Court of Appeals of Ohio, Eighth District, Cuyahoga
of Habeas Corpus Motion No. 527562 Order No. 528700
Kimberly Kendall Corral, for petitioner
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting
Attorney, for respondent.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, P.J.
1} On April 8, 2019, the petitioner, Tamar Evans,
commenced this habeas corpus action against the respondent,
Sheriff Clifford Pinkney. Evans avers that he is being
illegally held on an excessive $1, 000, 000 bond for
aggravated murder. On April 16, 2019, the sheriff moved for
summary judgment, and Evans filed his reply brief on April
24, 2019. For the following reasons, this court grants the
sheriffs motion for summary judgment and denies the
application for a writ of habeas corpus.
2} In August 2003, in the underlying case, State
v. Evans, Cuyahoga C.P. No. CR-03-442218-ZA, the grand
jury indicted Evans and Lamaien Wright-Scott, for aggravated
robbery with firearm specifications, aggravated murder with
firearm specifications, aggravated murder with felony-murder
and firearm specifications, murder with firearm
specifications, and carrying concealed weapons. The docket in
the underlying case shows that the court set bond at $1, 000,
3} The state asserts that during its investigation,
Evans confessed to killing the victim, Matthew Glasear, as
follows: Evans and Wright-Scott saw Glasear apparently
selling drugs. Wright-Scott said they could get him once the
buyers left. Evans and Wright-Scott ran up to Glasear and
told him "don't run, don't move." Evans
said that he saw Glasear pulling his hand out of his pocket
and that he had something in his hand; thinking that the
object was a gun, Evans shot him. When Glasear did not
immediately fall to the ground, Evans shot him again. Evans
and Wright-Scott took Glasear's cell phone, money, and
drugs, and ran away. During the confession, Evans identified
a picture of Glasear as the man he shot and the revolver that
was found on him at his arrest as the gun he used to shoot
Glasear. Wright-Scott's statement to the police
corroborated Evans's account.
4} In June 2004, Evans and the state reached a plea
bargain. The state amended the aggravated murder with
felony-murder and firearm specifications to involuntary
manslaughter with firearm specifications and nolled the other
murder charges. Evans pled guilty to involuntary
manslaughter, aggravated robbery, and carrying a concealed
weapon. The judge imposed a sentence of 24 years for these
charges to run consecutive to an 11-year sentence in
State v Evans, Cuyahoga C.P. No. CR-03-442161-ZA,
for an agreed combined sentence of 35 years.
5} In August 2018, the trial court granted
Evans's motion to withdraw his guilty plea based on
actual innocence. After a hearing and reviewing affidavits,
the trial court found that Wright-Scott testified
consistently with his affidavit that he and he alone shot
Glasear and that his testimony was consistent with other
proffered evidence. In granting the motion to withdraw his
guilty plea, the original charges and the original bond
revived. State ex rel Cola v. McFaul, 109 Ohio
App.3d 203, 671 N.E.2d 1316 (8th Dist.1996). After denying a
motion to reduce bond, the trial court explicitly reaffirmed
the $1, 000, 000 bond in a March 28, 2019 journal entry.
Evans now brings this habeas corpus action to contest the
6} The principles governing habeas corpus in these
matters are well established. Under both the United States
and Ohio Constitutions, "excessive bail shall not be
required." If the offense is bailable, the right to
reasonable bail is an inviolable one that may not be
infringed or denied. In re Gentry, 7 Ohio App.3d
143, 454 N.E.2d 987 (6th Dist.1982), and Lewis v.
Telb, 26 Ohio App.3d 11, 497 N.E.2d 1376 (6th
Dist.1985). The purpose of bail is to secure the attendance
of the accused at trial. Bland v. Holden, 21 Ohio
St.2d 238, 257 N.E.2d 397 (1970).
7} In Ohio, the writ of habeas corpus protects the
right to reasonable bail. In re Gentry. A person
charged with the commission of a bailable offense cannot be
required to furnish bail in an excessive or unreasonable
amount. In re Lonardo, 86 Ohio App. 289, 89 N.E.2d
502 (8th Dist.1949). Indeed, bail set at an unreasonable
amount violates the constitutional guarantees. Stack v.
Boyle, 342 U.S. 1, 72 S.Ct.1, 96 L.Ed. 3 (1951).
Pursuant to Crim.R. 46, in determining what is reasonable
bail, the court must consider all relevant information
including but not limited to, the nature and circumstances of
the offense charged, the weight of the evidence, the
accused's history of flight or failure to appear at court
proceedings, his ties to the community, including his family,
financial resources and employment, and his character and
mental condition. After weighing these factors, the trial
judge sets the amount of bail within its sound discretion.
The discretion to set bail also permits the trial court to
change bail as circumstances warrant. Hardy v.
McFaul, 8th Dist. Cuyahoga No. 84495, 2004-Ohio-2694. In
a habeas corpus action to contest the reasonableness of bond,
this court must determine whether the trial court abused its
discretion. Jenkins v. Billy, 43 Ohio St.3d 84, 538
N.E.2d 1045 (1989); In re Gentry; Lewis; and In
re Green, 101 Ohio App.3d 726, 656 N.E.2d 705 (8th
8} As the Supreme Court stated in Stack,
"This traditional right to freedom before conviction
permits the unhampered preparation of a defense, and serves
to prevent the infliction of punishment prior to conviction.
Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of
struggle, would lose its meaning." Stack at
9} In the present case, this court concludes that
the trial court did not abuse its discretion in setting bail.
The charges of aggravated murder, murder, and aggravated
robbery are very serious and could lead to a life sentence.
Moreover, Evans confessed to killing Glasear and pled guilty.
Nor would the trial court be amiss in concluding that
spending many years in prison would create a great temptation
to abscond and never return.
10} Moreover, the courts have upheld $1, 000, 000