[Cite as State v. Smith , 2021-Ohio-2982.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

MICHAEL RODARIOUS SMITH aka MICHAEL SMITH, Appellant. :

:

:

:

:

: CASE NO. CA2020-09-101

O P I N I O N

8/30/2021

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2019-08-1344

Michael T. Gmoser, Butler County Prosecuting Attorney, and Mich ael Greer, Assistant Prosecuting Attorney, for appellee. Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant

.

M. POWELL, P.J. {¶ 1} Appellant, Michael Rodarious Smith aka Michael Smith, appeals h is conviction and sentence in the Butler County Court of Common Pl eas for murder. {¶ 2} On July 11, 2019, appellant was charged by complaint in the But ler County Court of Common Pleas, Juvenile Division ("juvenile court"), wi th two counts of murder for the fatal shooting of Shon Walker on June 27, 2019, and one cou nt of tampering withButler CA2020-09-101

- 2 - evidence. Each murder count was accompanied by a firearm speci fication. Because appellant was charged with murder and was 17 years old at the t ime of the offenses, he was subject to mandatory bindover to the general division of th e common pleas court if there was probable cause to believe he committed the offenses. R.C. 2152.10. Consequently, the state moved to transfer the case to the gener al division of the common pleas court for criminal prosecution. The juvenile court held a probable cause hearing on August 21, 2019. 1 Appellant's mother was present at the hearing; his father was not. {¶ 3} Appellant's counsel advised the juvenile court that she had dis cussed the purpose of a probable cause hearing with appellant and his moth er and that appellant had decided to waive his right to the probable cause hearing. Upon being asked to provide a factual statement of the offenses, the prosecutor stated that a ppellant had shot Shon Walker multiple times with a firearm, ultimately resulting in Walker's death, and that he had subsequently disposed of the firearm and his clothing. The pro secutor further advised the

court that the incident was on video and that a witness had ide ntified appellant as the shooter. Following a colloquy with appellant, the juvenile cou rt accepted his waiver and found there was probable cause to believe appellant had committ ed the offenses charged. The juvenile court then set bond at $1,000,000 for the murder c harge, $10,000 for each firearm specification, and $10,000 for the tampering with evide nce charge. The case was transferred to the Butler County Court of Common Pleas, General Division ("trial court"). {¶ 4} Appellant was indicted in September 2019 on two counts of murde r, each with a firearm specification, and one count of tampering with eviden ce. On August 17, 2020, pursuant to plea negotiations, appellant pled guilty to one cou nt of murder in violation of

1. The hearing held upon a state's request for mandatory bindo ver of a juvenile has been called a mandatory bindover hearing, a mandatory transfer hearing, a probable caus e hearing, and a preliminary hearing. In re B.W. , 7th Dist. Mahoning No. 17 MA 0071, 2017-Ohio-9220, ¶ 17; Juv. R. 30(A).Butler CA2020-09-101

- 3 - R.C. 2903.02(A) and a one-year firearm specification. The next day, however, appellant moved to withdraw his guilty plea. On September 9, 2020, the t rial court denied appellant's motion to withdraw his guilty plea and sentenced him to 15 year s to life in prison for murder and to a mandatory, consecutive one year in prison for the fire arm specification, for a total, aggregate prison term of 16 years to life. The trial court fur ther imposed mandatory lifetime supervision by the Adult Parole Authority. {¶ 5} Appellant now appeals, raising three assignments of error. {¶ 6} Assignment of Error No. 1: {¶ 7} THE JUVENILE COURT ERRED BY DISREGARDING SMITH'S

PROCEDURAL PROTECTIONS AT THE BINDOVER. {¶ 8} Appellant argues the juvenile court erred in transferring the c ase to the general division of the common pleas court for criminal prosecu tion, presenting three issues

for review. {¶ 9} In his first issue for review, appellant argues that the juveni le court violated Juv.R. 3(E) and State v. D.W. , 133 Ohio St.3d 434, 2012-Ohio-4544, by allowing appellant to waive his right to a probable cause hearing without a writte n waiver, a meaningful colloquy, and a record showing that appellant's waiver was know ing, intelligent, and voluntary. Specifically, appellant asserts that his waiver was infirm because the juvenile court's colloquy with appellant did not discuss (1) the structu re of the probable cause hearing, (2) the definition of probable cause, (3) appellant's right to present evidence and test and challenge the state's evidence during the probable cau se hearing, (4) the state's burden to establish probable cause that appellant did not act i n self-defense, (5) and the consequences of the matter remaining in the juvenile court shou ld the court finds there was no probable cause. {¶ 10} Given his murder charge and age at the time of the offenses, ap pellant wasButler CA2020-09-101

