.
But the focus remains on whether the petitioner is entitled to a writ of habeas
corpus, and “ ‘[h]abeas 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).
{¶ 49} DuBose therefore bore the burdens of presenting evidence and
persuading this court that he is unlawfully confined. Chari at 326. 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. It therefore follows that DuBose 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 DuBose is not being unlawfully confined. In determining whether the trial
court abused its discretion, we independently consider and weigh the evidence
submitted by the parties.
{¶ 50} Because the ultimate standard of review in determining whether
DuBose is unlawfully confined on excessive bail is an abuse of discretion, this court
is not permitted to substitute its judgment for that of the trial court. Mohamed, 162
Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 39 (Kennedy, J., dissenting);
see also In re Jane Doe 1, 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991)
(“When applying the abuse of discretion standard, a reviewing court is not free to
merely substitute its judgment for that of the trial court”). “Nor is it the function of
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a habeas proceeding to provide the petitioner a second bail hearing.” Mohamed at
¶ 39 (Kennedy, J., dissenting). Rather, the habeas remedy is available to protect
the accused’s constitutional rights from the trial court’s abuse of its discretion in
setting an excessive bail. See generally Bevacqua, 147 Ohio St. at 22-23, 67 N.E.2d
786.
Review for an Abuse of Discretion
{¶ 51} An “ ‘ “abuse of discretion” * * * implies that the court’s attitude is
unreasonable, arbitrary or unconscionable.’ ” (Ellipsis added 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).
{¶ 52} Crim.R. 46(B) directs the trial court to impose the least-restrictive
conditions of release that “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.” Financial conditions must
also be “related to the defendant’s risk of non-appearance, the seriousness of the
offense, and the previous criminal record of the defendant.” Id. The trial court
must also consider (1) the nature and circumstances of the crime charged and
whether the crime involved a weapon, (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, and record of convictions,
and (5) whether the defendant was on parole or subject to another form of court
control at the time of the alleged offense. Crim.R. 46(C).
{¶ 53} Reviewing the evidence in this case de novo, I believe the trial
court’s order setting bail at $1,500,000 was not an abuse of discretion. DuBose is
alleged to have committed murder during a robbery in which the victim was shot
in the head. He then left the state and flew to Las Vegas. When approached by
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law-enforcement officers in Las Vegas, he presented counterfeit identification and
was found to have $2,000 in cash. Following DuBose’s extradition from Las
Vegas, the trial court initially set bail at $1,500,000. On DuBose’s motion and after
hearing about his connections to the community and his inability to pay the bail
previously set, the trial court reduced bail to $500,000. However, because the
victim’s family had not been notified of the change-of-bail hearing as required by
Marsy’s Law, Article 1, Section 10a of the Ohio Constitution, the trial court
reinstated the $1,500,000 bail. At a subsequent hearing on DuBose’s motion for
reduced bail, the victim’s grandmother stated that her family would not feel safe if
DuBose were released and that the victim’s mother was scared of him. There was
also evidence of a social-media post in which DuBose posed with multiple firearms,
which, along with the circumstances of the crime, tends to prove that he possessed
a firearm at the time of the murder and robbery. DuBose, in turn, pointed to his
limited financial resources, his ties to the community, and his lack of a felony
record. The trial court ultimately maintained DuBose’s bail at $1,500,000.
{¶ 54} Considering this evidence, without giving deference to the trial
court’s findings, it was not unreasonable to set bail at $1,500,000. DuBose faces
serious charges with mandatory prison time, the evidence suggests that he
possessed a firearm at the time he allegedly committed the charged offenses, and
he absconded from justice (as shown by his leaving the state soon after the crime,
his use of counterfeit identification, and his possession of a large amount of cash).
Based on this evidence, a court could reasonably conclude that there is a strong risk
that DuBose might not appear at trial. Further, the victim’s grandmother’s
statement to the court indicates that the amount of bail was reasonably necessary
for the protection or safety of the victim’s family, a factor that Crim.R. 46(B) makes
relevant to both the financial and nonfinancial conditions of release. DuBose
presented conflicting information regarding his financial condition, at one point
representing that he was unemployed and later, when arguing that he had strong
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ties to the community, claiming that he had been employed by the same employer
for a year. That evidence cuts against his credibility as well as his inability to post
bail.
