Sammons v. Kelly - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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1992, pursuant to a pilot project implemented by Chief Justice
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Sammons, Appellant, v. Kelly et al. Appellees.
[Cite as Sammons v. Kelly (1994), Ohio St.3d .]
Criminal procedure -- Bail -- Under Crim.R. 46(D), a judge may
set a felony bond for an alleged misdemeanant, when --
Conversion of Misdemeanor bond to felony bond is excessive
as matter of law, when.
(No. 93-1638 -- Submitted and decided October 13, 1993 --
Opinion announced February 9 1994.)
Appeal from the Court of Appeals for Clark County, No.
3080.
On August 3, 1993, appellant, James C. Sammons, filed a
petition for a writ of habeas corpus in the Court of Appeals
for Clark County, alleging that appellees Gene A. Kelly,
Sheriff of Clark County, and Richard P. Carey, Judge of the
Clark County Municipal Court, were causing him to be confined
illegally in the Clark County Jail through imposition of a
$25,000 bond on misdemeanor charges. On August 4, 1993, the
court of appeals allowed the writ and set a hearing for August
5, 1993. On August 10, 1993, it entered its decision finding
the $25,000 bond excessive and reducing it to $10,000. The
court of appeals found the following facts:
1. Appellant was arrested on July 29, 1993 on misdemeanor
charges of assault and resisting arrest.

* Reporter's Note: The judgment in this cause was announced an
October 21, 1993, "consistent with the opinion to follow." See
67 Ohio St.3d 1483, 620 N.E.2d 855. The "opinion to follow" is
announced today.

2. He posted a $1,000 bond (allowed by the jailer) in
accordance with the Clark County Municipal Court bail schedule
for misdemeanors and was released.
3. He was arraigned on July 30, 1993, by appellee Carey,
who increased his bail to $25,000.
4. As the reason for increasing bail, Carey stated that
appellant presented an apparent threat of physical harm to the
public, to police officers, and to himself because the charges
represented the fourth set of assault and resisting arrest

charges filed against appellant since April 26.
5. Between April 26 and July 29, 1993, appellant was
charged with twelve misdemeanors arising from four separate
incidents involving violent acts or threats of a violent act.
6. Appellant had been convicted of the following
offenses: on October 15, 1991, attempted aggravated riot; on
December 17, 1991, attempted inciting to violence; on September
15, 1992, aggravated menacing.
7. The petitioner was unable to post the $25,000 bond
required for his release.
8. The bond required for appellant's release was
twenty-five times that provided for such offenses in the bail
schedule adopted by the municipal court and was far greater in
amount than other bonds imposed by the court itself for similar
alleged offenses.
At the hearing, appellant contended that Judge Carey had
no authority to increase bond under Crim. R. 46 once the $1,000
bond had been imposed. However, the court of appeals held that
Carey did have such authority, but that the $25,000 amount set
was excessive. The court of appeals set bond at $10,000, and
appellant appealed, again contending lack of authority to
change bond once set under Crim. R. 46 and that the $10,000
reduced bond set by the court of appeals is also excessive.
Appellees filed a motion to dismiss, contending that
appellant is now incarcerated by virtue of convictions on some
of the other ten misdemeanors, so that habeas corpus will not
allow him to be released on bond in this case.
The cause is now before this court upon an appeal as of
right.

James Kura, Ohio Public Defender, and Kort Gatterdam,
Assistant Public Defender, for appellant.
Mike Sheils, City Prosecutor, for appellees.

Per Curiam. The court of appeals held that Carey had
authority to increase bail under Crim. R. 46(D) and (H).1 We
disagreed, and, on October 13, 1993, we reinstated the $1,000
bond, consistent with this opinion to follow. 67 Ohio St.3d
1483, 620 N.E.2d 855.
The court of appeals reasoned that Crim. R. 46(H) permits
a court to amend the bond required by the jailer pursuant to
division (D)(2) and that the next-to-last paragraph of division
(D) permitted Judge Carey to impose a felony bond pursuant to
division (C). However, as appellant points out, the premise of
that penultimate paragraph of division (D), necessary to invoke
its conclusion, is that the appellant not have been released on
his own recognizance, or upon execution of an unsecured
appearance bond, or pursuant to division (D)(1), (2) or (3).
Appellant was, in fact, released pursuant to division (D)(2);
therefore, the premise of the paragraph was not fulfilled and
the conclusion that Judge Carey could set bond pursuant to the
felony provisions of division (C) could not be invoked,
especially in light of Crim. R. 46(J).2
Under Crim. R. 46(D), a judge may set a felony bond for an
alleged misdemeanant only if the alleged misdemeanant has not
been previously released on his or her own recognizance,
pursuant to an unsecured appearance bond, or pursuant to a bond

