(Affidavit Specifying the details of claims sought) ... Ross, 116 Ohio App.3d 275, ... Lester 130 Ohio St.3d 303

^ ^^^^^^^^^

IN T.EiE SUPREPJIE COUIZT O:£' OHIO

STATE OF OHIO,

Plaint.i..ff-Appellee,

Case No. B-^31b789

ST .

Lionel Harr.is

Defendant-Appellant.

nn Appeal from the HatniltonCounty Court of AppealsFirst Appellate Uistrict

C.A. Case No. C-130260

S.Ct. ^to. 13-0992

N;EIÎT BRI^`^' OF APPELLANT LTONEL IiARRIS

Lionel Harris#252.-056

Mad:ison Correctional Inst.

P.O. Box 740

London, Ohio43240-0740

Defendant°Appellan:t, Pro Se

Scott M. HeenanAssistant Prosecuting Attorney

230 .East Ninth Street, Suite 4000Ci.nc.^nnati, Ohio45202

tate of Ohhio

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TABLE OF CONTEUTS

Page

Table of Aui.[loritiQ..rio..eo.o....oaara.wa.,oaoao,aoaoaaaor.ao...eaosar.a 1

Statement of the facts........w ....... ......... e...........2

Argument. w . ....... , r , ....... . a o . . o 0 0 . o e r w a , , . . . e e .......... , , O e e r a . a o , 3

Proposition of Law1uoo1 ...r..a.errso.r......eooo.,r..r.soawrr.wr,.rwo, 7

Propositionof Law Noo2er..... ar..e..r..oo...eeo.m.r.r..a.rr..w,roeo,.12

Proposition of Law No.3,..e..0e.00 ..r...o,.rww..r..a...w...........0..1 8

Proposition of Law No.4.....e....a.r...a .......... ....... ........aar..23

Proposition of Law No.5....r....o,.w.,........ .oo.a,..25

Cont+lusion......w...........r..w...r....,a.r.....a.r.....ee...w.......2/

Certificate of e^'Jerv7.ce..... ao.,r,...o..e.a......o,..rr..e,.r.e.mr..e.. 28

Appandix ....s.,or...e.a.raa...e.o.ooo,o.ora.eoo.....r,o.oao..oo.o.oo®.2J

(judgment of conviction entry)

(motion to dismiss)

(APA decisions )

(Supreme Court's 4/10/13 reply regarding Cert. of Assignment)

(Appellant's reply to motion to dismiss)

(title page of trial transcript)

(Entry dismissing Writ of Prohibition and Mandamus)

(Entry dismissing Petition to Vacate)

(Affidavit Specifying the details of claims sought)

(Record Center's arraignment document)

(Appearance docket)

N()+; c>a er A-gez,3-^

i

TABLE OF AUTHORITIES

Ballard v. State, 8th Dist. No.97882, 2012 Ohio 3086Beatty v. Alston 40 Ohio App.2d 545;320 N.E.2d. 681;1974 Ohio LEXIS 2663Berger v. Berger (1981),3 Ohio App.3d 125, 130 443 N.E.2d 1375Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR, 450 N.E.2d 1140Brooks v.Zabka, 168 Colo. 265, 450 P.2d 653, 655City of Willoughby v. Lukehart, 39 Ohio App.3d 74, 529 N.E.2d 206 (llth Dist.)Neal v. Maxwell 175 Ohio St.201, 202 192 N.E.2d 782 (1963)Plant equa.p. v. Nationwide Control Service 798 N.E.2d 1202 (Ohio App.1 Di.st.)Rosenberg v. Gattarello (1976), 49 Ohio App.2d 87, 93-94, 359 N.E.2d 467Ex parte United States (1916), 242 U.S. 27 41-42, 37 S.Ct. 72, 61 L.Ed.Warren v. Ross, 116 Ohio App.3d 275, 688 N.E.2d 3(llth Dist.1996)Zurowski v. Cuyahoga Cty. Bd. of Revision, 1982 Ohio App. LEXIS 12359, CuyaState v. Adams (1980), 62 Ohio St.2d 151, 157, 16 0.0.3d 169,404 N.E.2d144State v. Anclersor. 2006 Ohio 3905; 2006 Ohio app.LEXIS 3874State v. Baker 119 Ohio St.3d 197, 2008 Ohio 3330, 893 N.E.2d 163State v. Battle 1989 Ohio App. LEXIS 2536State v. Billiter 2012 Ohio 5144`; 2012 ohio LEXIS 3540State v, -Bl-ocmer, 122 Oh3r St.3d- 200, 2009 Ohio 2462,; 909 b?Ê. 2d. 1254State v. Brock 2003 Ohio 3199; 2003 Ohio App. 1EXIS 2873State v. Brown, 152 Ohio App.3d 8, 2003 Ohio 1218, 786 N.E.2d 492 (7th Dist)State v. Carlozzi 1992 Ohio App LEXIS 395State ex rel. Culgan v. Medina Cty. Court of Common Pleas 119 Ohio St.3d 535State v. P-llington (1987), 36 Ohio App.3d 76State v. Fitzpatrick 1994 Ohio App.k;EXZS 1835State v. Ginochio (1987), 38 Ohio App.3d 105State v. ex rel. Harris, v. Rhodes (1978), 54 Ohio St.2d 41, 42, 374 N.E.2d 641State v. Johson, 12th Dist. No.CA 2002-07-016, 2003 Ohio 6261State v. Klein, 1998 Ohio App. LEXIS 5757State ex rel. Leis v. Kraft (1984), 10 Ohio St.3d 34, 36, 10 OBR 237, 460N.E.2dState v. Lester 130 Ohio St.3d 303 (2011)State ex rel. Lomaz v. Court of Common Pleas of Portage Cty (1988), 36 Ohio StState v. Love No. 25475, 2011 Ohio 3355State v. Miller 2012-Ohio 2132 WL 1664145State v. Muncie (2001), 91 Ohio St.3d 440, 444 746 N.E.2d 1029State ex rel. Northern Ohio Tel. Co. V. WinterState v. Rhodes 1978 Ohio App. LEXIS 10344State v. Robb (2000), 88 Ohio St.3d 59, 2000 Ohio 275, 723 N.E.2d i019State v. Torrestoro Ohio App.3d, 2012 Ohio 601, NE.2d 2012 Ohio App.LEXIS 2663State v. Tripodo (1997), 50 Ohio St.2d 124State v. Tuggle 2010 Ohio 4162; 2010 Ohio App. LEXIS 3540State v. Vanni, 182 Ohio App.3d 505State ex re1.. Worcester v. Donnellon 49 Ohio St.3d 117 551 N.E.2d 183

Art. I Section 16 ohio Const.Art. IV Section 3(B)(2) ohio const.

Crim.R.25(B). Crim.R.32(A), Crim.R.32(C), Crim.R.55(A)Ham.Ctye LF':7(B)

R.C.2505.02, rR.C.2505n02(B), R.C.2953.03Sup.R.4, Sup.R.4(B), Sup.R.36(B)(1), Sup.R.7(A)

1

STAT.IaNIM OF TT-IE I"À=

On October 1, 1991., Appellant, Lionel. Harris and co-defendant, Matthew

Pearson were arrested for aggravated murder. The trial. court appointed a public

defender to represent appellant. On 11/27/91 Appellant retained the private

counsel of William L. Mallo.ry and Timothy A. Smith. Retired Judge Donald L.

Schott presided over the trial without interruption.

On January 29, 1992, the Hamilton County Court of Common Pleas convicted

Appellant and co-defendant of aggravated murder. Irrmediately following the

reading of the verdict, Judge Schott excused the jury, the defense waived pre-

sentence investigation and Judge Schott pronounced the sentence of 20 years to

life.

On 2/25/94 the First Appellate District Court of Appeals affixmed.the

judgnent of the trial court. On 8/25/94 the Ohio Supreme Court denied leave to

appeal. On 1.1/1/96 Judge Thomas C. Nurre dismissed Petition to Vacate. On

6/10/2005 the Ohio Adult Parole Authority took jurisdiction and extended

Appellant's sentence six additional years to 8/1.0/2011. On 8/10/2011 the Ohio

Adult Parole Authority again extended Appellant's sentence an additional seven

mare years to 8/01/18.

Apr.il 2013 Appellant discovered that Judge Nurre signed the Judgnent of

Conviction Entry instead of Judge Schott - the presiding judge, and inTnediately

filed a Petiti.on for a Writ of Prohibition and Mandamus. On 5/8/2013 Appellees

filed a Motion to Dismiss. On 5/16/2013 Appellant filed a reply to Appellees

Motion to Dismiss. On 5/30/2013 the First Appel.l.ate District dismissed

Appellant's petition. This appeal of that dismissa.l is an appeal of right.

2

ARG41MEtV`P

On 1/29/92, immediately following sentencing, Prosecutor Thomas L:ongano

handed the defense table a prepared judgment of conviction entry for review.

Fach attorney (Mazlory, Smith and Schmidt) reveiwed it in turn and returned it

to the prosecutor. The prosecutor approached the bench and handed the entry to

Judge Schott for his signature, as required for journalization. The judge looked

at the entry, and without speaking or signing it, irrmediately handed it back to

the prosecutor and went into chambers. Apparently, when Judge Schott was handed

the entry, he was not reviewing it for accuracy, as Appellant had previously

perceived, but was in fact, refusing to s.ign_.it...Pzosecutor Longano imnPC7iate:ly

left the courtroom, agitated, with the unsigned entry in hand.

The record shows that the conviction occurred on 1/29/92. Judge Schott

pronounced sentence within minutes of the verdict. He was clearly present and

available to carry out his duties in this case, up to and including signing the

judgment of conviction entry as Ham.Cty L,R.7(H), Sup.R.4 & Crim.R.32(C)

requires. Yet the judgment of conviction was signed by Judge Thomas C. Nurre and

quickly journalized on the same afternoon of 1/29/92. (see file starnped date on

attached judgnerit of conviction.) Appellant asserts that this blatant act of

judge-shopping on the part of the prosecutor contradicts the presu<ription of

regularity accorded all judicial proceedings.

After discovering the fact that Judge Nurre signed the entry instead of the

presiding judge, Appellant reviewed the court's records further and the records

revealed that there is no journal entry from the administrative judge assigning

the case to Judge Schott as required. Upon further investigation with the

Sup.reme Court's Clerk of Courts, they replied to Appellant's inquiry that they

3

were unable to locate a Certificate of Assignment fx-om the Suprerie Court for

Judge Schott in regards to this case.

