Request to withdraw guilty plea denied

7/30/2019 Request to withdraw guilty plea denied

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IN THE COURT OF COMMON PLEASLAKE COUNTY, OHIO

STATE OF OHIO ) CASE NO. 06CR000560) 06CR000700

Plaintiff )) JUDGE EUGENE A. LUCCIvs. )

) ORDER DENYING DEFENDANTSRONALD DUDAS ) MOTION TO WITHDRAW GUILTY

) PLEAS OR, ALTERNATIVELY, TODefendant ) VACATE GUILTY PLEAS

Introduction

{1} Defendant Ronald Dudas, by and through counsel, Michael A. Partlow, Esq., filed,

on March 26, 2013, a motion to withdraw guilty pleas or, alternatively, to vacate guilty

pleas. Defendant asserts the motion is legally premised upon Crim.R. 32.1, governing

withdrawal of criminal pleas, and R.C. 2953.21, governing petitions for post-conviction

relief.

{2} For reasons set forth in the following findings of fact and conclusions of law, the

motion is overruled, denied, and dismissed without oral hearing as being barred by the

doctrine of res judicata, being untimely filed, and without any substantive grounds for

relief.Matters Considered

{3} As required by law, the court has considered the defendants motion to withdraw

guilty pleas or, alternatively, to vacate guilty pleas, filed March 26, 2013, the supporting

affidavits and the documentary evidence, the record in this case, including the

indictment, the courts journal entries, the records of the clerk of the court, the appellate

history (described in more detail, below), the transcript of proceedings of the

competency hearing, jury trial, plea hearing, and sentencing hearing, and all filings of

the defendant in these cases, the memoranda in support, and all of his documentary

attachments, including but not limited to the following relevant motions filed, on the

dates indicated, by the defendant:

12/1/2006 Motion to withdraw guilty plea (orally withdrawn on December 1, 2006 atthe sentencing hearing)


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12/5/2006 Motion to withdraw all pleas, plead a new and request for a new trial

12/5/2006 Request for recusal of J udge Lucci and new trial

12/7/2006 Motion to set aside judgment

12/21/2006 Affidavit ofdisqualification of Judge Lucci

12/27/2006 Motion to return stolen lap top computer from State of Ohio and stolenfiles

1/24/2007 Affidavit ofdisqualification of Judge Lucci

4/19/2007 Motion for certification of conflict (in regards to the 12/27/2006 motion)

5/17/2007 Affidavit in support of request for recusal, from the Ohio Supreme Court

5/23/2007 Defendant's Motion for findings of facts and conclusions of law (in regards

to the 12/27/2006 motion)

5/25/2007 Copy of judgment entry received from Supreme Court Case 07-AP-46,filed, denying disqualification of J udge Lucci

6/29/2007 Petition for post-conviction relief

6/29/2007 Motion for appointment of counsel to assist in petition for post-convictionrelief

6/29/2007 Motion for expert assistance, counsel, to assist in petition for post-conviction relief

8/31/2007 Motion for reconsideration of courts denial ofpost-conviction relief

8/31/2007 Amended Petit ion for post-convic tion rel ief

9/13/2007 Motion for relief from judgment pursuant to Civ.R. 60(B)

10/4/2007 Petition to return all seized contraband from the seizing law enforcementagency, including attachment

10/4/2007 Motion to compel court for findings of facts and conclusions of law (inregards to the motion to return stolen property)

10/26/2007 Civil Rule 34 request for production of documents, discovery upon thestate

3/17/2008 Civil investigative demand against State, seeking investigation against thestate for conspiracy

3/17/2008 Civil Rule 34 request for production of documents, discovery upon thestate (similar or identical to that filed on 10/26/2007)


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4/15/2008 Motion to withdraw guilty plea Crim.R. 32.1, including exhibits

5/27/2008 Motion to quash indictments

6/5/2008 Motion for reconsideration to motion denying motion to withdraw guiltyplea

7/21/2008 Request for production of documents (similar or identical to that filed on10/26/2007 and 3/17/2008)

8/6/2008 Motion to void judgment of sentencing

8/18/2008 Motion to recuseJ udge Lucci

9/2/2008 Copy of request for recusal of J udge Lucci received from Supreme Courtcase 08AP086

9/12/2008 Copy of J udgment Entry from the Supreme Court of Ohio, denying

disqualification of J udge Lucci9/26/2008 Motion to vacate payment of court costs and/or fines

1/20/2009 Motion to void judgment due to fraud & perjury

4/6/2009 Request for production of documents (similar or identical to that filed on10/26/2007, 3/17/2008, and 7/21/2008)

5/5/2009 Motion to void judgment and dismiss indictment

10/28/2009 Motion to withdraw guilty plea Crim.R. 32.1 due to actual innocence

11/30/2009 Motion to invalidate plea agreement as unconstitutional

12/10/2009 Defendant's response to states brief in opposition

12/28/2009 Motion for reconsideration of order denying guilty plea (withdrawal)

5/27/2010 Petition for relief after judgment pursuant to R.C. 5145.01

6/16/2010 Motion to compel state and trial cour t to honor legal contract

11/23/2010 Motion to take judicial notice of illegal sentence imposed by the LakeCounty Court of Common Pleas as void

11/23/2010 In camera inspection of witness grand jury testimony

12/29/2010 Request for in camera Inspection of witness grand jury testimony pursuantto Crim.R. 16(b)(1)(g) and 16(c)(1)(d)

12/29/2010 Motion for sentencing to impose mandatory post-release control for fiveyears rather than up to five years


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4/26/2011 Motion for Court to answer prior filings (of 11/23/2010 and 12/23/2011[sic])

5/19/2011 Motion to allow defendant to be present in court and proceed pro se atJ une 30, 2011 hearing (imposing the five years of post-release control)

5/19/2011 Brief in opposition to courts ruling denying motions

6/15/2011 Motion for immediate reconsideration of this Courts ruling granting motionin part filed J une 7, 2011

7/13/2011 Request/order for transcript of proceedings

7/13/2011 Motion for transcripts at states costs

11/15/2011 Motion for appointment of counsel outside of public defenders office atstates expense

3/29/2012 Motion to remove intimidation from conviction11/7/2012 Motion to void judgment on Case No. 06CR000700

11/15/2012 Amended motion to void judgment in Case No. 06CR000700.

{4} Included in the prior filings of the defendant are: five requests to withdraw his

guilty pleas, or reconsideration of its denial; one petition for post-conviction relief, and

its amendment; one motion to set aside the judgment of conviction, two motions for

relief from judgment of conviction; five requests to void the judgment of conviction;

two requests to invalidate the plea agreement; two requests to quash the indictmentor remove the intimidation counts from the indictment, six requests for J udge Lucci to

recuse himself or be disqualified by the Supreme Court, and seven requests for

discovery from, or investigation of, the state. The within motion to withdraw/vacate

guilty pleas and/or for post-conviction relief is the 19th time that essentially the same

request has been made regardless of what the motion is called and determined by

this court to have no merit, and further litigated and upheld on appeal. For the reasons

stated in this judgment, including the findings of facts and conclusions of law, the motion

is again denied.

Procedural History

{5} On October 19, 2006, the defendant pled guilty in two cases that were

consolidated in this court. After two days of jury trial in Case No. 06CR000560 (the

murder conspiracy case), the defendant pled guilty to four counts of intimidation of


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Detective Simon Cesareo of the North Olmsted Police Department and Cuyahoga

County Common Pleas J udge David T. Matia, and one count of retaliation against

J udge Matia. In Case No. 06CR000700 (the corrupt activity case), appellant pled guilty

to engaging in a pattern of corrupt activity, tampering with records, forgery, felony theft,

uttering, securing writings by deception, and telecommunications fraud.

{6} In the murder conspiracy case, the defendant hired a hit man to murder J udge

Matia and to break Detective Cesareos legs in retaliation for their roles in investigating

and sentencing him in a prior felony theft case.

{7} In the corrupt activity case, the defendant formed and carried on an enterprise for

the ostensible purpose of providing loans to individuals in desperate financial straits, but

with the true purpose of stealing their funds and real estate. He set up and operated

mortgage companies to accomplish this purpose. Many of the defendants victims were

near foreclosure, and he took advantage of their plight by stealing the last of their

assets. Defendant created false loan applications and mortgages, using the name and

credit of his victims to obtain loans from lenders. He then stole the proceeds from these

loans. He also stole money and real estate from his victims. He stole in excess of one

million dollars from multiple victims, driving many of them into financial ruin and/or

bankruptcy. The indictment listed 35 victims. Defendant stole more than $100,000

apiece from 14 separate victims.{8} Following a sentencing hearing on December 1, 2006, in the murder conspiracy

case, this court sentenced Defendant on each of four counts of intimidation to five

years, each term to run concurrently to the others. The court also sentenced him to five

years on the retaliation count, to be served consecutively with the intimidation counts,

for a total of ten years.

{9} In the corrupt activity case, the court sentenced Defendant to ten years for

engaging in a pattern of corrupt activity, five years for tampering with records, 18

months for forgery, one year for theft, 18 months for uttering, five years for securing

writings by deception, and 18 months for telecommunications fraud. The prison terms

imposed for forgery, theft, uttering, and telecommunications fraud were to be served

concurrently to each other and concurrently to the terms imposed for engaging in a

pattern of corrupt activity, tampering with records, and securing writings by deception.


