STATE OF OHIO ex rel.ANTHONY SYLVESTER

Relator,

vs.

IN THE SUPREME COURT OF OHIO

TIM NEALWAYNE COUNTY CLERKOF COURTS

Respondent.

)))))))))))

Case No. 12-1742

ORIGINAL ACTIONIN MANDAMUS

MERIT BRIEF OF RESPONDENT TIM NEAL, WAYNE COUNTY CLERK OF COURTS

Daniel R. Lutz(# 0038486)Wayne County Prosecuting Attorney

Nathan R. Shaker (#0079302)*Counsel of RecordAssistant Prosecuting Attorney115 West Liberty StreetWooster, Ohio 44691Phone: (330) 262-3030Fax: (330) 287-5412

Attorney for Respondent,Tim Neal, Wayne County Clerk of Courts

Patrick L. Cusma (# 0067256)116 Cleveland Ave., Ste. 702Canton, OH 44702Telephone : 3 3 0-454-9960Fax: 330-454-9979

Attorney for Relator, Anthony Sylvester

Gregory P. Barwell (# 0070545)*Counsel of RecordQuinn Mn. Schmeige (# 0085638)Wesp/Barwell, LLC6400 Riverside Dr., Ste. DDublin, OH 43017Telephone: 614-388-5693Fax: 614-388-5693

Attorneys foN Amici

RLECOV1E DMAR 2 8 2013

CLERK OF CO URTUl^(4`r l F C 0 U RT 0F 0HI C

CLE.Rit OF COURTSUPREME COURT OF OHIO

MAR 2 8 2013

TABLE OF CONTENTS

Page

STATEMENT OF THE CASE AND FACTS .. ..............................................................................1

ARGUMENT & LA W . . .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . ... . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . 2

Proposition of Law I ............................................................................................................2

Proposition of Law II ............................................................................................................ t

CONCLUSION ...............................................................................................................................7

CERTIFICATE OF SERVICE ...... .................................................................................................8

i

Table of Authorities

Cases PageFragoso v. Fell, 210 Ariz. 427, 111 P.3d 1027 (Ariz.App. 2005) ...................................................4

Smith v. Leis, 106 Ohio St.3d 209, 2005-Ohio-5125, 835 N.E.2d 5 ....................................2, 3, 4, 6

State ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 122 Ohio St. 3d 260, 2009-Ohio-2871, 910

N.E.2d 455 .......................................................................................................................................7

State ex rel. Toledo v. Lucas Cty. Bd ofElections, 95 Ohio St.3d 73, 765 N.E.2d 854 (2002) ......7

State ex rel. Williams v. Fankhouser, l lth Dist. No. 2006-P-0006, 2006-Ohio-621607 . ................3

State v. Briggs, 666 N.W.2d 573 (Iowa 2003) .................................................................................6

State v. Gutierrez, 140 P.3d 1106 (N.M.App. 2006) .......................................................................6

State v. Jackson, 384 S.W.3d 208 (Mo.2012) ..............................................................................5, 6

Statutes and RulesOhio Constitution Article I, Section 9 ................................................................................. 2, 4-5, 6

Ohio Criminal Rule 46 .................................................................................................................2, 3

Other Authorities) .............................................................................................Black's Law Dictionary (8th ed. 2004 5

Black's Law Dictionary (9th ed. 2009) ............................................................................................5

Royal Standard Dictionary (2d ed. 1804) ........................................................................................5

Samuel Johnson's Dictionary of the English Language (3rd ed. 1766) . .........................................5

The Concise Oxford Dictionary of Current English (9th ed. 1995) ... .............................................5

) ....................................................... ••••••••••••••••••••••••••°•Webster's Third New Int'l Dictionary (1971 5

AttachmentsJudgment Entry Setting Bond dated June 27, 2011 .................................................................Att. A

11

STATEMENT OF THE CASE AND FACTS

Relator Anthony Sylvester AAA Sly Bail Bonds is a licensed bondsman in the State of

Ohio. On December 7, 2011, Relator's agent Chris Nickolas appeared before the Wayne County

Common Pleas Court to post bond for Shannon Rowe in case 11-CR-0347 involving an

indictment for deception to obtain a dangerous drug, a felony of the fourth degree. Rowe's bond

in case 11-CR-0347 was set by the Honorable Judge Corey Spitler at five thousand dollars

($5,000) with a deposit of five hundred dollars ($500.00), ninety percent of which shall be

returned upon final disposition of the case. A copy is attached at Attachment A. Chris Nickolas

attempted to tender a five thousand dollar ($5,000.00) surety bond tendered by AAASLY

Bailbonds.

