(affidavit specifying the details of claims sought) ... ross, 116 ohio app.3d 275, ... lester 130...
TRANSCRIPT
^ ^^^^^^^^^
IN T.EiE SUPREPJIE COUIZT O:£' OHIO
STATE OF OHIO,
Plaint.i..ff-Appellee,
Case No. B-^31b789
ST .
Lionel Harr.is
Defendant-Appellant.
nn Appeal from the HatniltonCounty Court of AppealsFirst Appellate Uistrict
C.A. Case No. C-130260
S.Ct. ^to. 13-0992
N;EI^IT BRI^`^' OF APPELLANT LTONEL IiARRIS
Lionel Harris#252.-056
Mad:ison Correctional Inst.
P.O. Box 740
London, Ohio43240-0740
Defendant°Appellan:t, Pro Se
Scott M. HeenanAssistant Prosecuting Attorney
230 .East Ninth Street, Suite 4000Ci.nc.^nnati, Ohio45202
tate of Ohhio
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TABLE OF CONTEUTS
Page
Table of Aui.[loritiQ..rio..eo.o....oaara.wa.,oaoao,aoaoaaaor.ao...eaosar.a 1
Statement of the facts........w ....... ......... e...........2
Argument. w . ....... , r , ....... . a o . . o 0 0 . o e r w a , , . . . e e .......... , , O e e r a . a o , 3
Proposition of Law1uoo1 ...r..a.errso.r......eooo.,r..r.soawrr.wr,.rwo, 7
Propositionof Law Noo2er..... ar..e..r..oo...eeo.m.r.r..a.rr..w,roeo,.12
Proposition of Law No.3,..e..0e.00 ..r...o,.rww..r..a...w...........0..1 8
Proposition of Law No.4.....e....a.r...a .......... ....... ........aar..23
Proposition of Law No.5....r....o,.w.,........ .oo.a,..25
Cont+lusion......w...........r..w...r....,a.r.....a.r.....ee...w.......2/
Certificate of e^'Jerv7.ce..... ao.,r,...o..e.a......o,..rr..e,.r.e.mr..e.. 28
Appandix ....s.,or...e.a.raa...e.o.ooo,o.ora.eoo.....r,o.oao..oo.o.oo®.2J
(judgment of conviction entry)
(motion to dismiss)
(APA decisions )
(Supreme Court's 4/10/13 reply regarding Cert. of Assignment)
(Appellant's reply to motion to dismiss)
(title page of trial transcript)
(Entry dismissing Writ of Prohibition and Mandamus)
(Entry dismissing Petition to Vacate)
(Affidavit Specifying the details of claims sought)
(Record Center's arraignment document)
(Appearance docket)
N()+; c>a er A-gez,3-^
i
TABLE OF AUTHORITIES
Ballard v. State, 8th Dist. No.97882, 2012 Ohio 3086Beatty v. Alston 40 Ohio App.2d 545;320 N.E.2d. 681;1974 Ohio LEXIS 2663Berger v. Berger (1981),3 Ohio App.3d 125, 130 443 N.E.2d 1375Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR, 450 N.E.2d 1140Brooks v.Zabka, 168 Colo. 265, 450 P.2d 653, 655City of Willoughby v. Lukehart, 39 Ohio App.3d 74, 529 N.E.2d 206 (llth Dist.)Neal v. Maxwell 175 Ohio St.201, 202 192 N.E.2d 782 (1963)Plant equa.p. v. Nationwide Control Service 798 N.E.2d 1202 (Ohio App.1 Di.st.)Rosenberg v. Gattarello (1976), 49 Ohio App.2d 87, 93-94, 359 N.E.2d 467Ex parte United States (1916), 242 U.S. 27 41-42, 37 S.Ct. 72, 61 L.Ed.Warren v. Ross, 116 Ohio App.3d 275, 688 N.E.2d 3(llth Dist.1996)Zurowski v. Cuyahoga Cty. Bd. of Revision, 1982 Ohio App. LEXIS 12359, CuyaState v. Adams (1980), 62 Ohio St.2d 151, 157, 16 0.0.3d 169,404 N.E.2d144State v. Anclersor. 2006 Ohio 3905; 2006 Ohio app.LEXIS 3874State v. Baker 119 Ohio St.3d 197, 2008 Ohio 3330, 893 N.E.2d 163State v. Battle 1989 Ohio App. LEXIS 2536State v. Billiter 2012 Ohio 5144`; 2012 ohio LEXIS 3540State v, -Bl-ocmer, 122 Oh3r St.3d- 200, 2009 Ohio 2462,; 909 b?^E. 2d. 1254State v. Brock 2003 Ohio 3199; 2003 Ohio App. 1EXIS 2873State v. Brown, 152 Ohio App.3d 8, 2003 Ohio 1218, 786 N.E.2d 492 (7th Dist)State v. Carlozzi 1992 Ohio App LEXIS 395State ex rel. Culgan v. Medina Cty. Court of Common Pleas 119 Ohio St.3d 535State v. P-llington (1987), 36 Ohio App.3d 76State v. Fitzpatrick 1994 Ohio App.k;EXZS 1835State v. Ginochio (1987), 38 Ohio App.3d 105State v. ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42, 374 N.E.2d 641State v. Johson, 12th Dist. No.CA 2002-07-016, 2003 Ohio 6261State v. Klein, 1998 Ohio App. LEXIS 5757State ex rel. Leis v. Kraft (1984), 10 Ohio St.3d 34, 36, 10 OBR 237, 460N.E.2dState v. Lester 130 Ohio St.3d 303 (2011)State ex rel. Lomaz v. Court of Common Pleas of Portage Cty (1988), 36 Ohio StState v. Love No. 25475, 2011 Ohio 3355State v. Miller 2012-Ohio 2132 WL 1664145State v. Muncie (2001), 91 Ohio St.3d 440, 444 746 N.E.2d 1029State ex rel. Northern Ohio Tel. Co. V. WinterState v. Rhodes 1978 Ohio App. LEXIS 10344State v. Robb (2000), 88 Ohio St.3d 59, 2000 Ohio 275, 723 N.E.2d i019State v. Torrestoro Ohio App.3d, 2012 Ohio 601, NE.2d 2012 Ohio App.LEXIS 2663State v. Tripodo (1997), 50 Ohio St.2d 124State v. Tuggle 2010 Ohio 4162; 2010 Ohio App. LEXIS 3540State v. Vanni, 182 Ohio App.3d 505State ex re1.. Worcester v. Donnellon 49 Ohio St.3d 117 551 N.E.2d 183
Art. I Section 16 ohio Const.Art. IV Section 3(B)(2) ohio const.
Crim.R.25(B). Crim.R.32(A), Crim.R.32(C), Crim.R.55(A)Ham.Ctye LF':7(B)
R.C.2505.02, rR.C.2505n02(B), R.C.2953.03Sup.R.4, Sup.R.4(B), Sup.R.36(B)(1), Sup.R.7(A)
1
STAT.IaNIM OF TT-IE I"`A=
On October 1, 1991., Appellant, Lionel. Harris and co-defendant, Matthew
Pearson were arrested for aggravated murder. The trial. court appointed a public
defender to represent appellant. On 11/27/91 Appellant retained the private
counsel of William L. Mallo.ry and Timothy A. Smith. Retired Judge Donald L.
Schott presided over the trial without interruption.
On January 29, 1992, the Hamilton County Court of Common Pleas convicted
Appellant and co-defendant of aggravated murder. Irrmediately following the
reading of the verdict, Judge Schott excused the jury, the defense waived pre-
sentence investigation and Judge Schott pronounced the sentence of 20 years to
life.
On 2/25/94 the First Appellate District Court of Appeals affixmed.the
judgnent of the trial court. On 8/25/94 the Ohio Supreme Court denied leave to
appeal. On 1.1/1/96 Judge Thomas C. Nurre dismissed Petition to Vacate. On
6/10/2005 the Ohio Adult Parole Authority took jurisdiction and extended
Appellant's sentence six additional years to 8/1.0/2011. On 8/10/2011 the Ohio
Adult Parole Authority again extended Appellant's sentence an additional seven
mare years to 8/01/18.
Apr.il 2013 Appellant discovered that Judge Nurre signed the Judgnent of
Conviction Entry instead of Judge Schott - the presiding judge, and inTnediately
filed a Petiti.on for a Writ of Prohibition and Mandamus. On 5/8/2013 Appellees
filed a Motion to Dismiss. On 5/16/2013 Appellant filed a reply to Appellees
Motion to Dismiss. On 5/30/2013 the First Appel.l.ate District dismissed
Appellant's petition. This appeal of that dismissa.l is an appeal of right.
2
ARG41MEtV`P
On 1/29/92, immediately following sentencing, Prosecutor Thomas L:ongano
handed the defense table a prepared judgment of conviction entry for review.
Fach attorney (Mazlory, Smith and Schmidt) reveiwed it in turn and returned it
to the prosecutor. The prosecutor approached the bench and handed the entry to
Judge Schott for his signature, as required for journalization. The judge looked
at the entry, and without speaking or signing it, irrmediately handed it back to
the prosecutor and went into chambers. Apparently, when Judge Schott was handed
the entry, he was not reviewing it for accuracy, as Appellant had previously
perceived, but was in fact, refusing to s.ign_.it...Pzosecutor Longano imnPC7iate:ly
left the courtroom, agitated, with the unsigned entry in hand.
The record shows that the conviction occurred on 1/29/92. Judge Schott
pronounced sentence within minutes of the verdict. He was clearly present and
available to carry out his duties in this case, up to and including signing the
judgment of conviction entry as Ham.Cty L,R.7(H), Sup.R.4 & Crim.R.32(C)
requires. Yet the judgment of conviction was signed by Judge Thomas C. Nurre and
quickly journalized on the same afternoon of 1/29/92. (see file starnped date on
attached judgnerit of conviction.) Appellant asserts that this blatant act of
judge-shopping on the part of the prosecutor contradicts the presu<ription of
regularity accorded all judicial proceedings.
After discovering the fact that Judge Nurre signed the entry instead of the
presiding judge, Appellant reviewed the court's records further and the records
revealed that there is no journal entry from the administrative judge assigning
the case to Judge Schott as required. Upon further investigation with the
Sup.reme Court's Clerk of Courts, they replied to Appellant's inquiry that they
3
were unable to locate a Certificate of Assignment fx-om the Suprerie Court for
Judge Schott in regards to this case.
