1995 OHIO 72 - Brown v. Rogers

[This opinion has been published in Ohio Official Reports at

72 Ohio St.3d 339

.]




                             BROWN v. ROGERS, WARDEN.
                      [Cite as Brown v. Rogers,

1995-Ohio-72

.]
Habeas corpus petition denied for failure to comply with R.C. 2725.04(D).
        (No. 95-579 -- Submitted April 24, 1995 -- Decided June 28, 1995.)
                                   IN HABEAS CORPUS.
                                  __________________
        {¶ 1} On November 28, 1994, petitioner, Bruce Andrew Brown, filed a
petition in habeas corpus with this court, alleging convictions of numerous counts
of grand theft, forgery, uttering, and tampering with records. He alleged further
that the convictions resulted because he continued to practice law after being
disbarred in New York. The gist of the prayer for relief was that the trial court had
unjustly and illegally denied petitioner bail pending appeal. We subsequently
dismissed this petition without opinion because petitioner had an adequate legal
remedy via application to the court of appeals for bail under App. R. 8 (B). See
Brown v. Rogers (1995),

71 Ohio St. 3d 570

645 N.E.2d 1241

.
        {¶ 2} On March 20, 1995, petitioner filed the present petition for a writ of
habeas corpus, alleging essentially the same facts as before, but now also alleging
that the court of appeals had denied his application for bail on December 8, 1994.
Petitioner attaches to his petition a copy of the journal entry setting forth the
sentencing order of the trial court, but does not attach the order of either the trial
court or court of appeals denying bail pending appeal.
                                  __________________
        Bruce Andrew Brown, pro se.
                                  __________________
                               SUPREME COURT OF OHIO




          Per Curiam.
          {¶ 3} In State ex rel. Pirman v. Money (1994),

69 Ohio St. 3d 591

635 N.E.2d 26

, we stated that habeas corpus is the proper action to challenge the failure
to set bail following conviction, overruling Dapice v. Stickrath (1988),

40 Ohio St. 3d 298

533 N.E.2d 339

, which had in turn overruled Liberatore v. McKeen (1980),

63 Ohio St. 2d 175

17 O.O.3d 107

407 N.E.2d 23

. In Liberatore, we allowed the
writ of habeas corpus and continued an appeal bond. The evidence in that case
showed that the court of appeals had denied the request without stating any reasons.
We held that "we are constrained to look to what was available to the Court of
Appeals to support a denial in view of the requirements of Crim R. 46(E) and App.
R. 8(B)."

63 Ohio St.2d at 175-176

17 O.O.3d at 108

407 N.E.2d at 24

. Finding
no credible evidence to warrant denying bail, we allowed it.
          {¶ 4} However, R. C. 2725.04 (D) states:
          "A copy of the commitment or cause of detention of such person shall be
exhibited [with the petition], 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."
          {¶ 5} In Bloss v. Rogers (1992),

65 Ohio St. 3d 145

602 N.E.2d 602

, we
stated:
          "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."

65 Ohio St. 3d at 146

602 N.E.2d at 602

.
          {¶ 6} Petitioner attached the trial court's sentencing order as Exhibit A to
his petition. However, the sentencing order is irrelevant for purposes of the
questions presented by this petition--whether the trial court and court of appeals




                                           2
                                   January Term, 1995




failed to comply with Crim. R. 46 and/or App. R. 8 (B) by refusing to set bail, or
otherwise abused their discretion. Thus, we construe "copy of the commitment or
cause of detention" in postconviction bail cases to mean copies of the entries or
orders denying bail of the trial and appellate courts, for precisely the reasons stated
in Bloss. Otherwise, the court in which the habeas corpus petition is filed is left
with only self-serving allegations of the petition, when the carefully considered
reasons for denying bail may be stated in the entries or orders of the trial and
appellate courts. Since petitioner has failed to attach such entries or orders to his
petition, we deny the writ.
                                                                         Writ denied.
          MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY and COOK, JJ.,
concur.
          PFEIFER, J., dissents.
                                   __________________




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