[Cite as Perry v. Greene, 2020-Ohio-288.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                      MORRIS PERRY, SR.,

                                                Petitioner,

                                                    v.

                    MAHONING COUNTY, YOUNGSTOWN, OHIO
                          SHERIFF JERRY GREENE,

                                               Respondent.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 19 MA 0048


                                        Writ of Habeas Corpus

                                       BEFORE:
                  Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.


                                               JUDGMENT:
                                                Dismissed.


 Morris Perry Sr. Mahoning County Jail, 110 Fifth Avenue, Youngstown, Ohio, for
 Petitioner and

 Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Respondent.
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                                 Dated: January 22, 2020



 PER CURIAM.

       {¶1}   Petitioner Morris Perry, Sr., proceeding on his own behalf, has filed a
successive petition for a writ of habeas corpus asserting actual innocence and seeking
release on his own recognizance or, in the alternative, setting a reasonable bail.
Petitioner filed a similar petition with this Court a week earlier in Perry v. Greene, 7th Dist.
Mahoning No. 19 MA 0043. Respondent has filed a motion to dismiss highlighting
procedural defects of the petition, and alternatively, arguing the petition lacks substantive
merit. Because Petitioner has failed to fulfill the mandatory procedural requirement of
including his commitment papers with his petition pursuant to R.C. 2725.04(D), we must
dismiss Relator’s petition on that basis.
       {¶2}   On October 18, 2018, the Mahoning County Grand Jury indicted Relator on
one count of rape of a child less than thirteen years of age with a force of threat or force
specification in violation of R.C. 2907.02(A)(1)(b)(B), a felony-life offense. Relator pled
not guilty and the trial court appointed him counsel. The case has proceeded to discovery
and other pre-trial matters, including the trial court’s establishing the conditions of
Relator’s bond in a judgment entry filed on December 7, 2018. The conditions include:
posting a bond of $50,000 cash or surety; electronically monitored house arrest with no
privileges unless specifically granted by the court; have no contact whatsoever with the
victim; not to be within 1000 feet of victim, victim’s residence or victim’s family; and, lastly,
no unsupervised contact with minors. The last sentence of the entry which is immediately
followed by Relator’s signature states: “I further understand that I shall fully cooperate
with my attorney in all matters pertaining to my case.”
       {¶3}   Ten days later, Relator began to file a litany of motions on his behalf. Of
particular relevance to this action, Relator filed a motion for bond reduction on December
17, 2018, and renewed the motion on March 18, 2019. It is important to note that although
a defendant has the right to counsel or the right to act pro se, a defendant does not have
any right to “hybrid representation.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471,
816 N.E.2d 227, paragraph one of the syllabus; State v. Thompson, 33 Ohio St.3d 1, 6-



Case No. 19 MA 0048
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7, 514 N.E.2d 407 (1987).        The right to counsel and the right to act pro se “are
independent of each other and may not be asserted simultaneously.” Martin, paragraph
one of the syllabus. More importantly, this Court has specifically held where counsel
represents a criminal defendant, a trial court may not entertain a defendant’s pro se
motion. State v. Brown, 7th Dist. Mahoning No. 16 MA 0059, 2017-Ohio-7704, ¶ 21; State
v. Mongo, 8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139, ¶¶ 13-15. Accord State v.
Smith, 4th Dist. Highland No. 09CA29, 2010-Ohio-4507, ¶ 100, State v. Davis, 10th Dist.
Franklin No. 05AP-139, 2006-Ohio-5093, ¶ 12; State v. Greenleaf, 11th Dist. Portage No.
2005-P-0017, 2006-Ohio-4317, ¶ 70. Notably, Relator’s first appointed counsel filed a
motion to withdraw from the case stating that there had been a breakdown of the attorney-
client relationship, which the trial court granted and appointed him substitute trial counsel.
Relator has been represented by appointed trial counsel at all times and stages of the
proceedings below. Despite filing numerous motions on his own behalf, most of which
are duplicative and redundant of those filed by his appointed trial counsel, Relator has
never requested of the trial court to proceed pro se.
       {¶4}   The Ohio Revised Code imposes certain filing requirements of a proper
petition for writ of habeas corpus. R.C. 2725.01, et seq., specifically governs habeas
filings, and failure to satisfy these statutory requirements is generally fatal to the petition.
One of the more important requirements is that the petitioner must file all pertinent
commitment papers relevant to the arguments being raised in the petition:

              Application for the writ of habeas corpus shall be by petition, signed
       and verified either by the party for whose relief it is intended, or by some
       person for him, and shall specify:

       ***

              (D) 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.

R.C. 2725.04(D).



Case No. 19 MA 0048
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       {¶5}    The Ohio Supreme Court has acknowledged the necessity and importance
of these papers:

       These commitment papers are necessary for a complete understanding of
       the petition. Without them, the petition is fatally defective. When a petition
       is presented to a court that does not comply with R.C. 2725.04(D), there is
       no showing of how the commitment was procured and there is nothing
       before the court on which to make a determined judgment except, of course,
       the bare allegations of petitioner’s application.

