[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as DuBose v. McGuffey , Slip Opinion No. 2022-Ohio-8.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2022-O HIO -8
D U B OSE , A PPELLEE , v . M C G UFFEY , S HERIFF , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as DuBose v. McGuffey , Slip Opinion No. 2022-Ohio-8.] Habeas corpus action claiming excessive bail—The sole purpose of bail is to ensure an accused person’s attendance in cour t—Under Crim.R. 46, public safety is not a consideration with respect to the financial conditions of bail—Court of appeals’ judgment granting writ and ordering reduction of bail affirmed. (No. 2021-1403—Submitted December 15, 2021—Decided January 4, 2 022.)
A PPEAL from the Court of Appeal s for Hamilton County, No. C-210489,
2021-Ohio-3815.

__________________ Per Curiam. {¶ 1} On October 27, 2021, the First District Court of Appeals grante d a writ of habeas corpus ordering the reduction of petitioner-appe llee Justin DuBose’s bail from $1,500,000 to $500,000. Respondent-appellant, Charma ine McGuffey,S UPREME C OURT OF O HIO

2 Hamilton County sheriff (hereafter , “the state”), has appealed from that judgment.
For the reasons set forth herei n, we affirm the judgment of the court of appeals. I. Background {¶ 2} On July 18, 2020, Shawn Green was killed in an alleged robbery in Hamilton County. DuBose and a codefendant, Jamie Shelton, were charged with the crime. DuBose was indicted on two counts of murder, one count of aggravated robbery, and one count of aggravated burglary in case No. B 200 5815-B. He was arrested in Las Vegas, Nevada, and returned to Ohio after waivi ng extradition. {¶ 3} On November 5, 2020, a bail hear ing took place in the Hamilton County Municipal Court. DuBose’s attorney requested a “reasonable” ba il, based on DuBose’s limited financial means, ties to the community, and la ck of a significant criminal record. The state asked for a bail amount of $1,500,0 00, to match the bail amount that a different judge had set for DuBose’s codefendant. In support of the bail amount, the state asked the judge to consider the circumst ances of the crime (Green was shot in the head after intruders—allegedly DuBose an d Shelton—entered a home to rob its owner of marijuana) as well as the fact that DuBose allegedly fled to Nevada after the crime. The court set a bail of $750,000 on the murder charge and a separate $750,000 bail on the aggravated-robbery charge. {¶ 4} On January 26, 2021, DuBose filed a m otion for a bail reduction in the Hamilton County Court of Common Pl eas. A hearing on the motion was held on February 23, 2021. DuBose emphasized his limited resources, as well as his ties to the community and lack of a felony record, while the state agai n focused on the circumstances of the crime and DuBose’s alleged flight risk. A t the close of the hearing, the trial court stated:

[T]he Court cannot ignore the serious nature of this offense an d alleged conduct that I just he ard about fleeing the state.January Term, 2022

3 So given all of that, I do think that $1.5 million is an excess ive bond, but I am going to reduce it.

The court then reduced the bail to $500,000. {¶ 5} The next day, however, the trial court restored the original ba il amount because the court had failed to notify the victim’s family of t he bail hearing, as required by Marsy’s Law, Article I, Section 10a, Ohio Constitut ion. On February 26, the parties again appeared before the trial court for a hearing on DuBose’s motion for a bail reduction. The state presented new evidence—a photograp h posted on Facebook showing DuBose with mu ltiple firearms. The victim’s g randmother was present for the second hearing. She told the trial court, “I w ould like you to keep his
bond where it was. We don’t feel safe with him out on bond.” She also reported that her daughter, the victim’s mother, would be “scared to death if he gets out.” The trial court concluded, “This additional information that I’ve receive d today changes the consideration that I had the other day.” The court therefore o verruled the motion to
reduce the bail amount. {¶ 6} On June 28, DuBose filed a second motion to reduce bail. On Au gust 12, at the hearing on the motion, DuBose presented evidence tha t he had traveled commercially to Las Vegas, stayed in hotels under his own name, and posted updates about his whereabouts on Instagram, all to refute the suggestio n that his trip to Las Vegas constituted flight. The state, on the other hand, offere d a report from the Las Vegas police regarding DuBose’s arrest. According to the state , the report indicates that when the police in Las Vegas initially approached DuBose ( on an unrelated matter), he provided a counterfeit California identification ca rd for “Kevin Polanski”
and claimed to be Polanski. {¶ 7} The trial court denied the second motion to reduce bail. It ba sed its decision on three factors. First, the trial court noted that D uBose is facing serious criminal charges that will carry “significant mandatory prison time” if he isS UPREME C OURT OF O HIO

4 convicted. Second, the trial cour t “placed a lot of weight on” the statements of the victim’s family member and “more importantly, the sentiment and the fear that the family member had.” And third, the trial court observed that t here is “no reasonable reason to use a fake identity,” which DuBose had allegedly done in Las Vegas. In its decision, the trial court gave no weight to the state’s all egation that DuBose had fled to Las Vegas. And the court di scounted the state’s argument t hat the possibility of future charges against DuBose in Las Vegas might make him un available for
trial in this case. {¶ 8} On September 22, DuBose filed a petition for a writ of habeas c orpus in the First District. After the state filed a response to the petition, the court of appeals granted the writ. The court of appeals held that bail in the amount of $1,500,000 was excessive because it did not take into considera tion DuBose’s financial resources, as require d by Crim.R. 46(C)(4). 2021-Ohi o-3815 at ¶ 27. As the court of appeals noted, the state did not dispute DuBose’s claim that he and his family were unable to afford the $1,500,000 bail. Id. at ¶ 19. In the view of the court of appeals, “DuBose’s high bail was effectively a denial of bail, without the trial judge making any of the r equired statutory findings” to h old a defendant
without bail. Id . at ¶ 26. The court therefore granted DuBose’s petition and r educed his bail to $500,000, no 10 percent bond, but added several non financial conditions, including that DuBose would be subject to 24-hour lockdown enfo rced by electronic monitoring, he coul d have no direct or indirect cont act with the victim’s family, and he had to surre nder his passport. Id. at ¶ 29. {¶ 9} The state appealed. II. Analysis
A. Legal background {¶ 10} “Bail is security for the appearance of an accused to appear an d answer to a specific criminal * * * charge * * *.” R.C. 2937.22(A). All persons are “bailable by sufficient sureties, except for a person who is ch arged with a capitalJanuary Term, 2022

5 offense where the proof is evident or the presumption great, an d except for a person who is charged with a felony where the proof is evident or the presumption great and where the person poses a substantial risk of serious physic al harm to any person or to the community.” Ohio C onstitution, Article I, Section 9. Pretrial release not only makes it easier for an accused person to prepare a defense , it also upholds the presumption of innocence by ensuring that a person is not punis hed before being
convicted. Stack v. Boyle , 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951). {¶ 11} The sole purpose of bail is to ensure a person’s attendance in court. State ex rel. Sylvester v. Neal , 140 Ohio St.3d 47, 2014-Ohio-2926, 14 N.E.3d 1024, ¶ 16. “Bail ensures appearance. T herefore, the conditions pla ced on it must relate to appearance and the reasons for forfeiture to nonappearance.” State ex rel. Baker
v. Troutman , 50 Ohio St.3d 270, 272, 553 N.E.2d 1053 (1990). {¶ 12} Both the United States Constitution and the Ohio Constitution prohibit excessive bail. Eighth Amendment to the U.S. Constitu tion and Article I, Section 9 of the Ohio Constitution. A bail amount that is “hig her than an amount reasonably calculated to” ensure the accused’s presence in cour t is “excessive.”
Stack at 5. Habeas corpus is the proper vehicle by which to raise a claim of excessive bail in pretrial-release cases. Chari v. Vore , 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001). The burden of p roof in an excessive-bail ha beas petition is on the petitioner. Id . at 326. {¶ 13} In this appeal, the state pres ents two propositions of law. Un der its first proposition, the state contends that the court of appeals erred when it reviewed
the trial court’s bail decision de novo, rather than for an abu se of discretion. And under its second proposition of law , the state asserts that the court of appeals erred by discounting the statement by the victim’s grandmother regard ing her and her daughter’s concern for their pers onal safety. The state’s asse rtions do not have
merit.S UPREME C OURT OF O HIO