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The terms for engaging in a pattern of corrupt activity, tampering with records, and

securing writings by deception were to be served consecutively to each other, for a total

of 20 years in prison, and consecutively to the prison term in the murder conspiracy

case, for a total of 30 years in prison.

{10} The defendant, post-sentencing, has filed approximately 60 motions in the trial

court, seeking to have his plea withdrawn, vacated, or voided. Included in these filings

were multiple requests to withdraw his pleas of guilty and petitions for post-conviction

relief. The court carefully considered and ruled upon each motion. The defendant

appealed 26 times to the Eleventh District Court of Appeals, which disposed of each of

his appeals, overruling all of them and every claimed assignment of error therein, in 18

separate opinions. The defendant filed two affidavits in the Ohio Supreme Court

seeking this judges disqualification and removal from his cases; he attempted two

appeals to the Supreme Court from decisions of the court of appeals; and he filed one

action in habeas corpus against the warden of the state penal institution where he was

held seeking his release from an allegedly unconstitutional imprisonment. All of the

appeals and/or requests were denied by the Supreme Court.

The Colloquy and Guil ty Plea

{11} The court painstakingly conducted a colloquy with the defendant when he

decided to forego his jury trial on the second day of trial and plead guilty to 12 of hismany charges. Some excerpts are relevant to the consideration of Defendants motion.

J UDGE LUCCI: I need the plea form. This covers the known cases, Lake CountyCommon Pleas Court cases 06CR000560, 06CR000699,06CR000556, 06CR000558, 06CR000622, 06CR000557,06CR000559 and 06CR000700. And it is my understanding, Mr.Dudas, that you wish to plead guilty to 12 offenses out of thenumerous offenses comprised in these indictments. Probablycouple hundred or so counts. My understanding youre gonnaplead to 12 counts specifically in case number 560 and 699, whichis the trial that is currently under way. That youre proposing toplead guilty to count 1, which is intimidation, felony 3; count 15,intimidation, felony 3; count 16, retaliation, felony 3; count 24,intimidation, felony 3; and count 29, intimidation, felony 3; and thatall of the victims that are mentioned in those cases to the extentthat they are listed under any intimidation or retaliation count wouldbe considered as victims in all of these counts, these 5 counts inthis case. Have I stated that correctly, Mr. Kasaris?


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DANIEL KASARIS: Thats correct, Your Honor.

[Tr.P.159-160]

. . .

J UDGE LUCCI: Okay. Alright. So so far on the case that is under way, Mr. Dudas,you understand that the proposal by your attorneys would be thatyou plead to counts 1, 15, 24 and 29, which would be intimidations,and count 16, retaliation.

RONALD DUDAS: I do, Your Honor.

[Tr.P.161]

. . .

J UDGE LUCCI: Okay. And you know all of those are felonies of the 3rd degree,

and felony 3's have maximum potential imprisonment of up to 5years each. You understand that?

RONALD DUDAS: Yes I do, Your Honor.

J UDGE LUCCI: Alright. And then in the 700 case, the proposal is that you arepleading guilty to count 1, which is engaging in a pattern of corruptactivity, aka RICO. Thats a felony of the 1st degree. Felony 1'scarry a potential penalty of up to 10 years in prison. Youunderstand that?

RONALD DUDAS: Yes, sir.

J UDGE LUCCI: Its also proposed that you plead guilty to count 5, tampering withrecords; count 43, forgery; count 50, theft; count 56, uttering; count78, securing writings by deception; and count 125,telecommunications fraud. And all of those are F3's except forforgerys an F4, utterings an F4 and telecommunications fraud isan F4. And are those the counts youre proposing to plead guilty toon the 700 case?

MICHAEL PETERSON: Yes.

RONALD DUDAS: Yes, Your Honor.

J UDGE LUCCI: Alright. And its my understanding that as to the 700 case, all of thevictims are merged into those counts to the extent theyve beenvictimized by that type of crime.

DANIEL KASARIS: For example, Your Honor, we would ask that Frank Fetchet(sp) bemerged into Count 5, which is tampering with records - -

J UDGE LUCCI: Even though hes not mentioned in count 5 - -


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DANIEL KASARIS: Even though hes not mentioned - -

J UDGE LUCCI: in the indictment.

DANIEL KASARIS: in count 5, right. Wed, Id like to put that on the record if I can.

J UDGE LUCCI: Yes.

DANIEL KASARIS: With regards to Count 43, Gerald Markovich, JD Goddard andDaniel Mullen will be merged into count 43. With regards to thetheft, which is count 50, Denice Bates, Deborah Dell, RandyVecchio, Cynthia Woide, Dan Mullen, Linda Williams, WilliamCummings, Accredited Home Lenders, Daniel Emrisko, MarkFowler - - E M R I S K O is Emrisko, Mark Fowler, Steve Ruben,Bruce Limmer, Lenders Diversified, J D Goddard and Cree C R E ECouer C O U E R Lending. And those would be the victims thatwould be merged into count 50.

J UDGE LUCCI: And are there merges as to 56, 78 and 125?

DANIEL KASARIS: There is one merge as to 50, as to 78. That would be CynthiaWoide.

J UDGE LUCCI: Okay. And none as to the uttering, 56?

DANIEL KASARIS: None as to the uttering or the - -

J UDGE LUCCI: Or the 125 - -

DANIEL KASARIS: telecommunications count.

J UDGE LUCCI: telecommunications.

DANIEL KASARIS: Thats correct, Your Honor.

J UDGE LUCCI: And so, Mr. Dudas, so far is that your understanding, whatseverbeen stated here?

RONALD DUDAS: Yes it is, Your Honor.

[Tr.P.161-163]

. . .

{12} [The court inquired of the defendants mental state and medications.]

J UDGE LUCCI: And do any of these medications adversely affect your ability tothink clearly?

RONALD DUDAS: No, Your Honor.

J UDGE LUCCI: Are you thinking clearly now?


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RONALD DUDAS: Yes I am.

J UDGE LUCCI: No difficulty understanding what Im talking about

RONALD DUDAS: No, sir.

J UDGE LUCCI: No difficulty understanding what you and your attorneys havetalked about?


J UDGE LUCCI: And certainly, since we are at the end of a full day of trial, nodifficulty understanding what was going on in detail today. Correct?

RONALD DUDAS: Correct.

J UDGE LUCCI: Now its my understanding that some of the medication youretaking is for some mental illness and as has been mentioned here

during the opening statement by Mr. Drucker, you are diagnosed asbipolar?

RONALD DUDAS: Thats correct, sir.

J UDGE LUCCI: And whats the secondary diagnosis?

RONALD DUDAS: Obsessive compulsive - -

J UDGE LUCCI: Okay - -

RONALD DUDAS: disorder.

J UDGE LUCCI: OCD. Alright. And obviously the medication is working becauseyou are very well behaved - -

RONALD DUDAS: Thank you, sir.

J UDGE LUCCI: and youre right down the middle of the road. And do you feel like,that these mental illnesses that you have are not impacting yourability to think clearly here?

RONALD DUDAS: Thats correct.

[Tr.P.167-168]

. . .

{13} [The court inquired of the defendants knowledge of the charges and his

willingness to plead guilty to certain counts and the maximum possible penalties

associated with those charges.]


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J UDGE LUCCI: Okay. Now youve received copies of the indictments in all of thesecases, correct?

RONALD DUDAS: I have, Your Honor.

J UDGE LUCCI: And youve read them all?


J UDGE LUCCI: And have you discussed them at length with your attorneys?

RONALD DUDAS: I did.

J UDGE LUCCI: They answered all your questions to your satisfaction?

RONALD DUDAS: Yes they have.

J UDGE LUCCI: And as to the charges that you wish to plead guil ty to, the 12,do you agree that those charges accurately and adequatelyreflect your conduct over these period of time covered by theindictment?

RONALD DUDAS: I believe my culpabilitys present on those, yes, sir.

J UDGE LUCCI: And do you want to plead guilty to the charges that I outlined at thebeginning of this session?


J UDGE LUCCI: Ive, I also have this written plea of guilty, 5 page document, whichoutlines your rights and lists specifically the charges and the

potential penalties. Have you read this document?

RONALD DUDAS: Yes, I have, Your Honor.

J UDGE LUCCI: And it is not written in at the bottom here, but I will do the quickcalculations as to what the maximum exposure to you in prison is.On the felony 3's its 5 years; on felony 1 its 10; and felony 4's its18 months; and on the - - there are no felony 5's? Or are there.

MICHAEL PETERSON: No.

DANIEL KASARIS: There are no 5's.

J UDGE LUCCI: No felony 5's. Okay. So 54 . Is that what you have as amaximum exposure?

DANIEL KASARIS: Yes, Your Honor.

J UDGE LUCCI: And then as far as fines go, $120,000.00?

DANIEL KASARIS: Yes, Your Honor.


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J UDGE LUCCI: Alright. You have read this document?

RONALD DUDAS: Yes I have, Your Honor.

J UDGE LUCCI: Have you discussed it with your attorneys?

RONALD DUDAS: Yes I have.

J UDGE LUCCI: Have they answered all your questions to your satisfaction?

RONALD DUDAS: Yes they have.

J UDGE LUCCI: Do you agree with what this document says?

RONALD DUDAS: Yes I do.

J UDGE LUCCI: And is this a document that you wish to sign?

RONALD DUDAS: Yes it is.

[Tr.P.168-171] (Emphasis added.)

