Opinion
E-23-030
06-28-2023
Garry N. Savage, Sr. Petitioner v. Sheriff Paul Sigsworth Respondent
John B. Gibbons and Orville E. Stifel, II, for Petitioner. Dave Yost, Ohio Attorney General, and Daniel Kasaris, Sr. Assistant Ohio Attorney General and Special Erie County Prosecuting Attorney, for Respondent.
John B. Gibbons and Orville E. Stifel, II, for Petitioner.
Dave Yost, Ohio Attorney General, and Daniel Kasaris, Sr. Assistant Ohio Attorney General and Special Erie County Prosecuting Attorney, for Respondent.
DECISION AND JUDGMENT
DUHART, J.
{¶ 1} This matter is before the court on the June 7, 2023 return of writ and/or motion to dismiss/summary judgment motion ("filing") of respondent, Sheriff Paul Sigsworth, submitted in response to the May 23, 2023 verified complaint for writ of habeas corpus filed by petitioner, Garry Savage, Sr. Petitioner has not filed a response to respondent's filing within the time provided by our June 1, 2023 order. For the following reasons, we grant respondent's summary judgment motion.
Background
{¶ 2} According to petitioner's complaint, he is 79 years old and maintains a residence in Huron, Ohio, where he resides about six months a year. He served honorably during the Vietnam War, and he has no prior criminal record.
{¶ 3} In November 2021, petitioner was indicted by the Erie County Grand Jury on 86 counts of unlawful securities practices and theft offenses.
{¶ 4} On May 26, 2022, the trial court set petitioner's bond at $100,000, along with electronic monitoring and other conditions of release. On August 2, 2022, the trial court revoked petitioner's bond due to petitioner's noncompliance with the conditions of electronic monitoring.
{¶ 5} On August 4, 2022, the trial court denied petitioner's unopposed motion for leave to travel to Florida.
{¶ 6} On August 8, 2022, petitioner's counsel requested a hearing on the bond revocation. The trial court denied the motion and refused to grant a hearing.
{¶ 7} On October 7, 2022, petitioner requested an order to transport him to his cardiologist; the trial court denied the motion.
{¶ 8} In January 2023, a superseding indictment was filed against petitioner, adding 67 new charges of money laundering, theft offenses, unlawful securities practices, and perjury. The trial court ordered petitioner to be held on a no bond status.
{¶ 9} In February 2023, petitioner filed motions to reinstate bond. The trial court denied the motions.
{¶ 10} In his May 23, 2023 verified complaint, petitioner requests a writ commanding respondent to bring petitioner before the court "for the purposes of inquiring into the reasons for his detention" and requiring respondent to show cause why petitioner should not be released on reasonable bond or other conditions. In addition, petitioner submits that "[a]ll relevant commitment papers relating to Petitioner's incarceration have been 'exhibited' pursuant to * * * R.C. 2725.04(D) by electronically uploading such papers to a bookmarked Appendix which is being concurrently filed with this Habeas Application." Petitioner cites to Savage v. Sigsworth, 6th Dist. Erie No. E-22-047, 2022-Ohio-4720, where his prior habeas petition was denied for his failure to attach commitment papers.
Writ Allowed/Motion Filed
{¶ 11} On June 1, 2023, we allowed the writ and ordered respondent to file a return of writ. On June 7, 2023, respondent submitted his filing, in which he argues he has made a prima facie showing that he has the authority to hold petitioner in custody, thus, the burden of proof shifted to petitioner. Respondent contends petitioner has not overcome the presumption of regularity afforded to the trial court proceedings, hence petitioner has not met his burden of establishing that respondent lacks authority to detain petitioner in custody.
{¶ 12} Respondent maintains the Erie County Common Pleas Court has jurisdiction: over petitioner's criminal case, pursuant to R.C. 2931.03; to impose travel restrictions and electronic monitoring supervision controls as conditions of petitioner's pre-trial bond; to determine petitioner violated his bond release conditions; and to modify and revoke petitioner's pre-trial bond release, pursuant to Crim.R. 46.
{¶ 13} Respondent asserts the trial court's decision to revoke petitioner's bond was not arbitrary and capricious because the court reasonably determined that petitioner was non-compliant with electronic monitoring bond conditions, and petitioner traveled several places without the permission of the Adult Probation Department.
