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Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office

BAIL (072)

Also see Appeal and Appellate Review/Appeal bonds.

 

Basics

Financial aspects

Misdemeanor cases

Remedies for excessive bail

Failure to appear on a recognizance bond

Forfeiture issues

 

Eighth Amendment, U.S. Constitution

Article I, Sec. 9, Ohio Constitution

Criminal Rule 46 -- Bail.

Criminal Rule 5(A) -- Procedure upon initial appearance.

Criminal Rule 21(B) -- Bail to be transferred to common pleas court upon bindover.

Criminal Rule 32(A)(1) -- Bail may be continued or altered pending sentence.

Criminal Rule 32.3(A) -- Defendant may be admitted to bail pending probation revocation hearing.

R.C. Chapter 2937 -- Arrest, Citation and Disposition Alternates

Basics

State v. Cash, 193 Ohio App. 3d 224, 2011-Ohio-1404 – A criminal protection order issued as a condition of release cannot be extended past sentencing.

State v. Plunkett, 186 Ohio App. 3d 408, 2009-Ohio-5307 – Defendant received three concurrent sentences on drug charges and was released on appeal bond after serving the first 48 days. When the court of appeals affirmed his conviction that stay automatically ended, but neither the appellate court nor the trial court took any steps to have the defendant remanded to custody. After he began serving a sentence on new charges counsel filed a motion asking that execution of the prior sentences resume. The court erroneously ordered that this happen only after time had been served on the new charges. Once a defendant has commenced serving a sentence, it may not be modified or amended except as authorized by the General Assembly, and courts have not been granted such authority.

State v. Hughbanks, 99 Ohio St. 3d 365, 2003-Ohio-4121, ¶ 35 -- Following conviction any error concerning the issue of pretrial bail is moot. Also see State v. Leonard, 104 Ohio St. 3d 54, 2004-Ohio-6235, ¶39.

State v. Kole, 92 Ohio St. 3d 303, 2001-Ohio-191 -- Bounty hunter was convicted of burglary, abduction, and having a weapon under a disability after forcing his way into a home where an anonymous tip indicated a bond jumper could be found. The court took the case to address the reach of the common law powers of bondsmen set forth in Taylor v. Taintor (1872), 83 U.S. 366, 371-372, particularly as to entry into the homes of third parties. However, R.C. 2713.22, which provides "the bail may arrest * * * at any time or any place," provides an additional statutory defense which was not called to the attention of the trial court. Reversed and remanded for a new trial because the defendant was rendered ineffective assistance of counsel.

In re Gillespie, 150 Ohio App. 3d 502, 2002-Ohio-7025 -- A juvenile court may exercise continuing jurisdiction over a probation violator past his eighteenth birthday. This includes ordering the juvenile held without bail, even though he has been admitted to bail on a pending adult charge.

In re Writ of Habeas Corpus for Hernandez (1998), 126 Ohio App. 3d 584, 588 -- "The purpose of bail is to ensure the appearance of the defendant at all stages of the criminal proceeding...In determining bail the court considers 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 accused's length of residence in the community, and record of convictions, and any record of appearance or non appearance at court proceedings or any flight to avoid prosecution."

Bland v. Holden (170), 21 Ohio St. 2d 238 -- "The court may consider the character and past record of the accused, the seriousness of and the number of crimes for which he is charged and the penalties attached thereto." The more serious the charges, the greater the incentive to abscond.

Davenport v. Tehan (1970), 24 Ohio St. 2d 91 -- "The amount of bail in any given case is basically within the sound discretion of the trial court." A habeas petitioner must demonstrate an abuse of that discretion.

State v. Meyers (1978), 59 Ohio Misc. 124 -- Police policy refusing to release those arrested for OMVI for period of six hours following arrest is contrary to Criminal Rule 46(D). Denial of ability to post bail when the defendant has the ability to do so and his condition poses no threat to the community is a denial of due process.

