Opinion
No. 80-1339
Decided May 20, 1981.
Habeas corpus — To compel release on bail pending remand of case from Supreme Court — Writ denied, when.
IN HABEAS CORPUS.
David W. Burch, petitioner herein, was charged by the Summit County Grand Jury in a 19-count indictment for his participation in an international narcotics smuggling and distribution operation. After a trial, at which he was represented by counsel, a jury found petitioner guilty of engaging in organized crime, of four counts of conspiracy and of permitting drug abuse, in violation of R.C. 2923.04, 2923.01 and 2925.13, respectively. The Court of Common Pleas sentenced petitioner to five to twenty-five years imprisonment for engaging in organized crime and to three to fifteen years for one count of conspiracy, the sentences to run consecutibely. Additionally, the court imposed a ten to twenty year sentence of imprisonment for the remaining three counts of conspiracy. Finally, a six month jail sentence was imposed for the drug abuse offense.
Pursuant to a journal entry of the Court of Common Pleas, petitioner was committed to the Marion Correctional Institution, of which respondent herein is superintendent.
The Court of Appeals affirmed petitioner's convictions for engaging in organized crime and permitting drug abuse, and reversed the convictions for the conspiracy offenses. In so doing, the Court of Appeals ruled that the conspiracy offenses merged with the conviction for engaging in organized crime, a violation of R.C. 2923.04.
Petitioner then prosecuted an appeal to this court (case No. 80-113), which reversed and remanded his case to the Court of Appeals for resolution of the issues in light of our decision in State v. Young (1980), 62 Ohio St.2d 370, certiorari denied U.S., 66 L.Ed. 2d 137, a case which held the organized crime statute unconstitutional.
Petitioner then brought this action seeking a writ of habeas corpus in this court. Petitioner contends, in essence, that both the trial and appellate courts abused their discretion in not granting his motion for bail pending the remand of his case from this court.
Mr. David W. Burch, pro se. Mr. William J. Brown, attorney general, and Mr. Robert T. Russell, Jr., for respondent.
A writ of habeas corpus is an extraordinary writ which is customarily granted with caution when an individual has no adequate remedy at law. The purpose of this writ is to determine the legality of the restraint or custody under which a person is held. Freeman v. Maxwell (1965), 4 Ohio St.2d 4, certiorari denied 382 U.S. 1017; In re Lockhart (1952), 157 Ohio St. 192. See, generally, Roden v. Hubbard (1981), 65 Ohio St.2d 37; Liberatore v. McKeen (1980), 63 Ohio St.2d 175; Linger v. Weiss (1979), 57 Ohio St.2d 97, certiorari denied 444 U.S. 862.
The center of gravity of petitioner's argument in support of allowing the writ is that the trial court and the Court of Appeals abused their discretion is not sustaining his motion for bail. More precisely, petitioner contends that, in view of (1) our ruling in State v. Young, supra, and (2) the Court of Appeals' ruling in his initial appeal, the Court of Appeals must automatically release petitioner for the reason that he has served the requisite time in prison for his conviction on the only offense that has not been overturned. We reject petitioner's contention.
Generally speaking, when this court remands a cause to an appellate court for resolution of issues in light of a recent ruling, our remand is not, in and of itself, a final determination of the case or execution of a final judgment. Rather, a judgment is considered final only when it is disposed of by the court to which the cause has been remanded. See Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1976), 46 Ohio St.2d 105, 110. See, generally, 5 Ohio Jurisprudence 3d 410, Appellate Review, Section 708.
Thus, this court's remand of petitioner's case to the Court of Appeals will not necessarily result in his automatic or mandatory release. We did not order or direct a particular judgment with respect to the issues not resolved by State v. Young, supra; we ordered the case back for such further proceedings as the Court of Appeals may deem appropriate, in light of our voiding of the organized crime statute, R.C. 2923.04. Indeed, in view of the fact that the Court of Appeals ruled that petitioner's conspiracy offenses merged with the conviction for organized crime, we anticipate that the Court of Appeals will want to reexamine its ruling closely.
Since there may be further proceedings at which petitioner may have to appear, the trial court and Court of Appeals are vested with considerable discretion in determining whether petitoner's release on bail will reasonably assure his appearance at these proceedings. Coleman v. McGettrick (1965), 2 Ohio St.2d 177; Crim.R. 46.
We have carefully reviewed the entire record in these proceedings, including, but not limited to, the nature and circumstances of the offense charged, the petitioner's family ties, employment, financial resources, character and possible access to a foreign refuge. After such review, we conclude that the trial court and the Court of Appeals did not abuse their discretion in denying bail because, upon release, petitoner's appearance in court cannot, in our estimation, be reasonably assured.
For all the foregoing reasons, the writ of habeas corpus is denied.
Writ denied.
CELEBREZZE, C.J., P. BROWN, SWEENEY, LOCHER, HOLMES and C. BROWN, JJ., concur.
W. BROWN, J., dissents.