Upon this discovery, Appellant in-ar.ediate?.y filed a Petition for a Writ of

Prohibition and Mandamus. Appellant did not request a revised sentenci.ng entry

as ordinarilY requi,red with a Crim.R. 32(C) violation because a revised

sentencing, if granted would not correct the results of the prior jurisdictional

unauthorized actions of the First Appellate District or the Ohio Adu1t Parole

Atithority. A.request for a revised sentencing entry therefore, is not an

adequate remedy.

On 1-29-92, Judge Thcmas. C. Nurre. was not assigrned, reassigned or. transferred ..

to this case. He was not authorized under Crim.R. 25(B) to perform the duties of

the presiding judge. Yet minutes after the presiding judge pronounced sentence,

Judge Nurre signed the entry.

In Appellee's Motion to Dismiss, Appellees state, "He [Relator] wants this

court to vacate his conviction because there was no entry assigning the matter

to a visiting judge and the judge that was originally assigned the case signed

the sentencing entry for the visiting judge. All of that occurred in late 1991

and early 1992."

The Appel.lees have conceeded to the primary facts of Appellant's claims. In

State ex rel. T..omaz v. Court of Comnon Pleas of Portage Cty. (1988), 36 Ohio

St.3d 209, 212, 522 N.E.2d 551, this court held, "Proper assignment, like

jurisdiction over the subject matter., is required for the valid exercise of

judi_cial power."

It is the Appellee's contention that Judge Thomas C. Nurre was originally

assigned this case. However, visiting Judge Ebnald L. Schott stibsequently

presided over Appellant's trial. Appellant did not have the benefit of

4

cantinuous legal representation throughout the initial.proceedings and because

there was no entry on the appearance docket reassigning Judge Schott to this

case it was irrtpossible for Appellant's new counsel to raise any objection to the

reassigrsment that evidently was done in secret. There are no records to

demonstrate the legitimacy of Judge Schott's authority to preside over this

matter. There is no record at all that the Ohio Supreme Court had appointed the

visiting judge. Regardless of these facts, Judge Schott did, in fact, preside

over the trial.

For the sake of argument, even if Judge Schott had been legitimately assigned

to preside and all of those records proving it have somehow been misplaced,

Judge Nurre would still lack jurisdiction to sign the entry for Judge Schott for

several reasons besides Crim.R. 32(C) and Crim.R. 25(B).

1. Under Sup.R.36(B)(1), "Upon the filing in or transfer to the court of a

division of the court, a case imnediately is assigned by lot to a judge of the

division, who become primarily responsible for the determination of every issue

and proceeding in the case until its termination." Therefore, Judge Schott was

soley responsible for signing the judgnent of conviction entry.

2. if Appellees are somehow able to produce a valid Certificate of Assignment

appointing Judge Schott, it would further demonstrate that Judge Nurre had no

authority to sign the entry. In State v. Vanni, 182 Ohio App.3d 505 the court

held, "the Certificate of Assignment by which Chief Justice appointed Judge

Cross to preside over the case terminated any further authority Judge Collier

had to issue any further substantive orders."

According to that ruling, after Judge Schott was officially assigned to

preside, Judge Nurre's authority to issue substantive orders had terrninated. And

according to R.C.2505.02 a judgment of conviction qualifies as a"substanti.ve

order."

5

Having no written record of assignment, transfer or reassignment or that the

judge was unavailable under Crim.R. 25(B) also contradicts the presunption of

regularity accorded all judicial proceedings.

This case requires the Ohio Suprene Court to answer one pramary question and

four derivative questions:

1. Does the strict compliance rule of Crim.R. 32(C) mandate that "the judge who

presided over the proceedings which culminated in the judgrnent, sign the

judgr►ent? "

a.) And if so, does the non-campliant judgnent entry warrant the issuance of

a t 1r.it of Prohibition and 141andamus to correct tlie results of i:tre, unau°thorized

actions and to order a judgnent entry that ccmplies with Crim.R. 32(C)?

b.) What effect does the Appellate Court's decision and the Ohio Adult

Parole Authority's decision have when both of their jurisdiction was premised

upon a sentencing entry that violated Crim.R.32(C) and was thus non-appealable

and invalid for the purposes of conferring jurisdiction to either?

c.) If the record is devoid of any showing that the presiding judge was

unavailable to perform his judicial duties, is the subsequent judgnent entry

signed by a judge other than the presiding judge invalid because it was not

signed under the circimstances described in Crim.R. 25(B)?

d.) Does the over twenty-one year delay fnorn sentencing and a valid judgnent

entry violate Crim.R. 32(A) and Art. 1 section 16 of the Ohio Constitution, Ohio

due process clause?

6

PRC}POSITZON OF LAW NU. 1

Crim.R. 32(C) mandates that the judge who presided over the proceedings which

culminated in the judgment, must sign the judgment.

The Ohio Supreine Court has previously determined that "in order to decide

whether an order issued by a trial court in a criminal proceeding is a

reviewable final order, appellate courts should apply the definitions of

'final order' contained in Ft.C.2505.02.° State v. Muncie (2001),91 Ohio St.3d

440,444, 746 N.E.2d 1029, citing State ex rel. Leis v. Kraft (1984), 10 Ohio

St.3d 34,36,10 OBR 237,460 N.E.2d 1372.

R.C.2505.02(B) provides:

"An order is a final order that may be reviewed, affirmed, modified, or

reversed, with or without retrial, when it is one of the following:

"(1) An order that affects a substantial right in an action that in effect

determines the action and prevents a judgment."

Undoubtedly, a judgment of conviction qualifies as an order that "affects a

substantial right" and "determines the action and prevents a judgment" in

favor of the defendan.t.

In entering a final appealable order in a criminal case, the trial court

must comply with Crim.R.32(C), which states: "A judgment of conviction shall

set forth the plea, the verdict or findings and the sentence. ifthe defendant

is found not guilty or for any other reason is entitled to be discharged, the

court shall render judgment accordingly. The judge shall sign the judgment and

the clerk shall enter it on the journal. A judgment is effective only when

entered on the journal by the clerk."

7

At issue is the specific language in Crim.R.32(C) (formerly

Crim.R.32(B)) that states in relevant part: "The judge shall sign

the judgment...". R.C. 1.42 directs that "words and phrases shall be

read in context and construed according to the rules of grammar and

common usage. Words and phrases that have acquired a technical or

particular meaning, whether by legislative definition or otherwise,

shall be construed accordingly."

According to Black's Law Dictionary, 6I" edition, 1990, under

the legal definition of the word, "The", it states; "in construing

statute, definite article "the", particularizes the subject which it

preceeds and is a word of limitation as opposed to indefinite or

generalizing force of "a" or "an". Brooksv. Zabka, 168 Colo 265,

450 P.2d 653L 655." In this matter, "the" particularizes the word

"judge" and therefore limits its interpretation soley to mean "the

presiding judge". In this matter, Judge Nurre was never "the judge"

and therefore had no authority to sign the entry.

Also, "when a statute contains the word 'shall', it will be

constued as mandatory. When a statute is mandatory, non-compliance

will render the proceedings to which it relates illegal and void."

Fraternal Order of Police v City of Cleveland,(2001), 749 N E 2d

842.

Regardless of the fact that Judge Nurre wrote the phrase, "for

J.Schott" after his signature, Crim.R.32(C) requires strict

compliance. Crim.R.32(C) mandates that since Judge Nurre patently and

8

unambiguously lacked jurisdiction and{or authority to enter the ordere the

judgment is void. It necessarily fol.Zcjas that no appeal can be- taken from a

void judgment. A court of appcals has no jurisdiction over or,ders that are

not final and appealablea Section 3(E) (2), Article IV, Ohio Consti,tuta.on,

"Courts of Appeals shall (emphasis added) have sucti jurisdiction as n;ay be

provided by law to review and affirm, modify, or reverse judcments or final

orders of the courts of record inferior to the court of appeals within the

district." see also RaCo2953.02

The,. state may. claim that having another judge sign the order is a matter. .... ..

of judicial discretiono That argument would fail because again, Crim.R.32(C)

specifically states "the judge" and not "a judge" shall sign the order. Any

other unassigned judge signing that entry wauld render t-he journal entry

incorrectm And knowingly entering an incorrect journal entry is a clear abuse

of discretiora 4 State ex rel. Worcester v. ;Connel I.on 49 Ohio St e 3d 117 551

N.E.2d 183>

The First A-Vellate District Court of Appeals has ruled in State

v. Brock 2003 Ohio 3199;2003 Ohio App LEXIS 2873, that "The failure of the

trial judge to sign the judyment resulted in a ►_7 improperly journal?,Zed

judgment of conviction, and thus ttiere is no conviction at all and no final

appealable order." : r r

in State v. Anderson 2006 C3hia 3905; 2006 Ohio Appa LEXIS 3874 tht- Eighth

Appellate District ruled as they fiave consistently held that, „CrimeRd32(C)

provides that the judge wrio presides over the proceedings which cu.imiraated in

the judgment must sign the judgment." (paragraph 2.)

9

State v. Love No.25475, 2011 Ohio 3355, the Ninth Appellate Dist. held,

"Lowe's judgment of conviction is signed by the judge who presided over his

trial. Regardless of the propriety of the assignment, the 1udgnent complies

wi.th the requ.irements of Baker, was appealable and is not void."

According to this analysis, the Ninth Dist. Court of Appeals holds that if

the judgment of conviction was signed by a judge that did not preside over the

trial, it would not comply with Baker, woul:d.not be appealable and would be

void.

State v. Rhodes 1978 Ohio App. LEXIS 10344 the Tenth Disfi. vacated the

judgment in a death-.penalty case-because "both the death warrant-andjudgmenrt

entry were approved by judges other than the trial judge who heard the case.

The approving judges "signed for" the trial judge. There was nothing in the

record, however, indicating that the judge before whom the defendant was tried

was unable to perform the duties of the court. Ohio R. Crim.P. 25(B)

inferentially commanded that unless unable to do so, the judge who presided at

a criminal trial had to also preside at post-conviction proceedings, including

sentencing. Further, Ohio R. Crim.P. 32(B) required that the judg€nent of

conviction contain the plea, verdict, findings and sentence and that it be

signed by the judge."

State v. Fitzpatrick 1994 Ohio App. LEXIS 1835 ( dissenting ) "Cri.m. R. 25( B)

states that a new judge may be designated after a verdict or finding of guilt,

if the original trial judge is unable to perform his or her duties "for any

reason". In this case, no reason was given.

