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STATE ex rel. Michael L. Ross CASE NO. 11 E)' INMATE #487-443 LONDON CORRECTIONAL INST. WRIT OF MANDAMUS COMPLAINT P.O. BOX 69 LONDON, OHIO 43140
Relator,
-Vs-
PATRICK DeWINE COMMON PLEAS COURT HAMILTON COUNTY COURTHOUSE 1000 MAIN STREET CINCINNATI, OHIO 45202
Respondent.
MICHAEL L. ROSS JUDGE PATRICK DeWINE INMATE #487-443 COMMON PLEAS COURT LONDON CORRECTIONAL INST. HAMILTON COUNTY COURTHOUSE P.O. BOX 69 1000 MAIN STREET LONDON, OHIO 43140 CINCINNATI, OHIO 45202
RELATOR, PRO SE COUNSEL FOR RESPONDENT
1 IN THE SUPEREME COURT OF OHIO
In the matter of the original action . CASE NO. for writ of mandamus WRIT OF MANDAMUS COMPLAINT
STATE ex rel. Michael L. Ross INMATE #487-443 LONDON CORRECTIONAL INST. P.O. BOX 69 LONDON, OHIO 43140
Relator,
INTRODUCTION
To the honorable Judges of the First District Court of Appeals:
¶1. This original action for writ of mandamus by Michael L. Ross (hereinafter referred to as °Relator") seeks to compel Judge Patrick DeWine of the Hamilton County Common Pleas Court (hereinafter referred to as "RespondenP') to issue a final, appealable order pursuant to R.C. § 2505.02 in his criminal case styled as State of Ohio v. Michael L. Ross under Case No. B-0409925.
¶2. Specifically, the trial court's sentencing entry filed in relator's case State of Ohio v. Michael L. Ross under Case No. B-0409925 is not a final, appealable order because the sentencing entry fails to incornorate notice of a five-year length of mandatory postrelease control , as well as fails to incorporate notice of the consequence of violating the conditions of postrelease control could result in the parole broad imposing un to one-half of the original sentence, as required by RC S 2967 28L1(1) and R.C. 2929.19(B)(3)(c) and (e).
¶3. The trial court's sentencing entry filed in relator's criminal case, contrary to R.C. 2967.28(B)(1) and R.C. 2929.19(B)(3)(c) and(e) and void under the Ohio Supreme Court's authorities in State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085; State v. Simvkins, 117 Ohio St.3d 420, 2008-Ohio-1197; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250; State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462; Pruitt v. Collins, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722; State v. Ketterer, Slip Opinion No. 2010-Ohio-3831.
¶4. The relator relies heavily on the Supreme Court of Ohio's decision in State ex reL Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, that held, "sentencing judgment entry that improperly imposes postrelease control is void. Id. at ¶35. Moreover, that improper imposition of postrelease control may be challenged by extraordinary writ of mandamus or procedendo under certain circumstances." Id. At ¶37.
2 ¶5. The relator relies heavily on the Supreme Court of Ohio's decision in State ex reL Pruitt v. Cuyahoga Cty. Court of Common Pleas, 126 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, that held, "if a trial court has not issued a final, appealable order and refuses to issue a revised sentencing entry, the defendant can seek to compel the court to act by filing an action for a writ of mandamus or a writ of procedendo." Id at ¶2.
¶6. In Ohio, a court speaks through its journal. State ex rel. Worcester v. Donnellon (1990), 49 Ohio St.3d 117, 551 N.E.2d 183. However, it is imperative that the court's journal reflect the truth. The Ohio Supreme Court held that: "[a]ll courts have a clear legal duty to have their journal reflect the truth" and "[a]ll litigants have a clear legal right to have the proceedings they are involved in correctly journalized." Id. Worcester.
PARTIES
¶7. Relator, Michael L. Ross, is an individual who at all times mentioned in this writ of mandamus action is a prisoner being held in the custody of the Ohio Department of Rehabilitation and Corrections at the London Correction Institution at P.O. Box 69. London, Ohio 43140.
¶8. Respondent, Patrick DeWine, is an individual who at all times mentioned in this writ of mandamus action is a Judge in the Hamilton County Common Pleas Court that replaced Judge David P. Davis in relator's criminal case ofState of Ohio Y. Michael L. Ross under Case No. B-0409925.
