[Cite as State ex rel. Middaugh vs. Stark Cty. Sheriff, 2016-Ohio-184.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO, Ex. Rel. PAUL J.                              JUDGES:
MIDDAUGH                                                     Hon. John W. Wise, P. J.
                                                             Hon. Patricia A. Delaney, J.
        Petitioner                                           Hon. Craig R. Baldwin, J.

-vs-                                                         Case No. 2015 CA 00230

STARK COUNTY SHERIFF

        Respondent                                           OPINION




CHARACTER OF PROCEEDING:                                 Writ of Habeas Corpus


JUDGMENT:                                                Dismissed


DATE OF JUDGMENT ENTRY:                                  January 19, 2016


APPEARANCES:

For Petitioner                                           For Respondent

BARRY T. WAKSER                                          KATHLEEN O. TATARSKY
201 Cleveland Avenue SW                                  ASSISTANT PROSECUTOR
Suite 104                                                110 Central Plaza South, Suite 510
Canton, Ohio 44702-2202                                  Canton, Ohio 44702
Stark County, Case No. 2015 CA 00230                                                          2

Wise, P. J.

       {¶1}    Petitioner, Paul J. Middaugh, has filed a Petition for Writ of Habeas Corpus

challenging the trial court’s modification and/or revocation of his bond. Respondent has

filed a motion to dismiss for failure to state a claim upon which relief may be granted.

       {¶2}    Petitioner is charged with possession of heroin, a felony of the fifth degree.

Initially, Petitioner was free on a personal recognizance bond with pretrial release

supervision. However, the bond was revoked at a pre-trial after Petitioner informed the

trial court of his desire to proceed to trial.

       {¶3}    Respondent argues the bond was not revoked, but merely modified from a

personal recognizance bond to a bond in the amount of $200,000.00. The distinction is

one which this Court does not find relevant in this case. The bond was changed from a

personal recognizance bond to one requiring Petitioner to post $200,000.00. Whether it

is classified as a revocation or change is immaterial.

       {¶4}    In support of his contention that a bond cannot be revoked absent a change

of circumstances, Petitioner relies on a 2007 Sixth District case, Leu v. Telb, 6th Dist.

Lucas No. L-07-1217, 2007-Ohio-3317. The Leu court indeed holds bond may not be

altered absent a change of circumstances. It is our opinion the Leu court does not state

the current standard for bond reviews. The holding in Leu followed the Sixth District’s

earlier holding in Utley v. Kohl, 120 Ohio App.3d 52, 696 N.E.2d 652 (6th Dist.1997).

       {¶5}    The Leu court stated, “In making our decision in Utley, we held that ‘[w]here

the trial court setting the original bail has considered all the required factors in determining

the amount of bail, and there is no showing of any changed circumstances of the accused
Stark County, Case No. 2015 CA 00230                                                          3

or his surroundings, the bond as set must continue as a matter of right.’ Id., citing Crim.R.

46(J).” Leu v. Telb, 6th Dist. Lucas No. L-07-1217, 2007-Ohio-3317, ¶ 14.

       {¶6}   What Leu and Petitioner fail to recognize is that Criminal Rule 46 was

amended in 1998. The version in effect at the time Utley was decided provided in relevant

part, “(J) . . . 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.” (emphasis added).

       {¶7}   Now, the rule reads as follows, “(H) Unless otherwise ordered by the court

pursuant to division (E) of this rule, … the same bond shall continue until the return of a

verdict or the acceptance of a guilty plea.”

       {¶8}   Section (E) of Crim.R. 46 provides, “(E) A court, at any time, may order

additional or different types, amounts or conditions of bail.” (emphasis added).

       {¶9}   Reading the two sections together, once a bond is imposed, the bond shall

continue until verdict unless the court changes the bond, which may be done at any time.

       {¶10} The Supreme Court has explained the procedure in excessive bail habeas

corpus cases.

              In general, persons accused of crimes are bailable by sufficient

       sureties, and “[e]xcessive bail shall not be required.” Section 9, Article I,

       Ohio Constitution. Habeas corpus is the proper remedy to raise the claim of

       excessive bail in pretrial-release cases. See State ex rel. Smirnoff v. Greene

       (1998), 84 Ohio St.3d 165, 168, 702 N.E.2d 423, 425, and cases cited

       therein.

              In habeas corpus cases, the burden of proof is on the petitioner to

       establish his right to release. Halleck v. Koloski (1965), 4 Ohio St.2d 76, 77,
Stark County, Case No. 2015 CA 00230                                                         4

       33 O.O.2d 441, 441–442, 212 N.E.2d 601, 602; Yarbrough v. Maxwell

       (1963), 174 Ohio St. 287, 288, 22 O.O.2d 341, 342, 189 N.E.2d 136, 137.

              More specifically, in a habeas corpus proceeding, “where the return

       sets forth a justification for the detention of the petitioner, the burden of proof

       is on the petitioner to establish his right to release.” Id. at 288, 22 O.O.2d at

       342, 189 N.E.2d at 137. In satisfying this burden of proof, the petitioner must

       first introduce evidence to overcome the presumption of regularity that

       attaches to all court proceedings. Id. at 288, 22 O.O.2d at 342, 189 N.E.2d

       at 137.

              Thus, in habeas corpus actions, “the state makes a prima facie case

       by showing by what authority it holds the prisoner” and the “burden of

       proceeding then shifts to the prisoner to introduce facts which would justify

       the granting of bail.” See, e.g., Muller v. Bridges (1966), 280 Ala. 169, 170,

       190 So.2d 722, 723.

       {¶11} Chari v. Vore, 91 Ohio St.3d 323, 325, 2001-Ohio-49, 744 N.E.2d 763, 767

(2001).

       {¶12} Here, Respondent has provided a return providing authority upon which it

holds Petitioner.   In turn, Petitioner has presented no evidence which would justify

granting bail. The sole argument raised by Petitioner is that the trial court lacked authority

to alter the amount of the bond absent a change of circumstances. The trial court

provided reasons in support of the bond, including the Petitioner’s prior history of using

heroin to the point of overdosing, the trial court’s experience with similarly situated

defendants dying prior to disposition of their cases, and Petitioner’s criminal history.
Stark County, Case No. 2015 CA 00230                                                     5


Petitioner has failed to present any evidence which would justify a granting his release on

a bond different than the one imposed. For this reason, Respondent’s motion to dismiss

is granted. The Petition is dismissed for failure to state a claim upon which relief may be

granted.


By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.




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