State ex rel. Garcia v. Baldwin , 2022 Ohio 4534 ( 2022 )

[Cite as State ex rel. Garcia v. Baldwin, 2022-Ohio-4534.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Chris M. Garcia, :
Petitioner, :
No. 22AP-91
v. :
(REGULAR CALENDAR)
Dallas Baldwin, :
Sheriff of Franklin County,
:
Respondent.
:
D E C I S I O N
Rendered on December 15, 2022
On brief: Dennis C. Belli, for petitioner.
On brief: G. Gary Tyack, Attorney General, and Seth L.
Gilbert, for respondent.
IN HABEAS CORPUS
ON OBJECTIONS TO MAGISTRATE'S DECISION
McGRATH, J.
{¶ 1} Petitioner, Chris M. Garcia, brought this original action requesting a writ of
habeas corpus directing respondent, Dallas Baldwin, Sheriff of Franklin County, to release
him from custody. On March 9, 2022, respondent filed a motion to dismiss the petition.
On March 23, 2022, petitioner filed a motion for partial summary judgment, as well as a
brief in opposition to the motion to dismiss and in support of his motion for partial
summary judgment.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals,
this matter was referred to a magistrate who issued a decision, including findings of fact
and conclusions of law, which is appended hereto. In that decision, the magistrate
No. 22AP-91 2
recommended this court grant respondent's motion to dismiss and deny petitioner's
motion for partial summary judgment.
{¶ 3} Petitioner raises three objections to the magistrate's decision, asserting the
magistrate erred in concluding: (1) that upon a bondsman's surrender of a surety bond, the
conditions of petitioner's release "need not continue" and a trial court is not required to set
a new bond; (2) that, contrary to Crim.R. 46(I), a trial court has discretion to revoke bond
when petitioner violates a condition of release; and (3) that, contrary to State ex rel. Wesley
v. Cuyahoga Cty. Court of Common Pleas, 165 Ohio St.3d 574, 2021-Ohio-3489, petitioner
cannot pursue his due process claim in a habeas corpus proceeding.
{¶ 4} Petitioner's first and second objections are interrelated and will be
considered jointly. Petitioner first contends the magistrate erred in concluding that the
conditions of a defendant's release "need not continue" upon a bondsmen's unilateral
surrender of a surety bond, and that a trial court is not required to set a new bond under
such circumstances. According to petitioner, the magistrate's ruling is based on a
misinterpretation of Crim.R. 46(E). Petitioner further contends the magistrate erred in
concluding the trial court was not required to set new conditions of bail after a "bond
surrender" and had discretion to revoke bond when petitioner violated a condition of
release.
{¶ 5} By way of background, on November 25, 2019, in Franklin C.P. No. 19CR-
5931, Alleghany Casualty Company (through a power of attorney given to Andy Callif Bail
Bonds), posted a $750,000 surety bond, with petitioner signing a personal recognizance of
$10,000. Upon posting the $750,000 surety bond, Andy Callif Bail Bonds became
responsible for ensuring petitioner's appearance at all future court dates (i.e., if petitioner
were to fail to appear at the court's request, the surety bond would be subject to forfeiture,
and the court could then enter a judgment against Andy Callif Bail Bonds for the total
amount of the bond, $750,000). See R.C. 2937.35, 2937.36, and Crim.R. 46(I).
{¶ 6} In general, "[a] surety's preliminary obligation upon a bail bond is to insure
that the defendant appears in court at the calling of the court." State v. Stevens, 8th Dist.
No. 50252 (Feb. 27, 1986). While a surety risks forfeiture when it fails to meet its
obligations to produce a defendant in court, "[t]he surety may, however, be exonerated
from a bail forfeiture as provided by law." Id., citing Crim.R. 46. R.C. 2937.40 provides
one mechanism for a bondsman to discharge its duties and obligations.
No. 22AP-91 3
{¶ 7} In the instant case, Andy Callif Bail Bonds surrendered petitioner's bond
pursuant to R.C. 2937.40(A)(1)(b). On June 1, 2021, a written request for a "bond
surrender" was made with the clerk of courts, and a warrant for petitioner's arrest was
issued. On June 2, 2021, the sheriff took custody of petitioner and placed him in jail. This
action relieved Andy Callif Bail Bonds for any obligations related to petitioner and his
appearance at future court dates.