STATEMENT OF THE FACTS
¶9. On December 15, 2004, relator entered into a plea agreement with the prosecutor's office and entered a guilty plea to count one aggravated robbery, a first degree felony in violation of R.C. § 2911.01(A)(1) and count two having weapon while under disability, a third degree felony in violation R.C. § 2923.13(A)(2).
¶10. On January 13, 2005, the trial court imposed a ten-years sentence on count one aggravated robbery to be served concurrently to a five-year sentence on count three having weapons while under disability, consecutively to a three-year sentence on specification #2, for a total aggregated sentence of (13) thirteen years in prison. See, Trial Court's Judgment Entry filed January 13, 2005, under Case No. B-0409925, as Exhibit A. attached hereto.
¶11. Additionally, the trial court failed to make a proper sentencing entry imposing mandatory postrelease control in relator criminal case, when the court's sentencing entry failed to incorporate notice of a five-year length of mandatory postrelease control, as well as fails to incorporate notice of the consequence of violating the conditions of postrelease control could result in the parole broad im osin up to one-half of the original sentence, as required by R.C. § 2967.28(B)(1) and R.C. § 2929.19(B)(3)(c) and (e). See, Trial Court's Judgment Entry Exhibit A. attached hereto.
3 FIRST CAUSE OF ACTION
¶12. Paragraphs 1 through 11 is incorporated therein by reference as if fully rewritten.
¶13. Relator contends he is entitled to mandamus relief to compel respondent's trial court to conduct a resentencing hearing to issue a final, appealable order under R.C. § 2505.02 in his case that corrects the respondent's court failure to that incorporates notice of a five-year length of mandatory postrelease control, as well as incornorating notice of the consequence of violating conditions of postrelease control control could result in the parole broad imposing un to one-half of the original sentence as mandated by R.C. § 2967.28(B)(1) and R.C. & 2929.19(B)(3)(c) and (e).
¶14. This Supreme Court of Ohio in State v. Beaslev (1984), 14 Ohio St.3d 74, 471 N.E.2d 774, held, "any attempt by a court to disregard statutory sentencing requirements when imposing a sentence renders the attempted sentence a nullity or void.
¶15. This Supreme Court of Ohio has unequivocally held the trial court failure to properly include postrelease control in a criminal sentence renders the sentence void. State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462; State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577; State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197; State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250; State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085; State v. Beaslev 14 Ohio St.3d 74, 471 N.E.2d 774; Woods v. Telb, 89 Ohio St.3d 504, 2000-Ohio-171; Hernandez v. Kelyl , 108 Ohio St.3d 395, 2006-Ohio-126; Pruitt v. Collins. 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722; State v. Ketterer, Slip Opinion No. 2010-Ohio-3831.
SECOND CAUSE OF ACTION
¶16. Paragraphs 1 through 15 is incorporated herein by reference as if fully rewritten.
¶17. The relator contends the respondent's court judgment entry filed in his criminal case is both contrary to the law set forth in R.C. § 2967.28(B)(1) and R.C. § 2929.19(B)(3)(c) and (e), and void because the judgment entry does not incorporate notice of a five-year length of mandatory postrelease control, as well as fails to incorporate notice of the consequence of violating the conditions of postrelease control could result in the parole broad imposing up to one-half of the original sentence.
¶18. This Supreme Court of Ohio in State v. Ketterer, Slip Opinion No. 2010-Ohio-3831 held, "the trial court was required to note in the judgment entry that parole broad could impose maximum prison term of up to one-half prison term originally imposed."
¶19. This Supreme Court of Ohio in State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ruled that in order to properly impose postrelease control and to give the Ohio Parole Authority the power to enforce that sanction, the sentencing entry must correctly state the term of postrelease control and state that the term is mandatory. Thus, a trial court must "notify the offender of the mandatory nature of the tenn of postrelease control and the length of that mandatory term and incorporate that notification into its entry. And, in the absence of a proper sentencing entry imposing postrelease control, he parole board's imposition of postrelease control cannot be enforced." Id. ¶69-¶71.
4 THIRD CAUSE OF ACTION
¶20. Paragraphs 1 through 21 is incorporated herein by reference as if fully rewritten.
