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. THE COURT ON PAGE ONE OF THE TRANSCRIPT STATES THAT THE STATE OF OHIO WAS REPRESENTED BY THE PROBATION DEPARTMENT (VICTORIA BOYD, P.O.) AND CRAIG SMOTZER FOR THE DEFENDANT. THE COURT ALSO NOTED THE ASSISTANT COUNTY PROSECUTOR WAS PRESENT, NOT REPRESENTING ANY PARTY. THE COURT REPORTER IS DIRECTED TO CHANGE THE COVER SHEET TO COMPLY WITH THE ACTUAL PROCEEDING. 04/18/2014 CPTRC 04/21/2014 09:23:53
(A copy of this order is attached as Exhibit 14.)
29. On April 30, 2014, Respondent journalized notice of a hearing on Defendant
Washington's Motion to Stay Execution of Sentence, to be held 6 days prior to the
notice of hearing on April 24, 2014. No notice to the State of Ohio was provided
regarding the hearing date. (A copy of this order is attached as Exhibit 15.)
30 On April 24, 2014, Respondent held a hearing on Defendant Washington's Motion to
Stay Execution of Sentence. At that hearing, which the State became aware of
incidentally, the Court refused to recognize the Assistant Prosecuting Attorney or
allow him to be heard. The transcript reveals the following exchange took place:
THE COURT: That wasn't a motion for leave.
MR. CHALOUPKA: We had just found out that you denied it yesterday.
THE COURT: It's denied.
MR. CHALOUPKA: For the record, can we say we oppose that decision by this Court?
THE COURT: It's denied. You're not here representing anybody. I don't know who you're representing, but you're not representing anybody.
MR. CHALOUPKA: Well, Mr. Sweeney served our office, Your Honor.
7 THE COURT: He doesn't determine who the parties are, the Court does. And you're not one of the parties to this action.
MR. CHALOUPKA: The State maintains it is.
THE COURT: Please sit down.
(A copy of the Transcript of Proceedings is attached as Exhibit 16.)
31. On April 30, 2014, Respondent granted the motion to stay in part. (A copy of this
order is attached as Exhibit 17.)
32. On April 19, 2014, the State of Ohio sought leave to appeal the denial of its right to
be present on the postconviction motion to stay the criminal proceedings. The
appeals were captioned State v. Washington, 8th Dist. Nos. 101406, 101407.
33. On June 4, 2014, without explanation, the court of appeals denied the State leave to
appeal. (A copy of the June 4, 2014 Journal Entry is attached as Exhibit 18.)
34. On June 2, 2014, the State became aware of Defendant Washington's latest arrest for
drug trafficking. A Motion to Hold a Hearing and Impose Prison Upon Violation of
Community Control Sanctions was filed. (A copy of the motion is attached as
Exhibit 19.)
35. On June 5, 2014, the State filed its Motion for Court to Recuse Itself for Bias. (A copy
of this motion is attached as Exhibit 20.)
36. On June 5, 2014, Defendant Brian K. Washington filed a Motion for Appointment of
Special Prosecutor. (A copy of this motion is attached as Exhibit 2L)
37. In June 5, 2014, Defendant Brian K. Washington filed a Brief in Opposition to State's
Motion for Court to Recuse Itself for Bias. (A copy of this motion is attached as
Exhibit 22.)
8 38. On June 11, 2014, the State of Ohio filed its Brief in Response to Motion to Appoint
Special Prosecutor. (A copy of this motion is attached as Exhibit 23.)
39. On June 12, 2014, Respondent denied the State's Motion to Recuse Itself for Bias.
Within the order denying the motion, the Court alleged that the State ceded any
right to contest its order that barred it from appearing at probation violation
hearings without leave. (A copy of this order is attached as Exhibit 24.)
40. On June 11, 2014, Cuyahoga County Assistant Prosecuting Attorney Adam
Chaloupka was barred from representing the State of Ohio at several community
control violation hearings in Respondent's courtroom in State v. Marks, Cuyahoga
Court of Common Pleas Case No. CR 571857; State v. Jenkins, Cuyahoga Court of
Common Pleas Case No. CR 569505; State v. Scott, Cuyahoga Court of Common Pleas
Case No. CR 578872; State v. Harris, Cuyahoga Court of Common Pleas Case No. CR
554572; State v. Rosario, Cuyahoga Court of Common Pleas Case No. CR 547091, and
State v. Wiley, Cuyahoga Court of Common Pleas Case No. CR 577452. (The
transcripts of these proceedings are attached as Exhibits 25, 26, 27, 28, 29, and 30
respectively.)
PRAYER FOR RELIEF
Relator, as the Legal Representative of the State of Ohio in Criminal Cases in Respondent's Court, has a Right to Notice of and to Appear at All Proceedings in Criminal Cases
1. The State of Ohio has the sole authority to bring actions at law in criminal cases.
2. As the duly elected Prosecuting Attorney in Cuyahoga County, Relator, is the State's
legal representative in criminal cases filed in the court of common pleas. R.C. 309.08
which provides in part, as follows:
9 309.08 Powers and duties of prosecuting attorney; organized crime task force membership; rewards for information about drug-related offenses
(A) The prosecuting attorney may inquire into the commission of crimes within the county. The prosecuting attorney shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party, except for those required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general pursuant to section 109.83 of the Revised Code, and other suits, matters, and controversies that the prosecuting attorney is required to prosecute within or outside the county, in the probate court, court of common pleas, and court of appeals. In conjunction with the attorney general, the prosecuting attorney shall prosecute in the supreme court cases arising in the prosecuting attorney's county, except for those cases required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general pursuant to section 109.83 of the Revised Code.
R.C. 309.08(A) (emphasis added).
3. A party in a case in the Court of Common Pleas has the right to notice of all
proceedings. Ries Flooring Co., In.c v Dileno Const. Co., 53 Ohio App.2d 255, 373
N.E.2d 1266 (8th Dist. 1977), at syllabus ("1. Due process of law requires that
parties to a lawsuit be given adequate notice of all judicial proceedings in that
action.") "Notice to the parties of a lawsuit [FN4] is an elementary essential of a
judicial proceeding, Town of Lake Hamilton v. Hughes (1948), 160 Fla. 646, 36 So.2d
260; Wharton v. Cole (Ky.1964), 374 S.W.2d 498; Indian Head Millwork Corp. v.
Glendale Homes, Inc. (1962), 104 N.H. 312, 185 A.2d 259; State, ex rel. Hall, v. Cowie
(1951), 259 Wis. 123, 47 N.W.2d 309; Brooker v. Smith (Fla.App.1958), 101 So.2d
607; Siano v. Spindel (1975), 136 Ga.App. 288, 220 S.E.2d 718 and is required by due
process, McClintock v. Serv-Us Bakers (1968), 103 Ariz. 72, 436 P.2d 891; Wolfe v.
Riggle (1962), 407 Pa. 172, 180 A.2d 220; Brooker v. Smith, supra." Id., at 259.
(Footnote omitted.)
10 4. The court of common pleas has a duty to notify all parties of proceedings in a case
upon its docket. Ries Flooring Co., In.c v Dileno Const. Co., 53 Ohio App.2d 255, 373
N.E.2d 1266 (8th Dist. 1977).
5. Community control violation hearings are proceedings within a criminal case in
which the State of Ohio maintains an interest. State v. Young, 154 Ohio app.3d 609,
798 N.E.2d 629, 2003-Ohio-4501, ¶ 7, citing State v. Ferguson (1991), 72 Ohio
App.3d714,716,595N.E.2d1011.
6. "A violation of community-control sanctions, by virtue of a subsequent felony arrest,
is certainly within the concept of `complaints, suits, and controversies' in which the
state remains an interested party." State v. Young, 154 Ohio App.3d 609, 798 N.E.2d
629, 2003-Ohio-4501, ¶ 7, citing State v. Ferguson (1991), 72 Ohio App.3d 714, 716,
595 N.E.2d 1011. Probation/Community Control Revocation hearings remain suits
in which the State is a party, and therefore Ohio's prosecutors may attend and
participate. Young, supra. See also Roberts v. Ross, 680 F.Supp.1144, 1146 (S.D. Ohio
1987) (There is nothing in R.C. 2951.08 that prevents a prosecutor from seeking a
warrant to arrest a probation violator because R.C. 309.08 requires that prosecutor
prosecute "all complaints, suits, and controversies in which the state is a party...").
7. Additionally, the Eighth District has held that the State has the burden of proof at
revocation hearings to establish a violation and revoke community control sanctions
by "substantial" evidence. State v. Lenard, 8th Dist. No. 93373, 2010-Ohio-81. Lack
of notice and an opportunity to be heard precludes the State from sustaining its
burden.
11 Respondent has a clear legal duty to provide Relator, as the Legal Representative of the State of Ohio in Criminal Cases, Notice of and to allow Relator to Appear as the State's Legal Representative at All Proceedings in Criminal Cases
8. Because Relator is a party to a criminal case before Respondent, and because he is
the legally designated representative of the State in criminal cases before
Respondent's, Respondent has a clear legal duty to provide notice of all proceedings
within the criminal case, to include community control violation hearings. Ries
Flooring Co., In.c v Dileno Const. Co., 53 Ohio App.2d 255, 373 N.E.2d 1266 (8th Dist.
1977), at syllabus
9. Relator has a continuing interest in the prosecution of criminal cases that extends to
community control violation hearings. Young, supra. As a party to a criminal case
and the State of Ohio's sole legal representative, Relator has a right to notice of all
proceedings in criminal cases in the Cuyahoga County Court of Common Pleas. Ries,
supra.
10. As a party to a criminal case and the State of Ohio's sole legal representative, Relator
has a right to appear and represent the interests of the State of Ohio in all
proceedings in criminal cases in the Cuyahoga County Court of Common Pleas. R.C.
309.08; Young, supra.
11. Therefore, Respondent must provide Relator with an opportunity to represent the
State of Ohio and cannot determine who represents the State of Ohio in community
control violation hearings.
12 Relator Has No Adequate Legal Remedy At Law
12. Relator does not have the right to appeal the decision of a court to continue
violators like Defendant Washington on community control sanctions. See, R.C.
2953.08(B) (Providing right to appeal certain sentencing actions only.)
13. On June 4, 2014 the Eighth District Court of Appeals denied Relator the ability to
appeal Respondent's refusal to provide notice to Relator of all proceedings and to
allow Relator to represent the State of Ohio at community control violation
hearings.
14. Relator represents the interests of the State of Ohio, to include prosecuting criminal
cases and protecting the public safety. Respondent's blanket policy prohibiting
Relator from the exercise of his statutory duty places the public at risk if Relator's
decision in a community control violation hearing is one made without the legal
representative of the State being present. Any decision made by Respondent to
continue a Defendant like Washington who has several violations, made without the
State being represented, creates a harm to the public safety for which no later
discretionary appeal could remedy.
