[Cite as Lazzerini v. Maier, 2018-Ohio-1788.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



FRANK D. LAZZERINI                                 JUDGES:
                                                   Hon. John W. Wise, P. J.
        Petitioner                                 Hon. Patricia A. Delaney, J.
                                                   Hon. Earle E. Wise, Jr., J.
-vs-
                                                   Case No. 2018 CA 00025
GEORGE T. MAIER, SHERIFF

        Respondent                                 OPINION




CHARACTER OF PROCEEDING:                        Petition for Writ of Habeas Corpus



JUDGMENT:                                       Dismissed



DATE OF JUDGMENT ENTRY:                         May 2, 2018



APPEARANCES:

For Petitioner                                  For Respondent

DONALD J. MALARCIK                              JOHN D. FERRERO
BRIAN M. PIERCE                                 PROSECUTING ATTORNEY
54 East Mill Street                             KATHLEEN O. TATARSKY
Suite 400                                       ASSISTANT PROSECUTOR
Akron, Ohio 44308                               110 Central Plaza South, Suite 510
                                                Canton, Ohio 44702-0049
Stark County, Case No. 2018 CA 00025                                                     2

Wise, John, P. J.

      {¶1}   Petitioner, Frank D. Lazzerini, has filed a Petition for Writ of Habeas Corpus

alleging unlawful detention due to excessive bail. Respondent has filed an Answer,

Return, and Motion to Dismiss.

      {¶2}   An indictment has been issued against Petitioner containing 272 felony

counts. Those counts include Telecommunications Fraud, Grand Theft, Tampering with

Records, Involuntary Manslaughter, Aggravated Trafficking in Drugs, and Trafficking in

Drugs.

             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 which may not be infringed or denied.

      In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454 N.E.2d 987, and

      Lewis v. Telb (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d 1376.

      The purpose of bail is to secure the attendance of the accused at trial. Bland

      v. Holden (1970), 21 Ohio St.2d 238, 50 O.O.2d 477, 257 N.E.2d 397.

             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 (1949), 86 Ohio App. 289, 41 O.O. 313, 89 N.E.2d

      502. Indeed, bail set at an unreasonable amount violates the constitutional

      guarantees. Stack v. Boyle (1951), 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3.
Stark County, Case No. 2018 CA 00025                                                    3


             Pursuant to Crim.R. 46, in determining what is reasonable bail, the

      court must weigh various factors: 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 his sound discretion. 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 (1989), 43 Ohio St.3d 84,

      538 N.E.2d 1045; In re Gentry (1982), 7 Ohio App.3d 143, 7 OBR 187, 454

      N.E.2d 987; Lewis (1985), 26 Ohio App.3d 11, 26 OBR 179, 497 N.E.2d

      1376; and In re Green (1995), 101 Ohio App.3d 726, 656 N.E.2d 705. In re

      Periandri, 142 Ohio App. 3d 588, 591, 756 N.E.2d 682, 684 (8th Dist.).

             What bail is or is not reasonable is a question for the exercise of

      sound discretion by the court. The decision is dependent upon all the facts

      and circumstances in each individual case. Bland v. Holden (1970), 21 Ohio

      St.2d 238, 257 N.E.2d 397 [50 O.O.2d 477].” Petition of Gentry, 7 Ohio

      App. 3d 143, 145, 454 N.E.2d 987, 989-90 (1982).

      {¶3}   An abuse of discretion occurs when a court's decision is unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

      {¶4}   Bail in the underlying case was set in the amount of $5,000,000. Petitioner

filed a motion requesting modification of the bail. A hearing was held wherein the parties
Stark County, Case No. 2018 CA 00025                                                      4


presented arguments in support of their positions. No evidence was offered in support

of the arguments.

      {¶5}   At the hearing on the motion to modify the bail amount, the trial court relied

on the seriousness of the offenses charged which include two involuntary manslaughter

counts, engaging in a pattern of corrupt activity, 28 counts of aggravated trafficking in

drugs, 9 of which include major drug offender specifications, in its decision to keep the

bond at five million dollars. Further, the trial court found the probability of appearing in

court was lessened due to the substantial and unprecedented number of charges against

Relator, as well as due to the potential significant sentence.

      {¶6}   We cannot say under these circumstances that we find the trial court

abused its discretion in setting the bond in this case.

      {¶7}   The Supreme Court has further held,

             [I]n 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,
Stark County, Case No. 2018 CA 00025                                                      5

       190 So.2d 722, 723.Chari v. Vore, 91 Ohio St.3d 323, 2001-Ohio-49, 744

       N.E.2d 763 (2001).

       {¶8}   Respondent directs this Court to the fact Petitioner’s failure to present any

 evidence in support of his claims such as proof of Petitioner’s financial status, medical

 licensure status, and passport status.

       {¶9}   Because Petitioner has not introduced evidence demonstrating he is

 entitled to the issuance of a writ of habeas corpus and because we cannot find the trial

 court abused its discretion in setting the bond, the motion to dismiss is granted.


By: Wise, John, P. J.

Delaney, J., and

Wise, Earle, J., concur.


JWW/d 0418