6 B. The state’s first proposition of law {¶ 14} Under its first proposition of law, the state argues that the c ourt of appeals should have reviewed the trial court’s ba il determinati on for an abuse of
discretion. The state asserts that de novo review of a trial c ourt’s bail determination is inconsistent with Article I, Section 9 of the Ohio Constitut ion and Crim.R. 46(B),
both of which vest the trial cour t with discretion over bail de terminations. {¶ 15} In the exercise of its discre tion under Crim.R. 46, a trial cou rt may not impose bail that violates the constitutional prohibition ag ainst bail in an amount higher than an amount reasonably ca lculated to ensure the accus ed’s presence in

court. Stack , 342 U.S. at 5, 72 S.Ct. 1, 96 L.Ed. 3. Whether a particular bail
determination is unconstitutiona lly excessive is a question of law appropriate for
de novo review. {¶ 16} Moreover, we recently recognized that in an original habeas act ion, a court of appeals may receive new evidence and independently weigh the evidence
to make its own bail determination. Mohamed v. Eckelberry , 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5. This is not to say that every case warrants review. As with any action for habeas relief, the burden is on the petitioner to establish his right to release, Chari , 91 Ohio St.3d at 325, 744 N.E.2d 763, and the petitioner must demonstrate “with particularity the extraordina ry circumstances entitling him to habeas corpus relief,” State ex rel. Wilcox v. Seidner , 76 Ohio St.3d 412, 414, 667 N.E.2d 1220 (1996). {¶ 17} Here, the court of appeals noted that neither party requested a n opportunity to submit additional evidence. It also noted that the state did not contest DuBose’s assertion that neither he nor his family could afford bail in the amount of $1,500,000 and that the state did not introduce evidence to reb ut that assertion. Thus, unlike this court in Mohamed , the court of appeals did not receive new evidence in this case. Instead, on the record before it, the c ourt of appeals
concluded that the bail amount w as excessive because it did not take intoJanuary Term, 2022

7 consideration DuBose’s financi al resources as required by Crim. R. 46(C)(4). De novo review was the proper standar d of review for this question of law. {¶ 18} The court of appeals did not dis turb the trial court’s findings of fact (nor do we). Rather, the court of appeals concluded that the b ail imposed by the
trial court was excessive based on its review of those facts in the context of the protections provided by the Unite d States and Ohio Constitution s and the statutory provisions and criminal rules tha t govern bail. We reject the state’s first proposition
of law.
C. The state’s second proposition of law {¶ 19} Under its second proposition of law, the state argues that the court of appeals wrongly disregarded the grandmother’s sta tement that sh e and her daughter would fear for their safety if DuBose were released on bail. T he state contends that although there is a statutory process for holding without bail a criminal defendant who poses a threat to public safety, the fact that the trial co urt considered the threat that DuBose allegedly poses doe s not automatically mean the cou rt was operating under that statute and had to meet its requirements. In other words, the state argues that the potential threat posed by a defendant is a legitimate consideration when fixing the appropria te amount of bail. {¶ 20} A judge may impose bail or hold a criminal defendant without ba il. The process of assessing bail is governed by Crim.R. 46. When determining the amount and conditions of bail, a cou rt must consider “all relev ant information,” including (1) the nature and circ umstances of the crime charged and whether the crime involved a weapon, (2) the weight of the evidence against the defendant, (3) the confirmation of the defendant’s identity, (4) the defen dant’s family ties, employment, financi al resources, character, record of convictio ns, and (5) whether the defendant was on parole or subject to another form of court control at the time of the alleged offens e. Crim.R. 46(C); Mohamed , 162 Ohio St.3d 583, 2020-Ohio4585, 166 N.E.3d 1132, ¶ 7.S UPREME C OURT OF O HIO

8 {¶ 21} Alternatively, if the state believes that a person poses a dang er to the community and must be held without the possibility of release, then the state must follow the procedures set forth in R.C. 2937.222 for an order o f detention without bail. In order to hold a person without bail under that statut e, the judge must find by clear and convincing evidence th at “the proof is evident or the presumption great that the accused committed the [serious offense] with which the accused is charged, * * * that the accused poses a substantial risk of serious phys ical harm to any person or to the community, and * * * that no release conditions will reasonably assure the safety of that person and th e community.” R.C. 2937.222(B). I n the present case, the court of appeals concluded th at the state is trying to hold DuBose without bail without attempting to meet its bur den of proof under the statut e, which the court deemed “improper” because “ ‘setting a high bail in order to ke ep someone accused of a crime incarcerated pretri al is both statutorily and consti tutionally unlawful.’ ” 2021-Ohio-3815 at ¶ 18, 26, quoting Mohamed at ¶ 24 (Stewart, J., concurring). {¶ 22} The state contends that the c ourt of appeals erred by reducing the
bail amount on this basis. The s tate avers that the court of a ppeals “took the State’s arguments relative to the safety concerns of the victim’s famil y and looked at them in terms of R.C. 2937.222, but Crim. R. 46 also mandates conside ration of the protection or safety of any pers on or the community at large.” By doing so, the state contends, the court of appe als dismissed those safety con cerns from the calculus and thereby “elevated [DuBose’s] ability to pay a cert ain amount for bail
above all other considerations t hat are provide d under Crim.R. 46.” {¶ 23} As previously noted, Crim.R. 46( C) contains a nonexclusive list of
factors a court must consider when determining the amount of ba il. Crim.R. 46(B)(2)(i) authorizes courts to impose “[a]ny other constituti onal condition considered reasonably necessary to ensure appearance or public safety” as a
condition of bail. But Crim.R. 46 was amended effective July 1 , 2020. In its current form, Crim.R. 46(B) provides thatJanuary Term, 2022

9 the court shall release the defendant on the least restrictive conditions that, in the discretion of the court, will reasonabl y assure the defendant’s appearance in cour t, the protection or safety o f any person or the community, and that the defendant will not obstru ct the criminal justice process. If the court orders financial conditions of release, those financial conditions shall be related to the defendant’s risk of non-appearan ce, the seriousness of the offe nse, and the previous criminal r ecord of the defendant.

(Emphasis added.) Thus, the rule distinguishes between the financial conditions of
release and other conditions of release and requires the financ ial conditions to relate to the risk of nonappearance. {¶ 24} As the revised rule makes clear, public safety is not a conside ration with respect to the financial conditions of bail. In making this statement, we do not minimize the importance of the safety concerns of the victim’s family in this case. We merely recognize, as did the court of appeals, that under Cr im.R. 46(B)(2), public-safety concerns may be a ddressed by imposing nonfinancia l conditions,
such as restrictions on travel and association, completion of a lcohol- and drugabuse treatment, and orders of no contact with witnesses in the case. 2021-Ohio3815 at ¶ 25, fn. 2. And restrictions like these were placed o n DuBose by the court of appeals. In addition to the nonfinancial conditions of rele ase already imposed by the court of common pleas, the court of appeals ordered 24-h our lockdown enforced by electronic monitoring, no contact with the victim’s family, and the surrender of his passport. {¶ 25} For the above reasons, we do not find that the court of appeals wrongly disregarded the grandmot her’s statement in its determin ation whether theS UPREME C OURT OF O HIO

10 financial condition of bail set by the trial court was excessiv e. Thus, the state’s second proposition of law has no merit.
D. Was $1,500,000 an excessive bail amount? {¶ 26} The court of appeals reviewed de novo the bail decision in DuBo se’s case and concluded, on the record before it, that bail in the a mount of $1,500,000 was unconstitutionally excessive. In an extraordinary-writ cas e, we review the judgment of a court of appeals as if the case had been original ly filed in this court.
See State ex rel. Armatas v. Plain Twp. Board of Trustees , 163 Ohio St.3d 304, 2021-Ohio-1176, 170 N.E.3d 19, ¶ 12 (mandamus). We therefore p roceed to a de
novo assessment of whether the ba il amount set by the trial cou rt was excessive. {¶ 27} As amended, Crim.R. 46(B) specifies that the financial conditio ns of
release must be related to “the defendant’s risk of non-appeara nce, the seriousness of the offense, and the previous criminal record of the defenda nt.” At the same time, the rule con tinues to provide:

[I]n determining the types, amounts , and conditions of bail, the court
shall consider all relevant information, including but not limi ted to: (1) The nature and circumstances of the crime charged, and specifically whether the defenda nt used or had access to a weap on; (2) The weight of the evidence against the defendant; (3) The confirmation of t he defendant’s identity; (4) The defendant’s family ties, employment, financial resources, character, mental condition, length of residence in the community, jurisdiction of residence, record of convictions, re cord of appearance at court proceedings or of flight to avoid prosec ution; (5) Whether the defendant is on probation, a community control sanction, parole, post-re lease control, bail, or under a court protection order.January Term, 2022

