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v*YGOP^ ,G,A/.Q
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,Plaintiff-,appellee,
)C°a s , /tId Z ol® ®. / q17
) On appeal from the Clinton County) Court of Appeals Twelfth Appellate
District-vs- )
)Case No. CA2010-01-001
CHARLES WILLIAM CARTER,Defendant-Appellant. ) Trial Case No. CRI 2001-5100
JUDICIAL NOTICE
att: CHIEF JUSTICE ERIC BROW33
Andrew McCoy (0082800)Assistant Prosecuting Attorney103 East niain StreetWilmington, Ohio 45177(937) 382-4559
Charles William Carter, Pro SeA419-712Post Office Box 7010Chillicothe, Ohio 45601-7010
V L LD
DEC p 8 2010
CLERIC OF CORRTSUPREME t C3UR? OF OHBq
MEMORANDA
Now come, Charles William Carter, Appellant, acting in i2o S.e,
respectfully filing a JUL3ICIAL NOTICL°, in order to inform this
Honorable Court of Appellant's efforts to file required documents.
Pursuant to Rules of Practice of the Ohio Supreme Court 4.4(A)
states;
(A) If a party has perfected a discretionary appeal or aclaimed appeal of right with the Supreme Court in accordancewith S.Ct.Prac.R.2.2(A), but has timely moved the court ofappeals to certify a conflict in the case, that party shallfile a notice with the Supreme Court that a motion to certifyconflict is pending in the court of appeals. ***.
Appellant filed NOTICE OF FILING, MOTION TO CERTIFY CONFLICT, on
Aug. 11, 2010. Since the Appellate Court filed, its motion certif*ng
conflict, Appellant has attempted to file that docuenent with this
Court. Appellant first attempted to file the document labeled NOTICE
OF FILING OF COURT OF APPEALS ENTRY GRANTING MOTION TO CERTIFY
CONFLICT. That document was received by the clerk on Aug. 28, 2010
the first time, and Sep. 02, 2010 the second time. The document
was returned with letter dated August 26, 2010 the first time and
letter dated September 2, 2010 the second time. When Appellant sent
the documents the second time, he sent the letter dated August 30,
2010. Appellant made a third attempt, re-titling the document, MOTION
TO FILE APPELLATE COURT'S REPLY TO PREVIOUSLY FILED; NOTIC:`, OF FILING
OF, MOTION TO CERTIFY CONFLICT, IN THIS ACTION, received by the clerk
Sep. 09, 2010. Then Chief Justice Eric Brown, requested the document
in the ENTRY of November 4, 2010, and requested. Appellant to "show
cause" why Appellant had not filed Appellate Court's reply. This
clearly indicated that the Clerk did not read Rule 4.4(A) which
-1-
states, the document, I was attempting to file, was pending. Pending
meaning it is coming later. Appellant's document titled REPLY TO
ENTRY OF NOVEMBEI2. 4, 2010 FROM OHIO SUPREME COURT IN ABOVE CAPTIONED
ACTION, was received by the clerk the first time on Nov. 12, 2010.
The letter dated November 15, 2010 was sent with the returned
document. If those documents had been sent back on the 15th,
Appellant would have been able to make corrections and return the
document timely, as stated in the letter. However, the clerk
intentionally held the document, mailing it on Nov. 17, 2010 (see
attached photo copy of envelope). The clerk knew or should have
known, Appellant would not/could not return the document timely,
as the earliest Appellant would receive the documents was November
18, 2010, the date it was due. Appellant returned the documents
any way, being received by the clerk on the 23rd.
ATTACHMENTS TO THIS DOCUMENT
1) Appellant's cover page dated RECEIVED NOV 12, 2010 and NOV
23, 2010, and document.
2) Appellant's cover page dated RECEIVED SEP 09, 2010 and
document with Appellate Court's ENTRY GRANTING MOTION TO
CERTIFY CONFLICT and copy of State v. Mundy.
3) Appellant's cover page dated RECEIVED AUG 28, 2010 and. SEP
02, 2010.
4) Letter from Clerk of Courts dated August 26, 2010
5) Letter from Clerk of Courts dated September 2, 2010
6) Letter from Appellant dated August 30, 2010 and attachments.
7) Letter from Clerk of Courts dated September 10, 2010
8) Letter from Clerk of Courts dated November 15, 2010
-2-
9) Photo copy of envelope Post Marked NOV 17, 2010
10) Letter from Clerk of Courts dated zVoveznber 23, 2010
CONCLUSION
As the document should have been filed the first time it was
sent, the Appellate Courts reply should be filed and be considered
filed ticnely.
Charles William Carter 419-712P. O. Box 7010Chillicothe, Ohio 45601-7010
CERTIFICATE OF SERVICE
I, Charles 6villiam Carter hereby certify that a true copy of
the foregoing JUDICIAI, NOTICE was sent by U.S. Mail to Andrew McCoy
Assistant Prosecuting Attorney, at 103 East Main Street, Wilmington,
Ohio 45177, on the Sth day of Oecember 20 0.
Charles william Carter
COURT COPY
IN THE SUPREME COURT OF OHIO
S7'ATE OF OH10,Plaintiff-Appellee,
CHARLGS WILLIAM CARTER,Defendant-Appellant.
