[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as 

DuBose v. McGuffey, Slip Opinion No. 2022-Ohio-8.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 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. 

SLIP OPINION NO. 2022-OHIO-8

DUBOSE, APPELLEE, v. MCGUFFEY, SHERIFF, APPELLANT. 

[Until this opinion appears in the Ohio Official Reports advance 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 court—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, 2022.) 

APPEAL from the Court of Appeals for Hamilton County, No. C-210489, 

2021-Ohio-3815. 

__________________ 

 Per Curiam. 

{¶ 1} On October 27, 2021, the First District Court of Appeals granted a 

writ of habeas corpus ordering the reduction of petitioner-appellee Justin DuBose’s 

bail from $1,500,000 to $500,000. Respondent-appellant, Charmaine McGuffey, 
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2

Hamilton County sheriff (hereafter, “the state”), has appealed from that judgment. 

For the reasons set forth herein, 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 2005815-B. He was 

arrested in Las Vegas, Nevada, and returned to Ohio after waiving extradition. 

{¶ 3} On November 5, 2020, a bail hearing took place in the Hamilton County 

Municipal Court. DuBose’s attorney requested a “reasonable” bail, based on 

DuBose’s limited financial means, ties to the community, and lack of a significant 

criminal record. The state asked for a bail amount of $1,500,000, 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 circumstances of the crime 

(Green was shot in the head after intruders—allegedly DuBose and 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 motion for a bail reduction in the 

Hamilton County Court of Common Pleas. 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 again focused on the 

circumstances of the crime and DuBose’s alleged flight risk. At the close of the 

hearing, the trial court stated: 

[T]he Court cannot ignore the serious nature of this offense and 

alleged conduct that I just heard about fleeing the state. 
January Term, 2022 

 3

So given all of that, I do think that $1.5 million is an excessive 

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 bail amount 

because the court had failed to notify the victim’s family of the bail hearing, as 

required by Marsy’s Law, Article I, Section 10a, Ohio Constitution. 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 photograph posted on 

Facebook showing DuBose with multiple firearms. The victim’s grandmother was 

present for the second hearing. She told the trial court, “I would 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 received today changes the 

consideration that I had the other day.” The court therefore overruled the motion to 

reduce the bail amount. 

{¶ 6} On June 28, DuBose filed a second motion to reduce bail. On August 

12, at the hearing on the motion, DuBose presented evidence that 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 suggestion that his trip to Las 

Vegas constituted flight. The state, on the other hand, offered 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 card for “Kevin Polanski” 

and claimed to be Polanski. 

{¶ 7} The trial court denied the second motion to reduce bail. It based its 

decision on three factors. First, the trial court noted that DuBose is facing serious 

criminal charges that will carry “significant mandatory prison time” if he is 
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4

convicted. Second, the trial court “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 there 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 allegation that DuBose had 

fled to Las Vegas. And the court discounted the state’s argument that the possibility 

of future charges against DuBose in Las Vegas might make him unavailable for 

trial in this case. 

{¶ 8} On September 22, DuBose filed a petition for a writ of habeas corpus 

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 consideration DuBose’s 

financial resources, as required by Crim.R. 46(C)(4). 2021-Ohio-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 required statutory findings” to hold a defendant 

without bail. Id. at ¶ 26. The court therefore granted DuBose’s petition and reduced 

his bail to $500,000, no 10 percent bond, but added several nonfinancial conditions, 

including that DuBose would be subject to 24-hour lockdown enforced by 

electronic monitoring, he could have no direct or indirect contact with the victim’s 

family, and he had to surrender 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 and answer 

to a specific criminal * * * charge * * *.” R.C. 2937.22(A). All persons are 

“bailable by sufficient sureties, except for a person who is charged with a capital 
January Term, 2022 

 5

offense where the proof is evident or the presumption great, and 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 physical harm to any person 

or to the community.” Ohio Constitution, 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 punished 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. Therefore, the conditions placed 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. Constitution and Article I, 

Section 9 of the Ohio Constitution. A bail amount that is “higher than an amount 

reasonably calculated to” ensure the accused’s presence in court 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 proof in an excessive-bail habeas petition is on 

the petitioner. Id. at 326. 

{¶ 13} In this appeal, the state presents two propositions of law. Under 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 abuse 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 regarding her and her 

daughter’s concern for their personal safety. The state’s assertions do not have 

merit. 

 
SUPREME COURT OF OHIO

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B. The state’s first proposition of law

{¶ 14} Under its first proposition of law, the state argues that the court of 

appeals should have reviewed the trial court’s bail determination for an abuse of 

discretion. The state asserts that de novo review of a trial court’s bail determination 

is inconsistent with Article I, Section 9 of the Ohio Constitution and Crim.R. 46(B), 

both of which vest the trial court with discretion over bail determinations. 

{¶ 15} In the exercise of its discretion under Crim.R. 46, a trial court may 

not impose bail that violates the constitutional prohibition against bail in an amount 

higher than an amount reasonably calculated to ensure the accused’s presence in 

court. Stack, 342 U.S. at 5, 72 S.Ct. 1, 96 L.Ed. 3. Whether a particular bail 

determination is unconstitutionally excessive is a question of law appropriate for 

de novo review. 