as provided in division (D)(1), (2) or (3).
In the instant case, Judge Carey converted a misdemeanor
bond to a felony bond. This is not authorized by Crim. R. 46
and is therefore excessive as a matter of law. Accordingly,
the decision of the court of appeals is reversed.
Judgment reversed.
Moyer, C.J., A.W. Sweeney, Douglas, Wright, Resnick, F.E.
Sweeney and Pfeifer, JJ., concur.

FOOTNOTE
1 "(D) Pretrial release in misdemeanor cases. A person
arrested for a misdemeanor and not released pursuant to Crim.
R. 4(F), shall be released by the clerk of court, or if the
clerk is not available the officer in charge of the facility to
which the person is brought, on his personal recognizance, or
upon the execution of an unsecured appearance bond in the
amount specified in the bail schedule established by the
court. If the clerk or officer in charge of the facility
determines pursuant to a division (F) that such release will
not reasonably assure appearance as required, the person shall
be eligible for release by doing any of the following, at his
option:
"(1) Executing an appearance bond in the amount specified
in the court's bail schedule, with a deposit of either $25.00
or a sum of money equal to ten percent of the amount of the
bond, whichever is greater. Ninety percent of the deposit
shall be returned upon the performance of the conditions of the
appearance bond;
"(2) Posting a bond in the amount specified in the court's
bail schedule, which bond is guaranteed to the person as a
policyholder of a casualty insurer, or as a member of a bona
fide motorists' or travelers' organization;
"(3) Executing a bail bond with sufficient solvent
sureties, or executing a bond secured by real estate in the
county, or depositing cash or the securities allowed by law in
lieu thereof in the amount specified in the court's bail
schedule.
"A person need not be released on his own recognizance or
upon the execution of an unsecured appearance bond if he has a
history of failure to appear when required in judicial
proceedings, or if his physical, mental, or emotion condition
appears to be such that he may pose a danger to himself or
others if released immediately. When a person is not released
because of his physical, mental, or emotional condition, and it
appears that his release into the temporary custody of a
responsible relative, friend, or other person will obviate the
danger to himself or others, he shall be released into such
temporary custody on his making bail under division (D)(1),(2)
or (3).
"If a person is not released on his own recognizance, or
upon the execution of an unsecured appearance bond, or pursuant
to division (D)(1), (2), or (3), he shall be given a hearing
without unnecessary delay before a judge or magistrate who
shall determine the conditions of his release pursuant to
division (C).
"Each court shall establish a bail schedule covering all

misdemeanors including traffic offenses, either specifically,
or by type, or by potential penalty, or by some other
reasonable method of classification. Each court shall, by
rule, establish a method whereby a person may make bail under
division (D)(1) or (3) by the use of a credit card. Such rule
shall permit only credit cards of recognized and established
issuers. No credit card transaction shall be permitted when a
service charge is made against the court or clerk.
"* * *
"(H) Amendments. Subject to divisions (C) and (G), a
judge or magistrate ordering the release of a person on any
conditions specified in this rule may at any time amend his or
her order to impose additional or different conditions of
release." (Emphasis added.)
2 "Continuation of bonds. Unless application is made by the
surety for discharge, the same bond shall continue as a matter
of right until the return of a verdict or judgment by a jury or
by the court on the issue of guilt or innocence. In the
discretion of the trial judge, and upon notice to the surety,
the same bond may also continue after final disposition in the
trial court and pending sentence or pending disposition of the
case on review. Any provision of a bond or similar instrument
that is contrary to this rule is void." (Emphasis added.)