11 (Emphasis added.) Crim.R. 46(C) . As to many of the factors in this list, the evidence either weighs in DuBose’s favor or the record contains no relevant evidence either way. {¶ 28} For example, although DuBose has p rior misdemeanor convictions, he has no felony record, was not on any form of supervised rele ase at the time of the crime, and apparently has no pr ior record of nonappearance in court. The state made no representation as to the strength of the evidence again st DuBose, nor did
the state indicate which defenda nt allegedly fired the fatal sh ot. On the other hand, the evidence was undisputed that DuBose has ties to the communi ty and few or no
financial resources. {¶ 29} The trial court cited three fa ctors in support of the higher ba il amount: (1) the serious nature of the crime, (2) the safety con cerns expressed by the family, and (3) DuBose’s alleged use of a fake ID. The ser ious nature of the crime, standing alone, did not per suade the trial court to impo se the higher bail amount; the judge initially agreed that a $1,500,000 bail for D uBose was excessive because the serious nature of the charges did not outweigh DuBo se’s lack of
financial resources. That conc lusion is consistent with our de cision in Mohamed , in which we reduced the bail amount for a defendant who was fac ing multiple charges of attempted murder and felonious assault from $1,000,0 00 to $200,000, based largely on his inability t o afford the higher bail amount

. Mohamed , 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, at ¶ 6-7. And the reduced amount of $500,000 in this case is consistent with the bail imposed in other cases alleging comparable crimes. See, e.g. , Johns v. Wasylyshyn , 6th Dist. Wood No. WD-16- 002, 2016-Ohio-564, ¶ 2, 8 ($500,000 bail for a defendant indic ted on one count of murder of a child, two counts of endangering children, and one count of involuntary manslaughter).S UPREME C OURT OF O HIO

12 {¶ 30} By contrast, in cases in which bail has exceeded $1,000,000, co urts have affirmatively found the existence of factors that do not a pply to DuBose, such as strong evidence of guilt and the ability to pay. For exampl e, in Ahmad v.
Plummer , this court held that a bail set at $3,000,000 on a charge of conspiracy to commit murder was not excessive, because the defendant had asse ts to afford the bail amount and there was “substantial evidence against him.” 126 Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 15-17. More recently, the Si xth District Court of Appeals affirmed a cumul ative $1,400,000 pretrial bail, for a defendant charged with 9 counts of rape, 12 counts of gross sexual imposition, 6 counts of sexual battery, and 5 counts of pa ndering obscenity to a minor. Stevens v. Navarre , 2021- Ohio-551, 168 N.E.3d 578, ¶ 11, 19 (6th Dist.). In that case, the court of appeals found it “meaningful” that the victims were minors, and it also noted that there was substantial evidence against the accused, including testimony f rom the victims and
DNA evidence. Id . at ¶ 18; see also Drew v. State ex rel. Neil , 2020-Ohio-4366, 158 N.E.3d 684, ¶ 1, 6, 10 (1st Dist.) (no abuse of discretion in setting $5,000,000 bail for a defendant charged with nine counts of rape when the defendant failed to
submit trial-court-he aring transcripts or other evidence in his habeas action). {¶ 31} Only after the February 26 hearing, based on the “additional information” that the judge had received that day, did the tria l court rule in favor of a higher bail amount. The “additional information” to which th e trial court referred was the statement by the victim’s grandmother that she and her daughter feared DuBose, a factor upon which the judge “placed a lot of weight.” 1 As explained above, public safety, although of t he utmost importance, is not a factor relevant to
the calculation of the bail amount , which is concerned only wit h ensuring the defendant’s future appearance in court. While the grandmother’ s statement was

1. There was one other new piece of evidence presented at that hearing: a photograph of DuBose with firearms. However, the state’s brief does not argue that the photograph justifies the higher bail amount.January Term, 2022

13 certainly relevant to the trial court’s decision whether DuBose was bailable, once the trial court determined that bail was appropriate, the finan cial condition of DuBose’s bail would operate to a lleviate the grandmother’s fear only if it were an amount sufficient to preclude DuB ose’s release. Yet a court ma y not impose excessive bail for the purpose of keeping an accused in jail. “Keeping an accused in jail by excessive bail is as much a denial of his constituti onal rights as refusing
to fix bail.” State v. Bevacqua , 147 Ohio St. 20, 22, 67 N.E.2d 786 (1946). Nonfinancial conditions may be im posed to ensure that a defenda nt who is released on bail will pose no threat, and if the state is concerned that those conditions will be inadequate, a mechanism exists—R.C. 2937.222—to hold the def endant without bail. Moreover, we note that the trial court did not determine that DuBose actually posed a threat to the victim’s grandmother or her daughter. Th ere was no suggestion, for example, that DuBo se had made threats against t hem or that they will be witnesses against DuBose at trial. Instead, the trial court credited the unsworn statement without making any inquiry into the basis for her fear of
DuBose. {¶ 32} The third fact the trial court cited in support of its bail det ermination
entered the record at the final bail hearing, when the state pr offered an unsworn statement that DuBose was using a fake ID when he was questione d by police in Las Vegas on an unrelated matte r. The trial court had already discounted the state’s claim that DuBose had been fleeing prosecution, and DuBose had presented evidence that he had repeatedly posted his whereabouts on socia l media as he
traveled. When it took those f acts, along with the seriousness of DuBose’s alleged offenses, into consideration after the prior bail hearing, the trial court had held that bail in the amount of $1,500,000 was excessive. We fail to see why the additional statement that DuBose used a fake ID when Las Vegas police ques tioned him on
an unrelated matter should drama tically change the calculation of bail necessary to ensure DuBose’s presence at tr ial. And in any case, concerns t hat DuBose may beS UPREME C OURT OF O HIO

14 a flight risk can be addressed by other means, such as a daily reporting requirement to a probation officer and electronic monitoring. {¶ 33} For these reasons, we conclude that the trial court’s asserted reasons for setting a higher bail amount did not provide a n adequate le gal basis for the bail amount. Neither the grandmothe r’s testimony about her family’s safety concerns
nor the unsworn statement that Du Bose used a fake ID in Las Veg as is relevant to the bail amount necessary to ensu re DuBose’s presence at trial. As a result, we hold that the financial condition of bail set by the trial cour t was unconstitutionally excessive because it was more than the amount reasonably necess ary to ensure DuBose’s appearance in court. We therefore agree with the cour t of appeals that the trial court unlawfully set t he bail amount so high so as to ensure that DuBose could not get out. {¶ 34} Because we agree with the court of appeals that the trial court ’s financial condition of bail was excessive and the record suppor ts the court of appeals’ bail-reduction decisi on, we affirm the judgment of the court of appeals reducing DuBose’s bail.
III. Conclusion {¶ 35} For these reasons, we affirm th e judgment of the court of appea ls. Judgment affirmed.
O’C ONNOR , C.J., and S TEWART and B RUNNER , JJ., concur.
D ONNELLY , J., concurs, with an opinion.
K ENNEDY , J., dissents, with an opinion.
F ISCHER , J., dissents, with an opinion.
D E W INE , J., dissents, with an opinion.

_________________ D ONNELLY , J., concurring. {¶ 36} The dissenting opinions appear to be missing the point in this case. The issue regarding the bail se t for petitioner-appellee, Justi n DuBose, is notJanuary Term, 2022

15 whether one specific dollar amount or another specific dollar a mount is correct. The issue is that the amount set by the trial court was clearly calculated to be at a level that DuBose cannot possibl y afford to pay. If the eviden ce showed that DuBose had lots of money and could afford bail in the amount of $1.5 million, would the victim’s grandmother feel any safer that DuBose was r eleased after posting that amount? No. The feeling of safety comes from ens uring that DuBose cannot leave jail. {¶ 37} The dissenting opinions also seem to be creating a false dichot omy that a defendant either deserves to be subject to a bail that h e cannot possibly afford or deserves to be out of jail until he is tried. This also mis ses the mark. There are certainly defendants who should be held in state custody until they are tried. The trial court has the pow er to order that such defendants be held without bail, but as clearly explained in the majority opinion, the way to do that i s to follow the procedure in R.C. 2937.222, not to set a bail amount so high th at the defendant
cannot afford it. {¶ 38} Having spent 14 years as a trial -court judge and having set tho usands of bonds, I am appalled by the brazen accusations made in some of the dissenting opinions that the justices joining the majority opinion are mak ing Ohio less safe and disrespecting victims simply by telling our courts that the y must follow the rules if they want to hold defe ndants in custody prior to trial without the possibility
of release before the trial. I f a defendant does not appear to be bailable, a trial court may not prevent the defendant’s p retrial release by misapplying Crim.R. 46(B) and (C), which apply to defendants who are bailable. The trial court must instead follow the procedures to deny bail under R.C. 2937.222. See Crim.R. 46(A) (“A defendant may be detained pretrial, pursuant to a motion by the prosecutor or the court’s own motion, in accordance with the standards and proced ures set forth in the Revised Code”). The fact t hat a defendant might have commi tted a terrible
crime does not allow us to ignore the law.S UPREME C OURT OF O HIO