{¶ 16} Moreover, we recently recognized that in an original habeas action, 

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 extraordinary 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 an 

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 rebut 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 court of appeals 

concluded that the bail amount was excessive because it did not take into 
January Term, 2022 

 7

consideration DuBose’s financial resources as required by Crim.R. 46(C)(4). De 

novo review was the proper standard of review for this question of law. 

{¶ 18} The court of appeals did not disturb the trial court’s findings of fact 

(nor do we). Rather, the court of appeals concluded that the bail imposed by the 

trial court was excessive based on its review of those facts in the context of the 

protections provided by the United States and Ohio Constitutions and the statutory 

provisions and criminal rules that 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 statement that she and her daughter 

would fear for their safety if DuBose were released on bail. The 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 court considered the threat 

that DuBose allegedly poses does not automatically mean the court 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 appropriate amount of bail. 

{¶ 20} A judge may impose bail or hold a criminal defendant without bail. 

The process of assessing bail is governed by Crim.R. 46. When determining the 

amount and conditions of bail, a court must consider “all relevant information,” 

including (1) the nature and circumstances 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 defendant’s family ties, 

employment, financial resources, character, record of convictions, and (5) whether 

the defendant was on parole or subject to another form of court control at the time 

of the alleged offense. Crim.R. 46(C); Mohamed, 162 Ohio St.3d 583, 2020-Ohio4585, 166 N.E.3d 1132, ¶ 7. 
SUPREME COURT OF OHIO

8

{¶ 21} Alternatively, if the state believes that a person poses a danger 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 of detention without 

bail. In order to hold a person without bail under that statute, the judge must find 

by clear and convincing evidence that “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 physical harm to any person 

or to the community, and * * * that no release conditions will reasonably assure the 

safety of that person and the community.” R.C. 2937.222(B). In the present case, 

the court of appeals concluded that the state is trying to hold DuBose without bail 

without attempting to meet its burden of proof under the statute, which the court 

deemed “improper” because “ ‘setting a high bail in order to keep someone accused 

of a crime incarcerated pretrial is both statutorily and constitutionally unlawful.’ ” 

2021-Ohio-3815 at ¶ 18, 26, quoting Mohamed at ¶ 24 (Stewart, J., concurring). 

{¶ 22} The state contends that the court of appeals erred by reducing the 

bail amount on this basis. The state avers that the court of appeals “took the State’s 

arguments relative to the safety concerns of the victim’s family and looked at them 

in terms of R.C. 2937.222, but Crim.R. 46 also mandates consideration of the 

protection or safety of any person or the community at large.” By doing so, the 

state contends, the court of appeals dismissed those safety concerns from the 

calculus and thereby “elevated [DuBose’s] ability to pay a certain amount for bail 

above all other considerations that are provided 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 bail. Crim.R. 

46(B)(2)(i) authorizes courts to impose “[a]ny other constitutional 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 that 
January Term, 2022 

 9

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 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 conditions 

of release, those financial conditions shall be related to the 

defendant’s risk of non-appearance, the seriousness of the offense, 

and the previous criminal record of the defendant. 

(Emphasis added.) Thus, the rule distinguishes between the financial conditions of 

release and other conditions of release and requires the financial conditions to relate 

to the risk of nonappearance. 

{¶ 24} As the revised rule makes clear, public safety is not a consideration 

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 Crim.R. 46(B)(2), 

public-safety concerns may be addressed by imposing nonfinancial conditions, 

such as restrictions on travel and association, completion of alcohol- 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 on DuBose by the court 

of appeals. In addition to the nonfinancial conditions of release already imposed 

by the court of common pleas, the court of appeals ordered 24-hour 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 grandmother’s statement in its determination whether the 
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10 

financial condition of bail set by the trial court was excessive. 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 DuBose’s 

case and concluded, on the record before it, that bail in the amount of $1,500,000 

was unconstitutionally excessive. In an extraordinary-writ case, we review the 

judgment of a court of appeals as if the case had been originally 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 proceed to a de 

novo assessment of whether the bail amount set by the trial court was excessive. 

{¶ 27} As amended, Crim.R. 46(B) specifies that the financial conditions of 

release must be related to “the defendant’s risk of non-appearance, the seriousness 

of the offense, and the previous criminal record of the defendant.” At the same 

time, the rule continues to provide: 

[I]n determining the types, amounts, and conditions of bail, the court 

shall consider all relevant information, including but not limited to: 

(1) The nature and circumstances of the crime charged, and 

specifically whether the defendant used or had access to a weapon; 

(2) The weight of the evidence against the defendant; 

(3) The confirmation of the 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, record 

of appearance at court proceedings or of flight to avoid prosecution; 

(5) Whether the defendant is on probation, a community 

control sanction, parole, post-release 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 prior misdemeanor convictions,

he has no felony record, was not on any form of supervised release at the time of 

the crime, and apparently has no prior record of nonappearance in court. The state 

made no representation as to the strength of the evidence against DuBose, nor did 

the state indicate which defendant allegedly fired the fatal shot. On the other hand, 

the evidence was undisputed that DuBose has ties to the community and few or no 

financial resources. 

