[Cite as Dubose v. McGuffey, 2021-Ohio-3815.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

JUSTIN DUBOSE, 

 Petitioner, 

 vs. 

CHARMAINE MCGUFFEY, 

HAMILTON COUNTY SHERIFF, 

 Respondent. 

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CASE NO. C-210489 

 

 

 O P I N I O N.

 

 

Original Action in Habeas Corpus 

 

Judgment of Court: Petition for Writ Granted 

Date of Judgment Entry on Appeal: October 27, 2021 

Arenstein and Gallagher, William R. Gallagher and Kara C. Blackney, for 

Petitioner, 

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

Assistant Prosecuting Attorney, for Respondent. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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CROUSE, Judge.

{¶1} Petitioner Justin Dubose is currently being detained in the Hamilton 

County Justice Center because he contends he is unable to post the $1.5 million bail 

that has been set in his case. Dubose and codefendant Jamie Shelton were charged 

with the murder of Shawn Green. The murder is alleged to have occurred on July 18, 

2020, during a robbery. Dubose has been indicted for two counts of murder, one 

count of aggravated robbery, and one count of aggravated burglary in the case 

numbered B-2005815B. He has filed a petition for a writ of habeas corpus 

challenging the amount of his pretrial bail as excessive. The court, upon 

consideration thereof, finds that the petition is well taken and is granted. 

The Bail Hearings Below 

{¶2} Complaints were filed and warrants were issued against Dubose on 

October 2, 2020, for murder and aggravated robbery. He was arrested in Las Vegas, 

Nevada. He waived extradition and was returned to Hamilton County on November 

5, 2020, and appeared before the Hamilton County Municipal Court for a bail 

hearing. At the hearing, the state requested that the court impose a $1.5 million 

secured bail because a different judge had already set such a bail for his codefendant, Shelton. In support of the high bail, the state claimed that Dubose and 

Shelton shot the victim in the head after they entered the garage of a home in order 

to rob the homeowner of his marijuana. They subsequently fled the scene and 

Dubose was arrested in Las Vegas. 

{¶3} In support of a lower bail, Dubose’s attorney represented that he had 

been retained by Dubose’s mother, Dubose is not employed, and he does not have 
OHIO FIRST DISTRICT COURT OF APPEALS 

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the financial means to afford a high bail. He further explained that Dubose is 25 

years old and does not have a significant criminal history. 

{¶4} After hearing argument, the municipal court judge set a $750,000 

secured bail on the murder charge and an additional $750,000 secured bail on the 

aggravated-robbery charge, totaling $1.5 million. 

{¶5} After he was indicted, Dubose filed a motion to reduce bail before the 

common pleas court judge assigned to the case, arguing that the $1.5 million bail was 

excessive and the municipal court judge did not consider Dubose’s ability to afford 

the bail. In the motion, Dubose asserted that he is a graduate of Colerain High 

School, a lifelong resident of Cincinnati, and his entire family lives in Cincinnati. He 

claimed he had been working full-time for the same company for over a year. He 

further claimed he had no felony convictions, no history of weapons, and no history 

of failing to attend court appearances. He claimed that he and his family did not have 

the financial means to post the current bail. The motion was set for a hearing on 

February 23, 2021. 

{¶6} At the hearing, Dubose’s counsel argued that Dubose has strong family 

ties to the community, no failures to appear, no felony convictions, does not own a 

passport, and cannot afford the $1.5 million bail. 

{¶7} In response, the state countered that this was a planned aggravated 

robbery inside of a residence by Dubose and Shelton. The state alleged that Dubose 

was the “hands-on killer” who shot and killed the victim, who was left for dead when 

Dubose and Shelton fled the scene. Dubose and Shelton were later arrested in Las 

Vegas. The state argued that Dubose posed a danger to the community and was an 
OHIO FIRST DISTRICT COURT OF APPEALS 

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“extremely violent person” and a flight risk. The state asked the judge to keep the bail 

as is. 