15. Further, Respondent has installed probation officers to represent the State of Ohio
in place of Relator. These court employees cannot mount any legal challenge or
appeal Respondent's judgments in these criminal cases, making any potential legal
remedy truly illusory and ineffective.
CONCLUSION
13 16. In order for a writ of mandamus to properly issue, Relator must demonstrate that:
1) he possesses a clear legal right to the relief requested; 2) the respondent
possesses a clear legal duty to perform the requested relief; and 3) there exists no
other adequate remedy in the ordinary course of law. State ex rel. Ney v. Niehaus
(1987), 33 Ohio St.3d 118. Thus, "the extraordinary writ of mandamus is available
only when the usual forms of procedure are incapable of affording relief." State ex
rel. Woodbury v. Spitler (1973), 34 Ohio St.2d 134, 137.
17. Relator has a statutory duty to represent the interests of the State of Ohio in
criminal cases filed within the Court of Common Pleas of Cuyahoga County.
18. Respondent has a clear legal duty to provide notice to Relator where he is the State's
legal representative of the State of Ohio in criminal cases. Respondent has a clear
legal duty to allow the State of Ohio be recognized as the State's representative in all
criminal proceedings, to include community control violation hearings.
19. Relator has no adequate remedy at law to contest the order and practice of
Respondent wherein he does not provide notice to Relator of community control
violation hearings and does not recognize Relator as the representative of the State
of Ohio in criminal proceedings in his court. Relator was denied the ability to
appeal Respondent's order in the Eight District Court of Appeals; further, no later
appeal would remedy the potential harm to the safety of the public where
Respondent does not allow Relator to represent the State of Ohio.
20. WHEREFORE, Relator prays for a writ of mandamus to Respondent ordering him to
provide notice to Relator of all community control violation hearings in criminal
cases upon his docket and ordering Respondent to allow Relator the right to be
14 heard as representative of the State of Ohio hearings and enjoining and prohibiting
him from conducting community control violation hearings in criminal cases to
which the State is a party without providing notice and an opportunity to be heard
to Relator as the legal representative of the State of Ohio.
VERIFICATION
I, TIMOTHY J. MCGINTY, Prosecuting Attorney for Cuyahoga County, Ohio, verify that I have read the foregoing Petition and Complaint for a Writ of Procedendo and Writ of Mandamus in Original Action, and that the foregoing allegations are truthful and accurate to the best of my knowledge and belief.
; ` '•:..., ^ ^ ^•.^sf ^ ,,i ------:-...__,r^_ ,__.._ ', --- r Timothy J. McGinty;-% •...-% j Date Cuyahoga County Prosecuting Attorney "I
Sworn to and subscribed in my presence this ^ day of June, 2014.
^^m /^.lanRegas y at Law - State of Ohio My Commission has no expiration per R.C. 147.03
15
AFFIUAYI T i1F RFLATOR TIIVIUTHY 1 MCGINTY
STATE OF OHIO } } SS: COUNTY OF CUYAHOGA }
Timothy J. McGinty, being fi?-st d"11N,Iy deposes and says that:
1. I am the elected Prosecuting Attorney of Cuyahoga County, Ohio.
2. 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. 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.
3. 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.
4. 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. 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. Respondent issued no journal entry of the hearing in Case No.
CR-10-542057.
16 5. 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.
6. On January 15, 2014, Defendant Washington filed a responsive brief.
7. 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.
8. 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.
9. 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.
10. Defendant Washington did not file a responsive pleading to the January 31, 2014
Motion.
11. On February 14, 2014, Respondent denied the State's Motions.
12. 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.
17 13. 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.
14. 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.
15. 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.
16. 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.
17. 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 to any hearing.
18. 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.
18 19. On February 28, 2014, Respondent held a community control violation hearing in
Washington's criminal cases.
20. 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.
21. On March 25, 2014, Defendant Brian K. Washington appealed the violation hearing.
The cases being captioned, State v. Washington, 8th Dist. Nos. 101170, 101171.
22. 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:
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.
19 23. On April 9, 2014, Defendant Washington filed a Motion to Stay Execution of
Sentence Pending Appeal.
24. On April 15, 2014, the State of Ohio filed its Brief in Opposition to Motion to Stay
Execution of Sentence Pending Appeal.
25. 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
26. 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:
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. THE COURT ON PAGE ONE OF THE TRANSCRIPT STATES THAT THE STATE OF OHIO WAS REPRESENTED BY THE PROBATION DEPARTMENT (VICTORIA BOYD, P.O.) AND CRAIG SMOTZER FOR THE DEFENDANT. THE COURT ALSO NOTED THE ASSISTANT COUNTY PROSECUTOR WAS PRESENT, NOT REPRESENTING ANY PARTY. THE COURT REPORTER IS DIRECTED TO CHANGE THE COVER SHEET TO COMPLY WITH THE ACTUAL PROCEEDING. 04/18/2014 CPTRC 04/21/2014 09:23:53
27. On April 30, 2014, Respondent journalized notice of a hearing on Defendant
Washington's Motion to Stay Execution of Sentence, to be held 6 days prior to the
notice of hearing on April 24, 2014. No notice to the State of Ohio was provided
regarding the hearing date.
20 28. On April 24, 2014, Respondent held a hearing on Defendant Washington's Motion to
Stay Execution of Sentence. At that hearing, which the State became aware of
incidentally, the Court refused to recognize the Assistant Prosecuting Attorney or
allow him to be heard. The transcript reveals the following exchange took place:
THE COURT: That wasn't a motion for leave.
MR. CHALOt1PKA: We had just found out that you denied it yesterday.
THE COURT: It's denied.
MR. CHALOUPKA For the record, can we say we oppose that decision by this Court?
THE COURT: It's denied. You're not here representing anybody. I don't know who you're representing, but you're not representing anybody.
MR. CHALOUPKA: Well, Mr. Sweeney served our office, Your Honor.
THE COURT: He doesn't determine who the parties are, the Court does. And you're not one of the parties to this action.
MR. CHALOUPKA: The State maintains it is.
THE COURT: Please sit down.
29. On April 30, 2014, Respondent granted the motion to stay in part.
30. On April 19, 2014, the State of Ohio sought leave to appeal the denial of its right to
be present on the postconviction motion to stay the criminal proceedings. The
appeals were captioned State v. Washington, 8th Dist. Nos. 101406, 101407.
21 31. On June 4, 2014, without explanation, the court of appeals denied the State leave to
appeal.
32. On June 2, 2014, the State became aware of Defendant Washington's latest arrest for
drug trafficking. A Motion to Hold a Hearing and Impose Prison Upon Violation of
Community Control Sanctions was filed.
33. On June 5, 2014, the State filed its Motion for Court to Recuse Itself for Bias. On June
5, 2014, Defendant Washington filed a Motion for Appointment of Special
Prosecutor.
34. In June 5, 2014, Defendant Washington filed a Brief in Opposition to State's Motion
for Court to Recuse Itself for Bias.
35. On June 11, 2014, the State of Ohio filed its Brief in Response to Motion to Appoint
Special Prosecutor.
36. On June 12, 2014, Respondent denied the State's Motion to Recuse Itself for Bias.
Within the order denying the motion, the Court alleged that the State ceded any
right to contest its order that barred it from appearing at probation violation
hearings without leave.
37. On June 11, 2014, Cuyahoga County Assistant Prosecuting Attorney Adam
Chaloupka was barred from representing the State of Ohio at several community
control violation hearings in Respondent's courtroom in State v. Marks, Cuyahoga
Court of Common Pleas Case No. CR 571857; State v. Jenkins, Cuyahoga Court of
Common Pleas Case No. CR 569505; State v. Scott, Cuyahoga Court of Common Pleas
Case No. CR 578872; State v. Harris, Cuyahoga Court of Common Pleas Case No. CR
22 554572; State v. Rosario, Cuyahoga Court of Common Pleas Case No. CR 547091, and
State v. Wiley, Cuyahoga Court of Common Pleas Case No. CR 577452.
FURTHER AFFIANT SAYETH NAUGHT. ^..
^ , z f....,. ^^. . ^ _, .,. ------• -- - ^. --- Timothy J. MkGii^}ty, --_^ Date Cuyahoga County Prosecuting Attcirney
Sworn to and subscribed in my presence this ^ day of F-e^, 2014.
------. Allan Regasas Attorney at Law - State of Ohio My Commission has no expiration per R.C. 147.03
23
1^11111^1 Ill^ IIII IUiI INII IN^ lllll ^^ llll I Il^ 74178324 IN THE COt1RT- OF. COMMON PLEAS CUYA : = A COUNTY, OHIO . , .. 4'^ THE STATE OF OHIO Case No: CR- ] 0-542057=B Plaintiff 1011JUNI2 P4:12 Judge: JOHN D SUTULA GtF,;'.^u E. FC'FrT BRIAN WASHINGTON INDICT: 2913.51 RECEIVING STOLEN PROPERTY Defendant CUYAHOGA COUNTY JOURNAL ENTRY
PURSUANT TO THE COURT OF APPEALS' DECISION IN CASE NOS. 96565 AND 96568, DEFENDANT IN COURT WITH COUNSEL RICHARD NEFF. PROSECUTING ATTORNEY MAXWELL M. MARTIN PRESENT. COURT REPORTER PRESENT. DEFENDANT FULLY ADVISED IN OPEN COURT OF HIS/HER CONSTITUTIONAL RIGHTS AND PENALTIES. DEFENDANT RETRACTS FORMER PLEA OF NOT GUILTY AND ENTERS A PLEA OF GUILTY TO RECEIVING STOLEN PROPERTY 2913.51 A F5 AS CHARGED IN THE INDICTMENT. COURT ACCEPTS DEFENDANT'S GUILTY PLEA. DEFENDANT WAIVES PSI. REFERENCED PSI IN CASE NUMBER CR 535298. DEFENDANT ADDRESSES THE COURT, PROSECUTOR ADDRESSES THE COURT. THE COURT CONSIDERED ALL REQUIRED FACTORS OF THE LAW. THE COURT FINDS THAT A COMMUNITY CONTROL SANCTION WILL ADEQUATELY PROTECT THE PUBLIC AND WILL NOT DEMEAN THE SERIOUSNESS OF THE OFFENSE. IT IS THEREFORE ORDERED THAT THE DEFENDANT IS SENTENCED TO 36 MONTH(S) OF COMMUNITY CONTROL, UNDER SUPERVISION OF THE ADULT PROBATION DEPARTMENT WITH THE FOLLOWING CONDITIONS: DEFENDANT TO ABIDE BY THE RULES AND REGULATIONS OF THE PROBATION DEPARTMENT. SUPERVISION FEES TO BE PAID AT A RATE OF $20.00 A MONTH. COUR7' ORDERS DEFENDANT TO BE SUPERVISED BY: INTENSIVE SPECIAL PROBATION SUPERVISION UNIT DEFENDANT TO PERFORM COUR'T COMMUNITY WORK SERVICE FOR 100 HOURS. SUBMIT TO RANDOM DRUG TESTING ARREST IF/ON: POSITIVE OR TOO DILUTE; SUCCESSFULLY COMPLETE AN IN-PATIENT TREATMENT PROGRAM. OBTAIN / MAINTAIN VERIFIABLE EMPLOYMENT, PROVIDE PROOF OF EMPLOYMENT TO THE PROBATION DEPARTMENT. PARTICIPATE IN AND SUCCESSFULLY COMPLETE THE THINKING FOR A CHANGE PROGRAM. VIOLATION OF THE TERMS AND CONDITIONS MAY RESULT IN MORE RESTRICTIVE SANCTIONS, OR A PRISON TERM OF 12 MONTH(S) AS APPROVED BY LAW. DEFENDANT IS TO PAY COURT COSTS.