Ccc
)
REPLY TO ENTRY OF NOVEMBER 4, 2010
FROM OHIO SUPREME COURT
IN THE ABOVE CAPTIONED ACTION
Andrew McCoy (0082800)Assistant Prosecuting Attorney
103 East main StreetWilmington, Ohio 45177(937) 382-4559
Charles William Carter, Pro SeA419-712Post Offce Box 7010Chillicothe.Ohio 45601-7010
117 0,()1.-IRT5UPoi a . s >o ur'QHE®
Case No. 2010-1417
On appeal from the Clinton CountyCourt of Appeals Twelfth Appellate
District
Case No. CA2010-01-001
)) Trial Case No. CRI 2001-5100
E VEDNOV 2 3 2010
CLERK OF rif}IIRTSUPRE J°E CC7UR1 OF OHIO
MEMORANDUM
On November 8, 2010 Appellant received this Honorable Court's
ENTRY dated November 4, 2010, it states;
On August 11, 2010, appellant filed a notice of pendingmotion to certify a conflict. Whereas appellant has notnotified this Court of the decision on the pending iydotionto certify a conflict,
it is ordered by the Court, sua sponte, that appellantshow cause within fourteen days of the date of this entrywhy this Court should not proceed to consider thejurisdictional inemoranda in this appeal pursuant to S.Ct.Prac. R. 3.6.
This is the Appellant showing couse.
The Appellant has three times attempted to file the Appellate
Court's ENTRY GRANTING MOTION TO CERTIFY CONFLICT. Twice Appellant
attempted to file the above Appellate Court entry titled NOTICE OF
FILING OF COI7RT OF APPEALS ENTRY GRANTING MOTION TO CERTIFY CONFLICT.
See attached cover page stamped RECEIVED Aug 28 2010 CLERK OF COURT
SUPREME COURT OF OHIO and RECEIVED Sep 02 2010 CL'F'RK OF COURT
SUPREME COURT OF OHIO. Then Appellant attempted to file the ENTRY
titled MOTION TO FILE APPELLATE COURT'S REPLY TO PREVIOUSLY FILED;
NOTICE OF FILING OF, MOTION TO CERTIFY CONFLICT, IN THIS ACTION,
again see attached. Also attached are copies of two of the three
letters sent to Appellant by Clerk of Courts, and the letter sent
by Appellant to the Clerk of Courts. Appellant spent $5.00 in postage
each time he sent the Appellate Court's reply. Appellant stopped
making the attempt to file, only after the Clerk of Courts stated
he was time barred.
Appellate Court's ENTRY CRANTINC MOTION TO CERTIFY CONFLICT
attached.
Charles William Carter.
CERTIFICATE OF SERVICE
I Charles William Carter, hereby certify that a true copy of
the foregoing, REPLY TO ENTRY OF NOVEMBER 4, 2010 FROM OHIO SUPREME
COURT IN THE ABOVE CAPTIONED ACTION, was sent by U.S. Mail to Andrew
McCoy, Assistant Prosecuting Attorney, at 103 East Main Street,
Wilmington, Ohio 45177, on the 18th day of November 2010, just like
it was the first time the Clerk of Courts sent it back and the second
time, and the third time. It is now being sent again, after the
fourth time the Clerk of Courts sent it back. See page 2 of when
it was titled NOTICE OF FILING OF COURT OF APPEy^CS ENTRY GR^,NTING
MOTION TO CERTIFY CONFLICT.
Charles William Carter 419-712
P. o. Box 7010
Chillicothe, Ohio 45601-7010
c®uon t s Clop y
IN 'I'HE SUPREME COURT OF OHIO
sTATE: oF (DH ► o,
Ca,
I e IVC. l® °' / q1 7
1'laintift'-Appellee, ) On appeal from the Clinton CountyCourt of Appeals Twelfth Appellate
►)istrict
)Case No. CA2010-01-001
CHARLES NNILLIAM CARTER,IDefendant-Appe ► Iant. ) Trial Case No. CRl 2001-5100
)
MOTION TO FILE APPELLATE COURT'S REPLY TO PREVIOUSLY FILED;
NOTICE OF FILING OF, MOTION TO CERTIFY CONFLICT, IN THIS ACTION
Andrew McCov (0082800)Assistant t'rusec•_iting Attorney
103 East rnain StreetWilmineton.Ohio 4^177(937) 182-4i59
Charles William Carter, Pro SeA919-713Post Officc 13ox 7010Chillicothe.l)hio 476111-7010
R E GE ^ V E DSEP © 9 2010
CLERK OF COURTSUPREME CU URTUF OHIO
MEMOItANDU2!
Attached is a copy of the Court of Appeals for Clinton County,
Twelfth Appellate District, ENTRY TO GRANT MOTION TO CERTIFY CONFLICT.
Defendant-Appellant would request this Honorable Court to note
that the Appellate Court has made an attempt to minimize the conflict
by stating, "*** the Court has discovered through its own research
that our dicision is in conflict with a decision by the Ninth District
Court of Appeals, S.tate v. Rcerxdy, Medina App. No. 08CA0047-M, 2009-
Ohio-6373." The Appellate Court states this as though they are only
in conflict with one case, "in conflict with a decision." This is
far from true. Defendant-Appellant filed a NOTICE OF FILING, MOTION
TO CERTIFY CONFLICT, attached to that document is the motion
Defendant-Appellant filed in the Appellate Court. Defendant-Appellant
would request this Honorable Court review that document, this
Honorable Court will find that the Twelfth Appellate District Court
is in conflict with numerous decisions, including one of its own.
