Opinion
113282
10-19-2023
OMAR MASSOUD, Petitioner, v. HAROLD PRETEL, SHERIFF OF CUYAHOGA COUNTY, Respondent.
Friedman Nemecek &Long, L.L.C., Ian N. Friedman, and Madelyn J. Grant, for petitioner. Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent.
Writ of Habeas Corpus Order No. 568723.
Appearances:
Friedman Nemecek &Long, L.L.C., Ian N. Friedman, and Madelyn J. Grant, for petitioner.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Nora E. Poore, Assistant Prosecuting Attorney, for respondent.
JOURNAL ENTRY AND OPINION
EMANUELLA D. GROVES, JUDGE.:
{¶ 1} Petitioner, Omar Massoud, seeks a writ of habeas corpus directing Cuyahoga County Sherrif Harold Pretel to release him from custody. For the reasons that follow, we order petitioner's immediate release from confinement upon the conditions set forth at the conclusion of this opinion.
I. Background
{¶2} Petitioner filed the instant petition on October 17, 2023. There, petitioner asserted that he is the defendant in State v. Massoud, Cuyahoga C.P. CR-23-679253-A. He was charged with numerous counts of fourth-degree felony gross sexual imposition and third-degree misdemeanor counts of unlawful restraint. On May 24, 2023, petitioner appeared for arraignment where a $60,000 bond was set, which was posted the same day. According to the petition, since that time, petitioner has remained on bond and has complied with all conditions of bond. According to an affidavit attached to the petition from petitioner's criminal trial counsel, Madelyn J. Grant, there has been no finding by the trial judge overseeing the case or even any allegation that petitioner has violated any terms of his bond in the approximately five months that petitioner has remained on bond.
{¶ 3} On October 15, 2023, petitioner filed a notice of intent to change his pleas to not guilty by reason of insanity in the underlying criminal case. The next day, petitioner also filed a request for a competency evaluation pursuant to the notice. A hearing was conducted before the trial judge on October 16, 2023. There, the court granted the motion for a competency evaluation and ordered petitioner remanded into custody. (Tr. 12-13.) According to Grant's affidavit, the court informed petitioner that he "was not being remanded as a 'punitive' measure but was instead necessary in order for him to be evaluated by the [court's psychiatric clinic]." At the time of the filing of the petition in this matter, the trial judge had not journalized an order remanding petitioner into respondent's custody, but respondent was nevertheless taken into custody after this hearing.
Because the trial judge had not journalized the order of confinement at the time the petition was filed, petitioner stated that he was unable to attach his commitment papers to his petition. Generally, the failure to attach papers of commitment to the petition for a writ of habeas corpus is a fatal defect. However, here the trial court has not journalized the order remanding petitioner into custody and R.C. 2725.04(D) requires the attachment of commitment papers only if they "can be procured without impairing the efficiency of the remedy." Here, petitioner should be not required to wait until the trial court journalizes the order of confinement several days after the fact while he waits in jail before he can seek relief. Further, petitioner supplemented the petition with the order issued by the trial court the same day it was journalized.
{¶ 4} Petitioner requests that this court issue a writ of habeas corpus and direct the immediate discharge of petitioner from confinement.
{¶ 5} On October 18, 2023, this court ordered a return of writ by respondent by 12:00 p.m. on October 19, 2023. Also on October 18, 2023, petitioner filed a motion to supplement his petition with a transcript of the hearing in which petitioner was remanded into custody. This court granted the motion. Also after this court's business hours on October 18, 2023, petitioner filed a motion to supplement with a journal entry that was journalized on October 18, 2023, memorializing the trial court's decisions made on October 16, 2023. In that journal entry, the court does not order petitioner remanded into custody, but refers the petitioner to the court psychiatric clinic. The entry also notes that the petitioner's "change to not guilty by reason of insanity may raise security and safety issues." (Emphasis added.)