Respondent Tim Neal, is the duly elected Clerk of Courts for Wayne County, Ohio. The

Clerk of Court's responsibilities include taking bonds set by the Wayne County Court of

Common Pleas. Respondent Tim Neal's office informed Chris Nickolas that he could not post a

surety bond as the bond in case 11-CR-0347 was set at ten percent of five thousand dollars

($5,000.00). At this time, Relator's agent Chris Nickolas tendered five hundred dollars

($500.00) in cash to secure Shannon Rowe's release on case 11-CR-0347. Shannon Rowe has

since pled guilty to the felony charges and has begun serving a thirty-six month prison sentence.

May 23, 2012 Judgment Entry of Change of Plea and Sentencing.

Relator now seeks a writ of mandamus commanding the Wayne County Clerk of Courts

to accept surety bonds in all cases where bond is set by the Court.

1

ARGUMENT & LAW

PROPOSITION OF LAW ICRIMINAL RULE 46(A)(2) DOES NOT VIOLATE THE OHIOCONSTITUTION SINCE THERE IS NO REQUIREMENT THAT A THIRDPARTY ACT AS A SURETY IN EVERY CASE WHERE BAIL IS SET.

Crim. R. 46 provides for three types of bonds, including a personal recognizance bond, a

ten percent bond and a surety bond. Crim.R.46. A ten percent bond indicates that a defendant

can post ten percent of the bond to the court without a surety. Article I, Section 9 of the Ohio

Constitution, was amended in 1998 to provide that, "[w]here 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." This same article gave this Court the authority to establish the

amount and conditions of bail pursuant to Article IV, section 5(b). Is this Court's enactment of

Crim. R. 46 (A) (2) unconstitutional because it prohibits a surety from posting a bond for the

defendant?

1. This Court must decide whether Crim. Rule 46 (A)(2) violates the Ohio

Constitution by prohibiting a surety from posting a bond.

The Respondent indicates that the only issue before this Court is whether Crim. R. 46

(A)(2) violates Article I, Section 9 of the Ohio Constitution. This Relator alleges that this

constitutional provision, "All persons shall be bailable by sufficient sureties" indicates that the

Respondent must accept a surety bond posted by a third party bondman in all cases where bail is

allowed, citing Smith v. Leis, 106 Ohio St. 3d 309, 835 N.E.2d 5, 2005-Ohio-5125, 835 N.E.2d 5.

Crim.R. 46 sets forth the various factors and conditions a trial court should consider in

determining bail. In regard to the types of bail which can be used, subsection (A) of the rule

states that a defendant can post a ten percent bond with the clerk of courts:

(A) * * * Any person who is entitled to release shall be released upon one or moreof the following types of bail in the amount set by the court:

2

(1) The personal recognizance of the accused or an unsecured bail bond;(2) A bail bond secured by the deposit of ten percent of the amount of the bond incash. Ninety percent of the deposit shall be returned upon compliance with allconditions of the bond;(3) A surety bond, a bond secured by real estate or securities as allowed by law, orthe deposit of cash, at the option of the defendant.

Crim.R. 46.

Respondent indicates that this rule of procedure is clear and precise. A defendant can

secure a bond by his signature, his cash, or his bond. There are three distinct types of bond and

the first two types do not require a third party surety. The Relator gives a tortured reading of

Leis to indicate that the ten percent bail bond is a "cash bond" and he has the right to set forth a

surety bond in any type of bond set forth in Crim. R. 46. However, Crim. R. 46 (A)(2) does not

provide for a surety but is a ten percent bond that is paid directly to the Court. Respondent was

not obligated to accept the surety bond that the bail bondsman tried to submit on the defendant's

behalf. See State ex rel. Williams v. Fankhouser, llth Dist. No. 2006-P-0006, 2006-Ohio-

621607. Instead, the Respondent's duty was simply to accept a ten percent deposit in accordance

with the court order.

The Amicus has properly framed the issue before the Court by alleging that Crim. R. 46

(A)(2) violates the surety provision of the Ohio Constitution by allowing a defendant to post a

ten percent cash bond without a surety. The Amicus argues, "The 10% cash requirement is

unconstitutional if it is a requirement and does not work in concert with the other options

provided under Crim. R. 46(A). The cash-only requirement, whether its [sic] 10% on a $25,000

bail or a $1.00 bail, violates the accused's rights enumerated under Article I, Section 9 and

controverts the precedent in Jones and Smith." (Amicus Brief, p.11-12). This Court has also

indicated that, this constitutional issue is the preeminent reason why this case, while moot, may

be heard on its merits." Leis at ¶ 55. Respondent requests that this Court decide whether Crim.

R. 46 (A)(2) violates Article I, Section 9 of the Ohio Constitution.

3

2. Article I, Section 9 of the Ohio Constitution does not prohibit a defendant fromposting a cash ten percent bond pursuant to Criminal Rule 46 (A)(2).