The other ruling the Appellate Court attempts to minimize is
this Honorable Court's ruling in State v. S.ircg.2e.toez, 124 Ohio St.3d
173, 920 N.E.2d 958, 2009-Ohio-6434, which is the issue for
certification, "The issue for certification is as follows: if prior
to the effective date of R.C. 2929.191, a defendant is correctly
advised about post-release control at the sentencing hearing, but
the language of the sentencing entry does not accurately reflect
what the defendant was told about post release control at the hearing,
can the trial court file a nunc pro tunc corrected sentencing entry
based upon clerical error, or is the sentence void, requiring that
-1-
the defendant be resentenced?"
Defendant-Appellant would assert that this Honorable Court was
clear that if Post Release Control was not correctly imposed at the
sentencing hearing or in the court's Judgement Entry, prior to the
effective date of July 11, 2006, of R.C. 2929.191, the defendant
is to be remanded to the trial court for a de novo sentencing.
,gbmitt dRespectfully $
Charles William Carter 419-712P. O. Box 7010Chillicothe, Ohio 45601-7010
CEBTIFICATE OF SERVZCE
I. Charles William Carter, hereby certify that a true copy of
the foregoing NOTICE OF FILING OF COURT OF APPEALS ENTRY GRANTING
MOTION TO CERTIFY CONFLICT was sent by U.S. mail to Andrew McCoy,
Assistant Prosecuting Attorney, at 103 East Main Street, Wilmington,
Ohio 45177, on the 1"2 day of August 2010.
Charles William Carter
-2-
IN THE COURT OF APPEALS FOR CLINTON COUNTY, OHIO
STATE OF OHIO,
Appellee,
CHARLES WILLIAM CARTER,
Appellant.
CASE NO. CA2010-01-001REGULAR CALENDAR
ENTRY GRANTING MOTIONTO CERTIFY CONFLICT
rFil^tl f9ff1^Nrt
AUG 1 0 2010
Clinton CountyClerk of Courts
The above cause is before the court pursuant to a motion to certify conflict
pursuant to App.R. 25 (A) filed by appellant, Charles William Carter, on July 14, 2010.
Courts of appeal derive their authority to certify cases to the Ohio Supreme Court
from Section 3 (B) (4), Article IV of the Ohio Constitution, which states that whenever the
judges of a court of appeals find that a judgment upon which they have agreed is in
conflict with a judgment pronounced upon the same question by another court of appeals
of the state, the judges shall certify the record of the case to the supreme court for review
and final determination.
In the present case, appellant argues that his sentence is void pursuant to State v.
Simpkins, 117 Ohio St. 3d 420, 208-Ohio-10197, because the trial court failed to properly
impose post release control. Appellant was sentenced in 2002. At his original sentencing
hearing, appellant was correctly notified that he would be subject to a mandatory term of11
five years of post-release control. However, the sentencing entry statedthat appellant
would be subject to an indefinite term of "up to 5-years." This court sustained appellant's
Clinton CA201 0-01 -001Page -2-
appeal in part pursuant to State v. Harrison, ButlerApp. No. CA2009-10-272, 2010-Ohio-
2709, and ordered the trial court to issue a nunc pro tunc judgment entry to correct the
clerical error.
In his motion for certification, appellant claims that he is entitled to a full re-
hearing, not simply a nunc pro tunc correction of the judgment entry.sentencing
Appellant claims that this court's decision is in conflict with four appellate districts.
However, the cases submitted by appellant are factually distinguishable. Nonetheless,
the court has discovered through its own research that our decision is in conflict with a
decision by the Ninth District Court of Appeals, State v. Mundy, Medina App. No.
08CA0047-M, 2009-Ohio-6373. Mundy was convicted and sentenced in 2005, prior to
the enactment of R.C. 2929.191. Like the present case, the trial court correctly informed
Mundy at the sentencing hearing that he would be subject to a mandatory five year term
of post-release control, but the judgment entry did not impose a definite term. The Ninth
District concluded that Mundy's sentence was void and remanded the matter for re-
sentencing.
Based upon the foregoing, the court finds the motion for certification well taken
with respect to a conflict between this court's decision and the Ninth District's decision in
Mundy. The issue for certification is as follows: If prior to the effective date of R.C.
2929.191, a defendant is correctly advised about post-release control at the sentencing
hearing, but the language of the sentencing entry does not accurately reflect what the
defendant was told about post release control at the hearing, can the trial court file a nunc
C I i nto n CA201 0-01 -001Page -3-
pro tunc corrected sentencing entry based upon clerical error, or is the sentence void,
requiring that the defendant be resentenced?
IT IS SO ORDERED.
William W. YoPresiding Judge
Slip Copy. 2009 WL 649790 (Ohio App. 9 Dist.), 2009 -Ohio- 1136
CHECK OFIIO SUPREME COURT RULES FOR REPORTING OF OPINIONS AND WEIGHT OF LEGAL AUTHORITY.This decision was reviewed by West editorial staff and not assigned editorial enhancements.
Court of Appeals of Ohio,Ninth District, Medina County.
STATE of Ohio, AppelleeV.
Raymont MUNDY, Appellant.
