Opinion
21 CAD 12 0066
12-30-2021
LAWRENCE HALLORAN Petitioner v. RUSSELL MARTIN, DELAWARE COUNTY, OHIO SHERIFF Respondent
For Petitioner JOHN R. CORNELY Delaware County Public Defender's Office For Respondent MELISSA A. SCHIFFEL Delaware County Prosecuting Attorney VINCE J. VILLIO Assistant Prosecuting Attorney Delaware County Prosecutor's Office
Writ of Habeas Corpus
For Petitioner
JOHN R. CORNELY
Delaware County Public
Defender's Office
For Respondent
MELISSA A. SCHIFFEL
Delaware County Prosecuting Attorney
VINCE J. VILLIO
Assistant Prosecuting Attorney
Delaware County Prosecutor's Office
Hon. Craig R. Baldwin, P.J. Hon. William B. Hoffman, J. Hon. John W. Wise, J. Judges
OPINION
HOFFMAN, J.
{¶1} Petitioner Lawrence Halloran filed a Petition for Writ of Habeas Corpus on December 21, 2021, and an amended petition on December 23, 2021. Mr. Halloran is currently detained in the Delaware County Jail. He maintains the $100,000 bond the trial court set in his cases is excessive. On December 20, 2021, Mr. Halloran was charged with one count of domestic violence and one count of aggravated menacing, both first degree misdemeanors (Delaware Municipal Court Case No. 21CRB01594). On December 22, 2021, Mr. Halloran was also charged with a fourth degree misdemeanor of domestic violence arising from the same incident (Delaware Municipal Court Case No. 21CRB01615). Mr. Halloran contends he is financially unable to post the bail set by the Delaware Municipal Court. The Court finds the $100,000 bail excessive and grants Mr. Halloran's Amended Petition for Writ of Habeas Corpus and denies Respondent Sheriff Russell L. Martin's Motion to Dismiss.
FACTS
{¶2} The Law Enforcement Arrest Report Probable Cause Affidavit sets forth the following summary of facts:
[K.M.] stated she was attacked by her boyfriend, Lawrence Halloran, after he believed she had taken his phone. [K.M.] stated Mr. Halloran grabbed a kitchen knife and came at her stomach and throat with it. [K.M.] stated Mr. Halloran stated he was going to, "kill her," and that he was going to, "bleed her out before help could come." At the time
of this call, [K.M.] and Mr. Halloran reside together in the same home as boyfriend and girlfriend.
{¶3} The fourth degree domestic violence misdemeanor charge further indicates, "[K.M.] ran out the residence naked with no shoes on even though the outside temperature was roughly thirty degrees" However, at the bail hearing, the prosecutor stated K.M. fled the residence clothed in a robe.
{¶4} The trial court conducted a bail hearing on December 20, 2021, in Case No. 21CRB01594. The state requested a high bail, with no ten percent option, and SCRAM monitoring. The prosecutor noted Mr. Halloran's history of substance abuse and controlling/abusive behavior, that he is bipolar and does not always take his medicine, and that Mr. Halloran attempted suicide five years ago. The Delaware Municipal Court set bail at $100,000 cash, surety or real estate bond. On December 23, 2021, in Case No. 21CRB01615, the court again set bail at $100,000 cash, surety or real estate bond. The two cases were subsequently consolidated. The $100,000 bail includes both cases.
{¶5} In his amended habeas petition, Mr. Halloran contends the bail set by the municipal court is excessive, unlawful and in violation of Article I, Section 9 of the Ohio Constitution. Mr. Halloran requests a reduction in the amount of bail or, in the alternative, for release on his own recognizance.
STANDARD OF REVIEW/BURDEN OF PROOF
{¶6} In Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5, the Ohio Supreme Court explained, "in 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." Thus, the standard of review is de novo. See also Dubose v. McGuffey, 1st District Hamilton No. C-210489, 2021-Ohio-3815, ___N.E.3d___, ¶ 14 ("Mohamed suggests that our standard of review is de novo."); Stevens v. Navarre, 6th Dist. Lucas No. L-21-01010, 2021-Ohio-551, 168 N.E.3d 578, ¶ 8 ("[W]e glean from Mohamed that we must conduct a de novo review in our determination of whether the pretrial bail is excessive.")