. . .

J UDGE LUCCI: Okay. Well, Ill let you know when I need some information on that.But as to the case under trial right now, the 560 and 699 case,Count 1 says that you committed intimidation in violation of RevisedCode Section 2921.03 on October 19th, 2005 when in CuyahogaCounty, Lake - - or Cuyahoga County, Ohio you knowingly and byforce or by unlawful threat upon to any person or propertyattempted to influence, intimidate or hinder a public servant or

witness, namely Simon Cesareo, a North Olmstead Police Officer inthe discharge of his duty. Do you understand that charge?


J UDGE LUCCI: And is that one you want to plead guilty to?

RONALD DUDAS: It is.

J UDGE LUCCI: Count 15 says that on October 23, 2005, you committed the crimeof intimidation, in violation of Revised Code 2921.03 when youknowingly and by force or by unlawful threat of harm to any person

or property did attempt to influence, intimidate or hinder a publicservant, namely Judge David Matia, in the discharge of his duty.Do you understand that charge?

RONALD DUDAS: I do.


RONALD DUDAS: Yes it is.


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J UDGE LUCCI: Count 16 says that on October 23, 2005 in Cuyahoga County,Ohio, that you committed the crime of retaliation in violation ofRevised Code Section 2921.05 when you purposely and by force orby unlawful threat of harm to any person or property retaliatedagainst a public servant, namely J udge David Matia, who was

involved in a criminal action or proceeding because the publicservant discharged the duties of the public servant. Do youunderstand that charge?

RONALD DUDAS: Yes, sir, I do.

J UDGE LUCCI: Is that one you want to plead guilty to?


J UDGE LUCCI: Count 24 says that you committed the crime of intimidation inviolation of Revised Code Section 2921.03 when on November27th, 2005 you did knowingly and by force or by unlawful threat ofharm to any person or property attempt to influence, intimidate orhinder a public servant, namely J udge David Matia, in thedischarge of his duty. Do you understand that charge?




J UDGE LUCCI: And Count 29, the last charge on the 560, 699 case, that youcommitted the crime of intimidation in violation of Revised CodeSection 2923.03 between October 19th and November 29th, 2005when you knowingly and by force or by unlawful threat of harm toany person or property attempted to influence, intimidate or hindera public servant, namely J udge David Matia, in the discharge of hisduty. Do you understand that charge?


J UDGE LUCCI: And is that a charge to which you wish to plead?


J UDGE LUCCI: You understand that all of these charges are felonies of the 3rddegree, all carry penalties of imprisonment between 1 and 5 years?


[Tr.P.171-174]

. . .


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J UDGE LUCCI: Do you understand that if you plead guilty to these charges youreadmitting you committed the crimes?


J UDGE LUCCI: Do you understand that if you had any defenses to the charges

youre giving them up by pleading guilty?


J UDGE LUCCI: And do you understand by pleading guilty youre giving the Courtthe power to sentence you immediately?


[Tr.P.184]

. . .

{14} The court described in detail the right and function of a trial and the jury trial.

[Tr.P.184-185]. The court described in detail the state's requirement of proof beyond a

reasonable doubt. [Tr.P.186]. The court described in detail the right to confront the

witnesses against the defendant in court. [Tr.P.186-187]. The court described in detail

the compulsory process available to the defendant to get witnesses to court on his

behalf. [Tr.P.187]. The court described in detail the defendant's right against self-

incrimination. [Tr.P.187-188].

. . .

{15} The court explained that this plea is a "global" settlement of all cases filed and all

investigations underway, known or unknown to the defendant, in any way connected

with the mortgage business.

[Tr.P.188-189]

. . .

J UDGE LUCCI: Okay. You understand that? And secondly, I want to make sure

you understand by my going in to this detail Im not trying to talkyou out of it.

RONALD DUDAS: Youre scaring the hell out of me.

J UDGE LUCCI: Okay. I am not trying to talk you out of it. However, I explain yourrights in detail to you because this is it. And I want to make sure.This is a voluntary process. And if you dont want to go forward


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with i t you just tell me, and well be back tomorrow morningand continue with the jury trial. Thats why the jury does notknow what were doing. Theyre a little irritated that I gave them a20 minute break and now its 2 hours. But the bailiff was instructedto tell them when they rang the buzzer wondering did everybody go

home, why theyre still here. All he told them was that we areworking. And so - -

RONALD DUDAS: So if I wanted to say I dont want to do the plea right now, itdrops everything.

J UDGE LUCCI: Doesnt drop the trial. We continue with the trial tomorrow.

RONALD DUDAS: No, I understand that.


. . .

{16} [The court continued the colloquy with the plea agreement and potential prison

sentences.]

J UDGE LUCCI: Do you understand that I can run the sentences on each of thesecounts consecutive with each other?

RONALD DUDAS: Even though theres a - -

MICHAEL PETERSON: Wild. Wild.

RONALD DUDAS: Even though we have a plea between 5 and 10?

J UDGE LUCCI: Well, let me explain that. First off, you understand that theagreement between you, your attorneys and the prosecutorare between you, your attorneys and the prosecutor. Youunderstand that?

RONALD DUDAS: I do.

J UDGE LUCCI: You understand Im not a party to the agreement.

RONALD DUDAS: So you don t have to accept either or.

J UDGE LUCCI: Thats correct. And Im gonna get to that in about 35 seconds.

RONALD DUDAS: Ill wait til you get to that.

[Tr.P.195] (Emphasis added.)

. . .

J UDGE LUCCI: And do you understand what consecutive means?


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RONALD DUDAS: Following one another through.

J UDGE LUCCI: Right. You serve one prison term on one count in its entiretybefore you start the second one. And serve that time in itsentirety before you start the third one. So you understand thatthe consecutive maximum on these counts comes up to 54.5years?

RONALD DUDAS: I can get that much?

J UDGE LUCCI: You can. And you can get far more than that if you were foundguilty of all of the charges. For instance, the 33 counts in this casethat we are in trial, there are felony 1's- -

DANIEL KASARIS: Theres 30 felonies of the 3rd degree.

J UDGE LUCCI: Thirty felonies of the 3rd degree. And how many felony 1's?

DANIEL KASARIS: Two. And theres one felony of the second degree.

J UDGE LUCCI: Okay. But the 2, the felony 1's merge.

DANIEL KASARIS: Right.

J UDGE LUCCI: So you are, you are facing, just in the trial that is under way, youare facing over 100 years in prison. J ust on this trial alone. Itdoesnt include the mortgage trial, the big one. The 700 case.

MICHAEL PETERSON: The Court, Your Honor, is making no commitment at thistime until the day of sentencing. So the Defendant

understands, youre just explaining to h im the maximum andminimum penalties he could face. I dont want the Defendantto think that youre gonna send him to 54.5 years. I mean,thats not what youre saying to the Defendant. Now maybehes taking it wrong.

J UDGE LUCCI: Well - - and I understand his apprehension. But I want to makeit clear. Do you understand that what youre pleading to, it canresult - - Im not saying it wi ll, but it can result in a prison termof 54 years?

RONALD DUDAS: Could be dead before then.

J UDGE LUCCI: Pardon me?

RONALD DUDAS: Ill be dead before then.

MICHAEL PETERSON: No, do - -

J UDGE LUCCI: Okay. But do you understand - -?


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MICHAEL PETERSON: you understand?

J UDGE LUCCI: that?

RONALD DUDAS: Yes I do.

J UDGE LUCCI: Okay. And do you understand that the fines can be runconsecutive, for a total of $120,000.00?

RONALD DUDAS: I do.


. . .

J UDGE LUCCI: Okay. Now to the part that we just talked about. Do youunderstand no promises have been made by the Court, yourattorneys, the prosecutor or anyone as to what I would do when it

comes time for sentencing?RONALD DUDAS: Yes, sir.

J UDGE LUCCI: And do you under-stand I dont know what I would do r ightnow. I have no idea what I will do in this case until the time ofsentencing, because I will hold a hearing. And the victimshave a consti tutional right to be heard before any sentencing.

And you have a right under the constitut ion to say what youwant me to know before I sentence you. And the prosecutorand your attorneys wil l say what they need to say. And Iwould take all of that into consideration. I will apply the

princ iples and purposes of sentencing law under Ohio, andthen, and only then, will I come up with the disposition. Thepunishment in this case. You understand that I will not comeup with that until that time?


J UDGE LUCCI: So that no one can commit for me. Your attorneys cant tellyou what Ill do, the prosecutor cant, and certainly I cant atthis point. You understand that?

RONALD DUDAS: I do.

J UDGE LUCCI: And you understand I am not bound by, and do not have toaccept the recommendations by your attorney, the prosecutor ,or any joint recommendation in this case?


J UDGE LUCCI: Has anyone made any promises or threats to you in order to getyou to plead guilty?


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J UDGE LUCCI: And are you entering this plea freely and voluntarily?

RONALD DUDAS: Yes I am.


. . .

J UDGE LUCCI: And do you understand that despite your performance of everythingthat would fulfill your obligation with the prosecutor, that Im notbound by that agreement.

RONALD DUDAS: I understand.

J UDGE LUCCI: So this can turn out - - Im tell you it can turn out - - Im notsaying it will, but Im telling you it can turn out that the

prosecutor asks me to sentence you to no more than 10 yearsin prison. It can turn out that I sentence you to 54.5 years inprison. Do you understand that?

RONALD DUDAS: Yes.