16 _________________ K ENNEDY , J., dissenting. {¶ 39} This case presents the question whether appellee, Justin DuBose , has satisfied his burden to demonstrate that he is being unlawfully confined based on excessive bail imposed by the tri al court in his criminal case. {¶ 40} Our review in this case is hybrid. This is an appeal from an o riginal action for a writ of habeas corpus, and the court reviews de no vo the evidence presented in the lower courts and any new evidence submitted to this court. The
trial court’s discre tion to set the amount of bail is authorize d by Article I, Section
9 of the Ohio Constitution and Crim.R. 46. An accused is not u nlawfully confined
and therefore not entitled to habeas relief unless the trial co urt abused its discretion when setting the amount of bail. DuBose had the burden of pres enting evidence and proving that the trial court’s decision to set his bail at $1,500,000 was unreasonable, arbitrary, or unconsci onable or that it otherwise exhibited perversity of will, passion, prejudice, par tiality, or moral delinquency. DuBose did not prove that the amount of bail set by th e trial court resulted from an abuse of discretion.
Because the evidence before us indicates that DuBose absconded from justice after allegedly committing murder with a firearm and that he poses a threat to the victim’s family and the community, the order setting bail at $1 ,500,000 is valid, he is lawfully confined, and he is not entitled to a writ of habea s corpus ordering a
reduction of the bail amount. I t herefore dissent and would re verse the judgment
of the First Distric t Court of Appeals gr anting a writ of habea s. The Right to Bail {¶ 41} The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required.” Bail is excessi ve when it is higher than is reasonably calculated to serve the government’s interest in ensuring the accused’s appearance at trial. See United States v. Salerno , 481 U.S. 739, 752-755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); Stack v. Boyle , 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3January Term, 2022

17 (1951). “[T]he fixing of bail ‘is peculiarly a matter of discr etion with the trial
court.’ ” United States v. Mitchell , 733 F.2d 327, 331 (4th Cir.1984), quoting United States v. Wright , 483 F.2d 1068, 1069 (4th Cir.1973); see also Carlson v.
Landon , 342 U.S. 524, 544-546, 72 S.Ct. 525, 96 L.Ed. 547 (1952) (att orney general did not abuse his discretion in setting bail). {¶ 42} Similarly, the Ohio Constitution provides a right to bail. Art icle I,
Section 9 states:

All persons shall be bailable by sufficient sureties, except fo r a person who is charged with a capital offense where the proof is evident or the presumption great, and except for a person who i s charged with a felony where the proof is evident or the presump tion great and where the person poses a substantial risk of serious physical harm to any person or to the community. Where a perso n is charged with any offense for which the person may be incarcerated, the court may dete rmine at any time the type, amo unt, and conditions of bail. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments
inflicted. The general assembly shall fix by law standards to determine whether a person who is charged with a felony where the proof i s evident or the presumption great poses a substantial risk of se rious physical harm to any person or to the community. Procedures for establishing the amount and conditions of bail shall be establi shed pursuant to Article IV, Section 5(B) of the Constitution of the state of Ohio.S UPREME C OURT OF O HIO

18 {¶ 43} The General Assembly enacted R.C. 2937.222, which establishes t he
considerations that a trial c ourt must undertake when determini ng whether to deny bail to an accused. Because the trial court has already determ ined that DuBose is bailable, those considerati ons are not at issue here.
The Amount of Bail Is Within a Trial Court’s Discretion {¶ 44} In accordance with Article I, Section 9 of the Ohio Constitutio n, this court promulgate d Crim.R. 46 to establish the procedures for se tting the amount
and conditions of bail. Crim.R. 46(B) provides that if a trial court determines that denying bail is not re quired by statute,

the court shall release the defendant on the least restrictive conditions that, in the discretion of the court , will reasonably assure the defendant’s appearance in cour t, the protection or safety o f any person or the community, and that the defendant will not obstru ct the criminal justice process. If the court orders financial co nditions of release, those financial conditions shall be related to the defendant’s risk of non-appearan ce, the seriousness of the offe nse, and the previous criminal record of the defendant. Any financia l conditions shall be in an amount and type which are least costl y to the defendant while also sufficient to reasonably assure the defendant’s future appearance in court.

(Emphasis added.) Compare R.C. 2937.23(A)(3) (“In all cases, the bail shall be
fixed with consideration of the s eriousness of the offense char ged, the previous criminal record of the defendant, and the probability of the de fendant appearing at the trial of the case”). {¶ 45} Crim.R. 46(B) expressl y commits the amount of bail required to the
discretion of a trial court. The refore, the standard for revie wing a trial court’sJanuary Term, 2022

19 determination of the amount of bail is the abuse-of-discretion standard. Jenkins v. Billy , 43 Ohio St.3d 84, 85, 538 N.E.2d 1045 (1989); Bland v. Holden , 21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970) (“The amount of bail is l argely within the sound discretion of the court”). {¶ 46} This accords with the decisions of other courts of last resort that the amount of bail is a discretionary determination. See, e.g. , State v. Visintin , 143 Haw. 143, 162, 426 P.3d 367 (2018); State v. Pratt , 204 Vt. 282, 2017 VT 9, 166 A.3d 600, ¶ 20; State v. Brown , 2014-NMSC-038, 338 P.3d 1276, ¶ 39; Myers v.
St. Lawrence , 289 Ga. 240, 241-242, 710 S.E.2d 557 (2011); Querubin v.
Commonwealth , 440 Mass. 108, 120, 795 N.E.2d 534 (2003), fn. 10. It is als o consistent with our own recogniti on that when excessive-bail ca ses are “considered as appeals, it is reasonable to r equire some finding of error o r abuse of discretion before allowing the writ to issue overturning or modifying the decision of the trial
court.” In re DeFronzo , 49 Ohio St.2d 271, 273, 361 N.E.2d 448 (1977).
Review of Bail Decisions {¶ 47} Ohio law does not permit an interlocutory appeal of a trial cou rt’s order setting bail, and we have recognized that a petition for a writ of habeas corpus is the proper vehicle to rai se an excessive-bail claim. Chari v. Vore , 91 Ohio St.3d 323, 325, 744 N.E.2d 763 (2001); State v. Bevacqua , 147 Ohio St. 20, 67 N.E.2d 786 (1946), syllabus. We have sugge sted that there is a hybrid nature to these types of claims, pointing to “the ‘anomaly in original actions which are filed seeking habeas corpus on the grounds of excessive bail because the effe ct of such cases is an appeal from a decision of the trial court; yet, such cases a re also considered as original actions so as to permit hearings and findings of fact. ’ ” Ahmad v. Plummer , 126 Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 2, quotin g DeFronzo at 273. Relying on Ahmad and DeFronzo , this court recently held that a trial court’s
determination of the amount of bail is subject to de novo revie w by this court and suggested that this court is ves ted with the discretion to subs titute its judgment forS UPREME C OURT OF O HIO

20 that of the trial court and determine the amount of bail. See Mohamed v. Eckelberry , 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 4-5. {¶ 48} In my view, that analysis is incorrect. This is an appeal from an original action, and we review de novo the evidence presented i n the trial court and any new evidence submitted to the court of appeals or to this c ourt. Ahmad at ¶ 2. But the focus remains on whether the petitioner is entitled to a writ of habeas corpus, and “ ‘[h]abeas corpus i n Ohio is generally appropriate in the criminal context only if the petitioner is entitled to immediate release from prison or some other type of physical confinement.’ ” Smith v. Leis , 106 Ohio St.3d 309, 2005- Ohio-5125, 835 N.E.2d 5, ¶ 13, quoting State ex rel. Smirnoff v. Greene , 84 Ohio St.3d 165, 167, 702 N.E.2d 423 (1998). {¶ 49} DuBose therefore bore the burdens of presenting evidence and persuading this court that he is unlawfully confined. Chari at 326. As explained above, the trial court is vested with discretion to set the amo unt and conditions of bail pursuant to Article I, Section 9 of the Ohio Constitution and Crim.R. 46, as
well as our caselaw. It therefore follows that DuBose is not e ntitled to a writ of habeas corpus unless he proves th at the trial court abused its discretion in setting
the amount and conditions of bail—if the trial court did not ex ceed its discretion, then DuBose is not being unlawfully confined. In determining w hether the trial court abused its discretion, we independently consider and weig h the evidence submitted by the parties. {¶ 50} Because the ultimate standard of review in determining whether DuBose is unlawfully confined on excessive bail is an abuse of discretion, this court is not permitted to substitute its judgment for that of the tri al court. Mohamed , 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 39 (Kennedy, J., dissenting);
see also In re Jane Doe 1 , 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181 (1991) (“When applying the abuse of discr etion standard, a reviewing c ourt is not free to merely substitute its judgment for that of the trial court”). “Nor is it the function ofJanuary Term, 2022

