Chari v. Vore

• Decision Date: 11 April 2001
• Docket Number: No. 00-926.,00-926.
• Citation: 91 Ohio St.3d 323,744 NE 2d 763
• Parties: CHARI, APPELLEE, v. VORE, SHERIFF, APPELLANT.
• Court: Ohio Supreme Court

91 Ohio St.3d 323

744 NE 2d 763

CHARI, APPELLEE, v. VORE, SHERIFF, APPELLANT.

No. 00-926.

Supreme Court of Ohio.

Submitted January 30, 2001.

Decided April 11, 2001.

Flanagan, Lieberman, Hoffman & Swaim, Richard Hempfling, Dennis A. Lieberman and Louis I. Hoffman, for appellee.

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for appellant.

Per Curiam.

On December 3, 1999, a Montgomery County Grand Jury returned an indictment charging appellee, Krishan Chari, with nineteen felony counts, including engaging in a pattern of corrupt activity, theft, and forgery. These charges reflect a loss of approximately $6,000,000 to Chari's alleged victims. The trial court ordered Chari released upon his posting of a bail bond of $500,000 secured by a ten percent deposit and his agreement to be placed under the supervision of the court's electronic home-detention program. Chari posted the required bond and was released from jail.

On March 31, 2000, a Montgomery County Grand Jury returned an indictment that superseded the December 3, 1999 indictment and charged Chari with forty felony counts, including the prior nineteen counts as well as four counts alleging criminal conduct by Chari that occurred while Chari had been released on bail after the first indictment. On the same date, the Pretrial Services Department of the Montgomery County Court of Common Pleas recommended that Chari's bond be revoked and that a new bond be set in the amount of $1,000,000 without the ten percent security-deposit provision. The common pleas court adopted this recommendation and ordered Chari to post a bail bond of $1,000,000 and, upon his posting of this bond, to have Chari again placed in the electronic home-detention program.

Instead of posting the required bond, on April 6, 2000, Chari filed a petition in the Court of Appeals for Montgomery County for a writ of habeas corpus to compel his discharge from jail on reasonable bail. The petition was not verified. In his petition, Chari alleged that his imprisonment was "without lawful authority" because he was being held for $1,000,000 bail, "which sum he is unable to meet," and that "[t]his bail, which was fixed by the Montgomery County Common Pleas Court, is excessive, unlawful and in violation of Section 9, Article [I] of the Constitution of Ohio." No specific facts supporting his conclusory allegations of excessiveness, unlawfulness, and unconstitutionality were contained in his petition.

On April 12, despite Chari's failure to comply with the verification requirements of R.C. 2725.04 and his conclusory allegations, the court of appeals allowed the writ and ordered appellee, the Montgomery County Sheriff, to make a return on April 14. The court of appeals also ordered that on that scheduled hearing date, the sheriff "show cause why an order should not be entered granting the relief requested * * * in the Petition For Writ of Habeas Corpus."

On April 14, the sheriff filed a return that included the justification for Chari's incarceration, i.e., a copy of the common pleas court's March 31 $1,000,000 bond order. On that date, at the hearing, the court of appeals asserted that the state had "the burden to go forward * * * at this time." After the state briefly presented legal authority to the contrary, the court of appeals ruled that it would allocate the burden at the end of the hearing. Nevertheless, it advised the state to call the first witness. On this same date, the sheriff filed a motion to dismiss the petition because it was not verified. In response to the sheriff's dismissal motion, Chari filed an amended petition, which was identical to his earlier petition except that underneath one of his attorney's signatures was the notarized statement "Sworn to and subscribed in my presence by Louis I. Hoffman, Attorney for Krishan Chari." The amended petition, however, lacked words of verification that Chari or his attorneys expressly swore to the truth of the facts alleged in the petition. Chari, through counsel, asserted that he was uncertain whether verification was "legally required" and filed the amended petition "to avoid that distraction." On April 17, the court of appeals determined that the $1,000,000 bail bond ordered by the common pleas court was excessive, granted the writ of habeas corpus, and modified the $1,000,000 bond so that it would be subject to the ten percent security-deposit provisions of Crim.R. 46(A)(2). Additionally, reasoning that petitioner's amended petition for writ of habeas corpus was in verified form, the court of appeals denied respondent's motion to dismiss. The court of appeals upheld the amount of the bond and the other conditions imposed on Chari's release. In so holding, the court of appeals noted that its alternative writ had required the sheriff to show cause why the relief that Chari requested should not be granted. The court of appeals then emphasized that the sheriff's reasons for the increase in Chari's bail bond did not justify the increase. The court of appeals also denied the sheriff's motion to dismiss.

This cause is now before the court upon the sheriff's appeal as of right.