No. 08CA0047-M.March 16, 2009.
Appeal from Judgment Entered in the Court of Cotnmon Pleas, County of Medina, Ohio, Case No. 04 CR 0551.Wesley A. Johnston, Attorney at Law, for Appellant.
Dean Holman, Prosecuting Attorney, and Michael P. McNamara, Assistant Prosecuting Attorney, for Appellee.
MOORE, Presiding Judge.
* I{¶ I} Appellant, Raymont Mundy, appeals the judgment of the Medina County Court of Cominon Pleas. This Courtaffirms.
1.
{¶ 2} On October 27, 2004, Appellant, Rayinont Mundy, was indicted on two counts of felonious assault on a peaceofficer in violation of R.C. 2903.1 1(A)(2)(D), felonies of the first degree; three counts of felonious assault in violation ofR_C. 2903,11(A)(2), felonies of the second degree; and one count of trafficking in drugs in violation ofR.C.2925.03(A)(I)(C)(4)(d), a felony of the third degree. The inatter proceeded to a jury trial on January 5, 2005. On January 7,2005, thejury rendered its verdict, finding Mundy guilty of one count of felonious assault on a peace officer, three counts offelonious assault, and one count of trafficking in drugs. "Fhe jury acquitted Mundy of one count of felonious assault on apeace officer. On February 23, 2005, the trial court sentenced Mundy to consecutive terms of incareeration totaling 13 years.Mundy timely appealed from the trial court'sjudgment. This Court affirmed Mundy's convictions and sentence on December14, 2005. See State v. Mundy, 9th Dist. No. 05CA0025-M, 2005.Ohio-6608.
{¶ 3) On May 12, 2008, Mundy filed a motion for resentencing. The trial court denied the motion on May 29, 2008.Mundy filed a inotion for reconsideration, which the trial court denied on June 6, 2008. Mundy filed a notice of appeal fromthe trial court's judgment. Mundy has raised two assignments of error for our review.
11.
ASSIGNMENT OF ERROR I
"WHETHER THE TRIAL COLJRT ABUSED ITS DISCRETION THEREBY DEPRIVING [MUNDY] DUE PROCESSOF LAW WHEN IT DENIED `WITHOUT HEARING' A PROPERLY FILED AND SUBSTANTIVELY SUPPORTEDMOTION FOR RESENTENCING PURSUANT TO: [SIC] S'TATE v SIMPICINS [] AS A PROCEEDING IN POSTCONVICTION RELIEF PURSUANT TO STATE v. PRINCE [.]"
{¶ 41 In liis first assigninent of error, Mundy asserts that the trial court abused its discretion and thereby deprived Mundyof due process of law when it denied his inotion for resentencing as a post-conviction relief petition.
{¶ 5} We begin by noting that pursuant to Anp.IZ)tA), the record on appeal must contain "[t]he original papers andexhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of thedocket and journal entries prepared by the clerk of the trial court[.]" It is the appellant's duty to transmit the transcript ofproceedings to the court of appeals. App R. 1O(Al. Loc.R. 5(A).'fhis duty falls to the appellant because the appellant has theburden ofestablishing error in the trial court. knapp v E 1w uds Labrnatories(1980). 61 Ohio St.2d 197,1.99_400 NE,.2d38.4. Where the transcript of a hearing is necessary to resolve assignments of error, but such transcript is inissing from therecord, the reviewing court has "no choice but to presume the validity of the lower court's proceedings, and atfirm:" Knapp.
•bt 0li7o St.ld at 199, 400 N.t`..2d _',84.
*2 {¶ 6} On appeal, Mundy challenges the trial court's denial of his inotion for resentencing, which was based on hiscontention that the trial court failed to provide him with proper notice of post-release control when it initially sentenced Itiin.To address this assignment of error, we must review the sentenciug transcript, which is contained in Volume III of the trialtranscript. However, "[w]e note that the Ap .p 12. 9^A1 record of this case does not contain the original [Volume III of the] trialtranscript[.]" State v Stndtb, 8th Dist. No. 90749, 2008-0hio5581, at!1 - 9. Consequently, "this court's review of the trial court'sdecision is limited to what is contained in the file." Id.
{¶ 7) The circumstances surrounding the absence of the original Volunie III of the trial transcript are quite unusual andworthy of recounting. On January 23, 2009, Mundy's counsel, Wesley Johnston, filed a motion to supplement the record witha photocopy of Volume III of the transcript of proceedings. Johnston informed the Court that he borrowed the transcript fronithe Clerk of Courts, made a copy of Volume III of the transcript, and accidentally mailed the original to liis client in prison.On February 17, 2009, this Court denied the niotion to supplement the record with Johnstoii s photocopy of the transcript.However, we granted Johnston ten days in which to file the original Volume 111 or to cause the official court reporter tofile anew official copy ofthe missing volnme to be made part of the rec(ird on appeal. Johnston's deadline for filing Volume IIIwas February 27, 2009, over a inonth froin the time he notified the Cotirt that it was inissing, and almost the full 40 daysauthorized by App.R_I O.(A) to file the record on appeal.