{¶8} The trial court stated that it must consider several factors, including 

ties to the community, ability to pay, the serious nature of the offense and the risk of 

flight. The court found that although this was a very serious case and Dubose was “a 

significant risk of flight,” he was innocent until proven guilty and the $1.5 million 

bail was excessive. The court reduced the bail to $500,000 straight with an 

electronic monitoring unit (“EMU”). 

{¶9} After the court entered its order reducing the bail, it was informed by 

the prosecution that there was a failure to comply with Marsy’s Law, in that the 

victim’s family had not been notified of the bail hearing. The court immediately 

reinstated the original $1.5 million bail and set the matter for a hearing on February 

23, 2021, with the victim’s family present. 

{¶10} At the hearing, the victim’s grandmother informed the court that she is 

terrified of Dubose and feels that she and her family would be in extreme danger if he 

were released, even on electronic monitoring. The court kept the bail at $1.5 million. 

{¶11} Dubose filed a second motion to reduce bail, which was heard on 

August 12, 2021. After hearing argument, the court denied the motion. The court 

stated that it would give Dubose the benefit of the doubt that he did not travel to Las 

Vegas to avoid prosecution. However, the court noted the seriousness of the charges, 

that they included gun specifications and carried mandatory prison time. The court 

stated that it placed a lot of weight on the fear of the family members. 

{¶12} In this habeas petition, Dubose argues that the $1.5 million bail 

ordered by the common pleas court judge is excessive and unreasonable, and the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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judge did not properly consider his financial resources as required by Crim.R. 46(C) 

and the Ohio Supreme Court. Dubose requests that this court reduce his bail to 

$500,000 with EMU, which was the bail originally set by the common pleas court. 

The Standard of Review 

{¶13} “[I]n 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.” Mohamed v. Eckelberry, 162 

Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, ¶ 5. 

{¶14} Thus, Mohamed suggests that our standard of review is de novo.1 See 

Hartman v. Schilling, 160 Ohio St.3d 1486, 2020-Ohio-5506, 158 N.E.3d 617, ¶ 2 

(Kennedy, J. dissenting) (stating that the court applied a de novo standard of review 

in Mohamed); see also Stevens v. Navarre, 2021-Ohio-551, 168 N.E.3d 578, ¶ 8 (6th 

Dist.) (“[W]e glean from Mohamed that we must conduct a de novo review in our 

determination of whether the pretrial bail is excessive.”). 

{¶15} Our record consists of the verified habeas petition, the exhibits 

attached thereto, and the response of the respondent. Neither party requested an 

opportunity to submit additional evidence. 

The $1.5 million Bail is Excessive

{¶16} While the nature and circumstances of the crime charged are certainly 

relevant to any bail determination, Crim.R. 46(C) also requires the court to “consider 

many other factors that are specific to the accused, such as the weight of the evidence 

and the defendant’s financial resources.” Mohamed at ¶ 7. “Any financial conditions 

[of release] shall be in an amount and type which are least costly to the defendant 

1 As a result, this de novo standard supplants the prior “hybrid” standard of review that this court 

historically applied. Drew v. State ex. rel. Neil, 2020-Ohio-4366, 158 N.E.3d 684, ¶ 3 (1st Dist.). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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while also sufficient to reasonably assure the defendant’s future appearance in 

court.” Crim.R. 46(B). Imposing an unreasonably high bail that everyone knows the 

defendant cannot afford is tantamount to a denial of bail, but it is done in a manner 

that avoids compliance with the due-process requirements for the statutory denial of 

bail. 

{¶17} We must remember that “[t]he 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; R.C. 2937.22 (A) (“Bail is security for the 

appearance of an accused to appear and answer to a specific criminal or quasicriminal charge in any court or before any magistrate at a specific time or at any time 

to which a case may be continued, and not depart without leave.”). “Bail is excessive 

when it is higher than is reasonably necessary to serve the government’s interest in 

ensuring the accused’s appearance at trial.” Mohamed, 162 Ohio St.3d 583, 2020-

Ohio-4585, 166 N.E.3d 1132, at ¶ 29 (Kennedy, J., dissenting), citing United States v. 

