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Case No. State of Ohio, Ex Rel. Timothy J Mcginty, Cuyahoga County

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Case No. State of Ohio, Ex Rel. Timothy J Mcginty, Cuyahoga County IN THE SUPREME COURT OF OIJIO,,,,- Case No. State of Ohio, ex rel. Timothy J McGinty, Cuyahoga County Prosecuting Attorney The Justice Center, Courts Tower 1200 Ontario St., Ninth Floor Cleveland, Ohio 44113, Relator, vs. The Honorable judge John D. Sutula, Cuyahoga County Court of Common Pleas The Justice Center, Courts Tower 1200 Ontario St., Courtroom 23B Cleveland, Ohio 44113, Respondent. ------------------- PETITION AND COMPLAINT FOR WRIT OF MANDAMUS IN ORIGINAL ACTION This action is brought in the name of the State of Ohio on the relation of Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, who is petitioning this Court for a Writ of Mandamus against Respondent Judge John D. Sutula. The allegations in the Complaint are supported by the Affidavit of Timothy J. McGinty, appended hereto. ,;,,,r J %,. :;; ii^ -.e,,., ._; .,. s,/, V:,^. :e JURISDICTION 1. This Honorable Court possesses jurisdiction over the subject matter of this action and over Respondent pursuant to Section 3, Article IV, of the Ohio Constitution, R.C. 2731.02 and Loc. App. R. 4. PARTIES 2. Relator, Timothy J. McGinty is the duly elected Prosecuting Attorney for Cuyahoga County, Ohio. The prosecuting attorney is an official within the executive branch of State Government. See e.g., State v. Hall (February 4, 2000), Greene App. No. 99 CA 94, 2000 WL 125947, Gosney v. Board of Elections (March 30, 1989), Columbiana App. No. 88-C-54, 1989 WL 30866. Relator is the sole representative of the State of Ohio in criminal cases in the Court of Common Pleas. 3. Respondent, John D. Sutula is a duly elected Judge of the Court of Common pleas for Cuyahoga County, Ohio, whose independent office falls within the judiciary branch of State Government. See e.g., Hall, supra. Respondent Sutula presides over State of Ohio v. Brian K. Washington, Cuyahoga County Court of Common Pleas Case Nos. CR 542057, 535298. As a judge of the Court of Common Pleas, he is responsible for hearing criminal cases and imposing sentences. FACTS 4. Respondent has on his criminal docket two cases captioned, State of Ohio v. Brian Washington, Court of Common Pleas Case Nos. CR-10-542057 and CR-10-535298. He is also assigned criminal cases as part of his docket as a judge on the Cuyahoga County Court of Common Pleas. 2 S. On June 16, 2012, in Case Nos. CR-10-542057 and CR-10-535298, Respondent sentenced Brian Washington to a term of community control sanctions for a period of three years. (Copies of these sentencing entries are attached hereto as Exhibit 2.) 6. On January 2, 2014, without any notice to the State of Ohio, Respondent held a community control violation hearing in Case Nos. CR-10-542057 and CR-10-535298. (A copy of this Journal Entry is attached hereto as Exhibit 3.) (Respondent issued no journal entry of the hearing in Case No. CR-10-542057.) 7. On January 6, 2014, the State of Ohio, by and through, Relator, filed a Motion to Reopen and Hold a Full and Fair Hearing upon Brian K. Washington's Violations of Community Control Sanction Violations, seeking to be heard and seeking termination of community control for Defendant Washington. (A copy of this Motion is attached hereto as Exhibit 4.) 8. On January 15, 2014, Defendant Washington filed a responsive brief. (A copy of this Response is attached hereto as Exhibit 5.) 9. On January 31, 2014, the State of Ohio, by and through, Relator, filed a Motion to Hold a Probation Violation Hearing Upon Brian K. Washington's Violation for Community Control Sanctions. (A copy of this Motion is attached hereto as Exhibit 6.) 10. Within the January 31, 2014 Motion, the State of Ohio by and through Relator, noted that Defendant Washington had been convicted in Municipal Court following the January 2, 2014 hearing. (See, Exhibit 6, at pps. 1, 2, 6.) 11. Further within the January 31, 2014 Motion, the State of Ohio by and through Relator, asked that Defendant be sentenced to prison for this successive violation, as stated by Respondent in the prior community control violation hearing. (See, Exhibit 6, at p. 4.) 3 12. Defendant Washington did not file a responsive pleading to the January 31, 2014 Motion. 13. On February 14, 2014, Respondent denied the State's Motions. (A copy of that entry is attached hereto as Exhibit 7.) 