06/12/2012 CPJPN 06/I2/2012 13:49:09
* \^oo b;'j,A /35
MISC 06/12/2012 ^ Page l of l 1 IIIIII IIIII IIIII IIIII IIIII IHH IIIH IIIII 1lil IIII I IIII 74178263 IN TlIE CfA) RT OF COMMON PLEAS CUY§0 GA COUNTY, OHIO O THE STP Case No: CR- l 0-53 5298-B TO JM 12 P 4 12 aint iffF OHIO GERP;i_G E. FUr ,^ Judge: JOHN D SUTULA C BRIAN K WASH1NGTOl$'uYkfcLE`^;c;^., ^^UR7S'{ r Defendant ^ CoJ^qT Y INDICT: 2911.01 AGGRAVATED ROBBERY /FRMI /FRM3 /FORS /NPC /RVOS 2905.01 KIDNAPPING /FRM I /FRM3 IFORS /NPC /RVOS 2913.02 THEFT (MV) ADDITIONAL COUNTS... JOURNAL ENTRY
PURSUANT TO THE COURT OF APPEALS' DECISION IN CASE NOS.96565 AND 96568, DEFENDANT IN COURT. COUNSEL RICHARD A. NEFF PRESENT. COURT REPORTER PRESENT. ON A FORMER DAY OF COURT THE DEFENDANT PLEAD GUILTY TO THEFT (MV) 2913.02 A(1) F4 AS CHARGED IN COUNT(S) 3 OF THE INDICTMENT. ON A FORMER DAY OF COURT THE DEFENDANT PLEAD GUILTY TO ATTEMPTED, HAVING WEAPONS WHILE UNDER DISABILITY 2923.02/2923.13 A(2) F4 WITH FORFEITURE SPECIFICATION (2941.1417) AS AMENDED IN COUNT(S) 7 OF THE INDICTMENT. COUNT(S) 1, 2, 4, 5 WAS/WERE NOLLED. DEFENDANT ADDRESSES THE COURT. THE COURT CONSIDERED ALL REQUIRED FACTORS OF THE LAW. THE COURT FINDS THAT A COMMUNITY CONTROL SANCTION WILL ADEQUATELY PROTECT THE PUBLIC AND WILL NOT DEMEAN THE SERIOUSNESS OF THE OFFENSE. IT IS THEREFORE ORDERED THAT THE DEFENDANT IS SENTENCED TO 36 MONTH(S) OF COMMUNITY CONTROL, UNDER SUPERVISION OF THE ADULT PROBATION DEPARTMENT WITH THE FOLLOWING CONDITIONS: DEFENDANT TO ABIDE BY THE RULES AND REGULATIONS OF THE PROBATION DEPARTMENT. SUPERVISION FEES TO BE PAID AT A RATE OF $20.00 A MONTH. COURT ORDERS DEFENDANT TO BE SUPERVISED BY: INTENSIVE SPECIAL PROBATION SUPERVISION UNIT DEFENDANT TO PERFORM COURT COMMUNITY WORK SERVICE FOR 300 HOURS. SUBMIT TO RANDOM DRUG TESTING ARREST IF/ON: POSITIVE OR TOO DILUTE SUCCESSFULLY COMPLETE AN IN-PATIENT TREATMENT PROGRAM. ATTEND AA/NA/CA MEETINGS. PROVIDE PROOF OF MEETINGS TO THE SUPERVISING OFFICER. OBTAIN / MAINTAIN VERIFIABLE EMPLOYMENT, PROVIDE PROOF OF EMPLOYMENT TO THE PROBATION DEPARTMENT. PARTICIPATE IN AND SUCCESSFULLY COMPLETE THE THINKING FOR A CHANGE PROGRAM. REFERRED TO CBCF FOR 6 MONTH PROGRAM FOR SCREENING. VIOLATION OF THE TERMS AND CONDITIONS MAY RESULT IN MORE RESTRICTIVE SANCTIONS, OR A PRISON TERM OF 36 MONTH(S) AS APPROVED BY LAW. (18 MONTHS ON EACH COUNT, CONSECUTIVE) DEFENDANT IS TO PAY COURT COSTS. DEFENDANT REMANDED. SHERIFF ORDERED TO TRANSPORT DEFENDANT BRIAN K WASHINGTON, DOB: 08/31/1968, GENDER: MALE, RACE: BLACK.
MISC 5 06/l2l2012 * Page 1 of 2 Sheriff SignatLktA4-` y 1 IIIIN ih61 IIIII i^il I^II INII IIII III81111IIII I IIII 74178263
06/12/2012 CPJPN 06/12/2012 13:47:35
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82462777 IN THE rC^URIDOF COMMON PLEAS CUYAHOGA COUNTY, OHIO THE STATE OF OHIO 2^ O1^ JAN - 3 P 12^ 20 i Case No: CR-10-535298-B Plaintiff CLERii GF COURTS CUYAHCGA COUNTY Judge: JOHN D SUTULA BRIAN K WASHINGTON Defendant INDICT:2911.07 AGGRAVATED ROBBERY /FRM I /FRM3 /FORS /NPC /RVOS 2905.01 KIDNAPPING /FRM1 /FRM3 IFORS /NPC /RVOS 2913.02 THEFT (MV) ADDITIONAL COUNTS... JOURNAL ENTRY
DEFENDANT IN COURT. DEFENDANT TNDIGENT; ATTORNEY CRAIG W. SMOTZER ASSIGNED AND PRESENT. DEFENDANT, BRIAN K WASHINGTON, IN OPEN COURT REPRESENTED BY COUNSEL FOR HEARING ON ALLEGED VIOLATION OF COMMUNITY CONTROL SANCTIONS. HEARING HAD. COURT FINDS DEFENDANT, BRIAN K WASHINGTON, TO BE IN VIOLATION OF COMMUNITY CONTROL SANCTIONS. COMMUNITY CONTROL IS CONTINUED WITH PRIOR CONDITIONS. COMMUNITY CONTROL IS MODIFIED AS FOLLOWS: DEFENDANT REMANDED FOR 60 DAYS IN COUNTY JAIL CREDIT TO 12/24/2013. DEFENDANT TO PARTAKE IN IN- PATIENT DRUG TREATMENT AFTER THE 60 DAYS. VIOLATION OF THE TERMS AND CONDITIONS MAY RESULT IN MORE RESTRICTIVE SANCTIONS AS APPROVED BY LAW. 36 MONTHS IN PRISON (18 MONTHS ON EACH OF THE 2- FEL-4'S CONSECUTIVE). DEFENDANT REMANDED. SHERIFF ORDERED TO TRANSPORT DEFENDANT BRIAN K WASHINGTON, DOB: 08/31/1968, GENDER: MALE, RACE: BLACK.
01 /02/2014 CPTRC 01/02/2014 14:15:54
Date
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HEAR 01 /02/2014 Sheril ^^^^ Page 1 of I
® ORI05352WB ^'%4Wi25 ^ ^.^ . IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION NOUN tomonk CUYAHOGA COUNTY, OHIO
STATE OF OHIO, ) CASE NOS. CR 535298, CR 542057 Plaintiff ) ) JUDGE JOHN D. SUTULA V. ) RECEIVED FOR FIUING STATE'S MOTION TO REOPEN HEARING AND HOLD FULL ANID FAIR HEARING UPON BRIAN K. JAN 0 6 2014 WASHINGTON'S VIOLATIONS OF BRIAN K. WASHINGTON, CO TY CONTROL Defendan4CUYAMOGA C®UN SANCTION VIOLATIONS CLERK OF COURT ay cjputy
STATE'S MOTION TO REOPEN AND HOLD FULL AND FAIR HEARING UPON BRIAN K. WASHINGTON'S VIOLATIONS OF CO1VI TY CONTROL SANCTIONS
The State, by and through Cuyahoga County Prosecutor Timothy J. McGinty, now moves
this Court to vacate its January 3, 2014 order continuing Defendant Brian Washington's
community control sanctions. He is a probation violator under R.C. 2929.15 after an arrest in the
Ohio City Neighborhood of Cleveland for breaking into a car and stealing, among other items,
children's Christmas presents. The Prosecuting Attorney further asks that after holding a full
and fair hearing, this Court impose the maximum consecutive punishment of four (4) years in
case numbers CR 535298 and CR 542057; cases in which Washington has been free to continue
committing offenses against the Citizens of Cuyahoga County.
THIS COURT VIOLATED THE PUBLIC'S RIGHT TO BE PRESENT AND TO BE HEARD BY HOLDING AN EX PARTE CO MMUNITY CONTROL SANCTION VIOLATION HEARING
On January 2, 2014, without journalization of such intent, and without notice to the State
of Ohio, this Court held an ex parte hearing regarding the community control sanction violations
of Defendant Brian K. Washington. See, Docket, Entry, January 3, 2014 This Court must
EXHIBIT provide notice to all parties in a criminal matter, to include the setting of a violation hearing.