{¶ 8) Rather than filing Volume Ill by February 27, on that date, Johnston instead filed a motion for extension of tirne forthe court reporter to file a new copy of Volume 111. In his motion, Johnston asserted that additional time was needed "to allowcourt reporter to submit new copy of missing voluine to be part of record." Johnston also asserted that he "has caused theotFeial eourt reporter to file a new copy of inissing volume 1 1 I[SIC] and court reporter needs additional time to do such bypraecipe[.]" Johnston also filed a praecipe to the court reporter with liis motion in which he asked for Volume Ill to beprepared. The court reporter acknowledgment is blank-it contains neither the signature of the court reporter nor a date ofacknowledgnient. Because the court reporter has not acknowledged receipt of the February 27, 2009 praecipe, Joltnston'sassertion in his inotion that the court repo ter requires additional tinte to prepare the transcript is unsupported. This Courtdenied the motion for an extensiou, finding that Johnston had inore than enough tiine to either recover the original version ofVolume 111 from his client or to cause the court reporter to file a new Volume 111.
{¶ 9) As the appellant, Mundy had the burden of providing this Court with a record of the facts, testimony, andevidentiary matters necessary to support his assignment of error. Knap^61_Ohio St.2d at 199, 400 N.f;.2d 384. See, also,Volodl cclc hy_Volodkevich { I 949^_18 (?,hi,o A^p ;d ;.I 3^ 1 3 549 N L^d 1237. Because a proper transcript of thesentencing hearing would have been necessary for resoiution of the remaining assignments of error, this Court must presumeregularity in the trial court proceedings and affirm thejudgment of the trial comt. Kna p yat 199, 400 N.E.2d 384.
*3 {¶ 10} Mundy's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
"WHETHER THE TRIAL COURT IS DIVEST [SIC] OF.IURISDICTION TO IMPOSE ANY SENTENCE IN LIGHT OFTHE PROTRAC'i'ED AND UNREASONABLE DELAY IN IMPOSING SENTENCE."
{¶ I 1} In his second assignnient of error, Mundy contends that the trial court is divested ofjurisdiction to impose asentence because there has been an unreasonable delay in iinposing his sentence. We disagree.
{¶ 121 Mundy's second assignment of error is based on the preinise that this Court would find, in our resolution of hisfirst assignment of error, that the sentence iniposed in February of 2005 is void. He reasons that this Court will then find thata delay from January of 2005, when he was convicted, until the present is unreasonable, divesting the trial court ofjurisdiction to resentence him and therefore requiring his inunediate i-elease from custody instead of his resentencing.
{¶ 13} Given our resolution of Mundy's first assigninent of error, we clearly have not found that Mundy's sentence wasvoid. Mundy's second assignment of error is overruied.
Hi.
{¶ 14 } Mundy's assigninents of eiror ai-e overruled. Thcjudginent of the Medina County Court of Common I'leas isaftirined.
Judgment affirined
The Court finds that there were reasonable grounds for this appeal.
We order that a special niandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State ofOhio, to carry this judgment into execution. A certified copy of thisjournal entry shall constitute the mandate, pursuant toAPp R^27.
Iinmediately upon the filing hereof, this document shall constitute thejournal entry ofjudgment, and it shall be filestamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R, 22(EJ. The Clerkof the Court ofAppeals is instructed to mail a notice of entry of thisjudgment to the parties aad to make a notation oftheinailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
WHITMORE, J., DELFANCE, J., concur.
Ohio App. 9 Dist.,2009.State v. MundySlip Copy, 2009 WL 649790 (Ohio App. 9 Dist.), 2009 -Ohio- 1136
END OF DOCUMENT
(c) 2010 Thomson Reuters. No Claiin to Orig
ORIGINAL
IN THE SUPREME COURT OF OHIO
0STATE OF OHIO,
Plaintiff-Appellee,
-vs-
CHARLES WILLIAM CARTER,Defendant-Appellant.
Case No. 10-1417
On appeal from the Clinton CountyCourt of Appeals Twelfth AppellateDistrict
Case No. CA2010-01-001
Trial Case No. CRI 2001-5100
NOTICE OF FILING OF COURT OF APPEALS
ENTRY GRANTING MOTION TO CERTIFY CONFLICT
,̂
Andrew McCoy (0082800)Assistant Prosecuting Attorney103 East main StreetWilmington, Ohio 45177(937) 382-4559
Charles William Carter, Pro SeA419-712Post Office Box 7010Chillicothe, Ohio 45601-7010
OU^IVJUV Ca
SEP 0 2 2010
CLERK OF COURTSUPREME COUU7 Of JHiG
CHIEF JUSTICE
ERIC BROWN
^^^ $qturu ^vnxt jafOFFICE OF THE CLERK
65 SOUTH FRONT STREET, CoruMBus, OH 43215-3431
JUSTICES
PAUL E. PFEIFER
EVELYN LUNDBERG STRATTON
MAUREEN O'CONNOR
TERRENCE O'DONNELL
JUDITH ANN LANZINGER
ROBERT R. C'UPP
Charles William Carter 419-712Ross Correctional InstitutionP.O. Box 7010Chillicothe, OH 45601
Dear Mr. Carter:
August 26, 2010
i
CLERK OF THE COURT
KRISTINA D. FROST
TELEPHONE 614.387.9530
FACSiMR.E 614.387.9539
www.supremecourt.ohio.gov
T'he enclosed notice of certified conflict was not filed because it does not meet therequirements of the Rules of Practice of the Supreme Court of Ohio. You did not submitthe $100.00 filing fee or an affidavit of indigency. Section 4 of the Rules of Practicetreats a notice of a court of appeals order certifying a conflict as a new appeal. Therefore,Rule 15.1 requires the filing fee to be paid before a notice of certified conflict may befiled. If you are unable to pay the filing fee you may submit an affidavit of indigency inlieu of the fee in accordance with Rule 15.3(A). Enclosed with this letter is a blankaffidavit of indigency that will meet the filing requirements if you state the reasons youare unable to pay the fee and have the document notarized.
