Opinion
110621
12-09-2021
STATE OF OHIO, Plaintiff-Appellee, v. ANTHONY JACKSON, Defendant-Appellant.
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary Grace Tokmenko, Assistant Prosecuting Attorney, for appellee. Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-20-653683-A and CR-21-656172-A
JUDGMENT: VACATED AND REMANDED
Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Mary Grace Tokmenko, Assistant Prosecuting Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and Erika B. Cunliffe, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
FRANK D. CELEBREZZE, JR., JUDGE
{¶ 1} Defendant-appellant Anthony Jackson brings this accelerated appeal challenging the trial court's judgments revoking his bond and denying his motion for release on bond. Appellant argues that the trial court failed to comply with R.C. 2937.222 and that the trial court's judgments violated his federal and state constitutional rights. After a thorough review of the record and law, this court vacates the trial court's judgments and remands the matter to the trial court for further proceedings consistent with this opinion.
I. Factual and Procedural History
{¶ 2} The instant matter arose from two criminal cases. First, in Cuyahoga C.P. No. CR-20-653683-A, appellant was charged on October 20, 2020, with felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1). The date of the offense was October 2, 2020. Appellant pled not guilty to the indictment during his arraignment on October 23, 2020. The trial court continued appellant's bond at $10,000 cash, surety, or property, and ordered appellant to have no contact with the victim. Appellant posted bond on November 5, 2020.
The record reflects that appellant was charged with breaking and entering, vandalism, and theft in a third criminal case, Cuyahoga C.P. No. CR-21-662786-A, on August 31, 2021. These offenses were allegedly committed on December 19, 2020. Appellant pled not guilty to the indictment during his arraignment on September 7, 2021, and he posted the $2,500 personal bond set by the trial court the same day.
{¶ 3} Second, in Cuyahoga C.P. No. CR-21-656172-A, appellant was charged on January 21, 2021, with robbery, a second-degree felony in violation of R.C. 2911.02(A)(2), and theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1). The date of the offenses was January 7, 2021. Appellant pled not guilty to the indictment during his January 22, 2021 arraignment. The trial court set bond at $25,000 cash, surety, or property, and ordered appellant to have no contact with the victim.
{¶ 4} On January 28, 2021, appellant was referred to the court psychiatric clinic for a competency evaluation. In a February 23, 2021 report, the court psychiatric clinic found appellant incompetent to stand trial. On March 16, 2021, the parties stipulated to the findings in the report and the trial court issued a judgment entry ordering appellant to be transported to Northcoast Behavioral Health ("Northcoast") in order to be restored to competency.
{¶ 5} As of April 14, 2021, appellant had not been transported to Northcoast. He posted bond in Cuyahoga C.P. No. CR-21-656172-A that day.
{¶ 6} On April 22, 2021, appellant appeared in court. The parties waived a hearing and stipulated to the court psychiatric clinic's competency report. The trial court ordered appellant to complete inpatient treatment at Northcoast for competency restoration. The trial court remanded appellant to the county jail until a bed became available at Northcoast.
{¶ 7} Appellant was treated at Northcoast in April and May 2021. On May 19, 2021, an updated report was prepared. An updated report, dated May 19, 2021, opined to a reasonable degree of medical certainty that appellant was competent to stand trial.
{¶ 8} On May 26, 2021, appellant filed a "request for release" in both criminal cases. Therein, appellant asserted that bond was posted on his behalf in Cuyahoga C.P. No. CR-20-653683-A on November 5, 2020, and in Cuyahoga C.P. No. CR-21-656172-A on April 14, 2021. Based on the finding that appellant was competent to stand trial, appellant requested "a hearing as to why he should not be released pending trial in all his upcoming matters."
{¶ 9} The parties appeared in court on June 8, 2021. Defense counsel and the prosecutor stipulated to the updated competency report. The trial court acknowledged that appellant posted bond in both criminal cases, after which he was sent to Northcoast for competency restoration. After it was determined that appellant was competent, defense counsel filed a motion to reinstate bond.