J UDGE LUCCI: Do you still wish to plead guilty?

RONALD DUDAS: Yes.


. . .

{17} [The court inquired of the defendants volition in entering the guilty pleas and his

satisfaction with his attorneys.]

J UDGE LUCCI: Okay. Is this your own decision and voluntary act to plead guilty tothese 3 charges, even though your attorneys are recommendingthat you do so?

RONALD DUDAS: Yes.

J UDGE LUCCI: Have your attorneys done everything youve asked them to do

for you in this case? In these cases.

RONALD DUDAS: Yes they have. Theyve fulfi lled their obligations that way.

J UDGE LUCCI: And are you completely satisf ied wi th the representationprovided by your attorneys, Mr. Peterson, Mr. Drucker and Mr.Bartell?

RONALD DUDAS: I think that I got what I paid for .


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J UDGE LUCCI: And do you believe that they have performed adequate andcompetent legal services for you?

RONALD DUDAS: I think they gave me the best advice they felt was suffic ient forme at this point in time.

[Tr.P.202] (Emphasis added.)

. . .

{18} [The prosecutor outlined what the state would prove if the case continued on with

the jury trial, including incorporating his opening statement.]

[Tr.P.203-205]

. . .

{19} [The defendant pled guilty to the 12 charges.]

J UDGE LUCCI: Mr. Dudas, you heard and understand everything theprosecutor just said?


J UDGE LUCCI: And is what he said true?


J UDGE LUCCI: What is your plea then to, in case number 560 and 699, to Count 1,intimidation, felony 3?

RONALD DUDAS: Guilty.

J UDGE LUCCI: What is your plea to Count 15, intimidation, felony 3?


J UDGE LUCCI: What is your plea to Count 16, retaliation, felony 3?






J UDGE LUCCI: In case number 700, what is your plea to Count 1, engaging in apattern of corrupt activity, felony 1?



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J UDGE LUCCI: Plea as to Count 5, tampering with records, felony 3?


J UDGE LUCCI: Count 43, forgery, felony 4?


J UDGE LUCCI: Count 50, theft, felony 3?


J UDGE LUCCI: Count 56, uttering, felony 4?


J UDGE LUCCI: Count 78, securing writings by deception, felony 3?


J UDGE LUCCI: Count 125, telecommunications fraud, felony 4?



. . .

J UDGE LUCCI: The Court will also sign this document and make it part of therecord. Let the record reflect that Defendant, Ronald A. Dudas,was here with attorneys Michael Peterson, Richard Drucker and

J ohn Bartell in open court. The Defendant was informed of all ofhis constitutional rights. Hes made a knowing, intelligent andvoluntary waiver of those rights. The Court also finds that theDefendant understands the nature of the charges, the effect of thepleas, as well as the maximum penalty which can be imposed.Finding it to be knowing, intelligent and voluntary, the Court acceptsthe pleas and finds the Defendant guilty of in case numbers 560and 699, Count 1, intimidation, felony 3, Revised Code Section2921.03; Count 15, the same; Count 24, the same; Count 29, thesame; and Count 16, retaliation, felony 3, in violation of RevisedCode Section 2921.05. And in case number 700, Count 1,

engaging in a pattern of corrupt activity, felony 1 in violation ofRevised Code Section 2923.32; Count 5, tampering with records,felony 3 in violation of 2913.42; Count 43, forgery, felony 4 inviolation of Revised Code Section 2913.31; Count 50, theft, felony3 in violation of Revised Code Section 2913.02; Count 56, uttering,felony 4 in violation of Revised Code Section 2913.31; Count 78,securing writings by deception, felony 3 in violation of RevisedCode Section 2913.43; and Count 125, telecommunications fraud,


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felony 4 in violation of Revised Code Section 2913.05. All of theother counts and all of the other cases are dismissed. The Courtwill have a pre-sentence report done and victim impact statements.Sentencing will be held on December 14, 2006 at 9 a.m. in thisCourt.

[Tr.P.207-209]

Appel late History

{20} Defendant Dudas filed a direct appeal on December 15, 2006, and the court of

appeals affirmed his conviction on December 14, 2007 in State v. Dudas, 11th Dist.

Nos. 2006L267 and 2006L268, 2007Ohio6739, discretionary appeal not allowed

on May 21, 2008 by the Supreme Court at 118 Ohio St.3d 1409, 2008Ohio2340

(Dudas I). Dudas appealed the sentence of the Lake County Court of Common Pleas

following his guilty plea to intimidation of a judge of the Cuyahoga County Common

Pleas Court and engaging in a pattern of corrupt activity involving the thefts of money

and real estate from numerous victims. At issue in this appeal was whether the state

breached the negotiated plea bargain. For the reasons stated in its opinion, the court of

appeals affirmed the trial court. In addition, by judgment entry dated J une 3, 2008, the

court of appeals denied Dudas motion for reconsideration of the court of appeals

affirmance of his conviction in Dudas I.

{21} Following his conviction, Dudas filed multiple pro se motions and appealed the

trial courts denial of the requested relief. On December 14, 2007, in State v. Dudas,

11th Dist. No. 2007L074, 2007Ohio6731 (Dudas II), the court of appeals affirmed

the trial courts denial of appellants motion to require the state to return his laptop

computer and his personal and business files, which he argued the state had seized in

an unlawful search.

{22} On J une 27, 2008, in State v. Dudas, 11th Dist. Nos. 2007L140 and 2007L

141, 2008Ohio3262 (Dudas III), the court of appeals affirmed the trial courts

dismissal of Dudas petition for postconviction relief. In his petition, Dudas alleged that

he had been set up, that his trial counsel was ineffective, and that the state seized

evidence from him in violation of his Fourth Amendment rights. The court of appeals

noted that the trial court set the matter for sentencing on December 1, 2006 at 9:00

a.m., but that earlier that morning, although represented by counsel, appellant filed a


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pro se motion to withdraw his guilty plea. When the trial court brought this motion to

defense counsels attention, counsel stated, were gonna withdraw that motion. Im

gonna withdraw it on behalf of the Defendant. So we dont have to have a hearing on it

and be heard. Well withdraw the motion to withdraw the plea. When asked by the trial

court if he agreed with these remarks, Dudas said he did.

{23} The court of appeals held that the record demonstrates that Dudas was aware of

his set up and unlawful search claims long before he pled guilty on October 19, 2006.

As a result, on the face of his petition, these issues were barred by res judicata.

{24} Further, as to Dudas argument that he was set up, on November 23, 2005, he

told his girlfriend he had done the reverse with respect to a note. This was a reference

to the fact that in the past Dudas had gotten in trouble by a note he had written. This

time, Dudas wrote a note, dated November 23, 2005, which bears the forged signature

of Harmon the states informant -- stating Harmon had attempted to set up Dudas. In

his petition, Dudas submitted a list of defense witnesses he had prepared for his

attorney prior to September 26, 2006. Dudas included Ronald Wamsley on his list,

who, Dudas noted to his attorney at that time, can prove [Dudas victim, Tom] Platzer

set me up. Dudas also included Nate Bozeman as a potential witness. Dudas noted at

that time that this witness would testify that Harmon had said he set up Dudas while

they were in the medical holding cell. Finally, Dudas included as an exhibit to hispetition a letter to him from a fellow inmate J oe (LNU), dated J uly 13, 2006. In the letter

J oe agrees to testify for Dudas and to tell them just how [Dudas] got set up. Dudas

wrote a note to the trial court on this letter attached to his petition, stating that it is proof

of set up [sic].

{25} The court of appeals held, at 72: Thus, based on the record and the petition,

Dudas was aware of his claims based on set up and illegal search long before he

entered his guilty plea. He failed to assert either issue in trial or on the direct appeal of

his conviction. As a result, these issues are barred by res judicata.

{26} The court will quote liberally from the court of appeals opinion to show that the

defendant did not recently learn of or discover he was allegedly set up, or that he was

not unavoidably prevented from discovery of these facts before the expiration of 180


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days after the transcript was filed in the court of appeals in his direct appeal, and, in any

event, that these matters are barred by the doctrine of res judicata:

On November 23, 2005, appellant told Ms. Bost he had gotten introuble in the past with a note he had written and this time he had done

the reverse. He had gone to Harmons cell and found a prescription forhis medication. Appellant took the prescription and wrote a note on theback stating, I, Robert Harmon, hereby state that I falsely tried to set upRonald Dudas to enhance myself. I have told several lies to detectivesabout Ron Dudas. I sign this note because I was wrong for what I did.The note was dated November 23, 2005, and bore the purported signatureof Harmon. Appellant said this was his protection in the event Harmonturned out to be an informant. Appellant mailed this note to Ms. Bost, andtold her with this he had the upper hand. Detectives turned the note overto the Lake County Crime Lab, which determined that appellant himselfhad written the note and that Harmons signature on the note was a

forgery. At 9; see also 69.

Under appellants second assignment of error, he argues the trialcourt erred in failing to acknowledge the state knew that perjury and fraudhad been committed and that the Lake County Crime Lab had erred in itsconclusion that Harmons purported signature on the November 23, 2005note had been forged. However, appellant points to no evidence in therecord that the state had such knowledge or that the Crime Lab erred in itsconclusion. An appellate court in determining the existence of error islimited to a review of the record. State v. Sheldon (Dec. 31, 1986), 11thDist. No. 3695, 1986 Ohio App. LEXIS 9608, *2, 1986 WL 14939; Schickv. Cincinnati (1927), 116 Ohio St. 16, 155 N.E. 555, at paragraph three ofthe syllabus. Without any evidence in support of appellants argument,there is nothing for us to consider. On appeal it is the appellantsresponsibility to support his argument by evidence in the record thatsupports his or her assigned errors. City of Columbus v. Hodge (1987), 37Ohio App.3d 68, 523 N.E.2d 515. At 52.