10

In State v. Carlozzi 1992 Ohio A22. LEXIS 395 the Eighth district held,"

The judgment of conviction which set forth the appellantys plea of guilty,

however, was not signed by the Administrative Judge who originally took the

appellant's pleaa * * * The journal entry of ***, which allegedly

journalized the appellant's plea of guilty, was defective absent the signature

of the Administrative Judge and resulted in the appellant's denial of due

process. Cf. State ve Tripodo (1997), 50 Ohio St.2d 124. Thus, this

irregularity of proceeding also requires this court to reverse the appell.ant's

plea.of.quilty a2d reinstate the original six counts of the indictmerits. Cf.

5tate v. Ginochio (1987), 38 Ohao App.3d 105; State v. E11in2ton (1987), 36

Ohio App.3d 76."

Also in State v. Brock 2003 Ohio 3199; 2003 Ohio App. LEXZS 2878 53 the

First Appellate District stated that, "a judgment of conviction is required to

confer jurisdiction upon Appellate courts." Further in paragraph five the court

held, "we have a judgement that is not signed by the trial judge who conducted

the trial ***" "Thus, it is the trial judge's signature that is necessary

to comply with Crim.R. 32(C)."

Instead of following their own precedents, the First Appellate District

ignored these cases and dismissed Appellant's petition. The Supreme Court has

held that a judgment of conviction must contain its four elements. Appellant's

sentencing entry did not contain the third required element, the signature

of the judge. It is as much of a requirement as the other elementsd Appellant

is not seeking that this.court rekfrite Crim.R. 32(C). Only that it enforces

the rule as written when a lower court refuses to. see also State v. Lester,

130 Ohio St.3d 303 (2011).

11

PRQFOSITION OF LAW NC). . 2

IT IS AN ABLJSE OF DISCWI'ION WHFN AN APPELLATE COJE'I" S DISMSSAli OF

A.PPII,.LANI" S WkLL-SUPPOR'IE7 PETITION FOR WRIT OF PRC)HIBITION AND NIANDAMUS IS ^3Ad,^

SOLEY ON APPELIM' S INAOCURATL AND UNSUPPORTED Nl7I°ION TO DISMISS.

An abuse of discretion is more than an error of law or judgment ; it impli.es

that the court's attitude is unr.eanonable, arbitrary or unconscionable."

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 450 N.E.2d 1140,

quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 1-6 0.0. 3d 169, 404 N.E.2d

144.

In this instance the court's attitude is unreasonable and arbitrary because it

dismissed the petition based on the Appellees inaccurate, z page boilerpl.ate

rnation to dismiss. Appellees rriotion a.ncorrectly stated that a writ of prohibiti.on

is on.ly used to prevent a trial court from taking some action and a ma.ndainntis is

only used to order a trial court to take some action. Appellees cited no

authority.

Appellant, on the other hand, relies on several well-settled p,recedents of the

Ohio Supreme Court to clearly demonstrate that a writ of prohibition is also used

to corxect the results of a p-rior jurisdictional unauthorized actions.

State ex rel. Mayer v. Henson 97 Ohio St.3d 276, 2002 Ohio 6323; 779 N.E.2d

223. "If a lower court patentl-v and unambiguous-ly lacks jurisdiction to proceed

in a cause, prohibition and mandamus will issue to prevent any future

unauthorized exercise of jurisdiction and to correct the results of prior

jurisdictional unauthorzzed actions."

State ex rel. Lornaz v. Court of Corn;:non Pleas of Portage Ctv. (1988) 36 Ohio

St.3d 209, 212 522 N.E.2d 551. "Ordina.rily, prohibition is issued to prevent the

unauthorized exercised of judicial power. Fiowever, in State, ex rel. Northern

,12

Ohio Te1. Co. v. Winter, we allowed the writ not only to prevent future action by

a court that was about to exercise unlawful judicia.l power but to invalidate an

order already made."

Furthermore, Appellant has also clearly inet the requirements of a writ of

mandamus. The Supreme Court of Ohio has consistently held that in order for a

writ of mandamus to issue the Relator must demomstrate:

l. ) that he bas a clear lega_l right to the relief prayed for;

Appellant asserts that his judgment of conviction does not corrp:Iy with

Crim.R.32(C). In State ex rel. Culgan v. Medina Cty. Court of Corm7on Pleas, 11.9

Ohio St.3d 535, 2008 Ohio 4609, 895 N.E.2d 805 t 10-11 this court held that (a

defendant is entitled to a sentencing entry that compla..es with Crim.R.32(C)) In

State v. Klein, 1998 Ohio App. LEXIS 5757 the First Appellate District went to

considerable length to explain why strict compliance with Crim.R.32(C) is

required yet this ruling ignores Appellant's clear legal right to a judgnent of

conviction that complies with Crim.R.32(C).

2.) that respondents are under a clear legal duty to pertoun the acts;

In State v. Baker 119 Ohio St.3d 197, 2008-Ohio-3330, 893, N.E.2d 163 1f21,

this court stated that "Crim.R.32(C) was promulagated to notify a defendant t7at

a final judgment has been entered in a criminal proceeding and that the time

frame for filing an appeal has begun to run." This court futher stated in ,[29

Baker, supra that "unless a defendant in prison were to seek mandamus or

procedendo for a trial court to prepare a new entry, appellate review of the case

wbuld be ijnpossible." Therefore, because appellant has a clear legal right to

appeal, Appellees have a clear legal duty to provide a Crim.R.32(C) compliant

entry for the purposes of appeal.

13

3. that Relator has no plain and adequate .ramer3y in the ordinary course of

law.

In State ex rel. Culga.n.1(9 supra, this court stated, "We have held that a

sentencing entry that violates Cram.R.32(C) renders that entry nonappealable."

Therefore, Appellant has no adequate remedy in the ordinary course of law

because he cannot appeal an order that is invalid for appeal purposes.

In order for prohibition to lie, the following three requirements must be

satisfied.

1-) the court or officer against wham it is sought is about to exercise

judicial or quasi- j udicial_ power.

Appellant sought to prohibit the Hamilton County Court of Corrrmn. Pleas and

specifically, Judge ibnald L. Schott and Judge Thomas C. Nurre from taking

further unauthorized actions regarding the enforcement of Appellant's

conviction and sentence. As a resu,lt of their previous actions, the appellate

courts and the ODRC has been enabled to exercise unauthorized jurisdiction in

continuing Appellant's sentence and will continue to do so if this writ is

denied.

2. the exercise of such power is tmauthorized by law.

Neither Judge Schott or Judge Itiurre were officially assigned or reassigned

to preside or take any action in Appellant's case. Authorized jurisidiction in

this matter regarding the above stated judges and the OAPA has yet to be

established. Without that determination established, they as well as the

ODRC's contiuing exercise of power is unauthorized by law.

3. it will result in injury for rahieh no other adequate remedy exists.

Appellant has also met this prong. Appellant has deanonstrated that the Ohio

14

Adult Parole Authority wi1l_ continue to exercise unauthorized authority and

will continue to deprive Appellant of his liberty without due process. And

again, in State ex rel. Culgan v. Medina Cty. Court of Common Pleas, 119 Ohio

St.3d 535, 2008 4609, 895 N.E.2d 805 1(9 this court stated, "We have held that a

sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable."

Also, as stated in the above argument, a request for a revised sentencing entry

is not an adequate remedy in this instance because although a resentencing

could restore Appellant to the position he was in before the direct appeal of

right was taken, it cannat give him back the time the parole board has taken.

The First Appellate District Court of Appeals also abused its d.iscretion

when it dismissed Appellant`s petition w.ithout a meaningful review. Had they

given the petition a meaningful review they would have concluded that there

were no valid grounds to support disrnisssal. The United States Supreme Court

has held that in order to survive a Motion to Dismiss, the complaint must offer

factual support for the legal conclusions drawn within. Based on Ohio case law,

plaintiffs must only show some set of facts that would entitle them to relief.

In this case, Appellant has offered his judgment of conviction entry that

was signed by a judge other than the presiding judge, without authorization. In

addition to the entry, Appellant relies on Crim.R.32(C), Cra.m.R.25(B) and

numerous supporting First Appellate case authorities as factual support for the

legal conclusions that were drawn within the dismissed petition.

'I'he Ohio Supreme Court has held that before the court may dismiss the

complaint, it must appear beyond doubt that plaintiff can prove no set of facts

warranting a recovery. Appellant proved that Judge Nurre signed the judgnent of

conviction entry in direct violation of Crim.R.32(C) and Crim.R.25(B). And

15

that Appellant is entitled to a judgnent entry that complies with Crim.R.32(C)

and State v. Baker supra.

The Ohio Supreme Court also held that as long as there is a set of facts,

consistent with the plaintiff's complaint, which wnul>d allow the plaintiff to

recover, the cot.irt may not grant a defendant's Motion to Dismiss. Appellant's

Petition for Writ of Prohibition and Mandamus clearly contained sufficient

factual matter to state a claim to relief that was plausible on its face. The

petition included factual content that allowed the court of Appeals to draw the

reasonable inference that the Appellees are liable for the misconduct alleged.

The Appellee cited no case authorities in support of d3smissal., conceeded to

the claims asserted in Appellant's petition and offered no defense. Instead of

offering a defense, Appellees deliberately attempted to mislead the court by

misrepresenting the facts of the petition and the history of the case.

Appellees misrepresented the facts of the petition when they clairned in their

n-otion to discniss that Appellant wasn't "seeking either type of relief"

afforded of prohibition and mandamus. Appellant presented the type of

prohibition and mandamus relief he was seeking in his sworn "affidavit

specifying the details of the claims sought." In claim three Appellant clearly

stated, "Rel.ator seeks to prohibit Judge Nurre and the Hamilton County Court of

Corrrnon Pleas from exercising further jurisdiction to enforce the invalid

judgnent of conviction or taking any other unauthorized actions: Apfx-,I.tant also

explained various other examplea of unauthorized actions taken.

Appellant's sworn affidavit specifying the details of the claims sought futher

constitutes clear and convincing evidence that Appellees contentions are

oornpletely false.

16

In Ballard v. State, 8th Dist. No. 97882, 2012 Ohio 3086 1[16-17, 28 the

court ruled that "the trial. court erred in granting the state's unsupported

mtion for stmgnary judgment contrary to the evidence of Defendant's

Affidavit.,"

Appellees further misrepresented the facts of the case when they contended

that this matter had been affirmed on appeal. The issue of Crizn.R. 32(C) and

Crim.R. 25(B) violations has only recently been discovered.

Appellant seeks a valid judgnent of conviction that complies with

Crzm.R.32(C) and that the court of appeals corrects the results of the invalid

judgnent of conviction. Not only does the Appellee's iMotion to Dismiss not

support dismissal, but Ohio law does not support dismissal.

