DeFronzo, In re

• Decision Date: 23 March 1977
• Docket Number: No. 76-747,76-747
• Parties: , 3 O.O.3d 408 In re DeFRONZO.
• Court: Ohio Supreme Court

Page 271

49 Ohio St.2d 271

361 N.E.2d 448, 3 O.O.3d 408

In re DeFRONZO.

No. 76-747.

Supreme Court of Ohio.

March 23, 1977.

This is an original action filed by Nicholas R. DeFronzo in the Court of Appeals for Lucas County seeking a writ of habeas corpus for the reduction of bail bond in three criminal cases in which he is a defendant, on the ground that excessive bail was set by the trial court.

The Court of Appeals held a hearing upon the petition, did not reduce the total amount of the bonds, but modified them in two of the cases by permitting a 10 percent cash deposit and by establishing certain conditions to be met by the petitioner, and allowed the writ.

The cause is now before this court upon appeal as a matter of right.

Openlander, Callahan & Connelly, John Callahan, Toledo, and John R. Johanssen, Sylvania, for appellee-petitioner.

Anthony G. Pizza, Pros. Atty., and Robert J. Gilmer, Toledo, for appellant Sheriff of Lucas County.

PER CURIAM.

The judgment of the Court of Appeals is affirmed.

Appellee, a physician, was indicted by the Grand Jury for Lucas County for six alleged violations of R.C. 3719.171, making false prescriptions, and one alleged violation of R.C. 2923.03, aiding and abetting another in the sale of a narcotic drug. Subsequent to his arrest, appellee was arraigned in the Court of Common Pleas and bail was set at $85,000, with the 10 percent cash deposit condition of Crim.R. 46(C)(3) not being provided. Appellee posted the required $85,000 bond.

Appellee was again arrested on charges involving the making of false prescriptions. The grand jury returned two indictments charging him with 13 counts of making false prescriptions, one count of possession of a narcotic drug, one count of carrying a concealed weapon, and one count of prescribing a drug outside the scope of his professional practice. Upon arraignment in the Common Pleas Court, bail on those charges was set at $240,000, without the 10 percent condition being provided, making a total bail bond on all the charges in the Common Pleas Court of $325,000.

The Court of Appeals allowed the writ and did not reduce the amount of any of the bonds. In one case, No. CR 76-5785, it affirmed the $85,000 bond without the ten percent condition, and in the other two cases, Nos. CR 76-6076 and CR 76-6077, after confirming the $240,000 in bonds, the court modified them by allowing a 10 percent cash posting. The court then established certain conditions as part of the bonds, viz: (1) that all real estate owned by petitioner and/or his wife be pledged to secure performance of the bonds; (2) that petitioner not prescribe any narcotic drugs, and (3) that petitioner report personally to the sheriff once a week.

The judgment entry of the Court of Appeals gave no specific reason for permitting the deposit of 10 percent of the $240,000 in bonds in cash, or for imposing the other conditions. The order, however, was proper under the provisions of Crim.R. 46, which establishes the standards for release on bail. The entry states only that 'the petitioner's prayer is well taken to the extent hereinafter ordered.'

The single question which the appellant presents to this court is whether the Court of Appeals, in a hearing in an original action for a writ of habeas corpus challenging the bail set by the trial court, can modify the bail bond without specifically finding that the bail is excessive and that the trial court abused its discretion in setting the bail.

It is well established that habeas corpus is the proper remedy to raise the claim of excessive bail. State v. Bevacqua (1946), 147 Ohio St. 20, 67 N.E.2d 786. See also, Bland v. Holden (1970), 21 Ohio St.2d 238, 257 N.E.2d 397; Davenport v. Tehan (1970), 24 Ohio St.2d 91, 264 N.E.2d 642.

Appellant's appeal seems extremely technical since his only argument is that the Court of Appeals did not specifically find an abuse of discretion by the trial court. It is clear from the judgment that the Court of Appeals did, in fact, find that the bail was excessive and that the trial court abused its discretion even if the Court of Appeals did not so state in the actual words it used in its entry. There is no statute or rule which requires that a Court of Appeals, on its own motion, state conclusions of fact or law where it is hearing a cause as an original action. There is, therefore, no real basis for the argument that the Court of Appeals must use any particular language or issue any particular conclusions of fact or law in its entry, except upon application by a party or in the case of appeals of judgments and final orders. See R.C. 2505.30 and App.R. 12.

The failure of the Court of Appeals, in deciding an original action, to set out its reasons for its decision, or, in this cause, to state its disagreement with the trial court, is not a basis for this court's reversal of the judgment. There is an 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. When these 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. When they are considered as original actions, it is just as reasonable to allow the Court of Appeals to make an independent decision based upon the hearing before it and to exercise its own discretion under Crim.R. 46 in the same manner as would the trial judge.

In this cause, the Court of Appeals held a hearing de novo with regard to the bail set for appellee. It made no reduction in the bonds, and the modifications, by the way of permitting a 10 percent cash deposit on the $240,000 in bonds and establishing certain conditions to be met by the appellee, are sufficiently clear so that this court will not reverse the judgment of the Court of Appeals on the grounds that...