The record demonstrates that appellant was aware of his set upand unlawful search claims long before he plead guilty on October 19,2006. As a result, on the face of his petition, these issues were barred byres judicata. At 67.

Appellants claim that he was set up was based on facts that wereknown to him prior to the time he entered his guilty plea. He did notpresent any competent, relevant, and material evidence outside the recordthat did not exist or was unavailable for use at the time of trial. The letterappellant submitted in support of his petition, allegedly written by Harmonon J anuary 27, 2007, stating detectives wanted to set up appellant, doesnot save his claim of set up because appellant was aware of the alleged


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set up long before he plead guilty. This is demonstrated by the fact thatappellant actually wrote the Harmon note, dated November 23, 2005, inwhich Harmon purports to apologize for attempting to set up appellant. Infact, appellant was aware of every challenge referenced in his petitionbefore he entered his guilty plea. By entering that plea and by failing to

litigate these issues in trial or to raise them in his direct appeal, he wasbarred by res judicata from asserting them in his petition. At 79.

The Supreme Court in Lefkowitz v. Newsome (1975), 420 U.S. 283* * *, further held:

* * * Once the defendant chooses to bypass the orderly procedurefor litigating his constitutional claims in order to take the benefits, if any, ofa plea of guilty, the State acquires a legitimate expectation of finality in theconviction thereby obtained. * * * It is in this sense, therefore, thatordinarily a guilty plea represents a break in the chain of events which

has preceded it in the criminal process. Id. at 289, quoting Tollett, supra,at 267. (Citations omitted.) At 83-84.

By entering his guilty plea, appellants constitutional claims, each ofwhich occurred before the entry of his guilty plea, are irrelevant toappellants factual guilt and cannot provide a basis for postconvictionrelief. At 88.

In his third and fourth assignments of error, appellant argues hisattorney provided ineffective assistance. The standard of review forineffective assistance of counsel is whether the representation of trial

counsel fell below an objective standard of reasonableness and whetherthe defendant was prejudiced as a result of the deficient performance. Thedefendant must show that counsels performance was deficient and thatthe deficient performance prejudiced the defendant so as to deprive him ofa fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674. In the context of a guilty plea, the defendant mustdemonstrate that there is a reasonable probability that, but for hiscounsels error, he would not have plead guilty and would have insisted ongoing to trial. Hill v. Lockhart (1985), 474 U.S. 52, 58-59, 106 S.Ct. 366,88 L.Ed.2d 203. At 89.

In any event, as discussed supra, appellants claim of ineffectiveassistance of counsel is irrelevant since counsels alleged deficienciesoccurred prior to the entry of appellants guilty plea. Haring, supra. Byfailing to assert ineffective assistance of counsel either at trial or on directappeal of his conviction, appellant was barred by res judicata fromasserting it in his petition. Szefcyk, supra. At 95.


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{27} On J une 27, 2008, in State v. Dudas, 11th Dist. No. 2007L169, 2008Ohio

3261 (Dudas IV), the court of appeals affirmed the trial courts denial of Dudas motion

to compel two victims of his theft scheme to return his property. In the courts opinion,

at 23, the judges noted that

[t]he newly discovered evidence to which appellant refers is: (1) a letterallegedly written by Robert Harmon in J anuary, 2007, one month afterappellants sentence, and (2) the search and seizure of appellantsproperty. Harmon was appellants fellow inmate who had informed policethat appellant had solicited him to kill J udge Matia and to injure DetectiveCesareo. The Harmon letter suggests appellant was set up. However,appellant was aware of the substance of this letter on November 23, 2005,because on that date, appellant wrote a note purporting to be fromHarmon, which bears Harmons forged signature, in which Harmonpurports to state he falsely attempted to set up appellant. In addition, the

alleged search and seizure could not be newly discovered evidencebecause, according to appellant, the search occurred during the statesinvestigation and the state used the evidence allegedly seized against himin the murder conspiracy case and in the corrupt activity case.

{28} Further:

Thus, by entering his guilty plea in this case, appellant admitted hisfactual guilt and removed the issue of his factual guilt from the case.Because appellant plead guilty, Harmons letter and the alleged search ofappellants residence are irrelevant. At 31.

Under his fourth assigned error, appellant argues the state used anote signed by Harmon knowing the document was not a forgery. Whileappellant did not include this note in the record of this appeal, this appearsto be a reference to the note purportedly written by Harmon, but actuallywritten by appellant, on November 23, 2005, in which Harmon purports tostate that he attempted to set up appellant. The Lake County Crime Labconcluded appellant wrote this note and Harmons signature on the notehad been forged. Appellant sent this note to his girlfriend J ennifer Bost atthat time, and referred to it as his insurance policy in the event Harmonturned out to be an informant. Appellant argues the state knew Harmonssignature on the note was not forged, and that in advancing the positionthat it was forged, the state committed a fraud on the court, entitling himto relief from judgment. There is no evidence in the record to supportthese allegations, and the argument is therefore without merit. In anyevent, because appellant plead guilty, this argument is irrelevant. At 34.

{29} On J une 27, 2008, in State v. Dudas, 11th Dist. Nos. 2007L170 and 2007L

171, 2008Ohio3260 (Dudas V), the court of appeals affirmed the trial courts denial


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of Dudas Civ.R. 60 motion for relief from judgment. Dudas argued that, pursuant to an

unlawful search of his various businesses, the state seized his laptop computer, files,

and other items of property in violation of his Fourth Amendment rights and used them

against him in the murder conspiracy case and in the corrupt activity case.

{30} On December 31, 2008, in State v. Dudas, 11th Dist. Nos. 2008L081 and

2008L082, 2008Ohio7043 (Dudas VI), the court of appeals affirmed the trial

courts denial of Dudas first motion to withdraw his guilty plea. The court of appeals

held that:

The mere fact that, if not for the alleged ineffective assistance ofcounsel, the defendant would not have entered a guilty plea is notsufficient to establish the requisite connection between the guilty plea andthe ineffective assistance. (Emphasis sic.) Id., citing State v. Sopjack

(Dec. 15, 1995), 11th Dist. No. 93-G-1826, 1995 Ohio App. LEXIS 5572,*11, citing State v. Haynes (Mar. 3, 1995), 11th Dist. No. 93-T-4911, 1995Ohio App. LEXIS 780, *4 -*5. Rather, ineffective assistance of trialcounsel is found to have affected the validity of a guilty plea when itprecluded a defendant from entering his plea knowingly and voluntarily.Madeline, supra. Generally, a guilty plea is deemed voluntary if the recorddemonstrates the trial court advised the defendant of (1) the nature of thecharge and the maximum penalty involved, (2) the effect of entering aguilty plea, and (3) that the defendant will be waiving his constitutionalrights by entering the plea. Id., citing Sopjack, supra, at *27-*28.

{31} The court of appeals further held that the record amply demonstrates thatappellants guilty plea was knowingly, intelligently, and voluntarily made.

{32} On December 31, 2008, in State v. Dudas, 11th Dist. Nos. 2007L189 and

2007L190, 2008Ohio6983 (Dudas VII), the court of appeals affirmed the trial

courts denial of Dudas petition to return all seized contraband from law enforcement

officials. The court held that:

[A] defendant, who pleaded guilty, could not raise on appeal theissue of whether the state exceeded its authority under a search warrant.When defendant entered a guilty plea he admitted his factual guilt andremoved the issue of factual guilt from the case. The court of appealsquoted the U.S. Supreme Court: * * * [A] counseled plea of guilty is anadmission of factual guilt [ ] so reliable that * * * it quite validly removes theissue of factual guilt from the case. In most cases, factual guilt is asufficient basis for the States imposition of punishment. A guilty plea,therefore, simply renders irrelevant those constitutional violations not


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logically inconsistent with the valid establishment of factual guilt and whichdo not stand in the way of conviction, if factual guilt is validly established.

{33} On March 6, 2009, in State v. Dudas, 11th Dist. Nos. 2008L078 and 2008L

079, 2009Ohio1003 (Dudas VIII), the court of appeals affirmed the trial courts

denial of Dudas post-sentence request for production of documents pursuant to Civ.R.

34 and his investigative demand against state. The court of appeals held that the

issue was never before the trial court and not preserved for appeal, when Dudas could

have called but did not call it to the trial courts attention at a time when such error could

have been avoided or corrected by the trial court. The court held that Dudas was not

entitled to discovery under the civil rules in his criminal case, and he offered no authority

and no argument in support of his demand for an investigation against the state. In any

event, such demand is not legally cognizable. However, even if the issue was properly

before the court of appeals, the claimed errors would lack merit, as Dudas ineffective-

assistance claim is premised on his attorneys failure to assert the alleged unlawful

search and seizure of his property. By pleading guilty, Dudas waived the right to assert

a Fourth Amendment violation that allegedly occurred before the entry of his plea.