{¶ 8} Crim.R. 46(E), which instructs on how bail is maintained throughout a
criminal case, states in part that the "conditions of release shall continue until the return of
a verdict or the entry of a guilty plea, or a no-contest plea, and may continue thereafter
pending sentence or disposition of the case on review." Such continuance, however, is not
absolute. Rather, the conditions of release continue "[u]nless modified by the judicial
officer, or if application is made by a surety for discharge from a bond pursuant to R.C.
2937.40." Therefore, when an application is made pursuant to R.C. 2937.40, the conditions
of release will not continue.
{¶ 9} In the present case, because Andy Callif Bail Bonds made an application for
discharge from a bond according to the procedure found in R.C. 2937.40, the $750,000
surety and related bail conditions did not continue pursuant to Crim.R. 46(E). While the
"bond surrender" mechanism ends the continuation of the bail previously posted, it does
not terminate petitioner's potential to obtain a bond. Rather, petitioner's remedy was to
file a request for a bond hearing in order for the judge to consider setting a bond. Under
the facts presented, the surety filed the "bond surrender" on June 1, 2021, and petitioner
was arrested and taken back into custody on June 2, 2021. That same day, petitioner,
through counsel, filed a request for a bond hearing and the trial court set a bond hearing
date of June 10, 2021. At the June 10, 2021 bond hearing, after hearing arguments of
counsel and reviewing the appropriate law, the trial court revoked petitioner's bond and set
the matter for trial.
{¶ 10} Following the June 10, 2021 bond hearing, in which the court revoked
petitioner's bond, petitioner's new counsel made another request for a bond hearing. On
December 14, 2021, the trial court conducted another hearing and made no change to the
bond, i.e., it remained revoked.
{¶ 11} A court may set a new bond after a bond is discharged, although the court is
not required to do so. See, e.g., State v. Stephens, 30 Ohio St.3d 25 (1987). "A trial judge
No. 22AP-91 4
is vested with discretion by Crim.R. 46(E) and (I) to amend the terms and conditions of
bond * * *, including the revocation of bond as provided by law." In re Wesley v. Cuyahoga
Cty. Court of Common Pleas, 8th Dist. No. 109930, 2020-Ohio-4921, ¶ 17, judgment aff'd.
in Wesley, 2021-Ohio-3489, citing State v. Smith, 2d Dist. No. 28265, 2019-Ohio-5015,
¶ 42-43; In re Mason, 116 Ohio App.3d 451 (7th Dist.1996) (trial court is within its
discretion to revoke and not reinstate bond); Fortner v. Sigsworth, 6th Dist. No. L-12-1175,
2012-Ohio-3609 (a trial court has discretion to revoke bond and hold a defendant in
custody pending trial where the defendant violated conditions of bond); State v. Kremer,
12th Dist. No. CA2017-07-115, 2018-Ohio-3339 (trial court did not abuse its discretion by
revoking the defendant's bail and ordering that he be held in custody until trial without a
new bail amount being set).
{¶ 12} In the present case, after the "bond surrender" procedure (pursuant to R.C.
2937.40(A)(1)(b) and Crim.R. 46(E)), the trial court, at petitioner's requests, held two
separate bond hearings. Based on the information the trial court received concerning
petitioner's violation of the conditions of bond, the trial court chose to revoke bond. Under
such circumstances, petitioner had no right to continuation of the bail posted by the surety
once the surety surrendered the bond and, based on the authority cited above, the trial court
was within its discretion to revoke bond. Accordingly, we find the magistrate committed
no error in relation to petitioner's first and second objections, and those objections are
overruled.
{¶ 13} In his third objection, petitioner argues the magistrate's conclusion that he
could not pursue a due process claim in a habeas corpus proceeding is contrary to the
Supreme Court of Ohio's decision in Wesley, 2021-Ohio-3489. While Wesley, 2021-Ohio-
3489 stands for the proposition that "[a] petition for a writ of habeas corpus is the proper
cause of action for a person seeking to challenge the unlawful restraint of his liberty due to
excessive bail or the complete denial of bail," id. at ¶ 11, the Supreme Court did not address
the issue of whether an independent due process claim is available in a habeas corpus
proceeding. On this issue, the Supreme Court has previously held that "due-process claims
are not cognizable in habeas corpus." State ex rel. Barnette v. Hill, ___ Ohio St.3d ___,
2022-Ohio-2469, ¶ 9.
