[Cite as Dubose v. McGuffey,

.]

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

JUSTIN DUBOSE, : CASE NO. C-210489

Petitioner, :

vs. : O P I N I O N.

CHARMAINE MCGUFFEY, : HAMILTON COUNTY SHERIFF,

Respondent. :

Original Action in Habeas Corpus

Judgment of Court: Petition for Writ Granted

Date of Judgment Entry on Appeal: October 27, 2021

Arenstein and Gallagher, William R. Gallagher and Kara C. Blackney, for Petitioner,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Respondent. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Petitioner Justin Dubose is currently being detained in the Hamilton

County Justice Center because he contends he is unable to post the $1.5 million bail

that has been set in his case. Dubose and codefendant Jamie Shelton were charged

with the murder of Shawn Green. The murder is alleged to have occurred on July 18,

2020, during a robbery. Dubose has been indicted for two counts of murder, one

count of aggravated robbery, and one count of aggravated burglary in the case

numbered B-2005815B. He has filed a petition for a writ of habeas corpus

challenging the amount of his pretrial bail as excessive. The court, upon

consideration thereof, finds that the petition is well taken and is granted.

The Bail Hearings Below

{¶2} Complaints were filed and warrants were issued against Dubose on

October 2, 2020, for murder and aggravated robbery. He was arrested in Las Vegas,

Nevada. He waived extradition and was returned to Hamilton County on November

5, 2020, and appeared before the Hamilton County Municipal Court for a bail

hearing. At the hearing, the state requested that the court impose a $1.5 million

secured bail because a different judge had already set such a bail for his co-

defendant, Shelton. In support of the high bail, the state claimed that Dubose and

Shelton shot the victim in the head after they entered the garage of a home in order

to rob the homeowner of his marijuana. They subsequently fled the scene and

Dubose was arrested in Las Vegas.

{¶3} In support of a lower bail, Dubose’s attorney represented that he had

been retained by Dubose’s mother, Dubose is not employed, and he does not have

2 OHIO FIRST DISTRICT COURT OF APPEALS

the financial means to afford a high bail. He further explained that Dubose is 25

years old and does not have a significant criminal history.

{¶4} After hearing argument, the municipal court judge set a $750,000

secured bail on the murder charge and an additional $750,000 secured bail on the

aggravated-robbery charge, totaling $1.5 million.

{¶5} After he was indicted, Dubose filed a motion to reduce bail before the

common pleas court judge assigned to the case, arguing that the $1.5 million bail was

excessive and the municipal court judge did not consider Dubose’s ability to afford

the bail. In the motion, Dubose asserted that he is a graduate of Colerain High

School, a lifelong resident of Cincinnati, and his entire family lives in Cincinnati. He

claimed he had been working full-time for the same company for over a year. He

further claimed he had no felony convictions, no history of weapons, and no history

of failing to attend court appearances. He claimed that he and his family did not have

the financial means to post the current bail. The motion was set for a hearing on

February 23, 2021.

{¶6} At the hearing, Dubose’s counsel argued that Dubose has strong family

ties to the community, no failures to appear, no felony convictions, does not own a

passport, and cannot afford the $1.5 million bail.

{¶7} In response, the state countered that this was a planned aggravated

robbery inside of a residence by Dubose and Shelton. The state alleged that Dubose

was the “hands-on killer” who shot and killed the victim, who was left for dead when

Dubose and Shelton fled the scene. Dubose and Shelton were later arrested in Las

Vegas. The state argued that Dubose posed a danger to the community and was an

3 OHIO FIRST DISTRICT COURT OF APPEALS

“extremely violent person” and a flight risk. The state asked the judge to keep the bail

as is.

{¶8} The trial court stated that it must consider several factors, including

ties to the community, ability to pay, the serious nature of the offense and the risk of

flight. The court found that although this was a very serious case and Dubose was “a

significant risk of flight,” he was innocent until proven guilty and the $1.5 million

bail was excessive. The court reduced the bail to $500,000 straight with an

electronic monitoring unit (“EMU”).

{¶9} After the court entered its order reducing the bail, it was informed by

the prosecution that there was a failure to comply with Marsy’s Law, in that the

victim’s family had not been notified of the bail hearing. The court immediately

reinstated the original $1.5 million bail and set the matter for a hearing on February

23, 2021, with the victim’s family present.

{¶10} At the hearing, the victim’s grandmother informed the court that she is

terrified of Dubose and feels that she and her family would be in extreme danger if he

were released, even on electronic monitoring. The court kept the bail at $1.5 million.

{¶11} Dubose filed a second motion to reduce bail, which was heard on

August 12, 2021. After hearing argument, the court denied the motion. The court

stated that it would give Dubose the benefit of the doubt that he did not travel to Las

Vegas to avoid prosecution. However, the court noted the seriousness of the charges,

that they included gun specifications and carried mandatory prison time. The court

stated that it placed a lot of weight on the fear of the family members.