{¶ 55} Courts have rejected the view that bail is excessive merely because
the accused cannot afford it. 4 Wayne R. LaFave, Jerold H. Israel, Nancy J. King,
Orin S. Kerr, Criminal Procedure, Section 12.2(b) (4th Ed.Rev.2021). Further, to
the extent that there is no evidence related to other factors, that counts against
DuBose, since he bears the burden of presentment and persuasion. In light of the
factors to be considered under Crim.R. 46 and weighing all the evidence together—
the seriousness of the charged offenses, which were committed with a firearm, the
risk of flight, and the need to protect the victim’s family—the trial court could
reasonably conclude that bail in the amount of $1,500,000 was necessary.
{¶ 56} The majority’s analysis has it backwards. It applies a de novo review
to the ultimate decision regarding the amount of bail, but it relies on the trial court’s
findings—or lack of findings—regarding the evidence presented. It suggests that
the trial court put too much weight on the victim’s family’s safety and failed to
make a finding that DuBose poses an actual threat. It notes that the trial court gave
DuBose the benefit of the doubt regarding whether he had fled the state, even
though the trial court also noted that DuBose could not justify using counterfeit
identification. And the majority relies on the fact that the trial court initially
determined that the charges of murder and robbery required bail in the amount of
only $500,000, while disregarding its finding that bail in the amount of $1,500,000
was necessary.
{¶ 57} This is not de novo review. A de novo review requires the reviewing
court to independently consider and weigh the evidence and to determine whether
the party who bears the burden of proof—here, DuBose—has demonstrated
entitlement to relief. Instead, the majority basically picks and chooses among the
trial court’s findings, deferring to some and rejecting others, before coming to its
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own conclusion that the trial court’s findings that it accepts warrant a reduction of
the bail amount.
{¶ 58} In my view, DuBose failed to establish that the trial court abused its
discretion in setting the amount of bail. The trial court’s consideration of the
relevant factors on the record shows that its decision was not unreasonable,
arbitrary, or unconscionable or that it otherwise exhibited perversity of will,
passion, prejudice, partiality, or moral delinquency. Absent a showing that the trial
court abused its discretion in setting bail, DuBose’s confinement is not unlawful
and a writ of habeas corpus will not lie. For these reasons, I dissent and would
reverse the judgment of the court of appeals.
_________________
FISCHER, J., dissenting.
{¶ 59} Abuse of discretion is the appropriate standard of review in a habeas
corpus petition alleging excessive bail when an appellate court merely reviews the
same evidence presented to the trial court during the bail hearings. Because the
majority opinion holds otherwise, I must respectfully dissent.
Abuse of Discretion Is the Appropriate Standard of Review in this Case
{¶ 60} The majority opinion holds that the First District Court of Appeals
properly reviewed de novo the issue of excessive bail in Justin DuBose’s habeas
petition. The majority opinion maintains that whether the trial court complied with
Crim.R. 46—i.e., whether it considered the proper factors—is solely a question of
law. Majority opinion at ¶ 17. The majority opinion also relies on this court’s
recent decision in Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-Ohio-4585,
166 N.E.3d 1132, ¶ 5, to support its assertion that an appellate court may perform
an independent review in this situation.
{¶ 61} While Mohamed recognizes that there are circumstances in which an
appellate court may have some independent review, it does not suggest that
appellate courts have unrestrained de novo review for all bail issues. Rather,
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Mohamed indicates that a de novo review is appropriate when the appellate court
has accepted new evidence from the petitioner, outside of what was presented to
the trial court. See Mohamed at ¶ 4-5. To interpret Mohamed so broadly is to
invalidate well-established precedent on the issue.