{¶7} Finally, the burden of proof is on Mr. Halloran to establish entitlement to a writ alleging excessive bail. Ahmad v. Plummer, 126 Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 4. See also Chari v. Vore, 91 Ohio St.3d 323, 326, 744 N.E.2d 763 ("the burden of proof in a case alleging excessive bail is * * * on the petitioner").
{¶8} The record before the Court consists of the verified amended habeas petition, the exhibits attached thereto, and Sheriff Martin's Motion to Dismiss and the exhibits attached thereto. Neither party requested an opportunity to submit additional evidence and the parties agreed to submit the writ on the pleadings, without an evidentiary hearing.
ANALYSIS
{¶9} In addition to the nature and circumstances of the crimes charged, under Crim.R. 46(C) we must also "consider many other factors that are specific to the accused, such as the weight of the evidence and the defendant's financial resources." Mohamed at ¶ 7. "Any financial conditions [of release] 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). That is because "[t]he sole purpose of bail is to ensure a person's attendance in court." Dubose at ¶ 17, quoting State ex rel. Sylvester v. Neal, 140 Ohio St.3d 47, 2014-Ohio-2926, 14 N.E.3d 1024, ¶ 16.
{¶10} R.C. 2937.22(A) addresses this point providing that: “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.” Thus, “[b]ail is excessive when it is higher than is reasonably necessary to serve the government's interest in ensuring the accused's appearance at trial. [Citations omitted.] Mohamed, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, at ¶ 29 (Kennedy, J., dissenting). “[S]etting a high bail in order to keep someone accused of a crime incarcerated pretrial is both statutorily and constitutionally unlawful.” Id. at ¶ 24. (Stewart, J., concurring).
{¶11} At the bail hearing, Mr. Halloran's counsel explained Mr. Halloran is 70 years old and there was no indication he caused any physical harm to K.M. Counsel requested Mr. Halloran be released on his own recognizance and indicated he would reside with his son in Columbus. Counsel also noted Mr. Halloran's Social Security would be suspended while he is incarcerated and that income is used to pay rent for the apartment where K.M. currently resides.
{¶12} Mr. Halloran's amended petition alleges these same facts reiterating that his main source of income is Social Security, which will be suspended while he is incarcerated. Mr. Halloran further alleges he is indigent and unable to pay a substantial bail bond. He is represented by the public defender's office. The prosecutors involved in this matter do not dispute these financial points and introduced no evidence at the bail hearing or in the Motion to Dismiss to the contrary. Instead, the prosecutors focus on the victim's safety.
{¶13} We do not attach little importance to concerns for K.M.'s safety. We acknowledge Crim.R. 46(C), R.C. 2919.251(A)(2), and R.C. 2919.251(B) set forth factors the prosecutors properly focused on in addressing bail in this matter. In his Motion to Dismiss, Sheriff Martin references the Ohio Supreme Court's decision in Ahmad v. Plummer as a basis to uphold the amount of bail ordered by the trial court. However, we find the Ahmad case distinguishable from the present facts.
{¶14} In Ahmad, the Court found the bail was not excessive because of the seriousness of the offense of conspiracy to commit murder, the substantial evidence against the defendant, the confirmation of his identity, the existence of two prior domestic violence protection orders against defendant, and the petitioner's ability to access large sums of money. Ahmad, 126 Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, at ¶ 12-17. Here, Mr. Halloran is charged with two counts of domestic violence arising from the same incident and one count of aggravated menacing. Further, Mr. Halloran consented to a protection order at his bail hearing and the trial court ordered SCRAM monitoring. A prior protection order did not exist at the time of the incident giving rise to the criminal charges. Finally, and most importantly, unlike the defendant in Ahmad, Mr. Halloran is not able to access large sums of money to pay his bail.
{¶15} Using the Ohio Supreme Court's decision in Mohamed v. Eckelberry as guidance and comparing and applying its analysis to the facts of this case, we conclude the $100,000 bail is excessive. Accordingly, Mr. Halloran's Amended Petition for Writ of Habeas Corpus is granted and his bail in the consolidated cases, Delaware Municipal Court Case Nos. 21CRB01594 and 21CRB01615, is reduced to $10,000, secured by a deposit of 10% cash, surety or real estate bond. All other non-financial conditions of release imposed by the Delaware Municipal Court shall remain in place.