{¶ 14} In State ex rel. Guthrie v. Fender, 168 Ohio St.3d 75, 2022-Ohio-767, ¶ 11,
the Supreme Court held in part:
No. 22AP-91 5
"[T]he revocation of parole implicates constitutional liberty
interests and triggers certain due-process protections." State
ex rel. Womack v. Sloan, 152 Ohio St.3d 32, 2017-Ohio-8708,
* * * ¶ 6, citing Morrissey [v. Brewer], 408 U.S. 471 * * *. But
"[t]he remedy for an alleged Morrissey due-process violation is
a new hearing, not immediate release from confinement."
Scarberry [v. Turner, 139 Ohio St.3d 111, 2014-Ohio-1587]
¶ 13. Habeas corpus generally "is the wrong remedy to
challenge alleged due-process violations at a parole hearing."
Id. at ¶ 14. When a revocation hearing is conducted in violation
of a person's due-process rights, the appropriate remedy
generally is a writ of mandamus to compel a new hearing. State
ex rel. Ellison v. Black, 165 Ohio St.3d 310, 2021-Ohio-3154,
* * * ¶ 12.
{¶ 15} Further, while the Supreme Court has "recognized an exception to this
general rule, ' "in extreme circumstances involving unreasonable delay," ' " id. at ¶ 12,
quoting Ellison v. Black, 165 Ohio St.3d 310, 2021-Ohio-3154, ¶ 13, quoting Scarberry v.
Turner, 139 Ohio St.3d 111, 2014-Ohio-1587, ¶ 14, the magistrate in this case found no basis
for that exception. We find no error with that determination and, accordingly, overrule the
third objection.
{¶ 16} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of petitioner's objections, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. Accordingly, we adopt the
magistrate's decision as our own, including the findings of fact and conclusions of law
contained therein. In accordance with the magistrate's decision, and having overruled
petitioner's objections, this court grants respondent's motion to dismiss petitioner's
complaint for a writ of habeas corpus and denies petitioner's motion for partial summary
judgment.
Respondent's motion to dismiss granted;
petitioner's motion for partial summary judgment denied.
KLATT and DORRIAN, JJ., concur.
______________
[Cite as State ex rel. Garcia v. Baldwin, 2022-Ohio-4534.]
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Chris M. Garcia, :
Petitioner, :
v. : No. 22AP-91
Dallas Baldwin, : (REGULAR CALENDAR)
Sheriff of Franklin County,
:
Respondent.
:
MAGISTRATE'S DECISION
Rendered on April 29, 2022
Dennis C. Belli, for petitioner.
G. Gary Tyack, Attorney General, and Seth L. Gilbert, for
respondent.
IN HABEAS CORPUS
ON MOTIONS
{¶ 17} Petitioner, Chris M. Garcia, has filed this original action requesting that this
court issue a writ of habeas corpus. Respondent Dallas Baldwin, Franklin County Sheriff,
has filed a March 9, 2022, motion to dismiss the petition. Petitioner has filed a March 23,
2022, motion for partial summary judgment.
Findings of Fact:
No. 22AP-91 7
{¶ 18} 1. Petitioner is an inmate incarcerated at Franklin County Correction Center
II, in Columbus, Ohio.
{¶ 19} 2. Respondent is the Franklin County Sheriff.
{¶ 20} 3. In his petition, petitioner alleges that on November 3, 2019, he was
arrested and charged with one count of kidnapping in Franklin M.C. No. 2019 CRA 020416.
On November 5, 2019, petitioner appeared before a Franklin County Municipal Court
judge, and the court set bond in the amount of $250,000 surety subject to certain
conditions.
{¶ 21} 4. In his petition, petitioner alleges that on November 5, 2019, Andy Callif
Bail Bonds and Alleghany Casualty Company posted a $250,000 surety bond with the
municipal court clerk of courts, and petitioner was released from custody.
{¶ 22} 5. In his petition, petitioner alleges that on November 14, 2019, he appeared
before the municipal court for a preliminary hearing, and the municipal court dismissed
the kidnapping complaint. On the same date, petitioner was indicted on three counts of
rape and one count of kidnapping with a firearm specification in Franklin C.P. No. 19CR-
5931. An arrest warrant was issued for petitioner, and he was subsequently arrested and
incarcerated.
{¶ 23} 6. In his petition, petitioner alleges that on November 20, 2019, he appeared
before the common pleas court for arraignment, where he entered not-guilty pleas, and the
magistrate set bond in the amount of $750,000 surety and $10,000 recognizance, subject
to certain conditions.
{¶ 24} 7. In his petition, petitioner alleges that on November 25, 2019, Andy Callif
Bail Bonds and Alleghany Casualty Company posted a $750,000 surety bond with the
common pleas clerk of courts, and petitioner executed a $10,000 recognizance bond.
