[Cite as Drew v. State ex rel. Neil,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

GEOFFREY DREW APPEAL NO. C-190609 : TRIAL NO. B-1904419 Petitioner, : vs. O P I N I O N. : THE STATE OF OHIO, EX REL. JIM NEIL, :

Respondent. :

Original Action in Habeas Corpus

Judgment of Court: Petition Denied

Date of Judgment Entry: September 9, 2020

L. Patrick Mulligan & Associates, LLC, and Brandon A. Moermond, for petitioner Geoffrey Drew.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex S. Havlin, Assistant Prosecuting Attorney, for Respondent State of Ohio ex rel. Jim Neil, OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} Indicted on nine counts of rape in August 2019 for conduct occurring decades

ago, petitioner Geoffrey Drew challenged the staggering $5,000,000 bail set by the trial

court at arraignment. He first requested that the trial court reduce the amount of the bail,

but to no avail—the court denied his motion. This ultimately prompted Mr. Drew to seek

relief from this court through the mechanism of a petition for a writ of habeas corpus

claiming excessive bail. The state, on behalf of respondent Hamilton County Sheriff Jim

Neil, requested that we deny the petition, maintaining that the trial court acted within its

discretion, and highlighting Mr. Drew’s failure to meet his burden in order to establish

entitlement to relief. Based on the record at hand, we agree with the state and deny the writ.

{¶2} In Ohio, appellate courts enjoy original jurisdiction over writs of habeas

corpus and are empowered with the authority to grant such relief. Ohio Constitution,

Article IV, Section 3(B)(1)(c) (“The courts of appeals shall have original jurisdiction in the

following * * * [h]abeas corpus[.]”); R.C. 2725.02 (“The writ of habeas corpus may be

granted by the supreme court, court of appeals, court of common pleas, probate court, or by

a judge of any such court.”). Moreover, a petition for a writ of habeas corpus is the

appropriate channel for a claim of excessive pretrial bail. Chari v. Vore,

,

(2001) (“Habeas corpus is the proper remedy to raise the claim of

excessive bail in pre-trial release cases.”). Courts recognize this procedural avenue because

the Ohio Constitution secures the right to reasonable bail. Ohio Constitution, Article 1,

Section 9 (“All persons shall be bailable by sufficient sureties * * * [e]xcessive bail shall not

be required[.]”). Therefore, where an offense is bailable, the right to reasonable bail may

not be denied or infringed. Lazzerini v. Maier,

,

(5th

Dist.).

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶3} We treat review of a claim of excessive bail brought in a petition for a writ of

habeas corpus as presenting a type of “hybrid” standard of review. Smith v. Leis,

,

,

(1st Dist.). As the action is akin to an

appeal from the trial court, we afford “some weight” to the trial court’s decision setting the

bail, but we also recognize that habeas corpus is an original action which normally warrants

independent review.

(finding that trial court abused its discretion when setting

petitioner’s bail); In re DeFronzo,

,

(1977) (noting an

anomaly in original actions which seek habeas corpus relief for excessive bail, the effect of

which is an appeal from the trial court, but as an original action permits hearings and

findings of fact). Therefore, we first focus our examination on whether the trial court

abused its discretion in setting the bail amount. Garcia v. Wasylyshyn, 6th Dist. Wood No.

WD-07-041,

, citing Hardy v. McFaul,

, 2004-Ohio-

5467,

. And if we find an abuse of discretion, we may exercise our own

independent judgment in resetting bail at a reasonable figure based on the evidence

presented to us. Gallagher v. Johnson,

,

(11th

Dist. 1998), citing

. In other words, the petitioner bears the burden of

showing “that appropriate grounds for independent review by this court exist.”

.

{¶4} In bringing a habeas corpus action, the petitioner must establish “(1) the

person whose liberty is restrained, (2) the officer who is confining the prisoner, (3) the place

where the person is imprisoned, and (4) a copy of the commitment or cause of detention.”

; R.C. 2725.04. Additionally, the petitioner bears the burden to demonstrate

“with particularity the extraordinary circumstances entitling him to habeas corpus relief.”

State ex rel. Wilcox v. Seidner,

,

(1996); Chari at

3 OHIO FIRST DISTRICT COURT OF APPEALS

325 (noting that in a habeas corpus case the burden rests on the petitioner to establish his

or her right to release).

{¶5} In reviewing a claim of excessive bail, we note that the purpose of bail is to

ensure the accused’s presence at trial, and therefore, the reasonableness of the bail amount

“is a question for the exercise of sound discretion by the trial court * * * dependent upon all

the facts and circumstances in each individual case.” Lazzerini,

,

, citing Bland v. Holden,

,

(1970); Sargent

v. Leis,

,

,

(1st Dist.), citing

Jenkins v. Billy,

,

(1989) (noting that amount of bail

in within discretion of the trial court). In setting the amount of bail, Crim.R. 46(C) directs

the trial court to factors it should weigh in making this determination, including: the nature

and circumstances of the charged crime, weight of the evidence against the defendant,

confirmation of the defendant’s identity, consideration of the defendant’s familial ties,

employment, financial resources, residence in the community, conviction record, mental

condition, and finally, whether the defendant is on probation, bail, community control or

protection order. Crim.R. 46(C)(1-5). Therefore, examining the propriety of the amount of

bail requires a consideration of these factors as well as any conditions of bail.