Additionally, you did not attach a copy of the court of appeals opinion in your appeal thatwas certified to be in conflict, and you did not attach the conflicting court of appealsopinion (State v. Mundy, Medina App. No. 08CA0047-M, 2009-Ohio-6373). Each ofthese attachments is required by Rule 4.1.
You may resubmit your notice of certified conflict with the necessary attachments andeither the filing fee or an affidavit of indigency. Rule 4.1 requires that a notice of certifiedconflict be filed no more than 30 days after the date the court of appeals certifies aconflict. The court of appeals order certifying a conflict you submitted was entered onAugust 10, 2010. Accordingly, your documents and filing fee or affidavit of indigencyare due in the Clerk's Office no later than September 9, 2010.
H
Sincerely,®°`-----_
NathanDeputy Clerk
Enclosures
0CHIEF JUSTICE
ERIC BROWN
94.e 'Suvrr.enu 4o'lrrt .afOFFICE OF THE CLERK
65 SOUTH FRONT STREET, COLUMBUS, OH 43215-3431
JUSTICES
PAUL E. PFEIFER
EVELYN LUNDBERG STRATTON
MAUREEN O'CONNOR
TERRENCE 0'r1ONNELL
JUDITH ANN LANZINGEft
ROBERT R. CUPP
September 2, 2010Charles William Carter 419-712Ross Correctional InstitutionP.O. Box 7010Chillicothe, OH 45601
Dear Mr. Carter:
CLERK OF THE COURT
KRISTINA D. FROST
TELEPHONE 614.387.9530
FACSIMILE 614.387.9539
www.supremecourf.ohio.gov
We received your letter dated August 30, 2010, and the docaunents you are attempting toresubmit. The enclosed documents cannot be filed at this time because they do not meetthe requirements of the Rules of Practice of the Supreme Court of Ohio. As Deputy ClerkNathan stated in the August 26, 2010 letter, a notice of certified conflict is a new case andthe $100.00 filing fee imposed by Rule 15.1 is required for filing an order of a court ofappeals certifying a conflict. The Rules of Practice do not permit filing a notice ofcertified conflict in an existing discretionary appeal. Therefore, the fact that youpreviously paid the filing fee for your discretionary appeal does not waive the feerequired for filing a notice of certified conflict.
Alternatively, a notarized affidavit of indigency submitted in lieu of the filing fee inaccordance with Rule 15.3(A) is acceptable. Deputy Clerk Nathan enclosed, with theletter, a blank affidavit of indigency that can be completed and returned with yourdocuments in lieu of the $100.00 filing fee.
In addition to omitting the filing fee or an affidavit of indigency, your notice does notcomply with Rule 4.1, which sets forth the requirements for filing a notice of court ofappeals order certifying a conflict. As Deputy Clerk Nathan explained, your notice doesnot include (1) a copy of the certifying court's opinion (the July 6, 2010 decision yousubmitted with case number 2010-1417) and (2) a copy of the conflicting court of appealsopinion issued in State v. Mundy, Medina App. No. 08CA0047-M, 2009-Ohio-6373.
The August 267h letter explained each deficiency found in your documents and describedthe remedies to enable your notice to be filed. Most importantly, it made clear that Rule4.1 requires a notice of certified conflict to be filed no more than 30 days after the date
2
the court of appeals certifies a conflict. The court of appeals order certifying a conflictyou submitted was entered on August 10, 2010. Accordingly, your corrected notice ofcertified conflict and filing fee or affidavit of indigency are due in the Clerk's Officeno later than September 9, 2010. Failure to file a fully compliant notice of certifiedconflict within 30 days after the date of the order divests the Supreme Court ofjurisdiction to review the order certifying a conflict.
Enclosures
E
c4,e $upxau ^.aurt .afOFFICE OF THE CLERK
CHIEF IUSTICE
ERIC BROWN
65 SOUTH FRONT STREET, COLUMBUS, OH 43215-3431
JUSTICES
PAUL E. PFEIFER
EVELYN LUNDBERG STRATTON
MAUREEN O'CONNOR
TERRENCE O'DONNELL
lUDITH ANN LANZINGER
ROBERT R. CUPP
August 26, 2010Charles William Carter 419-712Ross Correctional InstitutionP.O. Box 7010Chillicothe, OH 45601
Dear Mr. Carter:
CLERK OF THE COURT
KRISTINA D. FROST
TELEPHONE 614.387.9530
FACSIMILE 614.387.9539
www.supremecourt.ohio.gov
The enclosed notice of certified conflict was not filed because it does not meet therequirements of the Rules of Practice of the Supreme Court of Ohio. You did not submitthe $100.00 filing fee or an affidavit of indigency. Section 4 of the Rules of Practicetreats a notice of a court of appeals order certifying a conflict as a new appeal. Therefore,Rule 15.1 requires the filing fee to be paid before a notice of certified conflict may befiled. If you are unable to pay the filing fee you may submit an affidavit of indigency inlieu of the fee in accordance with Rule 15.3(A). Enclosed with this letter is a blankaffidavit of indigency that will meet the filing requirements if you state the reasons youare unable to pay the fee and have the document notarized.