{¶ 29} The trial court cited three factors in support of the higher bail 

amount: (1) the serious nature of the crime, (2) the safety concerns expressed by 

the family, and (3) DuBose’s alleged use of a fake ID. The serious nature of the 

crime, standing alone, did not persuade the trial court to impose the higher bail 

amount; the judge initially agreed that a $1,500,000 bail for DuBose was excessive 

because the serious nature of the charges did not outweigh DuBose’s lack of 

financial resources. That conclusion is consistent with our decision in Mohamed, 

in which we reduced the bail amount for a defendant who was facing multiple 

charges of attempted murder and felonious assault from $1,000,000 to $200,000, 

based largely on his inability to 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 indicted on one count of 

murder of a child, two counts of endangering children, and one count of involuntary 

manslaughter). 
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12 

{¶ 30} By contrast, in cases in which bail has exceeded $1,000,000, courts 

have affirmatively found the existence of factors that do not apply to DuBose, such 

as strong evidence of guilt and the ability to pay. For example, 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 assets 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 Sixth District Court 

of Appeals affirmed a cumulative $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 pandering 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 from 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-hearing 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 trial court rule in favor of 

a higher bail amount. The “additional information” to which the 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 the utmost importance, is not a factor relevant to 

the calculation of the bail amount, which is concerned only with 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 financial condition of 

DuBose’s bail would operate to alleviate the grandmother’s fear only if it were an 

amount sufficient to preclude DuBose’s release. Yet a court may 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 constitutional rights as refusing 

to fix bail.” State v. Bevacqua, 147 Ohio St. 20, 22, 67 N.E.2d 786 (1946). 

Nonfinancial conditions may be imposed to ensure that a defendant 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 defendant 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. There was no 

suggestion, for example, that DuBose had made threats against them 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 determination 

entered the record at the final bail hearing, when the state proffered an unsworn 

statement that DuBose was using a fake ID when he was questioned by police in 

Las Vegas on an unrelated matter. 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 social media as he 

traveled. When it took those facts, 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 questioned him on 

an unrelated matter should dramatically change the calculation of bail necessary to 

ensure DuBose’s presence at trial. And in any case, concerns that DuBose may be 
SUPREME COURT OF OHIO

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 an adequate legal basis for the bail 

amount. Neither the grandmother’s testimony about her family’s safety concerns 

nor the unsworn statement that DuBose used a fake ID in Las Vegas is relevant to 

the bail amount necessary to ensure DuBose’s presence at trial. As a result, we 

hold that the financial condition of bail set by the trial court was unconstitutionally 

excessive because it was more than the amount reasonably necessary to ensure 

DuBose’s appearance in court. We therefore agree with the court of appeals that 

the trial court unlawfully set the 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 supports the court of 

appeals’ bail-reduction decision, we affirm the judgment of the court of appeals 

reducing DuBose’s bail. 

III. Conclusion 

{¶ 35} For these reasons, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

O’CONNOR, C.J., and STEWART and BRUNNER, JJ., concur. 

DONNELLY, J., concurs, with an opinion. 

KENNEDY, J., dissents, with an opinion. 

FISCHER, J., dissents, with an opinion. 

DEWINE, J., dissents, with an opinion. 

_________________ 

DONNELLY, J., concurring.

{¶ 36} The dissenting opinions appear to be missing the point in this case. 

The issue regarding the bail set for petitioner-appellee, Justin DuBose, is not 
January Term, 2022 

 15 

whether one specific dollar amount or another specific dollar amount is correct. 

The issue is that the amount set by the trial court was clearly calculated to be at a 

level that DuBose cannot possibly afford to pay. If the evidence 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 released after 

posting that amount? No. The feeling of safety comes from ensuring that DuBose 

cannot leave jail. 

{¶ 37} The dissenting opinions also seem to be creating a false dichotomy 

that a defendant either deserves to be subject to a bail that he cannot possibly afford 

or deserves to be out of jail until he is tried. This also misses the mark. There are 

certainly defendants who should be held in state custody until they are tried. The 

trial court has the power to order that such defendants be held without bail, but as 

clearly explained in the majority opinion, the way to do that is to follow the 

procedure in R.C. 2937.222, not to set a bail amount so high that the defendant 

cannot afford it. 

{¶ 38} Having spent 14 years as a trial-court judge and having set thousands 

of bonds, I am appalled by the brazen accusations made in some of the dissenting 

opinions that the justices joining the majority opinion are making Ohio less safe 

and disrespecting victims simply by telling our courts that they must follow the 

rules if they want to hold defendants in custody prior to trial without the possibility 

of release before the trial. If a defendant does not appear to be bailable, a trial court 

may not prevent the defendant’s pretrial 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 procedures set forth in 

the Revised Code”). The fact that a defendant might have committed a terrible 

crime does not allow us to ignore the law. 
SUPREME COURT OF OHIO

16 

_________________ 

KENNEDY, 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 trial court in his criminal case.