Upon this discovery, Appellant in-ar.ediate?.y filed a Petition for a Writ of
Prohibition and Mandamus. Appellant did not request a revised sentenci.ng entry
as ordinarilY requi,red with a Crim.R. 32(C) violation because a revised
sentencing, if granted would not correct the results of the prior jurisdictional
unauthorized actions of the First Appellate District or the Ohio Adu1t Parole
Atithority. A.request for a revised sentencing entry therefore, is not an
adequate remedy.
On 1-29-92, Judge Thcmas. C. Nurre. was not assigrned, reassigned or. transferred ..
to this case. He was not authorized under Crim.R. 25(B) to perform the duties of
the presiding judge. Yet minutes after the presiding judge pronounced sentence,
Judge Nurre signed the entry.
In Appellee's Motion to Dismiss, Appellees state, "He [Relator] wants this
court to vacate his conviction because there was no entry assigning the matter
to a visiting judge and the judge that was originally assigned the case signed
the sentencing entry for the visiting judge. All of that occurred in late 1991
and early 1992."
The Appel.lees have conceeded to the primary facts of Appellant's claims. In
State ex rel. T..omaz v. Court of Comnon Pleas of Portage Cty. (1988), 36 Ohio
St.3d 209, 212, 522 N.E.2d 551, this court held, "Proper assignment, like
jurisdiction over the subject matter., is required for the valid exercise of
judi_cial power."
It is the Appellee's contention that Judge Thomas C. Nurre was originally
assigned this case. However, visiting Judge Ebnald L. Schott stibsequently
presided over Appellant's trial. Appellant did not have the benefit of
4
cantinuous legal representation throughout the initial.proceedings and because
there was no entry on the appearance docket reassigning Judge Schott to this
case it was irrtpossible for Appellant's new counsel to raise any objection to the
reassigrsment that evidently was done in secret. There are no records to
demonstrate the legitimacy of Judge Schott's authority to preside over this
matter. There is no record at all that the Ohio Supreme Court had appointed the
visiting judge. Regardless of these facts, Judge Schott did, in fact, preside
over the trial.
For the sake of argument, even if Judge Schott had been legitimately assigned
to preside and all of those records proving it have somehow been misplaced,
Judge Nurre would still lack jurisdiction to sign the entry for Judge Schott for
several reasons besides Crim.R. 32(C) and Crim.R. 25(B).
1. Under Sup.R.36(B)(1), "Upon the filing in or transfer to the court of a
division of the court, a case imnediately is assigned by lot to a judge of the
division, who become primarily responsible for the determination of every issue
and proceeding in the case until its termination." Therefore, Judge Schott was
soley responsible for signing the judgnent of conviction entry.
2. if Appellees are somehow able to produce a valid Certificate of Assignment
appointing Judge Schott, it would further demonstrate that Judge Nurre had no
authority to sign the entry. In State v. Vanni, 182 Ohio App.3d 505 the court
held, "the Certificate of Assignment by which Chief Justice appointed Judge
Cross to preside over the case terminated any further authority Judge Collier
had to issue any further substantive orders."
According to that ruling, after Judge Schott was officially assigned to
preside, Judge Nurre's authority to issue substantive orders had terrninated. And
according to R.C.2505.02 a judgment of conviction qualifies as a"substanti.ve
order."
5
Having no written record of assignment, transfer or reassignment or that the
judge was unavailable under Crim.R. 25(B) also contradicts the presunption of
regularity accorded all judicial proceedings.
This case requires the Ohio Suprene Court to answer one pramary question and
four derivative questions:
1. Does the strict compliance rule of Crim.R. 32(C) mandate that "the judge who
presided over the proceedings which culminated in the judgrnent, sign the
judgr►ent? "
a.) And if so, does the non-campliant judgnent entry warrant the issuance of
a t 1r.it of Prohibition and 141andamus to correct tlie results of i:tre, unau°thorized
actions and to order a judgnent entry that ccmplies with Crim.R. 32(C)?
b.) What effect does the Appellate Court's decision and the Ohio Adult
Parole Authority's decision have when both of their jurisdiction was premised
upon a sentencing entry that violated Crim.R.32(C) and was thus non-appealable
and invalid for the purposes of conferring jurisdiction to either?
c.) If the record is devoid of any showing that the presiding judge was
unavailable to perform his judicial duties, is the subsequent judgnent entry
signed by a judge other than the presiding judge invalid because it was not
signed under the circimstances described in Crim.R. 25(B)?
d.) Does the over twenty-one year delay fnorn sentencing and a valid judgnent
entry violate Crim.R. 32(A) and Art. 1 section 16 of the Ohio Constitution, Ohio
due process clause?
6
PRC}POSITZON OF LAW NU. 1
Crim.R. 32(C) mandates that the judge who presided over the proceedings which
culminated in the judgment, must sign the judgment.
The Ohio Supreine Court has previously determined that "in order to decide
whether an order issued by a trial court in a criminal proceeding is a
reviewable final order, appellate courts should apply the definitions of
'final order' contained in Ft.C.2505.02.° State v. Muncie (2001),91 Ohio St.3d
440,444, 746 N.E.2d 1029, citing State ex rel. Leis v. Kraft (1984), 10 Ohio
St.3d 34,36,10 OBR 237,460 N.E.2d 1372.
R.C.2505.02(B) provides:
"An order is a final order that may be reviewed, affirmed, modified, or
reversed, with or without retrial, when it is one of the following:
"(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment."
Undoubtedly, a judgment of conviction qualifies as an order that "affects a
substantial right" and "determines the action and prevents a judgment" in
favor of the defendan.t.
In entering a final appealable order in a criminal case, the trial court
must comply with Crim.R.32(C), which states: "A judgment of conviction shall
set forth the plea, the verdict or findings and the sentence. ifthe defendant
is found not guilty or for any other reason is entitled to be discharged, the
court shall render judgment accordingly. The judge shall sign the judgment and
the clerk shall enter it on the journal. A judgment is effective only when
entered on the journal by the clerk."
7
At issue is the specific language in Crim.R.32(C) (formerly
Crim.R.32(B)) that states in relevant part: "The judge shall sign
the judgment...". R.C. 1.42 directs that "words and phrases shall be
read in context and construed according to the rules of grammar and
common usage. Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise,
shall be construed accordingly."
According to Black's Law Dictionary, 6I" edition, 1990, under
the legal definition of the word, "The", it states; "in construing
statute, definite article "the", particularizes the subject which it
preceeds and is a word of limitation as opposed to indefinite or
generalizing force of "a" or "an". Brooksv. Zabka, 168 Colo 265,
450 P.2d 653L 655." In this matter, "the" particularizes the word
"judge" and therefore limits its interpretation soley to mean "the
presiding judge". In this matter, Judge Nurre was never "the judge"
and therefore had no authority to sign the entry.
Also, "when a statute contains the word 'shall', it will be
constued as mandatory. When a statute is mandatory, non-compliance
will render the proceedings to which it relates illegal and void."
Fraternal Order of Police v City of Cleveland,(2001), 749 N E 2d
842.
Regardless of the fact that Judge Nurre wrote the phrase, "for
J.Schott" after his signature, Crim.R.32(C) requires strict
compliance. Crim.R.32(C) mandates that since Judge Nurre patently and
8
unambiguously lacked jurisdiction and{or authority to enter the ordere the
judgment is void. It necessarily fol.Zcjas that no appeal can be- taken from a
void judgment. A court of appcals has no jurisdiction over or,ders that are
not final and appealablea Section 3(E) (2), Article IV, Ohio Consti,tuta.on,
"Courts of Appeals shall (emphasis added) have sucti jurisdiction as n;ay be
provided by law to review and affirm, modify, or reverse judcments or final
orders of the courts of record inferior to the court of appeals within the
district." see also RaCo2953.02
The,. state may. claim that having another judge sign the order is a matter. .... ..
of judicial discretiono That argument would fail because again, Crim.R.32(C)
specifically states "the judge" and not "a judge" shall sign the order. Any
other unassigned judge signing that entry wauld render t-he journal entry
incorrectm And knowingly entering an incorrect journal entry is a clear abuse
of discretiora 4 State ex rel. Worcester v. ;Connel I.on 49 Ohio St e 3d 117 551
N.E.2d 183>
The First A-Vellate District Court of Appeals has ruled in State
v. Brock 2003 Ohio 3199;2003 Ohio App LEXIS 2873, that "The failure of the
trial judge to sign the judyment resulted in a ►_7 improperly journal?,Zed
judgment of conviction, and thus ttiere is no conviction at all and no final
appealable order." : r r
in State v. Anderson 2006 C3hia 3905; 2006 Ohio Appa LEXIS 3874 tht- Eighth
Appellate District ruled as they fiave consistently held that, „CrimeRd32(C)
provides that the judge wrio presides over the proceedings which cu.imiraated in
the judgment must sign the judgment." (paragraph 2.)
9
State v. Love No.25475, 2011 Ohio 3355, the Ninth Appellate Dist. held,
"Lowe's judgment of conviction is signed by the judge who presided over his
trial. Regardless of the propriety of the assignment, the 1udgnent complies
wi.th the requ.irements of Baker, was appealable and is not void."
According to this analysis, the Ninth Dist. Court of Appeals holds that if
the judgment of conviction was signed by a judge that did not preside over the
trial, it would not comply with Baker, woul:d.not be appealable and would be
void.
State v. Rhodes 1978 Ohio App. LEXIS 10344 the Tenth Disfi. vacated the
judgment in a death-.penalty case-because "both the death warrant-andjudgmenrt
entry were approved by judges other than the trial judge who heard the case.
The approving judges "signed for" the trial judge. There was nothing in the
record, however, indicating that the judge before whom the defendant was tried
was unable to perform the duties of the court. Ohio R. Crim.P. 25(B)
inferentially commanded that unless unable to do so, the judge who presided at
a criminal trial had to also preside at post-conviction proceedings, including
sentencing. Further, Ohio R. Crim.P. 32(B) required that the judg€nent of
conviction contain the plea, verdict, findings and sentence and that it be
signed by the judge."
State v. Fitzpatrick 1994 Ohio App. LEXIS 1835 ( dissenting ) "Cri.m. R. 25( B)
states that a new judge may be designated after a verdict or finding of guilt,
if the original trial judge is unable to perform his or her duties "for any
reason". In this case, no reason was given.