{¶ 6} Respondent timely filed a return of writ arguing that petitioner was being lawfully held pursuant to a second signed entry journalized October 18, 2023. That order remanded petitioner to Cuyahoga County Jail for completion of the court-ordered evaluation.
II. Law and Analysis
{¶ 7} "To be entitled to a writ of habeas corpus, a petitioner must show that he is being unlawfully restrained of his liberty and that he is entitled to immediate release from prison or confinement." State ex rel. Ellison v. Black, 165 Ohio St.3d 310, 2021-Ohio-3154, 178 N.E.3d 508, ¶ 9, citing R.C. 2725.01; State ex rel. Cannon v. Mohr, 155 Ohio St.3d 213, 2018-Ohio-4184, 120 N.E.3d 776, ¶ 10. Generally, "[h]abeas corpus is not available to challenge a nonjurisdictional error when there is an adequate remedy in the ordinary course of law." Id., citing State ex rel. Walker v. Sloan, 147 Ohio St.3d 353, 2016-Ohio-7451, 65 N.E.3d 744, ¶ 7. However, "[a] petition for a writ of habeas corpus is the proper cause of action for a person seeking to challenge the unlawful restraint of his liberty due to excessive bail or the complete denial of bail." State ex rel. Wesley v. Cuyahoga Cty. Court of Common Pleas, 165 Ohio St.3d 574, 2021-Ohio-3489, 180 N.E.3d 1120, ¶ 11, citing Chari v. Vore, 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001); State ex rel. Pirman v. Money, 69 Ohio St.3d 591, 594, 635 N.E.2d 26 (1994); State v. Bevacqua, 147 Ohio St. 20, 67 N.E.2d 786 (1946), syllabus.
{¶ 8} And that's how this court must classify this case - the denial of bail. The trial judge remanded petitioner into custody with only limited oral explanation and without any journalized decision at the time petitioner filed the instant petition. At the hearing, the trial judge indicated that remanding petitioner is the only way to have the mental health assessment completed that petitioner had requested. (Tr. 13.) After further argument by petitioner's counsel, and a request to contact the court psychiatric clinic to determine whether the clinic could do the evaluation without petitioner's confinement, the trial judge indicated that it was actually for convenience:
[PETITIONER'S COUNSEL]: That's different - then that's different.
THE COURT: It's not their decision. I want it to be convenient for them.
[PETITIONER'S COUNSEL]: So for the purposes of convenience we're going to incarcerate him now?
THE COURT: It's the only way we have to work it.(Tr. 20.)
{¶ 9} At the hearing, the trial court appears to have ordered petitioner remanded into custody for the purpose of a mental evaluation after allowing him to change his plea to not guilty by reason of insanity. However, the statutory scheme governing these evaluations provides no justification for the trial judge's actions.
{¶ 10} Nothing in R.C. 2945.37 or 2945.371, governing hearings and evaluations on a defendant's competency, states that a defendant must be confined in jail in order for a competency evaluation to occur. R.C. 2945.371 has a specific procedure that governs the exact process to be employed in this situation. R.C. 2945.371(A) states:
If the issue of a defendant's competence to stand trial is raised or if a defendant enters a plea of not guilty by reason of insanity, the court may order one or more evaluations of the defendant's present mental condition or, in the case of a plea of not guilty by reason of insanity, of the defendant's mental condition at the time of the offense charged.
{¶ 11} R.C. 2945.371(C)(1) provides that for those released on bail, "If the court orders an evaluation under division (A) of this section, the defendant shall be available at the times and places established by the examiners who are to conduct the evaluation. The court may order a defendant who has been released on bail or recognizance to submit to an evaluation under this section." If a defendant released on bail refuses to submit or cooperate in an evaluation, then a court may proceed to amend the conditions of bail or order a defendant into custody:
If a defendant who has been released on bail or recognizance refuses to submit to a complete evaluation, the court may amend the conditions of bail or recognizance and order the sheriff to take the defendant into custody and, except as provided in division (E) of this section, deliver the defendant to a center, program, or facility operated or certified by the department of mental health and addiction services or the department of developmental disabilities where the defendant may be held for evaluation for a reasonable period of time not to exceed twenty days.