{¶ 40} Our review in this case is hybrid. This is an appeal from an original 

action for a writ of habeas corpus, and the court reviews de novo the evidence 

presented in the lower courts and any new evidence submitted to this court. The 

trial court’s discretion to set the amount of bail is authorized by Article I, Section 

9 of the Ohio Constitution and Crim.R. 46. An accused is not unlawfully confined 

and therefore not entitled to habeas relief unless the trial court abused its discretion 

when setting the amount of bail. DuBose had the burden of presenting evidence 

and proving that the trial court’s decision to set his bail at $1,500,000 was 

unreasonable, arbitrary, or unconscionable or that it otherwise exhibited perversity 

of will, passion, prejudice, partiality, or moral delinquency. DuBose did not prove 

that the amount of bail set by the 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 habeas corpus ordering a 

reduction of the bail amount. I therefore dissent and would reverse the judgment 

of the First District Court of Appeals granting a writ of habeas. 

The Right to Bail 

{¶ 41} The Eighth Amendment to the United States Constitution provides

that “[e]xcessive bail shall not be required.” Bail is excessive 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. 3 
January Term, 2022 

 17 

(1951). “[T]he fixing of bail ‘is peculiarly a matter of discretion 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) (attorney 

general did not abuse his discretion in setting bail). 

{¶ 42} Similarly, the Ohio Constitution provides a right to bail. Article I, 

Section 9 states: 

All persons shall be bailable by sufficient sureties, except for 

a person who is charged with a capital offense where the proof is 

evident or the presumption great, and 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 

physical harm to any person or to the community. 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 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 is 

evident or the presumption great poses a substantial risk of serious 

physical harm to any person or to the community. Procedures for

establishing the amount and conditions of bail shall be established 

pursuant to Article IV, Section 5(B) of the Constitution of the state 

of Ohio. 
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18 

{¶ 43} The General Assembly enacted R.C. 2937.222, which establishes the 

considerations that a trial court must undertake when determining whether to deny 

bail to an accused. Because the trial court has already determined that DuBose is 

bailable, those considerations 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 Constitution, this 

court promulgated Crim.R. 46 to establish the procedures for setting the amount 

and conditions of bail. Crim.R. 46(B) provides that if a trial court determines that 

denying bail is not required 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 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 conditions 

of release, those financial conditions shall be related to the 

defendant’s risk of non-appearance, the seriousness of the offense, 

and the previous criminal record of the defendant. Any financial 

conditions shall be in an amount and type which are least costly 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 seriousness of the offense charged, the previous 

criminal record of the defendant, and the probability of the defendant appearing at 

the trial of the case”). 

{¶ 45} Crim.R. 46(B) expressly commits the amount of bail required to the 

discretion of a trial court. Therefore, the standard for reviewing a trial court’s 
January 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 largely 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 also 

consistent with our own recognition that when excessive-bail cases are “considered 

as appeals, it is reasonable to require some finding of error or 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 court’s 

order setting bail, and we have recognized that a petition for a writ of habeas corpus 

is the proper vehicle to raise 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 suggested 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 effect of such cases is 

an appeal from a decision of the trial court; yet, such cases are 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, quoting 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 review by this court and 

suggested that this court is vested with the discretion to substitute its judgment for 
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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 in the trial court and 

any new evidence submitted to the court of appeals or to this court. Ahmad at ¶ 2. 

But the focus remains on whether the petitioner is entitled to a writ of habeas 

corpus, and “ ‘[h]abeas corpus in 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 amount 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 entitled to a writ of 

habeas corpus unless he proves that the trial court abused its discretion in setting 

the amount and conditions of bail—if the trial court did not exceed its discretion, 

then DuBose is not being unlawfully confined. In determining whether the trial 

court abused its discretion, we independently consider and weigh 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 trial 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 discretion standard, a reviewing court is not free to 

merely substitute its judgment for that of the trial court”). “Nor is it the function of 
January Term, 2022 

 21 

a habeas proceeding to provide the petitioner a second bail hearing.” Mohamed at 

¶ 39 (Kennedy, J., dissenting). Rather, the habeas remedy is available to protect 

the accused’s constitutional rights from the trial court’s abuse 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 attitude 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, quoting State v. 

Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). It also exists when there 

is “perversity of will, passion, prejudice, partiality, or moral 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-restrictive 

conditions of release that “will reasonably 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.” Financial 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 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 defendant’s 

family ties, employment, financial resources, character, and record of convictions, 

and (5) whether the defendant was on parole or subject to another form of court 

control at the time of the alleged offense. Crim.R. 46(C). 