10
In State v. Carlozzi 1992 Ohio A22. LEXIS 395 the Eighth district held,"
The judgment of conviction which set forth the appellantys plea of guilty,
however, was not signed by the Administrative Judge who originally took the
appellant's pleaa * * * The journal entry of ***, which allegedly
journalized the appellant's plea of guilty, was defective absent the signature
of the Administrative Judge and resulted in the appellant's denial of due
process. Cf. State ve Tripodo (1997), 50 Ohio St.2d 124. Thus, this
irregularity of proceeding also requires this court to reverse the appell.ant's
plea.of.quilty a2d reinstate the original six counts of the indictmerits. Cf.
5tate v. Ginochio (1987), 38 Ohao App.3d 105; State v. E11in2ton (1987), 36
Ohio App.3d 76."
Also in State v. Brock 2003 Ohio 3199; 2003 Ohio App. LEXZS 2878 53 the
First Appellate District stated that, "a judgment of conviction is required to
confer jurisdiction upon Appellate courts." Further in paragraph five the court
held, "we have a judgement that is not signed by the trial judge who conducted
the trial ***" "Thus, it is the trial judge's signature that is necessary
to comply with Crim.R. 32(C)."
Instead of following their own precedents, the First Appellate District
ignored these cases and dismissed Appellant's petition. The Supreme Court has
held that a judgment of conviction must contain its four elements. Appellant's
sentencing entry did not contain the third required element, the signature
of the judge. It is as much of a requirement as the other elementsd Appellant
is not seeking that this.court rekfrite Crim.R. 32(C). Only that it enforces
the rule as written when a lower court refuses to. see also State v. Lester,
130 Ohio St.3d 303 (2011).
11
PRQFOSITION OF LAW NC). . 2
IT IS AN ABLJSE OF DISCWI'ION WHFN AN APPELLATE COJE'I" S DISMSSAli OF
A.PPII,.LANI" S WkLL-SUPPOR'IE7 PETITION FOR WRIT OF PRC)HIBITION AND NIANDAMUS IS ^3Ad,^
SOLEY ON APPELIM' S INAOCURATL AND UNSUPPORTED Nl7I°ION TO DISMISS.
An abuse of discretion is more than an error of law or judgment ; it impli.es
that the court's attitude is unr.eanonable, arbitrary or unconscionable."
Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140,
quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 1-6 0.0. 3d 169, 404 N.E.2d
144.
In this instance the court's attitude is unreasonable and arbitrary because it
dismissed the petition based on the Appellees inaccurate, z page boilerpl.ate
rnation to dismiss. Appellees rriotion a.ncorrectly stated that a writ of prohibiti.on
is on.ly used to prevent a trial court from taking some action and a ma.ndainntis is
only used to order a trial court to take some action. Appellees cited no
authority.
Appellant, on the other hand, relies on several well-settled p,recedents of the
Ohio Supreme Court to clearly demonstrate that a writ of prohibition is also used
to corxect the results of a p-rior jurisdictional unauthorized actions.
State ex rel. Mayer v. Henson 97 Ohio St.3d 276, 2002 Ohio 6323; 779 N.E.2d
223. "If a lower court patentl-v and unambiguous-ly lacks jurisdiction to proceed
in a cause, prohibition and mandamus will issue to prevent any future
unauthorized exercise of jurisdiction and to correct the results of prior
jurisdictional unauthorzzed actions."
State ex rel. Lornaz v. Court of Corn;:non Pleas of Portage Ctv. (1988) 36 Ohio
St.3d 209, 212 522 N.E.2d 551. "Ordina.rily, prohibition is issued to prevent the
unauthorized exercised of judicial power. Fiowever, in State, ex rel. Northern
,12
Ohio Te1. Co. v. Winter, we allowed the writ not only to prevent future action by
a court that was about to exercise unlawful judicia.l power but to invalidate an
order already made."
Furthermore, Appellant has also clearly inet the requirements of a writ of
mandamus. The Supreme Court of Ohio has consistently held that in order for a
writ of mandamus to issue the Relator must demomstrate:
l. ) that he bas a clear lega_l right to the relief prayed for;
Appellant asserts that his judgment of conviction does not corrp:Iy with
Crim.R.32(C). In State ex rel. Culgan v. Medina Cty. Court of Corm7on Pleas, 11.9
Ohio St.3d 535, 2008 Ohio 4609, 895 N.E.2d 805 t 10-11 this court held that (a
defendant is entitled to a sentencing entry that compla..es with Crim.R.32(C)) In
State v. Klein, 1998 Ohio App. LEXIS 5757 the First Appellate District went to
considerable length to explain why strict compliance with Crim.R.32(C) is
required yet this ruling ignores Appellant's clear legal right to a judgnent of
conviction that complies with Crim.R.32(C).
2.) that respondents are under a clear legal duty to pertoun the acts;
In State v. Baker 119 Ohio St.3d 197, 2008-Ohio-3330, 893, N.E.2d 163 1f21,
this court stated that "Crim.R.32(C) was promulagated to notify a defendant t7at
a final judgment has been entered in a criminal proceeding and that the time
frame for filing an appeal has begun to run." This court futher stated in ,[29
Baker, supra that "unless a defendant in prison were to seek mandamus or
procedendo for a trial court to prepare a new entry, appellate review of the case
wbuld be ijnpossible." Therefore, because appellant has a clear legal right to
appeal, Appellees have a clear legal duty to provide a Crim.R.32(C) compliant
entry for the purposes of appeal.
13
3. that Relator has no plain and adequate .ramer3y in the ordinary course of
law.
In State ex rel. Culga.n.1(9 supra, this court stated, "We have held that a
sentencing entry that violates Cram.R.32(C) renders that entry nonappealable."
Therefore, Appellant has no adequate remedy in the ordinary course of law
because he cannot appeal an order that is invalid for appeal purposes.
In order for prohibition to lie, the following three requirements must be
satisfied.
1-) the court or officer against wham it is sought is about to exercise
judicial or quasi- j udicial_ power.
Appellant sought to prohibit the Hamilton County Court of Corrrmn. Pleas and
specifically, Judge ibnald L. Schott and Judge Thomas C. Nurre from taking
further unauthorized actions regarding the enforcement of Appellant's
conviction and sentence. As a resu,lt of their previous actions, the appellate
courts and the ODRC has been enabled to exercise unauthorized jurisdiction in
continuing Appellant's sentence and will continue to do so if this writ is
denied.
2. the exercise of such power is tmauthorized by law.
Neither Judge Schott or Judge Itiurre were officially assigned or reassigned
to preside or take any action in Appellant's case. Authorized jurisidiction in
this matter regarding the above stated judges and the OAPA has yet to be
established. Without that determination established, they as well as the
ODRC's contiuing exercise of power is unauthorized by law.
3. it will result in injury for rahieh no other adequate remedy exists.
Appellant has also met this prong. Appellant has deanonstrated that the Ohio
14
Adult Parole Authority wi1l_ continue to exercise unauthorized authority and
will continue to deprive Appellant of his liberty without due process. And
again, in State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio
St.3d 535, 2008 4609, 895 N.E.2d 805 1(9 this court stated, "We have held that a
sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable."
Also, as stated in the above argument, a request for a revised sentencing entry
is not an adequate remedy in this instance because although a resentencing
could restore Appellant to the position he was in before the direct appeal of
right was taken, it cannat give him back the time the parole board has taken.
The First Appellate District Court of Appeals also abused its d.iscretion
when it dismissed Appellant`s petition w.ithout a meaningful review. Had they
given the petition a meaningful review they would have concluded that there
were no valid grounds to support disrnisssal. The United States Supreme Court
has held that in order to survive a Motion to Dismiss, the complaint must offer
factual support for the legal conclusions drawn within. Based on Ohio case law,
plaintiffs must only show some set of facts that would entitle them to relief.
In this case, Appellant has offered his judgment of conviction entry that
was signed by a judge other than the presiding judge, without authorization. In
addition to the entry, Appellant relies on Crim.R.32(C), Cra.m.R.25(B) and
numerous supporting First Appellate case authorities as factual support for the
legal conclusions that were drawn within the dismissed petition.
'I'he Ohio Supreme Court has held that before the court may dismiss the
complaint, it must appear beyond doubt that plaintiff can prove no set of facts
warranting a recovery. Appellant proved that Judge Nurre signed the judgnent of
conviction entry in direct violation of Crim.R.32(C) and Crim.R.25(B). And
15
that Appellant is entitled to a judgnent entry that complies with Crim.R.32(C)
and State v. Baker supra.
The Ohio Supreme Court also held that as long as there is a set of facts,
consistent with the plaintiff's complaint, which wnul>d allow the plaintiff to
recover, the cot.irt may not grant a defendant's Motion to Dismiss. Appellant's
Petition for Writ of Prohibition and Mandamus clearly contained sufficient
factual matter to state a claim to relief that was plausible on its face. The
petition included factual content that allowed the court of Appeals to draw the
reasonable inference that the Appellees are liable for the misconduct alleged.
The Appellee cited no case authorities in support of d3smissal., conceeded to
the claims asserted in Appellant's petition and offered no defense. Instead of
offering a defense, Appellees deliberately attempted to mislead the court by
misrepresenting the facts of the petition and the history of the case.
Appellees misrepresented the facts of the petition when they clairned in their
n-otion to discniss that Appellant wasn't "seeking either type of relief"
afforded of prohibition and mandamus. Appellant presented the type of
prohibition and mandamus relief he was seeking in his sworn "affidavit
specifying the details of the claims sought." In claim three Appellant clearly
stated, "Rel.ator seeks to prohibit Judge Nurre and the Hamilton County Court of
Corrrnon Pleas from exercising further jurisdiction to enforce the invalid
judgnent of conviction or taking any other unauthorized actions: Apfx-,I.tant also
explained various other examplea of unauthorized actions taken.
Appellant's sworn affidavit specifying the details of the claims sought futher
constitutes clear and convincing evidence that Appellees contentions are
oornpletely false.
16
In Ballard v. State, 8th Dist. No. 97882, 2012 Ohio 3086 1[16-17, 28 the
court ruled that "the trial. court erred in granting the state's unsupported
mtion for stmgnary judgment contrary to the evidence of Defendant's
Affidavit.,"
Appellees further misrepresented the facts of the case when they contended
that this matter had been affirmed on appeal. The issue of Crizn.R. 32(C) and
Crim.R. 25(B) violations has only recently been discovered.
Appellant seeks a valid judgnent of conviction that complies with
Crzm.R.32(C) and that the court of appeals corrects the results of the invalid
judgnent of conviction. Not only does the Appellee's iMotion to Dismiss not
support dismissal, but Ohio law does not support dismissal.
17
PROPOSITION OF LAW NO. 3
The judgment entry is also invalid because it was not signed
under the circumstances described in Crim.R. 25(B).