21 a habeas proceeding to provide the petitioner a second bail hea ring.” Mohamed at ¶ 39 (Kennedy, J., dissenting). R ather, the habeas remedy is a vailable to protect the accused’s constitutional right s from the trial court’s abus e of its discretion in setting an excessive bail. See generally Bevacqua , 147 Ohio St. at 22-23, 67 N.E.2d
786.
Review for an Abuse of Discretion {¶ 51} An “ ‘ “abuse of discretion” * * * implies that the court’s att itude is unreasonable, arbitrary or unconscionable.’ ” (Ellipsis added in White .) State v. White, 118 Ohio St.3d 12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 46, quoti ng State v.
Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). It also exist s when there is “perversity of will, passi on, prejudice, partiality, or mora l delinquency.” Pons v.
Ohio State Med. Bd ., 66 Ohio St.3d 619, 621, 614 N.E.2d 748 (1993). {¶ 52} Crim.R. 46(B) directs the trial court to impose the least-restr ictive conditions of release that “will reasonably assure the defendan t’s appearance in court, the protection or safety of any person or the community, and that the defendant will not obstruct the criminal justice process.” Fin ancial conditions must also be “related to the defendant’s risk of non-appearance, the seriousness of the offense, and the previous criminal record of the defendant.” Id . The trial court must also consider (1) the nature and circumstances of the crim e charged and whether the crime involved a weapon, (2) the weight of the evid ence against the defendant, (3) the confirmation of the defendant’s identity, (4 ) the defendant’s family ties, employment, financial resources, character, and re cord of convictions, and (5) whether the defendant was on parole or subject to anoth er form of court
control at the time of the a lleged offense. C rim.R. 46(C). {¶ 53} Reviewing the evidence in this case de novo, I believe the tria l court’s order setting bail at $1,500,000 was not an abuse of di scretion. DuBose is alleged to have committed murder during a robbery in which the victim was shot in the head. He then left the state and flew to Las Vegas. Wh en approached byS UPREME C OURT OF O HIO

22 law-enforcement officers in Las Vegas, he presented counterfeit identification and was found to have $2,000 in cash. Following DuBose’s extraditi on from Las Vegas, the trial court initia lly set bail at $1,500,000. On Du Bose’s motion and after hearing about his connections to the community and his inabilit y to pay the bail previously set, the trial c ourt reduced bail to $500,000. Howe ver, because the victim’s family had not been notified of the change-of-bail hea ring as required by Marsy’s Law, Article 1, Secti on 10a of the Ohio Constitution, t he trial court reinstated the $1,500,000 bail. At a subsequent hearing on DuB ose’s motion for reduced bail, the victim’s grandmother stated that her family w ould not feel safe if
DuBose were released and that the victim’s mother was scared of him. There was also evidence of a social-media post in which DuBose posed with multiple firearms, which, along with the circumstan ces of the crime, tends to prov e that he possessed a firearm at the time of the murder and robbery. DuBose, in tu rn, pointed to his limited financial resources, his ties to the community, and his lack of a felony
record. The trial court ultimate ly maintained DuBose’s bail at $1,500,000. {¶ 54} Considering this evidence, without giving deference to the tria l court’s findings, it was not unreasonable to set bail at $1,500 ,000. DuBose faces serious charges with mandatory prison time, the evidence sugges ts that he possessed a firearm at the time he allegedly committed the char ged offenses, and he absconded from justice (as shown by his leaving the state so on after the crime,
his use of counterfeit identifi cation, and his possession of a large amount of cash). Based on this evidence, a court could reasonably conclude that there is a strong risk that DuBose might not appear at trial. Further, the victim’s g randmother’s
statement to the court indicates that the amount of bail was re asonably necessary for the protection or safety of the victim’s family, a factor t hat Crim.R. 46(B) makes
relevant to both the financial and nonfinancial conditions of r elease. DuBose presented conflicting informati on regarding his financial condi tion, at one point representing that he was unempl oyed and later, when arguing tha t he had strongJanuary Term, 2022

23 ties to the community, claiming that he had been employed by th e same employer for a year. That evidence cuts against his credibility as well as his inability to post
bail. {¶ 55} Courts have rejected the view that bail is excessive merely bec ause the accused cannot afford it. 4 Wayne R. LaFave, Jerold H. Isr ael, Nancy J. King, Orin S. Kerr, Criminal Procedure , Section 12.2(b) (4th Ed.Rev.2021). Further, to the extent that there is no evidence related to other factors, that counts against DuBose, since he bears the burde n of presentment and persuasion . In light of the
factors to be considered under Crim.R. 46 and weighing all the evidence together— the seriousness of the charged offenses, which were committed w ith a firearm, the risk of flight, and the need to protect the victim’s family—the trial court could reasonably conclude that bail in the amount of $1,500,000 was n ecessary. {¶ 56} The majority’s analysis has it backwards. It applies a de novo review to the ultimate decision regarding the amount of bail, but it r elies on the trial court’s findings—or lack of findings—reg arding the evidence presented. It suggests that the trial court put too much weight on the victim’s family’s sa fety and failed to make a finding that DuBose poses an actual threat. It notes th at the trial court gave DuBose the benefit of the doubt regarding whether he had fled t he state, even though the trial court also noted that DuBose could not justify using counterfeit identification. And the majority relies on the fact that the t rial court initially determined that the charges of m urder and robbery required bail in the amount of only $500,000, while disregarding its finding that bail in the amount of $1,500,000

was necessary. {¶ 57} This is not de novo review. A de novo review requires the revi ewing court to independently consider and weigh the evidence and to d etermine whether the party who bears the burden of proof—here, DuBose—has demons trated entitlement to relief. Instead, the majority basically picks a nd chooses among the trial court’s findings, deferring to some and rejecting others, before coming to itsS UPREME C OURT OF O HIO

24 own conclusion that the trial court’s findings that it accepts warrant a reduction of
the bail amount. {¶ 58} In my view, DuBose failed to estab lish that the trial court abu sed its discretion in setting the amountof bail. The trial court’s co nsideration of the
relevant factors on the record shows that its decision was not unreasonable, arbitrary, or unconscionable or t hat it otherwise exhibited per versity of will, passion, prejudice, partiality, or moral delinquency. Absent a showing that the trial
court abused its discretion in s etting bail, DuBose’s confineme nt is not unlawful and a writ of habeas corpus will not lie. For these reasons, I dissent and would reverse the judgment of the court of appeals.

_________________ F ISCHER , J., dissenting. {¶ 59} Abuse of discretion is the appr opriate standard of review in a habeas corpus petition alleging excessive bail when an appellate court merely reviews the same evidence presented to the trial court during the bail hear ings. Because the majority opinion holds otherwise, I must respectfully dissent. Abuse of Discretion Is the Appropriate Standard of Review in th is Case {¶ 60} The majority opinion holds that the First District Court of App eals properly reviewed de novo the issue of excessive bail in Justin DuBose’s habeas petition. The majority opinion main tains that whether the tria l court complied with Crim.R. 46—i.e., whether it consid ered the proper factors—is so lely a question of law. Majority opinion at ¶ 17. The majority opinion also reli es on this court’s
recent decision in Mohamed v. Eckelberry , 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5, to support its a ssertion that an appellat e court may perform an independent review in this situation. {¶ 61} While Mohamed recognizes that there are circumstances in which an appellate court may ha ve some independent review, it does not s uggest that appellate courts have unrestra ined de novo review for all bail issues. Rather,January Term, 2022

