Lewis v. Telb

• Decision Date: 02 July 1985
• Docket Number: No. L-85-217,L-85-217
• Citation: Lewis v. Telb, 26 Ohio App.3d 11, 497 N.E.2d 1376, 26 OBR 179 (Ohio App. 1985)
• Parties: , 26 O.B.R. 179 LEWIS v. TELB, Sheriff.
• Court: Ohio Court of Appeals

Page 11

26 Ohio App.3d 11

497 N.E.2d 1376, 26 O.B.R. 179

LEWIS v. TELB, Sheriff.

No. L-85-217.

Court of Appeals of Ohio, Sixth District, Lucas County.

July 2, 1985.

Syllabus by the Court

An action in habeas corpus is a procedural vehicle for a petitioner to assert her constitutional right to reasonable and non-excessive bail. After holding a hearing and making an independent analysis of the appropriateness of the existing bond, the bond set by the trial court will not be set aside, absent a finding of abuse of discretion.

V. Robert Candiello, Toledo, for petitioner.

Anthony G. Pizza, Pros. Atty. and James D. Turner, Asst. Pros. Atty., for respondent.

RESNICK, Judge.

This cause is before this court on a petition for writ of habeas corpus pursuant to R.C. 2725.01 et seq.

Petitioner, Brenda Lewis, has invoked this proceeding by way of habeas corpus for purposes of contesting the amount of bond which has been set in the Lucas County Court of Common Pleas. Petitioner is presently confined in the Lucas County Jail on two counts of felonious assault with gun specifications and two counts of intimidation. A total cash bond of $40,000 has been set for the foregoing charges. It should be noted that convictions on some of these charges are non-probationable and carry actual incarceration time.

Petitioner is charged with two counts of felonious assault with gun specifications and, therefore, if convicted pursuant to R.C. 2929.11(B)(2), the minimum term, which may be imposed as a term of actual incarceration, shall be three, four, five, six, seven, or eight years, and the maximum term shall be fifteen years. Conviction of the firearm specification pursuant to R.C. 2929.71 requires the court to impose an additional term of actual incarceration of three years to be served consecutively with any other imprisonment imposed. Conviction of intimidation carries a minimum term of two, three, four or five years, and the maximum term of ten years.

Petitioner has exhausted her remedies with respect to bail reduction in the trial court, having filed a motion for reduction of bond and having had said motion denied; petitioner has applied to this court pursuant to R.C. 2725.02, requesting a writ of habeas corpus. The petition, while grossly deficient on its face, substantially complies with the requirements as set forth in R.C. 2725.04; therefore, this court granted the writ pursuant to R.C. 2725.06, and set the matter for a hearing on June 10, 1985.

At the outset a discussion of what type of hearing is required in a proceeding by way of habeas corpus challenging the amount of bond is required. Habeas corpus normally is an original action which requires a hearing de novo in the court where it is filed. However, when the issue is challenge of continued unlawful incarceration in violation of the excessive bail prohibitions of Section 9, Article I of the Ohio Constitution and the Eighth Amendment to the Constitution of the United States, we are faced with a paradox. We seem to deviate from the common rule of holding solely a hearing de novo in the reviewing court. In addition to holding a hearing, courts uniformly hold that the issue of abuse of discretion must be considered prior to modifying the bond. The Supreme Court of Ohio discussed this issue in the case of In re DeFronzo (1977), 49 Ohio St.2d 271 [30 O.O.3d 408], 361 N.E.2d 448, wherein in a per curiam opinion the court stated the following:

" * * * 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." Id. at 273-274, 361 N.E.2d 448.

However, prior to that decision, courts had uniformly held that the main issue is abuse of discretion, tending to treat these matters as appeals, not original actions. The Supreme Court in Davenport v. Tehan (1970), 24 Ohio St.2d 91, 264 N.E.2d 642, specifically stated:

"The amount of bail in any given case is basically within the sound discretion of the trial court. Colavecchio v. McGettrick, Sheriff (1965), 2 Ohio St.2d 290 [31 O.O.2d 562] Coleman v. McGettrick, Sheriff (1965), 2 Ohio St.2d 177 [31 O.O.2d 326] Bland v. Holden (1970), 21 Ohio St.2d 238 [50 O.O.2d 477] .