{¶12} In this habeas petition, Dubose argues that the $1.5 million bail

ordered by the common pleas court judge is excessive and unreasonable, and the

4 OHIO FIRST DISTRICT COURT OF APPEALS

judge did not properly consider his financial resources as required by Crim.R. 46(C)

and the Ohio Supreme Court. Dubose requests that this court reduce his bail to

$500,000 with EMU, which was the bail originally set by the common pleas court.

The Standard of Review

{¶13} “[I]n an original action, an appellate court may permit a habeas

petitioner to introduce evidence to prove his claim and then exercise its own

discretion in imposing an appropriate bail amount.” Mohamed v. Eckelberry,

,

,

.

{¶14} Thus, Mohamed suggests that our standard of review is de novo.1 See

Hartman v. Schilling,

,

,

, ¶ 2

(Kennedy, J. dissenting) (stating that the court applied a de novo standard of review

in Mohamed); see also Stevens v. Navarre,

,

, ¶ 8 (6th

Dist.) (“[W]e glean from Mohamed that we must conduct a de novo review in our

determination of whether the pretrial bail is excessive.”).

{¶15} Our record consists of the verified habeas petition, the exhibits

attached thereto, and the response of the respondent. Neither party requested an

opportunity to submit additional evidence.

The $1.5 million Bail is Excessive

{¶16} While the nature and circumstances of the crime charged are certainly

relevant to any bail determination, Crim.R. 46(C) also requires the court to “consider

many other factors that are specific to the accused, such as the weight of the evidence

and the defendant’s financial resources.”

. “Any financial conditions

[of release] shall be in an amount and type which are least costly to the defendant

1 As a result, this de novo standard supplants the prior “hybrid” standard of review that this court historically applied. Drew v. State ex. rel. Neil,

,

(1st Dist.).

5 OHIO FIRST DISTRICT COURT OF APPEALS

while also sufficient to reasonably assure the defendant’s future appearance in

court.” Crim.R. 46(B). Imposing an unreasonably high bail that everyone knows the

defendant cannot afford is tantamount to a denial of bail, but it is done in a manner

that avoids compliance with the due-process requirements for the statutory denial of

bail.

{¶17} We must remember that “[t]he sole purpose of bail is to ensure a

person’s attendance in court.” State ex rel. Sylvester v. Neal,

,

,

, ¶ 16; R.C. 2937.22 (A) (“Bail is security for the

appearance of an accused to appear and answer to a specific criminal or quasi-

criminal charge in any court or before any magistrate at a specific time or at any time

to which a case may be continued, and not depart without leave.”). “Bail is excessive

when it is higher than is reasonably necessary to serve the government’s interest in

ensuring the accused’s appearance at trial.” Mohamed,

, 2020-

Ohio-4585,

(Kennedy, J., dissenting), citing United States v.

Salerno,

,

,

(1987), and Stack v.

Boyle,

,

,

(1951).

{¶18} “[S]etting a high bail in order to keep someone accused of a crime

incarcerated pretrial is both statutorily and constitutionally unlawful.”

(Stewart, J., concurring), citing R.C. 2937.222, State v. Bevacqua,

,

(1946), and Stack at 4. “Boiled down to its essence, setting

high bail amounts accomplishes with money what courts could not otherwise achieve

without following the due-process requirements in R.C. 2937.222.”

{¶19} That is exactly what occurred here. Dubose’s counsel repeatedly

proffered that neither Dubose nor his family can afford the $1.5 million bail, a point

6 OHIO FIRST DISTRICT COURT OF APPEALS

reiterated in the verified habeas filing before us. The state has never contested this

point or introduced contrary evidence, and, indeed, the thrust of its arguments at the

bail hearings is that the bail must be so high that Dubose cannot get out.

{¶20} The state made this point in various ways. At the February 23, 2021,

bail hearing, the prosecutor told the court, “So not only for the safety of the

community, but I don’t think he would come back if he got out. I would ask the court

to keep the bond as it was [$1.5 million].” A few days later, the state reiterated, “And

I know the Court set a bond and also put on an EMD provision on that bond: but the

feeling is that that’s just an ankle bracelet and you can either cut that off or violate it,

and it doesn’t really protect somebody if the person wants to violate it. Certainly

there’d be notice to probation or EMD that there’s a violation, but in that time period

after he goes off his range, then that person could do whatever they want.” And at the

final bail hearing, the prosecutor warned, “if the defendant were released, [the

victim’s family] would feel they were in danger from Mr. Dubose.”

{¶21} The state’s point is not that the court should set a bail at a level to

“ensure a person’s attendance in court.” Neal,

,

,

, at ¶ 16. Rather, it is that the bail must be sufficiently high that

Dubose can never get out.

{¶22} At the end of the day, this is an argument for the denial of bail. But it is

unconstitutional to achieve a de facto denial of bail without satisfying the rules for a

true denial of bail. See Smith v. Leis,

,

,

, ¶ 64 (“Thus, the amendment to Section 9, Article I was designed to expand

the types of offenses and circumstances under which bail could be denied, not to

limit an accused’s access to a surety once bail is granted.”). (Emphasis omitted.)