25 Mohamed indicates that a de novo review i s appropriate w hen the appell ate court has accepted new evidence from the petitioner, outside of what was presented to
the trial court. See Mohamed at ¶ 4-5. To interpret Mohamed so broadly is to
invalidate well-establis hed precedent on the issue. {¶ 62} It is true that this court’s case law has made it difficult to determine the appropriate standard of revi ew in habeas cases asserting ex cessive bail. See DuBose v. McGuffey, 165 Ohio St.3d 1459, 2021-Ohio-4147, 176 N.E.3d 770, ¶ 5 (DeWine, J., dissenting). But a fter reading the line of cases on this issue, I find it apparent that the proper standard of review is generally an abu se of discretion, unless the petitioner has demonstrated that independent review is warranted. See Jenkins v. Billy, 43 Ohio St.3d 84, 85, 538 N.E.2d 1045 (1989) (court noted that the petitioner alleged no facts to demonstrate that the trial court abused its discretion or that appropriate grounds for independent review by the Ohio Supreme Court existed); State v. Foster , 10th Dist. Franklin No. 08AP-523, 2008-Ohio-3525, ¶ 5 (challenges alleging excessive ba il are generally reviewed for an abuse of discretion in a habeas corpus action). {¶ 63} While there are certainly circu mstances in which an independent review may be appropriate, for example, when the appellate cour t has accepted new evidence or has held a hearing, see In re DeFronzo , 49 Ohio St.2d 271, 274, 361 N.E.2d 448 (1977), those situations do not exist in this case. The First District was presented with only the trial-court documents and the transcrip ts of the bail hearings
that had been held before the trial court. There was no new ev idence admitted. There was no separate hearing he ld. The appellate court simply read and reviewed what the parties had presen ted to the trial court. {¶ 64} We all know that trial courts do not have the discretion to mak e errors of law. Johnson v. Abdullah , ___Ohio St.3d ___, 2021-Ohio-3304, ___N.E.3d____, ¶ 39. But it is evide nt from the trial-court an d appellate-court
records in this case that we ar e not talking about a misapplica tion of the law. TheS UPREME C OURT OF O HIO

26 entire issue is about weighing th e evidence and deciding whethe r the bail amount imposed was excessive. The appellate court looked only at whet her the trial court had appropriately considered DuB ose’s financial situation—that is, whether the trial court had properly wei ghed the evidence before it. See 2021-Ohio-3815, ¶ 19- 20, 28. And that is an issue that is normally reviewed for an abuse of discretion, and it is an issue that is easily determined here, when the tri al-court record is read
in full. {¶ 65} The trial-court record clearly demonstrates that the trial cour t considered DuBose’s financial situation in determining the amou nt of bail; it simply did not give that factor m uch weight in comparison to th e other factors that the trial court was required t o consider under Crim.R. 46. DuB ose filed two
motions for reduction of his ba il. In those motions, DuBose br iefly mentioned that he and his family do not have the financial means to post his b ail. The issue of finances was only briefly menti oned by DuBose’s counsel at the first hearing. His counsel noted that DuBose had a job, that he lived with his mot her, and that they
have “limited resources.” {¶ 66} Nevertheless, the trial court cons idered DuBose’s financial sit uation at each hearing. At the first bail hearing, the trial court ac knowledged that it had to
consider DuBose’s financial situ ation in addition to many other factors, such as the
seriousness of the offense. The c ourt, considering all the fac tors, decided to reduce the bail amount. However, upon rehearing, after listening to s tatements from the victim’s family member, the court stated, “This additional information that I’ve received today changes the consideration that I had the other day. And the Court being fully advised , I’m going to overrule the motion to reduce the bond at this time.” (Emphasis added.) At the third hearing, the court agai n recognized that it
needed to consider the defendant’s financial resources when set ting the bail amount. The court again considered everything it had previousl y, placing greatJanuary Term, 2022

27 weight on the statements from the victim’s family member, and i t determined that
the motion should be denied. {¶ 67} After reviewing the motions filed in the trial court and the tr anscripts of the hearings on those motions, I find it clear that the tria l court considered DuBose’s financial resources and weighed that factor with the o ther relevant factors. The court of appeals even acknowledged the trial cour t’s effort in weighing the factors under Crim.R. 46. 2021-Ohio-3815 at ¶ 28. But the appellate court simply disagreed with the trial court’s weighing of those facto rs, so it conducted its own analysis. Id. ¶ 16-28. This was improper because the amount of bail is larg ely
within the sound discreti on of the trial court, see Bland v. Holden , 21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970), and the appellate court here m erely reviewed the trial-court record. Therefore, abuse of discretion is the appr opriate standard of
review in this case. We should remand the matter to the appell ate court for it to apply the proper standard of review. See State v. Wamsley , 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 29 (cause remanded to the appe llate court for it to conduct the proper analysis). Crim.R. 46(C) Permits Considera tion of the Safety Concerns of the Victim’s Family {¶ 68} Because I would hold that abuse of discretion is the appropriat e standard of review and would rema nd the cause to the appellate court to apply that standard, I would not reach the state’s second proposition of l aw. However, because the majority opinion decides the issue, I find it neces sary to weigh in. I disagree with the majority opini on’s conclusion that the trial court’s consideration of the safety concerns of the victim’s family when setting the bail amount was improper. {¶ 69} I agree that Crim.R. 46(B) clearly indicates that financial con ditions
of release must be related to the defendant’s risk of nonappear ance, the seriousness of the offense, and the previous criminal record of the defenda nt. But that is notS UPREME C OURT OF O HIO

28 the end of the analysis. Crim.R. 46(C) states specifically tha t “in determining the
types , amounts , and conditions of bail , the court shall consider all relevant information, including but not limited to ” a nonexhaustive list of factors. (Emphasis added). This language in Crim.R. 46(C) permits the t rial court to consider other relevant information in determining the amount of a financial
condition. This could include s afety concerns expressed by the victim’s family. {¶ 70} Therefore, based on the plain language of Crim.R. 46(C), I cann ot agree with the majority opinion that the safety concerns cited by the trial court deserve no consideration in determining the amount of the defendant’s financial
condition for bail.
Conclusion {¶ 71} Abuse of discretion is the appropr iate standard of review in th is case. I would reverse the judgment a nd remand the cause for the First District Court of Appeals to review the trial court’s bail determination for an a buse of discretion in the first instance. I would not reach the state’s second propo sition of law. Therefore, I must respectfully dissent.

_________________ D E W INE , J., dissenting. {¶ 72} Make no mistake: what the majority does today will make Ohio communities less safe. Despite the fact that Crim.R. 46(B) req uires a trial court to consider “the safety of any pers on or the community” when setti ng bail, the majority today says that a trial court is prohibited from even considering public safety when setting bail. Despite the fact that Ohio voters pa ssed a constitutional amendment that guarantees victims the right to be heard in the bail process, the majority slams the door on a vi ctim’s right to be heard. And d espite the fact that
trial courts—who take evidence and can assess the credibility o f witnesses—are in the best position to make bail d ecisions, the majority today in vites appellate courtsJanuary Term, 2022

29 to second-guess trial-co urt bail decisions based on nothing mor e than a paper
record. I dissent.
I. Background {¶ 73} Justin DuBose is alleged to have shot a man in the head while committing an armed robbery, leaving the victim to die. After the crime, DuBose and his accomplice fled. The two were picked up in Las Vegas. When DuBose was apprehended, he provided a fa ke identification card to law enforcement and was in possession of multiple credit cards that were not in his name, as well as $2,000 in cash. {¶ 74} Bail was initially set at $1.5 mill ion. DuBose’s counsel filed a motion to reduce bail, and followi ng a hearing, the trial court indicated that bail would be reduced to $500,000. The next day, however, the trial court reinstated the original bail amount. It di d so because it concluded that the family of the deceased had not been notified of the hearing, in violation of Marsy’s Law, Ohio Constitution Article I, Section 10a. Marsy’s Law guarantees vi ctims the right to be notified of and heard at a proceeding involving the release of the accused. The Constitution defines “victim” to include one who “is directly a nd proximately harmed” by a criminal act. Id. at Section 10a(D). {¶ 75} The trial court reconvened the hearing to allow the victims to be heard. At the hearing, the gra ndmother of the deceased told th e court: “We don’t feel safe with him out on bond” and “My daughter’s scared to de ath if he gets out.” The state also introduced a pic ture showing DuBose with a numbe r of firearms. At the conclusion of the hearing, the court overruled the motion t o reduce bail. {¶ 76} DuBose filed a second motion to reduce bail. Attached to the motion, DuBose presented travel itinerary and Instragram posts, which he claimed proved that he was not fleeing wh en he was picked up in Las Veg as. Yet the travel itinerary concerned a flight to Orlando, Florida, not Las Vegas , Nevada. And the Instagram photos were from Orlando and Los Angeles, again not L as Vegas. TheS UPREME C OURT OF O HIO