- 4 - subject to mandatory bindover to the general division of the co mmon pleas court if there was probable cause to believe he committed the offenses. The j uvenile court conducted a probable cause hearing as required under R.C. 2152.12(A)(1)(a) and Juv.R. 30(A). Juv.R. 3 states that a juvenile may not waive his right to be represen ted by counsel at a Juv.R. 30 hearing; however, "[o]ther rights of a child may be waived with permission of the court." Juv.R. 3(E). {¶ 11} "[A] juvenile court at a bindover hearing need not find as a fa ct that the accused minor is guilty of the offense charged." State v. Iacona , 93 Ohio St.3d 83, 93, 2001-Ohio-1292. Rather, the juvenile court need only determine whether there is probable cause to believe the juvenile committed the offenses charged. Id. The state "must provide credible evidence of every element of an offense to support a f inding that probable cause exists to believe that the juvenile committed the offense befor e ordering mandatory waiver of juvenile court jurisdiction[.]" Id. "In meeting this standard the state must produce evidence that raises more than a mere suspicion of guilt, but n eed not provide evidence proving guilt beyond a reasonable doubt." Id. {¶ 12} We first address appellant's claim that the state was required to address selfdefense at the probable cause hearing. {¶ 13} "Self-defense is an affirmative defense." State v. Jacinto , 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 43. Prior to March 28, 2019, a d efendant had the burden of proving self-defense by a preponderance of the evidence. Id . at ¶ 44. However, on March 28, 2019, the self-defense statute was amended to shift t he burden of proof to the

state as follows: "If , at the trial of a person who is accused of an offense that involved the person's use of force against another, there is evidence presen ted that tends to support that the accused person used the force in self-defense, * * * t he prosecution must prove beyond a reasonable doubt that the accused person did not use t he force in self-defense[.]"Butler CA2020-09-101

- 5 - (Emphasis added.) R.C. 2901.05(B)(1). {¶ 14} Self-defense is a matter independent of the elements of the cri me. State v.

Poole , 33 Ohio St.2d 18, 19 (1973). "Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense cha rged." Id . The Ohio Supreme Court has held that "the state has no burden to disprove altern ate theories of the case at a bindover proceeding." In re A.J.S. , 120 Ohio St.3d 185, 2008-Ohio-5307, ¶ 61, citing

Iacona , 93 Ohio St.3d at 96. "Determination of the merits of the com peting prosecution and defense theories, both of which [are] credible, ultimately [is] a matter for the factfinder at trial." (Emphasis deleted.) Iacona at 96. "[R]esolution of the conflicting theories of the

evidence * * * is a matter for the trier of fact at a trial on the merits of the case, not a matter for exercise of judicial discretion at a bindover hearing in th e juvenile court." In re A.J.S. at ¶ 64. {¶ 15} Thus, the state was not required to address or disprove self-de fense at the probable cause hearing for purposes of establishing probable ca use to believe appellant

had committed murder. {¶ 16} We now turn to appellant's waiver of his right to a probable ca use hearing. In support of his argument that his waiver was not knowing, intell igent, and voluntary, appellant

cites D.W. , 2012-Ohio-4544. In that case, the Ohio Supreme Court address ed whether a juvenile may waive the amenabilit y hearing requir ed in discreti onary bindover cases and set forth the standard for a valid waiver. The supreme court f ound that the waiver of an amenability hearing is among those "other rights" that may be w aived with permission of the juvenile court pursuant to Juv.R. 3(E). D.W. at ¶ 26. {¶ 17} Regarding the standard to be applied in determining whether the waiver of an amenability hearing is valid, the supreme court held that the j uvenile court must "engage in a meaningful dialogue with the juvenile" to "ensure that the ju venile fully understands, andButler CA2020-09-101

- 6 - intentionally and intelligently relinquishes, the right to [an amenability hearing]." Id. at ¶ 29. The supreme court then establishe d "a two-step process" a juven ile court must use to determine the validity of the waiver. Id. at ¶ 33. "First, before being transferred, the juvenile may waive the right to a * * * hearing only if the waiver is ex pressly stated on the record and through counsel." Id. at ¶ 34. Second, the juvenile court must determine that the waiver is offered knowingly, voluntarily, and intelligently. Proper determinatio n must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill its parens patriae duty by ensuring that the juvenile fully understands an d intentionally and intelligently relinquishes the right to an amenability hearing. And it allows the judge "to engage in a meaningful dialogue with the juvenile," to guarantee that the juvenile's due process rights are protected.