17

PROPOSITION OF LAW NO. 3

The judgment entry is also invalid because it was not signed

under the circumstances described in Crim.R. 25(B).

Crim.R.25(n) provides that "if for any reason the judge before

whom the defendant has been tried is unable to perform the duties of

the court after a verdict or finding of guilt, another judge

designated by the administrative judge **^ may perform those

duties."

"Therefore, the power to reassign a case to another trial court

judge in the multi-court division, rests soley with the

administrative judge. In this case, the administrative judge did not

exercise that Crim.R. 25(B) power and the order signed by the judge

is void." "Trial courts cannot circumvent the rules out of their own

sense of efficiency. If the assigned trial court is not available,

the rules and procedures of Crim.R. 25(B) and Sup.R.4(B) must be

followed.0 State v. Torrestoro Ohio App.3d, 2012 Ohio 601, N E

2012 Ohio App. LEXIS 521 P-8.

The state may claim that the act of Judge Nurre signing "for"

Judge Schott was a ministerial act and is a permitted exception under

these circumstances. However, the doctrine of "expressio unius est

exlusio alterius" applies in this matter. "Under this maxim, if the

statute specify the effects of a certain provision, the other

exceptions or effects are excluded." see IIeatty v. Alston 40 Ohio

18

App.2d 545; 320 N E 2d 681• 1974 Ohio ApR. LEXIS 2663• 69 Ohio Op 2d

466. In this instance, a ministerial act is not a permissible

exception and is therefore excluded.

The Supreme Court confronted a Crim.R. 25(B) issue in a case

where a different judge signed the death writ rather than the

visiting judge who had presided over the capital trial and who had

sentenced the defendant to death. State v. Robb t20QOl 88 Ohio St 3d

59, 2000 Ohio 275, 723 NE 2d 1019. Besides stating that the signing

of the writ was merely ministerial, the Court pointed out Crim.R.

25(B)'s language "if for any reason" the orig'inal judge is unable to

perform the duties of the court. Id. at 87 . The Court concluded:

"Although the file does not explain why another judge signed the

writ, defendant still `has not contradicted the presumption of

regularity accorded all judicial proceedings.'" Id. Thus, the Court

presumed that the original judge was unable to perform.

In this matter, it is not logical to presume that the judge was

unable to perform his duties immediately following sentencing.

Appellant has demonstrated that this was not merely a ministerial

act. It required the exercise of a judge's discretion and clearly

contradicted the presumption of regularity accorded all judicial

proceedings. Judge Schott refused to sign the judgment entry he had

no confidence in and the prosecutor proceeded to go "judge shopping"

until he found a judge that would sign it. The trial court has no

records of any assignment or reassignment that authorized either

19

judge to preside during or after the trial or to perform the duties

of the presiding judge.

It is clear from the record that Judge Schott presided over the

entire proceedings against Appellant including pronouncing sentence

on 1-29-92. However, Judge Nurre signed the entry for Judge Schott

also on 1-29-92 without any justifiable reason and no authorization.

Sup.R. 7(A) requires that a judgment be filed and journalized within

30 days of the decision. There is no requirement that a judgment be

filed and journalized on the same day. The fact that.Judge .Nurre..

signed the entry instead of Judge Schott on the same day of

sentencing, when Judge Schott was clearly able to, should cast doubt

on any actions taken by Judge Nurre and Judge Schott in this matter.

Appellant also relies on two Eighth Appellate district cases for

the proposition that all issues in.a case must be determined by the

original judge absent any notice in the record of reassignment to

another judge. Rosenberq v.Gattarello (1976), 49 Ohio App. 2D 87,

93-94, 359 N.E.2d. 467, Zurowski v. Cuyahoga Cty. Bd. Of Revision,

1982 Ohio A. LEXIS 12359 (Oct. 28 , 1982 ), Cu aho a A . No. 44537,

unreported, p.3. These cases held that the case record must show

unavailability of the original judge and that a delay in ruling on

the matter would be prejudicial before another judge may take.,any

action. (emphasis added)

The Supreme Court, in BeattV v. Alston (1975), 43 Ohio St.2d.

126, wrote that Cri.m.R. 25(B) "inferentially commands that unless

20

able to do so, the judge who presided at a criminal trial must also

preside at post-conviction proceeding, including sentencing>" The

word "command" is defined in Webster's New International Dictionary

as "to direct authoritatively; order; enjoin."

Applying Crim.R. 25CB), to this case, this court should note

that the record is devoid of any showing that Judge Schott was unable

to perform his judicial. duties. No reason whatsoever has been

advanced to explain the reason Judge Nurre signed the entry to a case

he did not preside over. The substitution of judges was not in

accordance with and therefore violated Crim.R. 25(B) .

Had there been a reassignment of the case to Judge Nurre, it

would have had to be accomplished through a journal entry that had

been executed by the administrative judge and journalized by the

clerk of the trial court. Absent such a journalized judgment entry,

the judge assigned to hear the transferred case possesses no

authority.

According to Crim.R. 55(A) (criminal appearance docket), "the

clerk shall chronologically note in the appearance docket all e

process issued and returns, pleas and motions, papers filed in the

action, orders, verdicts and judgments. The notations shall be brief

but shall show the date of the filing and the substance of each

order, verdict and judgment."

It is well settled that journalization requirements are not

empty formalities. Where a court issues a decision verbally or even

21

in writing, but it has not been 3ournalized, the judgme;it is not final. A

case disposition entered by a clerk that does not reflect a properly journalized

order or judgment of the court has no force or effect under Ohio law. Statev...... ..----.,

Ginochio (1987), 38 AM®3 105;.

In this case, the record supports.the.fact thatthe Hamilton County Clerk

of Courts had been exceptionally thorough in their duties to record all of the

activities of this case. Therefore, had there been a Certificate of Assignment

from the Chief Justice of the Supreme Court or a Journai. Entry reassigneing

Judge Nurre from the administrative judge as required, or even a notification

of reassignment of Judge Nurre,,they would have promptly been journalized and

appeared on the appearance docket. The only explanation as to why they were never

filed and journalized.is because no such orders existed.

Appellees clearly admit this fact in their Motion to Dismiss. Had they contended

otherwise, they would have already produced these vital documents.

In Berger v. Berger (1981), 3 Ohio App.3d 125, 130, 443 N.E.2d 1375, the

court held that "transfers violate governing procedural rules if the record does

not show they have been made by the proper authority and with a proper reason."

In State v. Miller 2012-Ohio-2132 2M12 WL 1664145 the Third Di.st. held in

ST17., °'The record reveals, however, that there was no assignment by the Supreme

Court of Ohio. Therefore, the 'assigned'I trial judge lacked jurisdiction over

the matter due to erroneous assignment."

According to Plant Equip. v. Nationwide Control Service Inc. A.K.A. Nationwide

Control Sevice 798 N.E.2d 1202 (Ohio Appe 1 Dist. 2002) the First Dist. Court

of Appeals held that "A judgement can be void not only for lack of jurisdiction

but also where the Court acts in a manner contrary to due process."

22

PROPO6ITION OF LAW N(O. 4

The Appellate Court's and Adult Parole Authority's decision are void becausethey both u-ere premised upon a sentencing entry that violated. Crim.R<32(C).

A judgment of conviction is jurisdictional. R.C.2953.02,

Crim.R.32(C) Once Appellant was delivered to the permanent detention

facility the authority of the judicial branch over Appellant's

sentence ended. Jurisdiction was then transferred to the penal

institution of the executive branch.This conference of jurisdiction

is. made possible due to the judgment of conviction. The January 29,

,r^ ^ .^. ,,

.L J n`. J 4tdgll6ril C-. entry is the sole '^ .r, .^ ^tn. 9..Y?.ra. ^ ppvij 7 1

u:i c^-

in .. .. ....'Yutiz'l'r i't^ fv ^^'c ' u x.<vj ra i^

any way,shape or form.

In State v.Bloomer, 122 Ohio St. 3d 200, 2009 Ohio 2462, 909

N.E.2d 1254 , this court held that, "In the absence of a proper

sentencing entry imposing postrelease control, the parole board's

imposition of..postrel.easp control cannot be enforced." This ruling is.

instructive in regards to the parole board's authority and

Appellant's claim. Appellant asserts that in the absence of a proper

sentencing entry alone, the Adult Parole Authority had no

jurisdiction over Appellant and any jurisdiction exercised by the

A.P.A. was a jurisdictional unauthorized action.

Imposition of punishment is a function of the judicial branch of

government. Ex parte United States (1916), 242 U.S. 27 41-42, 37

S.Ct. 72 , 61 L Ed The executive officers of the penal institution

carries out the judgment of conviction. In this instance, the

23

executive officers carried out a judgment that was invalid on its

face. The First District Court of Appeals affirmed a judgment entry

on Direct Appeal that was invalid on its face despite their long

standing scrupulous adherence to Crim.R.32(C). This failure to

respect precedent violated Appellant's Constitutional rights to due

process and statutory right to a Cri.m.R.32(C)/Baker compliant

sentencing entry.

Appellant also relies on the Ohio Supreme Court's ruling in

State v. Bi.lli.ter 2012 Ohic 5144• 212 Ohio LEXIS 2725. In Billiter

at P-12 this court held that, "the trial court's incorrect sentence

for postrelease control in 1998 was insufficient to confer authority

upon the Adult Parole Authority to impose up to three years of

postrelease control on Billiter." According to this ruling the APA

had no authority to continue Appellant's sentence from 6/10/2005 to

,8/10/20.11 and again fr.om. 8/10%2011_to_8LQ1/_2018 because the trial__..______

court's noncompliant sentencing entry did not confer upon them the

jurisdiction to do so.

Under its authority as announced in Ex parte Tischler, 127 Ohio St.404

410, 411, 188 N.E. 730, at no time did the parole board have the right to

take the matter.up and consider it, to accord to the Appellant the benefit of

his good time Or to deny it, to release him or continue his sentence.

24

PROPOSITION OF LAW No.5

The undue delay has divested the trial court of jurisdiction to resentenceAppellant.

