Brown v. Rogers

• Decision Date: 28 June 1995
• Docket Number: No. 95-579,95-579
• Citation: 72 Ohio St.3d 339,650 N.E.2d 422
• Parties: BROWN v. ROGERS, Warden.
• Court: Ohio Supreme Court

Page 339

72 Ohio St.3d 339

650 N.E.2d 422

BROWN v. ROGERS, Warden.

No. 95-579.

Supreme Court of Ohio.

Submitted April 24, 1995.

Decided June 28, 1995.

On November 28, 1994, petitioner, Bruce Andrew Brown, filed a petition in habeas corpus with this court, alleging convictions of numerous counts of grand theft, forgery, uttering, and tampering with records. He alleged further that the convictions resulted because he continued to practice law after being disbarred in New York. The gist of the prayer for relief was that the trial court had unjustly and illegally denied petitioner bail pending appeal. We subsequently dismissed this petition without opinion because petitioner had an adequate legal remedy via application to the court of appeals for bail under App.R. 8(B). See Brown v. Rogers (1995), 71 Ohio St.3d 570, 645 N.E.2d 1241.

On March 20, 1995, petitioner filed the present petition for a writ of habeas corpus, alleging essentially the same facts as before, but now also alleging that the court of appeals had denied his application for bail on December 8, 1994. Petitioner attaches to his petition a copy of the journal entry setting forth the sentencing order of the trial court, but does not attach the order of either the trial court or court of appeals denying bail pending appeal.

Bruce Andrew Brown, pro se.

PER CURIAM.

In State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 635 N.E.2d 26, we stated that habeas corpus is the proper action to challenge the failure to set bail following conviction, overruling Dapice v. Stickrath (1988), 40 Ohio St.3d 298, 533 N.E.2d 339, which had in turn overruled Liberatore v. McKeen (1980), 63 Ohio St.2d 175, 17 O.O.3d 107, 407 N.E.2d 23. In Liberatore, we allowed the writ of habeas corpus and continued an appeal bond. The evidence in that case showed that the court of appeals had denied the request without stating any reasons. We held that "we are constrained to look to what was available to the Court of Appeals to support a denial in view of the requirements of Crim.R. 46(E) and App.R. 8(B)." 63 Ohio St.2d at 175-176, 17 O.O.3d at 108, 407 N.E.2d at 24. Finding no credible evidence to warrant denying bail, we allowed it.

However, R.C. 2725.04(D) states:

"A copy of the commitment or cause of detention of such person shall be exhibited [with the petition], 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."

In Bloss v. Rogers (1992), 65 Ohio St.3d 145, 602 N.E.2d 602, we stated:

"These commitment papers are necessary for a complete understanding of the petition. Without them, the petition is fatally defective. When a petition is presented to a court that does not comply with R.C. 2725.04(D), there is no showing of how the commitment was procured and there is nothing before the court on which to make a determined judgment except, of course, the bare allegations of petitioner...