In re Sperrow (1976), 49 Ohio App. 2d 142 -- Defendant entitled to bail in a capital case after court has overruled prosecutor's nolle request. At this point the proof is no longer evident nor the presumption great.

Atkins v. People of the State of Michigan (6th Cir. 1981), 644 F. 2d 543, 549-550 -- Revocation of bail without reason is a violation of due process.

In re Mason (1996), 116 Ohio App. 3d 451 -- CCW bond revoked after defendant was indicted for two counts of attempted murder. Writ of habeas corpus denied. Dissenting judge says there should have been an evidentiary hearing.

In re K.G. (1997), 89 Ohio Misc. 2d 16, 21 -- "(A) juvenile court may, in its discretion, admit a juvenile to bail pursuant to Section 9, Article I of the Ohio Constitution in an action wherein a request for waiver of jurisdiction has been made, pursuant to R.C. 2151.26 and Juv. R. 30, seeking transfer of the matter to the general division of the court of common pleas for prosecution as an adult."

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Financial aspects

Smith v. Leis, 106 Ohio St. 3d 309, 2005-Ohio-5125 -- Syllabus: Cash-only bail is unconstitutional under Section 9, Article I of the Ohio Constitution and is not authorized by either Crim. R. 46 or R.C. 2937.222. (State ex rel. Jones v. Hendon (1993), 66 Ohio St. 3d 115, 609 N.E. 2d 541, and State ex rel. Baker v. Troutman (1990), 50 Ohio St. 3d 270, 553 N.E. 2d 1053, approved and followed.)"

State v. Galbreath (2000), 138 Ohio App. 3d 559 -- Bail may not be ordered forfeited on a companion charge on which no separate bail was set.

State v. Harshman, 156 Ohio App. 3d 452, 2004-Ohio-1202 -- Bond posted by the defendant's mother could not be put towards restitution and costs, notwithstanding the "Acknowledgment and Agreement" form she signed stating that this might happen. The same applies to the money the defendant posted himself absent a finding he is not indigent.

State ex rel. Jones v. Hendon (1993), 66 Ohio St. 3d 115 -- A judge may not specify that bond be posted as "cash only." At p. 118: Once the amount of bail is set, "and the accused exercises his constitutional right to enlist a surety to post bail on his behalf, that being one of the options set forth in Crim. R. 46(C)(4), the clerk of courts must accept a surety bond to secure the defendant's release...."

State v. Lefever (1993), 91 Ohio App. 3d 301, 309-310 -- When the evidence clearly establishes that money for bail was provided a person other than the defendant, the court shall not apply any of the money to be returned toward the satisfaction of a penalty or fine. Discussion of the history of the case indicates efforts to require that the funds be deposited in the defendant's name.

State v. Polk (1997), 119 Ohio App. 3d 638 -- Court finds no error in application of money appellant herself put up on an appeal bond to fine, costs and restitution. Compare State ex rel. Baker v. Troutman (1990), 50 Ohio St. 3d 270.

State v. McLaughlin (1997), 122 Ohio App. 3d 418 -- (1) Though neither revocation of bond or the entry of a nolle prosequi is a final appealable order, the revocation of bond coupled with a nolle is. (2) Bail may include a "no contact" condition. (3) Court could forfeit the cash portion of the bond without also forfeiting the surety portion.

State, ex rel. Henneke, v. Davis (1986), 25 Ohio St. 3d 23 -- Administrative order establishing bail schedule and eliminating posting of surety bonds is contrary to Criminal Rule 46(D)(3).

State v. Stevens (1987), 30 Ohio St. 3d 25 -- Notice to a surety, pursuant to Crim. R. 46(J), that a bond has been continued may be constructive. A surety is charged with knowledge of the progress of the defendant's case.

State v. Hughes (1986), 27 Ohio St. 3d 19 -- A surety is not exonerated merely by defendant's custody in another state. (Defendant fought extradition, posted bond, and fled again.)