Because the Prosecuting Attorney has an interest in the prosecution of crimes and has an interest in all controversies in a criminal matter, this Court erred by not providing the State with notice of the violation hearing. See, R.C. 309.03; State v. Young, 154 Ohio App.3d 609, 2003 -Ohio-
4501, at ¶ 7 ("A violation of community-control sanctions, by virtue of a subsequent felony arrest, is certainly within the concept of "complaints, suits, and controversies" in which the state remains an interested party." (Citing, State v. Paul (N.M.App. 1971), 82 N.M. 791, 792, 487
P.2d 493, 494; State v. Malbrough (1980), 5 Kan.App.2d 295, 297, 615 P.2d 165, 168.) )
"[J]ustice, though due to the accused, is due to the accuser also. The concept of fainness must not be strained till it is narrowed to a filament. We are to keep the balance true." Snyder v
Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330 ( 1934), overruled in part on other grounds,
Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 ( 1964). In this case, this Court did not notify the
State through the Prosecuting Attorney (by journal or otherwise) of its intent to hold a community control sanction violation hearing. Because this Court then held a hearing ex parte, the essential elements of due process of notice and an opportunity to be heard were ignored. See,
Cleveland Bd of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487 (1985).
The State has a statutory right to be present at a sentencing hearing. R.C. 2929.19(A)(1).
A violation hearing is a matter which follows such hearing, and courts have found that the State has an interest, and thus a right to notification of any proceeding. Young, supra. Therefore, the trial court violated the State's rights to notice and opportunity to be heard when the State was denied an opportunity to be present at the violation hearing and to present evidence that definitely shows that Washington is a danger to the community and that this Court must impose the maximum penalty under law.
2 The trial court's ex parte hearing denied the State an opportunity to be heard. "Ex parte
communications, generally are disfavored because they conflict with a fundamental precept of
our system of justice: a fair hearing requires `a reasonable opportunity to know the claims of the
opposing party and to meet them. "' In re Paradyne Corp. (C.A. 11), 803 F.2d 604, 612 quoting
Morgan v. United States '(1938), 304 U.S. 1, 18, 58 S.Ct. 773. "When a party complains that his
due-process rights were violated due to the other party's communication with the trial court, the
complaining party must first produce some evidence that the communication was actually ex
parte. See State v. Jenkins ( 1984), 15 Ohio St.3d 164, 236-37, 15 OBR 311, 473 N.E.2d 264. An
ex parte communication has been defined by some courts as an act done without notice to an
adversely interested party. See Keller v. Keller, 4th Dist. No. 02CA19, 2003-Ohio-6462, 2003
WL 22860832, ¶ 27, fn. 3, citing Black's Law Dictionary (5th Ed. 1979); State v. Boddie (Sept. 6,
2001), 3d Dist. No. 1-2000-72, 2001 WL 1023107, citing Black's Law Dictionary (6th Ed. 1990);
Metzger v. Thurman (July 27, 1993), 4th Dist. No. 92 CA 2106, 1993 WL 278495, fn. 5, citing
D'Acquisto v. Washington (N.D.Ill.1986), 640 F.Supp. 594, 621." State v. Sanders, 188 Ohio
App.3d 452, 461, 935 N.E.2d 905, 2010-Ohio-3433, ¶19. Even "if an ex parte communication occurs, the complaining party must still show some prejudicial impact from the ex parte communication." Sanders at ¶21. Such evidence consists of this Court ignoring the past and certain criminal conduct of Defendant; to include his multiple probation violations and his continuing criminal conduct.
This office is aware that even before Washington's recent arrest for theft, he had multiple probation violations. Washington tested positive for having cocaine in his system on November
26`h of last year. He was charged with the assault on his wife, which occurred on October 29th, just over a month later, in the Cleveland Municipal Court under 2013 CRB 034080. After failing
3 to appear in court for those charges, on December 12`h, a capias was issued for his arrest. That
warrant was pending when Washington committed, and was arrested for, the crimes that led to
this motion.
lt is readily apparent that Washington has proven himself to be a menace to Cuyahoga
County, having committed felonies in this County since 1991. The Citizens of Cuyahoga County
should not have to tolerate career criminals who are allowed to remain free, flaunting the law and
committing acts that undermine the public's rights to liberty, property, and safety.
WASHINGTON'S LATEST ARREST
Washington was arrested on December 23, 2013, by members of the Cleveland Police
Department in connection with theft of items from a motor vehicle in the Ohio City area, a
brazen crime occurring in broad daylight on December 17, 2013. Washington was captured by a
video camera breaking into the victim's vehicle and stealing items from within. Among the items
taken were Christmas presents the victim had purchased for his family. On December 20, 2013,
Detective David Santiago of the Cleveland Police Department 2nd District obtained and
executed a search warrant of Washington's vehicle and residence. Several stolen items were
found in Washington's vehicle. When Detective Santiago interviewed Washington, he admitted
to the theft, and admitted to selling a GPS device stolen from the victim's vehicle.
WASHINGTON IS A CAREER CRIMINAL
In 2010, after a 20-year history of felonious behavior undermining the quality of life in
our community, Washington was placed under Community Control Sanctions by this Court. In
case number CR- 535298, Washington pleaded guilty to two felony offenses: Theft of a Motor
Vehicle in violation of R.C. 2913.02 A(l); and Attempted Having a Weapon While Under a
Disability in violation of R.C. 2923.02/2923.13 A(2). On June 12, 2012, this Court sentenced
4 Washington to 36 months of Community Control Sanctions, with notice that a violation could
result in an aggregate prison sentence of 36 months. In case number CR- 542057; Washington
pleaded guilty to Receiving Stolen Property in violation of R.C. 2913.51(A). This Court
sentenced Washington to Community Control Sanctions for a period of 36 months, with notice
that a violation could result in a prison term of 12 months. Accordingly, he is now subject to the
imposition of an aggregate 4 year prison sentence for his violations of the terms of his probation.
Prior to the crimes for which this Court allowed Washington to be placed on probation,
Washington amassed an extensive history of criminal cases. Of the 27 felony dockets previously
filed against him in the Cuyahoga County Court of Common Pleas, he pleaded guilty to 25 of
those cases; all but two of the 25 convictions were for felony offenses. The quantity of charges
amassed against him in the last 22 years and the perpetual nature of Washington's crimes renders
his lack of respect for the law and the people of Cuyahoga County unmistakable. He has led a
life of crime and should no longer be allowed to remain free.
A list of the convictions and sentences Washington has received in this Court since 1991
is attached to this motion as Exhibit A. In total, Washington has been found guilty of a total of
33 felony offenses in this court. He has been sentenced to prison on thirteen occasions by 12
different Judges of this Court. Over his lifetime, he has been arrested no less than 60 times. After being convicted in Lake County on a charge of Possession of Criminal Tools in
1989,' Defendant began his lengthy list of felony convictions in this County with Receiving
Stolen Property, Motor Vehicle under R.C. 2913.51, in 1991 when he was arrested driving a stolen car. He was convicted under this same statute 12 more times through 2010. Washington diversified his portfolio of crimes with a conviction for Grand Theft Auto under R.C. 2913.02 one month later, in 1991. He stole a victim's car from the victim's driveway, using a
5 screwdriver, and also took the victim's personal possessions, some cassette tapes, out of the car
with him.
It took Washington just over a year to earn his third, individual felony conviction in this
County. This conviction was for Attempted Receiving Stolen Property, motor vehicle, under
R.C. 2923.23/2913.51, a lesser and-included offense under the charge of the indictment. The
events that gave rise to this conviction were Washington's theft of property from the trunk of an
automobile that was parked in a parking lot. He drove to this parking lot in a vehicle that was
stolen, and used a screwdriver to get into the trunk.
After his 1992 conviction, he had a quiet year in 1993, aided by incarceration. He wasted
no time after being released, however, and by the end of 1994, he had received four more felony
convictions in the Cuyahoga County Court of Common Pleas. The first of these convictions
arose when he stole his friend's work van, after asking to borrow it for less than an hour. In the
van were his friend's tools and house keys, so that Washington handicapped his friend's ability
to go home or work while Washington held the van.
Washington was convicted of two more felonies in 1995, before again taking a brief
break from his facing the repercussions of his crimes. Once again, his lack of further convictions
was likely aided by incarceration. Both of these convictions came from events when
Washington was found driving stolen cars. Washington fled from police during the second
arrest.
Between 1997 and 2000, Washington was convicted of at least one more felony each year, for a total of 6 more felony convictions, and one misdemeanor. This period included his first drug-related felony in the County and a concealed weapon charge, in addition to the property crimes that had become, by this point, unacceptably routine. When Washington was
6 arrested for the drug charge, in 1999, he ran from police. He only stopped when he ran into a
metal trash can and police officers were able to catch him. During that arrest, he had a crack pipe and crack cocaine in his possession.
At the turn of the millennium, Washington failed to show any growth in his respect for the laws of this State, and in 2001, he received felony level convictions for both Assault under
R.C. 2903.12 and Abduction under R.C. 2905.02. The details of these violent offenses are described below. In that same year, Washington was also convicted of multiple counts of receiving Stolen Property, Forgery under R.C. 2913.31, and of Failing to Comply with an Order or Signal of Police under R.C. 2921.33 1. The conviction for the last offense was the result of
Washington fleeing police in a car with a passenger, stopping only when an accident disabled the vehicle, and then running on foot until police officers caught him and took him into custody.
Over the next two years, 2002-2003, Washington was found guilty of committing 5 more felony offenses, including Theft of a Motor Vehicle under R.C. 2913.02, Robbery under R.C.
2911.02, Felonious Assault under R.C. 2903.11, and Failing to Comply with an Order or Signal of Police under R.C. 2921.331. Once again, Washington fled from police in a vehicle when they requested that he stop, and ran on foot after crashing and disabling the vehicle. This time, however, the car that Washington crashed belonged to the victim of his robbery offense.
Between 2006 and 2008, Washington pleaded guilty to charges in three more cases, for a total of two more felony convictions and one more misdemeanor. Washington was sentenced to probation on each of those three convictions. As in the past, and now, probation failed.
Washington failed to report to the probation department, and absconded from in-patient treatment. . Following his sentence, he committed the crimes that led to the present charges and most recent probation violation.
7 This latest criminal escapade was very predictable based on his ridiculously long history
of arrests and convictions. The next crime and victim is even more certain to occur if this Court
continues Defendant's probation. The risk would be absurdly high. Please set the case for a ^ Probation Violation Hearing as soon as possible.
WASHINGTON HAS A VIOLENT CRIMINAL HISTORY
Washington's extensive criminal history is not limited to property crimes, and includes
multiple violent crimes. In 2001, he pleaded guilty to Aggravated Assault under R.C. 2903.12
and Abduction under R.C. 2905.02. This case involved a murder, kidnapping, and robbery.
These crimes took place when Washington and his co-defendant, riding in a car stolen by
Washington, and after spending the night drinking and getting high on crack cocaine, became
involved in a disagreement when they attempted to rob a drug dealer. Washington locked the
doors of the car to trap a drug dealer who was sitting in the backseat with the victim, while his
accomplice stabbed and threatened the dealer with a screwdriver, demanding his drugs.