.

Crim.R. 46 was recently amended (effective July 1, 2020, after Mr. Drew’s hearing) to

require the least amount of monetary bail: any monetary conditions “shall be in an amount

and type which are least costly to the defendant while also sufficient to reasonably assure

the defendant’s future appearance in court.” Crim.R. 46(B).

{¶6} Here, Mr. Drew maintains that the trial court improperly deemed him a flight

risk, pointing to his age, finances, and familial and community ties to imply that the trial

court misapplied the Crim.R. 46 factors. But Mr. Drew failed to supply the transcripts of

the trial court hearing from which we might review the trial court’s evaluation of the Crim.R.

4 OHIO FIRST DISTRICT COURT OF APPEALS

46 factors. See Armendariz v. McFaul, 8th Dist. Cuyahoga No. 82703,

, ¶

6-10 (review of transcript of the hearing on motion to reduce bail amount revealed that the

trial court did not abuse its discretion in refusing to reduce bail amount); Hardy,

,

,

(presumption of regularity where

petitioner failed to include transcript of bail hearing in which the trial court noted its

reasons for its bail amount). Nor did Mr. Drew present any other evidence which supports

his claims that he is not a flight risk, such as proof of his financial status or passport status.

See

(noting that petitioner failed to introduce evidence to support his claims

regarding excessive bail). To be sure, he makes conclusory statements, but we need more

than that to grant relief, particularly when we lack a transcript of what transpired before the

trial court.

{¶7} In original actions, one means of providing substantiation of certain factual

matters is through the vehicle of the stipulated factual record. 1st Dist. Loc.R. 33.2 (“To

facilitate the consideration and disposition of original actions, counsel, when possible,

should submit an agreed statement of facts.”). While the parties did tender us a stipulated

set of facts, these facts steer well clear of any of the considerations under Crim.R. 46 or any

examination of the review undertaken by the trial court. Nor does Mr. Drew offer us

probative information relevant to other factors the trial court needs to consider in setting

the amount of bail, such as the strength of the evidence against him or the nature and

circumstances of the crimes charged. See Miller v. Reid, 8th Dist. Cuyahoga No. 96110,

, ¶ 10 (though nothing in record indicated that petitioner was flight risk, in

light of all the circumstances the trial court did not err in increasing bail).

{¶8} Mr. Drew does tender a chart that he created reflecting bail amounts in other

similar alleged offenses (including some claimed to be more serious offenses) that portrays

his $5 million bail as an excessive outlier. We acknowledge this comparative evidence is

5 OHIO FIRST DISTRICT COURT OF APPEALS

troubling, to say the least, but standing alone, it cannot translate into a ticket to a writ. A

petitioner must marshal a more powerful evidentiary record highlighting the problems

inherent in the trial court’s decision before triggering our independent review.

{¶9} As a last gasp, Mr. Drew concludes that the only rational explanation for the

amount of bail is the high media attention on the case, but he again fails to transform this

suspicion into something of evidentiary quality. See Johnson v. LaRose, 7th Dist. Mahoning

No. 18 MA 0135,

, ¶ 6 (unsupported and uncorroborated statements by

petitioner are insufficient to overcome the presumption of regularity of the court’s

judgment); Chari,

,

(dismissal of habeas corpus petition

appropriate where it was “replete with unsupported, legal conclusions” that the bail was

unlawful, excessive, and unconstitutional).

{¶10} Therefore, while we recognize that this case involves an extremely high bail

and one that might ordinarily give us pause, Mr. Drew has not made a proper showing of the

excessiveness of bail under the circumstances of the case. See Lewis v. Telb,

,

(6th Dist. 1985) (noting that before relief may be afforded in

petitions of this nature it must be clear that the amount of bail set was unreasonable and the

necessary criteria under Crim.R. 46 was not applied in setting the amount of bail); Jenkins,

,

(“[P]etitioner alleges no facts that indicate an abuse of

discretion by the trial court or that appropriate grounds for independent review by this

court exist.”). Ultimately, we find nothing to demonstrate an abuse of discretion on the

record presented by Mr. Drew.

{¶11} Based on the foregoing, we accordingly deny Mr. Drew’s habeas corpus

petition.

Petition denied.

6 OHIO FIRST DISTRICT COURT OF APPEALS

WINKLER, J., concurs. MOCK, P.J., concurs in judgment only.

Please note: The court has recorded its own entry this date.

7