Salerno, 481 U.S. 739, 753-755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), and Stack v. 

Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 L.Ed. 3 (1951). 

{¶18} “[S]etting a high bail in order to keep someone accused of a crime 

incarcerated pretrial is both statutorily and constitutionally unlawful.” Mohamed at 

¶ 24 (Stewart, J., concurring), citing R.C. 2937.222, State v. Bevacqua, 147 Ohio St. 

20, 22, 67 N.E.2d 786 (1946), and Stack at 4. “Boiled down to its essence, setting 

high bail amounts accomplishes with money what courts could not otherwise achieve 

without following the due-process requirements in R.C. 2937.222.” Id. 

{¶19} That is exactly what occurred here. Dubose’s counsel repeatedly 

proffered that neither Dubose nor his family can afford the $1.5 million bail, a point 
OHIO FIRST DISTRICT COURT OF APPEALS 

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reiterated in the verified habeas filing before us. The state has never contested this 

point or introduced contrary evidence, and, indeed, the thrust of its arguments at the 

bail hearings is that the bail must be so high that Dubose cannot get out. 

{¶20} The state made this point in various ways. At the February 23, 2021, 

bail hearing, the prosecutor told the court, “So not only for the safety of the 

community, but I don’t think he would come back if he got out. I would ask the court 

to keep the bond as it was [$1.5 million].” A few days later, the state reiterated, “And 

I know the Court set a bond and also put on an EMD provision on that bond: but the 

feeling is that that’s just an ankle bracelet and you can either cut that off or violate it, 

and it doesn’t really protect somebody if the person wants to violate it. Certainly 

there’d be notice to probation or EMD that there’s a violation, but in that time period 

after he goes off his range, then that person could do whatever they want.” And at the 

final bail hearing, the prosecutor warned, “if the defendant were released, [the 

victim’s family] would feel they were in danger from Mr. Dubose.” 

{¶21} The state’s point is not that the court should set a bail at a level to 

“ensure a person’s attendance in court.” Neal, 140 Ohio St.3d 47, 2014-Ohio-2926, 

14 N.E.3d 1024, at ¶ 16. Rather, it is that the bail must be sufficiently high that 

Dubose can never get out. 

{¶22} At the end of the day, this is an argument for the denial of bail. But it is 

unconstitutional to achieve a de facto denial of bail without satisfying the rules for a 

true denial of bail. See Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 

N.E.2d 5, ¶ 64 (“Thus, the amendment to Section 9, Article I was designed to expand 

the types of offenses and circumstances under which bail could be denied, not to 

limit an accused’s access to a surety once bail is granted.”). (Emphasis omitted.) 
OHIO FIRST DISTRICT COURT OF APPEALS 

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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. 

Ohio Constitution, Article I, Section 9. 

{¶23} If the state believes that Dubose represents such a danger to the 

community that he must be held without bail, then it must make a motion pursuant 

to R.C. 2937.222, at which point “the judge shall hold a hearing to determine 

whether an accused person charged with aggravated murder when it is not a capital 

offense, murder, a felony of the first or second degree, a violation of section 2903.06 

of the Revised Code, a violation of section 2903.211 of the Revised Code that is a 

felony, or a felony OVI offense shall be denied bail.” R.C. 2937.222(A). 

{¶24} The statute places the burden on the state to prove “that the proof is 

evident or the presumption great that the accused committed the offense with which 

the accused is charged, of proving that the accused poses a substantial risk of serious 

physical harm to any person or to the community, and of proving that no release 

conditions will reasonably assure the safety of that person and the community.” Id. 