Id . at ¶ 37, quoting In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, ¶ 107. We note that the supreme court's two-step process does not require that the waiver be in writing. {¶ 18} Upon reviewing the juvenile court's colloquy with appellant, we find that appellant's waiver of his right to a probable cause hearing was made knowingly, intelligently, and voluntarily. The first step of the waiver test was plainly met as appellant, through counsel, expressly stated on the record a waiver of the probabl e cause hearing. D.W. , 2012-Ohio-4544 at ¶ 47. Moreover, the juvenile court's dialogu e with appellant confirmed that appellant wanted to waive the probable cause hearing and d id so in consultation with

counsel and his mother. {¶ 19} The second step of the waiver test was likewise met as the juve nile court engaged in a colloquy on the record with appellant to determine that the waiver was made knowingly, intelligently, and voluntarily. Id. Specifically, the juvenile court addressed appellant and asked whether appellant had discussed the waiver of probable cause with his attorney. Appellant responded affirmatively. The juvenile court asked whether appellant understood that were the court to find probable cause, it would send the charges of murderButler CA2020-09-101

- 7 - and tampering with evidence and the accompanying firearm specif ications to the "Adult Division" of the common pleas court. Appellant responded affir matively. The juvenile court asked whether this was what appellant wanted to do. Appellant responded affirmatively. The juvenile court confirmed that no one was forcing appellant into waiving the probable cause hearing. The juvenile court further confirmed that appel lant was not under the influence of drugs or alcohol that would prevent him from under standing what was being discussed. The juvenile court once again asked whether appella nt had discussed the probable cause hearing with his attorney and whether he was sat isfied with counsel's advice. Appellant responded affirmatively. The juvenile court asked whether appellant had any questions. Appellant responded, "No sir." Based upon the state's factual statement of the offenses, the juvenile court found probable cause and order ed the case bound over for criminal prosecution. {¶ 20} The Tenth District Court of Appeals has held that a juvenile's waiver of the right to a probable cause hearing was knowing, intelligent, and voluntary following mandatory bindover hearing colloquies similar to the colloquy a t bar. See State v. Johnson , 10th Dist. Franklin No. 12AP-898, 2013-Ohio-2008; State v. J.T.S. , 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103. In Johnson , the juvenile court advised the juvenile that the purpose of the probable cause hearing was to determine whether trial would take place in juvenile or adult court, and that the court's acceptance of the juvenile's waiver meant the case would automatically go to adult court. The juvenile court confirmed that the juvenile had discussed the matter with counsel and that he wanted the ju venile court to accept his waiver to a probable cause hearing. {¶ 21} In J.T.S. , the juvenile court advised the juvenile that a stipulation to a finding of probable cause meant that the juvenile was "giving up" the r ight to have a probable cause hearing during which the state would be required to establish p robable cause, and that theButler CA2020-09-101

- 8 - case would transfer to the general division of the common pleas court. The juvenile court confirmed that the juvenile had discussed the matter with couns el, was not under the influence of drugs or medication that would prevent him from un derstanding what was being discussed, had no further questions, and wanted the juvenile co urt to accept his stipulation of probable cause. {¶ 22} As was the case in J.T.S. and Johnson , the juvenile court, through its colloquy with appellant, sufficiently ensured that appellant's waiver of the right to a probable cause hearing was made knowingly and intelligently and was a voluntar y relinquishment of a known right. The juvenile cour t utilized the proper inquisitio nal approach. There was no indication during the hearing that appellant had any intellectu al or learning deficits that would have prevented his understanding of the court's statement s. Upon the court's inquiry, appellant responded unequivocally that he had discussed the wai ver of the probable cause hearing with his attorney, that he was satisfied with her advic e, and that he had no other questions. The juvenile court was entitled to rely upon appell ant's statements he had

discussed the matter with counsel and that he was satisfied wit h the advice she had provided him. In re J.T.S. , 2015-Ohio-1103 at ¶ 31; see also State v. Brown , 10th Dist. Franklin No. 17AP-695, 2018-Ohio-4185, ¶ 27. Thus, the record clearly indicates that appellant understood he had a right to a probable cause hearing and that he intended to waive that right. We therefore find that both D.W. requirements were met. {¶ 23} Furthermore, appellant fails to establish any prejudice resulti ng from the juvenile court's acceptance of his waiver to a probable cause h earing. Appellant does not identify any strategic advantage he might have gained by exposi ng the state's evidence during the probable cause hearing. More significantly, appella nt does not claim that probable cause was lacking or that he would not have waived the probable cause hearing had the juvenile court engaged in a more fulsome colloquy. App ellant's waiver of theButler CA2020-09-101