Appellant asserts that the over twenty one year delay from sentencing and a

valid judgment entry on the matter violates Crim.R.32(A) and Art.I section 16

of the Ohio Constitutionr Ohio's due process clause. Artal section 16 of the

Ohio Constitution provides that justice shall be administered without denial

or delay. Crim.R»32(A) mandates that "sentence shall be imposed without

unnecessary delay." In Neal v. Maxwell, the Ohio Supreme Couru held that a

reasonable delay in imposing sentence does not invalidate a sentence. 175 dhio

St«201, 202 192 N.E.2d 782 (1963). Subse"-ently, appellate courts have held

that a delay in sentencing must be reasanablr in orcler to be valid and that

any unreasonable delay invalidates the senLence® State v. .Brown, 152, Ohio

App.3d 8, 2003 Ohio 1:218, 786 Tv E.2d 492 (7th Dist ); State v. Johnson, 12th

DistmNo. CA2002-07-016, 2003 Ohio 6261 (more than six-year delay between

guilty plea and sentence divested trial court of juris;;ictiv^ to sAntence

defendant); Warren v. Ross, 116 Dhzo 275, 688 V.F,.2c3 3 (1:.ith Di:st.

199E) (without an explanation for delay, trial couz-t lost jurisdiction to

revoke defenrlant °s driver's license as more than E our years e.Zapsed batwQen

conviction and the cirder purport.inc.,^ to revoke the ly cen5e) ; Cit flf 14i llouqhbv

v. Lukehart, 39 Ohio App.3d 74, 529 N .E.2d 206 {.i.IL,"► Dist i09t?7} (without a

substantive reason, the trial court was divested of jurisdiction to impose

sentence as a sixteen-month delay between the time of arrest and sentencing

was unjustzfied and lengtixy.)

Although this case. is factually distinguiaha.bZe from the foregoing, the

reasoning is nonetheless irsstnuctive. On January 29, 1992, Judge Donald L.

Schott "pronounced" sentence upon Harris. But until a valid final order ia

25

filed with the clerk, there has been no sentence officially "imposed"

upon Appellant.

In State v. Eiattle 1989 Ohio App.LEXIS 2536, the First Appellate

District held, "a review of the record clearly illustrates that the

signature of the trial judge was not affixed upon the judgment entry

until September 14, 1987. It was at that time that the judgment of

conviction became effective."

In this case, since a valid signature is not affixed to the

judgment of conviction (to date), the judgment of conviction has

still not become effective. Therefore, due to the undue delay, the

trial court has been divested of jurisdi.ction to resentence

Appellant.

26

CONCLUSION

When Prosecutor Longano had Judge Nurre sign the judgnent of convic-tion, they

were both acting in "bad faith". Judge Nurre's signature was not prompted by an

honest mistake as to his duties, but by some interested and sinister motive. It

was not bad judgnent or negli.gence, but rather the concious doing of a wrong

because of dishonest purpose or moral obliquity.

There are at least four authorizing docunents that were absolutely necessary

in order to comply with Appellant's fundamental rights to due process. A journal

entry for Judge Nurre's original assignment, a journal entry from the

administrative judge reassigning Judge Schott to the case, a Certificate of

Assignment from the Chief Justice of the Supreme Court authorizing Judge Schott

to preside and the journal entry reassigning Judge Nurre on the day of sentencing

that would allow hun to sign the judgment of conviction. There is no evidence

that a single one of these docunents ever existed in this case, clearly

contradicting the presunption of regularity accorded a11. judicial proceedings.

Because of the initial unauthorized exercises of jurisdiction and authority

by Judge Nur.re and Judge Schott, the nunber of subsequent irreparable

unauthorized actions have compiled. For instance, the most irreparable action is

the extension of confinement that the APA has imposed upon Appellant. It is

irreparable because "tirne" cannot be given back to Appe.ll.ant once it has passed.

Remanding this case to the trial court to furnish Appellant with a

Crim.R.32(C) and Baker compliant judcfnent of conviction does not correct the

jurisdictional unauthorized actions of the APA. After serving over 21 years on an

invalid judgnent of conviction order that is void on its face, vacating this

conviction is the only fair and equitable solution. Appellant prays that this

27

oourt corrects the results of these prior jurisdictional unauthor?zed actions and

those corrections include vacating this conviction. It is so prayed.

Respectfully submitted,

CERTIFICATE OF SERVICE Lionel Harris, pro se

I hereby certify that a copy of the foregoing Merit Brief of Appellantwas forwarded by regular U.S. Mail to Scott M. Heenan, Assistantprosecuta.ng attorney, Hamilton Couraty, 230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202 on this a & day of July, 2013.

Lionel Harris, pro se

2 £3

APPENDIX

29

IN THE SUPRENlE COURT OF OHIO

STATE OF OHIO,

Plaintiff-Appellee,

V.

Lionel Harris

Defendant-Appellant.

Case No. B-9167$9.

On Appeal from the Hanulton• County Court of Appeals

First Appellate District

C.A. Case No. C-I30260

NOTICE OF APPEAL OF APPELLANT LIONEL HARRIS

Lionel Harris#252-066Madison Correctional Inst.P.O. Box 740London, Ohio43140-0740

Defendant-Appellant, Pro Se

Scott M. HeenanAssistant Prosecuting Attorney230 East Ninth Street, Suite 4000Cincinnati, Ohio45202

Counsel for Appellee, State of Ohio

MTICE OF APPFAS, OF APPEI,I,ANr LZOABFL IPRRIS

Appellant, Lionel Harris hereby gives notice of appeal to the Supreme Cour-t

of Ohio from the judgnent of the Hama.lton County Court of Appeals, First

Appellate District, entered in the Court of Appeals Case No. C-130260 on May 30,

2013.

This is an appeal of right from an Original Action. This case involves a

Crim.R.32(C) violation and is of great general interest.

Lionel Harris

Lionel Harris#252-066Ma. C. I.P.O. Hox 740London, Ohio43140-0740

Defendant-Appel.lant Pro Se

l

COMFICATE OF SEWICE

I hereby certify that a copy of the foregoing Notice of Appeal was forwarded

by regular U.S. mail to Scott M. Heenan, Prosecuting Attorney, Hamilton County

Cincinnati, Ohio on this jr day of June 2013.

Lionel Harris#252-066

Defendant-Appellant, Pro Se

2

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON CC?UNTY, OHIO

STATE OF OHIO EX REL. .AI'PEAI. NO. C-13026oLIONEL HARRIS,

Relator,

vs ENTRY DISMISSING PETITIONFOR'tNRIT OF PROHIBITIONAND MANDAMUS

HAMILTON COUNTY COURT OFCOMMON PLEAS, et al.,

Respondents.

This cause came on to be considered upon the petition for writ of prohibition

and for writ of mandamus, and upon the motion to dismiss said petitzon.

The Court finds that the motion to dismiss is well taken and is granted.

The petitxon for writ of prohibition and mandamus is dismissed.

To the clerk:

Enter upon the journal of the court on M AY 3 0 2013 per order of the court.

I .By: bw&MZ (Copies sent to all counsel)

Presiding Judge

AFI-JDAVIÌ' OF INDIGENCY

IN THE SUPREME COURT OF 01110

Affidavit nf Indigency

_^ ^ J ..'(^4 ♦. ^:

0

1.^.,î

- 4--^ ^, ^ a,.. .^+ '::f'

I, Lionel Harris, do hereby state that I am without the necessaryfunds to pay the costs of this action for the following reasons. Due_to my present incarceration, I am without sufficient income or otherfznancial. resources to be able to pay these costs.

Upon my release, I will be in a severe financial situation as theresult of having to reestablish myself into the community. My entiretime and limited resources will be required to promote a harmoniousreturn. Food, shelter, clothing and transportation, the essentialsfor daily survival, must all come from my very limited resources.The inability to care for these essentials due to diverting funds inorder to pay these court costs may not be in the best interest ofsociety, placing undue hardship upon this defendant. Payment of thiscost amount would be akin to additional punishment in my currentfinancial strait.

Pursuant to Rule 15.3, of the Rules of Practice of the Supreme Court of Ohio, I am requestingthat the filhng fee and sjep,Urity deposit;-afnapplicable, be waived.

_

-------r?.ffiant ---- --------

;

Sworn' to , or affirmed, and subscribed in my presence this day of

20^.

Y-)a^^1^Notary Public

My Commission Expires:

c^ e Laura CcludiiiNotary Pubi#c°State of OhioM Commi ion Ex ires

D o r ^`l

[Note: This affidavit must be executed not more than six months prior to being filed in theSupreme Court in order to comply with S.Ct. Prac. R. 15.3. Affidavits not in compliance withthat section will be rejected for filing by the Clerk.]

date; 01/20/22code: GJEI

judga: 030form: B

^ * ^ •^ * ^ ^ ^ * ^ ^^ ^.

* E PO T E R E D *

DATE

IMAGE:

THE STATE OF OHIOVS.

THE STATE OF OH I 4, NARfl I LTOA1 COUNTY

COURT OF COMMON PLEAS

Ej ^.,..f7d

..m.._._..._.._ . ^ _ __ ..

Jud D0 CFÔTT

NO. B D 1 8 9

JUDGMENT ENTRY : SEPdTENCE :

(NCARCERATI4N

L. I OfdEL HARR f S

Defendant was present In open Court with Counsel TIM SMITH A 1N.MALL4RY,JR,csn the 29th day of January 1492 for sentence.TI;a court €nforwwod ttie defendant that, as the deiendant-we-€_P Rngar,_.._after trial by jury, the defendant had been found gu€Ity of the o;fgnse(s) atAGGRAVATED MURDER 2003 . 01 R. C , COUNT 1( NQ '.^,!`^"EC i F I CAT i Ofd )

The Court afforded defendant's counse€ an opportunity to speak on behalf ofthe defendant. The Court addrossed the defendant personally and asked (t thedefendant wished to make a statemerit In the defendant's behalf, or presentany Inforre►ation €n mlttgatlon of pundshment.

Daffend.ant Is sentenced to be Iniprisonad In Department of Corrsct€onsFOR A 'I'ERN! OF L € FE .( EL f Q i B E L! TY FOR PAROLE € M T'AENTY (20) YEAR S )PAY COSTS.(426,000.013 FINE)

r^

%

^Defendant was notified r,rP the right to appdal as required by Crim. R 32(A)(2)

%

COIJRT OF APPEALS

FIRST APPELLATE DISTRICT

I-IANIILTC)N COUNTY, OHIO

STATE EX REL. LIONEL HARRIS, NO. C-130250

Realtor,

vs.

HAMILTON COUNTY COLIRT OFCOMMON PLEAS, ET' AL.,

MOTION TO DISMISS

IZ.espondents.

