[Cite as Olmstead v. Risner, 2018-Ohio-854.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


BRANDON OLMSTEAD                               :    JUDGES:
                                               :
       Petitioner                              :    Hon. John W. Wise, PJ.
                                               :    Hon. Patricia A. Delaney, J.
                                               :    Hon. Earle E. Wise Jr., J.
-vs-                                           :
                                               :
E. WAYNE RISNER                                :    Case No. 17-COA-39
ASHLAND COUNTY SHERIFF                         :
                                               :
        Respondent                             :    OPINION



CHARACTER OF PROCEEDING:                            Writ of Habeas Corpus


JUDGMENT:                                           Dismissed


DATE OF JUDGMENT:                                   March 7, 2018



APPEARANCES:

For Petitioner:                                     For Respondent:

Andrew S. Wick                                      Christopher R. Tunnell
23 East High Street                                 Ashland County Prosecutor
Mount Gilead, Ohio 43338                            110 Cottage Street, Third Floor
                                                    Ashland, Ohio 44805

                                                    Michael Donatini
                                                    Assistant Prosecuting Attorney
                                                    110 Cottage Street, Third Floor
                                                    Ashland, Ohio 44805
Ashland County, Case No. 17-COA-39                                                           2

Delaney, J.

       {¶1}   Petitioner, Brandon Olmstead, has filed a Petition for Writ of Habeas Corpus

challenging the trial court’s modification of his bond. Respondent has filed a motion to

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

       {¶2}   Petitioner was charged with multiple drug related felonies. On March 28,

2017, Petitioner was released on bond. On April 3, 2017, a search warrant was executed

on Petitioner’s residence.     What was believed to be methamphetamine and drug

paraphernalia was found during the search. On April 4, 2017, Petitioner tested positive

for multiple drugs. On April 5, 2017, the trial court revoked Petitioner’s bond for failure to

comply with the terms of the bond.

       {¶3}   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.”1 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, 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
Ashland County, Case No. 17-COA-39                                                           3

       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.

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

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

order additional or different types, amounts or conditions of bail.”

       {¶5}   Here, Respondent has provided a response explaining why Petitioner’s

bond was revoked: new charges, positive drug test. In turn, Petitioner has presented no

evidence which would justify granting bail.

       {¶6}   Additionally, Petitioner has now plead guilty and is no longer in

Respondent’s custody.
Ashland County, Case No. 17-COA-39                                                   4


      {¶7}   Based upon the foregoing, the Petition is dismissed for failure to state a

claim upon which relief may be granted and for mootness. For these reasons,

Respondent’s motion to dismiss is granted.


By: Delaney, J.

Wise, John, P.J. and

Wise, Earle, J. concur.
[Cite as Olmstead v. Risner, 2018-Ohio-854.]
