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Herbert v. Abdalla

Court of Appeals of Ohio, Seventh District, Jefferson

June 2, 2017

HAKEEM C. HERBERT, PETITIONER,
v.
FRED ABDALLA, SHERIFF FOR JEFFERSON COUNTY, OHIO, RESPONDENT.

         Petition for Writ of Habeas Corpus

          For Petitioner Attorney R. Aaron Miller

          For Respondent Frank J. Bruzzese Assistant Prosecuting Attorney

          JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol Ann Robb

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Petitioner Hakeem C. Herbert has filed an application for a writ of habeas corpus asserting that his $500, 000 bail is unreasonable and excessive. Respondent has filed an answer seeking to have the writ dismissed and denied, arguing that the bail is reasonable and not excessive.

         {¶2} The docket in the underlying criminal case reflects that Petitioner was indicted for fifth-degree-felony heroin trafficking in violation of R.C. 2925.03(A)(1)(C)(6)(a), on October 4, 2016. Petitioner retained counsel, pleaded not guilty, and remained free on a personal recognizance bond.

         {¶3} The trial court set a pretrial for December 12, 2016. Petitioner initially failed to appear for the hearing. The court issued a warrant, Petitioner appeared later that day, and the warrant was recalled. At Petitioner's request, the court rescheduled the trial date from January 12, 2017, to February 2, 2017.

         {¶4} At the request of the parties, the court scheduled a pretrial for January 27, 2017. Near the conclusion of that hearing, the parties advised the court that they had reached a negotiated plea agreement. Pursuant to the agreement, the court advised Petitioner that he would have to report to the Jefferson County Adult Probation Department for completion of an EOCC Evaluation and Pre-Sentence Investigation. The court then set a change-of-plea and sentencing hearing for February 28, 2017.

         {¶5} Petitioner failed to report to the Jefferson County Adult Probation Department for completion of an EOCC Evaluation and Pre-Sentence Investigation. He also failed to appear for the February 28, 2017 change-of-plea and sentencing hearing. The court issued a warrant for Petitioner's arrest.

         {¶6} On March 8, 2017, Petitioner's counsel filed a motion to vacate the warrant and the court set a hearing on the motion for March 20, 2017. Petitioner appeared at the March 20, 2017 hearing at which time the court ordered him taken into custody. The court then set a bond hearing for March 27, 2017. At the conclusion of that hearing, the court set Petitioner's bail at $500, 000 and house arrest.

         {¶7} On March 27, 2017, Petitioner filed an application for a writ of habeas corpus asserting that the $500, 000 was unreasonable and excessive. Respondent filed an answer on April 28, 2017, contending the bail was reasonable and not excessive. Meanwhile, Petitioner's retained counsel filed motions to withdraw in both the underlying criminal case and the matter before this Court. Both motions were granted. We proceed to a determination of Petitioner's application.

         {¶8} Persons accused of crimes are "bailable by sufficient sureties" and "[e]xcessive bail shall not be required." Section 9, Article I, Ohio Constitution. The purpose of bail is to secure the attendance of the accused at trial. Jenkins v. Billy, 43 Ohio St.3d 84, 85, 538 N.E.2d 1045 (1989). Habeas corpus is an extraordinary remedy. Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc., 70 Ohio St.3d 141, 145, 637 N.E.2d 890 (1994). However, habeas corpus is the proper remedy to raise the claim of excessive bail in pretrial-release cases. Chari v. Vore, 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001).

         {¶9} The burden of proof in a habeas corpus case alleging excessive bail is on the petitioner. Id. at 325. "In satisfying this burden of proof, the petitioner must first introduce evidence to overcome the presumption of ...


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