Petitioner was subsequently released from custody.
{¶ 25} 8. In his petition, petitioner alleges that on March 20, 2020, the prosecutor
filed a motion for reconsideration of petitioner's bond, based on petitioner's failure to
comply with the conditions of his bond, citing a nonspecific concern for the safety of the
victim.
No. 22AP-91 8
{¶ 26} 9. In his petition, petitioner alleges that a hearing on the motion for
reconsideration of his bond was held, and the court ordered "no change" to the conditions
of the bond.
{¶ 27} 10. In his petition, petitioner alleges that on August 7, 2020, he was indicted
on two counts of trafficking in drugs and one count of tampering with evidence, in Franklin
C.P. No. 20CR-3653.
{¶ 28} 11. In his petition, petitioner alleges that on August 21, 2020, he appeared for
arraignment in case No. 20CR-3653 and entered not-guilty pleas. The judge released
petitioner on a $5,000 recognizance bond subject to conditions. The two cases were
eventually consolidated.
{¶ 29} 12. In his petition, petitioner alleges that on June 1, 2021, in case No. 19CR-
5931, Andy Callif Bail Bonds filed a "bond surrender" with the clerk of courts, which
asserted nonspecifically that petitioner had failed to comply with the terms and conditions
of the bond. The judge issued a capias for petitioner's arrest the same day, and petitioner
was returned to custody on June 2, 2021.
{¶ 30} 13. In his petition, petitioner alleges that his counsel filed a motion for bond
hearing, and on June 10, 2021, the court held a hearing on the bail surrender document. At
the hearing, the prosecutor requested that the bond be revoked, asserting only that the
bondsman was no longer willing to stand behind his bond. No representative from the bail
bond company appeared at the hearing. The court filed a criminal disposition sheet
indicating that the bond had been "revoked" due to petitioner's failure to comply with its
terms.
{¶ 31} 14. In his petition, petitioner alleges that on October 26, 2021, his new
counsel filed a motion for bond hearing, and the court conducted a hearing on
December 14, 2021.
{¶ 32} 15. In his petition, petitioner alleges that at the December 14, 2021, bond
hearing, the prosecutor represented that the bail bond company surrendered the surety
bond based upon petitioner's attempts to obtain the phone number of the attorney for the
alleged victim and the company’s concerns for the threats involving those attempts. No
representative from the bail bond company appeared at the hearing. Petitioner's counsel
argued that the court had no affidavit, had no witness to substantiate the allegation, and
No. 22AP-91 9
had no idea where the allegation started or whether it was a rumor. At the conclusion of the
hearing, the court announced it was denying any change in bond. After defense counsel
asked whether the $750,000 bond remained in place or there was no bond, the judge
responded that the court understood the bond was revoked. Petitioner remained
incarcerated.
{¶ 33} 16. On February 9, 2022, petitioner filed the present petition for a writ of
habeas corpus, asserting respondent was unlawfully detaining him pending trial for the
following reasons: (1) Crim.R. 46 allows a court to amend the bail when a defendant
breaches a condition of his bond but does not authorize the court to detain a defendant
without bond for violating a release condition; (2) R.C. 2937.222 governs the procedure for
detaining a defendant without bond when it is alleged he poses a substantial risk of serious
physical harm to any person or the community; (3) any proceeding to detain a defendant
without a bond for a violation of a condition, and/or to deny his motion to be re-released
on bond, must comply with the procedural requirements of R.C. 2937.222; (4) a proceeding
to revoke bond and deny readmission to bond must also comply with the procedural due
process requirements of the Fourteenth Amendment to the United States Constitution; (5)
the prosecutor did not file a motion to detain petitioner without bond pursuant to R.C.
2937.222(A), and the court did not invoke the provisions of the statute on its own motion;
(6) the June 10, 2021, bond surrender hearing did not comply with the procedural
requirements of the Fourteenth Amendment or R.C. 2937.222; and (7) the December 14,
2021, hearing on petitioner's second motion for bond did not cure the procedural
deficiencies, as the prosecutor's vague assertion that petitioner asked about the address of
the alleged victim's attorney did not implicate or prove a violation of a condition of bond.
{¶ 34} 17. On March 9, 2022, respondent filed a motion to dismiss the petition.
{¶ 35} 18. On March 23, 2022, petitioner filed a motion for partial summary
judgment.