In 1998 this Court amended the Rules of Criminal Procedure to indicate that a defendant

could post a ten percent bond without a surety. However, in 2005 this Court decided Smith v.

Leis and held that Article I Section 9, also amended in 1998, was an Ohio guarantee that every

person shall be bailable by a third party surety, a commercial bail bondsman. The Respondent

asserts that this rule and this decision are in conflict and that this Court needs to rewrite this rule

or reconsider this Court's decision in Smith v. Leis.

Justice Stratton in her concurring and dissenting opinion in Leis noted that the majority

definition of surety as a commercial bondman in the phrase, "All persons shall be bailable by

sufficient sureties" was the lynchpin of the case. Leis at ¶87. Justice Stratton, joined by Justice

Resnick and Justice O'Donnell stated that this restrictive definition prohibited "a court from

imposing any type of bail that does not allow a third party to assume the accused's bail

obligation." Id. She then asserted that the, "`sufficient sureties" clause, which, rather than

specifically associating the bailing process with commercial bonding or some other secured

transaction, merely provides the judge discretion in ensuring that the accused will appear for

hearing. Id. at ¶88

This Court should reconsider the definition of a surety as set for in Smith v. Leis and

hold that the term as used in Article I, Section 9 merely refers to a security and not to a third

party bonding agency. Respondent asserts that a defendant has the right to post bail by a ten

percent bond in order to secure his appearance at trial as set forth by Article I, Section 9:

"All persons shall be bailable by sufficient sureties, except for a person who ischarged 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 orthe presumption great and where the person poses a substantial risk of seriousphysical harm to any person or to the community. Where a person is charged withany offense for which the person may be incarcerated, the court may determine atany time the type, amount, and conditions of bail. Excessive bail shall not berequired; nor excessive fines imposed; nor cruel and unusual punishments

inflicted."

4

Ohio Constitution, Article I, Section 9.

This Court has indicated that when interpreting the Ohio Constitution it will apply the

same rules of construction when interpreting statutes. Leis at ¶57. It is generally held that when

interpreting a statute that this Court will apply the ordinary and common meaning of the words

of the statute. Id. The word surety has two common definitions. A surety is '[a] person who is

primarily liable for the payment of another's debt or the performance of another's obligation,'

quoting the definition of "surety" in Black's Law Dictionary. Black's Law Dictionary (8^' ed.

2004). However, the current Black's Law Dictionary includes the meaning cited in Leis but also

defines "surety" to include "a pledge, bond, guarantee, or security given for the fulfillment of an

undertaking." Black's Law Dictionary (9th ed. 2009). Webster's definition includes a variety of

meanings, among which is "a pledge or other formal engagement given for the fulfillment of an

undertaking." Webster's Third New Int'l Dictionary, 2300 (1971). The Concise Oxford

Dictionary of Current English, 1402 (9th ed.1995) definition of "surety" includes "money given

as a guarantee that someone will do something". See Fragoso v. Fell, 210 Ariz. 427, ¶ 7, 111

P.3d 1027, 1033 (Ariz.App. 2005).

Further, dictionaries predating and concurrent with Ohio's enactment of this phrase in

1802 gave expansive meaning to the word "surety." Samuel Johnson's Dictionary of the English

Language defined surety as "security against loss or damage." Samuel Johnson's Dictionary of

the English Language (3rd ed. 1766). The Royal Standard Dictionary similarly provided that a

surety is a "security against loss." Royal Standard Dictionary (2d ed. 1804); see State v. Jackson,

384 S.W.3d 208 (Mo.2012). Further, the Relator cannot argue that in 1802 that it was intent of

the framers of the Ohio Constitution to indicate that the term sureties only referred to

commercial bondsman since it was not until the mid-19th century, well after Ohio's first

5

constitution was approved, that the practice of using a commercial bail bondsman to post bail

became widespread in the United States. Id.

More than two-thirds of states have a constitutional provision equivalent to Ohio's

provision that defendants must be bailable by "sufficient sureties." In the most recent decision,

the Missouri Supreme Court completed an exhaustive analysis of this issue and found that

nothing in the defmition of surety requires that the surety be given by a third party as opposed to

requiring the defendant to post the bond or security himself or herself. Id. The Iowa Supreme

Court also completed a historical review of this issue and stated, "To conclude the sufficient

sureties clause extends an unfettered right to a commercial bail bondsmen contradicts the

language of our constitution as well as historical reality." State v. Briggs, 666 N.W.2d 573, 582

(Iowa 2003); Accord, State v. Gutierrez, 140 P.3d 1106 (N.M.App. 2006). The State also notes

that there are several Courts cited in Leis that have adopted the restrictive language of surety as

set forth in this Court in Leis. Leis at¶ 65.