{¶ 10} The trial court addressed appellant and explained the effect of appellant picking up the second criminal case:
My understanding is that your first felonious assault case, in Case No. 653683, occurred on October 2nd of 2020. And that second offense, the robbery case, occurred January 7th of 2021. That it was a subsequent criminal offense that resulted in this indictment.
So here's what I want to explain to you. It is the policy of my courtroom, if a person is on bond in their first case, and they pick up a second case, they are reindicted for a second case, that the Court considers that a violation of your first bond, because you were engaged in further criminal activity, or at least there's probable cause to believe because of a grand jury indictment.(Tr. 5-6.)
{¶ 11} When appellant asked if he could be released that day, the trial court advised him that he would not be released until both criminal cases were resolved. The trial court explained that "[t]hese are two very serious cases." (Tr. 6.)
{¶ 12} In reviewing the updated competency report, the trial court discussed a May 6, 2021 incident that occurred at Northcoast during which appellant had to be restrained. The trial court stated that the May 6, 2021 incident was one of the reasons that the court was not going to release appellant on bond, explaining that "even when competent [appellant] acted in this manner." (Tr. 9.)
{¶ 13} Defense counsel addressed the trial court and explained that the basis for the motion requesting appellant be released on bond was that the dockets in the criminal cases indicate that bond was posted in both cases, and there was no indication on the docket that bond had been revoked.
{¶ 14} The trial court explained that it may not have issued a judgment entry revoking appellant's bond in Cuyahoga C.P. No. CR-20-653683-A because appellant was at Northcoast. The trial court indicated that it would issue a judgment entry revoking appellant's bond in that case.
{¶ 15} The trial court also stated that "[o]bviously picking up a second case, a robbery case, an aggravated felony, is a violation of the bond in the first case. So we will note that and revoke the first bond." (Tr. 12.) Finally, the trial court stated that it would put a holder on appellant in both criminal cases.
{¶ 16} On June 8, 2021, the trial court issued a judgment entry in Cuyahoga C.P. No. CR-20-653683-A that provided, "Bond is hereby revoked [because of] substantive criminal indictment in [Cuyahoga C.P. No. CR-21-656172-A]. Defendant remanded." On June 15, 2021, the trial court denied appellant's motions requesting release in both criminal cases.
{¶ 17} On June 28, 2021, appellant filed the instant appeal. Appellant appeals from the trial court's June 8, 2021 judgment revoking his bond in Cuyahoga C.P. No. CR-20-653683-A, and the trial court's June 15, 2021 judgments denying his motion for release on bond in both cases.
{¶ 18} On November 1, 2021, this court remanded the matter to the trial court for the limited purpose of issuing findings pursuant to R.C. 2937.222(B). See State v. Hawkins, 8th Dist. Cuyahoga No. 109097, 2019-Ohio-5132, ¶ 30. Pursuant to this court's remand, the trial court held a Zoom hearing on November 3, 2021. During oral argument, the state acknowledged that no additional evidence was presented during this hearing.
{¶ 19} On November 4, 2021, the trial court issued judgment entries that provide, in relevant part, "Court found by clear and convincing evidence that the accused committed the offense of which he is charged, the accused poses a substantial risk of serious physical harm to any person or to the community and no release conditions will reasonably assure the safety of that person and the community."
{¶ 20} In this appeal, appellant assigns one error for review:
I. The trial court's order denying [appellant's] request for immediate release on bail he had already posted and the court's revocation of bond violated his rights under the state and federal constitutions which guarantee his entitlement to bail.
II. Law and Analysis
{¶ 21} As an initial matter, we note that appeals from a trial court's judgment denying a defendant bond are typically placed on the expedited calendar pursuant to App.R. 11.2. In this case, however, appellant's counsel selected the accelerated calendar, rather than the expedited calendar, on the praecipe. As a result, this appeal proceeded as an accelerated appeal pursuant to App.R. 11.1 and Loc.App.R. 11.1.
{¶ 22} In his sole assignment of error, appellant argues that the trial court's judgments revoking his bond and denying his request for release on bond violate his rights under the state and federal constitutions that both guarantee his entitlement to bail.