{¶ 62} It is true that this court’s case law has made it difficult to determine
the appropriate standard of review in habeas cases asserting excessive bail. See
DuBose v. McGuffey, 165 Ohio St.3d 1459, 2021-Ohio-4147, 176 N.E.3d 770, ¶ 5
(DeWine, J., dissenting). But after reading the line of cases on this issue, I find it
apparent that the proper standard of review is generally an abuse of discretion,
unless the petitioner has demonstrated that independent review is warranted. See
Jenkins v. Billy, 43 Ohio St.3d 84, 85, 538 N.E.2d 1045 (1989) (court noted that the
petitioner alleged no facts to demonstrate that the trial court abused its discretion
or that appropriate grounds for independent review by the Ohio Supreme Court
existed); State v. Foster, 10th Dist. Franklin No. 08AP-523, 2008-Ohio-3525, ¶ 5
(challenges alleging excessive bail are generally reviewed for an abuse of discretion
in a habeas corpus action).
{¶ 63} While there are certainly circumstances in which an independent
review may be appropriate, for example, when the appellate court has accepted new
evidence or has held a hearing, see In re DeFronzo, 49 Ohio St.2d 271, 274, 361
N.E.2d 448 (1977), those situations do not exist in this case. The First District was
presented with only the trial-court documents and the transcripts of the bail hearings
that had been held before the trial court. There was no new evidence admitted.
There was no separate hearing held. The appellate court simply read and reviewed
what the parties had presented to the trial court.
{¶ 64} We all know that trial courts do not have the discretion to make
errors of law. Johnson v. Abdullah, ___Ohio St.3d ___, 2021-Ohio-3304,
___N.E.3d____, ¶ 39. But it is evident from the trial-court and appellate-court
records in this case that we are not talking about a misapplication of the law. The
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entire issue is about weighing the evidence and deciding whether the bail amount
imposed was excessive. The appellate court looked only at whether the trial court
had appropriately considered DuBose’s financial situation—that is, whether the
trial court had properly weighed the evidence before it. See 2021-Ohio-3815, ¶ 19-
20, 28. And that is an issue that is normally reviewed for an abuse of discretion,
and it is an issue that is easily determined here, when the trial-court record is read
in full.
{¶ 65} The trial-court record clearly demonstrates that the trial court
considered DuBose’s financial situation in determining the amount of bail; it
simply did not give that factor much weight in comparison to the other factors that
the trial court was required to consider under Crim.R. 46. DuBose filed two
motions for reduction of his bail. In those motions, DuBose briefly mentioned that
he and his family do not have the financial means to post his bail. The issue of
finances was only briefly mentioned by DuBose’s counsel at the first hearing. His
counsel noted that DuBose had a job, that he lived with his mother, and that they
have “limited resources.”
{¶ 66} Nevertheless, the trial court considered DuBose’s financial situation
at each hearing. At the first bail hearing, the trial court acknowledged that it had to
consider DuBose’s financial situation in addition to many other factors, such as the
seriousness of the offense. The court, considering all the factors, decided to reduce
the bail amount. However, upon rehearing, after listening to statements from the
victim’s family member, the court stated, “This additional information that I’ve
received today changes the consideration that I had the other day. And the Court
being fully advised, I’m going to overrule the motion to reduce the bond at this
time.” (Emphasis added.) At the third hearing, the court again recognized that it
needed to consider the defendant’s financial resources when setting the bail
amount. The court again considered everything it had previously, placing great
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weight on the statements from the victim’s family member, and it determined that
the motion should be denied.
{¶ 67} After reviewing the motions filed in the trial court and the transcripts
of the hearings on those motions, I find it clear that the trial court considered
DuBose’s financial resources and weighed that factor with the other relevant
factors. The court of appeals even acknowledged the trial court’s effort in weighing
the factors under Crim.R. 46. 2021-Ohio-3815 at ¶ 28. But the appellate court
simply disagreed with the trial court’s weighing of those factors, so it conducted its
own analysis. Id. ¶ 16-28. This was improper because the amount of bail is largely
within the sound discretion of the trial court, see Bland v. Holden, 21 Ohio St.2d
238, 239, 257 N.E.2d 397 (1970), and the appellate court here merely reviewed the
trial-court record. Therefore, abuse of discretion is the appropriate standard of
review in this case. We should remand the matter to the appellate court for it to
apply the proper standard of review. See State v. Wamsley, 117 Ohio St.3d 388,
2008-Ohio-1195, 884 N.E.2d 45, ¶ 29 (cause remanded to the appellate court for it
to conduct the proper analysis).