"There are no facts alleged in the instant case which indicate in any way that the bail is excessive, or that the trial judge has abused his discretion." Id. at 91, 264 N.E.2d 642.

Justice Wright, while a common pleas judge, wrote in Abbott v. Columbus (1972), 32 Ohio Misc. 152 [61 O.O.2d 268], 289 N.E.2d 589:

"It should be noted that before granting relief on petitions of this nature there must be a clear cut demonstration that the bail set by the trial court was not reasonable and that the criteria outlined above was not applied to the particular fact situation before the trial court. This is not a hearing held de novo. It must clearly appear from the record of the proceeding in the trial court that an abuse of discretion was present in the application of the aforementioned criteria." Id. at 154, 289 N.E.2d 589.

The only clear-cut reference to the fact that these matters should in fact be treated as hearings de novo was in the DeFronzo case wherein Judge Day of the Eighth Appellate District, sitting by assignment on the Supreme Court, stated in a concurring opinion that:

" * * * Abuse of discretion by the trial court is never an issue in an original action brought in the Court of Appeals to challenge the legality of a bond set by the trial judge in a criminal case. This was not an appeal. The Court of Appeals was trying the issue de novo. It had to exercise its own pristine judgment with respect to the requisite bond. Any contrary implication read into the court's opinion is misplaced." DeFronzo, supra, at 274-275, 361 N.E.2d 448.

In view of these divergent views we shall treat habeas corpus actions challenging the amount of bond as a hybrid. We recognize that it is an appeal from a decision of the trial court and some weight must be afforded the decision of the trial judge who originally set the bond. In addition, we also recognize that habeas corpus is an original action and as such we must hold a hearing de novo, requiring evidence to be presented to this court pursuant to Crim.R. 46(F) so that we can make our own independent decision as to the requisite bond.

Prior to going into a consideration of Crim.R. 46(F), we deem it advisable for us to consider the proceedings in the trial court with regard to the setting of bond in the case sub judice.

On May 20, 1985, petitioner was indicted on two charges of felonious assault with firearm specifications and on two charges of intimidation. On May 24, 1985, petitioner was summoned before the Lucas County Court of Common Pleas. Although the case had been assigned to Judge Christiansen, he was temporarily out of town on that date; accordingly, Judge Restivo presided at the May 24 hearing. Because petitioner had no counsel at that time, Judge Restivo appointed counsel for petitioner, continued the case until May 30, 1985, and set petitioner's bond at $10,000 on each of the felonious assault charges and set an "O.R." bond on the remaining intimidation charges. Four days later, on May 28, 1985, Judge Christiansen, the judge to whom the case had been assigned, had an opportunity to thoroughly review the indictments and, upon his due consideration, Judge Christiansen reset the petitioner's bond at $10,000, cash only on each of the four counts. At a subsequent arraignment petitioner pled not guilty to the charges, and the cause was set for trial. A subsequent motion to reduce bond was found not well-taken and was denied.

With that background from the trial court, we will proceed to make findings of fact pursuant to Crim.R. 46(F) which provides in pertinent part:

"Conditions of release; basis. In determining which conditions of release will reasonably assure appearance, the judge shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions, and his record of appearance at court proceedings or of flight to avoid prosecution or of failure to appear at court proceedings."

We note that at the hearing in this court petitioner, her attorney, an assistant county prosecutor and a Toledo Police Division detective were present.

We, therefore, find the following:

(A) The petitioner was indicted for two violations of R.C. 2903.11(A)(2), felonious assault, with two specifications under R.C. 2929.71 and 2941.141, additional three years of actual incarceration for offenses involving a firearm, and two violations of R.C. 2921.03, intimidation.

(B) In considering the nature and circumstances of the offenses charged, testimony was received tending to establish that a shotgun was fired striking one young boy in the eye causing the loss of that eye, another minor was struck in the chest area and a third youth had a pellet graze his arm. The evidence before this court tended to establish that there were several persons who witnessed this shooting and that subsequent to the incident some were allegedly threatened with violence by petitioner and her co-defendant if t...