Carman v. Pinkney
| Decision Date | 11 April 2018 |
| Docket Number | No. 106830,106830 |
| Citation | 2018 Ohio 1415 |
| Parties | RONALD CARMAN PETITIONER v. CLIFFORD PINKNEY, SHERIFF RESPONDENT |
| Court | Ohio Court of Appeals |
Writ of Habeas Corpus
Ronald Carman, pro se
Cuyahoga County Jail
P.O. Box 5600
Cleveland, Ohio 44101
Michael C. O'Malley
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
{¶1} Petitioner, Ronald Carman, seeks a writ of habeas corpus against respondent Clifford Pinkney, Cuyahoga County Sheriff. Carman argues that his bail in the amount of $500,000 is excessive, and that his speedy-trial rights have been violated. Respondent sheriff has filed a motion for summary judgment, which we grant.
{¶2} In Cuyahoga C.P. No. CR-16-604846-A, Carman was charged with six counts of rape, two counts of kidnapping, and one count of gross sexual imposition. Most of the charges carried sexually violent predator and repeat violent offender specifications. The kidnapping counts also included sexual motivation specifications. On April 4, 2016, Carman was declared indigent, appointed counsel, and bail was set in the amount of $500,000. The case is still pending at this time.
{¶3} Carman filed the instant petition on February 16, 2018. A motion for summary judgment was filed by respondent on February 28, 2018, and Carman's brief in opposition was filed March 7, 2018.
{¶4} Carman's petition is fatally defective on a number of grounds.
{¶5} First, Civ.R. 10(A) requires that the caption of the complaint include the name and address of each party. Carman's petition only includes the name of eachparty. A failure to comply with Civ.R. 10 is grounds for dismissal. State ex rel. Sherrills v. State, 91 Ohio St.3d 133, 133, 742 N.E.2d 651 (2001).
{¶6} Second, R.C. 2725.04(D) requires a habeas corpus petitioner to include a copy of the commitment papers or the cause of detention. Wilson v. Kochevar, 8th Dist. Cuyahoga No. 84516, 2004-Ohio-2984. Carman did not attach any such document to his petition. Such a defect renders the petition susceptible to dismissal. Sidle v. Ohio Adult Parole Auth., 89 Ohio St.3d 520, 733 N.E.2d (2000). In fact, the Ohio Supreme Court has indicated such a defect is fatal. Al'Shahid v. Cook, 144 Ohio St.3d 15, 2015-Ohio-2079, 40 N.E.3d 1073, ___ 8.
{¶7} Third, Carman has also failed to comply with R.C. 2969.25(A), which requires an affidavit that describes each civil action or appeal filed by the petitioner within the previous five years in any state or federal court. His failure to comply with R.C. 2969.25(A) warrants dismissal of the petition. State ex rel. Zanders v. Ohio Parole Bd., 82 Ohio St.3d 421, 696 N.E.2d 594 (1998).
{¶8} Fourth, he did not comply with R.C. 2969.25(C). For inmates seeking a writ who wish to waive the filing fee, an affidavit of indigency must be filed along with a certified statement from the prison cashier setting forth the balance in the petitioner's private account for each of the preceding six months. Carman submitted no such certified statement. This also is sufficient reason to deny the petition, deny indigency status, and assess costs against him. State ex rel. Pamer v. Collier, 108 Ohio St.3d 492, 2006-Ohio-1507, 844 N.E.2d 842.
{¶9} The Supreme Court of Ohio has recently reaffirmed that any one of these defects should result in the dismissal of a complaint for a writ of habeas corpus. Greene v. Turner, 151 Ohio St.3d 513, 2017-Ohio-8305, ___ 5, citing Al'Shahid, 144 Ohio St.3d 15, 2015-Ohio-2079, 40 N.E.3d 1073, at ¶ 8, 10; and Kneuss v. Sloan, 146 Ohio St.3d 248, 2016-Ohio-3310, 54 N.E.3d 1242, ¶ 11.
{¶10} Accordingly, the many pleading deficiencies warrant dismissal of the complaint.
{¶11} Assuming that these pleading deficiencies did not exist, Carman has failed to demonstrate that his bail is excessive.