Crim.R.25(n) provides that "if for any reason the judge before
whom the defendant has been tried is unable to perform the duties of
the court after a verdict or finding of guilt, another judge
designated by the administrative judge **^ may perform those
duties."
"Therefore, the power to reassign a case to another trial court
judge in the multi-court division, rests soley with the
administrative judge. In this case, the administrative judge did not
exercise that Crim.R. 25(B) power and the order signed by the judge
is void." "Trial courts cannot circumvent the rules out of their own
sense of efficiency. If the assigned trial court is not available,
the rules and procedures of Crim.R. 25(B) and Sup.R.4(B) must be
followed.0 State v. Torrestoro Ohio App.3d, 2012 Ohio 601, N E
2012 Ohio App. LEXIS 521 P-8.
The state may claim that the act of Judge Nurre signing "for"
Judge Schott was a ministerial act and is a permitted exception under
these circumstances. However, the doctrine of "expressio unius est
exlusio alterius" applies in this matter. "Under this maxim, if the
statute specify the effects of a certain provision, the other
exceptions or effects are excluded." see IIeatty v. Alston 40 Ohio
18
App.2d 545; 320 N E 2d 681• 1974 Ohio ApR. LEXIS 2663• 69 Ohio Op 2d
466. In this instance, a ministerial act is not a permissible
exception and is therefore excluded.
The Supreme Court confronted a Crim.R. 25(B) issue in a case
where a different judge signed the death writ rather than the
visiting judge who had presided over the capital trial and who had
sentenced the defendant to death. State v. Robb t20QOl 88 Ohio St 3d
59, 2000 Ohio 275, 723 NE 2d 1019. Besides stating that the signing
of the writ was merely ministerial, the Court pointed out Crim.R.
25(B)'s language "if for any reason" the orig'inal judge is unable to
perform the duties of the court. Id. at 87 . The Court concluded:
"Although the file does not explain why another judge signed the
writ, defendant still `has not contradicted the presumption of
regularity accorded all judicial proceedings.'" Id. Thus, the Court
presumed that the original judge was unable to perform.
In this matter, it is not logical to presume that the judge was
unable to perform his duties immediately following sentencing.
Appellant has demonstrated that this was not merely a ministerial
act. It required the exercise of a judge's discretion and clearly
contradicted the presumption of regularity accorded all judicial
proceedings. Judge Schott refused to sign the judgment entry he had
no confidence in and the prosecutor proceeded to go "judge shopping"
until he found a judge that would sign it. The trial court has no
records of any assignment or reassignment that authorized either
19
judge to preside during or after the trial or to perform the duties
of the presiding judge.
It is clear from the record that Judge Schott presided over the
entire proceedings against Appellant including pronouncing sentence
on 1-29-92. However, Judge Nurre signed the entry for Judge Schott
also on 1-29-92 without any justifiable reason and no authorization.
Sup.R. 7(A) requires that a judgment be filed and journalized within
30 days of the decision. There is no requirement that a judgment be
filed and journalized on the same day. The fact that.Judge .Nurre..
signed the entry instead of Judge Schott on the same day of
sentencing, when Judge Schott was clearly able to, should cast doubt
on any actions taken by Judge Nurre and Judge Schott in this matter.
Appellant also relies on two Eighth Appellate district cases for
the proposition that all issues in.a case must be determined by the
original judge absent any notice in the record of reassignment to
another judge. Rosenberq v.Gattarello (1976), 49 Ohio App. 2D 87,
93-94, 359 N.E.2d. 467, Zurowski v. Cuyahoga Cty. Bd. Of Revision,
1982 Ohio A. LEXIS 12359 (Oct. 28 , 1982 ), Cu aho a A . No. 44537,
unreported, p.3. These cases held that the case record must show
unavailability of the original judge and that a delay in ruling on
the matter would be prejudicial before another judge may take.,any
action. (emphasis added)
The Supreme Court, in BeattV v. Alston (1975), 43 Ohio St.2d.
126, wrote that Cri.m.R. 25(B) "inferentially commands that unless
20
able to do so, the judge who presided at a criminal trial must also
preside at post-conviction proceeding, including sentencing>" The
word "command" is defined in Webster's New International Dictionary
as "to direct authoritatively; order; enjoin."
Applying Crim.R. 25CB), to this case, this court should note
that the record is devoid of any showing that Judge Schott was unable
to perform his judicial. duties. No reason whatsoever has been
advanced to explain the reason Judge Nurre signed the entry to a case
he did not preside over. The substitution of judges was not in
accordance with and therefore violated Crim.R. 25(B) .
Had there been a reassignment of the case to Judge Nurre, it
would have had to be accomplished through a journal entry that had
been executed by the administrative judge and journalized by the
clerk of the trial court. Absent such a journalized judgment entry,
the judge assigned to hear the transferred case possesses no
authority.
According to Crim.R. 55(A) (criminal appearance docket), "the
clerk shall chronologically note in the appearance docket all e
process issued and returns, pleas and motions, papers filed in the
action, orders, verdicts and judgments. The notations shall be brief
but shall show the date of the filing and the substance of each
order, verdict and judgment."
It is well settled that journalization requirements are not
empty formalities. Where a court issues a decision verbally or even
21
in writing, but it has not been 3ournalized, the judgme;it is not final. A
case disposition entered by a clerk that does not reflect a properly journalized
order or judgment of the court has no force or effect under Ohio law. Statev...... ..----.,
Ginochio (1987), 38 AM®3 105;.
In this case, the record supports.the.fact thatthe Hamilton County Clerk
of Courts had been exceptionally thorough in their duties to record all of the
activities of this case. Therefore, had there been a Certificate of Assignment
from the Chief Justice of the Supreme Court or a Journai. Entry reassigneing
Judge Nurre from the administrative judge as required, or even a notification
of reassignment of Judge Nurre,,they would have promptly been journalized and
appeared on the appearance docket. The only explanation as to why they were never
filed and journalized.is because no such orders existed.
Appellees clearly admit this fact in their Motion to Dismiss. Had they contended
otherwise, they would have already produced these vital documents.
In Berger v. Berger (1981), 3 Ohio App.3d 125, 130, 443 N.E.2d 1375, the
court held that "transfers violate governing procedural rules if the record does
not show they have been made by the proper authority and with a proper reason."
In State v. Miller 2012-Ohio-2132 2M12 WL 1664145 the Third Di.st. held in
ST17., °'The record reveals, however, that there was no assignment by the Supreme
Court of Ohio. Therefore, the 'assigned'I trial judge lacked jurisdiction over
the matter due to erroneous assignment."
According to Plant Equip. v. Nationwide Control Service Inc. A.K.A. Nationwide
Control Sevice 798 N.E.2d 1202 (Ohio Appe 1 Dist. 2002) the First Dist. Court
of Appeals held that "A judgement can be void not only for lack of jurisdiction
but also where the Court acts in a manner contrary to due process."
22
PROPO6ITION OF LAW N(O. 4
The Appellate Court's and Adult Parole Authority's decision are void becausethey both u-ere premised upon a sentencing entry that violated. Crim.R<32(C).
A judgment of conviction is jurisdictional. R.C.2953.02,
Crim.R.32(C) Once Appellant was delivered to the permanent detention
facility the authority of the judicial branch over Appellant's
sentence ended. Jurisdiction was then transferred to the penal
institution of the executive branch.This conference of jurisdiction
is. made possible due to the judgment of conviction. The January 29,
,r^ ^ .^. ,,
.L J n`. J 4tdgll6ril C-. entry is the sole '^ .r, .^ ^tn. 9..Y?.ra. ^ ppvij 7 1
u:i c^-
in .. .. ....'Yutiz'l'r i't^ fv ^^'c ' u x.<vj ra i^
any way,shape or form.
In State v.Bloomer, 122 Ohio St. 3d 200, 2009 Ohio 2462, 909
N.E.2d 1254 , this court held that, "In the absence of a proper
sentencing entry imposing postrelease control, the parole board's
imposition of..postrel.easp control cannot be enforced." This ruling is.
instructive in regards to the parole board's authority and
Appellant's claim. Appellant asserts that in the absence of a proper
sentencing entry alone, the Adult Parole Authority had no
jurisdiction over Appellant and any jurisdiction exercised by the
A.P.A. was a jurisdictional unauthorized action.
Imposition of punishment is a function of the judicial branch of
government. Ex parte United States (1916), 242 U.S. 27 41-42, 37
S.Ct. 72 , 61 L Ed The executive officers of the penal institution
carries out the judgment of conviction. In this instance, the
23
executive officers carried out a judgment that was invalid on its
face. The First District Court of Appeals affirmed a judgment entry
on Direct Appeal that was invalid on its face despite their long
standing scrupulous adherence to Crim.R.32(C). This failure to
respect precedent violated Appellant's Constitutional rights to due
process and statutory right to a Cri.m.R.32(C)/Baker compliant
sentencing entry.
Appellant also relies on the Ohio Supreme Court's ruling in
State v. Bi.lli.ter 2012 Ohic 5144• 212 Ohio LEXIS 2725. In Billiter
at P-12 this court held that, "the trial court's incorrect sentence
for postrelease control in 1998 was insufficient to confer authority
upon the Adult Parole Authority to impose up to three years of
postrelease control on Billiter." According to this ruling the APA
had no authority to continue Appellant's sentence from 6/10/2005 to
,8/10/20.11 and again fr.om. 8/10%2011_to_8LQ1/_2018 because the trial__..______
court's noncompliant sentencing entry did not confer upon them the
jurisdiction to do so.
Under its authority as announced in Ex parte Tischler, 127 Ohio St.404
410, 411, 188 N.E. 730, at no time did the parole board have the right to
take the matter.up and consider it, to accord to the Appellant the benefit of
his good time Or to deny it, to release him or continue his sentence.
24
PROPOSITION OF LAW No.5
The undue delay has divested the trial court of jurisdiction to resentenceAppellant.
Appellant asserts that the over twenty one year delay from sentencing and a
valid judgment entry on the matter violates Crim.R.32(A) and Art.I section 16
of the Ohio Constitutionr Ohio's due process clause. Artal section 16 of the
Ohio Constitution provides that justice shall be administered without denial
or delay. Crim.R»32(A) mandates that "sentence shall be imposed without
unnecessary delay." In Neal v. Maxwell, the Ohio Supreme Couru held that a
reasonable delay in imposing sentence does not invalidate a sentence. 175 dhio
St«201, 202 192 N.E.2d 782 (1963). Subse"-ently, appellate courts have held
that a delay in sentencing must be reasanablr in orcler to be valid and that
any unreasonable delay invalidates the senLence® State v. .Brown, 152, Ohio
App.3d 8, 2003 Ohio 1:218, 786 Tv E.2d 492 (7th Dist ); State v. Johnson, 12th
DistmNo. CA2002-07-016, 2003 Ohio 6261 (more than six-year delay between
guilty plea and sentence divested trial court of juris;;ictiv^ to sAntence
defendant); Warren v. Ross, 116 Dhzo 275, 688 V.F,.2c3 3 (1:.ith Di:st.