14. Within Respondent's written opinion denying the State's Motion to Hold a Probation Violation Hearing, Respondent made certain legal findings in support of its policy regarding the State of Ohio's presence at community control violation hearings in criminal cases. Id. 15. Within Respondent's written opinion denying the State's Motion to Hold a Probation Violation Hearing, Respondent held that the State does not have a right to be present at community control violation hearings. Id. 16. Within Respondent's written opinion denying the State's Motion to Hold a Probation Violation Hearing, Respondent held that the State of Ohio is represented in court by a probation officer. Id. 17. Within Respondent's written opinion denying the State's Motion to Hold a Probation Violation Hearing, Respondent stated that he will not provide notice of community control violation hearings to the State of Ohio. Id. 18. Within Respondent's written opinion denying the State's Motion to Hold a Probation Violation Hearing, Respondent set forth a policy that if the State of Ohio wishes to be heard at a community control violation hearing, it must first examine its "deskbook," a handwritten schedule of court proceedings, in order to determine when any community control violation hearings may be scheduled. Id. 4 19. Within Respondent's written opinion denying the State's Motion to Hold a Probation Violation Hearing, Respondent set forth a policy that if the State wishes to be heard at a community control violation, the State must file a request for leave to participate in the hearing and further must submit arguments and evidence to the Court two days prior tb any hearing. Id. 20. On February 24, 2014, the State of Ohio appealed the order of the court prohibiting it access to violation hearings, the case being captioned, State v. Washington, 8th Dist. Nos. 101039, 101040. (A copy of the notices of appeal, praecipes, and motion for leave to appeal is attached hereto as Exhibit 8.) 21. On February 28, 2014, Respondent held a community control violation hearing in Washington's criminal cases. (A copy of the journal entry for this hearing, journalized on March 5, 2014, is attached hereto as Exhibit 9.) 22. At the February 28, 2014 hearing, Assistant Prosecuting Attorney, Melissa K. Riley appeared in Court on behalf of the State, without seeking leave. As such, Respondent abandoned his order of February 14, 2014. At the hearing, Defendant Washington was found to be in violation of his community control sanctions, further sanctions were ordered. Id. 23. On March 25, 2014, Defendant Brian K. Washington appealed the violation hearing. The cases being captioned, State v. Washington, 8th Dist. Nos. 101170, 101171. 24. On April 3, 2014, The State of Ohio and Defendant Brian K. Washington filed. a motion to dismiss the State's appeals in State v. Washington, 8th Dist. Nos. 101039, 101040. Within the motion, the parties stated: 5 Appellant State of Ohio respectfully notifies this Court that the parties have agreed that these proceedings may be dismissed pursuant to App. R. 28. Appellant states that after this appeal and on February 28, 2014, the trial court held a hearing on Appellee Brian K. Washington's probation violation. The trial court invited the State to attend the violation hearing and permitted the State to participate in the proceeding. The trial court, Judge John Sutula, and all other Court of Common Pleas Judges recognize the State as a party to probation violation hearings, have mechanisms to notify the State of the hearings, and allow the State to participate in the hearings. As the trial court abandoned its order of February 14, 2014 which is the subject of the State's instant appeals and recognized the right of the State to attend and participate in probation violation hearings, the State respectfully notifies this Court of its voluntarily dismissal of the appeals. Counsel for Appellee only agrees with the dismissal as the issue as it pertains to Appellee is moot. A copy of the Notice of the Parties' Agreement That These Proceedings Be Dismissed Pursuant to App.R. 28 is attached as Exhibit 10. 25. On April 9, 2014, Defendant Washington filed a Motion to Stay Execution of Sentence Pending Appeal. (A copy of this motion is attached as Exhibit 11.) 26. On April 15, 2014, the State of Ohio filed its Brief in Opposition to Motion to Stay Execution of Sentence Pending Appeal. (A copy is attached as Exhibit 12.) 27. On April 21, 2014, without serving notice of its order on the State of Ohio, Respondent issued the following order dated April 16, 2014: SUA SPONTE COURT ORDERS BRIEF OF COUNTY PROSECUTOR'S TIMOTHY MCGINTY'S OFFICE FILED 04/15/2104 IS ORDERED STRICKEN AS LEAVE TO APPEAR WAS NOT REQUESTED. 04/16/2014 CPTRC 04/17/2014 09:43:42 (A copy of this order is attached as Exhibit 13.) 28. On April 23, 2014, Respondent journalized the following order to the Court reporter to alter the transcript of the proceedings in Washington's criminal cases: 6 IT HAS COME TO THE ATTENTION OF THE COURT THAT THE COURT REPORTERS FAILED TO ACCURATELY REFLECT THE REPRESENTATION OF THE PARTIES ON THE COVER SHEET OF THE TRANSCRIPT.
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