{¶12} "It is well established that habeas corpus is the proper remedy to raise the claim of excessive bail." In re De Fronzo, 49 Ohio St.2d 271, 273, 361 N.E.2d 448 (1977), citing State v. Bevacqua, 147 Ohio St. 20, 67 N.E.2d 786 (1946); Bland v. Holden, 21 Ohio St.2d 238, 257 N.E.2d 397 (1970); Davenport v. Tehan, 24 Ohio St.2d 91, 264 N.E.2d 642 (1970). However, the habeas petitioner has the burden to adduce sufficient proof to establish a right to release. Chari v. Vore, 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001), citing Halleck v. Koloski, 4 Ohio St.2d 76, 77, 212 N.E.2d 601 (1965); Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963).
{¶13} For summary judgment, the movant has the burden of showing (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds can come to but one conclusion, and with the evidenceconstrued in favor of the nonmoving party, that conclusion is adverse to that party. Civ.R. 56(C); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1987). But once the moving party establishes entitlement to judgment as a matter of law, the nonmoving party has a reciprocal burden to adduce sufficient evidence and argument to establish the existence of a question of material fact. Celotex at 324.
{¶14} Article I, Section 9 of the Ohio Constitution provides that, with certain exceptions, "[a]ll persons shall be bailable by sufficient sureties." Crim.R. 46 provides guidance for courts in setting the type and amount of bail. Under this rubric, courts are directed to consider the crimes charged, the weight of the evidence against the defendant, the defendant's resources, family and community ties, criminal record, record of prior appearances, and whether the defendant is on probation, community control or other program of supervision. Crim.R. 46(C).
{¶15} Carman asserts that any amount of bail is excessive because he has no resources. He essentially asks this court to order that he be released on his own recognizance. In arguing that his bail is excessive, Carman does not offer any properly submitted evidence that the trial court abused its discretion in setting bail. Carman did not attach to his brief in opposition any properly authenticated documents, properly sworn affidavits, or other evidence that can be considered in summary judgment. See Civ.R. 56(C). Likewise, he did not attach anything supporting his petition that could be considered sworn or verified. The petition was accompanied by an "affidavit," but it was not notarized or sworn. Unsworn statements made in the complaint and brief inopposition do not constitute evidence of specific facts demonstrating that a material question of fact exists as required by Civ.R. 56(E). State ex rel. Spencer v. E. Liverpool Planning Comm., 80 Ohio St.3d 297, 301, 685 N.E.2d 1251 (1997).
{¶16} Respondent sheriff, on the other hand, has pointed out various procedural defects that render the petition fatally defective, as well as arguments advanced by the state at the bail hearing that support the trial court's decision. Once the respondent presented evidence that he is entitled to judgment as a matter of law, Carman was required to show that a genuine issue of material fact existed. Celotex, 477 U.S. at 324, 106 S.Ct. 2548, 91 L.Ed.2d 265. Carman has failed to do so.
{¶17} To the extent that Carman argues that his speedy-trial rights have been violated, such an argument is not cognizable in habeas. State ex rel. Brantley v. Ghee, 80 Ohio St.3d 287, 685 N.E.2d 1243 (1997); Prather v. Brigano, 86 Ohio St.3d 609, 716 N.E.2d 197 (1999); Washington v. Tyson-Parker, 101 Ohio St.3d 131, 2004-Ohio-298, 802 N.E.2d 655; and In re Signer, 45 Ohio St.2d 130, 341 N.E.2d 849 (1976). An appeal provides an adequate remedy at law, precluding habeas relief. Moore v. Kochevar, 8th Dist. Cuyahoga No. 84588, 2004-Ohio-2687.
{¶18} Carman argues in his brief in opposition that he raised this argument to demonstrate that he has a strong likelihood of prevailing. Again, Carman offered no admissible evidence to support this claim.
{¶19} For all the above reasons, we grant respondent's motion for summary judgment. Petitioner to pay costs. This court directs the clerk of courts to serve all parties notice of this judgment and its date of entry upon the journal as required by Civ.R. 58(B).
{¶20} Petition denied.
/s/_________
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