199E) (without an explanation for delay, trial couz-t lost jurisdiction to
revoke defenrlant °s driver's license as more than E our years e.Zapsed batwQen
conviction and the cirder purport.inc.,^ to revoke the ly cen5e) ; Cit flf 14i llouqhbv
v. Lukehart, 39 Ohio App.3d 74, 529 N .E.2d 206 {.i.IL,"► Dist i09t?7} (without a
substantive reason, the trial court was divested of jurisdiction to impose
sentence as a sixteen-month delay between the time of arrest and sentencing
was unjustzfied and lengtixy.)
Although this case. is factually distinguiaha.bZe from the foregoing, the
reasoning is nonetheless irsstnuctive. On January 29, 1992, Judge Donald L.
Schott "pronounced" sentence upon Harris. But until a valid final order ia
25
filed with the clerk, there has been no sentence officially "imposed"
upon Appellant.
In State v. Eiattle 1989 Ohio App.LEXIS 2536, the First Appellate
District held, "a review of the record clearly illustrates that the
signature of the trial judge was not affixed upon the judgment entry
until September 14, 1987. It was at that time that the judgment of
conviction became effective."
In this case, since a valid signature is not affixed to the
judgment of conviction (to date), the judgment of conviction has
still not become effective. Therefore, due to the undue delay, the
trial court has been divested of jurisdi.ction to resentence
Appellant.
26
CONCLUSION
When Prosecutor Longano had Judge Nurre sign the judgnent of convic-tion, they
were both acting in "bad faith". Judge Nurre's signature was not prompted by an
honest mistake as to his duties, but by some interested and sinister motive. It
was not bad judgnent or negli.gence, but rather the concious doing of a wrong
because of dishonest purpose or moral obliquity.
There are at least four authorizing docunents that were absolutely necessary
in order to comply with Appellant's fundamental rights to due process. A journal
entry for Judge Nurre's original assignment, a journal entry from the
administrative judge reassigning Judge Schott to the case, a Certificate of
Assignment from the Chief Justice of the Supreme Court authorizing Judge Schott
to preside and the journal entry reassigning Judge Nurre on the day of sentencing
that would allow hun to sign the judgment of conviction. There is no evidence
that a single one of these docunents ever existed in this case, clearly
contradicting the presunption of regularity accorded a11. judicial proceedings.
Because of the initial unauthorized exercises of jurisdiction and authority
by Judge Nur.re and Judge Schott, the nunber of subsequent irreparable
unauthorized actions have compiled. For instance, the most irreparable action is
the extension of confinement that the APA has imposed upon Appellant. It is
irreparable because "tirne" cannot be given back to Appe.ll.ant once it has passed.
Remanding this case to the trial court to furnish Appellant with a
Crim.R.32(C) and Baker compliant judcfnent of conviction does not correct the
jurisdictional unauthorized actions of the APA. After serving over 21 years on an
invalid judgnent of conviction order that is void on its face, vacating this
conviction is the only fair and equitable solution. Appellant prays that this
27
oourt corrects the results of these prior jurisdictional unauthor?zed actions and
those corrections include vacating this conviction. It is so prayed.
Respectfully submitted,
CERTIFICATE OF SERVICE Lionel Harris, pro se
I hereby certify that a copy of the foregoing Merit Brief of Appellantwas forwarded by regular U.S. Mail to Scott M. Heenan, Assistantprosecuta.ng attorney, Hamilton Couraty, 230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202 on this a & day of July, 2013.
Lionel Harris, pro se
2 £3
IN THE SUPRENlE COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
V.
Lionel Harris
Defendant-Appellant.
Case No. B-9167$9.
On Appeal from the Hanulton• County Court of Appeals
First Appellate District
C.A. Case No. C-I30260
NOTICE OF APPEAL OF APPELLANT LIONEL HARRIS
Lionel Harris#252-066Madison Correctional Inst.P.O. Box 740London, Ohio43140-0740
Defendant-Appellant, Pro Se
Scott M. HeenanAssistant Prosecuting Attorney230 East Ninth Street, Suite 4000Cincinnati, Ohio45202
Counsel for Appellee, State of Ohio
MTICE OF APPFAS, OF APPEI,I,ANr LZOABFL IPRRIS
Appellant, Lionel Harris hereby gives notice of appeal to the Supreme Cour-t
of Ohio from the judgnent of the Hama.lton County Court of Appeals, First
Appellate District, entered in the Court of Appeals Case No. C-130260 on May 30,
2013.
This is an appeal of right from an Original Action. This case involves a
Crim.R.32(C) violation and is of great general interest.
Lionel Harris
Lionel Harris#252-066Ma. C. I.P.O. Hox 740London, Ohio43140-0740
Defendant-Appel.lant Pro Se
l
COMFICATE OF SEWICE
I hereby certify that a copy of the foregoing Notice of Appeal was forwarded
by regular U.S. mail to Scott M. Heenan, Prosecuting Attorney, Hamilton County
Cincinnati, Ohio on this jr day of June 2013.
Lionel Harris#252-066
Defendant-Appellant, Pro Se
2
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON CC?UNTY, OHIO
STATE OF OHIO EX REL. .AI'PEAI. NO. C-13026oLIONEL HARRIS,
Relator,
vs ENTRY DISMISSING PETITIONFOR'tNRIT OF PROHIBITIONAND MANDAMUS
HAMILTON COUNTY COURT OFCOMMON PLEAS, et al.,
Respondents.
This cause came on to be considered upon the petition for writ of prohibition
and for writ of mandamus, and upon the motion to dismiss said petitzon.
The Court finds that the motion to dismiss is well taken and is granted.
The petitxon for writ of prohibition and mandamus is dismissed.
To the clerk:
Enter upon the journal of the court on M AY 3 0 2013 per order of the court.
I .By: bw&MZ (Copies sent to all counsel)
Presiding Judge
AFI-JDAVI`I' OF INDIGENCY
IN THE SUPREME COURT OF 01110
Affidavit nf Indigency
_^ ^ J ..'(^4 ♦. ^:
0
1.^.,^i
- 4--^ ^, ^ a,.. .^+ '::f'
I, Lionel Harris, do hereby state that I am without the necessaryfunds to pay the costs of this action for the following reasons. Due_to my present incarceration, I am without sufficient income or otherfznancial. resources to be able to pay these costs.
Upon my release, I will be in a severe financial situation as theresult of having to reestablish myself into the community. My entiretime and limited resources will be required to promote a harmoniousreturn. Food, shelter, clothing and transportation, the essentialsfor daily survival, must all come from my very limited resources.The inability to care for these essentials due to diverting funds inorder to pay these court costs may not be in the best interest ofsociety, placing undue hardship upon this defendant. Payment of thiscost amount would be akin to additional punishment in my currentfinancial strait.
Pursuant to Rule 15.3, of the Rules of Practice of the Supreme Court of Ohio, I am requestingthat the filhng fee and sjep,Urity deposit;-afnapplicable, be waived.
_
-------r?.ffiant ---- --------
;
Sworn' to , or affirmed, and subscribed in my presence this day of
20^.
Y-)a^^1^Notary Public
My Commission Expires:
c^ e Laura CcludiiiNotary Pubi#c°State of OhioM Commi ion Ex ires
D o r ^`l
[Note: This affidavit must be executed not more than six months prior to being filed in theSupreme Court in order to comply with S.Ct. Prac. R. 15.3. Affidavits not in compliance withthat section will be rejected for filing by the Clerk.]
date; 01/20/22code: GJEI
judga: 030form: B
^ * ^ •^ * ^ ^ ^ * ^ ^^ ^.
* E PO T E R E D *
DATE
IMAGE:
THE STATE OF OHIOVS.
THE STATE OF OH I 4, NARfl I LTOA1 COUNTY
COURT OF COMMON PLEAS
Ej ^.,..f7d
..m.._._..._.._ . ^ _ __ ..
Jud D0 CF^OTT
NO. B D 1 8 9
JUDGMENT ENTRY : SEPdTENCE :
(NCARCERATI4N
L. I OfdEL HARR f S
Defendant was present In open Court with Counsel TIM SMITH A 1N.MALL4RY,JR,csn the 29th day of January 1492 for sentence.TI;a court €nforwwod ttie defendant that, as the deiendant-we-€_P Rngar,_.._after trial by jury, the defendant had been found gu€Ity of the o;fgnse(s) atAGGRAVATED MURDER 2003 . 01 R. C , COUNT 1( NQ '.^,!`^"EC i F I CAT i Ofd )
The Court afforded defendant's counse€ an opportunity to speak on behalf ofthe defendant. The Court addrossed the defendant personally and asked (t thedefendant wished to make a statemerit In the defendant's behalf, or presentany Inforre►ation €n mlttgatlon of pundshment.
Daffend.ant Is sentenced to be Iniprisonad In Department of Corrsct€onsFOR A 'I'ERN! OF L € FE .( EL f Q i B E L! TY FOR PAROLE € M T'AENTY (20) YEAR S )PAY COSTS.(426,000.013 FINE)
r^
%
^Defendant was notified r,rP the right to appdal as required by Crim. R 32(A)(2)
%
COIJRT OF APPEALS
FIRST APPELLATE DISTRICT
I-IANIILTC)N COUNTY, OHIO
STATE EX REL. LIONEL HARRIS, NO. C-130250
Realtor,
vs.
HAMILTON COUNTY COLIRT OFCOMMON PLEAS, ET' AL.,
MOTION TO DISMISS
IZ.espondents.
Lionel Harris has filed what appears to be a petition for postcon:viction relief that
__._.: _.... . he has captioned as a petition for v,-rit of proh:rUitio-a and mandaanus, As this Court
knows, a writ of prohibition is used to prevent a trial court from taking some action,
while a writ of mandamus is used to order a trial court to take some action. Harris is not
seeking either type of relief
Instead, he wants this Court to vacate his conviction because there was no entry
assigning the matter to a visiting judge and the judge that was originally assigned the case
signed the senten.cing entry for the visiting judge. All of that occtirred iillate 1991 and
early 1992. The matter has since been affirmed on appeal. in Case Nos. C-9201 S 1& 158.
