[State ex rel. Battin v. Scott

[Cite as [State ex rel. Battin v. Scott, 2016-Ohio-3343.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. James L. Battin, :
Petitioner, :
No. 15AP-688
v. :
(REGULAR CALENDAR)
Zach Scott, :
Respondent.] :
D E C I S I O N
Rendered on June 9, 2016
On brief: James L. Battin, pro se.
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for respondent.
IN HABEAS CORPUS
LUPER SCHUSTER, J.
{¶ 1} Petitioner, James L. Battin, filed an original action challenging the amount
of his bail, arguing that it is excessive and asking this court to issue a writ of habeas
corpus and release him from custody.
{¶ 2} This matter was referred to a magistrate of this court pursuant to Civ.R.
53(C) and Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate issued the
appended decision, including findings of fact and conclusions of law, recommending this
court dismiss petitioner's request for a writ of habeas corpus. No objections have been
filed to that decision.
{¶ 3} Finding no error of law or other defect on the face of the magistrate's
decision, this court adopts the magistrate's decision as our own, including the findings of
No. 15AP-688 2
fact and conclusions of law. In accordance with the magistrate's decision, we dismiss
petitioner's request for a writ of habeas corpus.
Petition for a writ of habeas corpus dismissed.
TYACK and BRUNNER, JJ., concur.
No. 15AP-688 3
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[State ex rel. James L. Battin, :
Petitioner, :
v. : No. 15AP-688
Zach Scott, : (REGULAR CALENDAR)
Respondent.] :
MAGISTRATE'S DECISION
Rendered on March 18, 2016
James L. Battin, pro se.
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
respondent.
IN HABEAS CORPUS
{¶ 4} Petitioner, James L. Battin, has filed this original action challenging the
amount of his bail, arguing that it is excessive, and asking this court to issue a writ of
habeas corpus and release him from custody.
Findings of Fact:
{¶ 5} 1. On February 18, 2015, petitioner was indicted on one count of
kidnapping and one count of rape, both with firearm specifications. The victim was
petitioner's wife.
No. 15AP-688 4
{¶ 6} 2. On February 20, 2015, Magistrate Lippe set petitioner's bond at
$1,000,000 cash/surety, plus $20,000 recognizance with the condition that petitioner
have no contact, either direct or indirect, with his victim.
{¶ 7} 3. On March 19, 2015, Judge Lynch considered defense counsel's request
for a reduced bond; however, at that time, Judge Lynch refused to do so.
{¶ 8} 4. On June 10, 2015, Judge Lynch revisited the issue of petitioner's bond
and agreed to reduce petitioner's bond to $750,000 cash/surety and $20,000
recognizance with the same conditions as before.
{¶ 9} 5. On July 17, 2015, petitioner filed this petition asking for a writ of
habeas corpus alleging that his bond is excessive. Petitioner asserts that his bond has
been set this high for one reason: because “petitioner is black.”
{¶ 10} 6. At the request of the magistrate, respondent filed an answer on
November 24, 2015.
{¶ 11} 7. The magistrate specifically notes that petitioner's petition is not
verified as required by R.C. 2725.04.
Conclusions of Law:
{¶ 12} For the reasons that follow, it is this magistrate's decision that petitioner's
petition for a writ of habeas corpus should be dismissed.
{¶ 13} R.C. Chapter 2725 prescribes a basic, summary procedure for bringing a
habeas corpus action. R.C. 2725.04 provides:
Application for the writ of habeas corpus shall be by petition,
signed and verified either by the party for whose relief it is
intended, or by some person for him, and shall specify:
(A) That the person in whose behalf the application is made
is imprisoned, or restrained of his liberty;
(B) The officer, or name of the person by whom the prisoner
is so confined or restrained; or, if both are unknown or
uncertain, such officer or person may be described by an
assumed appellation and the person who is served with the
writ is deemed the person intended;
(C) The place where the prisoner is so imprisoned or
restrained, if known;
No. 15AP-688 5
(D) A copy of the commitment or cause of detention of such
person shall be exhibited, if it can be procured without
impairing the efficiency of the remedy; or, if the
imprisonment or detention is without legal authority, such
fact must appear.
{¶ 14} In Chari v. Vore, 91 Ohio St.3d 323 (2001), the Supreme Court of Ohio
reversed the Montgomery County Court of Appeals, which had granted a writ of habeas
corpus to Krishan Chari. The court found that Chari's petition was not verified and
failed to state with particularity the extraordinary circumstances entitling him to habeas
corpus relief. Specifically, as it relates to Chari's failure to verify his petition, the court
stated:
First, Chari's petition did not satisfy the mandatory
requirements of R.C. 2725.04, which requires that the
petition be verified. In the absence of any statutory definition
of the requisite verification, we must apply the word's usual,
normal, or customary meaning. State ex rel. Cuyahoga
Cty. v. State Personnel Bd. of Review (1998), 82 Ohio St. 3d
496, 499, 696 N.E.2d 1054, 1057; R.C. 1.42. "Verification"
means a "formal declaration made in the presence of an
authorized officer, such as a notary public, by which one
swears to the truth of the statements in the document."
Garner, Black's Law Dictionary (7 Ed.1999) 1556; see, also,
Webster's Third New International Dictionary (1986) 2543;
Youngstown Steel Door Co. v. Kosydar (1973), 33 Ohio App.
2d 277, 280, 62 Ohio Op. 2d 420, 422, 294 N.E.2d 676, 679
("Verification under oath bespeaks some further formal act
or presence calculated to bring to bear upon the declarant's
conscience the full meaning of what he does").
Chari's habeas corpus petition did not contain any
verification; therefore, the court of appeals should have
dismissed it. See Russell v. Mitchell (1999), 84 Ohio St. 3d
328, 329, 703 N.E.2d 1249, 1249-1250; Evans v. Klaeger
(1999), 87 Ohio St. 3d 260, 261, 719 N.E.2d 546, 547; Sidle v.
Ohio Adult Parole Auth. (2000), 89 Ohio St. 3d 520, 733
N.E.2d 1115. In fact, not even his amended petition, which
was filed after the writ was allowed and a return ordered,
met the R.C. 2725.04 verification requirement because
neither Chari nor his attorney expressly swore to the truth of
the facts contained therein. See State ex rel. Hebert v.
McFaul, 1998 Ohio App. LEXIS 2401 (June 4, 1998),
No. 15AP-688 6
Cuyahoga App. No. 74246, unreported, 1998 WL 289365("Although a notary public has signed and affixed a seal to
the complaint, petitioner has not complied with the
requirements for the form of an affidavit"); but, cf., Civ.R. 11.
Id. at 327-28.
{¶ 15} Because petitioner's petition does not contain any verification, this court
should dismiss it.
/S/ MAGISTRATE
STEPHANIE BISCA
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).