Washington also drove the car away from the dealer's friend so that he could not help the dealer
escape. The dealer then pulled a gun and as Washington's accomplice wrestled with him for it, the victim was shot once in the foot and once in the chest. The bullet that entered his chest went through both of his lungs and his aorta. These wounds caused the victim to bleed to death and
Washington fled the scene. Washington's accomplice was sentenced to life without parole eligibility for fifteen (15) years for their heinous crimes.
In 2003, Washington pleaded guilty to both Robbery under R.C. 2911.02(A)(2) and
Felonious Assault under R.C. 2903.11. Washington stole his victim's vehicle from a parking lot.
When the victim saw his car a short time later and approached it, Washington entered the stolen automobile without consent and assaulted the victim with help from his co-defendant. The victim
8 tried to grab the steering wheel through the driver's side window, and Brian Washington refused
to stop at the victim's request, instead dragging the victim about 30 feet. Eventually the victim
was thrown from the car by Brian Washington's malicious driving. The victim then had to jump
out of the way so that he would not be hit when Washington sped away. The victim;was left with
9 stitches in his left hand and Washington willfully fled from police at high speeds. The victim's
injuries were so severe that he missed a month of work and had to give up his hobby of several
years, playing the guitar, because of persistent pain caused by his injuries.
Brian Washington also has a pending case in the municipal court for assaulting a
household member. His history of violent activity shows that his lack of respect is not limited to
other people's property, our laws, and the courts, he has also demonstrated no concern for the
physical well-being of the people in this community and has proven a threat to their health and
safety.
WASHINGTON HAS A HISTORY OF PROBATION VIOLATIONS
This most recent probation violation is the 9th by Washington. He has repeatedly thrown
away chances granted to hiin by the Court of Common Pleas and has continuously proven that he
has no respect for the probation system. At various times, Washington has violated probation by
absconding from rehabilitation centers, failing to attend programming, failing to report, testing positive for illicit substances- usually cocaine, and as in the present issue, by violating the law during the probation period. He violated his probation in the following cases during the years
listed:
• Case number CR- 367202 in 2000
• Case number CR- 387592 in 2001
• Case number CR- 386042 in 2001
9 • Case number CR- 419059 in 2003
• Case number CR- 433767 in 2003
• Case number CR- 481986 in 2007
• Case number CR- 502619 in 2011
• Case number CR- 513027 in 2011
The continuous nature of Washington's criminal activity and his stubborn refusal to
better himself and respect the community suggests that this Court will only serve the interests of
justice and prevent future crimes and probation violations by imposing the maximum sentence
under law for this most recent probation violation.
THIS COURT MUST VACATE ITS ORDER FOLLOWING ITS EX PARTE DECISION AND ALLOW THE STATE TO BE HEARD ON DEFENDANT'S CONTINUED CRIMINAL BEHAVIOR AND CERTAIN FUTURE CRIMINAL CONDUCT
The State was prejudiced by this Court's ex parte action. The court continued
community control sanctions upon a career criminal -- a criminal with a 20-year history of felony
convictions and probation violations. By not providing a full hearing upon Washington's
violations and his documented and certain recidivism, this Court has not only prejudiced the
State, but has prejudiced the Citizens of Cuyahoga County by ensuring that one or several of them will be victims of Washington's inevitable criminal acts. As such, the State asks that this
Court vacate its January 3, 2013 order continuing Washington's community control sanctions and set this matter for a full, open hearing with prior notice to the State of the time and place of the hearing so that it may present its arguments.
THE CITIZENS OF CUYAHOGA COUNTY MUST BE FREED FROM CRIMES COMIVIITTED BY CAREER CRIMINALS LIKE WASHINGTON
Washington is clearly in violation of the Community Control Sanctions imposed in case numbers CR- 535298 and CR- 542057 after his arrest for breaking and entering a vehicle and
10
u ^ ^ ^^ ^ ««r N« Municipal Court. Washington has shown no respect to this Court or to the law by his continued criminal activity. Further, this Court has not shown any respect to the community; by placing this dangerous felon on the streets and not into prison, this Court endangered the community. Probation for Washington was error. It is time to correct that error before more innocents become victims of Washington's crimes. In this Court, twelve other Judges have seen fit to protect the community by sentencing Washington to prison. That Washington would continue to offend was not a mere probability at the time this Court sentenced him to probation, it was close to a certainty. Now that Washington has victimized strangers with his latest theft, refused to follow the conditions while on probation, has been violent to a household member, and has continued to use illicit narcotics; the absurdly high probability of future offenses has come to fruition. The State now asks that this Court take the action necessary to protect the community from crime by this career criminal and impose the maximum sentence under law, an aggregate prison term of four (4) years. Respectfully submitted, TIMOTHY J. G1N 02462 CUYAHOGA COUNTY PROSECUTOR PROSECUTING ATTORNEY 1200 Ontario Street, 9`h Floor Cleveland, Ohio 44113 (216) 443-7800 11 SERVICE A copy of the foregoing STATE'S MOTION TO REOPEN AND HOLD FULL AND FAIR HEARING UPON BRIAN K. WASHINGTON'S VIOLATIONS OF COMMUNITY CONTROL SANCTIONS has been mailed this 6th day of January, 2014, to Craig W. Smotzer, counsel for defeftdant, 1914 Clark Ave. Cleveland, OH 44109. TIMOTHY . a G 0024 CU'YAfIOC^A UNTY PRO 'TOR 12 00 V Q1 u'9 LU m Itx^ n Ix. ry n c°s h do e°: e5 tl A m (D CL ^a ure ro r^ w co wa cn -4 u -* ,a „^. B 1 1 1 1 p► lV N l'Y/ P"' '1N Y"" OW r, oiC^ w ` "N ^ ®e ®4 1aVe 'Me Ma^ . p'!i^M N/ Y/ . M/ W^p,s ^Y/q `W V/ 0.•d Y^ . 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G F C.01MMO1^ PLEA^ CRIM17NAC; DI'dISION A^'I$^ i p"/p 'y^{pq^ ^/y. y^.pgy^^^ '^},p p, ^y}`{ y@ ^yp^ ^1..K_^hy_ Tf A^C'^^4- CLB.Jr4&i A Ai'4^ ^ 6iN'3 Y, 011 10 a _ ^ °,tL9iRSK ®F C*11ff^ S7t`:'s ^ ^ OF ONTOg ^ ^',ASENOSa. ^ _ PLAINTIFF ^"^1^ DG.^. JOHN D. KITULA vs. ^ ^^ ^^NDA:?"^^^ ^^IEF IN OPPOSIT^ON TO 1^OP^N HE.r^NG N^ HOLD A BRI.¢^3V K. WASHLN^TON ^ ^$^;t^NG^. PO^' BRIrN_ ^:o-- ^ay^.S^^.ING`^'^3'1^^^ VIQLAT-i^.^^^ 01-V (MMMUNITY CONTROL DEF^,+'NDANT Now comes the ^efendant, by and through Cotansel.3 who hereby ^^oves this Court for an .,.,. ^ Cotder d^ny^n,^ the State's Motion to:Reop^n and liold a I^earing Upon Brian K. Washington's Violati®n-s of Community ^^ntTol. Defendant hereby asserts that the Coua tacks jiirisdaction. because the State failed to ^^n-tpiy with slattilory requirements; the State has no ^^ie process riglit to nottae: nor does the State have a righg to be heard at a community control vi-r^lati^^^ ^eariiig. The re^.^ons that support this 13ta^f are set t^ryrtli in the{ollowinc-,,M:eznorarz-diim, Itr- --- w. SM3£`^-r (00807381; ne La ,1,-'(^ffice f Craig W. Smotzer, LLC 1914 Clark Ave. Cleveland, Obi^ ^^^09 T:440.821.4799 E: craig.sinotZe: W: ^NwW.sn.1otzerla-W.coTn_ ------______..----. _^ Attorney for 1)e.^^^^^^^^ ^^^^^IT r-= BRIEF ^^ SUPPORT STATEMEN'x' OF (^'..^.S^• On January 2, 2014 this Court held a hearing regarding the community control sa.netion violations of Brian K, Washington ("Washington"). Victoria Boyd was present on behalf of the State of Ohio ("State") and the Cuyahoga CounhI Probation Department. "Fhe State has filed a Motion to Reopen and Hold a Hearing upon Brian K. Washington's Violations of Cammunity Control alleging that the Court violated the public's right to be present and to be heard because the Court held an alleged ex parte community control sanction violation hearing. The State finther alleges that, by holding this hearing, the Court has ip-nored the essentiat elements of due process of notice because the State had no opportunity to be heard. S"^',^ ^: '^ < ^:°r:'I' OF Tlli'E Washington entered pleas into case numb-Irs CR 10-5^5298-B4 and C'R-10-542057-13, on March 3`d, 2€111. In each case, the tTia.1 court granted Washington a cr^^iun€ty control sanction. ^^nti^ Janua^-Y 2, 203.4 Washington had not violated the terms of his ^^mmtmi.ty control in the above cases, The violation hearing held on Jars.aaaa-y 2, 2014 was Washington's -first and only violation on case numbers CR. 10-535298wB and CR-10A5421057rB. Washington was advisc.d at this hearing that he was in violation of the terms of his community control sanctioais. Due to this vioaatian the Court modified the terms of Washington's ^^^^^unity control sanctions as follows: Defendant was remanded for 60 days in countyjaiiy and after that 60 period he. is to partake in inmpatic:nt drug treatment. The Court fijrffier ordered that if Washington were to continue to violate his ^onu-nuni1^ control sanctions he would be s€ibjec1 to 36 months in prison. Subsequently, on January 6"^, '21014, the State filed its Motion to Reopen and Hold a Hearing upon Brian K. Washington's Violations of Community Control. LAW ANX) ARG U ^;^k^^^ ^ ^ ^ ^f COURT LA CKS J^.^R^^^IC7.^^^^ ^ECAUSE T^^^ STATE ^A-V AP PEAL, 11,Wb714 LEAVE OF THE C^.,!1RT, ANY O.^^HE,°:' Dk^jl^^ON C^,4 A '°RIAY, COURT ^^^^^'T A FINAL VERDICT. The trial court is not the appropriate court to hear this flnotion. The appropriate f6rUM fCr the State to appeal this particular matter would be that of the Court of Appeals; however, t^^^-C are still statutory i-equzrements that the State must ffsltow in order to have this case bcard on appeal. The prosecutor's ragh.t to appeal are limited to a tdal coa~t's decision ^raiiti.ng the following^ 1. motion;, to dismiss all or part of the indictment, 2. tn.otions to suppress, 3. motions for rettirn of property, or 4. motions for post conviction relief. :En all other eirc;umstmices, the state may appeal, watl? leave ^^^^^^ court, any other decision of a triai court except the final verdict. S-ee R.C. 2945.67; App. 1Z., 5 (C); State v. Rivers, $'h Dist. No. 86663, 2006d0hio-.3s949 at ji 12--14 citing State v. Sanders, M}arni PA,,pp. 1*do. 94^CAa48, 1994 O}iio App. LEVI^ 5485. The State has failed to file such notice in this ca^e and it has raot obtained the necessary leave to set this case before the C ourt of Appeals. The State does not have a due process right to notice, nor does it have a right to be heard when a court imposes sa.nctions for a community control violation hearing. The Revised Code clearly oiitiin^s who has the responsibility to represent the state at a comrrtu.nity control sa.nct.ion. RX. 2929.15 states that when a c€^u-t sentences arf, offender to anY community control sanc,"ioii the court shall place that offeixder under t1ie general control and supervision of a depa.rtmeiit of probation. R,C. 'Z"929. 