The relief that Harris is seeking is not obtainable in via mandanlus or prohibition.
His petition should, therefore, be dismissed.
CLERK OF COURTSHAMILTON COUNTY
MAY -a ^ 201.31f RACY +Jti4fyKLE F-i
GofUiivlt)N PLEAS ?;ol;RTo`a
.. IL ^COURT OF ^^^^AN",'
MAY ". 6 .F €.s 3:3
TRACY VVliVKLLh;^LLriK OF CUURTvHAMILTON CQUNI7'r
1
Respectfully,
Joseph T. Deters, 0012084PProsecuting At^prney
Scott M. 11kha.n:, 0075734PAssistant Prosecuting A. ttorney230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202Phone: 946-3227Attorneys for Respondent
CERTIFICATE OF SFIZVICE
I hereby certify that I have sent a copy of the foregoing Motio to Dismiss, byUnited States mail, addressed to Lionel IHarris, 252-066, : adiso C'rrectional, P.O. Box,...:_:... ..._740, London, Ohio 43140-0740, counsel of record, this da °,; df May, 2013,
Scott M. 14aenan, 0075734PAssistant Pxosecuting Attorney
2
Ohio Parole Board DecisionInmate Last Name:
Harris
Currrnt $earing Ydentitier:
Hearing lvfonth (azutm yyyy) Type Of Hearing:
Aug 2005 Istl2nd FIRST
Offense(s) Of Conviction:
2903.01
Record Number: Date Of I-Iearing:
tthl10I2005
1. Category 13 for the conviction
A. Guidetine Section No.(s): 201
B. Details of the conviction behavior, Only state the facts that support the specific offense category, which eorresponds to the offense(s) ofconvictxon:
Inmate convicted of the Aggravated Murder of Ius wife. This was a premeditated, purposeful kill_ing.
C. The eqtzivalent SB2 sentence range for this (these) sentences(s) of conviction is Life
2. Criminal HistorylR:isk Score: 0
Inmate First Name: # Prefix: Ir.mate Number:
Lionel A 252066
3. 'Che Guideline Range is 0 ~$$$ months.
4. Total Time Served: 164 months . arrived at by - A. Prison Time: 160 nzonths + B. Jail Trme Credit: 4 mwuh.s
TPV Arrest Date:
5. 0 infractions that resulted in a nsw conviction for felony eriminal conduct committed in a prison facilitylor while in custody. Only statethe facts that support the specific offense category, which corresponds to the offense(s) of conviction.
Category for new conviction: Section No.(s): Crimina( History/Risk Score: Guideline Range: I
Details of Conviction Behavior:
DRC3039 E(Rev 1010=3) Distribution: Inmate, Board File, Record Office Page I of 3
Imate, Last Narn ^n jnate
lle^Fig^IrT1S rst Name: # Prefix:
L1O
6. Class Rescission Behavior Guideline Range is 0° 2 months.
A. Q discipinary inSractions involving felonious conduct
1. 6-18 months for each infraction 2: = 0 - 0 months
Details:
B. 0 disciplinary infractions involving threatening conduct against staff and/or possession of a dangerous instrument
l. 6 12 months for each inffaction
Details:
2. = 0 - 0 months
C. 0 disciplinary infractions involving possession or use of alcohol andJor a controlled substance
F 1. 3-6 months for each infraction T2. = 0 0 months
Details:
D. 0 disciplniary infractions involving other misdemeanor conduct
1. 0-6 months for each infraction 2. = 0- 0 months
Details:
E. 1 significant discip]inary infractions
1. 0-2 months for each infraction
Details;
4/1/00 R51
2. = 0 - 2 months
Page 2 , of 3
7. Aggregate Guideline Range is: 4^90 months (#3 +#S +#6 ):
8. Rationale of I>ecision within Aggregate Guideline I2ange:
Inmate was sentenced to a minimum ternu of 20 years by the sentencing court. Offense is aggravated by thebrutal nature in which the victim was shot two times in the face at close range with a sawed off shot,gun.Inmate has acceptable institutional conduct and he has availed himself of several educational programs. Paneldetermined that inmate is not yet suitable for release.
9. A. Circumstaiices related to the offense(s) of conviction, including crimes that did not result in conviction, and any other factors the APA deems
relevant.
B. Based on these additional factors, an additional months should be served from the date of this hearing before release/next hearing.
10.• A. Total Time to be Served: To next hearing ® 240 months
To Release q months
B. Remaining Time to be Served: To next hearing ® 76 months
'I'o Release q - months
* total ttme to be served cannot esceed the mrwimum sentence
1.1:. A. Outstanding Program Achievement q granted ® not granted
B. month credit for the following programs:
C. Adjusted Total time to be Served: _ months D. Adjusted Remaining Time to be Served: months
12. A. Recommendation: CONTINUED 10/01/2011
CON
B.
13. Instnactious/Notes:Haraxs #252-066
14. Iiearing Panel
Board Member Signature:
Board Member:
PD
Fieaning Officer Signature (if applicable):
Hearing Officer (if applicable):
Release on PRD is contingent on good institution behavior and/or reduction from maximum security status. A PRD may be extended for a Class R
violation when the case is reviewed at the PRD Pre-Release Review.
Page J of J
Ohio Parole Board Decisionlnmate Last Nanie:Harris
F'irst Statutory Eligibility Date (m,mm yyyy)June, 2005 Actual
1. Offense(s) Of Conviction:2903:01 Aggravated murder
Aggregate seratence per Journal Entrys 20- Life
2. Parole Violators (if applicable)
q TPV
q PVR EST:
Offense(s) of Conviction:
Inrnate First Name: 4 Prefix: Inmate Number:Lionel A 252066
Type of Hearing:CONTINUED
Sentence:
3A. Ej The mandatoty factors indicated in AR 5120:1-1-07 were considered.
Date of Hearing:08/10/2011
3B. Rationale: Cite specific factors relevant to the offense and offender:
Mr. Harris has served about 20 yrs for his role in this offense which involved the murder of his wife by gunshot. Since his lasthearing, he has minimal discipline but also minimal programs. Mr. Harris' version of the events are quite different that thecase record, thereby negating any insight- he continues to profess his innocence. He showed no remorse or sadness for theloss of his wife. Release at this time would undermine the seriousness of the crime and is not in the interest af justice or thewelfare and safety of society.
4. 7'he above-indicated factors support one or all of the following reasons cited in AR 5120:1-1-07for contintied incarceration_
A. There is substantial reason to believe that the ilimate will engage in further criminal conduct, or that the inmate will notconform to such conditiflns of release as may be established under AR 5120:1-1-12.
B. q There is substantial reason to believe that due to the serious nature of the crime, the release of the inmate into societywould create undue risk to public safety, or that due to the serious nature of the crime, the release of the inmate wouldnot further the interest ofjustice or be consistent with the welfare and security of society.
C. q Ttiere is substantial reason to believe that due to serious infractians of division Ieve15120:9-06 of the AdministrativeCode, the release of the inmate would not act as a deterrent to the inmate or to other institutionalized inmates fromviolating institutionairules.
D. q Not applicable.
A.. Time Served to I)ate: 238 months T'PV Arrest Date (if applicable):
arrived at by -- A. Prison Time: 234 months -f- R Jail Time Credit: 4 months
3. Remaining Time to be Served:
To next hearing 84 months To Release znonths
Remaining time to be served cannot exceed the mnximum senterace
Recommendation: MAJORiTY VOTE CONTINUED
CON
Hearing Panel
rd Member Signature:
ring Officer 5ignatw-epplicable):
Bnard Member:Majority Vote
Hearing Officer iif applicable):
08/01/2018
... *n_ e,,..,, .e,; n;s -i ;-r rn r-vinw end anoroval ov tfie Parole Board Clrair, and is not final until actual reiaase frem custody occurs. The
^^^ ^^^^^ QItrnr^ ^^ ®IiULAW LIBRARY
65 SouTH PRONT STREET, CoLVniavs, OH 43215-3431CHIEF JLTSTICF
MAUREEN O'CONNOR
JUSTICES
PAUI: E. PFEIFER
TERRENcE o'DOiv'vELI.
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SHAItOiv L. KENNEDY
JUDFTH L. FRENCH
WILLIAM A (7'NEILL
Dear Sir:
The materials you requested are:
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DIRECTOR
KEN KOZL:OWST<I
TEiLEPIIOh'E 614,387..9650
FACSIMILE 614.387.9659
4VW W.st2prEIHleCotlI't.OM®, gUv
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C
^..l7^^' iUC0A
e, + r,COURT OF APPEALS
FIRST APPELLATE DISTRICT
HAMILTON COUNTY, OHIO
STATE EX REL. LIONEL HARRIS NO. C-130260
Realtor,
V.
HAMILTON COUNTY COURT OF COMMON
PLEAS, ET AL.,
Respondents.
OURT^^ APPEALS
MAY ^`^ ^om
TRACY Wf NK!„^^CLERK OF ^OORTSc#AMti.l'ON COtJN'r,'
REPLY TO RESPONDENT'S MOTION
TO DISMISS
Respondent's Motion to Dismiss was served on Relator on May 14, 2013. Respondents
assert that a Writ of Prohibition is only used to prevent a trial court froni
taking some action, while a Writ of Mandamus is only used to order a trial court
to take some action. Respondents cite no authority to support these limiting
assertions. (see attached)
Relator, on the other hand, relies on several well-settled precedents of the
Ohio. Supreme Court to clearly demonstrate that a Writ of Prohibition is also
the proper action to bring to correct the results of prior jurisdictional
unauthorized actions.
State ex rel. Mayer v. Henson 97 Ohio St.3d 276, 2002 Ohio 6323; 779 N E 2d
223. "If a lower court patently and unambiguously lacks juriscBiction to proceed
in a cause, prohibit%on and mandamus will issue to prevent any future unauthorized
exercise 4f ju,.kARicti.on and to correct the results of prior jurisdictional(56 Lo ^-- >Z
^-un u horied ^^ns.
ffi:d d ^ 6L.)StatecSE r,.gj::^ :4omaz v. Court of Common Pleas of Porta. e Cty. (1988) 36 Ohio
;;I- c.a^^^
St'.3^3 20 21, ► 2 N.E.2d 551 "Ordinarily, prohibition is issued to prevent the
unauthori^d exet^ise of judicial power. However, in State, ex rel. Northern
1
Ohio Tel. Coe v. Winter, we allowed the Writ not only to prevent futher action
by a court that was about to exercise unlawful judicial power but to invalidate
an order already made."