The Respondent contends that the Constitutional plan was to allow this Court to have

discretion to set forth a procedure for setting bail based upon reasonable conditions of security

that would insure that a defendant would appear for trial. Here, Article I, Section 9 of the Ohio

Constitution, was amended in 1998 to provide that, "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." Ohio Constitution, Article I, Section 9. This same article gave this Court

the authority to establish the amount and conditions of bail by stating in this . same section,

"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. Id.

6

Where provisions of the Constitution related to the same subject matter, they must be

read in pari materia and harmonized if possible. State ex rel. Toledo v. Lucas Cty. Bd of

Elections, 95 Ohio St.3d 73, 78, 765 N.E.2d 854 (2002). Here, it was not the intent of the people

when amending the Ohio Constitution or the framers when enacting this Constitution that all

appearances of a defendant must be insured by a third party bail bondsman. Instead, the intent

was that this Court was given unfettered discretion to enact conditions of bail that would secure a

defendant's appearance. The Smith v. Leis decision that is the foundation of the defendant's

Mandamus action was wrongly decided and should be reversed or limited in its application. This

Court must interpret surety to mean a security and not a bonding agent in order to give this

Constitutional enactment its true meaning. Crim. R. 46(A)(2) does not violate the Ohio

Constitution and the Relator's Petition for A Writ of Mandamus must be denied.

CONCLUSION

To be entitled to a writ of mandamus, the relator must establish a clear legal right to the

relief requested, a corresponding clear legal duty on the part of the respondent to perform the

requested act, and the lack of an adequate remedy for relator in the ordinary course of law. State

ex rel. Gilmour Realty, Inc. v. Mayfield Hts., 122 Ohio St. 3d 260, 2009-Ohio-2871, 910 N.E.2d

455. Relator seeks a writ of mandamus commanding the "Wayne County Clerk of Courts to

accept surety bonds in all cases where bond is set by the Court." Relator has not demonstrated a

clear legal right to the relief requested, a clear legal duty on the part of respondent to perform the

requested act, or the lack of an adequate remedy for relator in the ordinary course of law. Based

upon the argument set forth by Respondent, the Petition for A Writ of Mandamus must be

denied.

7

Respectfully Submitted,

Daniel R. Lutz (# 0038486)Wayne County Prosecuting Attorney

Nathan R. Shaker (# 0079302)Assistant Prosecuting Attorney115 West Liberty StreetWooster, Ohio 44691Phone: (330) 262-3030Fax: (330) 287-5412

Attorney for Respondent,Tim Neal, Wayne County Clerk of Courts

CERTIFICATE OF SERVICE

On March 27, 2013, a true and accurate copy of Respondent's Merit Brief was sent to

Attorney for Relator, Patrick L. Cusma, 116 Cleveland Ave., Suite 702, Canton, Ohio 44702, by

regular U.S. Mail, postage prepaid and Gregory P. Barwell, Counsel of Record for Amici, 6400

Riverside Dr., Ste. D, Dublin, OH 43017.

Nathan R. Shaker (# 0079302)

c' . ..9. . -

IN ^ii g3tE,VVAyNE . C®tTN'I'' COIVMON PLEAS COURTV

^CASE NO.

.. :^STATE OF oHIo

VS.

Shar;h b^ ROoi-e- ,^• ^y

PROSECUTOR'S- RECO1kIMENY?ATION FOR BOND

The Prosecuting Attorney recommends thatthe defendan.t,be released on the following conditions:

Personal Recognizance

(^[ 10 %o of.an Appearance Bond of ^^n•

.. _ T,

r-^ Cash Only oflu.{^-='

. llvl" / ^IPrecape to the Cierk: .

Please issue sumnnans to an appropriate officer and direct him to make personal service upon the defendant at the

address stated in the caption ofthis request.

Please issue a warrant to an appropriate officer and direct hirn to execute it upon the defendant at the address stated.

in the caption of this request.

sistant PrQsecuting Attorney

JOURNAL ENTRY SETTING OND.

M Personal Recognizance

pursuant to CR46 the defendant may be released on the following conditions:

Ei Unsecured Appearance of $

0 % of an Appearance bond of

^ Cash Only of

® Surety Bond of

Special Conditions

....-fi'

C ` r--^ -nY ^3

^ cp

^ Unsecured Appe$rance of $

COPYT4 ALL COUNSEL.MAILED

A99.ttW

JOURNALIZED:IUN Z 7 'zQ1j

TIM NEAL, CLERKWAYNE COUNTY, OHIO ^

ATrACI3MEN'I' A :::