7 OHIO FIRST DISTRICT COURT OF APPEALS

All persons shall be bailable by sufficient sureties, except for a person

who is charged with a capital offense where the proof is evident or the

presumption great, and except for a person who is charged with a felony

where the proof is evident or the presumption great and where the person

poses a substantial risk of serious physical harm to any person or to the

community. Where a person is charged with any offense for which the

person may be incarcerated, the court may determine at any time the

type, amount, and conditions of bail. Excessive bail shall not be required;

nor excessive fines imposed; nor cruel and unusual punishments

inflicted.

Ohio Constitution, Article I, Section 9.

{¶23} If the state believes that Dubose represents such a danger to the

community that he must be held without bail, then it must make a motion pursuant

to R.C. 2937.222, at which point “the judge shall hold a hearing to determine

whether an accused person charged with aggravated murder when it is not a capital

offense, murder, a felony of the first or second degree, a violation of section 2903.06

of the Revised Code, a violation of section 2903.211 of the Revised Code that is a

felony, or a felony OVI offense shall be denied bail.” R.C. 2937.222(A).

{¶24} The statute places the burden on the state to prove “that the proof is

evident or the presumption great that the accused committed the offense with which

the accused is charged, of proving that the accused poses a substantial risk of serious

physical harm to any person or to the community, and of proving that no release

conditions will reasonably assure the safety of that person and the community.”

That provision further provides:

8 OHIO FIRST DISTRICT COURT OF APPEALS

No accused person shall be denied bail pursuant to this section unless the

judge finds by clear and convincing evidence that the proof is evident or

the presumption great that the accused committed the offense described

in division (A) of this section with which the accused is charged, finds by

clear and convincing evidence that the accused poses a substantial risk of

serious physical harm to any person or to the community, and finds by

clear and convincing evidence that no release conditions will reasonably

assure the safety of that person and the community.

R.C. 2937.222(B).

{¶25} In other words, this statute exists to address the exact concerns raised

by the state below and in response to Dubose’s habeas petition. The court’s decision

in Mohamed v. Eckelberry,

,

,

,

the Ohio Constitution, Crim. R. 46, and R.C. 2937.222 all reinforce the point that if

the state elects not to pursue that statutory path, the focus of the monetary bail

amount must be on assuring the defendant’s appearance and not simply artificially

inflating the amount so that no one can satisfy it.2

{¶26} In this case, Dubose’s high bail was effectively a denial of bail, without

the trial judge making any of the required statutory findings. This is improper.

Underscoring the point, despite the fact that the trial court found Dubose to be a

2 While we acknowledge that Crim.R. 46(B) also requires the court to consider “the protection or safety of any person or the community” when determining an appropriate bail, the rule lists numerous nonfinancial conditions that can be imposed to address this factor. These conditions include, but are not limited to, restrictions on travel, association, or place of abode, regulation of the person’s contact with witnesses or others associated with the case, completion of drug and/or alcohol assessment and compliance with treatment regulations, and “[a]ny other constitutional condition considered reasonably necessary to reasonably assure appearance or public safety.” The rule states that financial conditions of release “shall be related to the defendant's risk of non- appearance, the seriousness of the offense, and the previous criminal record of the defendant” and must 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.”

9 OHIO FIRST DISTRICT COURT OF APPEALS

flight risk, it originally found the $1.5 million bail to be excessive. It lowered the bail

to $500,000, but, in order to ensure his appearance in court and for the safety of the

community, also required an EMU. If the state wishes to have Dubose detained

without bail because it believes he poses a substantial risk of serious physical harm to

any person or to the community and no release conditions will reasonably assure the

safety of that person and the community, then it must comply with R.C. 2937.222.

{¶27} After reviewing the record presented to this court, we find that the $1.5

million bail is excessive because it does not take into consideration Dubose’s

financial resources as required by Crim.R. 46(C)(4). Dubose represented below and

reiterated in the verified filing before us that he does not have the resources to post

such a high bail, and the state has not presented any argument or evidence to the

contrary. By requesting in his habeas petition that this court lower his bail to

$500,000 straight with EMU, Dubose is effectively agreeing that this bail amount is

attainable yet high enough to compel him to appear in court when required. The

additional condition of EMU also addresses concerns regarding the safety of the

victim’s family and the community.

{¶28} We finally would like to note that the trial judge below engaged in

thoughtful consideration of the bail in this case, convening no less than three

separate bail hearings. Determining a bail that satisfies all of the requirements of

Crim.R. 46 is not an easy decision to make. But, as explained above, it is unlawful to

set a bail so high that it “accomplishes with money what courts could not otherwise

achieve without following the due-process requirements in R.C. 2937.222.”

Mohamed,

,

,

(Stewart,

J., concurring).

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} Accordingly, Dubose’s petition for a writ of habeas corpus is hereby

granted and his bail in the case numbered B-2005815B is reduced to $500,000

straight, no ten percent, with the additional conditions of 24-hour lockdown EMU,

no direct or indirect contact with the victim’s family and petitioner shall surrender

his passport if he owns one. All other non-financial conditions of release imposed by

the court of common pleas shall also remain in place.

Petition for writ granted.

BERGERON, P.J., concurs, WINKLER, J., dissents.

Please note: The court has recorded its own entry on the date of the release of this opinion.

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