- 9 - probable cause hearing does not mean that the juvenile court wo uld have otherwise retained jurisdiction had the probable cause hearing gone forwa rd. {¶ 24} Appellant further contends the juvenile court was obligated to provide him with a legal definition of probable cause before accepting his waive r. There is no indication in the record that appellant had an inadequate opportunity to cons ult with his attorney or that counsel failed to adequately explain the proceedings to appella nt. Appellant was present in the courtroom as the prosecutor recited the relevant facts f or the court. Once again, it was reasonable for the juvenile court to rely upon appellant's representation in open court that he had the opportunity to discuss the proceedings with his attorney and that he understood the right he was waiving by choosing to waive his ri ght to a probable cause hearing. In re J.T.S. , 2015-Ohio-1103 at ¶ 31. {¶ 25} The same reasoning applies to appellant's contention that the j uvenile court was required to fully apprise him of the structure of the proba ble cause hearing, the rights he had, and the consequences of the matter remaining in the juv enile court should the court find there was no probable cause. The juvenile court was entit led to rely upon appellant's representation that he had an opportunity to discuss the procee dings with his attorney and his negative response to the court's query: "Do you have any qu estions?" Id. at ¶ 32. See

also Brown , 2018-Ohio-4185. {¶ 26} In his second issue for review, appellant argues that the writt en notice of the scheduled probable cause hearing did not comply with R.C. 2152. 12(G) and Juv.R. 30(D). Specifically, appellant asserts that the notice was defective b ecause (1) it referenced a hearing to take place on July 26, 2019, when the probable cause hearing was actually held on August 21, 2019; (2) the certificate of service on the notic e only listed appellant's counsel; (3) although appellant's mother attended the hearing, the record does not reflect she was served three days in advance as required by R.C. 2152.1 2(G) and Juv.R. 30(D);Butler CA2020-09-101

- 10 - and (4) there is no indication appellant's father was served wi th the notice and he did not attend the hearing. {¶ 27} R.C. 2152.12(G) requires a juvenile court to "give notice in wr iting of the time, place, and purpose of any hearing held pursuant to division (A) or (B) of this section to the child's parents, guardian, or other custodian and to the child' s counsel at least three days prior to the hearing." Likewise, Juv.R. 30(D) provides that "[ n]otice in writing of the time, place, and purpose of any hearing held pursuant to this rule sh all be given to the state, the child's parents, guardian, or other custodian and the child's c ounsel at least three days prior to the hearing, unless written notice has been waived on the re cord." {¶ 28} R.C. 2152.12(G) "reflects a legislative intent to protect juven iles by informing their caregivers of any pending actions involving the juveniles so that the caregivers can offer assistance, guidance, and support to the juveniles." State v. Reynolds , 10th Dist. Franklin No. 06AP-915, 2007-Ohio-4178, ¶ 12; State v. Rodriguez , 12th Dist. Butler No. CA2008-07-162, 2009-Ohio-4460, ¶ 27. {¶ 29} As stated above, appellant's mother attended the probable cause hearing on August 21, 2019. At the beginning of the hearing, appellant's mother confirmed she had received a copy of the state's bindover motion; appellant's cou nsel advised the juvenile court she had discussed the bindover process with appellant's m other. {¶ 30} In Rodriguez , this court addressed a juvenile court's failure to provide wr itten notice of a probable cause hearing. We held that "while the re cord is devoid of any evidence indicating written notice was provided, it is obvious, nonethel ess, that her legal custodians, as well as a number of her other family members, had actual not ice of the bindover proceedings as they personally appeared in court in order to of fer appellant their assistance, guidance, and support." Rodriguez , 2009-Ohio-4460 at ¶ 30. "As a result, even though the juvenile court failed to provide her legal custodians with writ ten notice as required by R.C.Butler CA2020-09-101