Conclusions of Law:
{¶ 36} The magistrate recommends that this court grant respondent's motion to
dismiss this action and deny petitioner's motion for partial summary judgment.
{¶ 37} A writ of habeas corpus is an extraordinary remedy that is appropriate only
when the petitioner is entitled to immediate release from confinement. State ex rel. Jackson
No. 22AP-91 10
v. McFaul, 73 Ohio St.3d 185, 188 (1995). In order to be entitled to a writ of habeas corpus,
petitioner must show that he is being unlawfully restrained of his liberty under R.C. 2725.01
and that he is entitled to immediate release from his imprisonment. State ex rel. Cannon v.
Mohr, 155 Ohio St.3d 213, 2018-Ohio-4184, ¶ 10. A writ of habeas corpus is available only
when there is no adequate remedy in the ordinary course of the law. Steele v. Harris, 161
Ohio St.3d 407, 2020-Ohio-5480,¶ 13.
{¶ 38} A motion to dismiss pursuant to Civ.R. 12(B)(6) tests the sufficiency of the
complaint. "In order for a court to dismiss a case pursuant to Civ.R. 12(B)(6) 'it must appear
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him
to recovery.' " T & M Machines, LLC v. Yost, 10th Dist. No. 19AP-124, 2020-Ohio-551, ¶ 10,
quoting O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975),
syllabus. In construing a complaint upon a Civ.R. 12(B)(6) motion, a court must presume
that all factual allegations in the complaint are true and make all reasonable inferences in
the plaintiff's favor. LeRoy v. Allen, Yurasek & Merklin, 114 Ohio St.3d 323, 2007-Ohio-
3608, ¶ 14. In applying the foregoing standard, a court can consider the basic allegations in
the petition itself and any materials attached to the petition. State ex rel. Crabtree v.
Franklin Cty. Bd. of Health, 77 Ohio St.3d 247, 249, fn. 1 (1997).
{¶ 39} In reviewing a motion for summary judgment, a court must consider
whether: (1) there is a genuine issue of material fact to be litigated; (2) viewing the evidence
in a light most favorable to the non-moving party, reasonable minds can come to but one
conclusion; and (3) the moving party is entitled to judgment as a matter of law. Civ.R.
56(B); Wing v. Anchor Media, Ltd. of Texas., 59 Ohio St.3d 108 (1991).
{¶ 40} R.C. 2937.40 provides, in pertinent part:
(A) Bail of any type that is deposited under sections 2937.22
to 2937.45 of the Revised Code or Criminal Rule 46 by a
person other than the accused shall be discharged and
released, and sureties on recognizances shall be released, in
any of the following ways:
(1) When a surety on a recognizance or the depositor of cash
or securities as bail for an accused desires to surrender the
accused before the appearance date, the surety is discharged
from further responsibility or the deposit is redeemed in
either of the following ways:
No. 22AP-91 11
***
(b) When, on the written request of the surety or depositor,
the clerk of the court to which recognizance is returnable or in
which deposit is made issues to the sheriff a warrant for the
arrest of the accused and the sheriff indicates on the return
that he holds the accused in his jail.
Crim.R. 46 provides:
(E) Continuation of bail.
When a judicial officer, either on motion of a party or on the
court's own motion, determines that the considerations set
forth in subsections (B) and (C) require a modification of the
conditions of release, the judicial officer may order additional
or different types, amounts or conditions of bail, or may
eliminate or lessen conditions of bail determined to be no
longer necessary. Unless a modification is agreed to by the
parties, the court shall hold a hearing on the modification of
bond as promptly as possible. Unless modified by the judicial
officer, or if application is made by a surety for discharge from
a bond pursuant to R.C. 2937.40, conditions of release shall
continue until the return of a verdict or the entry of a guilty
plea, or a no-contest plea, and may continue thereafter
pending sentence or disposition of the case on review.
***
(I) Failure to appear; breach of conditions.
Any person who fails to appear before any court as required is
subject to the punishment provided by the law, and any bond
given for the person's release may be forfeited. If there is a
breach of condition of release, the court may amend the bail.
{¶ 41} R.C. 2937.222
(A) On the motion of the prosecuting attorney or on the
judge’s own motion, the judge shall hold a hearing to
determine whether an accused person * * * shall be denied
bail. * * *
At the hearing, the accused has the right to be represented by
counsel and, if the accused is indigent, to have counsel
appointed. The judge shall afford the accused an opportunity
No. 22AP-91 12
to testify, to present witnesses and other information, and to
cross-examine witnesses who appear at the hearing. * * *
[T]he state has the burden of proving that the proof is evident
or the presumption great that the accused committed the
offense with which the accused is charged, of proving that the
accused poses a substantial risk of serious physical harm to
any person or to the community, and of proving that no
release conditions will reasonably assure the safety of that
person and the community.