CONCLUSION
{¶16} Mr. Halloran's Amended Petition for Writ of Habeas Corpus is granted and Sheriff Martin's Motion to Dismiss is denied.
{¶17} COSTS TO RESPONDENT.
{¶18} IT IS SO ORDERED.
Hoffman, J. Wise, John, J. concurs and Baldwin, P.J. dissents
{¶19} I respectfully dissent from the majority decision in this matter. While I acknowledge that precedent supports a conclusion that bail is primarily designed to insure a party's appearance, I am concerned that the majority's significant reduction does not give sufficient weight to the other facts and circumstance in this case that merit a higher bond.
{¶20} Revised Code 2919.251(B) mandates consideration of eleven factors before setting bail:
(1) Whether the person has a history of domestic violence or a history of other violent acts;
(2) The mental health of the person;
(3) Whether the person has a history of violating the orders of any court or governmental entity;
(4) Whether the person is potentially a threat to any other person;
(5) Whether the person has access to deadly weapons or a history of using deadly weapons;
(6) Whether the person has a history of abusing alcohol or any controlled substance;
(7) The severity of the alleged violence that is the basis of the offense, including but not limited to, the duration of the alleged violent incident, and whether the alleged violent incident involved serious physical injury, sexual assault, strangulation, abuse during
the alleged victim's pregnancy, abuse of pets, or forcible entry to gain access to the alleged victim;
(8) Whether a separation of the person from the alleged victim or a termination of the relationship between the person and the alleged victim has recently occurred or is pending;
(9) Whether the person has exhibited obsessive or controlling behaviors toward the alleged victim, including but not limited to, stalking, surveillance, or isolation of the alleged victim;
(10) Whether the person has expressed suicidal or homicidal ideations;
(11) Any information contained in the complaint and any police reports, affidavits, or other documents accompanying the complaint.
{¶21} Criminal Rule 46(C) describes five categories of information that must be considered:
(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.
{¶22} Halloran's actions trigger several of the elements of both the Code and the Rule in a way that supports a higher bond. Lawrence Halloran was the paramour of the victim, and on December 18, 2021 he forced open the bathroom door where the victim was showering, put a kitchen knife to her stomach and throat and threatened to "kill her" and that he was going to "bleed her out before help could come." Halloran did not offer an alibi, alternative explanation or defense at the bond hearing before the trial court, nor has he refuted the state's allegation that he has attempted suicide and has a history of material mental health issues. The allegation that he is controlling and abusive toward the victim is supported by his threat to kill the victim after an argument and further aggravating the circumstances is his history of alcohol abuse.
{¶23} Halloran's relationship with the victim, his alleged actions and his background warrant a more significant bond both to protect the victim and to insure his appearance. While the charges against him are first degree misdemeanors, due to his age and health issues, Halloran may spend a large percentage of his remaining life incarcerated. That fact, combined with mental health issues, and prior suicide attempt creates a major concern that forfeiture of bond will not have the same impact on Halloran as it might have on a mentally sound person. Further, his history of being controlling and abusive as well as his latest threat to the victim, combined with his suicidal tendencies raise a question as to whether Halloran will comply with any protective order or bond requirements and instead satisfy his need to control and harm the victim and thereafter be returned to custody.
{¶24} The Supreme Court in Ahmad v. Plummer, 126 Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 16 gave some consideration to the defendant's wife's concern that any reduction in bail would lead to the death of herself and her youngest son. The Court also found that Ahmad was charged with a serious crime and faced a potentially lengthy sentence if convicted based upon the substantial evidence against him. While Halloran is not charged with conspiracy to commit murder, he is charged with a serious crime and given his age and health, he may be facing incarceration for a significant portion of his remaining life. "Thus, 'the incentive to abscond is greater and the amount must be such as to discourage the accused from absconding.'" Id., at ¶ 17.
{¶25} For those reasons, I dissent.
JUDGMENT ENTRY
For the reasons stated in our accompanying Opinion, the petition of Writ of Habeas Corpus is granted. Respondent's Motion to Dismiss is denied. Costs waived.