* * * [A]n allegation of a coerced guilty plea involves actions overwhich the State has no control. Therefore, the defendant must bear theinitial burden of submitting affidavits or other supporting materials to

indicate that he is entitled to relief. Defendants own self-servingdeclarations or affidavits alleging a coerced guilty plea are insufficient torebut the record on review which shows that his plea was voluntary. Aletter or affidavit from the court, prosecutors or defense counsel alleging adefect in the plea process may be sufficient to rebut the record on reviewand require an evidentiary hearing. Id. at 38, 448 N.E.2d 823, quotingState v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. At 44.

{34} The court of appeals said, We further note that these appeals are based on the

same search-and-seizure argument we have determined to be without merit in six prior

appeals. Including his motion for reconsideration, appellant has now asked us to

consider the same issue eight times. (Emphasis added.) At 48.

{35} On March 6, 2009, in State v. Dudas, 11th Dist. Nos. 2008L109 and 2008L

110, 2009Ohio1001 (Dudas IX), the court of appeals affirmed the trial courts denial

of Dudas motion to quash the indictment. On May 27, 2008, one and one-half years

after appellant was sentenced, he filed a motion to quash the indictment, which the trial


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court denied. The court of appeals ruled that even if the issue was not waived,

appellants argument would lack merit. Dudas argued that the trial court should have

quashed the indictment due to prosecutorial misconduct because the prosecutor was

aware the states witnesses committed perjury and set him up. The court of appeals

stated, at 26:

Generally, prosecutorial misconduct is not a basis for overturning acriminal conviction, unless, on the record as a whole, the misconduct canbe said to have deprived the defendant of a fair trial. State v. Hillman,10th Dist. Nos. 06AP-1230 and 07AP-728, 2008-Ohio-2341, at 26. Thefocus of that inquiry is on the fairness of the trial, not the culpability of theprosecutor. State v. Bey (1999), 85 Ohio St.3d 487, 495, 709 N.E.2d 484,1999-Ohio-283. By pleading guilty, appellant waived his right to a trial. Hethus waived the right to challenge the indictment on the ground ofprosecutorial misconduct. The United States Supreme Court has held:

When a criminal defendant has solemnly admitted in open court that he isin fact guilty of the offense with which he is charged, he may not thereafterraise independent claims relating to the deprivation of constitutional rightsthat occurred prior to the entry of the guilty plea. Tollett v. Henderson(1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235. The SupremeCourt in Lefkowitz v. Newsome (1975), 420 U.S. 283, 95 S.Ct. 886, 43L.Ed.2d 196, further held: [A] guilty plea represents a break in the chainof events which has preceded it in the criminal process. Id. at 289,quoting Tollett at 267. In Haring v. Prosise (1983), 462 U.S. 306, 103S.Ct. 2368, 76 L.Ed.2d 595, the Supreme Court held: [A] counseled pleaof guilty is an admission of factual guilt so reliable that * * * it quite validly

removes the issue of factual guilt from the case. * * * A guilty plea,therefore, simply renders irrelevant those constitutional violations notlogically inconsistent with the valid establishment of factual guilt and whichdo not stand in the way of conviction, if factual guilt is validly established.(Emphasis sic.) Id. at 321, quoting Menna v. New York (1975), 423 U.S.61, 62-63, n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195.

Appellants claim of prosecutorial misconduct, which allegedlyoccurred before the entry of his guilty plea, is not logically inconsistentwith appellants factual guilt. Therefore, his guilty plea rendered his claimof prosecutorial misconduct irrelevant. . . . Further, appellants argument

is barred by res judicata. As we held in Dudas III: Thus, based on therecord and the petition, appellant was aware of his claim[ ] based on setup * * * long before he entered his guilty plea. He failed to assert [this]issue in trial or on the direct appeal of his conviction. As a result, [thisissue is] barred by res judicata.Id. at 72, 523 N.E.2d 515.


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{36} On J uly 9, 2010, in State v. Dudas, 11th Dist. Nos. 2009L072 and 2009L

073, 2010Ohio3253 (Dudas X), the court of appeals affirmed the trial courts denial

of Dudas motion to void judgment and dismiss indictment, in which he argued his

conviction violated double jeopardy. On May 5, 2009, two and one-half years after

Dudas was sentenced, he filed a motion to void judgment and dismiss indictment, which

the trial court denied. Dudas asserted six assignments of error. The court of appeals

stated, Virtually each assigned error was barred by res judicata and his guilty plea.

{37} On December 23, 2010, in State v. Dudas, 11th Dist. No. 2010L002, 2010

Ohio6442 (Dudas XI), the court of appeals affirmed the trial courts denial of Dudas

second motion to withdraw his guilty plea. Dudas argued the trial court abused its

discretion by denying his second motion to withdraw his guilty plea because, he

claimed, he has new evidence of tampering with evidence, theft of files, fraud on the

court, entrapment and prosecutorial misconduct. He did not reference the evidence on

which he relied, but in any event, the court of appeals noted that in Dudas VI, Dudas

appeal of the trial courts denial of his first motion to withdraw his guilty plea, appellant

made virtually the same argument. The court of appeals stated in that case:

* * * [A]ppellant argues the trial court abused its discretion indenying his motion to withdraw his guilty plea because he has establishedmanifest injustice in that [t]here is fraud on the Court, false testimony,

entrapment by State officials, perjury, and because the court erred infailing to conduct an evidentiary hearing. We do not agree. Id. at 35.Further, based on our review of the record, appellant was aware of theevidence filed in support of his present motion to withdraw at the time hepled guilty. By failing to raise this argument in the trial court or on directappeal, it is also barred by res judicata.

{38} Quoting further from the opinion:

Appellant argues, once again, that the note of Robert Harmon, hisfellow inmate at the Cuyahoga County J ail, is new evidence entitling himto withdraw his guilty plea. While Harmon and appellant were fellowinmates at the Cuyahoga County J ail, appellant went into Harmons celland found a prescription for Harmons medication. On the back of theprescription, appellant wrote a note stating that he, referring to himself asHarmon, had set up appellant, and signed it forging Harmons signature.The Lake County Crime Lab concluded that appellant had actually writtenthis note and forged Harmons signature. Appellant argues that, in light ofHarmons note, the trial court should have allowed him to withdraw his


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guilty plea. However, appellant was aware of the Harmon note and theLake County Crime Labs report prior to entering his guilty plea. Further,he raised this same argument in Dudas III, his appeal of the trial courtsdenial of his motion for post conviction relief. The following holding inDudas III is pertinent here: * * * [B]ased on the record * * *, appellant was

aware of his claim[ ] based on set up * * * long before he entered his guiltyplea. He failed to assert [it] in trial or on the direct appeal of his conviction.As a result, these issues are barred by res judicata.Id. at 72. At 23.

{39} On December 30, 2010, in State v. Dudas, 11th Dist. No. 2010L003, 2010

Ohio6576, discretionary appeal not allowed on May 4, 2011 by the Supreme Court at

128 Ohio St.3d 1482, 2011Ohio2055 (Dudas XII), the court of appeals affirmed the

trial courts denial of Dudas motion to invalidate plea agreement as unconstitutional.

The court of appeals noted that, [i]n effect, this is appellants third motion to w ithdraw

his guilty plea. Further, this is the twelfth appeal appellant has filed following the denial

of his successive post-conviction motions by the trial court. At issue is whether

appellants present motion is barred by res judicata. For the reasons that follow, we

affirm. The court of appeals determined that this issue has already been judicially

decided and settled. The court of appeals stated at 23, Further, in Dudas VI,

appellants appeal of the trial courts denial of his first motion to withdraw his guilty plea,

this court held: Based on our thorough and complete review of the record, the trial

court scrupulously compliedwith Crim.R. 11(C), and the record demonstrates

appellants guilty plea was entered voluntarily. Id. at 58, 671 N.E.2d 233.

Consequently, appellants present challenge to the voluntary nature of his guilty plea is

also barred by res judicata. (Emphasis added.)

{40} On September 23, 2011, in State v. Dudas, 11th Dist. No. 2010L092, 2011

Ohio4883 (Dudas XIII), the court of appeals affirmed the trial courts denial of Dudas

motion to compel state and trial court to honor legal contract. In effect, this was

Dudas fourth motion to withdraw his guilty plea. Further, this was the thirteenth

appeal Dudas has filed following the denial of his successive postconviction motions by

the trial court. At issue was whether Dudas present motion was barred by the legal

doctrine of res judicata. The court ruled that it was meaning this issue had been

already judicially decided and acted upon by the court.


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{41} In addition to the foregoing cases ofDudas I through Dudas XIII, the court of

appeals heard five more appeals, disposing of them in three opinions:

{42} On April 20, 2007, in State v. Dudas, 11th Dist. No. 2007-L-019, 2007-Ohio-1918,

and 2007-L-020, 2007-Ohio-1919, the court of appeals dismissed, as untimely filed,

Dudas appeal of the trial court order of J anuary 3, 2007 denying Dudas motion to

withdraw all pleas, plead anew, request for new trial, motion to set aside judgment, and

request for recusal of J udge Lucci.

{43} On September 30, 2011, in State v. Dudas, 11th Dist. No. 2010L093, 2011-

Ohio-5102, the court of appeals affirmed the trial courts denial on J uly 14, 2010, on

grounds of res judicata, of Dudas motion to compel state and trial court to honor legal

contract, which was, in effect, his fourth motion to withdraw his guilty plea (and

fourteenth appeal Dudas has filed following the denial of his successive postconviction

motions by the trial court).