{¶ 53} Reviewing the evidence in this case de novo, I believe the trial 

court’s order setting bail at $1,500,000 was not an abuse of discretion. 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. When approached by 
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law-enforcement officers in Las Vegas, he presented counterfeit identification and 

was found to have $2,000 in cash. Following DuBose’s extradition from Las 

Vegas, the trial court initially set bail at $1,500,000. On DuBose’s motion and after 

hearing about his connections to the community and his inability to pay the bail 

previously set, the trial court reduced bail to $500,000. However, because the 

victim’s family had not been notified of the change-of-bail hearing as required by 

Marsy’s Law, Article 1, Section 10a of the Ohio Constitution, the trial court 

reinstated the $1,500,000 bail. At a subsequent hearing on DuBose’s motion for 

reduced bail, the victim’s grandmother stated that her family would 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 circumstances of the crime, tends to prove that he possessed 

a firearm at the time of the murder and robbery. DuBose, in turn, pointed to his 

limited financial resources, his ties to the community, and his lack of a felony 

record. The trial court ultimately maintained DuBose’s bail at $1,500,000. 

{¶ 54} Considering this evidence, without giving deference to the trial 

court’s findings, it was not unreasonable to set bail at $1,500,000. DuBose faces 

serious charges with mandatory prison time, the evidence suggests that he 

possessed a firearm at the time he allegedly committed the charged offenses, and 

he absconded from justice (as shown by his leaving the state soon after the crime, 

his use of counterfeit identification, 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 grandmother’s 

statement to the court indicates that the amount of bail was reasonably necessary 

for the protection or safety of the victim’s family, a factor that Crim.R. 46(B) makes 

relevant to both the financial and nonfinancial conditions of release. DuBose 

presented conflicting information regarding his financial condition, at one point 

representing that he was unemployed and later, when arguing that he had strong 
January Term, 2022 

 23 

ties to the community, claiming that he had been employed by the 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 because 

the accused cannot afford it. 4 Wayne R. LaFave, Jerold H. Israel, 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 burden 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 with 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 necessary. 

{¶ 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 relies on the trial court’s 

findings—or lack of findings—regarding the evidence presented. It suggests that 

the trial court put too much weight on the victim’s family’s safety and failed to 

make a finding that DuBose poses an actual threat. It notes that the trial court gave 

DuBose the benefit of the doubt regarding whether he had fled the 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 trial court initially 

determined that the charges of murder 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 reviewing 

court to independently consider and weigh the evidence and to determine whether 

the party who bears the burden of proof—here, DuBose—has demonstrated 

entitlement to relief. Instead, the majority basically picks and chooses among the 

trial court’s findings, deferring to some and rejecting others, before coming to its 
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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 establish that the trial court abused its 

discretion in setting the amount of bail. The trial court’s consideration of the 

relevant factors on the record shows that its decision was not unreasonable, 

arbitrary, or unconscionable or that it otherwise exhibited perversity of will, 

passion, prejudice, partiality, or moral delinquency. Absent a showing that the trial 

court abused its discretion in setting bail, DuBose’s confinement 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. 

_________________ 

FISCHER, J., dissenting. 

{¶ 59} Abuse of discretion is the appropriate 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 hearings. Because the 

majority opinion holds otherwise, I must respectfully dissent. 

Abuse of Discretion Is the Appropriate Standard of Review in this Case 

{¶ 60} The majority opinion holds that the First District Court of Appeals 

properly reviewed de novo the issue of excessive bail in Justin DuBose’s habeas 

petition. The majority opinion maintains that whether the trial court complied with 

Crim.R. 46—i.e., whether it considered the proper factors—is solely a question of 

law. Majority opinion at ¶ 17. The majority opinion also relies 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 assertion that an appellate court may perform 

an independent review in this situation. 

{¶ 61} While Mohamed recognizes that there are circumstances in which an 

appellate court may have some independent review, it does not suggest that 

appellate courts have unrestrained de novo review for all bail issues. Rather, 
January Term, 2022 

 25 

Mohamed indicates that a de novo review is appropriate when the appellate 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-established precedent on the issue. 

{¶ 62} It is true that this court’s case law has made it difficult to determine 

the appropriate standard of review in habeas cases asserting excessive bail. See 

DuBose v. McGuffey, 165 Ohio St.3d 1459, 2021-Ohio-4147, 176 N.E.3d 770, ¶ 5 

(DeWine, J., dissenting). But after reading the line of cases on this issue, I find it 

apparent that the proper standard of review is generally an abuse 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 bail are generally reviewed for an abuse of discretion 

in a habeas corpus action). 

{¶ 63} While there are certainly circumstances in which an independent

review may be appropriate, for example, when the appellate court 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 transcripts of the bail hearings 

that had been held before the trial court. There was no new evidence admitted. 

There was no separate hearing held. The appellate court simply read and reviewed 

what the parties had presented to the trial court. 

{¶ 64} We all know that trial courts do not have the discretion to make 

errors of law. Johnson v. Abdullah, ___Ohio St.3d ___, 2021-Ohio-3304, 

___N.E.3d____, ¶ 39. But it is evident from the trial-court and appellate-court 

records in this case that we are not talking about a misapplication of the law. The 
SUPREME COURT OF OHIO

26 

entire issue is about weighing the evidence and deciding whether the bail amount 

imposed was excessive. The appellate court looked only at whether the trial court 

had appropriately considered DuBose’s financial situation—that is, whether the 

trial court had properly weighed 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 trial-court record is read 

in full. 