Crim.R. 46(C) Permits Consideration of the Safety Concerns
of the Victim’s Family
{¶ 68} Because I would hold that abuse of discretion is the appropriate
standard of review and would remand the cause to the appellate court to apply that
standard, I would not reach the state’s second proposition of law. However,
because the majority opinion decides the issue, I find it necessary to weigh in. I
disagree with the majority opinion’s conclusion that the trial court’s consideration
of the safety concerns of the victim’s family when setting the bail amount was
improper.
{¶ 69} I agree that Crim.R. 46(B) clearly indicates that financial conditions
of release must be related to the defendant’s risk of nonappearance, the seriousness
of the offense, and the previous criminal record of the defendant. But that is not
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the end of the analysis. Crim.R. 46(C) states specifically that “in determining the
types, amounts, and conditions of bail, the court shall consider all relevant
information, including but not limited to” a nonexhaustive list of factors.
(Emphasis added). This language in Crim.R. 46(C) permits the trial court to
consider other relevant information in determining the amount of a financial
condition. This could include safety concerns expressed by the victim’s family.
{¶ 70} Therefore, based on the plain language of Crim.R. 46(C), I cannot
agree with the majority opinion that the safety concerns cited by the trial court
deserve no consideration in determining the amount of the defendant’s financial
condition for bail.
Conclusion
{¶ 71} Abuse of discretion is the appropriate standard of review in this case.
I would reverse the judgment and remand the cause for the First District Court of
Appeals to review the trial court’s bail determination for an abuse of discretion in
the first instance. I would not reach the state’s second proposition of law.
Therefore, I must respectfully dissent.
_________________
DEWINE, J., dissenting.
{¶ 72} Make no mistake: what the majority does today will make Ohio
communities less safe. Despite the fact that Crim.R. 46(B) requires a trial court to
consider “the safety of any person or the community” when setting bail, the
majority today says that a trial court is prohibited from even considering public
safety when setting bail. Despite the fact that Ohio voters passed a constitutional
amendment that guarantees victims the right to be heard in the bail process, the
majority slams the door on a victim’s right to be heard. And despite the fact that
trial courts—who take evidence and can assess the credibility of witnesses—are in
the best position to make bail decisions, the majority today invites appellate courts
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to second-guess trial-court bail decisions based on nothing more than a paper
record. I dissent.
I. Background
{¶ 73} Justin DuBose is alleged to have shot a man in the head while
committing an armed robbery, leaving the victim to die. After the crime, DuBose
and his accomplice fled. The two were picked up in Las Vegas. When DuBose
was apprehended, he provided a fake identification card to law enforcement and
was in possession of multiple credit cards that were not in his name, as well as
$2,000 in cash.
{¶ 74} Bail was initially set at $1.5 million. DuBose’s counsel filed a
motion to reduce bail, and following a hearing, the trial court indicated that bail
would be reduced to $500,000. The next day, however, the trial court reinstated
the original bail amount. It did so because it concluded that the family of the
deceased had not been notified of the hearing, in violation of Marsy’s Law, Ohio
Constitution Article I, Section 10a. Marsy’s Law guarantees victims the right to be
notified of and heard at a proceeding involving the release of the accused. The
Constitution defines “victim” to include one who “is directly and proximately
harmed” by a criminal act. Id. at Section 10a(D).
{¶ 75} The trial court reconvened the hearing to allow the victims to be
heard. At the hearing, the grandmother of the deceased told the court: “We don’t
feel safe with him out on bond” and “My daughter’s scared to death if he gets out.”
The state also introduced a picture showing DuBose with a number of firearms. At
the conclusion of the hearing, the court overruled the motion to reduce bail.