The sheriff asserts in his first proposition of law that the court of appeals erred in placing the burden of proof on him to establish that Chari was not entitled to release from prison.

In general, persons accused of crimes are bailable by sufficient sureties, and "[e]xcessive bail shall not be required."¹ Section 9, Article I, Ohio Constitution. Habeas corpus is the proper remedy to raise the claim of excessive bail in pretrial-release cases. See State ex rel. Smirnoff v. Greene (1998), 84 Ohio St.3d 165, 168, 702 N.E.2d 423, 425, and cases cited therein.

In habeas corpus cases, the burden of proof is on the petitioner to establish his right to release. Halleck v. Koloski (1965), 4 Ohio St.2d 76, 77, 33 O.O.2d 441, 441-442, 212 N.E.2d 601, 602; Yarbrough v. Maxwell (1963), 174 Ohio St. 287, 288, 22 O.O.2d 341, 342, 189 N.E.2d 136, 137.

More specifically, in a habeas corpus proceeding, "where the return sets forth a justification for the detention of the petitioner, the burden of proof is on the petitioner to establish his right to release." Id. at 288, 22 O.O.2d at 342, 189 N.E.2d at 137. In satisfying this burden of proof, the petitioner must first introduce evidence to overcome the presumption of regularity that attaches to all court proceedings. Id. at 288, 22 O.O.2d at 342, 189 N.E.2d at 137.

Thus, in habeas corpus actions, "the state makes a prima facie case by showing by what authority it holds the prisoner" and the "burden of proceeding then shifts to the prisoner to introduce facts which would justify the granting of bail." See, e.g., Muller v. Bridges (1966), 280 Ala. 169, 170, 190 So.2d 722, 723

.

In analyzing the sheriff's assertion that the court of appeals erred in placing the burden of proof on him, the term as used in Halleck and Yarbrough encompasses two different aspects of proof: the burden of going forward with evidence (or burden of production) and the burden of persuasion. Xenia v. Wallace (1988), 37 Ohio St.3d 216, 219, 524 N.E.2d 889, 892; State v. Robinson (1976), 47 Ohio St.2d 103, 107, 1 O.O.3d 61, 63, 351 N.E.2d 88, 91. In other words, "[t]he burden of proof is a composite burden usually requiring the party on whom it rests to `go forward' with the evidence (the `burden of production') and to convince the trier of fact by some quantum of evidence (the `burden of persuasion')." Commonwealth v. Walker (1976), 370 Mass. 548, 578, 350 N.E.2d 678, 698, fn. 21.

As the sheriff correctly contends, the court of appeals improperly placed the burden of production on him during the proceedings. Under R.C. 2725.14, the sheriff was required to specify in his return only that he had Chari in his custody and the authority for Chari's imprisonment. The sheriff complied with these requirements by stating in his return that Chari was in the county jail and attaching a copy of the March 31 $1,000,000 bail-bond order that authorized his imprisonment until the bond was posted. In fact, Chari's own petition included this order as well as the superseding indictment under which he was held in custody. Based on applicable precedent, after the sheriff's return, Chari had the burden to go forward and produce evidence to prove that the bail was excessive. Yarbrough.

Chari's assertion that the state has the burden of proof in excessive pretrial bail cases and that the sheriff failed to justify the amount of the trial court's bail order in his return lacks merit. Neither Halleck nor Yarbrough suggests that the burden of proof in habeas corpus cases is dependent upon the particular habeas claim. Other courts have placed the burden on the habeas corpus petitioner to prove that bail is excessive. See, e.g., Kennedy v. Corrigan (1960), 169 Neb. 586, 590-591, 100 N.W.2d 550, 553

; Delaney v. Shobe (1959), 218 Ore. 626, 628, 346 P.2d 126, 127; Ex Parte Parker (Tex.App.2000), 26 S.W.3d 711, 712; Ex Parte Sellers (Tex.Crim.App.1974), 516 S.W.2d 665, 666. Therefore, consistent with Halleck, Yarbrough, and the foregoing cases, the burden of proof in a case alleging excessive bail is, as in other habeas corpus cases, on the petitioner. In addition, neither R.C. 2725.14 nor Yarbrough requires that the sheriff justify the amount of bail in the return; they require only that the return specify the authorization for Chari's pretrial detention. The sheriff complied with these requirements.

Therefore, the court of appeals erroneously compelled the sheriff to introduce evidence first, in contravention of the proper allocation of the burden of proof. Halleck, 4 Ohio St.2d at 77, 33 O.O.2d at 441-442, 212 N.E.2d at 602; Yarbrough, 174 Ohio St. at 288, 22 O.O.2d at 342, 189 N.E.2d at 137. Generally, a lower court error in allocating the burden of proof, including the burden of going forward with evidence,...