Additionally, you did not attach a copy of the court of appeals opinion in your appeal thatwas certified to be in conflict, and you did not attach the conflicting court of appeals
opinion (State v. Mundy, Medina App. No. 08CA0047-M, 2009-Ohio-6373). Each ofthese attachments is required by Rule 4.1.
You may resubmit your notice of certified conflict with the necessary attachments andeither the filing fee or an affidavit of indigency. Rule 4.1 requires that a notice of certifiedconflict be filed no more than 30 days after the date the court of appeals certifies aconflict. The court of appeals order certifying a conflict you submitted was entered onAugust 10, 2010. Accordingly, your documents and filing fee or affidavit of indigencyare due in the Clerk's Office no later than September 9, 2010.
NathanDeputy Clerk
Enclosures
^
August 30, 2010
Administrator
Clerk of Courts
Kristina D. Frost
65 South Front Street
Columbus, Ohio 43215-3431
RE: Case No. 10-1417
Dear Ms. Frost,
Attached to this letter is a copy of a letter sent to me with
the copies of my NOTICE OF FILING OF COURT OF APPEALS ENTRY GRANTING
MOTION TO CERTIFY CONFLICT. Along with the letter attached is cover
pages of documents I have already filed.
Your Deputy Clerk Nathen clearly has his head up his rectum.
If he had looked up the case number he would have seen that I have
paid the $100.00 filing fee. And, Ifhe had read Supreme Court of
Ohio Rules of Practice 4.4, he would have found out I am in compliance
and the filing of NOTICE OF FILING OF COURT OF APPEALS ENTRY GRANTING
MOTION TO CERTIFY CONFLICT, is the correct entry at this time.
Please take appropriate action as to your deputy clerk, and
please file my enclosed documents, and send me my time stamped copy.
Unfortunately it is errors like this that get people time barred.
Thank you for your time and efforts in this matter.
VE iD
SEP 0 2 2010
CLERK OF COURT
Charles William Carter 419-712
P. O. Box 7010 8A
Chillicothe, Ohio 45601-7010
I SUPREME CUUR`i OF 01410
T4e § uprpme (f uurt af (O1fiuOffice of the Clerk
Receipt
Received From: Charles William Carter
Amount: $ 100.00
Credit Card 029608
Received On: 8/11/2010
For:
Case:
Filing Fee
Case No. GEN-2010-1417Filed: 08/11/2010State of OhioV.Charles William Carter
Received By: JoElla - Deputy Clerk
General Pay-ins
31322
Printed: 8/12/2010 eCMS by Enabling Technologies, Inc.
h0IN THE SUPREME COURT OR OHIO
STATE OF OI3IO, Case lo.
Plaintiff-Appsl.lee, :On Appeal from the Clinton
vs.
Charles William C.arter,
. County Court of AppealsTwelfth Appellate District
s Case No. CA 2010-01-001
Defenda.nt-AppellantTrial Case No. CRI 2001-5100
NOTICE OF APPEAL OF APPEbLANT Charles Williasa Carter
Andrew MaCoy ( 0082800)Assistant Prosecuting Attorney103 East Main StreetGuilminyton, Jhio 45177(937) 382-4559
Counsel for Plaintiff-Anpellee
STATE OF OHIO
Charles wi11iam Carter, i'4o St419-712P. "). Box 7010Chillicothe, Ohio 45601-7010
TIME STAMPED AND RETURNED
IN THE SUPREME COURT OF OHIO
STATE OF OHIO,
Plaintiff-Appellee,
vs.
Charles william Carter,
Defendant-Appellant,
Case No.
On Appeal from the ClintonCounty Court of AppealsTwelfth Appellate District
Case No. CA 2010-01-001
Trial Case No. CRI 2001-5100
MEMORANDUM IN SUPPORT OF JURISDICTION
Andrew McCoy (0082800)Assistant Prosecuting Attorney103 East Main Streetwilnington, Ohio 45177(937) 382-4559
Counsel for Plaintiff-AppelleeSTATE OF OHIO
Charles William Carter, i,32o S¢41 9-71 2P. O. Box 7010Chillicothe, Ohio 45601-7010
TIME STAMPED AND RETURNED
TIME STAMPED AND RETURNED
IN THE $UP1LF=KE COUIiT OF OHIO
STATE OF 0E110, : Case No.
Plaintiff-^.ouellee, s
vs. •
Charles 4illiam Carter,
ant-Ap^ellant,
on Appeal from the ClintonCounty Court of AppealsTwelfth Appellate District
"•to. CA 201 0-Q1 -011
1'rica vo. C:2I 2001-5100
NOTICS Ok' FIx.IMG, MOTION TO CERTIFY CONFLICT
PURSUANT TO APPELLAa'i'E ktULS, 25(A). IS ACCO[RUp+NCE WITH
SUPREME COURT NIEACTICS, RULS IV SECTION 4(A)
Now co;aes, i'harles >7illistt Carter, Appell=nt, acting in Poo ..i'e,
hereby gives Notice of filing to this r3nntar,5l1 :,ourt, in a ccordance
with ::upr:asne Court Practice Rule 1V, Saction 4(A). P..p7oellant has
fi1er3 a Aotian to Ccrtify Conflict in the 'i";relfth up
Coqrt of Agi::°al=;® our7t.zan.t to Appellate E.ul=> 25(A).