{¶ 14} Respondent argues when petitioner's non-compliant and defiant conduct is considered along with the number of charges and possible sentences petitioner faces if convicted, the trial court's concerns that petitioner could be a flight risk are not arbitrary or capricious concerns, and it was not an abuse of discretion or excessive for the trial court to revoke petitioner's bond.
{¶ 15} Attached to respondent's filing are several documents, including attorney David Biemel's affidavit, in which Biemel averred the following: he is employed by the Ohio Division of Securities as a Division Enforcement Attorney, charged with enforcing violations of the Ohio Securities Act; the Erie County Jail permits inmates to place calls and all nonprivate jail calls are recorded; he was provided with, and has listened to, all of the jail calls placed by petitioner since the summer of 2022, through June 1, 2023; in March of 2023, petitioner had several telephone conversations with his girlfriend and asked her to research which countries of the world did not have an extradition treaty with the United States so that he could leave the United States and move to that country if a court provided him with a bond which he could make; petitioner and his girlfriend agreed that Belize would be the best country for him to move, and his girlfriend then viewed condos on the internet where the two could live; and also in March 2023, petitioner had a telephone conversation with his daughter, Tracey Ward, in which petitioner told his daughter that he would be living in Belize after he was released from jail.
Law
{¶ 16} Habeas corpus is an extraordinary writ which is only available in cases "where there is an unlawful restraint of a person's liberty and no adequate remedy at law." Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 8. Habeas corpus is appropriate when a judgment is void due to a court's lack of jurisdiction. Id.
{¶ 17} R.C. 2725.01 provides:
Whoever is unlawfully restrained of his liberty, or entitled to the custody of another, of which custody such person is unlawfully deprived, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment, restraint, or deprivation.
{¶ 18} R.C. 2725.05 states in pertinent part:
If it appears that a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ of habeas corpus shall not be allowed.
{¶ 19} Pursuant to Crim.R. 46(B), the trial court is empowered to impose conditions on bail that are necessary to insure the accused's appearance at trial. And, Crim.R. 46(I) provides the trial court may amend bail "[i]f there is a breach of condition of bail * * *."
{¶ 20} In cases where the trial court has determined an accused has violated the conditions of his bail, "'the accused is subject to the court's sanctioning authority for violation of the conditions, including revocation of bail.'" (Citation omitted.) State v. Wright, 6th Dist. Sandusky No. S-09-023, 2010-Ohio-2620, ¶ 32. On appeal, the trial court's decision will be upheld, absent a finding of abuse of discretion. Fortner v. Sigsworth, 6th Dist. Lucas No. L-12-1175, 2012-Ohio-3609, ¶ 10.
{¶ 21} "In a habeas corpus proceeding, as in any other proceeding, the party asserting his right to affirmative relief has the burden of proof." Yarbrough v. Maxwell, 174 Ohio St. 287, 288, 189 N.E.2d 136 (1963). "Thus, 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. See also State ex rel. Garcia v. Baldwin, Slip Opinion No. 2023-Ohio-1636.
Analysis
{¶ 22} Upon review, petitioner alleges in his complaint that he is in custody pursuant to the order of the trial court revoking his bond; petitioner does not argue or allege that the trial court was without jurisdiction when it revoked petitioner's bond. In respondent's filing, he sets forth a justification for petitioner's detention. We find petitioner has not met his burden of establishing his right to release, as petitioner has not demonstrated that the trial court did not have the authority or jurisdiction to find that petitioner violated the conditions of his bond, and to revoke the bond.
{¶ 23} We therefore find that petitioner has failed to establish that his confinement is unlawful, and respondent has demonstrated the legitimacy of petitioner's detention. We further find respondent's summary judgment motion well-taken, and grant that motion. Accordingly, petitioner is not entitled to a writ of habeas corpus, and petitioner's complaint is ordered dismissed at petitioner's costs.
{¶ 24} The Clerk of Court is hereby directed to immediately serve upon all parties a copy of this order in a manner prescribed by Civ.R. 5(B).
{¶ 25} It is so ordered.
Writ dismissed.
THOMAS J. OSOWIK, J. MYRON C. DUHART P.J. CHARLES E. SULEK, J. CONCUR.