King v. TelbKing v. Telb
Lead Opinion
{¶ 2} Bond was continued at $120,000 on October 12, 2004 and October 25, 2004. On October 26, 2004, petitioner posted a surety bond. Prior tо release, in the late afternoon on October 26, 2004, bond was increased upon the state's ex parte request to $500,000, no ten percent allowed. A bond hearing was requested by petitioner and held on November 5, 2004, during which testimony was taken. Following the hearing, the trial court held that a change of cirсumstances existed to warrant the change in bond amount to $500,000, and that there was "a substantial risk of safety to the victim."
{¶ 3} On January 19, 2005, petitioner filed this case seeking a writ of habeas corpus. In particular, petitioner argues that the increase in bond is excessive and that there was no change in circumstаnces to warrant the increase in bond amount. See Utley v. Kohl (1997),
{¶ 4} Petitioner additionally argues that other factors relied upon by the state to establish a change in circumstance were known to the state prior to October 26, 2004, and could have been raised at the original bond hearing or during either of the twо pretrials wherein the trial court continued bond. For instance, the state asserted that just prior to seeking an increase in bond amount, the state discovered that petitioner's alleged crimes were premeditated in nature. Petitioner asserts that the nature of the attempted murder charge аlways concerned an intentional act. Additionally, the state asserted that the victim's safety would be at risk if petitioner was released because there was evidence that petitioner's brother was charged with intimidation of the victim/witness when petitioner's brother was found laying in wait outside the victim's residence in the early morning hours of September 15, 2004. A police report taken by Sergeant Lou Vasquez, who interviewed petitioner's brother, stated that petitioner's brother went to confront the victim/witness "about the circumstances surrounding the shooting of [the victim] by Anthony King." Petitioner asserts that this fact was also known long bеfore October 26, 2004, but was only raised because petitioner posted bond. Regardless, however, petitioner argues that he cannot be held accountable for the actions of his brother and that his brother also indicated he was at the victim's place of residence to discuss his own issues with the viсtim.
{¶ 5} The principles governing habeas corpus are well established. Pursuant to Section
{¶ 6} According to the version of
{¶ 7} In Ohio, the writ of habeas corpus protects the right to reasonable bail. In re Petition of Gentry (1982),
{¶ 8} In determining the types, amounts, and conditions of bail,
{¶ 9} "(1) The nature and circumstances of the crime charged;
{¶ 10} "(2) The weight of the evidence against the defendant;
{¶ 11} "(3) The confirmation of the defendant's identity;
{¶ 12} "(4) The defendant's family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, record of appearance at court proceedings or of flight to avoid prosecution;
{¶ 13} "(5) Whether the defendant is on probation, a community control sanction, parole, post-release control, or bail."
{¶ 14} The information considered by the court in making its determination regarding bond need not conform to the rules pertaining to the admissibility of evidence in a court of law.
{¶ 15} After weighing the factors in
{¶ 16} As referenced above, however,
{¶ 17} Under the current version of
{¶ 18} "Unless otherwise ordered by the court pursuant to division (E) of this rule, or if application is made by the surety for discharge, the same bond shall continue until the return of a verdict or the acceptance of a guilty plea. * * *"
{¶ 19} We find that the language of
{¶ 20} In a habeas corpus action which challenges the amount of bond, we must review the decision of the trial court under an abuse of discretion standаrd. See Hardy v. McFaul,
{¶ 21} On January 31, 2005, this court held a hearing on petitioner's writ of habeas corpus. The parties stipulated to submission of the transcript from the trial court's November 5, 2004 hearing as evidence for this court to consider in making our determination. Additional arguments and testimony were also heard during this court's hearing. Upon full consideration of the evidence submitted and the arguments made, we find that the trial court did not abuse its discretion in increasing the bond amount from $120,000 to $500,000.
{¶ 22} Pursuant to
{¶ 23} In this case, petitioner is charged with attempted murder, having allegedly shot the victim five times in the chest and baсk. The sole witness to the shooting is also the victim in this matter. The victim was allegedly able to identify petitioner as his assailant insofar as victim has known petitioner for a number of years. According to the state, the shooter drove around the block a couple of times past the victim. Thereafter, petitioner allegedly emerged from a vacant building, walked up to the victim and shot him. Given the allegations in this case, we find the offenses charged in this matter to be quite serious. Also, if believed, we find that the identification of petitioner by the victim, who has known petitioner for years, to be reliable.
{¶ 24} Petitioner estаblished that he has strong family ties with his children, who lived with petitioner, and his parents, with whom he had daily or weekly contact. He has also lived in the Toledo area his entire life. Petitioner, however, had no visible means of employment. His bond reports indicated that he was employed as a carpenter, hоwever, when asked at the November 5, 2004 hearing about the manner in which petitioner supported himself and his children, neither of his parents had any information concerning petitioner's source of income. The location of petitioner's residence was not pinpointed by the witnesses either, insofar as petitioner had recently moved prior to being charged with the present offenses. In addition to the above, we note that petitioner has a prior felony conviction, a number of misdemeanor and traffic convictions, and a number of failures to appear in Toledo Municipal Cоurt. We further note that petitioner was on bail from Toledo Municipal Court on seven pending drug charges at the time he allegedly committed the within offenses.
{¶ 25} Accordingly, under the facts and circumstances in this case, we find that the bail amount of $500,000 is not excessive. We further find that the trial court did not abuse its discretion by increasing the bail amount from $120,000 to $500,000. Pursuant to
{¶ 26} We therefore deny petitioner's request to have this court reduce his bail amount back to $120,000, no ten percent, and/or impose additional conditions of bail, such as house arrest and no contact with the victim. Petitioner's bond therefore remаins at $500,000, no ten percent allowed. Costs of this action to be assessed against petitioner.
Request for reduction of bail is denied.
Handwork, J., Pietrykowski, J., Concur.
Arlene Singer, P.J., dissents.
Dissenting Opinion
{¶ 27} The majority has determined that Utley v. Kohl, 120 Ohio App.3d does not apply to this case. The Utley decision was based on the court's interpretation of
{¶ 28} In exercising this discretion, however, a trial judge must be mindful of the
{¶ 29} From the evidence presented, I believe the bail amount was changed solely because the appellant was able to post the original $120,000 bond. Appellee argues other considerations, albeit in the context of a change in circumstances. We do not know what the trial court considered at the initial point when the original bond was changed. Here, however, there was a bond hearing afterwards before a different judge. At the bond hearing, this trial judge explained the basis of his finding that a change of bond was necessary, i.e. the safety of the victim. This does provide us with a basis for review of changing the original bond. However, we do not know what the trial court considered in setting the amount of the new bond.
{¶ 30} Even if the reviewing court finds no abuse of discretion in changing the bond, the reviewing court must still determine if the new bond amount is excessive. The majority has done this, weighing the considerations for setting bond pursuant to
{¶ 31} After reviewing the factors accordingly set forth, and lacking any sort of guidance from the trial court in this case, I must assume that an increase in bail more than four times the original amount is an abuse of discretion. I find no other considerations which would justify an increase in bail from $120,000 to $500,000. I must conclude that the bond of $500,000 is excessive.