- 11 - 2152.12(G), due to their personal appearance at the hearings, t hey had sufficient and adequate notice of the charges and proceedings pending against their granddaughter." Id. "Therefore, because appellant's legal custodians actually atten ded the scheduled bindover proceedings, we find no prejudicial impact resulting from the j uvenile court's failure to provide them with written notice of such." Id. {¶ 31} In light of Rodriguez and given the fact appellant's mother actually attended the August 21, 2019 probable cause hearing, we find no prejudic ial impact resulting from

the fact the notice referenced an incorrect date for the hearin g and only listed appellant's counsel, and the fact the record does not reflect when service was perfected on appellant's mother. We therefore find no prejudicial error. {¶ 32} As to the juvenile court's alleged failure to serve the notice upon appellant's father, the Ohio Supreme Court recently held that service of th e R.C. 2152.12(G) notice upon both parents is not necessary: "Regardless of [father's] p aternity status, service upon [mother] alone would be sufficient. R.C. 1.43(A) (the 'singula r includes the plural, and the plural includes the singular')." Turner v. Hooks , 152 Ohio St.3d 559, 2018-Ohio-556, ¶ 4, citing Reynolds , 2007-Ohio-4178. {¶ 33} The issue in Reynolds was whether both parents were required to receive notice under R.C. 2152.12(G) and Juv.R. 30(D), or whether it wa s sufficient that one parent received notice and attended the hearing. The Tenth District C ourt of Appeals noted that R.C. 2152.12(G) does not define "parents," and does not indicate whether both parents are required to constitute sufficient notice and satisfy due process. Although a literal reading of "parents" would seem to require notice to both parents, we find that such a reading would render the use of th e term illogical under some circumstances such as where only one parent is living or the identity of one parent is unknown. Under such hypothetical circumstances, clearly notice to a single parent would be sufficient. * * * Further, that the st atute states that notice "shall" be given to the "parents," yet fails to indicate the proper procedure when notice to one parent is anButler CA2020-09-101

- 12 - impossibility, demonstrates that "parents" should not be strict ly interpreted to mean both parents. Reynolds at ¶ 11. Continuing, the court of appeals held that although " it is better to give notice to both parents when possible, notice to one parent when the other parent's identity or whereabouts are unknown still serves to protect the juvenile and furthers the legislative goals of R.C. 2152.12(G)." Id. at ¶ 12. We agree with the Tenth District Court of Appeals' reasoning and analysis. {¶ 34} Furthermore, appellant does not indicate how he was prejudiced by the lack of notice to his father. The absence of appellant's father fro m the proceedings had no effect on the outcome of the proceedings and appellant claims none. A ppellant's mother received a copy of the bindover motion and attended the probable cause h earing. "There is no evidence that appellant's mother might have harbored any prejud ice or ill feelings against her son that could have affected her alignment with him and com promised her duty to protect the best interests of her child." Reynolds , 2007-Ohio-4178 at ¶ 14. {¶ 35} In light of the foregoing, we find no prejudicial impact result ing from the juvenile court's failure to provide appellant's father with wri tten notice of the August 21, 2019 probable cause hearing, and therefore find no prejudicial error

. {¶ 36} In his third issue for review, appellant argues that the cumula tive effect of the errors described above violated his due process rights and depr ived him of a fair probable cause hearing. {¶ 37} Under the doctrine of cumulative errors, a reviewing court "wil l reverse a conviction when the cumulative effect of errors deprives a defe ndant of a fair trial even though each of the instances of trial-court error does not indi vidually constitute cause for

reversal." State v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 140. Appellant cites no authority for the proposition that the cumulative error doctrin e applies to juvenile bindoverButler CA2020-09-101

- 13 - proceedings. See State v. Fuell , 12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627. However, because we have found no merit to appellant's first an d second issues for review as discussed above, appellant cannot demonstrate cumulative err or. Appellant was therefore not deprived of a fair probable cause hearing. {¶ 38} Appellant's first assignment of error is overruled. {¶ 39} Assignment of Error No. 2: {¶ 40} THE TRIAL COURT ERRED BY SENTENCING SMITH TO LIFE