{¶ 65} The trial-court record clearly demonstrates that the trial court 

considered DuBose’s financial situation in determining the amount of bail; it 

simply did not give that factor much weight in comparison to the other factors that 

the trial court was required to consider under Crim.R. 46. DuBose filed two 

motions for reduction of his bail. In those motions, DuBose briefly mentioned that 

he and his family do not have the financial means to post his bail. The issue of 

finances was only briefly mentioned by DuBose’s counsel at the first hearing. His 

counsel noted that DuBose had a job, that he lived with his mother, and that they 

have “limited resources.” 

{¶ 66} Nevertheless, the trial court considered DuBose’s financial situation 

at each hearing. At the first bail hearing, the trial court acknowledged that it had to 

consider DuBose’s financial situation in addition to many other factors, such as the 

seriousness of the offense. The court, considering all the factors, decided to reduce 

the bail amount. However, upon rehearing, after listening to statements 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 again recognized that it 

needed to consider the defendant’s financial resources when setting the bail 

amount. The court again considered everything it had previously, placing great 
January Term, 2022 

 27 

weight on the statements from the victim’s family member, and it determined that 

the motion should be denied. 

{¶ 67} After reviewing the motions filed in the trial court and the transcripts 

of the hearings on those motions, I find it clear that the trial court considered 

DuBose’s financial resources and weighed that factor with the other relevant 

factors. The court of appeals even acknowledged the trial court’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 factors, so it conducted its 

own analysis. Id. ¶ 16-28. This was improper because the amount of bail is largely 

within the sound discretion 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 merely reviewed the 

trial-court record. Therefore, abuse of discretion is the appropriate standard of 

review in this case. We should remand the matter to the appellate 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 appellate court for it 

to conduct the proper analysis).

Crim.R. 46(C) Permits Consideration of the Safety Concerns 

of the Victim’s Family

{¶ 68} Because I would hold that abuse of discretion is the appropriate 

standard of review and would remand the cause to the appellate court to apply that 

standard, I would not reach the state’s second proposition of law. However, 

because the majority opinion decides the issue, I find it necessary to weigh in. I 

disagree with the majority opinion’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 conditions 

of release must be related to the defendant’s risk of nonappearance, the seriousness 

of the offense, and the previous criminal record of the defendant. But that is not 
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28 

the end of the analysis. Crim.R. 46(C) states specifically that “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 trial court to 

consider other relevant information in determining the amount of a financial 

condition. This could include safety concerns expressed by the victim’s family. 

{¶ 70} Therefore, based on the plain language of Crim.R. 46(C), I cannot 

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 appropriate standard of review in this case. 

I would reverse the judgment and remand the cause for the First District Court of 

Appeals to review the trial court’s bail determination for an abuse of discretion in 

the first instance. I would not reach the state’s second proposition of law. 

Therefore, I must respectfully dissent. 

_________________ 

DEWINE, 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) requires a trial court to 

consider “the safety of any person or the community” when setting 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 passed a constitutional 

amendment that guarantees victims the right to be heard in the bail process, the 

majority slams the door on a victim’s right to be heard. And despite the fact that 

trial courts—who take evidence and can assess the credibility of witnesses—are in 

the best position to make bail decisions, the majority today invites appellate courts 
January Term, 2022 

 29 

to second-guess trial-court bail decisions based on nothing more 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 fake 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 million. DuBose’s counsel filed a 

motion to reduce bail, and following 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 did 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 victims 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 and 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 grandmother of the deceased told the court: “We don’t 

feel safe with him out on bond” and “My daughter’s scared to death if he gets out.” 

The state also introduced a picture showing DuBose with a number of firearms. At 

the conclusion of the hearing, the court overruled the motion to 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 when he was picked up in Las Vegas. 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 Las Vegas. The 
SUPREME COURT OF OHIO

30 

trial court noted that there was no legitimate reason for DuBose 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 the victim’s family 

member. 

{¶ 77} DuBose then filed a writ of habeas corpus in the First District Court 

of Appeals. The court of appeals determined that it would apply de novo review to 

the trial court’s decision—in other words, that it would consider the bail motion 

anew without providing any deference to the trial court’s decision. But despite 

applying de novo review, the court of appeals didn’t hold a hearing. Nor is there 

any indication in the record that the court of appeals provided any notice to the 

victims or allowed the victims the right to be heard as required by Marsy’s law. See

Ohio Constitution, Article I, Section 10a(A)(2) and (3). After reviewing the paper 

record, the court of appeals concluded the trial court had erred and reduced 

DuBose’s bail to $500,000. 

{¶ 78} The majority conducts what it says is its own de novo assessment of 

DuBose’s bail, and concludes that the court of appeals appropriately reduced 

DuBose’s bail. Majority opinion, ¶ 26, 34. I disagree with the result reached by 

the majority, and with the analysis it uses to get there. 