Bloss v. Rogers, 65 Ohio St.3d 145, 146, 602 N.E.2d 602 (1992).
       {¶6}    In this instance, Relator did not attach any of the required commitment
paper(s). He attached a copy of his indictment, but that is inadequate. On this exact
issue, the Ohio Supreme Court has specifically held “[a]ttaching the indictment to the
complaint is insufficient to satisfy the statute, because the indictment is merely a charge
of wrongdoing and fails to demonstrate how the commitment was procured.” State ex rel.
Arroyo v. Sloan, 142 Ohio St.3d 541, 2015-Ohio-2081, 33 N.E.3d 56, ¶ 3. Moreover,
“[s]uch a failure is fatal to a petition for habeas corpus.” Id.
       {¶7}    Even if we were able to proceed with a substantive review of Relator’s
petition, it would still fail.   Initially, we note that Ohio state courts have refused to
acknowledge claims of actual innocence under the Ohio Constitution. State v. Mack, 8th
Dist. Cuyahoga No. 75086, 1999 WL 980404, *5; see also Turner v. Ishee, 98 Ohio St.3d
411, 2003-Ohio-1671, 786 N.E.2d 54, ¶ 7 (“habeas corpus is not available to test the
validity or sufficiency of an indictment or other charging instrument”); State ex rel.
Bruggeman v. Leonard, 86 Ohio St.3d 298, 299, 714 N.E.2d 921 (1999) (“Habeas corpus
will not issue to raise claims of insufficiency of evidence”).
       {¶8}    As for the relief Relator is seeking, 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



Case No. 19 MA 0048
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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 regularity that attaches to all court
proceedings.” Id.
       {¶10} Petitioner here has failed to meet his burden. The bulk of his petition is
unrelated to bail, instead focusing on his claim of actual innocence. On the topic of bail,
he simply asks to be released on his own recognizance or the setting of a reasonable
bail. This is insufficient.
       {¶11} “[I]n order to avoid dismissal, a petitioner must state with particularity the
extraordinary circumstances entitling him to habeas corpus relief. * * * Unsupported
conclusions contained in a habeas corpus petition are not considered admitted and are
insufficient to withstand dismissal.” Id. at 328. Like the petition in Chari, the petition here
contains only “unsupported, legal conclusions, i.e., that his bail is unlawful, excessive,
and unconstitutional” and “allege[s] no facts that indicate either an abuse of discretion by
the trial court or that appropriate grounds for independent review exist by the court of
appeals * * *.” Id.
       {¶12} As indicated, Petitioner has not stated with particularity the extraordinary
circumstances entitling him to habeas corpus relief and that failure to do so is an
additional, sufficient independent basis to dismiss his application for the writ. Moreover,
Relator’s claim related to bail is undermined by the fact that Relator posted the $50,000
bail on September 11, 2019, and was released. Additionally, thereafter the trial court
twice granted Relator’s motions for modification of his bond conditions permitting him to
attend social security, welfare, and doctor appointments.
       {¶13} However, subsequent to his release and the granting of those modifications,
the trial court determined Relator had violated the conditions of his bond and has since
issued a bench warrant for his arrest. Nevertheless, we would determine that the trial
court’s setting Relator’s bail at $50,000 is reasonable. Relator is accused of committing
an offense for which there is a heightened level of seriousness. The Ohio Supreme Court




Case No. 19 MA 0048
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in Bland v. Holden, 21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970), highlighted an
understandable potential correlation:

       The purpose of bail is to secure the attendance of the accused at his trial.
       The amount of bail is largely within the sound discretion of the court. The
       court may consider the character and past record of the accused, the
       seriousness of and the number of crimes for which he is charged and the
       penalties attached thereto. Annotation, 72 A.L.R. 801. If the penalty is not
       great, the accused may have no incentive to jump bail. On the other hand,
       if an accused is charged with crimes the conviction for which would result
       in long incarceration, with little hope of early release or probation, the
       incentive to abscond is greater and the amount must be such as to
       discourage the accused from absconding.

(Emphasis added.) Here, if convicted of the offense for which he was indicted, Relator
would be facing life in prison. Consequently, we would be unable to conclude that
$50,000 bail is excessive or unreasonable under the facts and circumstances of this case.
       {¶14} Accordingly, Respondent’s motion to dismiss is granted and Relator’s
petition is dismissed.
       {¶15} Costs taxed against Relator. Final order. Clerk to serve copies of this
decision and judgment entry pursuant to the civil rules.




 JUDGE CAROL ANN ROBB

 JUDGE GENE DONOFRIO

 JUDGE CHERYL L. WAITE




Case No. 19 MA 0048