{¶ 23} Article I, Section 9, of the Ohio Constitution guarantees a defendant consideration of bail, and this guarantee is put into effect by Crim.R. 46 and R.C. 2937.222. State v. Dukes, 8th Dist. Cuyahoga No. 103303, 2015-Ohio-5153, ¶ 10. R.C. 2937.222, which became effective July 29, 1999, provided for "a hearing to determine whether certain accused felons should be denied bail" and set forth the evidence a trial court should consider when making that determination. Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 N.E.2d 5, ¶ 42.
{¶ 24} RC. 2937.222(A) provides that "[o]n the motion of the prosecuting attorney or on the judge's own motion, the judge shall hold a hearing to determine whether an accused person charged with * * * a felony of the first or second degree * * * shall be denied bail." As noted above, appellant was charged with felonious assault and robbery, second-degree felony offenses. As a result, in order to deny appellant bail, the trial court was required to comply with R.C. 2937.222. Dukes at ¶ 11.
{¶ 25} R.C. 2937.222(A) further provides that "[a]t the hearing, the accused has the right to be represented by counsel[, ] * * * an opportunity to testify, to present witnesses and other information, and to cross-examine witnesses who appear at the hearing." The statute states that "the rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing."
{¶ 26} Pursuant to R.C. 2937.222(A), the state has the burden to show that (1) the proof is evident or the presumption great that the accused committed the offense with which the accused is charged, (2) the accused poses a substantial risk of serious physical harm to any person or to the community, and (3) no release conditions will reasonably assure the safety of that person and the community. R.C. 2901.01(A)(8) defines "substantial risk" as "a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist."
{¶ 27} R.C. 2937.222(B) provides that a trial court may not deny a person bail unless it finds, by clear and convincing evidence, that (1) the proof is evident or the presumption great that the accused committed the offense with which the accused is charged, (2) the accused poses a substantial risk of serious physical harm to any person or to the community, and (3) no release conditions will reasonably assure the safety of that person and the community. Clear and convincing evidence means "that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." State v. Mitchell, 2019-Ohio-2465, 139 N.E.3d 556, ¶ 16 (2d Dist), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
{¶ 28} Furthermore, R.C. 2937.222(C) states that when determining whether the accused poses a substantial risk of serious physical harm to any person or to the community and whether there are conditions of release that will reasonably assure the safety of that person and the community, the trial court should consider "all available information regarding":
(1) The nature and circumstances of the offense charged, including whether the offense is an offense of violence or involves alcohol or a drug of abuse;
(2) The weight of the evidence against the accused;
(3) The history and characteristics of the accused, including, but not limited to, both of the following:
(a) The character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, and criminal history of the accused;
(b) Whether, at the time of the current alleged offense or at the time of the arrest of the accused, the accused was on probation, parole, postrelease control, or other release pending trial, sentencing, appeal, or completion of sentence for the commission of an offense under the laws of this state, another state, or the United States or under a municipal ordinance.
(4) The nature and seriousness of the danger to any person or the community that would be posed by the person's release.
{¶ 29} In the instant matter, the record reflects that the state did not file a motion to deny or revoke appellant's bail. Nor did the state oppose appellant's request to be released on bail during the June 8, 2021 hearing. The trial court revoked appellant's bail on its own motion.
{¶30}R.C. 2937.222(A) provides, in relevant part, that the state has the burden of proving the three factors under R.C. 2937.222(A), by clear and convincing evidence, "[r]egardless of whether the hearing is being held on the motion of the prosecuting attorney or on the court's own motion." Accordingly, even though the trial court revoked appellant's bail on its own motion, the state had the burden of proof.
{¶ 31} The record reflects that the state did not present any evidence during the June 8, 2021 hearing. Furthermore, as noted above, the state conceded during oral argument that it did not present any evidence during the November 3, 2021 hearing.
{¶ 32} Because the state did not present any evidence in this case, it failed to meet its burden of proving, by clear and convincing evidence, that (1) the proof is evident or the presumption great that appellant committed the offenses with which he is charged, (2) appellant poses a substantial risk of serious physical harm to any person or to the community, and (3) no release conditions will reasonably assure the safety of that person and the community.