II. The majority’s flawed decision 

{¶ 79} In my view, there are several problems with the majority’s analysis. 

First, the majority applies the wrong standard of review. Second, in doing so, the 

majority fails to accord crime victims the rights they are guaranteed 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 that will have serious 

consequences when it comes to the safety of Ohio communities. 

 
January Term, 2022 

 31 

A. The majority applies the wrong standard of review 

{¶ 80} The majority begins its analysis by concluding that the court of 

appeals correctly applied de novo review to the trial court’s bail decision. I 

disagree. 

{¶ 81} Article I, Section 9 of the Ohio Constitution entrusts the trial court 

with the responsibility of setting bail. The applicable provision 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 conditions of bail.” Id. “The 

court” in the provision obviously refers back to the court in which 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 as to the 

terms of bail. Under the rule, in determining the conditions of pretrial release, a 

trial court is required to impose the least restrictive conditions that “in the discretion 

of the court, will reasonably 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.” (Emphasis added.) Id. It is axiomatic that 

when something is entrusted to a trial court’s discretion, we review that decision 

for an abuse of that discretion. 

{¶ 83} “To tell a trial judge that he has discretion in certain matters is to tell 

him that there is a range of choices available to him. It is to 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). Indeed, to apply anything other than abuse-ofdiscretion review to the trial court’s discretionary decision is almost nonsensical. 

How can one possibly review de novo a bail amount that is set based upon a judge’s 

discretion? 
SUPREME COURT OF OHIO

32 

{¶ 84} In endorsing de novo review, the majority cites our recent decision 

in Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 

1132, ¶ 5, and claims that a court of appeals may “independently weigh the 

evidence to make its own bail determination.” Majority opinion at ¶ 16. Mohamed, 

however, was an ill-advised departure from this court’s longstanding 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 court of appeals did 

not abuse its discretion in determining that the $3,000,000 bail 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 the action of the courts denying 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 unless 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 standard to excessive-bail claim); In re Green, 101 

Ohio App.3d 726, 730, 656 N.E.2d 705 (8th Dist.1995) (“In a habeas corpus action 

to contest the reasonableness of bond, this court must determine whether the trial 

court abused its discretion”); In re Scherer, 7th Dist. Mahoning No. 01 C.A. 167, 

2001-Ohio-3420 (applying abuse-of-discretion standard to excessive-bail claim); 

King v. Telb, 6th Dist. Lucas No. L-05-1022, 2005-Ohio-800, ¶ 20 (“In a habeas 

corpus action which challenges the amount of bond, we must review the decision 

of the trial court under an abuse of discretion standard”); see also Hartman v. 

Schilling, 160 Ohio St.3d 1486, 2020-Ohio-5506, 158 N.E.3d 617, ¶ 4-5 (Kennedy, 

J., dissenting) (explaining that the court’s decision to dismiss the habeas petition 

for failure to state a claim without first holding a hearing was impossible to square 

with the court’s statement in Mohamed that it would apply de novo review to 

excessive-bail claims). 
January Term, 2022 

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{¶ 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 original action, an 

appellate court may permit a habeas petitioner to introduce evidence to prove his 

claim and then exercise its own discretion in imposing an appropriate 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 reviewed the transcripts from the trial court 

and substituted its judgment for the trial court’s. Thus, whatever justification for 

de novo review existed in Mohamed does not exist here. 

{¶ 87} To make matters worse, the majority requires not only that courts of 

appeals review de novo trial courts’ bail decisions but also that this court review de 

novo the decisions of the courts of appeals and the trial courts. 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 for judicial efficiency. 

{¶ 88} The bigger problem, though, is that trial judges on the whole will 

almost certainly make better bail decisions than appellate judges. Our Constitution 

and Crim.R. 46 entrust bail decisions to trial judges for a reason. The typical trial 

judge has extensive experience in setting the conditions of release, making such 

decisions on a regular, often daily, basis. “With experience in 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 able to view the 

witnesses and observe their demeanor, gestures and voice inflections, and use these 

observations in weighing the credibility of the proffered testimony.” 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). 
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{¶ 89} In addition, trial courts are far better equipped than appellate 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 conditions of release 

based on changed circumstances. Abuse-of-discretion review, in short, not only 

comports with our Constitution and rules, but also makes good sense. 

{¶ 90} Our Constitution places bail decisions in the hands of trial judges, 

and Crim.R. 46(B) makes clear that bail decisions are entrusted to the trial judge’s 

discretion. We ought to honor these commands and allow reversal of a trial court’s 

bail decision only when the judge has 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 the 

rights of victims to constitutional status. And in the early stages of this case, 

Marsy’s Law worked as it was intended. The trial court and the prosecutor realized 

that they had neglected to afford the victims the opportunity to 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 retain the original bail 

amount. 

{¶ 92} But then came the review of that decision. The court of appeals 

determined that it would consider 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 Constitution. It also gives 

the victim the right “to be heard in any public proceeding involving release” of the 

defendant. Id. at Section 10a(A)(3). 