In the second paragraph of Respondent's Motion to Dismiss, Respondents
adaiit that all of Relator's claims are true. Respondents clearly state, "there
was no entry assigning the matter to a visiting judge and the judge that was
originally assigned the case signed the sentencing entry for the visiting
judge. All of that occurred in late 1991 and early 1992." (emphasis added)
Not only does this admission contradict the presumption of regularity
accorded all judicial proceedings, but Respondents have basically admitted to
a much :larger conspiracy than Relator had initially accused them of. Obviously
Judge Schott has also conspired with the prosecutor and Judge Nurre to attempt
to legitimize an illegal proceeding. With the admmission of Respondent, it is
clear that Judge Schott did not, in fact, refuse to sign the judgment of
conviction because he had a conscious, he didn't sign it because he patently
and unambiguously lacked jurisdiction under Ohio Const. Art. IV section 6(C^
to even preside over the trial. And Judge Nurre clearly had no auth(Drity
to sign it under Crim,R.32(C) because he was not the presiding judge.
Respondents have no defense to Relator's claims and have admitted they are
true. Their Motion to Dismiss is without any supporting authority, clearly
has no merit and should be summarily dismissed. Furthermore, because of
Respondent's admission of wrongdoing, Relator's conviction should not only be
vacated with prejudice, but in the interest of justice, his immediate release
should be ordered by this court.
2
Regardless of Respondent°s explanation for the lack of assignment of the
judges, the fact remains that Relator still does not have a Judgment of
Conviction that strictly complies with Cri.maR.32(C) and complies with the mandates
of State vm Baker, 119 Ohio st.3d 197, 2008-Ohio-3330, 893 N.E. 2d 163. Therefore
there is still no final appealable order.
The state claimed that the matter has since been affirmed on appeal. This
statenient is incorrect. The issue of a non-final appealable order has only
recently been discovered. And in regards to the appeal, it is a legal nullity
because one cannot appeal an order that is invalid for appeal purposes.
Respectfully submitted,
LAIU)Lionel Harris, pro se#252-066P.O. Box 740London, Ohio 43140-0740
CERTIFICATE OF SERVICE
I hereby certify that I have sent a copy of the foregoing Reply toRespondent`s Motion to Dismiss by regular U.S. mail, addressed to theHamilton County Prosecutor at 230 East Ninth Street, Suite 4000, Cincinnati,Ohio 4520-21 on this 16th day of May 2013.
Lionel Harrzs, pro se
3
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HAMILTON COUNTY COMMON PLEAS COURTHAMILTON COUNTY, OHIO
STATE OF C?HTO, APPEAL NO. C-920151C-920158
PLAINTIFF,
vs.
MATTHEW PEARSON,and
LIONEL HARRIS,.DEFENDANTS,
Case No. B-916789
COMPLETE TRANSCRIPT OF PROCEEDINGSVOLUME I OF X
APPEARANCES :
THOMAS LONGANO, ESQ.,GUS LEON, ESQ.,
On behalf of the plaintiff.
DALE SCHMTDT, ESQ.On behalf of the defendant, MatthewPearson.
WILLIAM MALLORY, JR., ESQ.,TIMOTHY SMITH, ESQ.,
On Behalf of the defendant, Lionel Harris.
BE IT REMEMBERED that upon the hearing
of this cause on October 22, 1991 and January 13
through January 29, 1992, before the Honorable Donald
Schott, one of the visiting judges of the said
Hamilton County Common Pleas Court, the following
proceedings were had.
a
1
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5
6
7
8
9
10
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C E R T I F T C A T E
I, Gayle Purdue McMurray, an official
shorthand reporter for the Court of Common
Pleas, duly appointed by the Court to report the
proceedings in this cause, do hereby certify
that the foregoing ten volumes pages eonstitutes
a true and complete transcription of the notes,
taken in stenotypy, of the proceedings in this
cause.
IN WITNESS WHEREOF, I have hereunto set
my hand at Cincinnati, Ohio this 31st day of
August, 1992.
t -^/. . '4 1
Gayle Purdue ^ McMurrayO£ficial Sho4thand Reporter t,Court of Common PleasHamilton County, Ohio
J
KT
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO EX REL. APPEAL NO. C-13o26oLIONEL HARRIS,
Relator,
vs ENTRY DISMISSING PETITIONFOR WRIT OF PROHIBITIONAND MANDAMUS
HAMILTON COUNTY COURT OFCOMMON PLEAS, et al.,
Respondents.
This cause came on to be considered upon the petition for writ of probibition
and for writ of mandamus, and upon the motion to dismiss said petition.
The Court finds that the motion to dismiss is well taken and is granted.
The petition for writ of prohibition and mandamus is dismissed.
To the clerk:
Enter upon thejournal of the court on MAY 3 o 2013 per order of the court.
By: (Copies sent to all counsel)Presiding Judge
COURT OF COMMON PLEAS
CRIMINAL DIVISION
HAMILTON COUNTY, OHIO
STATE,OF.OHSO
Plaintiff-ResENIERED6 11.3 199bI
THE CLEA'K SHALL ^VE NOTICETO PARTIES PURS NT TO CIVILRULE E3 WHICH v-tLL vE TAXcDAS CC'T3
NO. B-9106789
vs. FINDINGS OF FACT^ CONCLUSIONS OF LAW AND
LIONEL HARRIS EMqTRY DISMISSING PETITION4>'0o, TO VACATE
Defendant-Petitioner
This matter is before the Court on the defendant's petition to
vacate, the State's memorandum in opposition and the entire record.
The defendant is asking the Court to set aside his sentence. The
Court finds that this issue can be resolved without an evidentiary
hearing.
The Court makes the following Finding of Fact:
(1) The defendant was convicted of aggravated murder on October
10, 1991 and was sentenced to life in prison.
(2) There is no evidence from the record and no documentation to
support the defendant's claim of an impartial jury member.
The Court makes the following Conclusions of Law:
(1) The doctrine of res judicata bars the claims of an impartial
jury and withdrawal of guilty plea that could have been raised
-406- on direct appeal or were clearly evidence from the record.
State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967)A
Therefore, this defendant's petition to vacate is hereby
dismissed as provided in R.C. 2953.21(C).
Counsel:
e NurreJu
Jennifer E. DayAssistant Prosecuting Attorney914 Main Street, Suite 500Cincinnati, Ohio 45202
Lionel Harris#252-066Lebanon Correctional InstitutionP.O. Box 56Lebanon, Ohio 45036
El^TE.^IDNOU.11E 19961
--dmm-
IN TfiE COURT OF APPEALSFIRST DISTRICT
HAMILTON COUNTY, OHIO
Lionel Harris
Relator,
Petition No. C-130260
V.
Hamilton County Court of
Common Pleas et al.
1000 Main St. Cincinnati
Ohio 45202
Respondent.
Tria1_ No. B 916789
AFFIDA1(IT SPECTFYING '1'HE LETAILS ®F CLAIM5 SOUGIiT
Claim one:
The judgment of conviction was not signed by the trial judge who conducted
the trial, but was signed by a judge who had no connection with the trial. The
failure of the trial, judge to sign the judgment resulted in an improperly
journalized judgment of conviction, pursuant to the required strict compliance
of Crim.R.32(c), and thus there is no final, appealable order.
Cilaam two:
After the presiding judge, Donald L. Schott refused to sign the judgment of
conviction, the prosecutor went judge-shopping and convinced Judge Thomas C.
Nurre to sign the order minutes laterm Judge Nurre also patently and
unambiguously lacked jurisdiction under CrimaR.25(B) to sign the final entry
in a case that was not tried before him when he had not been designated to do
so by the administrative judge of the common pleas courte The doctrine of
expressio unius est exclusio alterius applied and.the authorization for Judge
Nurre to sign the order did not occur under the circumstances that were set
forth in Crim.R.25(B). Therefore Judge Nurre exercised unauthorized judicial
power.
Clai.m three:
Relator asserts that the over twenty one year delay from sentencing and the
judgrtent eritry on the matter violates Crim.R.32(A) and Art.1 section 16 of the
Ohio Constitution, ®hio's due process clause. Therefore, Relator asserts that
the sentencing court lost jurisdiction over the matter. Relator seeks to
prohibit Judge Nurre ar7d the Hariiilton County Court of Common Pleas from
exercising further jurisdiction to enforce the invalid conviction or taking
other unauthorized action regarding Re7.ator's conviction.
A properly journalized judgment of conviction pursuant to Crim.R.32(C) is
necessary in order to authorize the Ohio Adult Parole Authority to exercise
its authority over the relator. Therefore, since the judgment of conviction is
irava.lid, the Ohio Adult Parole Authority has exercised its unauthorized
authority over the relator on two separate occasions when it extended his
sentence in excess of 13 years.
Relator has specified the details of his claim as required and asserts that
a Writ of Prohibition and/or Mandamus should issue to correct the results of
prior jurisdictionally unauthorized actions. Relator declares that all of the
information contained herein are true to the best of his understanding,
kr°:owl edg e and be l i e f.
1kVVL4-JLionel Harris
Sworn to before me and subscribed in tny presence this 2day of April 2013.
eO,-.kA Ot+w ^w ^• -C^// ^v""^ uT^`^._Loueo CCfudiN NOTARY PUBLICs* ^. Notdiy PUtrtfc-$tate of Ohio
- My Commission ExpiresI r7
,- 08/08/2011 14;12 5135425333 RECORD CENTER PAGE 08/02
) 1
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«
HAMILTON COUNTY CLERK OF COURTS
F'ODAY'S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 1
CASE:B 91.06789-A Criminal Appearance Report CMSR5155
A P P E A R A N C E D 0 C K E T
Attorney - Plaintiff
Attorney - Defendant
:ur Judge - THOMAS C NURRE
;TATE OF OHIO vs. LIONEL HARRIS
Total Deposits $,00Total Costs $0.00
TATE OF OfiIO
vs.
OiVEL HARRIS
Municipal #:
Race: W Age: 24 Sex: :1
14
Lleei; 10/J.0/1991 0005 -- WARRANT ON INDICTMENT
3unt:1 Dispositi<rn:3DOC DEPARTMENT OF CORRECTIONS Date: 1/29/1992
1AGE DATE DESCRIPTION AMOUNT------------------------------------------ -------------------------------- -------
10/10/1991 INDICTMEN`i' REPORTED AND FILED.