{¶ 12} In the present case, there is no indication that petitioner has refused to participate in an evaluation such that the trial court could or should amend the conditions of his bail or order the sheriff to take petitioner into custody. The trial court ordered him into custody the day after the motion for examination was filed.
{¶ 13} Because the court does not have authority to order petitioner into custody pursuant to this statute, petitioner's bond was essentially revoked by the trial court. R.C. 2937.011 governs pretrial release in this case. R.C. 2937.011(G) provides:
R.C. 2937.222 provides a means to revoke a defendant's bail and hold him or her without bail. However, this statute only applies to defendants that have been indicted on first- or second-degree felonies, or a few other offenses. This statute also makes the decision to hold a defendant without bail a final, appealable order, precluding relief in mandamus. However, petitioner was indicted on numerous fourth-degree felonies and misdemeanors, none of which are listed in R.C. 2937.222. Therefore, this statute does not apply, and habeas corpus is an available form of relief.
When a judicial officer, either on motion of a party or on the court's own motion, determines that the considerations set forth in divisions (D) and (E) of this section require a modification of the conditions of release, the judicial officer may order additional or different types, amounts, or conditions of bail, or may eliminate or lessen conditions of bail the court determines to be no longer necessary. Unless the parties agree to a modification, the court shall hold a hearing on the modification of bond as promptly as possible. Unless modified by the judicial officer, or if application is made by a surety for discharge from a bond pursuant to section 2937.40 of the Revised Code, conditions of release shall continue until the return of a verdict or the entry of a guilty plea or a no-contest plea and may continue thereafter pending sentence or disposition of the case on review.(Emphasis added.) Further, R.C. 2937.011(K) provides that "[a]ny person who fails to appear before any court as required is subject to the punishment provided by the law, and any bail given for the defendant's release may be forfeited. If there is a breach of a condition of release, the court may amend the bail." The trial court made no findings that would justify the revocation of bail. The trial court's first entry states that petitioner's change of plea may raise safety or security concerns. And this justification was not mentioned at the hearing where the trial judge made the decision to remand petitioner. The only reason given at the hearing was for the convenience of the court psychiatric clinic. Our brief reading of this statute does not indicate that the trial court has the authority to completely revoke bail. Barring any other source of authority that has not been identified by respondent or the journal entries entered by the trial court, the court did something that it could not do.
{¶ 14} Without statutory authority, the trial court has improperly ordered petitioner detained without bail and without any justification under the law. Such confinement is unlawful. This is the ill that the writ of habeas corpus was designed to alleviate and for which immediate action is required. If the trial court is correct that this is the only way in which such evaluations can be conducted in Cuyahoga County, then that practice must change. It is unlawful under the statutory procedure laid out in R.C. 2945.371.
{¶ 15} For these reasons, we order petitioner's immediate discharge from custody on condition that petitioner continues to abide by the terms and conditions of his previously imposed bail, amend those terms to include GPS monitoring that shall be implemented by the trial court but the implementation of which shall not be a cause to delay petitioner's release; and petitioner shall surrender any passports he may possess to the trial court. The trial court may hold a hearing and modify any of these conditions of release pursuant to R.C. 2937.011. Costs assessed against respondent; costs waived. Pursuant to R.C. 2725.07, the clerk shall immediately issue this writ to respondent with all due haste. Further, pursuant to Civ.R. 58(B), the clerk is directed to serve on the parties notice of this judgment and its date of entry upon the journal.
{¶ 16} Writ granted.
MARY EILEEN KILBANE, P.J., and SEAN C. GALLAGHER, J., CONCUR.