30 trial court noted that there was no legitimate reason for DuBos e to present lawenforcement officers with fake identification in Las Vegas, but it also said that it would give DuBose “the benefit of the doubt” that his travel to Las Vegas was not flight. Nonetheless, the trial court overruled DuBose’s motion , citing the
seriousness of the crime and the statement it had heard from th e victim’s family
member. {¶ 77} DuBose then filed a wr it of habeas corpus in t he First District Court of Appeals. The court of appeals determined that it would appl y de novo review to
the trial court’s decision—in oth er words, that it would consid er the bail motion anew without providing any deference to the trial court’s decis ion. But despite applying de novo review, the cour t of appeals didn’t hold a hea ring. Nor is there any indication in the record th at the court of appeals provided any notice to the victims or allowed the victims the right to be heard as require d by Marsy’s law. See Ohio Constitution, Article I, Section 10a(A)(2) and (3). After reviewing the paper record, the court of appeals conc luded the trial court had erre d and reduced DuBose’s bail to $500,000. {¶ 78} The majority conducts what it sa ys is its own de novo assessmen t of DuBose’s bail, and concludes th at the court of appeals appropri ately reduced DuBose’s bail. Majority opinion, ¶ 26, 34. I disagree with th e result reached by the majority, and with the ana lysis it uses to get there.
II. The majority’s flawed decision {¶ 79} In my view, there are several probl ems with the majority’s anal ysis. First, the majority applies the wrong standard of review. Seco nd, in doing so, the majority fails to accord crime v ictims the rights they are guar anteed under Marsy’s Law. And third, the majority refuses to allow trial courts to even consider public safety when setting bail. Unfortunately, these are mistakes th at will have serious consequences when it comes to t he safety of Ohio communities.January Term, 2022

31 A. The majority applies the wr ong standard of review {¶ 80} The majority begins its analysi s by concluding that the court o f appeals correctly applied de novo review to the trial court’s b ail decision. I disagree. {¶ 81} Article I, Section 9 of the Ohio Constitution entrusts the tria l court with the responsibility of setting bail. The applicable provis ion states: “Where a person is charged with any offense for which the person may be incarcerated, the court may determine at any time the type, amount, and condition s of bail.” Id. “The court” in the provision obviously refers back to the court in w hich the defendant has been charged with an offense, meaning it is the trial court that bears the responsibility of setting bail. {¶ 82} Crim.R. 46(B) makes clear that the trial court has discretion a s to the terms of bail. Under the rule, in determining the conditions o f pretrial release, a trial court is required to impose the least restrictive conditi ons that “ in the discretion of the court , will reasonably assure the defendant’s appearance in court, t he protection or safety of any pers on or the community, and that t he defendant will not obstruct the criminal justice process.” (Emphasis added.) Id. It is axiomatic that when something is entrusted to a trial court’s discretion, we r eview that decision
for an abuse of that discretion. {¶ 83} “To tell a trial judge that he has discretion in certain matter s is to tell him that there is a range of choices available to him. It is t o tell him that the responsibility is his, and that he will not be reversed except for straying outside the permissible range of choice, i.e ., for abuse of discretion.” United States v. E. I. du
Pont de Nemours & Co. , 366 U.S. 316, 372, 81 S.Ct. 1243, 6 L.Ed.2d 318 (1961) (Frankfurter, J., dissenting). I ndeed, to apply anything otherthan abuse-ofdiscretion review to the trial court’s discretionary decision i s almost nonsensical. How can one possibly review de novo a bail amount that is set b ased upon a judge’s
discretion?S UPREME C OURT OF O HIO

32 {¶ 84} In endorsing de novo review, the majority cites our recent deci sion
in Mohamed v. Eckelberry , 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5, and claims that a cour t of appeals may “independentl y weigh the
evidence to make its own bail determination.” Majority opinion at ¶ 16. Mohamed , however, was an ill-advised depart ure from this court’s longsta nding precedent. {¶ 85} Up until Mohamed was decided, the weight of Ohio authority was that an abuse-of-discretion standard applied. See, e.g. , Ahmad v. Plummer , 126 Ohio St.3d 262, 2010-Ohio-3757, 933 N.E.2d 256, ¶ 17 (“the cour t of appeals did not abuse its discretion in determining that the $3,000,000 bai l was not excessive”);
Coleman v. McGettrick , 2 Ohio St.2d 177, 180, 207 N.E.2d 552 (1965) (“we cannot find any abuse of discretion in t he action of the courts denyin g bail”); Colavecchio
v. McGettrick , 2 Ohio St.2d 291, 292, 208 N.E.2d 741, (1965) (we “will not interfere with the exercise of [the trial court’s] discretion u nless there appears to have been a gross abuse thereof”); Hardy v. McFaul , 103 Ohio St.3d 408, 2004- Ohio-5467, 816 N.E.2d 248, ¶ 7, 11 (upholding court of appeals’ decision that applied abuse-of-discretion sta ndard to excessive-bail claim); In re Green , 101 Ohio App.3d 726, 730, 656 N.E.2d 705 (8th Dist.1995) (“In a hab eas corpus action to contest the reasonableness of bond, this court must determin e whether the trial court abused its discretion”); In re Scherer , 7th Dist. Mahoning No. 01 C.A. 167, 2001-Ohio-3420 (applying abuse-of-d iscretion standard to excess ive-bail claim); King v. Telb , 6th Dist. Lucas No. L-05-1022, 2005-Ohio-800, ¶ 20 (“In a hab eas corpus action which challenges the amount of bond, we must revi ew the decision
of the trial court under an abus e of discretion standard”); see also Hartman v. Schilling , 160 Ohio St.3d 1486, 2020-Ohio-5506, 158 N.E.3d 617, ¶ 4-5 (K ennedy, J., dissenting) (explaining that the court’s decision to dismis s the habeas petition
for failure to state a claim w ithout first holding a hearing wa s impossible to square
with the court’s statement in Mohamed that it would apply de novo review to excessive-bail claims).January Term, 2022

33 {¶ 86} In Mohamed , at least, this court referred the matter to a master commissioner to take evidence before determining that the bail set by the trial court
was excessive. Mohamed at ¶ 1. Indeed, the court in Mohamed premised its holding that de novo review applied on the fact that “in an ori ginal action, an appellate court may pe rmit a habeas petitioner to introduce evi dence to prove his claim and then exercise its own discretion in imposing an appro priate bail amount.”
Id. at ¶ 5. But in the case at bar, there was no hearing held and no new evidence submitted. The appellate court simply revie wed the transcripts from the trial court and substituted its judgment for the trial court’s. Thus, what ever justification for
de novo review existed in Mohamed does not exist here. {¶ 87} To make matters worse, the majo rity requires not only that cour ts of appeals review de novo trial cour ts’ bail decisions but also th at this court review de
novo the decisions of the courts o f appeals and the trial court s. So that means that every person who has bail set is entitled to three independent looks at his bail terms. That’s hardly a model f or judicial efficiency. {¶ 88} The bigger problem, though, is tha t trial judges on the whole w ill almost certainly make better bail decisions than appellate judg es. Our Constitution
and Crim.R. 46 entrust bail deci sions to trial judges for a rea son. The typical trial judge has extensive experience in setting the conditions of rel ease, making such decisions on a regular, often da ily, basis. “With experience i n fulfilling that role comes expertise.” Anderson v. Bessemer City , 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Moreover, “ [t]he trial judge is best ab le to view the
witnesses and observe their dem eanor, gestures and voice inflec tions, and use these observations in weighing the credibility of the proffered testi mony.” Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). By applying deferential review, we ensure that the trial-court proceedings are the “main event,” not just a “tryout on the road.” Wainright v. Sykes , 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).S UPREME C OURT OF O HIO

34 {¶ 89} In addition, trial courts are far better equipped than appellat e courts to actively monitor a defendant’s compliance with the terms of bail. They are closer to the action and can more easily and more quickly modify the c onditions of release based on changed circumstances. Abuse-of-discretion review, in short, not only comports with our Constitution and rules, but also makes good s ense. {¶ 90} Our Constitution places bail decisions in the hands of trial ju dges, and Crim.R. 46(B) makes clear t hat bail decisions are entrusted to the trial judge’s discretion. We ought to honor these commands and allow reversa l of a trial court’s bail decision only when the judge ha s abused the discretion she has been given.
B. The majority gives victims short shrift {¶ 91} With the passage of Marsy’s Law in 2017, Ohio voters elevated t he rights of victims to constitutional status. And in the early s tages of this case, Marsy’s Law worked as it was in tended. The trial court and the prosecutor realized that they had neglected to affor d the victims the opportunity t o be heard in the bail process. A new proceeding was convened, and after hearing the concerns and the fears of the deceased’s family, the trial court decided to reta in the original bail

amount. {¶ 92} But then came the review of that decision. The court of appeal s determined that it would consid er the matter de novo. Marsy’s Law guarantees a victim the right “to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent act against the victim, and to be present at all such proceedings.” Article I, Section 10a(A)(2), Ohio Constitu tion. It also gives the victim the right “to be heard in any public proceeding invo lving release” of the
defendant. Id. at Section 10a(A)(3). {¶ 93} If a reviewing court is going t o consider a matter anew, withou t any deference to what happened in th e trial court, then it also nee ds to allow the victims to exercise the same rights they have in the trial court. Ther e is no indication that that happened here. There is nothing in the appellate court re cord to indicate thatJanuary Term, 2022