{¶ 76} DuBose filed a second motion to reduce bail. Attached to the
motion, DuBose presented travel itinerary and Instragram posts, which he claimed
proved that he was not fleeing when he was picked up in Las Vegas. Yet the travel
itinerary concerned a flight to Orlando, Florida, not Las Vegas, Nevada. And the
Instagram photos were from Orlando and Los Angeles, again not Las Vegas. The
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trial court noted that there was no legitimate reason for DuBose to present law-
enforcement officers with fake identification in Las Vegas, but it also said that it
would give DuBose “the benefit of the doubt” that his travel to Las Vegas was not
flight. Nonetheless, the trial court overruled DuBose’s motion, citing the
seriousness of the crime and the statement it had heard from the victim’s family
member.
{¶ 77} DuBose then filed a writ of habeas corpus in the First District Court
of Appeals. The court of appeals determined that it would apply de novo review to
the trial court’s decision—in other words, that it would consider the bail motion
anew without providing any deference to the trial court’s decision. But despite
applying de novo review, the court of appeals didn’t hold a hearing. Nor is there
any indication in the record that the court of appeals provided any notice to the
victims or allowed the victims the right to be heard as required by Marsy’s law. See
Ohio Constitution, Article I, Section 10a(A)(2) and (3). After reviewing the paper
record, the court of appeals concluded the trial court had erred and reduced
DuBose’s bail to $500,000.
{¶ 78} The majority conducts what it says is its own de novo assessment of
DuBose’s bail, and concludes that the court of appeals appropriately reduced
DuBose’s bail. Majority opinion, ¶ 26, 34. I disagree with the result reached by
the majority, and with the analysis it uses to get there.
II. The majority’s flawed decision
{¶ 79} In my view, there are several problems with the majority’s analysis.
First, the majority applies the wrong standard of review. Second, in doing so, the
majority fails to accord crime victims the rights they are guaranteed under Marsy’s
Law. And third, the majority refuses to allow trial courts to even consider public
safety when setting bail. Unfortunately, these are mistakes that will have serious
consequences when it comes to the safety of Ohio communities.
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A. The majority applies the wrong standard of review
{¶ 80} The majority begins its analysis by concluding that the court of
appeals correctly applied de novo review to the trial court’s bail decision. I
disagree.
{¶ 81} Article I, Section 9 of the Ohio Constitution entrusts the trial court
with the responsibility of setting bail. The applicable provision states: “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.” Id. “The
court” in the provision obviously refers back to the court in which the defendant
has been charged with an offense, meaning it is the trial court that bears the
responsibility of setting bail.
{¶ 82} Crim.R. 46(B) makes clear that the trial court has discretion as to the
terms of bail. Under the rule, in determining the conditions of pretrial release, a
trial court is required to impose 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.” (Emphasis added.) Id. It is axiomatic that
when something is entrusted to a trial court’s discretion, we review that decision
for an abuse of that discretion.
{¶ 83} “To tell a trial judge that he has discretion in certain matters is to tell
him that there is a range of choices available to him. It is to tell him that the
responsibility is his, and that he will not be reversed except for straying outside the
permissible range of choice, i.e., for abuse of discretion.” United States v. E. I. du
Pont de Nemours & Co., 366 U.S. 316, 372, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961)
(Frankfurter, J., dissenting). Indeed, to apply anything other than abuse-of-
discretion review to the trial court’s discretionary decision is almost nonsensical.
How can one possibly review de novo a bail amount that is set based upon a judge’s
discretion?
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{¶ 84} In endorsing de novo review, the majority cites our recent decision
in Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d
1132, ¶ 5, and claims that a court of appeals may “independently weigh the
evidence to make its own bail determination.” Majority opinion at ¶ 16. Mohamed,
however, was an ill-advised departure from this court’s longstanding precedent.