State v. Scherer (1995), 108 Ohio App. 3d 586 -- Kentucky resident was released on surety bond set by an Ohio court, and was told to maintain his residence in Kentucky. The surety obtained an arrest warrant when the defendant failed to appear on an unrelated charge. At that the time the defendant was imprisoned in Kentucky on other charges, and the authorities there would not allow his return to Ohio. Impossibility of performance, as determined under contract law, amounts to good cause for surety not forfeiting bond. Case distinguished from others where the defendant fled the jurisdiction.

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Misdemeanor cases

Criminal Rule 46(D) -- Pretrial release in misdemeanor cases

R.C. 2919.251 -- Considerations in setting bail in certain domestic violence cases; schedule

R.C. 2935.10(D) -- "Any person charged with a misdemeanor or violation of a municipal ordinance may give bail

as provided in sections 2937.22 to 2937.46 of the Revised Code, for his appearance, regardless of whether a warrant, summons, or notice to appear has been issued."

R.C. 2935.15 -- Court may use a schedule of fixed bonds

Abbott v. Columbus (1972), 32 Ohio Misc. 152 -- Headnotes: "(1) The record of the proceedings in the trial court must clearly show an abuse of discretion when fixing bail in order that relief may be granted on a petition to reduce bail. (2) Departure from the practice of fixing relatively small amounts as bail in misdemeanor cases may be justified only where the accused has a record of repeated convictions of serious crimes or there is a likelihood that the accused will fail to appear at trial."

State v. Smith (1984), 14 Ohio App. 3d 14 -- Bond forfeiture was improper when defendant's incarceration in another county prevented appearance.

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Remedies for excessive bail

Chari v. Vore 91 Ohio St. 3d 323, 2001-Ohio-49 -- (1) At. p. 326: "(T)he burden of proof in a case alleging excessive bail is, as in other habeas corpus cases, on the petitioner." (2) At P. 327: The Supreme Court has plenary power to consider an action seeking an extraordinary writ as if it had been filed in that court. Remand upon finding of error is not always necessary. (3) At. p. 328: A habeas action must be dismissed if neither petitioner nor counsel has verified the petition by swearing the truth of the facts contained therein. (4) Superseding indictment alleging additional offenses committed while defendant was released on bail justified increase in the amount of bail.

Smith v. Leis, 165 Ohio App. 3d 581, 2006-Ohio-450 -- After the court of appeals reversed the defendant's conviction based on an incorrect ruling on a motion to suppress evidence the trial court set a "$500,000, no 10%" bond pending the state's effort to take the case to the Supreme Court. Court concludes defendant was entitled to release on recognizance. Opinion provides a primmer on excessive bail habeas actions. Sheriff's appeal dismissed as moot since the defendant had been released and no charges were pending. Smith v. Leis, 111 Ohio St. 3d 493, 2006-Ohio-6113. Related case: State v. Smith, 163 Ohio App. 3d 567, 2005-Ohio-5204.

Blackwood v. McFaul 1999), 134 Ohio App. 3d 138 -- $1,000,000 bond found to be too high for resident alien defendant with no ties to the community who was arrested at the airport for possession of 46 pounds of marijuana. Bail reduced to $750,000 provided defendant surrender his passport and pay for electronic monitoring when he returns to Houston. Also see In re Periandri (2001), 142 Ohio App. 3d 588 (bail reduced from $2,500,000 to $150,000 for attempted aggravated murder indictee).

State, ex rel. Baker, v. Troutman (1990), 50 Ohio St. 3d 270 -- (1) At p. 272: "First we reject respondents' arguments that Baker has no action in habeas corpus. In State v Bevacqua (1946), 147 Ohio St. 20, 67 N.E. 2d 786, we held that habeas corpus is the proper method for securing relief for excessive pretrial bail under Section 9, Article I, Ohio Constitution." Also see In re DeFronzo (1977), 49 Ohio St. 2d 271, 273; Bland v. Holden (1970), 21 Ohio St. 2d 238, 257 N.E. 2d 397; Davenport v. Tehan (1970), 24 Ohio St. 2d 91; In re Gentry (1982), 7 Ohio App. 3d 143. (2) Bail form may not contain a provision conditioning acceptance of funds of their being subject to forfeit to cover fine and costs.