Lionel Harris has filed what appears to be a petition for postcon:viction relief that

__._.: _.... . he has captioned as a petition for v,-rit of proh:rUitio-a and mandaanus, As this Court

knows, a writ of prohibition is used to prevent a trial court from taking some action,

while a writ of mandamus is used to order a trial court to take some action. Harris is not

seeking either type of relief

Instead, he wants this Court to vacate his conviction because there was no entry

assigning the matter to a visiting judge and the judge that was originally assigned the case

signed the senten.cing entry for the visiting judge. All of that occtirred iillate 1991 and

early 1992. The matter has since been affirmed on appeal. in Case Nos. C-9201 S 1& 158.

The relief that Harris is seeking is not obtainable in via mandanlus or prohibition.

His petition should, therefore, be dismissed.

CLERK OF COURTSHAMILTON COUNTY

MAY -a ^ 201.31f RACY +Jti4fyKLE F-i

GofUiivlt)N PLEAS ?;ol;RToà

.. IL ^COURT OF ^^^ÂN",'

MAY ". 6 .F €.s 3:3

TRACY VVliVKLLh;^LLriK OF CUURTvHAMILTON CQUNI7'r

1

Respectfully,

Joseph T. Deters, 0012084PProsecuting At^prney

Scott M. 11kha.n:, 0075734PAssistant Prosecuting A. ttorney230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202Phone: 946-3227Attorneys for Respondent

CERTIFICATE OF SFIZVICE

I hereby certify that I have sent a copy of the foregoing Motio to Dismiss, byUnited States mail, addressed to Lionel IHarris, 252-066, : adiso C'rrectional, P.O. Box,...:_:... ..._740, London, Ohio 43140-0740, counsel of record, this da °,; df May, 2013,

Scott M. 14aenan, 0075734PAssistant Pxosecuting Attorney

2

Ohio Parole Board DecisionInmate Last Name:

Harris

Currrnt $earing Ydentitier:

Hearing lvfonth (azutm yyyy) Type Of Hearing:

Aug 2005 Istl2nd FIRST

Offense(s) Of Conviction:

2903.01

Record Number: Date Of I-Iearing:

tthl10I2005

1. Category 13 for the conviction

A. Guidetine Section No.(s): 201

B. Details of the conviction behavior, Only state the facts that support the specific offense category, which eorresponds to the offense(s) ofconvictxon:

Inmate convicted of the Aggravated Murder of Ius wife. This was a premeditated, purposeful kill_ing.

C. The eqtzivalent SB2 sentence range for this (these) sentences(s) of conviction is Life

2. Criminal HistorylR:isk Score: 0

Inmate First Name: # Prefix: Ir.mate Number:

Lionel A 252066

3. 'Che Guideline Range is 0 ~$$$ months.

4. Total Time Served: 164 months . arrived at by - A. Prison Time: 160 nzonths + B. Jail Trme Credit: 4 mwuh.s

TPV Arrest Date:

5. 0 infractions that resulted in a nsw conviction for felony eriminal conduct committed in a prison facilitylor while in custody. Only statethe facts that support the specific offense category, which corresponds to the offense(s) of conviction.

Category for new conviction: Section No.(s): Crimina( History/Risk Score: Guideline Range: I

Details of Conviction Behavior:

DRC3039 E(Rev 1010=3) Distribution: Inmate, Board File, Record Office Page I of 3

Imate, Last Narn ^n jnate

lle^FigÎrT1S rst Name: # Prefix:

L1O

6. Class Rescission Behavior Guideline Range is 0° 2 months.

A. Q discipinary inSractions involving felonious conduct

1. 6-18 months for each infraction 2: = 0 - 0 months

Details:

B. 0 disciplinary infractions involving threatening conduct against staff and/or possession of a dangerous instrument

l. 6 12 months for each inffaction

Details:

2. = 0 - 0 months

C. 0 disciplinary infractions involving possession or use of alcohol andJor a controlled substance

F 1. 3-6 months for each infraction T2. = 0 0 months

Details:

D. 0 disciplniary infractions involving other misdemeanor conduct

1. 0-6 months for each infraction 2. = 0- 0 months

Details:

E. 1 significant discip]inary infractions

1. 0-2 months for each infraction

Details;

4/1/00 R51

2. = 0 - 2 months

Page 2 , of 3

7. Aggregate Guideline Range is: 4^90 months (#3 +#S +#6 ):

8. Rationale of I>ecision within Aggregate Guideline I2ange:

Inmate was sentenced to a minimum ternu of 20 years by the sentencing court. Offense is aggravated by thebrutal nature in which the victim was shot two times in the face at close range with a sawed off shot,gun.Inmate has acceptable institutional conduct and he has availed himself of several educational programs. Paneldetermined that inmate is not yet suitable for release.

9. A. Circumstaiices related to the offense(s) of conviction, including crimes that did not result in conviction, and any other factors the APA deems

relevant.

B. Based on these additional factors, an additional months should be served from the date of this hearing before release/next hearing.

10.• A. Total Time to be Served: To next hearing ® 240 months

To Release q months

B. Remaining Time to be Served: To next hearing ® 76 months

'I'o Release q - months

* total ttme to be served cannot esceed the mrwimum sentence

1.1:. A. Outstanding Program Achievement q granted ® not granted

B. month credit for the following programs:

C. Adjusted Total time to be Served: _ months D. Adjusted Remaining Time to be Served: months

12. A. Recommendation: CONTINUED 10/01/2011

CON

B.

13. Instnactious/Notes:Haraxs #252-066

14. Iiearing Panel

Board Member Signature:

Board Member:

PD

Fieaning Officer Signature (if applicable):

Hearing Officer (if applicable):

Release on PRD is contingent on good institution behavior and/or reduction from maximum security status. A PRD may be extended for a Class R

violation when the case is reviewed at the PRD Pre-Release Review.

Page J of J

Ohio Parole Board Decisionlnmate Last Nanie:Harris

F'irst Statutory Eligibility Date (m,mm yyyy)June, 2005 Actual

1. Offense(s) Of Conviction:2903:01 Aggravated murder

Aggregate seratence per Journal Entrys 20- Life

2. Parole Violators (if applicable)

q TPV

q PVR EST:

Offense(s) of Conviction:

Inrnate First Name: 4 Prefix: Inmate Number:Lionel A 252066

Type of Hearing:CONTINUED

Sentence:

3A. Ej The mandatoty factors indicated in AR 5120:1-1-07 were considered.

Date of Hearing:08/10/2011

3B. Rationale: Cite specific factors relevant to the offense and offender:

Mr. Harris has served about 20 yrs for his role in this offense which involved the murder of his wife by gunshot. Since his lasthearing, he has minimal discipline but also minimal programs. Mr. Harris' version of the events are quite different that thecase record, thereby negating any insight- he continues to profess his innocence. He showed no remorse or sadness for theloss of his wife. Release at this time would undermine the seriousness of the crime and is not in the interest af justice or thewelfare and safety of society.

4. 7'he above-indicated factors support one or all of the following reasons cited in AR 5120:1-1-07for contintied incarceration_

A. There is substantial reason to believe that the ilimate will engage in further criminal conduct, or that the inmate will notconform to such conditiflns of release as may be established under AR 5120:1-1-12.

B. q There is substantial reason to believe that due to the serious nature of the crime, the release of the inmate into societywould create undue risk to public safety, or that due to the serious nature of the crime, the release of the inmate wouldnot further the interest ofjustice or be consistent with the welfare and security of society.

C. q Ttiere is substantial reason to believe that due to serious infractians of division Ieve15120:9-06 of the AdministrativeCode, the release of the inmate would not act as a deterrent to the inmate or to other institutionalized inmates fromviolating institutionairules.

D. q Not applicable.

A.. Time Served to I)ate: 238 months T'PV Arrest Date (if applicable):

arrived at by -- A. Prison Time: 234 months -f- R Jail Time Credit: 4 months

3. Remaining Time to be Served:

To next hearing 84 months To Release znonths

Remaining time to be served cannot exceed the mnximum senterace

Recommendation: MAJORiTY VOTE CONTINUED

CON

Hearing Panel

rd Member Signature:

ring Officer 5ignatw-epplicable):

Bnard Member:Majority Vote

Hearing Officer iif applicable):

08/01/2018

... *n_ e,,..,, .e,; n;s -i ;-r rn r-vinw end anoroval ov tfie Parole Board Clrair, and is not final until actual reiaase frem custody occurs. The

^^^ ^^^^^ QItrnr^ ^^ ®IiULAW LIBRARY

65 SouTH PRONT STREET, CoLVniavs, OH 43215-3431CHIEF JLTSTICF

MAUREEN O'CONNOR

JUSTICES

PAUI: E. PFEIFER

TERRENcE o'DOiv'vELI.

JUDITH ANN LANZIIef FA

SHAItOiv L. KENNEDY

JUDFTH L. FRENCH

WILLIAM A (7'NEILL

Dear Sir:

The materials you requested are:

CoxnpIete

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DIRECTOR

KEN KOZL:OWST<I

TEiLEPIIOh'E 614,387..9650

FACSIMILE 614.387.9659

4VW W.st2prEIHleCotlI't.OM®, gUv

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^..l7^^' iUC0A

e, + r,COURT OF APPEALS

FIRST APPELLATE DISTRICT

HAMILTON COUNTY, OHIO

STATE EX REL. LIONEL HARRIS NO. C-130260

Realtor,

V.

HAMILTON COUNTY COURT OF COMMON

PLEAS, ET AL.,

Respondents.

OURT^^ APPEALS

MAY ^`^ ôm

TRACY Wf NK!„^^CLERK OF ÔORTSc#AMti.l'ON COtJN'r,'

REPLY TO RESPONDENT'S MOTION

TO DISMISS

Respondent's Motion to Dismiss was served on Relator on May 14, 2013. Respondents

assert that a Writ of Prohibition is only used to prevent a trial court froni

taking some action, while a Writ of Mandamus is only used to order a trial court

to take some action. Respondents cite no authority to support these limiting

assertions. (see attached)

Relator, on the other hand, relies on several well-settled precedents of the

Ohio. Supreme Court to clearly demonstrate that a Writ of Prohibition is also

the proper action to bring to correct the results of prior jurisdictional

unauthorized actions.

State ex rel. Mayer v. Henson 97 Ohio St.3d 276, 2002 Ohio 6323; 779 N E 2d

223. "If a lower court patently and unambiguously lacks juriscBiction to proceed

in a cause, prohibit%on and mandamus will issue to prevent any future unauthorized

exercise 4f ju,.kARicti.on and to correct the results of prior jurisdictional(56 Lo ^-- >Z

^-un u horied ^^ns.

ffi:d d ^ 6L.)StatecSE r,.gj::^ :4omaz v. Court of Common Pleas of Porta. e Cty. (1988) 36 Ohio

;;I- c.a^^^

St'.3^3 20 21, ► 2 N.E.2d 551 "Ordinarily, prohibition is issued to prevent the

unauthori^d exetîse of judicial power. However, in State, ex rel. Northern

1

Ohio Tel. Coe v. Winter, we allowed the Writ not only to prevent futher action

by a court that was about to exercise unlawful judicial power but to invalidate

an order already made."

In the second paragraph of Respondent's Motion to Dismiss, Respondents

adaiit that all of Relator's claims are true. Respondents clearly state, "there

was no entry assigning the matter to a visiting judge and the judge that was

originally assigned the case signed the sentencing entry for the visiting

judge. All of that occurred in late 1991 and early 1992." (emphasis added)

Not only does this admission contradict the presumption of regularity

accorded all judicial proceedings, but Respondents have basically admitted to

a much :larger conspiracy than Relator had initially accused them of. Obviously

Judge Schott has also conspired with the prosecutor and Judge Nurre to attempt

to legitimize an illegal proceeding. With the admmission of Respondent, it is

clear that Judge Schott did not, in fact, refuse to sign the judgment of

conviction because he had a conscious, he didn't sign it because he patently

and unambiguously lacked jurisdiction under Ohio Const. Art. IV section 6(C^

to even preside over the trial. And Judge Nurre clearly had no auth(Drity

to sign it under Crim,R.32(C) because he was not the presiding judge.

Respondents have no defense to Relator's claims and have admitted they are

true. Their Motion to Dismiss is without any supporting authority, clearly

has no merit and should be summarily dismissed. Furthermore, because of

Respondent's admission of wrongdoing, Relator's conviction should not only be

vacated with prejudice, but in the interest of justice, his immediate release

should be ordered by this court.

2

Regardless of Respondent°s explanation for the lack of assignment of the

judges, the fact remains that Relator still does not have a Judgment of

Conviction that strictly complies with Cri.maR.32(C) and complies with the mandates

of State vm Baker, 119 Ohio st.3d 197, 2008-Ohio-3330, 893 N.E. 2d 163. Therefore

there is still no final appealable order.

The state claimed that the matter has since been affirmed on appeal. This

statenient is incorrect. The issue of a non-final appealable order has only

recently been discovered. And in regards to the appeal, it is a legal nullity

because one cannot appeal an order that is invalid for appeal purposes.

Respectfully submitted,

LAIU)Lionel Harris, pro se#252-066P.O. Box 740London, Ohio 43140-0740

CERTIFICATE OF SERVICE

I hereby certify that I have sent a copy of the foregoing Reply toRespondent`s Motion to Dismiss by regular U.S. mail, addressed to theHamilton County Prosecutor at 230 East Ninth Street, Suite 4000, Cincinnati,Ohio 4520-21 on this 16th day of May 2013.

Lionel Harrzs, pro se

3

, ^> . . _

. ., ._^. ; _: ..., ; - .-'.^ . . .

..^'..'^>D .. ..

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HAMILTON COUNTY COMMON PLEAS COURTHAMILTON COUNTY, OHIO

STATE OF C?HTO, APPEAL NO. C-920151C-920158

PLAINTIFF,

vs.

MATTHEW PEARSON,and

LIONEL HARRIS,.DEFENDANTS,

Case No. B-916789

COMPLETE TRANSCRIPT OF PROCEEDINGSVOLUME I OF X

APPEARANCES :

THOMAS LONGANO, ESQ.,GUS LEON, ESQ.,

On behalf of the plaintiff.

DALE SCHMTDT, ESQ.On behalf of the defendant, MatthewPearson.

WILLIAM MALLORY, JR., ESQ.,TIMOTHY SMITH, ESQ.,

On Behalf of the defendant, Lionel Harris.

BE IT REMEMBERED that upon the hearing

of this cause on October 22, 1991 and January 13

through January 29, 1992, before the Honorable Donald

Schott, one of the visiting judges of the said

Hamilton County Common Pleas Court, the following

proceedings were had.

a

1

2

3

4

5

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8

9

10

11

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13

14

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C E R T I F T C A T E

I, Gayle Purdue McMurray, an official

shorthand reporter for the Court of Common

Pleas, duly appointed by the Court to report the

proceedings in this cause, do hereby certify

that the foregoing ten volumes pages eonstitutes

a true and complete transcription of the notes,

taken in stenotypy, of the proceedings in this

cause.

IN WITNESS WHEREOF, I have hereunto set

my hand at Cincinnati, Ohio this 31st day of

August, 1992.

t -^/. . '4 1

Gayle Purdue ^ McMurrayO£ficial Sho4thand Reporter t,Court of Common PleasHamilton County, Ohio

J

KT

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO


STATE OF OHIO EX REL. APPEAL NO. C-13o26oLIONEL HARRIS,

Relator,

vs ENTRY DISMISSING PETITIONFOR WRIT OF PROHIBITIONAND MANDAMUS

HAMILTON COUNTY COURT OFCOMMON PLEAS, et al.,

Respondents.

This cause came on to be considered upon the petition for writ of probibition

and for writ of mandamus, and upon the motion to dismiss said petition.

The Court finds that the motion to dismiss is well taken and is granted.

The petition for writ of prohibition and mandamus is dismissed.

To the clerk:

Enter upon thejournal of the court on MAY 3 o 2013 per order of the court.

By: (Copies sent to all counsel)Presiding Judge

COURT OF COMMON PLEAS

CRIMINAL DIVISION


STATE,OF.OHSO

Plaintiff-ResENIERED6 11.3 199bI

THE CLEA'K SHALL ^VE NOTICETO PARTIES PURS NT TO CIVILRULE E3 WHICH v-tLL vE TAXcDAS CC'T3

NO. B-9106789

vs. FINDINGS OF FACT^ CONCLUSIONS OF LAW AND

LIONEL HARRIS EMqTRY DISMISSING PETITION4>'0o, TO VACATE

Defendant-Petitioner

This matter is before the Court on the defendant's petition to

vacate, the State's memorandum in opposition and the entire record.

The defendant is asking the Court to set aside his sentence. The

Court finds that this issue can be resolved without an evidentiary

hearing.

The Court makes the following Finding of Fact:

(1) The defendant was convicted of aggravated murder on October

10, 1991 and was sentenced to life in prison.

(2) There is no evidence from the record and no documentation to

support the defendant's claim of an impartial jury member.

The Court makes the following Conclusions of Law:

(1) The doctrine of res judicata bars the claims of an impartial

jury and withdrawal of guilty plea that could have been raised

-406- on direct appeal or were clearly evidence from the record.

State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967)A

Therefore, this defendant's petition to vacate is hereby

dismissed as provided in R.C. 2953.21(C).

Counsel:

e NurreJu

Jennifer E. DayAssistant Prosecuting Attorney914 Main Street, Suite 500Cincinnati, Ohio 45202

Lionel Harris#252-066Lebanon Correctional InstitutionP.O. Box 56Lebanon, Ohio 45036

El^TE.ÎDNOU.11E 19961

--dmm-

IN TfiE COURT OF APPEALSFIRST DISTRICT


Lionel Harris

Relator,

Petition No. C-130260

V.

Hamilton County Court of

Common Pleas et al.

1000 Main St. Cincinnati

Ohio 45202

Respondent.

Tria1_ No. B 916789

AFFIDA1(IT SPECTFYING '1'HE LETAILS ®F CLAIM5 SOUGIiT

Claim one:

The judgment of conviction was not signed by the trial judge who conducted

the trial, but was signed by a judge who had no connection with the trial. The

failure of the trial, judge to sign the judgment resulted in an improperly

journalized judgment of conviction, pursuant to the required strict compliance

of Crim.R.32(c), and thus there is no final, appealable order.

Cilaam two:

After the presiding judge, Donald L. Schott refused to sign the judgment of

conviction, the prosecutor went judge-shopping and convinced Judge Thomas C.

Nurre to sign the order minutes laterm Judge Nurre also patently and

unambiguously lacked jurisdiction under CrimaR.25(B) to sign the final entry

in a case that was not tried before him when he had not been designated to do

so by the administrative judge of the common pleas courte The doctrine of

expressio unius est exclusio alterius applied and.the authorization for Judge

Nurre to sign the order did not occur under the circumstances that were set

forth in Crim.R.25(B). Therefore Judge Nurre exercised unauthorized judicial

power.

Clai.m three:

Relator asserts that the over twenty one year delay from sentencing and the

judgrtent eritry on the matter violates Crim.R.32(A) and Art.1 section 16 of the

Ohio Constitution, ®hio's due process clause. Therefore, Relator asserts that

the sentencing court lost jurisdiction over the matter. Relator seeks to

prohibit Judge Nurre ar7d the Hariiilton County Court of Common Pleas from

exercising further jurisdiction to enforce the invalid conviction or taking

other unauthorized action regarding Re7.ator's conviction.

A properly journalized judgment of conviction pursuant to Crim.R.32(C) is

necessary in order to authorize the Ohio Adult Parole Authority to exercise

its authority over the relator. Therefore, since the judgment of conviction is

irava.lid, the Ohio Adult Parole Authority has exercised its unauthorized

authority over the relator on two separate occasions when it extended his

sentence in excess of 13 years.

Relator has specified the details of his claim as required and asserts that

a Writ of Prohibition and/or Mandamus should issue to correct the results of

prior jurisdictionally unauthorized actions. Relator declares that all of the

information contained herein are true to the best of his understanding,

kr°:owl edg e and be l i e f.

1kVVL4-JLionel Harris

Sworn to before me and subscribed in tny presence this 2day of April 2013.

eO,-.kA Ot+w ^w ^• -C^// ^v""^ uT^`^._Loueo CCfudiN NOTARY PUBLICs* ^. Notdiy PUtrtfc-$tate of Ohio

- My Commission ExpiresI r7

,- 08/08/2011 14;12 5135425333 RECORD CENTER PAGE 08/02

) 1

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«

HAMILTON COUNTY CLERK OF COURTS

F'ODAY'S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 1

CASE:B 91.06789-A Criminal Appearance Report CMSR5155

A P P E A R A N C E D 0 C K E T

Attorney - Plaintiff

Attorney - Defendant

:ur Judge - THOMAS C NURRE

;TATE OF OHIO vs. LIONEL HARRIS

Total Deposits $,00Total Costs $0.00

TATE OF OfiIO

vs.

