CHARI, APPELLEE, v. VORE, SHERIFF, APPELLANT.
No. 00-926
Supreme Court of Ohio
April 11, 2001
91 Ohio St.3d 323 | 2001-Ohio-49
Submitted January 30, 2001. APPEAL from the Court of Appeals for Montgomery County, No. 18241.
Per Curiam.
{¶ 1} 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.
{¶ 2} On March 31, 2000, a Montgomery County Grand Jury returned an indictment that superseded the December 3, 1999 indictment and charged Chari with forty felony counts, including the prior nineteen counts as well as four counts alleging criminal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
{¶ 3} 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
{¶ 4} On April 12, despite Chari‘s failure to comply with the verification requirements of
{¶ 5} 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
{¶ 6} 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
{¶ 7} This cause is now before the court upon the sheriff‘s appeal as of right.
{¶ 8} 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.
{¶ 9} In general, persons accused of crimes are bailable by sufficient sureties, and “[e]xcessive bail shall not be required.”1
{¶ 10} 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.
{¶ 11} 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.
{¶ 12} 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.
{¶ 13} 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.
{¶ 14} As the sheriff correctly contends, the court of appeals improperly placed the burden of production on him during the proceedings. Under
{¶ 15} 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
{¶ 16} 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.
{¶ 17} Generally, a lower court error in allocating the burden of proof, including the burden of going forward with evidence, requires a reversal and remand for a new hearing in which the burden is properly allocated. See, e.g., State v. Chase (1978), 55 Ohio St.2d 237, 9 O.O.3d 180, 378 N.E.2d 1064; State v. Doran (1983), 5 Ohio St.3d 187, 193-194, 5 OBR 404, 410, 449 N.E.2d 1295, 1300-1301; Bowling Green v. O‘Neal (1996), 113 Ohio App.3d 880, 883, 682 N.E.2d 709, 711.
{¶ 18} We have, however, plenary authority in extraordinary writ cases to consider them as if they had been originally filed in this court. See State ex rel. Natl. Electrical Contrs. Assn., Ohio Conference v. Ohio Bur. of Emp. Serv. (2000), 88 Ohio St.3d 577, 579, 728 N.E.2d 395, 398 (“The court‘s plenary authority generally refers to our ability to address the merits of a writ case without the necessity of a remand if the court of appeals erred in some regard“); State ex rel. Cleveland Police Patrolmen‘s Assn. v. Cleveland (1999), 84 Ohio St.3d 310, 312, 703 N.E.2d 796, 797. We do so here to avoid the necessity of a remand because the court of appeals should never have allowed the writ, ordered a return, and held a hearing on Chari‘s habeas corpus petition.
{¶ 19}
{¶ 20} The court of appeals erred in allowing the writ and ordering a return.
{¶ 21} First, Chari‘s petition did not satisfy the mandatory requirements of
{¶ 22} Chari‘s habeas corpus petition did not contain any verification; therefore, the court of appeals should have dismissed it. See Russell v. Mitchell (1999), 84 Ohio St.3d 328, 329, 703 N.E.2d 1249, 1249-1250; Evans v. Klaeger (1999), 87 Ohio St.3d 260, 261, 719 N.E.2d 546, 547; Sidle v. Ohio Adult Parole Auth. (2000), 89 Ohio St.3d 520, 733 N.E.2d 1115. In fact, not even his amended petition, which was filed after the writ was allowed and a return ordered, met the
{¶ 23} Second, in order to avoid dismissal, a petitioner must state with particularity the extraordinary circumstances entitling him to habeas corpus relief. State ex rel. Wilcox v. Seidner (1996), 76 Ohio St.3d 412, 414, 667 N.E.2d 1220, 1222. Unsupported conclusions contained in a habeas corpus petition are not considered admitted and are insufficient to withstand dismissal. State ex rel. Carrion v. Ohio Adult Parole Auth. (1998), 80 Ohio St.3d 637, 638, 687 N.E.2d 759, 760.
{¶ 24} Chari‘s petition is replete with unsupported, legal conclusions, i.e., that his bail is unlawful, excessive, and unconstitutional. In his petition, Chari alleged no facts that indicate either an abuse of discretion by the trial court or that appropriate grounds for independent review exist by the court of appeals or this court. See Jenkins v. Billy (1989), 43 Ohio St.3d 84, 85, 538 N.E.2d 1045, 1046, where we denied a writ without ordering a return in a habeas case involving an excessive-bail claim. The common pleas court was authorized to increase the amount of Chari‘s bail, and in making its determination, it could consider the nature and circumstances of the forty felonies charged in the March 31 superseding indictment, including the fact that Chari allegedly committed some of the offenses when he was previously on bail.
{¶ 25} Therefore, we reverse the judgment of the court of appeals and exercise our plenary authority to dismiss the cause.
Judgment reversed and cause dismissed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, COOK and LUNDBERG STRATTON, JJ., concur.
PFEIFER, J., dissents and would affirm the judgment of the court of appeals.
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.