State ex rel. Pirman v. Money (1994), 69 Ohio St. 3d 591 -- (1) Habeas corpus and not mandamus is the proper vehicle for challenging excessive bail or refusal to set bail after a judgment of conviction. (2) A no contact provision included in an appeal bond was not improper.

In re Writ of Habeas Corpus for Hernandez (1998), 126 Ohio App. 3d 584, 588 -- When presented in a habeas corpus action with a challenge to the amount of bail set by the trial court, the Court of Appeals has both appellate and original jurisdiction.

Wolff v. Krieger (1976), 48 Ohio App. 2d 153 -- Habeas lies to free party to a domestic action jailed for contempt based on report and recommendation of a referee which had not been accepted by the court.

State v. Patterson (1996), 110 Ohio App. 3d 264, 271 -- "After conviction, any error concerning the issue of pretrial bail is moot."

Davenport v. Tehan (1970), 24 Ohio St. 2d 91 -- "The amount of bail in any given case is basically within the sound discretion of the trial court." A habeas petitioner must demonstrate an abuse of that discretion. Also see Abbott v. Columbus (1972), 32 Ohio Misc. 152 (clear cut demonstration bail set was not reasonable); Lewis v. Telb (1985), 26 Ohio App. 3d 11 (discussion of task before court reviewing bond previously set); Jenkins v. Billy (1989), 43 Ohio St. 3d 84.

Brown v. Rogers (1995), 72 Ohio St. 3d 339 -- A habeas petition alleging a refusal to set an appeal bond must have attached copies of the entries or orders of the trial or appellate courts denying bail.

Sammons v. Kelly (1994), 68 Ohio St. 3d 280, 282-283 -- "Under Crim. R. 46(D), a judge may set a felony bond for an alleged misdemeanant only if the alleged misdemeanant has not been previously released on his or her own recognizance, pursuant to an unsecured appearance bond, or pursuant to a bond as provided in division (D)(1), (2) or (3)." Judge set a $25,000 bond after the defendant had posted the $1000 specified on the clerk's bond schedule. Under the circumstances, this was excessive bond as a matter of law and a writ of habeas corpus should have issued.

In re Green (1995), 101 Ohio App. 3d 726 -- $500,000 bond excessive for 15-life drug trafficking charge where defendant had substantial community ties, record of appearing in court and was cooperating with authorities. Bond reduced to $250,000. Writ of habeas corpus granted.

State ex rel. Cola v. McFaul (1996), 109 Ohio App. 3d 203 -- $10,000 cash bond set after defendant failed to appear for a pretrial hearing he claimed to have had no notice of. Bond held excessive as courts may not set cash only bonds. Original bond reinstated subject to further consideration by the trial court. Defendant spent three weeks in jail before decision was issued.

State ex rel. Nix v. McFaul (1998), 129 Ohio App. 3d 129 -- Petitioner failed to appear because of miscommunication with his attorney. Increase of bail from $50,000 to $500,000 was excessive. New bail set at $100,000.

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Failure to appear on a recognizance bond

State v. Kemper, 158 Ohio App. 3d 185, 2004-Ohio-4050 -- In a prosecution for failure to appear on a recognizance bond, the attorney-client privilege does not reach the testimony of former counsel concerning notice sent of the missed hearing.

State v. Fuslik, Athens App. No. 04CA28, 2005-Ohio-1056 -- Failure to appear on a recognizance bond conviction was not supported by the evidence. Defendant was released on a cash bond upon posting 10% of the specified amount. There was no recognizance bond set in addition. Majority refuses to construe the unpaid amount as recognizance.