{¶ 85} Up until Mohamed was decided, the weight of Ohio authority was
that an abuse-of-discretion standard applied. See, e.g., Ahmad v. Plummer, 126
Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 17 (“the court of appeals did
not abuse its discretion in determining that the $3,000,000 bail was not excessive”);
Coleman v. McGettrick, 2 Ohio St.2d 177, 180, 207 N.E.2d 552 (1965) (“we cannot
find any abuse of discretion in the action of the courts denying bail”); Colavecchio
v. McGettrick, 2 Ohio St.2d 291, 292, 208 N.E.2d 741, (1965) (we “will not
interfere with the exercise of [the trial court’s] discretion unless there appears to
have been a gross abuse thereof”); Hardy v. McFaul, 103 Ohio St.3d 408, 2004-
Ohio-5467, 816 N.E.2d 248, ¶ 7, 11 (upholding court of appeals’ decision that
applied abuse-of-discretion standard to excessive-bail claim); In re Green, 101
Ohio App.3d 726, 730, 656 N.E.2d 705 (8th Dist.1995) (“In a habeas corpus action
to contest the reasonableness of bond, this court must determine whether the trial
court abused its discretion”); In re Scherer, 7th Dist. Mahoning No. 01 C.A. 167,
2001-Ohio-3420 (applying abuse-of-discretion standard to excessive-bail claim);
King v. Telb, 6th Dist. Lucas No. L-05-1022, 2005-Ohio-800, ¶ 20 (“In a habeas
corpus action which challenges the amount of bond, we must review the decision
of the trial court under an abuse of discretion standard”); see also Hartman v.
Schilling, 160 Ohio St.3d 1486, 2020-Ohio-5506, 158 N.E.3d 617, ¶ 4-5 (Kennedy,
J., dissenting) (explaining that the court’s decision to dismiss the habeas petition
for failure to state a claim without first holding a hearing was impossible to square
with the court’s statement in Mohamed that it would apply de novo review to
excessive-bail claims).
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{¶ 86} In Mohamed, at least, this court referred the matter to a master
commissioner to take evidence before determining that the bail set by the trial court
was excessive. Mohamed at ¶ 1. Indeed, the court in Mohamed premised its
holding that de novo review applied on the fact 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.”
Id. at ¶ 5. But in the case at bar, there was no hearing held and no new evidence
submitted. The appellate court simply reviewed the transcripts from the trial court
and substituted its judgment for the trial court’s. Thus, whatever justification for
de novo review existed in Mohamed does not exist here.
{¶ 87} To make matters worse, the majority requires not only that courts of
appeals review de novo trial courts’ bail decisions but also that this court review de
novo the decisions of the courts of appeals and the trial courts. So that means that
every person who has bail set is entitled to three independent looks at his bail terms.
That’s hardly a model for judicial efficiency.
{¶ 88} The bigger problem, though, is that trial judges on the whole will
almost certainly make better bail decisions than appellate judges. Our Constitution
and Crim.R. 46 entrust bail decisions to trial judges for a reason. The typical trial
judge has extensive experience in setting the conditions of release, making such
decisions on a regular, often daily, basis. “With experience in fulfilling that role
comes expertise.” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504,
84 L.Ed.2d 518 (1985). Moreover, “[t]he trial judge is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.” Seasons Coal
Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). By applying
deferential review, we ensure that the trial-court proceedings are the “main event,”
not just a “tryout on the road.” Wainright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1977).
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{¶ 89} In addition, trial courts are far better equipped than appellate courts
to actively monitor a defendant’s compliance with the terms of bail. They are closer
to the action and can more easily and more quickly modify the conditions of release
based on changed circumstances. Abuse-of-discretion review, in short, not only
comports with our Constitution and rules, but also makes good sense.
{¶ 90} Our Constitution places bail decisions in the hands of trial judges,
and Crim.R. 46(B) makes clear that bail decisions are entrusted to the trial judge’s
discretion. We ought to honor these commands and allow reversal of a trial court’s
bail decision only when the judge has abused the discretion she has been given.
B. The majority gives victims short shrift
{¶ 91} With the passage of Marsy’s Law in 2017, Ohio voters elevated the
rights of victims to constitutional status. And in the early stages of this case,
Marsy’s Law worked as it was intended. The trial court and the prosecutor realized
that they had neglected to afford the victims the opportunity to be heard in the bail
process. A new proceeding was convened, and after hearing the concerns and the
fears of the deceased’s family, the trial court decided to retain the original bail
amount.