¶21. The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there has been no judgment. State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, ¶12, quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, 267-268.
¶22. This Supreme Court of Ohio has effectively ovenuled its holdings in Watkins v. Collins, 111 Ohio St.3d 425, 2006-Ohio-5082, 857 N.E.2d 78, in two recent subsequent decisions. In Pruitt v. Collins, 125 Ohio St.3d 402, 2010-Ohio-1808, 928 N.E.2d 722, the reference is a parenthetical, constitute dicta, and left open the possibility that the trial court's imposition of post control in the case was insufficient. Id. at ¶4. In State v. Ketterer, Slip Opinion No. 2010-Ohio-3831, that majority opinion, in response to an attack from the dissenting opinion, explained that Watkins is not applicable to a direct appeal from a capital case. Id. At ¶75-76. Irrespective of these cases and their impact regarding Watkins, the supreme court has effectively overruled its holding in Watkins.
CONCLUSION
Because this Court's imposition of postrelease control upon relator in trial court's sentencing entry did not correctly incorporate notice of a five-year length of mandatory postrelease control as well as the consequence of violating conditions of postrelease control could result in the parole broad imposing up to one-half of original sentence as mandated by R.C. § 2967.28(B)(1) and R.C. § 2929.19(B)(3)(c) and (e).
The relator is entitled to mandamus relief in this case to compel the respondent's court to issued a corrected sentencing entry that includes proper postrelease control notification in the entry as required by R.C. § 2967.28(B)(1) and R.C. § 2929.19(B)(3)(c) and (e), which constitutes is a final, appealable order pursuant to R.C. § 2505.02.
chael LA-o'ss, Inmate #487-443 London Correctional Institution P.O. Box 69 London, Ohio 4310 Relator, Pro Se
5 AFFIDAVIT OF MICHAEL L. ROSS
State of Ohio ) ) SS: Madison County )
I, Michael L. Ross, being duly cautioned and sworn do hereby state that all of the following statements, claims, cause of action, made in this writ of mandamus action are true and accurate to the best of my knowledge and belief hereto.
Sworn to me and subscribed in my presence on this9^^f November 2010.
"a91=RT A. HURWOQD ^ p^C,gtale of Oluo ^^^^lon Expires 1-9-2013
6 THE STATE OF OHIO, HAMILTON COUNTY COURT OF COMMON PLEAS date: 01/13/2005 code: GdEI judge: 44 G".Z-.., . DAVID P DAVIS Entered k-` ®-Q5 Judge: Date: NO: B 0409925 Image: STATE OF OIIIO JUDGMENT ENTRY: SENTENCE: VS. INCARCERATION MICFIAEL I. ROSS
Defendant was present in open Court with Counsel RICHARD L SCHMIDT on the 13th day of,Ianuary 2005 for sentence. The court informed the defendant that, as the defendant well knew, the defendant had pleaded guilty, and had been found guilty of the offense(s) of: count 1: AGGRAVATED ROBBERY W/SPEC #2 (SPEC #1 DISMISSED), 2911- OIAl/ORCN,F1 count 3: HAVING WEAPONS WIIII.E UNDER DISABILITY (DISM SPEC), 2923- 13A2/ORCN,F3 count 2: ROBBERY WITH SPECIFICATIONS, 2911-02A2/ORCN, DISMISSAL
The Court afforded defendant's counsel an opportunity to speak on behalf of the defendant. The Court addressed the defendant personally and asked if the defendant wished to make a statement in the defendanfs behalf, or present any information in mitigation ofpunishment.
Defendant is sentenced to be imprisoned as follows: count 1: CONFINEMENT: 10 Yrs DEPARTMENT OF CORRECTIONS CONFINEMENT ON SPECIFICATION #2:3 Yrs DEPARTMENT OF CORRECTIONS TO BE SERVED CONSECUTIVELY AND PRIOR TO THE SENTENCE IMPOSED IN THE UNDERLYING OFFENSE IN COUNT #1. count 3: CONFINEMENT: 5 Yrs DEPARTMENT OF CORRECTIONS
AS PART OF THE SENTENCE IN THIS CASE, THE DEFENDANT IS SUBJECT TO THE POST RELEASE CONTROL SUPERVISION OF R.C. 2967.28.
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