{44} On J une 16, 2010, three and one-half years after Dudas was sentenced, Dudas

filed his motion to compel state and trial court to honor legal contract, which essentially

duplicated his first assignment of error in Dudas I, which the court of appeals overruled.

{45} On May 14, 2012, in State v. Dudas, 11th Dist. No. 2011-L-093, 2012-Ohio-2121,

and 2011-L-094, 2012-Ohio-2122, the court of appeals affirmed the trial courts re-

sentencing to correctly impose postrelease control. In that appeal, Dudas argued heshould have been permitted to withdraw his guilty plea because his counsel was

ineffective in not asserting his original sentence was void due to the improper imposition

of postrelease control. In addition to stating that Dudas could have but failed to make

this argument on direct appeal or in any of his prior motions to withdraw his guilty plea,

the court stated that it has held that Dudas counsel was not ineffective. State v. Dudas,

11th Dist. Nos.2009L072 and 2009L073, 2010Ohio3253, 42. This was Dudas

most recent filing in the court of appeals.

{46} In addition to the foregoing, on J une 25, 2012, in Dudas v. Warden Kelly, Dudas

petitioned the Ohio Supreme Court, in Case No. 2012-1086, 2012-Ohio-4381, for

habeas corpus, seeking his immediate release from prison, on the grounds that his

imprisonment and detention was without legal authority in that the plea arrangement

which resulted in his convictions and sentences was not within the subject matter


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jurisdiction of the Lake County Court of Common Pleas and, therefore, his imprisonment

and detention was in violation of his constitutional rights. On September 26, 2012, the

Supreme Court dismissed the petition sua sponte and without a hearing.

{47} Further, the defendant filed twice in the Ohio Supreme Court seeking to

disqualify the trial judge from acting further in his cases. Both affidavits of

disqualification were denied by the chief justice. See Supreme Court Case Nos. 07-AP-

046 and 08-AP-086. Chief Justice Moyer, in the second filing, cautioned Dudas about

filing frivolous, unsubstantiated, or repeated affidavits of disqualification. In the latter

case, filed on September 2, 2008, Dudas alleged that:

[H]e has obtained exculpatory evidence, such as written statementsfrom a person that was used by the State to fabricate a case against him,in which he has plead guilty, and sentenced to serve out a thirty-year

prison term. Shortly after entering a plea of guilty before J udge Lucci, thepetitioner discovered evidence proving that he was set up by theCuyahoga County prosecutor, J udges McGinty and Matia, who influencedone Robert Harmon to wear a wire and entrap/and snare him into a falseconviction.

{48} This was not newly discovered evidence that Defendant and counsel claim it is

in their March 26, 2013 filing in this court. Defendant knew about it September 2, 2008.

The Motion to Withdraw or Vacate Guilty Pleas

{49} In the defendants motion to withdraw guilty pleas or, alternatively, to vacateguilty pleas, filed March 26, 2013, through counsel, Mr. Partlow, the defendant makes

assertions that are false, unsubstantiated in fact or law, and have been presented on

numerous occasions in this court, the court of appeals, and the Supreme Court.

Defendant contends the following:

{50} A.

His guilty pleas were not made on a knowing and voluntary basisand were based entirely upon testimony that the state intended to producewhich has recently been recanted and establishes Defendants actualinnocence (Emphasis added). Memorandum at 1.

{51} There is nothing recent about Harmons testimony. Dudas knew, since 2005

(before his trial), about Harmon and what Harmon might say at trial before Dudas

entered his pleas of guilty. Moreover, Harmons alleged recantation of his version of

events has been the subject of motions made by the defendant ever since his pleas of


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guilty. See, State v. Dudas, 2008-Ohio-3262 (Dudas III). The record is replete with this

same allegation and was mentioned in many motions filed by the defendant and in the

opinions and journal entries by this court and the court of appeals.

{52} Specifically, on December 1, 2006 the day of sentencing the defendant filed,

pro se, a motion to withdraw guilty plea. This motion was orally withdrawn by the

defendant and counsel immediately before sentencing. In his motion, Defendant stated:

Defendant has found out that several witnesses are ready to come forward in defense

of defendant, have proof of defendant Dudas set up by the State witnesses namely

Harmon, Whitehead and Platzer. Motion, at 2.

{53} Further, on December 5, 2006, four days after his sentencing, the defendant filed

another motion, pro se, to withdraw all pleas, plead anew and request for a new trial. In

his motion, Defendant stated he had:

[N]ewly discovered evidence. Proof of the States illegal involvement in thesetting up of defendant Dudas, the stealing of files and unlawfully seizedrecords. Defendant has recently been given uncontestable proof ofthe States involvement in the set up of the J udge Matia case. This newlydiscovered evidence is also being given to the news media by familymembers to help insure a fair trial and clear the false charges againstDefendant. Furthermore, 2 people have come forward in the last week,to prove of the fact that Harmon and Whitehead (states witnesses) werebragging about setting up defendant Dudas. Also proof has been given in

a letter verifying Harmons setting up of defendant prior to the exchange ofmoney. As per the RICO Act and mortgage indictments, evidence isnow available that will prove the State has stolen documents and records,tampered with evidence and has used these stolen documents to causeover 95 charges to be used illegally on the indictment, and proof that noovert act on corrupt activity took place. Motion at 1-3.

{54} In addition, on J une 5, 2008, the defendant, again pro se, filed a motion for

reconsideration to motion denying motion to withdraw, in which he alleged:

This defendant has proven via affidavits the set up by the state,prosecutor, 2 sitting J udges, and a witness that committed perjury. Thiscourt has failed to address the newly discovered evidence that proves theset up of the defendant by a signed notarized statement of the statesstar witness, Robert Harmon. The notarized document attesting tothe set up of the defendant. The meeting between J udges Matia andMcGinty. (Emphasis added.) Motion at 1-2.


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{55} These allegations fly in the face of Defendants pleas of guilt and the evidence of

the reverse note (i.e. insurance) implemented by Dudas, when he told his girlfriend

about the note, dated November 23, 2005, which bears the forged signature of Harmon,

stating Harmon had attempted to set up Dudas.

{56} The allegations are not true. Even if they were true, they do not exonerate the

defendant or merit withdrawal or vacation of the guilty pleas, and the allegations made

in 2006, 2007, and 2008 prove that Harmon did not recently recant his testimony.

{57} Further, his plea was based on the fact that he faced hundreds of charges in

pending indictments and in further, ongoing investigations. He pled guilty to 12 charges

out of potentially hundreds. The court reserved some eight weeks for Dudas trials, and

he had three well qualified lawyers representing him. There may have been a financial

aspect to his mental calculus. It cannot be stated that Dudas pled guilty only on the

strength of Harmons testimony. Nonetheless, Harmons testimony was implicated only

in the murder conspiracy case, and not the corrupt activity case.

{58} B.

The Ohio Supreme Court order was dated August 24, 2006. Thisorder did not include Lake County Case No. 06 CR 000700, one of thecases now in question. In fact, the Ohio Supreme Court never assignedJ udge Lucci to that case and, therefore, this Court lacked subject matterjurisdiction over that case at the time of the guilty pleas. Memorandum at

1. (Emphasis in the original.)

{59} This allegation was the subject of a motion filed by the defendant on November

7, 2012, and, as amended, on November 15, 2012. The court ruled on November 26,

2012, and, surprisingly, the defendant did not appeal this decision the issue is now res

judicata. The existence of jurisdiction in this court is not a fairly debatable point.

Ignoring for the moment that the defendant requested that all of his cases be transferred

to Lake County, thereby expressly waiving this objection, the Ohio constitution, statutes,

and cases permit the Lake County trial judge to exercise jurisdiction over all of Dudascases from Cuyahoga County.

{60} O. Const. IV Sec. 4, states:

(A) There shall be a court of common pleas serving each county of thestate. Any judge of a court of common pleas may temporarily hold courtin any county. (B) The courts of common pleas shall have such


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original jurisdiction over all justiciable matters and such powers of reviewof proceedings of administrative officers and agencies as may be providedby law.

The court of common pleas is a court of general jurisdiction which

possesses the authority to determine its own jurisdiction over both theperson and the subject matter in an action before it and, generally,prohibition will not lie to prevent an anticipated erroneous judgment;the

unconstitutionality of a statute does not deprive a court of its initialjurisdiction to proceed. State ex rel. Heimann v. George (Ohio 1976) 45Ohio St.2d 231, 344 N.E.2d 130, 74 O.O.2d 376.

{61} A judge of the common pleas court may lawfully act in another county. State ex

rel. Bartlett v. Baynes (Ohio 1969) 20 Ohio St.2d 129, 253 N.E.2d 748, 49 O.O.2d 447,

certiorari denied 91 S.Ct. 77, 400 U.S. 838, 27 L.Ed.2d 72.

[The] constitutional provision that any judge of Court of Common Pleasmay temporarily preside and hold court in any county is self-executing,and under it a Common Pleas judge is vested with authority to preside ineach and every county in state. Authority vested by constitution ineach Common Pleas judge to preside in each and every county in thestate is authority of which judge cannot be deprived by any legislative act,even assuming that General Assembly has authority to pass lawsregulating exercise of such power. A Common Pleas judge presiding ina county other than the one in which he was elected or appointed acts in ade jure capacity, even though he has not been assigned thereto by theChief J ustice. R.C. 141.07, 2503.04; Const. art. 4, 3. State v.