{¶ 93} If a reviewing court is going to consider a matter anew, without any 

deference to what happened in the trial court, then it also needs to allow the victims 

to exercise the same rights they have in the trial court. There is no indication that 

that happened here. There is nothing in the appellate court record to indicate that 
January Term, 2022 

 35 

the victims were given any opportunity to be present and have their 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 record. Majority opinion at ¶ 31. 

{¶ 94} We can’t have it both ways. If we are going to say that a reviewing 

court must ignore the credence that a trial court put in a victim’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 they 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 defendant” to the safety of the community in setting a 

bail amount. Majority opinion at ¶ 19, 24. This is a dangerous holding that flies in 

the face of the plain language of Crim.R. 46(B) and our precedent. 

{¶ 96} Crim.R. 46(B) provides: 

[T]he 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 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 conditions 

of release, those financial conditions shall be related to the 

defendant’s risk of non-appearance, the seriousness of the offense, 

and the previous criminal record of the defendant. 

(Emphasis added.) By its very terms then, Crim.R. 46(B) mandates that the court 

consider “the protection or safety of any person or the community” in setting bail 
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terms. The majority tries to get around this inconvenient fact by pointing out that 

public safety is not explicitly listed in the sentence that relates to financial 

conditions. Because of this, it reasons, “public safety is not a consideration with 

respect to the financial conditions of bail” and financial conditions must only relate 

to the risk of flight. (Emphasis deleted.) Majority opinion at ¶ 24. The problem 

with this reading is that included within the financial-conditions 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). The seriousness of the 

offense and a defendant’s prior record relate directly to public safety 

considerations. Indeed, if the rule’s drafters meant for only “the defendant’s risk 

of non-appearance” to be considered, they would have stopped right after those 

words; there would have been no need to include anything else in the sentence. 

{¶ 97} Furthermore, Crim.R. 46(C) explicitly lists factors to be considered 

“in determining the types, amounts and conditions of bail.” (Emphasis added.) The 

first factor to be considered is “[t]he nature and circumstances of the crime charged, 

and specifically whether the defendant used or had access to a weapon.” Crim.R. 

46(C)(1). Plainly, whether someone used or has access to a weapon 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 proposed changes to 

Crim.R. 46 were first put out for public comment, in October 2019, the proposed 

rule provided that “financial 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 Procedure (Oct. 7, 2019), available at 

https://www.supremecourt.ohio.gov/ruleamendments/documents/ONLINE%20P

ACKET.pdf (accessed Dec. 23, 2021) [https://perma.cc/ZQT7-84D9]. The final 

version adopted by this court after the public-comment process, however, does not 

include the word “solely.” Thus, in contrast to the majority’s position today, it is 
January Term, 2022 

 37 

evident that the rule amendment was not intended to forbid consideration 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 efficiency in 

setting bail in an amount that effectively ensures (1) the defendant’s continued 

presence at future proceedings, (2) that future proceedings will 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 consider 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 appropriately consider “the 

nature and circumstances” of the felonies charged as well as the 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 provide 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 considerations other than the need to ensure 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]othing in the text of the [excessive-bail clause of the 
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38 

Eighth Amendment to the federal Constitution] limits permissible Government 

considerations solely to questions of flight. The only arguable substantive 

limitation * * * is that the Government’s proposed conditions of 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 from considering public 

safety when setting the amount of bail. And certainly nothing in the text of the 

Ohio Constitution imposes such a prohibition. Article I, Section 9 of the Ohio 

Constitution. 

{¶ 102} By prohibiting trial judges from even considering public safety in 

determining the amount of bail, the majority acts contrary to the plain terms of 

Crim.R. 46. And by tying the hands of trial judges who must make difficult bail 

decisions, the majority’s action today will almost certainly make our communities 

less safe. 

III. The trial court did not abuse its discretion 

{¶ 103} This case is properly reviewed under an abuse-of-discretion 

standard. Here, DuBose was charged with the most serious of crimes, murder, 

aggravated robbery and aggravated burglary. It has long been understood that “if 

an accused is charged with crimes the conviction for which would result in long 

incarceration, with little hope of early 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 court also had before it 

substantial evidence that DuBose was a flight risk. He fled the jurisdiction after 

the crime, and when he was apprehended, he provided false identification to the 

arresting officer. He also had with him $2,000 in cash and a number of credit 

cards that were not in his name. Under these circumstances, I cannot say that the 

trial court abused its discretion in setting the bail that it did.

 
January Term, 2022 

 39 

IV. Conclusion 

{¶ 104} I dissent because I do not believe that the trial court abused its 

discretion in setting Justin DuBose’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 refusing to ensure that 

victims’ rights are protected, and in prohibiting a court from even considering 

public safety in making bail decisions, the majority departs from our rules, our 

precedent, and our Constitution. And in doing so, it undermines the safety of our 

communities. 

_________________ 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott 

Havlin, Assistant Prosecuting Attorney, for appellant. 

_________________