15(A)(2')(.a); ,^'impkfazs3 supra. R.C 2951.08 states that if a probationer is arrested, the arresting ^^en^y must notift, the chief probatia^^ officer or on of the chief probation officer's designees. R.C. 2951.08(B). R.C. 2951 addresses probation issues and fails to grant any authority or even r^entissn, the prosecutor's responsibilities over an individual serving probation. Similarly, Crlm. R. 32.3 addresses the Revocation of Community Release and fails to indicate that the prosecutor has any function in the process. For these reasons the State's argumeiit that it had a due process right to noLice is erroneous. The State further claims that it has a statutozy right to be present at senteticing, pursuant to R.C. 2929.19(A)(1). The States inte-rpretatioii is flawed. The prosecutor's ^^^io^. is complete upon ser^tericizlg7 therefore, the pros^cutiaai has no authority over a defendant s^^^^enced to prison and similarly has no autliority over ^i-i individual w1io has been. placed on camrnunity control. That responsibility is "placed, by statute, zipon the adult probation department." ^^impkgns, sLapra at'^(11 The State also ctaims that it has a statutory right to be heard at a vic9latior9. ^earing. The State, however, fails to illustrate how it was pre.judlced by not being heard, Th^: State argues that Washington is a repeat offender and in the past, on other non-related cases, he has '^ec-n a violator. (State's Motioii pp. 9-10). The traal court considered fnese circurnsta^ces as indicated in the joumal entry by noting each case number arzd its swictions. In the current case the Court did incarcerate Washington in the county jail for sixty (60) days, and then required him to attend inpatient drug treatment after con-tpletion of the county titne. Washington has been removed from society per the sanction for at least a period of niinety (90) days. All things considered, it does not appear through the court's actions that the State was prejiidiced in anyway as it's coneerns were clearly considered wheii the court set forth its sentencing per the violations. CON";^a' USiGN The Coini should deny the State's request for a hearing as it does not have- the jurisdiction to hear it, nor does the State have any Due Process rights at a community ^^ntrol violation hearing. The State has no due process right to notice or right to be heard at a ^onimunity conttol violation hearing because the prosecutor's interest in a defendant temtinates after sentencing. Once a court grants community control, the State is represented by probation department, not the prosecutor's office. The Revised Code, criminal rules, and local rules all grant the authority to supervise to the probation departr^ent and all fail to even mention tlle prosecutor's responsibilities once and individual is placed on community control. '1"herefore, the Court should dismiss the motion as it lacks jurisdiction to hear the motiop. and because the State has no Due Process rights at a conununity control violation hearinz. Respe ti"uliv&AU-ni.tted, . ^ ^ _--^..:,^^::_ The Law Office o3.1 .v ^^, Smo, LLC 1914 Clark Ave. Cleveland, Ohio 44109 `i': 440.821.4"799 E: craigo^srnotzeri^;gnja^jxqm W. www.siiiotzerlaw.com PROGI{ OF SE^fNTICE A copy of the foregoing DEFENDANT' S ^^^IET'1N OpPt^^ITIONTo REolgl;'ti ^^^ARING AND HOLD A -UTON BRIAN K GTON'S V:IYLATION^ OF COMMUITY ^ONTROC, was ser,%ed on to the: Cuyahoga County Prosecutors O^`^ ':^ 1200 Ontario St. (;^^^^land, Olhgo 44113 ------^---°^- --- ^ W- TZE.R. ,F RECEIVED FOR FILING IN THE COURT OF COMMON PLEAS JAN 3 1 7.014 CRIMINAL DIVISION CUYAHOGA COUNTY, OHIO CUYAHOGA COUNTY CLERK OF COURTS ®epu'y STATE OF OHIO, CASE NOS. CR 535298, CR 542057 Plaintiff JUDGE JOHN D. SUTULA V. STATE'S MOTION TO HOLD A PROBATION VIOLATION HEA RING UPON B K. WASHINGTON'S BRIAN K. WASHINGTON, VIOLATION OF COMMUNITY Defendant CONTROL SANCTIONS STATE'S MOTION Now comes the State of Ohio, by and through Cuyahoga County Prosecutor Timothy J. McGinty, and moves this Court to hold a probation violation hearing for Brian Washington, based upon his recent conviction in Cleveland Municipal Court, which took place after the January 2, 2014, probation violation hearing. Washington is a probation violator under R.C. 2929.15 after an arrest and conviction in the Ohio City Neighborhood of Cleveland for breaking into a car and stealing, among other items, children's Christmas presents. He was convicted for this latest violation on January 9, 2014, after pleading no contest to two charges in CRB 038933. It is therefore appropriate for this Court to hold a probation violation hearing for this newest violation. The Prosecuting Attorney further requests that after holding a full and fair hearing, this Court impose the maximum consecutive punishment of four (4) years in case numbers CR 535298 and CR 542057, cases in which Washington has been free to continue committing offenses against the Citizens of Cuyahoga County. This new matter will be Defendant's third probation violation _.. ^ , 'A RECEIVED FOR FILING IN THE COURT OF COMMON PLEAS JAN 3 17014 CRIMINAL DIVISION CUYAHOGA COUNTY, OHIO CUYAHOGA COUNTY CLERK OF CCUR'i S 6y ®Fputy STATE OF OHIO, CASE NOS. CR 535298, CR 542057 W Plaintiff JUDGE JOHN D. SUTULA V. STATE'S MOTION TO HOLD A PROBATION VIOLATION HEARING UPON BRIAN K. WASHINGTON'S BRIAN K. WASHINGTON, VIOLATION OF COMMUNITY Defendant CONTROL SANCTIONS STATE'S MOTION Now comes the State of Ohio, by and through Cuyahoga County Prosecutor Timothy J. McGinty, and moves this Court to hold a probation violation hearing for Brian Washington, based upon his recent conviction in Cleveland Municipal Court, which took place after the January 2, 2014, probation violation hearing. Washington is a probation violator under R.C. 2929.15 after an arrest and conviction in the Ohio City Neighborhood of Cleveland for breaking into a car and stealing, among other items, children's Christmas presents. He was convicted for this latest violation on January 9, 2014, after pleading no contest to two charges in CRB 038933. It is therefore appropriate for this Court to hold a probation violation hearing for this newest violation. The Prosecuting Attorney further requests that after holding a full and fair hearing, this Court impose the maximum consecutive punishment of four (4) years in case numbers CR 535298 and CR 542057, cases in which Washington has been free to continue committing offenses against the Citizens of Cuyahoga County. This new matter will be Defendant's third probation violation .. .., . ^ 1 ^ since 2011. Washington has proven this Court wrong for showing him trust and allowing him to remain in the community. Defendant has demonstrated no progress to become law abiding in the last three years, or the last 20 plus years for that matter, and he has left this Court with the responsibility of incarcerating him in order to protect the public. WASHINGTON'S LATEST ARREST Washington was arrested on December 23, 2013, by members of the Cleveland Police Department in connection with theft of items from a motor vehicle in the Ohio City area, a brazen crime occurring in broad daylight on December 17, 2013. Washington was convicted of crimes related to this arrest one week after his most recent probation violation hearing. This newest conviction makes the Court's order of 60 days jail and in-patient drug treatment even more insufficient than it was at the time of the last hearing. Now this Court should have another violation hearing and sentence Defendant to a term of prison that adequately reflects Defendant's relentless commitment to a criminal lifestyle. WASHINGTON IS A GREATER COST TO THE COMMUNITY WHEN FREE Washington's habitual, criminal nature makes his cost to society when free greater than the costs of incarcerating him. See Brian Washington's Criminal History Sunimary, attached hereto as Exhibit A, and Party's Criminal History Report, attached hereto as Exhibit B. This court needs to protect society from Washington, and the cost will be lesser if he is incarcerated than if allowed to continue his criminal behavior while on community control sanctions. He has proven himself incapable of adhering to the conditions o f probation, much less the laws of this State. His repeated violations and crimes come at no small economic cost to the State, let alone the cost of the safety 2 and peace of mind of its citizens. Washington had violated his sanctions in multiple ways at the time of his last hearing. Because he had not yet pled to his latest crimes, the representative from the probation department was not competent to, and did not adequately represent all of Defendant's violations. This Court must hold another violation hearing where the Defendant will be incarcerated for a period that is long enough to protect the community and give it relief from Washington's crimes and other costs. THIS COURT MUST BE CONSISTENT IN THE CONDITIONS IT IMPOSES ON DEFENDANTS This Court has now, reneged on the conditions it set for Defendant on two separate occasions. By failing to honor its own conditions, the Court has damaged its reputation. Beyond just the harm inflicted on the Court, however, the community suffered when the Defendant was allowed to remain in it after his multiple violations. This Court has caused great harm to the community by reneging on its promises and allowing this unrepentant Defendant to remain in the community after repeatedly violating the conditions of his probation. When this Court originally imposed the community control sanctions that Brian Washington has now violated multiple times, it said to the co-defendants, "I'm getting pretty tired. I'm getting tired of helping you out of prison. And, this is your last chance with me to stay out of prison." Sentencing Hearing March 3, 2011, at 26, attached hereto as Exhibit C. The Court also addressed concerns that Washington and his co-defendant would be engaging in more, serious crimes saying, "You're riding in this car with this guy, again, you know. Gun in between his seats. You guys are going to be riding around in that car again?" Id. at 33. Finally, the Court warned Washington and his co-defendant, "[i]f you violate, each will receive 18 months in prison on each of the two felonies of the 4`h degree. Those will be consecutive to each other." Id. at 31. 3 Washington first violated his sanctions after just five months. He was found to have violated his probation requirements on August 24, 2011, for being uncooperative, allegedly belligerent, and argumentative with his case manager regarding clothing vouchers. Probation Violation Hearing, August 24, 2011, at 3, attached hereto as Exhibit D. His case manager was pregnant at the time. Id at 6. In spite of this violation, the Court did not adhere to the promise it had made just five months earlier, and Defendant was only given 20 more hours of community service and an order to apologize to the case manager for this violation. Id at 10-12. This Court then promised once again that "the next violation will be 36 months in prison. 18 months on each count, consecutive, all right?" Id. at 12. If the Court had adhered to its own conditions, Defendant would not have been able to victimize more people and violate probation with drug abuse. Instead, the Court allowed Defendant to stay in the community, where he again violated probation. Defendant failed a drug test, was charged with another crime, and came before this Court again on January 2, 2014. Again, this Court ignored its promises and instead of sentencing Defendant to the 36 months in prison that it had twice declared would be the result of another violation, it continued Defendant's community control sanctions with 60 days in county jail followed by in-patient treatment. Probation Violation Hearing, January 2, 2014, at 8, attached hereto as Exhibit E. This Court needs to follow through - an the sentences it imposes, and it has not done so with its last two hearings for Defendant's violations. It should now correct its previous errors and prevent further harm by following through on its promises and incarcerating Defendant. 