{¶ 92} But then came the review of that decision. The court of appeals
determined that it would consider the matter de novo. Marsy’s Law guarantees a
victim the right “to reasonable and timely notice of all public proceedings involving
the criminal offense or delinquent act against the victim, and to be present at all
such proceedings.” Article I, Section 10a(A)(2), Ohio Constitution. It also gives
the victim the right “to be heard in any public proceeding involving release” of the
defendant. Id. at Section 10a(A)(3).
{¶ 93} If a reviewing court is going to consider a matter anew, without any
deference to what happened in the trial court, then it also needs to allow the victims
to exercise the same rights they have in the trial court. There is no indication that
that happened here. There is nothing in the appellate court record to indicate that
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the victims were given any opportunity to be present and have their voices heard.
And certainly, this court hasn’t provided any such opportunity to the victims.
Indeed, the majority brushes aside the family’s fears based on nothing more than
its reading of a paper record. Majority opinion at ¶ 31.
{¶ 94} We can’t have it both ways. If we are going to say that a reviewing
court must ignore the credence that a trial court put in a victim’s statements, then
we have to insist that the victim be given an opportunity to be heard in the reviewing
court. To do otherwise would deprive victims of the rights they are guaranteed
under our Constitution.
C. The majority improperly prohibits courts from
considering the safety of the public
{¶ 95} The majority today holds that a court may not even consider the
“potential threat posed by a defendant” to the safety of the community in setting a
bail amount. Majority opinion at ¶ 19, 24. This is a dangerous holding that flies in
the face of the plain language of Crim.R. 46(B) and our precedent.
{¶ 96} Crim.R. 46(B) provides:
[T]he 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.
(Emphasis added.) By its very terms then, Crim.R. 46(B) mandates that the court
consider “the protection or safety of any person or the community” in setting bail
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terms. The majority tries to get around this inconvenient fact by pointing out that
public safety is not explicitly listed in the sentence that relates to financial
conditions. Because of this, it reasons, “public safety is not a consideration with
respect to the financial conditions of bail” and financial conditions must only relate
to the risk of flight. (Emphasis deleted.) Majority opinion at ¶ 24. The problem
with this reading is that included within the financial-conditions sentence is not
only the risk of nonappearance but also “the seriousness of the offense, and the
previous criminal record of the defendant.” Crim.R. 46(B). The seriousness of the
offense and a defendant’s prior record relate directly to public safety
considerations. Indeed, if the rule’s drafters meant for only “the defendant’s risk
of non-appearance” to be considered, they would have stopped right after those
words; there would have been no need to include anything else in the sentence.
{¶ 97} Furthermore, Crim.R. 46(C) explicitly lists factors to be considered
“in determining the types, amounts and conditions of bail.” (Emphasis added.) The
first factor to be considered is “[t]he nature and circumstances of the crime charged,
and specifically whether the defendant used or had access to a weapon.” Crim.R.
46(C)(1). Plainly, whether someone used or has access to a weapon relates directly
to public safety.
{¶ 98} The majority’s position is also undercut by the public process that
led to this court’s adoption of the amendment. When the proposed changes to
Crim.R. 46 were first put out for public comment, in October 2019, the proposed
rule provided that “financial conditions shall be related solely to the defendant’s
risk of non-appearance.” (Emphasis added.) See Proposed Amendments to the
Ohio Rules of Practice and Procedure (Oct. 7, 2019), available at
https://www.supremecourt.ohio.gov/ruleamendments/documents/ONLINE%20P
ACKET.pdf (accessed Dec. 23, 2021) [https://perma.cc/ZQT7-84D9]. The final
version adopted by this court after the public-comment process, however, does not
include the word “solely.” Thus, in contrast to the majority’s position today, it is
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evident that the rule amendment was not intended to forbid consideration of public
safety in setting a bail amount.
{¶ 99} Indeed, the Staff Notes to the July, 1, 2020 amendments to Crim.R.
46 make clear that public safety remains a proper consideration in setting bail. The
Staff Notes provide: “Crim. R. 46 has been amended to improve efficiency in
setting bail in an amount that effectively ensures (1) the defendant’s continued
presence at future proceedings, (2) that future proceedings will not be impeded by
any effort to obstruct justice, and (3) the safety of any person as well as the
community in general.” (Emphasis added.)
{¶ 100} The primary purpose of bail is to ensure the appearance of the
defendant. Bland v. Holden, 21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970). But
up until today, it has been understood that a judge could consider the threat a
defendant poses to the public in setting a reasonable bail. See, e.g., Chari v. Vore,
91 Ohio St.3d 323, 328, 744 N.E.2d 763 (2001) (in habeas case, upholding trial
court’s bail decision and noting that the trial court could appropriately consider “the
nature and circumstances” of the felonies charged as well as the fact that the
defendant “allegedly committed some of the offenses when he was previously on
bail”); Allen v. Altiere, 11th Dist. Trumbull No. 2015-T-0065, 2015-Ohio-3556,
¶ 19 (“Overall, the primary purposes of bail are to ensure the appearance of the
defendant at trial and to provide for public safety”); Garcia v. Wasylshyn, 6th Dist.
Wood No. WD-07-041, 2007-Ohio-3951, ¶ 4; Lazzerini v. Maier, 2018-Ohio-1788,
111 N.E.3d 727, ¶ 2-6 (5th Dist.).
{¶ 101} In disregarding all considerations other than the need to ensure the
appearance of the accused in court, the majority relies on Stack v. Boyle, 342 U.S.
1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Majority opinion at ¶ 12, 15. However, the
United States Supreme Court has since made clear that Stack does not stand for the
broad proposition for which it is cited by the majority. In United States v. Salerno,
the court explained that “[n]othing in the text of the [excessive-bail clause of the
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Eighth Amendment to the federal Constitution] limits permissible Government
considerations solely to questions of flight. The only arguable substantive
limitation * * * is that the Government’s proposed conditions of release or
detention not be ‘excessive’ in light of the perceived evil.” 481 U.S. 739, 754, 107
S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, contrary to what the majority suggests,
nothing in the federal Constitution precludes a trial court from considering public
safety when setting the amount of bail. And certainly nothing in the text of the
Ohio Constitution imposes such a prohibition. Article I, Section 9 of the Ohio
Constitution.
{¶ 102} By prohibiting trial judges from even considering public safety in
determining the amount of bail, the majority acts contrary to the plain terms of
Crim.R. 46. And by tying the hands of trial judges who must make difficult bail
decisions, the majority’s action today will almost certainly make our communities
less safe.
III. The trial court did not abuse its discretion
{¶ 103} This case is properly reviewed under an abuse-of-discretion
standard. Here, DuBose was charged with the most serious of crimes, murder,
aggravated robbery and aggravated burglary. It has long been understood that “if
an accused is charged with crimes the conviction for which would result in long
incarceration, with little hope of early release or probation, the incentive to
abscond is greater and the amount [of bail] must be such as to discourage the
accused from absconding.” Bland at 239. The trial court also had before it
substantial evidence that DuBose was a flight risk. He fled the jurisdiction after
the crime, and when he was apprehended, he provided false identification to the
arresting officer. He also had with him $2,000 in cash and a number of credit
cards that were not in his name. Under these circumstances, I cannot say that the
trial court abused its discretion in setting the bail that it did.
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IV. Conclusion
{¶ 104} I dissent because I do not believe that the trial court abused its
discretion in setting Justin DuBose’s bail at $1.5 million. I also dissent because I
worry about the consequences of the majority’s decision today. In refusing to apply
any deference to bail decisions made by trial judges, in refusing to ensure that
victims’ rights are protected, and in prohibiting a court from even considering
public safety in making bail decisions, the majority departs from our rules, our
precedent, and our Constitution. And in doing so, it undermines the safety of our
communities.
_________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott
Havlin, Assistant Prosecuting Attorney, for appellant.
_________________
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