{¶ 42} In the present case, respondent argues in his motion to dismiss that
petitioner's complaint should be dismissed on two alternative grounds. As for the initial
ground, respondent asserts that, after Andy Callif Bail Bonds surrendered the bond on
June 1, 2021, pursuant to the surrender procedure in R.C. 2937.40(A)(1)(b) and
Crim.R. 46(E), petitioner had no right to continuation of bail, and the court was not
required to set a new bond. Alternatively, respondent contends that, even if the trial court
"revoked" the bond instead of the bond being "surrendered" by Andy Callif Bail Bonds, the
record also supported revoking petitioner's bond based on the respondent's failure to
comply with the terms and conditions of bond. Respondent indicates that, at the
December 14, 2021, bond hearing, the prosecutor explained that petitioner had made
threats to the attorney representing the victim, which was a violation of the condition of
bail prohibiting petitioner from having direct or indirect contact with the victim.
Respondent also argues that, contrary to petitioner's complaint, petitioner was not actually
denied bail, so the procedures set forth in R.C. 2937.222 for declining bail are not
applicable. Finally, respondent asserts that a habeas petition is not the appropriate
procedural vehicle to raise an independent due process claim, and, even if it were, Andy
Callif Bail Bonds could surrender the bond at any time and for any reason.
{¶ 43} After review of respondent's first ground for dismissal and the pertinent law
set forth above, the magistrate agrees with respondent insofar as, once Andy Callif Bail
Bonds surrendered the bond pursuant to R.C. 2937.40(A)(1)(b), the conditions of bail were
not required to continue. As quoted above, Crim.R. 46(E) indicates, in pertinent part,
"Unless * * * application is made by a surety for discharge from a bond pursuant to R.C.
2937.40, conditions of release shall continue." Stated otherwise, if a surety is applied for
discharge from a bond pursuant to R.C. 2937.40, the conditions of release need not
continue.
No. 22AP-91 13
{¶ 44} The magistrate also agrees with respondent's subsequent proposition that the
court was not then required to set a new bond. A court may set a new bond after a bond is
discharged. See, e.g., State v. Stevens, 30 Ohio St.3d 25 (1987) (surety filed a motion with
the trial court to discharge it from further obligation and liability on the bond, the motion
was granted by the court, and the court then set a new bond). In the present case, although
Andy Callif Bail Bonds sought discharge from the bond via the filing of a "bond surrender"
with the clerk of courts, the trial court specifically found that it had revoked the bond based
on petitioner's violation of the conditions of bond. In Wesley v. Cuyahoga Cty. Court of
Common Pleas, 8th Dist. No. 109930, 2020-Ohio-4921, judgment affirmed in State ex rel.
Wesley v. Cuyahoga Cty. Court of Common Pleas, 165 Ohio St.3d 574, 2021-Ohio-3489,
the appellate court found that "[a] trial judge is vested with discretion by Crim.R. 46(E) and
(I) to amend the terms and conditions of bond * * *, including the revocation of bond as
provided by law." Id. at ¶ 17, citing State v. Smith, 2d Dist. No. 28265, 2019-Ohio-5015, ¶
42-43 (addressing the identical language in former Crim.R. 46(I), and the language in
former Crim.R. 46(H), which is now included in Crim.R. 46(E)). The court in Wesley then
cited In re Mason, 116 Ohio App.3d 451 (7th Dist.1996), a habeas corpus action in which
the court found that a trial court is within its discretion to revoke and not reinstate bond.
See In re Mason at 454 (finding that, where an accused is free on bail, and the court
determines that the accused has violated conditions of bail, a court may revoke bond and
detain the person attempting to thwart the proper functioning of the criminal justice system
pursuant to its inherent powers; it would almost seem that the court could be abusing its
discretion if it did not revoke the bond under such serious circumstances).
{¶ 45} The court in Wesley also cited Fortner v. Sigsworth, 6th Dist. No. L-12-1175,
2012-Ohio-3609, in which the appellate court found that a trial court has discretion to
revoke bond and hold a defendant in custody pending trial where the defendant violated
conditions of bond. The court in Wesley noted that relief in habeas corpus is not assured in
cases where a petitioner is claiming entitlement to reasonable bail and the opportunity to
post bond, citing the holding in Fortner that, " 'having established that the trial court had
both jurisdiction and authority to find that appellant violated the conditions of his bond
and to revoke the bond, we find that petitioner is not entitled to a writ of habeas corpus.' "
Wesley at fn. 2, quoting Fortner at ¶ 11.