35 the victims were given any opport unity to be present and have t heir voices heard. And certainly, this court hasn’t provided any such opportunity to the victims. Indeed, the majority brushes aside the family’s fears based on nothing more than its reading of a paper reco rd. Majority opinion at ¶ 31. {¶ 94} We can’t have it both ways. If we are going to say that a revi ewing court must ignore the credence that a trial court put in a vict im’s statements, then we have to insist that the victim be given an opportunity to be heard in the reviewing court. To do otherwise would deprive victims of the rights the y are guaranteed
under our Constitution.
C. The majority improperly prohibits courts from considering the safety of the public {¶ 95} The majority today holds that a court may not even consider the “potential threat posed by a defe ndant” to the safety of the co mmunity in setting a bail amount. Majority opinion at ¶ 19, 24. This is a dangerou s holding that flies in the face of the plain language of Crim.R. 46(B) and our precede nt. {¶ 96} Crim.R. 46(B) provides:

[T]he court shall release the defendant on the least restrictiv e conditions that, in the discretion of the court, will reasonabl y assure the defendant’s appearance in court , the protection or safety of any person or the community , and that the defendant will not obstruct the criminal justice process. If the court orders financial co nditions of release, those financial conditions shall be related to the defendant’s risk of non-appearan ce, the seriousness of the offe nse, and the previous criminal r ecord of the defendant.

(Emphasis added.) By its very te rms then, Crim.R. 46(B) mandat es that the court consider “the protection or saf ety of any person or the communi ty” in setting bailS UPREME C OURT OF O HIO

36 terms. The majority tries to ge t around this inconvenient fact by pointing out that public safety is not explicitly listed in the sentence that rel ates to financial conditions. Because of this, it reasons, “public safety is not a consideration with respect to the financial conditions of bail” and financial cond itions must only relate to the risk of flight. (Emphasi s deleted.) Majority opinion a t ¶ 24. The problem with this reading is that included within the financial-conditi ons sentence is not only the risk of nonappearance but also “the seriousness of the offense, and the previous criminal record of the defendant.” Crim.R. 46(B). Th e seriousness of the offense and a defendant’s prior record relate directly to publi c safety considerations. Indeed, if the r ule’s drafters meant for only “the defendant’s risk of non-appearance” to be consider ed, they would have stopped ri ght after those words; there would have been no ne ed to include anything else i n the sentence. {¶ 97} Furthermore, Crim.R. 46(C) explicitly lists factors to be consi dered “in determining the types, amounts and conditions of bail.” (Emphasis added.) The first factor to be considered is “[t]he nature and circumstance s of the crime charged, and specifically whether the defendant used or had access to a weapon.” Crim.R. 46(C)(1). Plainly, whether some one used or has access to a wea pon relates directly to public safety. {¶ 98} The majority’s position is also undercut by the public process that led to this court’s adoption of the amendment. When the propos ed changes to Crim.R. 46 were first put out f or public comment, in October 20 19, the proposed rule provided that “financia l conditions shall be related solely to the defendant’s risk of non-appearance.” (Emphasis added.) See Proposed Amendments to the
Ohio Rules of Practice and Pro cedure (Oct. 7, 2019), available at https://www.supremecourt.ohio.gov/ru leamendments/documents/ONLI NE%20P ACKET.pdf (accessed Dec. 23, 2021) [https://perma.cc/ZQT7-84D9] . The final version adopted by this court afte r the public-comment process, however, does not include the word “solely.” Thus , in contrast to the majority’s position today, it isJanuary Term, 2022

37 evident that the rule amendment was not intended to forbid cons ideration of public safety in setting a bail amount. {¶ 99} Indeed, the Staff Notes to the July, 1, 2020 amendments to Crim .R. 46 make clear that public safety remains a proper consideration in setting bail. The Staff Notes provide: “Crim. R. 46 has been amended to improve e fficiency in setting bail in an amount that effectively ensures (1) the defendant’s continued presence at future proceedings, (2) that future proceedings wil l not be impeded by any effort to obstruct justice, and (3) the safety of any person as well as the community in general .” (Emphasis added.) {¶ 100} The primary purpose of bail is to ensure the appearance of the
defendant. Bland v. Holden , 21 Ohio St.2d 238, 239, 257 N.E.2d 397 (1970). But up until today, it has been understood that a judge could consi der the threat a defendant poses to the public in setting a reasonable bail. See, e.g. , Chari v. Vore , 91 Ohio St.3d 323, 328, 744 N.E.2d 763 (2001) (in habeas case, upholding trial court’s bail decision and noting that the trial court could app ropriately consider “the nature and circumstances” of the felonies charged as well as th e fact that the defendant “allegedly committed some of the offenses when he was previously on bail”); Allen v. Altiere , 11th Dist. Trumbull No. 2015-T-0065, 2015-Ohio-3556, ¶ 19 (“Overall, the primary purposes of bail are to ensure the appearance of the defendant at trial and to pr ovide for public safety”); Garcia v. Wasylshyn , 6th Dist. Wood No. WD-07-041, 2007-Ohio-3951, ¶ 4; Lazzerini v. Maier , 2018-Ohio-1788, 111 N.E.3d 727, ¶ 2-6 (5th Dist.). {¶ 101} In disregarding all considerati ons other than the need to ensur e the appearance of the accused in court, the majority relies on Stack v. Boyle , 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Majority opinion at ¶ 12, 15. However, the United States Supreme Court has since made clear that Stack does not stand for the broad proposition for which it is cited by the majority. In United States v. Salerno , the court explained that “[n]oth ing in the text of the [excessi ve-bail clause of theS UPREME C OURT OF O HIO

38 Eighth Amendment to the federal Constitution] limits permissibl e Government considerations solely to questi ons of flight. The only arguabl e substantive limitation * * * is that the Government’s proposed conditions o f release or
detention not be ‘excessive’ in light of the perceived evil.” 481 U.S. 739, 754, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Thus, contrary to what the majority suggests, nothing in the federal Constitution precludes a trial court fro m considering public safety when setting the amount o f bail. And certainly nothing in the text of the Ohio Constitution imposes such a prohibition. Article I, Secti on 9 of the Ohio
Constitution. {¶ 102} By prohibiting trial judges from even considering public safety in determining the amount of bail, t he majority acts contrary to t he plain terms of Crim.R. 46. And by tying the hands of trial judges who must ma ke difficult bail decisions, the majority’s action today will almost certainly ma ke our communities
less safe.
III. The trial court did not abuse its discretion {¶ 103} This case is properly reviewe d under an abuse-of-discretion standard. Here, DuBose was char ged with the most serious of cr imes, murder, aggravated robbery and aggravat ed burglary. It has long been u nderstood that “if an accused is charge d with crimes the convi ction for which woul d result in long incarceration, with little hope of e arly release or probation, the incentive to abscond is greater and the amount [of bail] must be such as to discourage the accused from absconding.” Bland at 239. The trial cour t also had before it
substantial evidence that DuBose was a flight risk. He fled th e jurisdiction after the crime, and when he was apprehe nded, he provided false ident ification to the arresting officer. He also had with him $2,000 in cash and a n umber of credit
cards that were not in his name. U nder these circumstances, I cannot say that the
trial court abused its discre tion in setting the bail that it d id.January Term, 2022

39 IV. Conclusion {¶ 104} I dissent because I do not believe that the trial court abused its discretion in setting Justin D uBose’s bail at $1.5 million. I also dissent because I worry about the consequences of the majority’s decision today. In refusing to apply any deference to bail decisions made by trial judges, in refusi ng to ensure that victims’ rights are protected, and in prohibiting a court from even considering public safety in making bail decisions, the majority departs fr om our rules, our precedent, and our Constitution. And in doing so, it undermine s the safety of our
communities.

_________________ Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ale x Scott Havlin, Assistant Prosecuti ng Attorney, for appellant.

_________________