[Cite as Turner v. Sutula, 2014-Ohio-5696.]



                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 102190




                                        JOHN L. TURNER, JR.

                                                           RELATOR

                                                     vs.

                                 JUDGE JOHN D. SUTULA, ET AL.

                                                           RESPONDENTS




                                             JUDGMENT:
                                          PETITION GRANTED




                                         Writ of Habeas Corpus
                                           Motion No. 480397
                                          Order No. 481221

              RELEASED DATE:                  December 23, 2014
                                                     -i-
FOR PETITIONER

John L. Turner, pro se
P. O. Box 5600
Cleveland, Ohio 44101


ATTORNEYS FOR RESPONDENT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: James E. Moss
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

        {¶1}     On November 12, 2014, the petitioner, John L. Turner, Jr., pro se, commenced this

habeas corpus action against the respondents, Judge John D. Sutula, Cuyahoga County Prosecutor

Timothy McGinty, and Sheriff Frank Bova, to compel the respondents to reinstate his $25,000

bond in the underlying case, State v. Turner, Cuyahoga C.P. No. CR-13-576006-A or to order his

release.1   Turner claims that he is being held unlawfully without bail in the Cuyahoga County

jail. On November 21, 2014, the respondent moved for summary judgment on the grounds of

pleading deficiencies and adequate remedy at law. Pursuant to App.R. 14(C) and Loc.App.R.

45(B)(3), Turner’s time to respond to the dispositive motion has lapsed, and he did not file a

response.      Thus, the matter is ripe for resolution. For the following reasons, this court denies

the motion for summary judgment, grants the writ of habeas corpus and grants relief by ordering

the trial court to set bond forthwith.

        {¶2}     In the underlying case in July 2013, the grand jury indicted Turner for multiple

counts of theft, grand theft, breaking and entering, and criminal damaging. The trial court set

bond at $25,000, and Turner posted that amount on August 1, 2013. On March 12, 2014, the

Ohio Adult Parole Authority placed a hold on Turner and took him to the Lorain Correctional

Institution for a postrelease control violation hearing, at which he was found to be a violator and

sentenced to 200 days. Consequently, he missed his April 8, 2014 appearance in the underlying

case, and the trial judge revoked his bond.           When Turner finished his sentence in late October

2014, he moved the trial judge to reinstate his bond. The trial judge has yet to rule on that


        1
           The court notes that Sheriff Bova is the only proper respondent in this habeas corpus case. Hamilton v.
Collins, 11th Dist. Lake No. 2003-L-094, 2003-Ohio-4104. Consequently, the court dismisses Judge John Sutula
and Prosecutor Timothy McGinty.
motion, and Turner is incarcerated in the Cuyahoga County jail awaiting trial without bond.

       {¶3}    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. 238, 257 N.E.2d 238 (1970).

       {¶4}    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). 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.” 342 U.S. at 4-5.

       {¶5}    The respondent does not contest Turner’s habeas petition on the merits, but rather

seeks to defeat it on procedural technicalities. The sheriff argues that Turner has an adequate

remedy at law precluding habeas relief through appeal pursuant to R.C. 2937.222(D). That

statute provides that a trial court may deny bail for certain serious offenses such as, aggravated

murder without capital specifications, murder, and first and second degree felonies after a hearing

in which the defendant is provided with full due process protections, including an attorney, the

right to testify and present evidence, and the right to cross-examination. If the court denies bond
after such a hearing, then the defendant’s remedy is an appeal.

       {¶6}    However, the respondents have not established that R.C. 2937.222 is applicable.

From the respondents’ own pleading, it appears that the most serious crime with which Turner is

charged is grand theft, a fourth-degree felony. Furthermore, the sheriff has not established that

the trial court furnished Turner with a R.C. 2937.222 hearing with all due process rights. The

court revoked his bond for failure to appear and then entered judgment against the surety for

failure to produce the body of John Turner. Accordingly, R.C. 2937.222 and its remedy by way

of appeal is not relevant to this habeas action.

       {¶7}    The law burdens a habeas petitioner with several pleading prerequisites.         R.C.

2725.04 requires that the petition be verified.      R.C. 2725.04(D) provides: “A copy of the

commitment or cause of detention of such person shall be exhibited, if it can be procured without

impairing the efficiency of the remedy; or, if the imprisonment or detention is without legal

authority, such fact must appear.” Loc.App.R. 45 requires the petitioner to file an affidavit

“specifying the details of the claim.” To waive the prepayment of the filing fee a prisoner must

submit an affidavit under R.C. 2969.25(C) that includes a certified statement by his prison cashier

setting forth the balance in his private account for each of the preceding six months. R.C.

2969.25(A) demands that a prisoner must submit an affidavit describing each civil action or

appeal of a civil action he had filed in the previous five years in any state or federal court, along

with the case number, the parties involved, and the outcome of the case.

       {¶8}    Turner filed with his petition (1) a Loc.App.R. 45 affidavit specifying the details of

the claim, (2) a partial copy of the docket in the underlying case showing the revocation and

forfeiture of the bond, (3) an Ohio Department of Rehabilitation and Correction Prison Term

Order showing his 200-day sentence for violating postrelease control, (3) a poverty affidavit, (4) a
Cuyahoga County Sheriff’s Office trust account statement showing Turner’s account from June

20, 2014 through September 23, 2014, and (5) a prior lawsuit affidavit stating that he has filed two

habeas corpus petitions and a mandamus action in this court.2

        {¶9}     The sheriff argues that these filings are insufficient.           The petition itself is not

verified. He does not show the cause of his detention. The cashier’s statement covers only

three months instead of the required six, and the prior lawsuit affidavit omits that case numbers,

the parties, and the outcome of the cases.

        {¶10} These arguments elevate form over substance. The Loc.App.R. 45 affidavit fulfills

the verification requirement of R.C. 2725.04. The docket shows revocation of the bond.

Moreover, the parties do not dispute the fact that Turner is being held without bond. Indeed, the

attachments to the motion for summary judgment include a complete docket, the initial entry

setting bond, and the bond forfeiture notice and order. Although the other attachments may not

be perfect, Turner has facially fulfilled the filing requirements.            In weighing the constitutional

right to pretrial bail against the various pleading requirements, this court declines to elevate form

over substance when the petitioner has facially fulfilled those pleading requisites.

        {¶11} Accordingly, this court denies the motion for summary judgment.                        This court

issues the writ of habeas corpus and grants relief as follows: In State v. Turner, Cuyahoga C.P.

No. CR-13-576006-A, the trial court shall set bond forthwith at a hearing with all parties present.

Respondent to pay costs. This court directs the clerk of courts to serve all parties notice of this

judgment and its date of entry upon the journal as required by Civ.R. 58(B).

        {¶12} Petition granted and relief ordered.


        2
           The court notes that unlike many “affidavits” coming from the Cuyahoga County jail, these are actually
notarized and have the proper form of an affidavit.
PATRICIA ANN BLACKMON, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