No. 22AP-91 14
{¶ 46} The court in Wesley also cited State v. Kremer, 12th Dist. No. CA2017-07-
115, 2018-Ohio-3339. In Kremer, the defendant was indicted and released on electronic
monitoring pending trial, but the day before he was scheduled to appear for a negotiated
plea hearing, he removed his monitoring device and was found selling drugs, which led to
new charges. The court in Kremer concluded that, based on these facts, the trial court did
not abuse its discretion by revoking the defendant's bail and ordering that he be held in
custody until trial without a new bail amount being set.
{¶ 47} Based on the above cases, the magistrate agrees with respondent that, after
Andy Callif Bail Bonds surrendered the bond on June 1, 2021, pursuant to the surrender
procedure in R.C. 2937.40(A)(1)(b) and Crim.R. 46(E), and the trial court "revoked" the
bond based on petitioner's violation of the conditions of bond, the petitioner had no right
to continuation of bail, and the court was not required to set a new bond.
{¶ 48} However, this conclusion does not end the present inquiry. In his habeas
corpus petition, petitioner raises grounds for relief pertaining to the application of
R.C. 2937.222 and due process violations. These issues were the basis of petitioner's motion
for partial summary judgment, as well as respondent's alternative ground for dismissal. In
his motion for partial summary judgment, petitioner argues that he is entitled to judgment
as a matter of law on his claim that his detention in the county jail without bond is unlawful.
Petitioner first asserts that the trial court lacked authority to revoke his bond and/or deny
his motions for bond. He points to Crim.R. 46(I) to argue that the court may only "amend"
the bail based upon a breach of condition of bail, not revoke bond. Petitioner also contends
that R.C. 2937.222 governs the procedure for detaining a defendant without bond and
requires several procedural safeguards, and the court did not follow the statute or even
invoke the provisions of the statute in denying bond. Respondent also asserts that, even if
the trial court had authority to deny his motions for bond, the court violated his due process
rights when it summarily did so.
{¶ 49} Petitioner is not entitled to partial summary judgment. With regard to his
argument that Crim.R. 46(I) permits a court to only "amend" bail based on a breach of
condition of bail, not revoke bond, as already explained above, the court in Wesley found
that "[a] trial judge is vested with discretion by Crim.R. 46(E) and (I) to amend the terms
and conditions of bond following violations of such conditions, including the revocation of
No. 22AP-91 15
bond as provided by law." Id. at ¶ 17, citing Smith at ¶ 42-43 (addressing the former but
identical version of Crim.R. 46(I)). Therefore, a court has discretion pursuant to Crim.R.
46(I) to revoke bond when a defendant violates a condition of bail.
{¶ 50} Still, petitioner insists that even if the court could revoke the bond,
R.C. 2937.222 governs the procedure for detaining a defendant without bond and requires
several procedural safeguards, and the court failed to follow the statute or even invoke the
provisions of the statute in failing to set a new bond. The record is unclear whether the court
believed it was revoking petitioner's bond pursuant to R.C. 2937.222 or its inherent power
to deny bond, as respondent suggests. There is little Ohio authority discussing the inherent
authority of the trial court to revoke a bond versus the revocation of bond pursuant to R.C.
2937.222. See, e.g., State v. Henderson, 10th Dist. No. 16AP-870, 2017-Ohio-2678 (in
direct appeal of bond revocation without setting new bond, the State of Ohio argued that
R.C. 2937.222 does not apply, asserting the trial court revoked the defendant's bond,
pursuant to its inherent powers, rather than under the statute, but the court never reached
the issue). Nevertheless, it is noteworthy that in the above cited cases in which the appellate
courts found that the trial courts had the authority to revoke bond and not set a new bond,
none of the cases cited R.C. 2937.222 or apparently conducted an analysis based on that
statute, lending support to respondent's contention that the court can deny bond based on
its inherent authority rather than under R.C. 2937.222.