Powers, 57 O.O. 412, 129 N.E.2d 653 (Ohio Ct. App. 1954).

{62} In addition, R.C. 141.07 provides: In addition to (receiving) the annual salary

and expenses each judge of the common pleas court while holding court in a county

in which the judge does not reside, by assignment of the chief justice of the supreme

court under section 2701.03 of the Revised Code, or without any assignment, shall

receive the actual and necessary expenses that the judge incurred while so holding

court in that county, to be paid from the treasury of that county upon the warrant of the

county auditor. (Emphasis added.){63} C.

With respect to his pleas of guilty, Defendant was primarilyconcerned about the testimony of Robert A. Harmon with regard to theintimidation case. Furthermore, Defendant was told that the State of Ohiowould recommend that Defendant receive no more than an aggregateterm of incarceration of 10 years and that this Court was likely to follow


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that recommendation. Since Defendant had no witnesses to directly rebutHarmons testimony and the audio tape allegedly implicating Defendantmade by Harmon, Defendant opted to take the plea offer Defendanthad no other option in that regard. Memorandum at 2.

{64} If the case continued with the trial, Dudas would have been confronted with hisforgery of the reverse note in which he attempted to cover his tracks by having a

document he could show, in court or elsewhere, that Harmon set him up. It is pure

speculation as to how Harmon would testify at trial, as the defendant pled guilty before

Harmon could take the stand and testify. Dudas knew what the risks would be, pro and

con, when he changed his plea. This matter has been litigated, through appeals, and is

now res judicata. Also litigated was the allegation of ineffective assistance, with the

result being adverse to the defendant. The plea colloquy shows that Dudas knew

exactly what he was doing; he completely admitted his guilt to the 12 charges. He

certainly would know whether he did what the prosecutor, in his opening statement,

accused him of doing.

{65} D.

Almost immediately, Defendant began challenging his plea in thedirect appeals, etc. Since his pleas, convictions, and sentencings, theDefendant has filed a variety of motions and one petition for post-conviction relief which all sought to have his prior guilty pleas vacated on

grounds unrelated to the present filing with this Court. These include, butare not limited to: (1) four motions to withdraw his pleas; (2) one petitionfor post-conviction relief pursuant to Ohio Revised Code 2953.21; (3) aMotion for Relief from Judgment pursuant to Ohio Civil Rule 60(B); and (4)a motion to void his sentence based upon double jeopardy grounds.Memorandum at 2.

{66} In actuality, the defendant, post-sentencing, has filed approximately 60 motions

in the trial court, seeking to have his plea withdrawn, vacated, or voided. Included in

these filings were 18 or so requests to withdraw his pleas of guilty and petitions for post-

conviction relief. The court carefully considered and ruled upon each motion. Thedefendant appealed 26 times to the Eleventh District Court of Appeals, which disposed

of each of his appeals, overruling all of them and every claimed assignment of error

therein, in 18 separate opinions. The defendant filed two affidavits in the Ohio Supreme

Court seeking this judges disqualification and removal from his cases; he attempted


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two appeals to the Supreme Court from decisions of the court of appeals; and he filed

one action in habeas corpus against the warden of the state penal institution where he

was held seeking his release from an allegedly unconstitutional imprisonment. All of the

appeals and/or requests were denied by the Supreme Court.

{67} E.

The Defendant respectfully submits that the Affidavits he hasobtained through his investigator clearly show that the Defendant isactually innocent of the charges to which he entered guilty pleas and thathis pleas in that regard were not made on a knowing and voluntary basis.Memorandum at 2.

{68} Does the defendant contend he did not know he was actually innocent of all of

his charges on October 19, 2006, when he pled guilty? If so, this contention is

incredible. It is pure speculation as to why Harmon, Whitehead, Oliver, Holbert, and/or

Collins would make the statements they purportedly did or what their motivations may

have been in 2006 or what their current motivations may be, or what their testimony

may have been or would be. However, Dudas lawyer, Richard Drucker, in his opening

statement at the jury trial, stated: But the conversations between Mr. White - - sorry.

Mr. Whitehead, the heroine addict. Or Mr. Harmon, the thief. Or Mr. Oliver, the

perjurer. These are people that were attempting to make a deal to get themselves out

of jail. The State of Ohio wanted to set up Mr. Dudas. [Tr.P.74]. Those statementsdo not prove that Defendant is actually innocent of the 12 charges to which he pled

guilty. Especially so, in light of this exchange, among others, in the change of plea

colloquy:

J UDGE LUCCI: And as to the charges that you wish to plead guilty to,the 12, do you agree that those charges accuratelyand adequately reflect your conduct over these periodof time covered by the indictment?

RONALD DUDAS: I believe my culpabilitys present on those, yes, sir.

{69} F.

Mr. Harmon admitted to (licensed private investigator) Mr. Phillipsthat it was not the Defendant on the tape and that all of his anticipatedtestimony against the Defendant was fabricated. Although Mr. Phillipsindicates at the end of his Affidavit that he lost contact with Mr. Harmon,he was able to obtain an Affidavit from Mr. Harmon on March 28, 2012specifically describing his involvement in fabricating the case against the


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Defendant and describing at least one meeting which occurred concerningthis fabrication which involved [by names, two judges and an assistantprosecuting attorney]. Memorandum at 3.

{70} Defendant Dudas had statements and/or affidavits from Harmon and others

before Mr. Phillips attempted to interview and obtain a statement or affidavit from

Harmon. Dudas claimed at the trial, in the defense opening statement, that he was set

up. The attempt to cast this as new evidence, first obtained on March 28, 2012, is

disingenuous, at best.

{71} G.

The Defendant did and does deny guilt to any of these charges.Obviously, Mr. Harmons Affidavit did not exist at the time of theDefendants plea and was unavailable to Defendant at that time.

Memorandum at 4.

{72} This is patently false; the defendant admitted his guilt in open court to each of the

12 crimes, after a recitation of what the state said it would prove at trial. Not once

during the plea colloquy or the prosecutors statement did the defendant deny his guilt:

J UDGE LUCCI: Mr. Dudas, you heard and understand everything theprosecutor just said?


J UDGE LUCCI: And is what he said true?


{73} H.

Defendant asserts that a full and complete adversary hearing isrequired when a motion to withdraw a guilty plea is based uponrecantation of testimony by a states witness. In fact, the need foradversarial proceedings is especially important in situations involvingrecantation of testimony, where the testimony resulted in a guilty plea, dueto the fact that the witness recanting his prior statement has never beensubject to adversarial cross-examination by Defendant in the case, due tothe Defendants guilty plea relying upon the witnesses initial statements.Memorandum at 5-6.

{74} The defendants counseled guilty plea was an admission of factual guilt and

broke the chain of events which preceded it in the criminal process. Accordingly, the


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issue of factual guilt was thereby removed from the case and it rendered irrelevant any

real or perceived constitutional violations.

{75} I.

The request to withdraw a guilty plea is not motivated by a mere

change of heart on the part of a defendant but rather by a significantchange in his mental calculus concerning his chances of acquittal,rendering the prior guilty plea less than knowing and voluntary.Memorandum at 6.

{76} The defendants mental calculus considered the information he already knew,

which was that he contended he was set up by Harmon and the state and had a

reverse note to attempt to meet the states evidence, on which the state was prepared

to introduce expert testimony of Dudas forgery, when Dudas decided to abort the trial

and plead guilty to some of the charges. His self-serving statement notwithstanding, the

defendant has been clearly upset about his 30-year prison sentence.

{77} J .

(S)ince the Affidavits now in question clearly indicate that theDefendants guilty pleas were not made on a knowing and voluntary basisand include proof of knowledge on the part of the prosecution of potentialperjury, constitutional rights of the Defendant are implicated.Memorandum at 6.

{78} The plea colloquy clearly indicates that the defendant knowingly, voluntarily, and

intelligently waived his constitutional and statutory trial rights and entered his plea of

guilty to the 12 counts. The defendant has made these same allegations many times,

and they are now barred by res judicata.

{79} K.

Gary L. Phillips affidavit was purportedly executed on March 12,2012. Phillips said he spoke with Harmon on J anuary 4, 2011 inside anoffice at the Cleveland Police Department. Robert A. Harmons affidavitwas purportedly executed on March 28, 2012. Thomas Holberts affidavitwas purportedly executed on February 23, 2011 in front of Mr. Phillips, asnotary public. Lorenzo Collins affidavit was purportedly executed on April28, 2011, in front of Mr. Phillips, as notary public. Linda J ustices affidavitwas purportedly executed on April 16, 2009.


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{80} It has been a year or years certainly more than 180 days -- since these

affidavits have been executed. Even if meritorious, they would be untimely under any

analysis.

{81} Moreover, Linda J ustices affidavit was submitted to the court previously, as

Exhibit H to the defendants motion to withdraw guilty plea Crim.R. 32.1 due to actual

innocence, filed on October 28, 2009. This was filed almost four years ago. Ms.

J ustice also raises the issue, once again, of the defendants mental state of bipolar

disorder and his related medications, along with the allegations of promised

sentences.

{82} The court ordered competency examinations at the defendants requests to be

done while Defendant was in jail. The defendant was examined by two psychiatrists,

Dr. Aranoff and Dr. J ames Pallas, both of whom opined Defendant was competent to

stand trial. The court held a competency hearing on September 12, 2006.

Documents

Request to withdraw guilty plea denied