That provision further provides: 
OHIO FIRST DISTRICT COURT OF APPEALS 

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No accused person shall be denied bail pursuant to this section unless the 

judge finds by clear and convincing evidence that the proof is evident or 

the presumption great that the accused committed the offense described 

in division (A) of this section with which the accused is charged, finds by 

clear and convincing evidence that the accused poses a substantial risk of 

serious physical harm to any person or to the community, and finds by 

clear and convincing evidence that no release conditions will reasonably 

assure the safety of that person and the community. 

R.C. 2937.222(B). 

{¶25} In other words, this statute exists to address the exact concerns raised 

by the state below and in response to Dubose’s habeas petition. The court’s decision 

in Mohamed v. Eckelberry, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, 

the Ohio Constitution, Crim. R. 46, and R.C. 2937.222 all reinforce the point that if 

the state elects not to pursue that statutory path, the focus of the monetary bail 

amount must be on assuring the defendant’s appearance and not simply artificially 

inflating the amount so that no one can satisfy it.2 

{¶26} In this case, Dubose’s high bail was effectively a denial of bail, without 

the trial judge making any of the required statutory findings. This is improper. 

Underscoring the point, despite the fact that the trial court found Dubose to be a 

2 While we acknowledge that Crim.R. 46(B) also requires the court to consider “the protection or 

safety of any person or the community” when determining an appropriate bail, the rule lists 

numerous nonfinancial conditions that can be imposed to address this factor. These conditions 

include, but are not limited to, restrictions on travel, association, or place of abode, regulation of 

the person’s contact with witnesses or others associated with the case, completion of drug and/or 

alcohol assessment and compliance with treatment regulations, and “[a]ny other constitutional 

condition considered reasonably necessary to reasonably assure appearance or public safety.” The 

rule states that financial conditions of release “shall be related to the defendant's risk of nonappearance, the seriousness of the offense, and the previous criminal record of the defendant” 

and must 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.” 
OHIO FIRST DISTRICT COURT OF APPEALS 

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flight risk, it originally found the $1.5 million bail to be excessive. It lowered the bail 

to $500,000, but, in order to ensure his appearance in court and for the safety of the 

community, also required an EMU. If the state wishes to have Dubose detained 

without bail because it believes he poses a substantial risk of serious physical harm to 

any person or to the community and no release conditions will reasonably assure the 

safety of that person and the community, then it must comply with R.C. 2937.222. 

{¶27} After reviewing the record presented to this court, we find that the $1.5 

million bail is excessive because it does not take into consideration Dubose’s 

financial resources as required by Crim.R. 46(C)(4). Dubose represented below and 

reiterated in the verified filing before us that he does not have the resources to post 

such a high bail, and the state has not presented any argument or evidence to the 

contrary. By requesting in his habeas petition that this court lower his bail to 

$500,000 straight with EMU, Dubose is effectively agreeing that this bail amount is 

attainable yet high enough to compel him to appear in court when required. The 

additional condition of EMU also addresses concerns regarding the safety of the 

victim’s family and the community. 

{¶28} We finally would like to note that the trial judge below engaged in 

thoughtful consideration of the bail in this case, convening no less than three 

separate bail hearings. Determining a bail that satisfies all of the requirements of 

Crim.R. 46 is not an easy decision to make. But, as explained above, it is unlawful to 

set a bail so high that it “accomplishes with money what courts could not otherwise 

achieve without following the due-process requirements in R.C. 2937.222.” 

Mohamed, 162 Ohio St.3d 583, 2020-Ohio-4585, 166 N.E.3d 1132, at ¶ 25 (Stewart, 

J., concurring). 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶29} Accordingly, Dubose’s petition for a writ of habeas corpus is hereby 

granted and his bail in the case numbered B-2005815B is reduced to $500,000 

straight, no ten percent, with the additional conditions of 24-hour lockdown EMU, 

no direct or indirect contact with the victim’s family and petitioner shall surrender 

his passport if he owns one. All other non-financial conditions of release imposed by 

the court of common pleas shall also remain in place. 

Petition for writ granted. 

BERGERON, P.J., concurs, 

WINKLER, J., dissents. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.