State v. Quisenberry (1994), 69 Ohio St. 3d 556 -- The sentence for failure to appear on a recognizance bond is a definite term ranging between one and five years and not an indefinite term of from one to five years.

State v. Pounds (1993), 85 Ohio App. 3d 207 -- Prosecution for failure to appear on a recognizance bond (R.C. 2937.29) is limited to court appearances. It may not be used to prosecute a defendant for failure to report to a pretrial services agency when doing so has been made a condition of release on bond. The opposite conclusion was reached in State v. Hiatt (1997), 120 Ohio App. 3d 247 where the offense was based on the defendant's failure to surrender to the sheriff to begin serving his sentence. Opinion also rejects constitutional challenges to R.C. 2937.29.

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Forfeiture issues

Toledo v. Floyd, 185 Ohio App. 3d 27, 2009-Ohio-5507 – Failure to give surety 20-day notice of forfeiture hearing was harmless as he attended. Error to order bond forfeited when the defendant appeared at the forfeiture hearing along with surety. Makes no difference that he was arrested instead of brought to court by the surety.

State v. Slider, 184 Ohio App. 3d 68, 2009-Ohio-4179 – (1) Surety appealed from forfeiture judgment. Claim that “revocation” of bond when the defendant failed to appear amounted to a “release” of the surety doesn’t fly. Common practice is to revoke bond, then schedule a forfeiture hearing at a future date, as reflected by the sequence of events here. (2) Remanded for further determination whether the terms of controlling documents made the bondsman personally liable. (3) Trial court could order rescission, but was not required to do so.

Toledo v. Gaston, 188 Ohio App. 3d 241, 2010-Ohio-3217 – Defendant went through two cycles of not showing up for court. After the second time the bond agency paid the amount of the surety then sought remission. The first cycle of bond forfeiture did not end the bond because the agency did not pay at that time. See R.C. 2937.40(A)(3) Nor did the defendant’s release on an “FCO” bond end the agency’s obligation. FCO refers to a Federal court order calculated to reduce overcrowding in the Toledo jail. Opinion states case is certified to be in conflict with a Second District case, but the case was not taken to the Supreme Court.

State v. Duran (2001), 143 Ohio App. 3d 601 -- The amount of forfeited bond to be remitted upon capture of the defendant is a matter of judicial discretion, guided by the following factors: (1) The circumstances surrounding the reappearance of the accused, including timing and whether the reappearance was voluntary. (2) The reasons for the accused's failure to appear. (3) The inconvenience caused to the prosecution by the disappearance. (4) Whether the surety was instrumental in securing the reappearance. (5) Any mitigating circumstances. (6) Whether justice requires the total amount of the bond remain forfeited. Also see State v. American Bail Bond Agency (1998), 129 Ohio App. 3d 708; State v. Jackson, 153 Ohio App. 3d 520, 2003-Ohio-2213.

State ex rel. Denton v. Bedinghaus, 98 Ohio St. 3d 298, 2003-Ohio-861 -- Instead of bringing a declaratory judgment action attacking a juvenile court policy of taking bond money posted by friends and family to cover support arrearages, parties first tried federal court, then an action in mandamus and prohibition. Though the juvenile court changed its policy in the meantime, opinion is a primer for the pitfalls of such litigation.

Xenia v. Diaz, Greene App. No. 2003-CA-25, 2003-Ohio-6894 -- $10,000 cash bond was posted by a friend, but instead of being released the defendant was turned over to immigration authorities. Bond was forfeited when he was not brought back for trial from federal custody. No hearing was required before forfeiture, but remanded for a hearing on remission, where the trial court should be mindful of the defense of impossibility of performance. Also see Xenia v. Diaz, 166 Ohio App. 3d 587, 2006-Ohio-1807 where further error was found after the trial court refused to hear evidence without the bondsman being present.

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