{¶ 33} As noted above, the trial court made the necessary findings under R.C. 2937.222 in its November 4, 2021 journal entries. We must review the findings made by the trial court and determine whether the trial court erred in revoking appellant's bond and denying appellant's request for release on bond. See Hawkins, 8th Dist. Cuyahoga No. 109097, 2019-Ohio-5132, at ¶ 40. After reviewing the record, we cannot conclude that the trial court's R.C. 2937.222 findings are clearly supported by the record.
{¶ 34} In Hawkins, this court recognized that the Eighth District has not yet established the standard of review that applies to a trial court's decision revoking a defendant's bond and denying bail. Id. at ¶ 41. A difference of opinion exists among other appellate districts regarding the applicable standard of review. Id.; Mitchell, 2019-Ohio-2465, 139 N.E.3d 556, ¶ 18.
{¶ 35} The Sixth District characterized the issue as whether "sufficient evidence" supported the trial court's findings, and stated that the standard of review was
whether at appellant's bond hearing there was sufficient evidence presented by which the court could have formed a firm belief or conviction in support of its finding, that the presumption would be great that the accused * * * did commit the offenses charged and that no release conditions would exist at this time, that the court would be able to impose, that would reasonably assure that safety of that person or the community[.]State v. Brown, 6th Dist. Erie No. E-06-025, 2006-Ohio-3377, ¶ 25.
{¶ 36} The Eleventh District applied a standard of review that was similar to the standard governing a trial court's ruling on a motion to suppress:
[I]n reviewing factual determinations of the trial court, an appellate court reviewing a motion to deny bail is bound to accept the trial court's findings of fact where they are supported by competent, credible
evidence. Accepting these facts as true, the appellate court independently reviews the trial court's legal determinations de novo.State v. Urso, 11th Dist. Trumbull No. 2010-T-0042, 2010-Ohio-2151, ¶ 47.
{¶ 37} The Tenth District applied an abuse of discretion standard of review to the trial court's judgment denying a defendant bail. State v. Henderson, 10th Dist. Franklin No. 16AP-870, 2017-Ohio-2678, ¶ 5; State v. Foster, 10th Dist. Franklin No. 08AP-523, 2008-Ohio-3525, ¶ 6.
{¶ 38} In Mitchell, 2019-Ohio-2465, 139 N.E.3d 556, the Second District did not determine which standard of review to apply. However, the court recognized that "[t]ypically, where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of fact had sufficient evidence before it to satisfy the requisite degree of proof." Id. at ¶ 17, citing Cross, 161 Ohio St. at 477, 120 N.E.2d 118. The Second District concluded that the trial court's decision was correct under any of the standards applied by the Sixth, Eleventh, and Tenth Districts. Id. at ¶ 24.
{¶ 39} In Hawkins, 8th Dist. Cuyahoga No. 109097, 2019-Ohio-5132, like Mitchell, this court held that the trial court did not err in revoking defendant's bond and denying bail "regardless of the standard of review we apply." Hawkins at ¶ 47.
{¶ 40} In the instant matter, regardless of what standard of review this court applies, we find that the trial court erred in revoking appellant's bond and denying appellant's motions for release on bond.
{¶41}As an initial matter, in making the requisite findings, the trial court merely tracked the language set forth in R.C. 2937.222(B). The trial court did not state any reasons to support its findings. See, e.g., Hawkins at ¶ 48-52.
{¶ 42} The first factor to be considered under R.C. 2937.222 is whether the proof is evident or the presumption great that appellant committed the felonious assault and robbery offenses with which he was charged. The trial court found, by clear and convincing evidence, that "the accused committed the offense of which he is charged[.]"