4 THIS COURT MUST HOLD A NEW HEARING FOLLOWING TTS EX PARTE DECISION AND ALLOW THE STATE TO BE HEARD ON DEFENDANT'S RECENT CRIMINAL CONVICTION AND CERTAIN FUTURE CRIMINAL CONDUCT The State was prejudiced by this Court's ex parte action. The court continued community control sanctions upon a career criminal - a criminal with a 20-year history of felony convictions and probation violations. By not providing a full hearing upon Washington's violations and his documented and certain recidivism, this Court has not only prejudiced the State, but has prejudiced the Citizens of Cuyahoga County by ensuring that one or several of them will be victims of Washington's inevitable criminal acts. As such, the State asks that this Court vacate its January 3, 2013, order continuing Washington's community control sanctions and set this matter for a full, open hearing with prior notice to the State of the time and place of the hearing so that it may present its arguments. In the alternative, this Court must at least hold another hearing for Defendant's most recent conviction, this time with a full, open hearing and with prior notice to the State of the time and place o f the hearing so that it may present its arguments. If the Court fails to take either of these two appropriate actions, it will have once again placed the community in imminent threat of further harm from this unrelenting criminal. THE COURT MUST GIVE THE STATE NOTICE OF THE HEARING The State has a statutory right to be present at a sentencing hearing. R.C. 2929.19(A). A violation hearing is a matter which follows such hearing, and courts have found that the State has an interest, and thus a right to notification of any proceeding. State v. Young, 154 Ohio App.3d 609, 2003 -Ohio- 4501. Moreover, this matter is captioned State v. Washington; to believe that any litigant in any court is not entitled to notice of any and all proceedings would be to believe courts can be conducted ex parte. To not notify a party to a legal action of the date and time of a 5 hearing is akin to holding a heavyweight championship fight, Ali v. Frazier, but neglecting to tell Frazier where and when the fight will occur. The State must therefore be informed of such hearings, where the sentencing is considered or amended. Despite defense contentions in prior pleadings, a probation officer is an agent of the court itself, it is not a party in a lawsuit. The officer simply reports facts to the court of conduct on the part of a defendant, it is not a litigant. Therefore, by holding a hearing on January 2, 2014, without notice to the State, this court violated the State's right to notice and opportunity to be heard and present arguments or evidence that demonstrates Washington is a danger to the community. THE CITIZENS OF CUYAHOGA COUNTY MUST BE FREED FROM CRIMES COMMITTED BY CAREER CRIMINALS LIKE WASHINGTON Washingtom is clearly in violation of the Community Control Sanctions imposed in case numbers CR- 535298 and CR- 542057 after his recent conviction for breaking and entering a vehicle and pilfering its contents. Washington has shown no respect to this Court or to the law as evidenced by his continued criminal activity. This Court endangered the community by placing this dangerous felon on the streets and not into prison. Washington's sentence of community control sanctions was error. He has violated his probation in too many ways for the continuation of community control sanctions to adequately reflect the severity of his crimes and his threat to the community. He has been allowed to take too much from the community, and has had too many chances to change. The community needs this Court to take the correct action and place Defendant in prison before more innocents become victims of Washington's crimes. There must be another hearing so that this Court can correct its 6 previous errors and sentence Defendant to an aggregate sentence of four (4) years, in light of his multitude of probation violations and long criminal record. Respectfully submitted, TIMOTHY J. GIN (00 4626) CUYAHOGA 4UNT SECU 1200 Ontario Street, 9ch Floor Cleveland, Ohio 44113 (216) 443-7800 SERVICE A copy of the foregoing State's Motion to Hold a Probation Violation Hearing Upon Brian K. Washington's Violation of Community Control Sanctions has been mailed this 315t day of January, 2014, to Craig W. Smotzer, counsel for Defendant, 1914 Clark Avenue, Cleveland, Ohio 44109_ 7 Brlan Washington's Criminal History Summary CASE 1: CR-91-266107mB A.pri11441991 A.ssaoed to: Terrence O'Donnell's Courtroom Chargesf with: 2913.51 RECEiv1NCa STOLEN Prt.oPERTY-Mf}TOR VEHICLE 2921.331 FAILURE TO COMPLY wloltDEli-SlGhiAUoF PC)L,ICE OFFICER On April 14, 1991, Brian Washington was driving a stolen car on East 83rd Street. A patrol car noticed that the trunk lock had been punched and requested a license plate check. The license plate check confirmed that the vehicle was stolen. The patrol car, with the assistance backup police officers, signaled Washington to pull over his vehicle by using both lights and sirens. Washington fled across several different streets. Then he pulled over the car and ran from police officers. He was arrested and on September 20, 1991, he pleaded guilty to count one of the indictment for receiving stolen property (a motor vehicle). Pursuant to a negotiated plea agreement, the second count was nolled. He was sentenced to serve one year in the Lorain Correctional Facility; the sentence was set to run concurrently to CR-91-267431, a case in which Washington was again found illegally in possession of another citizen's automobile. CASE 2. CRN91.w2fe7431.wZA^6?Ia. __7 1991 Assl ned t:o- Terrence O'Donnell's Courtroom Charged with: 2913.02 GRAND THEFT -14r1.V. ° 2923.24------POSSESSING ------Cla.ilvfIPdAL TOOLS In May of 1991, Johnny Colquitt was the second victim of Brian Washington's extensive criminal career in Cuyahoga County. Johnny Colquitt heard his vehicle starting up in his driveway at approximately 5 :39 a.m. He then saw his vehicle being driven out of the ^XHlBN^° ^ A .^ ' Brian Washington - History of Offenses driveway by a male that he did not know. Washington was stopped shortly thereafter while he was driving Colquitt's car. .A_ screwdriver was found in the front seaf, and the steering column had' been 'peeled 'back. On September 20, 1991, Washington pleaded guilty to grand theft (of a motor vehicle), which was a third degree felony under the first count of the indictment. Pursuant, to an agreement with the State, the second count was nolled. Washington was sentenced to one year in the Lorain Correctional Facility; his sentence ran concurrently with his sentence from CR-91- 266107. CASE 3: Cf#.-92-284917-ZA July 41992 Assi ned t€^. Patricia A. Clea. 's Courtroom Chuged w9th; ..2.9.13.51 IRECEWENG B7'OLEN ; 3'ROPBB:Y^.MotTOR.,'^^la•^LE-. 2923.24 POSSESSMIG CR€MtNAL TOOLS 2923.02,291 3.51 .,^ TrEraPT TO RECEI'4'E. STOLEN PROPERTY -° NIO'rOR VEMCLE On July 4, 1992, Brian Washington was arrested for his third offense related to the unlawful possession of another citizen's motor vehicle. Washington's arrest resulted from a report made to police that a black male was tampering with a car in an employee parking lot in Cleveland. Upon investigation, it was discovered that a window was missing from a vehicle in the parking lot. A witness .observed the same black male had also been standing at the trunk of :l a different car with a screwdriver. When Washington'noticed that he was being watched, he abandoned the trunk, entered a car, and drove away. He then parked the car, entered a nearby Twin-Valu store and pretended to make calls at the pay phones. Police apprehended Washington inside the store. He attempted to lie to police concerning his presence in the employee lot and was arrested. Items were taken from the stolen vehicle he had been driving, -2- Brian Washington - History of Offenses including a half-full beer bottle and a screwdriver. Washington had broken into the trunk of a 1981 Oldsmobile. belonging to Charles Walker. The stolen car he was driving was a 1978 Oldsmobile belonging to Mark Taylor. He pleaded--guilty on September 8, 1992, to attempted receiving stolen property (of a motor vehicle), a lesser and included offense under the charge of the indictment. In exchange for his plea, the remaining counts were nolled. ^ He.was sentenced to six months at the ;Lorain Correctional Institution. CASE 4: CR-94-308847-ZA Feb 4,1994.Assigned to: Thomas Patrick Curran's Courtroom On Wedriesday, February 2, 1994, Milton Harrison became the fourth victim in Brian Washington's criminal history. Milton Harrison loaned Brian Washington his 1985 Ford Econoline 250 van. Harrison loaned Washington the van with an express requirement that Washington needed to return the van to him within a couple of hours. Instead, Washington absconded with the vehicle, which had many of the victim's tools in it. Harrison was unable to work for multiple days until the vehicle was returned: Washington failed to appear in court on June 7, 1994, and a capias was issued for his arrest. He was arraigned less than a week later on June 13, 1994. He pleaded guilty to an amended count of attempted grand theft (of a motor vehicle) on July 8, 1994. The Court then sentenced him to one year in the Lorain Correctional Institution. CASE 5: CR-94-310525-A May 2 1994 Assigned to; Thomas Patrick Curran's Courtroom -3-- Brian Washington - History of Offenses CiiarLe-d WEll: 2^313.51 R.ECEI'^fG SToLEN PRoPERT^ (MO'i'€oSt vEHlC€,E). On May 2, 1994,'Brian Washington was again found by police officers to be in unlawful possession of another citizen's motor vehicle. Police officers were watching an address on East .118`h Street where *numerous stolen vehicles Were stripped and abandoned. Officers became suspicious when a 1981 Oldsmobile Cutless pulled into the driveway. Washington exited the vehicle with an open container of Colt 45 beer ini his hand. At that time, a second Oldsmobile Cutless entered the same driveway. The officers then approached Washington,, informed -him that he had broken the law, and requested that he show them his identification. Washington stated that he did not have any identification. He was operating the vehicle while drinking• beer-and told•the officers that. he did not-know who owned the car. The officers then proceeded-to arrest Washington. On July 8, 1994, Washington pleaded guilty to accepting stolen property (a motor vehicle), which was a third •degree felony. He was, sentenced to the Lorain Correction Institution for a term of .two .years consecutive with case CR-94-3 1 1 959, to be served after the sentence in case CR-94-308847. The execution of this sentence was suspended and Washington was placed on. a one year term of probation. On September 13, 1995, Washington was found to have violated his probation after testing positive for cocaine abuse. After finding that Washington tested positive for cocaine, the Court terminated Washington's probation. CASE 6• CR-94-311959-B June 7, 1994 Assisned to: Thomas Patrick Curran's Courtroom -4- Brian Washington - History of Offenses In this case, police officers noticed a vehicle that was being driven erratically and ran its license plates. A search of license plates informed the police officers that the vehicle was stolen. The police officers then attempted to perform a traffic stop. Washington was driving the car and fled from the police. Eventually he stopped the car and ran away. A female passenger also began to run but then stopped and was arrested. The passenger informed the police that she had asked Washington for a ride but did not know that the car was stolen. Multiple screwdrivers were corifiscated from the vehicle: 'Tlie vehicle was a 1978 Buick, belonging to Nancy Agacinski, who was the sixth victim in Brian Washington's criminal history of unlawfully receiving stolen motor vehicles. Washington pleaded guilty to count one of the indictment, receiving stolen property (the motor vehicle), which was a third degree felony. Count two was nolled pursuant the plea agreement that Washington received. He was sentenced to the Lorain Correction Institution for a term of two years consecutive with case CR-94-3 10525, to be served after the sentence in case CR-94-308847: On September 13, 1995, Washington was found to have violated his probation, after testing positive for Cocaine Abuse, and his probation was terminated. This case was the second example of an instance where the'Court had granted Washington probation, yet the Court was later required to terminate his probation due to drug use. CASE 7: CR-94-312298-ZA Ma.y 18,1994 Assigned to: Stuart A. Friedman's Courtroom In this case, the victim had parked his car in front of his home on East 118`F St. The victim later heard someone who he could not identify start up his car and drive away. A short time later, Brian Washington was observed driving the car on St. Clair Avenue. The vehicle _5_ Brian Washington - History of Offenses was recovered a short time later at East 118th Street and St. Clair Avenue. Washington was later arrested in connection to the above-described events. In between the time Washington had stolen the car and the time of his arrest, Washington had damaged the car. Washington was found to be responsible for the theft, damage, and abandonment of the vehicle. Washington was later indicted with two counts of grand theft of a motor vehicle.. The indictment was amended and Washington pleaded guilty to attempted grand theft auto, a felony of the fourth degree. Washington was sentenced to the Lorain Correctional Institution for a tenn of six months which ran concurrent to his conviction in CR-94-308847. CASE 8: CR-95-323890-^ ^riI 1.g I995 Assi ned tw. Thomas P'atrick. Curran's Courtroom . .. : , . .., v ^,^..,;. Charged with: 2913.51 FRECEItiâTNG S'rOL^N PROiF'ERTY-Mt3T(3R vFLHTCLE ^013.24 Pd§SE: SNG etik^MN-AL TOC;LS Patrol officers observed a passenger in a parked automobile drinking a beer. When the officers ran a record check on the automobile's license plates, they discovered that the car was listed on the officers' hot sheet. The car sped off shortly after the officers conducted the record check. Shortly thereafter, two occupants bailed out of the car while leaving it in gear. The two males were later discovered and apprehended by the officers. Washington had been the driver. On July 25, 1995, Washington pleaded guilty to the first count of the indictment, receiving stolen property (the motor vehicle), which is a felony of the third degree. Count two was nolled pursuant a plea agreement. Washington was sentenced to the Lorain Correctional Institution for one and one-half years. -6- Brian Washington - History of Offenses CASE 9: CR-95-329331-A August 8 1995 Assigned to: James Jo Sweene •Ys Courtroom Charged with: 12913,51 1 R€sCEIV€NG STOLE.-NPR.9,?%€.d.'^-Mf;bTOR'a+'E.HICLE 2921.331 1 FAI€,I..k'RE TO COMPLY W/ORDER-SIGNAL/OF POLICE OFFICER This marks Brian Washington's ninth case where he was convicted for receiving stolen property (a motor vehicle). - In the instant case, a radio report alerted patrol officers to the fact an automobile had been stolen. The autoniobile was sfolen near the intersection of East 13`h Street and St. Clair Avenue on August 8, 1995. A few minutes later, while at a stop sign, officers observed the stolen automobile travel southbound on East 79ih Street with two black, male occupants. The officers began following the car and confinned that the plates were registered to the stolen automobile. The officers then activated their lights and sirens and attempted to pull over the stolen vehicle. The driver of the stolen car did not comply with the officers and attempted to flee from the police. After a chase, the occupants of the stolen car pulled into a vacant lot, jumped out of the car, and proceeded to run on foot from the police officers. At this time, the officers began pursuing both suspects on foot. The officers successfully apprehended Brian Washington, who had been the stolen vehicle's driver. On November 16, 1995, Washington pleaded guilty to receiving stolen property (a motor vehicle) under count one of the indictment. In exchange for Washington's plea, count two was nolled. The Court then sentenced Washington to the Lorain Correction Institution for one year term, which was served concurrent with CR-95-323890. CASE 10: CR-97-347923-ZA January 23, 1997 Assigned to: Shirley Strickland Saffold's Courtroom 2913.5 1 RECEIVING STOLEN PROPERTY-MOTOR VEHICLE Charged with: _1.:^,:r., I :^W...,c.^^> •r^: :^. -7- Brian Washington - History of Offenses 29 23.24 POSS E^^ING CFUM1':^,V "I'0ot;S This is the tenth felony offense in Brian -Washington's history as a career criminal where ., , ,^. • . he was either convicted of stealing a motor vehicle or receiving a stolen motor vehicle. On January 23, 1997, the victim in this case reported that her 1984 Buick Century was stolen from the front of her home at approximately 11 p.m. The next day, patrol officers observed the stolen car based on their hot sheet. After the officers followed the car and confirmed that the vehicle was stolen, the car pulled into a driveway. Its lone occupant and driver, Brian Washington, exited the vehicle and attempted to flee. The police officers caught Washington and arrested him. When Washington was searched incident to his arrest, officers discovered a screwdriver in his sock and confiscated the item that Washington had used as a criminal tool. On April 7, 1997, Washington pleaded guilty to count one of the indictment for receiving.stolen property (a motor vehicle), which in this case was a felony of the fourth degree. Count two was nolled. Washington was sentenced to the Lorain Correction Institution for sixteen-months and fined $250.00. CASE tI: CRM97k349829-A 1°ylarch 11 1997 Assigned to: William J. Co neps Courkr°ooara. The facts leading to Washington's eleventh felony conviction are as follows: A patrol car's officers observed a vehicle matching the description of a recently stolen vehicle. The car was heading westbound on Broadway Avenue at a high rate of speed. The patrol officers began pursuing the car and confirmed that it was stolen. The officers then activated their lights and sirens. Rather than complying with the police officers clear signal that Washington should pull -8- Brian Washington- History of Offenses over, Washington attempted: to elude.the police officers. The chase ended when Washington drove the stolen car to a dead end street. Both passengers then attempted to escape on foot. . , . •. . ^., . ,,..• , , . , The female passenger was apprehended quickly. However, the pursuit of Washington lasted , . . ... • ...... , _ • ,• ^ longer and in fact Washington scaled a barbed wire fence before he was caught. Washington had a screwdriver on his person, which was confiscated as a criminal tool. The stolen car's steering column had been peeled back. On May 6, 1997, Washington pleaded guilty to.receiving stolen property under count one of the indictment, which was a felony of the fourth degree. He was sentenced to,tlie Lorain Correctional Institution for a term of twelve months which ran concurrent with CR 347929. CASE 12e CR.e98m367202-A July 23, 1998 Assa aied to: Frank D. CeIehrezze"s Courtroom. Although this case is Brian Washington's twelfth felony conviction, this is the first case in which police officers caught Washington in the act of attempting to steal a car. On July 23, L _ ...... , , ,, . . 1998, patrol officers in the Flats area of Cleveland observed Brian Washington and another ^,,. „ ;,i^_. .• ,,. man, sitting in what appeared to be Washington's car. Because nothing seemed out 'of place, the officers continued their patrol. Shortly thereafter, the officers saw Washington and his counterpart behaving strangely near a different vehicle. When the officers approached, Washington quickly stepped away from the vehicle. Due to this strange behavior, the officers decided to approach Washington and his accomplice. When the officers asked the two men how they had arrived downtown, Washington told the officers that they did not drive. Because the officers had witnessed the men inside another vehicle, they realized that Washington had not -9- Brian Washington - History of Offenses answered their questions truthfully. .The officers patted down both suspects and confiscated a screwdriver from Washington. _The officers -then proceededi to arrest,-the men. -When .the officers- began to inspect the..car in question, the owner of the car approached.the officers. The owner of the car informed the officers that he had left the car locked before he left the vehicle for a couple of hours. Upon further inspection, the police-officers discovered that the driver's door had been unlocked and that there was fresh damage found on the strip near the driver's door window. There were also marks around the steering column cowl. On December 7, A 998, Washington -pleaded, guilty- to ^attempted grand theft, a fifth degree felony, under count.one .of the indictment. In accordance with a plea agreement, the Court nolled the second count for possessing criminal tools. The Court later found that community control sanctions., would adequately. protect. the publicand„ sentenced Washington to eighteen months of community control sanctions: Less than five months after Washington was granted community controls 'sanctions which were supposed to have adequately protected the public, the Court found that Washington was in violation of his community control sanctions. For., this violation,,. Washington. ,.. was .sentenced .,. to ten. months . in. the Lorain Correctional Institution. CASE 13: CIt=999383266^^^ A-u ust 6 ,,_ 1999 _Assi rsed to= Frank D. Celebrezze's Courtroom Charged with: 2s25 l d PoSSESSIO WOF DRUGS This case was Brian Washington's first conviction where he was not charged for receiving a stolen motor vehicle, stealing a motor vehicle, or attempting to steal a motor vehicle. In -this matter,. an undercover officer' was investigating a.prostitution claim when.he observed -10- Brian Washington - History of Offenses suspected drug activity in the area of West 125`h Street and Church Avenue. Washington was observed walking back and forth near Church Avenue, stopping and talking to several people, one of whom was a known prostitute. The officer then observed Washington and another male leaning down in a doorway and saw that money was being counted. As the officer pulled around in his undercover vehicle, another male began yelling "Police." