[Cite as Herbert v. Abdalla, 2017-Ohio-4121.]
STATE OF OHIO, JEFFERSON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
HAKEEM C. HERBERT, )
)
PETITIONER, )
)
V. ) CASE NO. 17 JE 0008
)
FRED ABDALLA, SHERIFF FOR ) OPINION
JEFFERSON COUNTY, OHIO, ) AND
) JUDGMENT ENTRY
RESPONDENT. )
CHARACTER OF PROCEEDINGS: Petition for Writ of Habeas Corpus
JUDGMENT: Dismissed
APPEARANCES:
For Petitioner Attorney R. Aaron Miller
329 North Fourth Street
Steubenville, Ohio 43952
For Respondent Frank J. Bruzzese
Assistant Prosecuting Attorney
Jefferson County Justice Center
16001 S.R. 7
Steubenville, Ohio 43952
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: June 2, 2017
[Cite as Herbert v. Abdalla, 2017-Ohio-4121.]
PER CURIAM.
{¶1} Petitioner Hakeem C. Herbert has filed an application for a writ of
habeas corpus asserting that his $500,000 bail is unreasonable and excessive.
Respondent has filed an answer seeking to have the writ dismissed and denied,
arguing that the bail is reasonable and not excessive.
{¶2} The docket in the underlying criminal case reflects that Petitioner was
indicted for fifth-degree-felony heroin trafficking in violation of R.C.
2925.03(A)(1)(C)(6)(a), on October 4, 2016. Petitioner retained counsel, pleaded not
guilty, and remained free on a personal recognizance bond.
{¶3} The trial court set a pretrial for December 12, 2016. Petitioner initially
failed to appear for the hearing. The court issued a warrant, Petitioner appeared
later that day, and the warrant was recalled. At Petitioner’s request, the court
rescheduled the trial date from January 12, 2017, to February 2, 2017.
{¶4} At the request of the parties, the court scheduled a pretrial for January
27, 2017. Near the conclusion of that hearing, the parties advised the court that they
had reached a negotiated plea agreement. Pursuant to the agreement, the court
advised Petitioner that he would have to report to the Jefferson County Adult
Probation Department for completion of an EOCC Evaluation and Pre-Sentence
Investigation. The court then set a change-of-plea and sentencing hearing for
February 28, 2017.
{¶5} Petitioner failed to report to the Jefferson County Adult Probation
Department for completion of an EOCC Evaluation and Pre-Sentence Investigation.
He also failed to appear for the February 28, 2017 change-of-plea and sentencing
hearing. The court issued a warrant for Petitioner’s arrest.
{¶6} On March 8, 2017, Petitioner’s counsel filed a motion to vacate the
warrant and the court set a hearing on the motion for March 20, 2017. Petitioner
appeared at the March 20, 2017 hearing at which time the court ordered him taken
into custody. The court then set a bond hearing for March 27, 2017. At the
conclusion of that hearing, the court set Petitioner’s bail at $500,000 and house
arrest.
{¶7} On March 27, 2017, Petitioner filed an application for a writ of habeas
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corpus asserting that the $500,000 was unreasonable and excessive. Respondent
filed an answer on April 28, 2017, contending the bail was reasonable and not
excessive. Meanwhile, Petitioner’s retained counsel filed motions to withdraw in both
the underlying criminal case and the matter before this Court. Both motions were
granted. We proceed to a determination of Petitioner’s application.
{¶8} Persons accused of crimes are “bailable by sufficient sureties” and
“[e]xcessive bail shall not be required.” Section 9, Article I, Ohio Constitution. The
purpose of bail is to secure the attendance of the accused at trial. Jenkins v. Billy, 43
Ohio St.3d 84, 85, 538 N.E.2d 1045 (1989). Habeas corpus is an extraordinary
remedy. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141,
145, 637 N.E.2d 890 (1994). However, habeas corpus is the proper remedy to raise
the claim of excessive bail in pretrial-release cases. Chari v. Vore, 91 Ohio St.3d 323,
325, 744 N.E.2d 763 (2001).
{¶9} The burden of proof in a habeas corpus case alleging excessive bail is
on the petitioner. Id. at 325. “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.
{¶10} Petitioner here has failed to meet his burden. The only statement in his
application that even remotely approaches his burden in this regard is his broad
conclusory assertion that the trial court “focused on the fact that other activity,
unrelated to the charges leveled against the Petition and mere speculation to the
Petitioner himself, were the basis of the Court’s concern.” (Petitioner’s Application,
¶ 11.) This is insufficient.
{¶11} “[I]n order to avoid dismissal, a petitioner must state with particularity
the extraordinary circumstances entitling him to habeas corpus relief. * * *
Unsupported conclusions contained in a habeas corpus petition are not considered
admitted and are insufficient to withstand dismissal.” Id. at 328. Like the petition in
Chari, the petition here contains only “unsupported, legal conclusions, i.e., that his
bail is unlawful, excessive, and unconstitutional” and “allege[s] no facts that indicate
either an abuse of discretion by the trial court or that appropriate grounds for
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independent review exist by the court of appeals * * *.” Id.
{¶12} As indicated, Petitioner has not stated with particularity the
extraordinary circumstances entitling him to habeas corpus relief and that failure to
do so is a sufficient basis alone to dismiss his application for the writ. Even assuming
Petitioner has met his initial burden in this regard, Respondent contends various
Crim.R. 46 factors nonetheless support the trial court’s bail determination. Crim.R.
46 provides factors that a trial court weighs to determine the types, amounts, and
conditions of bail:
(1) The nature and circumstances of the crime charged, and
specifically whether the defendant used or had access to a weapon;
(2) The weight of the evidence against the defendant;
(3) The confirmation of the defendant’s identity;
(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;
(5) Whether the defendant is on probation, a community control
sanction, parole, post-release control, bail, or under a court protection
order.
Crim.R. 46(C).
{¶13} For his part, the only Crim.R. 46 factor Petitioner addressed at the bail
hearing was the length of his residence in the community. His counsel asserted that
Petitioner had been a resident of Steubenville for six years, evidenced by a lease and
utilities in his name. Petitioner did not address any of the other Crim.R. 46 factors.
{¶14} Concerning the weight-of-the-evidence factor, the state asserted the
crime had been videotaped which clearly identified Petitioner. Crim.R. 46(C)(2), (3).
The record reflects that Petitioner failed to appear more than once for court hearings
and failed to appear for a court-mandated sentencing evaluation. Crim.R. 46(C)(4).
According to the state, Petitioner’s failure to appear at one of the hearings was
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precipitated by his travel to Chicago, which was a violation of his bond conditions.
The trial court referenced Petitioner’s criminal history, including his history with drugs,
drug trafficking, and guns. The court also noted that it was concerned about “some
retaliatory efforts.”
{¶15} In sum, Petitioner has not introduced evidence to overcome the
presumption of regularity attendant to the trial court’s March 27, 2017 bail hearing.
Accordingly, Petitioner’s application for a writ of habeas corpus is dismissed. Costs
taxed against Petitioner. Final order. Clerk to serve notice as provided by the Civil
Rules.
Donofrio, J. concurs.
Waite, J. concurs.
Robb, P.J. concurs.