{¶43} In Hawkins, 8th Dist. Cuyahoga No. 109097, 2019-Ohio-5132, the defendant was charged with aggravated vehicular homicide. Defendant's bond was initially set at $100,000, but reduced to $50,000. Defendant posted bond and was released. The state filed a motion to deny bail and revoke defendant's bond. The trial court held a hearing on the state's motion. During the hearing, a police sergeant testified about the rate-of-speed at which the defendant was driving, defendant's attempt to leave the scene of the crash, and defendant's toxicology report. Id. at ¶ 49. Based on this testimony, the trial court found, pursuant to R.C. 2937.222(A), that the presumption was great that defendant committed the aggravated vehicular homicide offense. On appeal, this court held that the trial court's finding was clearly supported by the record based on the sergeant's testimony. Id.
{¶44}In the instant matter, the trial court's first finding is not clearly supported by the record. Here, unlike Hawkins, there was no evidence presented regarding the felonious assault and robbery offenses with which appellant was charged during the June 8, 2021 hearing. Nor was there any factual discussion about the offenses. The trial court merely found that because the grand jury returned an indictment in the second case, there was "probable cause" that appellant committed the robbery offense. Probable cause is not the standard under R.C. 2937.222 - the standard is whether the proof is evident or the presumption great that appellant committed the felonious assault and robbery offenses with which he is charged.
{¶45} In this appeal, appellant appears to primarily challenge the second and third findings under R.C. 2937.222(B) - whether appellant poses a substantial risk of serious physical harm to any person or to the community, and whether any release conditions will reasonably assure the safety of that person and the community. The trial court found, by clear and convincing evidence, that appellant "poses a substantial risk of serious physical harm to any person or to the community and no release conditions will reasonably assure the safety of that person and the community."
{¶ 46} After reviewing the record, we find that the trial court's second and third findings are also not clearly supported by the record. There was no evidence presented that appellant was suicidal or threatened violence against himself. See Hawkins, 8th Dist. Cuyahoga No. 109097, 2019-Ohio-5132, at ¶ 50. There was no evidence presented that appellant threatened violence against members of the community. Id.
{¶47} As noted above, appellant was ordered to have no contact with the victims as a condition of his bond in Cuyahoga C.P. Nos. CR-20-653683-A and CR-21-656172-A. There was no evidence presented that appellant violated this condition.
{¶48}Aside from the competency issue, there was no evidence presented that appellant had mental health issues or that he had access to weapons. There was no evidence presented that appellant threatened any witnesses, public officials, or law enforcement officials. See Mitchell, 2019-Ohio-2465, 139 N.E.3d 556, at ¶ 33-35; State v. Sands, 11th Dist. Lake No. 2006-L-171, 2007-Ohio-35, ¶ 29. We cannot say that the nature of the felonious assault and robbery charges here demonstrated that the level of danger appellant posed to the general community was extremely serious.
{¶ 49} For all of the foregoing reasons, we find that the trial court erred in revoking appellant's bail and denying appellant's request for release. The state did not present any evidence pertaining to the R.C. 2937.222 factors, and as a result failed to meet its burden of proof.
{¶ 50} The trial court's findings of fact were not supported by the record, and the trial court's decision revoking appellant's bond constitutes an abuse of discretion; the trial court's factual findings were not supported by competent, credible evidence; and there was not sufficient evidence presented by which the trial court could have formed a firm belief or conviction in support of its R.C. 2937.222 findings. See Hawkins, 8th Dist. Cuyahoga No. 109097, 2019-Ohio-5132, at ¶ 54.
Accordingly, the trial court erred in revoking appellant's bail and denying appellant's request for release - regardless of the standard of review applied. Id.
{¶ 51} As noted above, appellant's constitutional guarantee to consideration of bail is put into effect by R.C. 2937.222. Dukes, 8th Dist. Cuyahoga No. 103303, 2015-Ohio-5153, at ¶ 10. The trial court's judgment in this case violated appellant's constitutional guarantee.
{¶ 52} The trial court's judgments revoking appellant's bond and denying appellant's request for release are vacated. The matter is remanded to the trial court for the purpose of reinstating the bond that was previously set and posted and ordering appellant's immediate release.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, A.J., and JAMES A. BROGAN, J., * CONCUR
(*SITTING BY ASSIGNMENT: Judge James A. Brogan, retired, of the Second District Court of Appeals.)