D.i.BtY'ict
chad)
^/.i LG^ ^6z^t V-^---Charles ,-7illi:an (w:axter 41 9-712P. 0. t?o:,.. 791 J^_hillicothe® Ohio 45501-7010
Certificate of Service
I, ;harla>s vXilliz;n Csrter, hereby cer.ti.fy that a true copy ofthe forqgoitl"sP lNC7ir 1 ?7i' "IrY?dG *#*r was c•'_'Clt '!?y N.A. "11.Z to A3ldY''oW
RcCoy, Assistant Prosecuting ?3ttorneay, at 103 East Main Street,
Wilcninqtor+, Oh io 95177, an the 7; 5` day of July 2tJ5. - /^
0Charles William Carter
$upx.ent.e ^.rrur# .rrfOFFICE OF THE CLERK
65 SOUTH FRONT STREET, COLUMBUS, OH 43215-3431
CHIEF JUSTICE
ERIC BROWN
JUSTICES
PAUL E. PFEIFER
EVELYN LUNDBERG STRATTON
MAUREEN O'CONNOR
TERRENCE O'DONNELL
JUDITH ANN LANZINGER
ROBERT R. CUPP
September 10, 2010
11
Charles William Carter 419-712Ross Correctional InstitutionP. O. Box 7010Chillicothe, OH 45601
Dear Mr. Carter:
CLERK OF THE COURT
KRisTINA D. FROST
TELEVHONE 614.387.9530
FACSIMILE 614.387.9539www.supremecourt.ohio.gov
The enclosed Motion to File Appellate Court's Reply to Previously Filed; Notice of filingof, Motion to Certify Conflict, in this Action was not filed because it is not permitted bythe Rules of Practice of the Supreme Court of Ohio. According to Rule 3.3, jurisdictionalmemoranda cannot be supplemented and any motion seeking to waive the prohibitionmust be refused.
You document could not be filed as a Notice of Certified Conflict because it was notaccompanied by the $100 filing fee required by Rule 15.1. You were alerted to thisrequirement in two previous letters, one from Deputy Clerk Nathan and the other fromKristina Frost, Clerk of Court. Because the 30-day deadline for filing the notice ofcertified conflict has passed, the Supreme Court of Ohio is divested of jurisdiction toreview the order certifying a conflict.
Sincerely,
JoEllaDeputy Clerk
Enclosures
11
C̀̂ ^r ' 1^ixpx.emr (foux# of 04t.a
WEEIUSTICE
ERIC BROWN
OFFICE OF THE CLERK65SoUTH FRONT STREET, COLUMBUS, OH 43215-3431
CLERK OF THE COURT
KRISTINA D. FROST
JUSTICES
PAUL:E. PFEIFER
EVELYN$UNDBERG STRATTON
MAUREEN O'CONNOR
TERRENCE O'DONNELL
JUDITH ANN LANZINGER
ROBERT R. Cupp
November 15, 2010
Charles William CarterA419-712Ross Correctional InstitutionP. O. Box 7010Chillicothe, OH 45601
Dear Mr. Carter:
TELEPHONE 614.387.9530
FACSIMILE 614.387.9539
www.supremecourLohio.gov
The enclosed document was not filed because it does not comply with the Rules of Practice ofthe Supreme Court of Ohio. Specifically, it does not have attached to a certificate of serviceindicating that a copy of the document was served on opposing counsel. The Clerk's Office isnot permitted to file the document without its certificate of service. See Rule 14.2(C).
You may correct your document and resubmit it to the Clerk's Office for filing. The time forfiling has not been stayed, however. The corrected document must be received in the Clerk'sOffice on or before November 18, 2010. The Clerk's Office is prohibited from filing untimelydocuments by Rule 14.1(D).
Sincerely,Clerk's Office
Enclosure
CHIEFIUSTICE
ERIC BROWN
JUSTICES
PAUL E. PFEIFER
EVELYN LUNDBERG STRATTON
MAUREEN O'CONNOR
TERRENCE O'DONNELL
IUDITH ANN LANZINGER
ROBERTR.CUPP
OFFICE OF THE CLERK65 SouTH FRONT STREET, CoLuMBus, OH 43215-3431
November 23, 2010
g4.e 'Ouvrr-eae ^Ourt of
Charles William CarterA419-712Ross Correctional InstitutionP. O. Box 7010Chillicothe, OH 45601
t
CLERK OF THE COURT
KRISTINA 1). FROST
TELEPHONE 614.387.9530
FACSIMILE 614.387.9539
W ww.supremecourtohio. gov
Dear Mr. Carter:
The enclosed document is being returned to you because it does not comply with the Rules ofPractice of the Supreme Court of Ohio. Specifically, it does not comply with the Court Entrydated, November 4, 2010 which allows fourteen days for a response. Accordingly, the responsewas due for filing on or before November 18, 2010. The Clerk's Office is prohibited from filing
untimely documents by Rule 14.1(D).
Sincerely,Clerk's Office
Enclosure