OiVEL HARRIS

Municipal #:

Race: W Age: 24 Sex: :1

14

Lleei; 10/J.0/1991 0005 -- WARRANT ON INDICTMENT

3unt:1 Dispositi<rn:3DOC DEPARTMENT OF CORRECTIONS Date: 1/29/1992

1AGE DATE DESCRIPTION AMOUNT------------------------------------------ -------------------------------- -------

10/10/1991 INDICTMENì' REPORTED AND FILED.

INDICTMENT FOR

AGGRAVATED MI7RDER 2903.01 R.C. W/SPEC

10/10/1991 PRECIPE FOR WARRANT FILED AND WARR:ANT

ISSUED.

10/11/1991 SIMON L. LEIS JR., SHERIFF. I HAVE It1

CUSTODY AND FiAVE SERVED COPY OF

INDICTMENT ON

SAID DEFENDANT BY P. ';OSGROVE DEPUTY

6 10/29/1991 ENTRY OF CONTINUANCE

11./4/91

10/29/1991 MOTION FOR T3ILL OF PARTICULARS

10/29/1991 MOT_ON FOR DISCOVERY

11/04/1991 MOTION

FOR PROTECTIVE ORDER

11/05/1991 STAT'E'S MOTION FOR DISCOVERY.

11/08/1991 SUB1?OENA FOR WITNESS ISSUED TO

JIM NIKLAS KAREN WHEATLY

11/08/7.991 St7BPnENA FOR WITNESS ISSUED TO

TRTNITY INDUSTRIES

11/12/1991 SUBPOENA FOR WITNESS RETURNED AND

ENDORSED

JIM NIKIAS

11/12/1997. SUBPOENA FOR WITNESS RETURNED AND

ENDORSED

TRINITY INDUSTRIES


ENDORSED

KAREN WHEATLY

11/19/1991 REQUEST FOR BILL OF PARTICULARS

11/19/1991 MJi.'ION TO SUPPRESS

11/20/1991 MOTIONTO VIEW PREMISES

11/27/1991 ENTRY

SUBSTITUTING COUNSEL TIMOTHY A SMITH &

WM. L. MALLORY

11/27/1991 EN".'RY OF' CONTINUANCE

12/9/91

11/27/1991 STA'1'E'S MOTION FOR DISCOVERY.

11 /27/ 1991 STATE'S BILL OF PARTICULARS

12/03/1997. SUBPOENA FOR WITNESS ISSUED TO

DEAN CLEMENTS TERRY MARTY JIM NIKIAS

CI:YDE BOYD KAREN WHEATLY ROBERT ESSEX

ANTHONY DOCKERY

12/03/1991 SUBPOENA FOR WIÌ'NiS,S ISSUED TO


'ODAY'S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 2

CASE:B 9106789-A Cr_z:iina.l. Appearance Report CMSR5155

- A P P E A R A N C E D 0 C K E T

BRADLEY


ENDORSEDTERRY NARTY,DEANNA JUMP, DEAN

CLEMENTS,KAREN WiiEATLY


ENDORSED

LISA NAPIER,DEBRA BRANDT, WILLIAM

TURNER

12/05/1991 SUBPOENA FOR WITNESS RETLIRNED AND

ENDORSED

ANTHONY DOCKERY,JiM NIKIAS, CLYDE BOYD

112/06/1991 MOTION FOR BILL OF PARTICULARS

12/06/1991 NOTIC.E OF ALIBI.

12/06/7.991 SUBPOENA FOR WITNESS RETURNED AND

ENDORSED

JANET BRADLEY,ROBERT ESSEX


ENDORSED BY FOREIGN SHERIFF

CLERMONT CNTY,SHERIFF 12/6/91

?4 12/10/1991 ENTRY REQUESTING OFFICIAL STENOGRAPHER

31 12/10/1991 CAUSE PROGRESSED

1ST DAY, TESTIMONY ADDUCED IN PART &

CONT' UNTIL 12/12/91

12/10/1991 DEFT.S REPLY TO STATES MOTION FOR

DISCOVERY


ENDORSED

SHERRY OWENS

12/11/1991 SUBPOENA FOR WITNESS ISSUED TO

STAR BANK LARRY SMITH DANNY MANIER IKE

METCALF

12/11/199.i MOTIONTO TAKE DEPOSITION TO PERPETU--ATE

TESTIMONY

1 12/12/1991 ENTRY GRANTING:DEPOSITON TO PERPETUATE TESTI-MONY AND

ALLOWING EXPENSES

4 12/12/1991 EN'i`RY OVERRULING

HARRIS' MOTION TO SUPPRESS & MOTIN TO

ADDITIONAL BILL OF PARTICULARS


1/13/92


1/13/92


ENDORSED

IKE METCALF,DANNY

MANIER,LARRYSMITH,RECi?RDKEEPLR OF STAR

BANK

I 12/1'7/1991- ENTRYRELEASING AUTOMOBILE AND SUBSTITUTE

PHOTOGRAPH THEREFORE

12/17/1991 MOTIONTO SUBSTITUTE PfiYSICAL EVIDENCE WITH

PHOTOGRAPHS

12/17/199= DEPOSITION OF

JOY LUDGATIS FILED12/26/1991 CLERK'S TRANSCRIPT FEE FOR AN INDIGENT

DEFENDANT - FILED

1/13/1992 JURY IMPANELED AND SWORN

14 JURORS

1/14/1992 ENTRYWAIVING VIEW OF PREMISES

1/1711992 C'AUSE PROGRESSED5TH DAY, TESTIMONY ADDUCED IN PART &

CONT` UNTIL 1/21/92

1/23/1992 SUBPOENA FOR WITNESS ISSUED TODOROTI-fY PEARSON RONALD PEARSON SELINA

RONE

HAMILTON COUNTY CLERK OF COUR'S

C7bAY'S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 3

CASE:B 91067E39--A Criminai Appearance Report CMSR5155------------------------

A P P E A R A N C E D O C H E T

9 1/23/1992 CAUSE PROGRESSED

9TH DAY, TESTIMONY ADDUCED IN PART &

u'ONT' UNTIL 1/24/92


IKE METCALE' DANNY MANIER LARRY SMITH

DONALD TRUSTY


LYNN WHITE

99 1/24/1992 CAUSE PROGRESSED10TH DAY, TESTIMONY ADDUCED INPART &

CONT' UNTIL 1/27/92

1/24/1992 DEFTS.JOINT MEMORANDUM IN OPPOSITION

TO STATES MEMORANDUM


MARY ANN HO;~'FMAN


DET MIKE BENNETT

43 1/29/1992 JURY VERDICT OFGUILTY OF AGG MURDER IN CT 1; DID NOT

HAVE ON OR ABOUT HIS PERSON OR UNDER

H1S CONTROL A FIREARM WHILE COMMITTING

TfIE OF'FENSE

-9 1/29/7.992 JUDGMENT ENTRY: SENTENCE:

INCARCERATION

DOC TERM OF LIFE. ELIGIBILITY FOR

PAROLE IN 1OYRS. PAY COSTS$25,000 FINE

2/03/1992 CLERK'S TRANSCRIP3' FEE FOR AN INDIGENT

DEFENDANT - FILED

5 2/13/1992 ENTRY APPOINTING APPELLATE C.OUNSEL.

JOHN BAUER

2/21/1992 NOTICE OF APPEAI, FILED

NO. C:-9201î a_COPY SENT TO HAMILTON

COUNTY PROSECUTOR

3/04/1992 DOCKET STATEMENT FILED.

3/31/1992 CLERK'S TRANSCRIPT FEE FOR AN INDIGENT

DEFENDANT -- FILED

4/13/1992 CLE12K'S TRANSCRIPT FEE FOR AN INDIGENT

DEFENDANT - FILED


DEFENDANT - FILED


DEFENDANT - F7I,ED

6/29/1992 COUR'I' OF APPEALS OF HAMILTON COUNTY

CASE NO.

C920151 (#1-#62)7/30/1992 CRIMINAL STATE COSTS SATISFIED

9/01/1992 TRANSCRIPT OF PROCEEU`NGS FILED IN

C-920151, C-920158

9/07/1992 COMPLETE TRANSCRIPT OF PROCEEDINGS

FILED IN C--920151,C-920158

9/07/1992 CONiPI:ETE TRANSCRIPT OF PROCEEDINGS

FILED IN C--920151, C-9201.58 VOLS I THRO

X OF X

9/14/1992 CLERK'S TRANSCR.IPT FEE FOR AN INDIGENT

DEFENDANT - FILED

10/09/1992 CLERK'S 'PRANSCRIPT FEE F'OR AN INDIGENT

DEFENDANT - FILED

12/14/1993 CORRECTED COMPLETE TRANSCRIPT OF

PROCEEDINGS INDEX F'II:ED IN C-920151,

C-920158

=2/114/1993 CORRECTED COMPLETE TRANSCRIPT OF

PROCEEDINGS VOLS I Ti-iRU X OF X FILED

IN C-920151, C-920158

2/25/1994 JUDGMENT ENTRY AFFIRMING JUDGMENT OF

TRIAL COURT C920151 & C920158 2/25/94

02-5 (BA916789 & BB916789)

3/24/1994 NGTICE OF APPEAL TO THE SUPREME COURT

(C920151)

3/25/1994 NOTICE OF APPEAL TO THE SUPR.SME COURT

OF OHIO


E';ODAY`S DATE: 5/10/2007 COMMON PLEAS DIVISION PAGE 4

CASE:B 9106789-A Crimiiial Appearance Report CMSR5155

______________

A P P E A R A N C E D O C K E T

10 6/03/1994 ENTRYORDERING COPIES OF T.HE DIARIESOF ELLFN

BRADLEY-HARRI.S IN THIS CASE TO BE

RE.I:EASED FOR THE PURPOSE OF A CIVIL

CASE71 8/25/1994 SiJP2EME COURT OF CHIO ENTRY DENYING

LEAVE TO APPEAL

9/20/1996 EIO'PIONFOR EXPERT ASSISTANCE

9/20/1996 MOTION FOR APPOINTMENT OF COUNSEL

9/20/1996 PETITION TO VACATE OR SET ASIDE

SENTENCE

9/20/1996 AFFIDAVIT OF INDIGENCY

11/01/1996 MEMORANDUM IN OPPOSITION TO PETITION

TO VACATE.

11 11/01/1996 FINDINGS OF FACT, CONCLUSIONS OF LAW,

AND DISMiISSING PETTION TO VACATE

'11/01/1996 NOTICE OF APPEALABLE JUDGMENT SENT BY

ORDINARY MAIL TO ALL PARTIES ENTITLED

TO A COPY.

Documents

(Affidavit Specifying the details of claims sought) ... Ross, 116 Ohio App.3d 275, ... Lester 130 Ohio St.3d 303