{¶ 51} Notwithstanding, even if the trial court was required to follow R.C. 2937.222,
an adequate remedy exists by way of appeal. In McCarry v. Neil, 1st Dist. No. C-150400,
2015-Ohio-3155, ¶ 3-4, the trial court revoked the petitioner's bond and ordered him to be
held without bond during the pendency of the case after a detective notified the court that
the victim in the case had received threats to prevent the victim from testifying. The
petitioner filed a writ of habeas corpus requesting reinstatement of pretrial bond. The court
of appeals found that R.C. 2937.222 governs the denial of bail for certain felony offenses
and provides a specific set of criteria that a judge must consider before denying bail to an
offender; however, because R.C. 2937.222(D)(1) provides that a trial court's denial of bond
is a final, appealable order, petitioner could not demonstrate that no adequate remedy at
law existed and could not challenge the trial court's decision through a habeas corpus action
in a court of appeals. Id. at ¶ 4, citing Coe v. McFaul, 8th Dist. No. 89749, 2007-Ohio-2104,
No. 22AP-91 16
¶ 5 (a writ of habeas corpus is not appropriate because there exists an adequate remedy at
law through an appeal, pursuant to R.C. 2937.222(D)(1), of the trial court's final, appealable
judgment, which revoked the original bond set in the amount of $2,500 and did not
reinstate the original bond or set a new bond). Notably, in neither McCarry nor Coe, did
the facts indicate that the trial court invoked R.C. 2937.222 or engaged in any findings
pursuant to R.C. 2937.222 in revoking bond and ordering the defendant held pending trial.
Instead, the appellate courts apparently found that the failure to follow R.C. 2937.222
resulted in a final, appealable order pursuant to R.C. 2937.222(D)(1).
{¶ 52} The magistrate notes the decision in State v. Hawkins, 8th Dist. No. 109097,
2019-Ohio-5132. In Hawkins, the trial court granted the state's request to revoke the
defendant's bond, and denied him any pretrial bail. On appeal, a majority of the panel
remanded the matter to the trial court for the limited purpose of issuing findings pursuant
to R.C. 2937.222(B), and the trial court subsequently issued a journal entry complying with
the limited remand and issuing findings of fact under R.C. 2937.222. Although the
dissenting opinion criticized the majority's procedure of issuing a mid-appeal remand for
the trial court to make findings that it was statutorily required to make prior to revoking
bond and denying pretrial bail pursuant to R.C. 2937.222, the import of Hawkins, as
pertinent to the present case, is that the defendant's remedy for the trial court's failure to
invoke or make findings pursuant to R.C. 2937.222 was an appeal and not an original action
in habeas corpus. Therefore, here, even if the trial court was required to invoke and comply
with R.C. 2937.222 when it refused to set a new bail after revoking the bond, petitioner had
an adequate remedy at law by way of direct appeal.
{¶ 53} Petitioner asserts that, even if the court had inherent authority to revoke his
bond or deny his motions for bond, as respondent suggests, the court violated his due
process rights when it summarily did so. However, even if it could be said that the trial court
was exercising its inherent authority to revoke the bond and deny a new bond, Fourteenth
Amendment due-process violations are generally not cognizable in habeas corpus. Jackson
v. Johnson, 135 Ohio St.3d 364, 2013-Ohio-999, ¶ 3. The Supreme Court of Ohio has held
that habeas corpus will lie as a remedy for a due-process violation only in " 'extreme
circumstances involving unreasonable delay.' " State ex rel. Ellison v. Black, 165 Ohio St.3d
No. 22AP-91 17
310, 2021-Ohio-3154, ¶ 1, quoting Scarberry v. Turner, 139 Ohio St.3d 111, 2014-Ohio-
1587, ¶ 14. Therefore, petitioner has not stated a valid ground for relief, in this respect.
{¶ 54} Therefore, the magistrate finds that, presuming all factual allegations in the
complaint are true and making all reasonable inferences in petitioner's favor, it appears
beyond doubt from the complaint that petitioner can prove no set of facts entitling him to
recovery. Furthermore, the magistrate finds there remain no genuine issues of material fact
to be litigated, and that petitioner is not entitled to judgment as a matter of law on the issues
raised in his motion. Petitioner cannot show he is being unlawfully restrained of his liberty
and entitled to immediate release from confinement based on Crim.R. 46, R.C. 2937.222,
or the inherent authority of the court.
{¶ 55} Accordingly, it is the magistrate's decision that this court should grant
respondent's motion to dismiss petitioner's complaint for writ of habeas corpus and deny
petitioner's motion for partial summary judgment.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii),
unless the party timely and specifically objects to that factual
finding or legal conclusion as required by Civ.R. 53(D)(3)(b).