IMPRISONMENT WITH THE POSSIBILITY OF PAROLE UNDER THE CHILD-RAP E STATUTE, AND BY IMPOSING LIFETIME PAROLE SUPERVISION. {¶ 41} Appellant argues, and the state concedes, that in sentencing hi m to 15 years to life in prison for murder, the trial court wrongly referred to R.C. 2971.03(B)(1)(b) and improperly imposed mandatory lifetime parole supervision by the Adult Parole Authority. {¶ 42} A trial court speaks through its journal entry. State v. Henderson , 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 39. The sentencing entry provides that appellant was sentenced to 15 years to life in prison "pursuant to R.C. 2971. 03(B)(1)(b)." That sentencing statute applies to a rape offender where the victim was less th an ten years old and is clearly inapplicable here. The sentencing entry further provides that appellant's sentence for murder "includes Mandatory Lifetime Parole supervision by the A dult Parole Authority pursuant to [R.C.] 2967.13." However, that statute applies to parole eligibility , not to parole supervision after release from prison. Furthermore, no statute provides for a lifetime parole supervision in Ohio. Rather, the Adult Parole Authority may gr ant a paroled prisoner final release, but if the paroled prisoner has been sentenced to life in prison, "the authority shall not grant a final release earlier than five years after the par oled prisoner is released from the institution on parole." R.C. 2967.16(A). {¶ 43} We find that the two errors made by the trial court in its sent encing entry areButler CA2020-09-101

- 14 - clerical errors that "may be corrected by the court at any time ." Crim.R. 36. Upon remand, the sentencing entry shall reflect that appellant is being sent enced for murder pursuant to R.C. 2929.02(B)(1). The trial court is further instructed to c orrect the improper imposition of lifetime parole supervision by the Adult Parole Authority. {¶ 44} Appellant's second assignment of error is sustained. {¶ 45} Assignment of Error No. 3: {¶ 46} THE JUVENILE COURT SET AN UNCONSTITUTIONAL BOND. {¶ 47} As stated above, the juvenile court set bond at $1,000,000 for the murder charge, $10,000 for each firearm specification, and $10,000 for the tampering with evidence charge. Appellant argues the juvenile court erred by setting b ond for the firearm specifications as they are not criminal offenses but sentence e nhancements, and by imposing a cash-only bond which is unconstitutional under the O hio Constitution. {¶ 48} Appellant is correct that a firearm specification is a sentence enhancement that attaches to a predicate offense, not a separate criminal o ffense. State v. Ford , 128 Ohio St.3d 398, 2011-Ohio-765, ¶ 16-17. Appellant is also corr ect that cash-only bail is unconstitutional under Section 9, Article I of the Ohio Constit ution. Smith v. Leis , 106 Ohio St.3d 309, 2005-Ohio-5125, ¶ 1. However, it is well establishe d that once a defendant has been convicted, "'any error concerning the issue of pretrial ba il is moot.'" State v.

Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 206, quoting State v. Patterson , 110 Ohio App.3d 264, 271 (10th Dist.1996). The proper procedure fo r seeking relief for excessive or improper pretrial bail is through habeas corpus pr oceedings. Patterson at 272.

Unlike the defendant in Leis , appellant did not seek this remedy. 2 Accordingly, his third

2. In his reply brief, appellant asserts that his bond issues fall within the "capable of repetition, yet evading review" exception to the mootness doctrine and cites Smith v. Leis , 106 Ohio St.3d 309, 2005-Ohio-5125, in support. In Leis , the Ohio Supreme Court found that while the bail issue was mo ot as to Smith, it was nonetheless properly before the court because it presented a pr operly debatable constitutional issue and theButler CA2020-09-101

- 15 - assignment of error is overruled. Id. ; State v. Santiago , 8th Dist. Cuyahoga No. 101612, 2015-Ohio-1301, ¶ 15; State v. Smith , 2d Dist. Montgomery No. 28265, 2019-Ohio-5015, ¶

44-45. {¶ 49} Judgment reversed in part, and remanded with instructions to th e trial court to correct the misstated statutory provision regarding appellan t's sentence for murder and the improper imposition of lifetime parole supervision by the A dult Parole Authority. In all other respects, the judgment of the trial court is affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

issue was of great public or general interest as it affected th e types of bail that trial courts are authorized to grant in criminal cases throughout the state. Id. at ¶ 15. The supreme court noted, however, that the case did not appear to fall within the "capable of repetition, yet e vading review" mootness exception because the exception "further requires 'a reasonable expectation that the same complaining party will be subject to the same action again.'" (Emphasis sic) Id. at ¶ 16, fn. 1, quoting State ex rel. Calvary v. Upper Arlington , 89 Ohio St.3d 229, 231 (2000). "With his lengthy criminal sentenc e, it is unlikely that Smith again will be subject to the same cash-only preconviction bail." Leis at ¶ 16, fn. 1. Given appellant's lengthy criminal sentence, it is unlikely he again will be subject to the same cash-only and firearm specification preconviction bail. Consequently, the "capable of repetition, yet evading review" e xception to the mootness doctrine is inapplicable here.