INDICTMENT FOR
AGGRAVATED MI7RDER 2903.01 R.C. W/SPEC
10/10/1991 PRECIPE FOR WARRANT FILED AND WARR:ANT
ISSUED.
10/11/1991 SIMON L. LEIS JR., SHERIFF. I HAVE It1
CUSTODY AND FiAVE SERVED COPY OF
INDICTMENT ON
SAID DEFENDANT BY P. ';OSGROVE DEPUTY
6 10/29/1991 ENTRY OF CONTINUANCE
11./4/91
10/29/1991 MOTION FOR T3ILL OF PARTICULARS
10/29/1991 MOT_ON FOR DISCOVERY
11/04/1991 MOTION
FOR PROTECTIVE ORDER
11/05/1991 STAT'E'S MOTION FOR DISCOVERY.
11/08/1991 SUB1?OENA FOR WITNESS ISSUED TO
JIM NIKLAS KAREN WHEATLY
11/08/7.991 St7BPnENA FOR WITNESS ISSUED TO
TRTNITY INDUSTRIES
11/12/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
JIM NIKIAS
11/12/1997. SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
TRINITY INDUSTRIES
11/13/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
KAREN WHEATLY
11/19/1991 REQUEST FOR BILL OF PARTICULARS
11/19/1991 MJi.'ION TO SUPPRESS
11/20/1991 MOTIONTO VIEW PREMISES
11/27/1991 ENTRY
SUBSTITUTING COUNSEL TIMOTHY A SMITH &
WM. L. MALLORY
11/27/1991 EN".'RY OF' CONTINUANCE
12/9/91
11/27/1991 STA'1'E'S MOTION FOR DISCOVERY.
11 /27/ 1991 STATE'S BILL OF PARTICULARS
12/03/1997. SUBPOENA FOR WITNESS ISSUED TO
DEAN CLEMENTS TERRY MARTY JIM NIKIAS
CI:YDE BOYD KAREN WHEATLY ROBERT ESSEX
ANTHONY DOCKERY
12/03/1991 SUBPOENA FOR WI`I'NiS,S ISSUED TO
HAMILTON COUNTY CLERK OF COURTS
'ODAY'S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 2
CASE:B 9106789-A Cr_z:iina.l. Appearance Report CMSR5155
- A P P E A R A N C E D 0 C K E T
BRADLEY
12/04/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSEDTERRY NARTY,DEANNA JUMP, DEAN
CLEMENTS,KAREN WiiEATLY
12/04/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
LISA NAPIER,DEBRA BRANDT, WILLIAM
TURNER
12/05/1991 SUBPOENA FOR WITNESS RETLIRNED AND
ENDORSED
ANTHONY DOCKERY,JiM NIKIAS, CLYDE BOYD
112/06/1991 MOTION FOR BILL OF PARTICULARS
12/06/1991 NOTIC.E OF ALIBI.
12/06/7.991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
JANET BRADLEY,ROBERT ESSEX
12/06/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED BY FOREIGN SHERIFF
CLERMONT CNTY,SHERIFF 12/6/91
?4 12/10/1991 ENTRY REQUESTING OFFICIAL STENOGRAPHER
31 12/10/1991 CAUSE PROGRESSED
1ST DAY, TESTIMONY ADDUCED IN PART &
CONT' UNTIL 12/12/91
12/10/1991 DEFT.S REPLY TO STATES MOTION FOR
DISCOVERY
12/10/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
SHERRY OWENS
12/11/1991 SUBPOENA FOR WITNESS ISSUED TO
STAR BANK LARRY SMITH DANNY MANIER IKE
METCALF
12/11/199.i MOTIONTO TAKE DEPOSITION TO PERPETU--ATE
TESTIMONY
1 12/12/1991 ENTRY GRANTING:DEPOSITON TO PERPETUATE TESTI-MONY AND
ALLOWING EXPENSES
4 12/12/1991 EN'i`RY OVERRULING
HARRIS' MOTION TO SUPPRESS & MOTIN TO
ADDITIONAL BILL OF PARTICULARS
3 12/12/1991 ENTRY OF CONTINUANCE
1/13/92
2 12/12/1991 ENTRY OF CONTINUANCE
1/13/92
12/12/1991 SUBPOENA FOR WITNESS RETURNED AND
ENDORSED
IKE METCALF,DANNY
MANIER,LARRYSMITH,RECi?RDKEEPLR OF STAR
BANK
I 12/1'7/1991- ENTRYRELEASING AUTOMOBILE AND SUBSTITUTE
PHOTOGRAPH THEREFORE
12/17/1991 MOTIONTO SUBSTITUTE PfiYSICAL EVIDENCE WITH
PHOTOGRAPHS
12/17/199= DEPOSITION OF
JOY LUDGATIS FILED12/26/1991 CLERK'S TRANSCRIPT FEE FOR AN INDIGENT
DEFENDANT - FILED
1/13/1992 JURY IMPANELED AND SWORN
14 JURORS
1/14/1992 ENTRYWAIVING VIEW OF PREMISES
1/1711992 C'AUSE PROGRESSED5TH DAY, TESTIMONY ADDUCED IN PART &
CONT` UNTIL 1/21/92
1/23/1992 SUBPOENA FOR WITNESS ISSUED TODOROTI-fY PEARSON RONALD PEARSON SELINA
RONE
HAMILTON COUNTY CLERK OF COUR'S
C7bAY'S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 3
CASE:B 91067E39--A Criminai Appearance Report CMSR5155------------------------
A P P E A R A N C E D O C H E T
9 1/23/1992 CAUSE PROGRESSED
9TH DAY, TESTIMONY ADDUCED IN PART &
u'ONT' UNTIL 1/24/92
1/23/1992 SUBPOENA FOR WITNESS ISSUED TO
IKE METCALE' DANNY MANIER LARRY SMITH
DONALD TRUSTY
1/23/1992 SUBPOENA FOR WITNESS ISSUED TO
LYNN WHITE
99 1/24/1992 CAUSE PROGRESSED10TH DAY, TESTIMONY ADDUCED INPART &
CONT' UNTIL 1/27/92
1/24/1992 DEFTS.JOINT MEMORANDUM IN OPPOSITION
TO STATES MEMORANDUM
1/27/1992 SUBPOENA FOR WITNESS ISSUED TO
MARY ANN HO;~'FMAN
1/27/1992 SUBPOENA FOR WITNESS ISSUED TO
DET MIKE BENNETT
43 1/29/1992 JURY VERDICT OFGUILTY OF AGG MURDER IN CT 1; DID NOT
HAVE ON OR ABOUT HIS PERSON OR UNDER
H1S CONTROL A FIREARM WHILE COMMITTING
TfIE OF'FENSE
-9 1/29/7.992 JUDGMENT ENTRY: SENTENCE:
INCARCERATION
DOC TERM OF LIFE. ELIGIBILITY FOR
PAROLE IN 1OYRS. PAY COSTS$25,000 FINE
2/03/1992 CLERK'S TRANSCRIP3' FEE FOR AN INDIGENT
DEFENDANT - FILED
5 2/13/1992 ENTRY APPOINTING APPELLATE C.OUNSEL.
JOHN BAUER
2/21/1992 NOTICE OF APPEAI, FILED
NO. C:-9201^i a_COPY SENT TO HAMILTON
COUNTY PROSECUTOR
3/04/1992 DOCKET STATEMENT FILED.
3/31/1992 CLERK'S TRANSCRIPT FEE FOR AN INDIGENT
DEFENDANT -- FILED
4/13/1992 CLE12K'S TRANSCRIPT FEE FOR AN INDIGENT
DEFENDANT - FILED
5/05/1992 CLERK'S TRANSCRIPT FEE FOR AN INDIGENT
DEFENDANT - FILED
6/15/1992 CLERK'S TRANSCRIPT FEE FOR AN INDIGENT
DEFENDANT - F7I,ED
6/29/1992 COUR'I' OF APPEALS OF HAMILTON COUNTY
CASE NO.
C920151 (#1-#62)7/30/1992 CRIMINAL STATE COSTS SATISFIED
9/01/1992 TRANSCRIPT OF PROCEEU`NGS FILED IN
C-920151, C-920158
9/07/1992 COMPLETE TRANSCRIPT OF PROCEEDINGS
FILED IN C--920151,C-920158
9/07/1992 CONiPI:ETE TRANSCRIPT OF PROCEEDINGS
FILED IN C--920151, C-9201.58 VOLS I THRO
X OF X
9/14/1992 CLERK'S TRANSCR.IPT FEE FOR AN INDIGENT
DEFENDANT - FILED
10/09/1992 CLERK'S 'PRANSCRIPT FEE F'OR AN INDIGENT
DEFENDANT - FILED
12/14/1993 CORRECTED COMPLETE TRANSCRIPT OF
PROCEEDINGS INDEX F'II:ED IN C-920151,
C-920158
=2/114/1993 CORRECTED COMPLETE TRANSCRIPT OF
PROCEEDINGS VOLS I Ti-iRU X OF X FILED
IN C-920151, C-920158
2/25/1994 JUDGMENT ENTRY AFFIRMING JUDGMENT OF
TRIAL COURT C920151 & C920158 2/25/94
02-5 (BA916789 & BB916789)
3/24/1994 NGTICE OF APPEAL TO THE SUPREME COURT
(C920151)
3/25/1994 NOTICE OF APPEAL TO THE SUPR.SME COURT
OF OHIO
HAMILTON COUNTY CLERK OF COURTS
E';ODAY`S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 4
CASE:B 9106789-A Crimiiial Appearance Report CMSR5155
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A P P E A R A N C E D O C K E T
10 6/03/1994 ENTRYORDERING COPIES OF T.HE DIARIESOF ELLFN
BRADLEY-HARRI.S IN THIS CASE TO BE
RE.I:EASED FOR THE PURPOSE OF A CIVIL
CASE71 8/25/1994 SiJP2EME COURT OF CHIO ENTRY DENYING
LEAVE TO APPEAL
9/20/1996 EIO'PIONFOR EXPERT ASSISTANCE
9/20/1996 MOTION FOR APPOINTMENT OF COUNSEL
9/20/1996 PETITION TO VACATE OR SET ASIDE
SENTENCE
9/20/1996 AFFIDAVIT OF INDIGENCY
11/01/1996 MEMORANDUM IN OPPOSITION TO PETITION
TO VACATE.
11 11/01/1996 FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND DISMiISSING PETTION TO VACATE
'11/01/1996 NOTICE OF APPEALABLE JUDGMENT SENT BY
ORDINARY MAIL TO ALL PARTIES ENTITLED
TO A COPY.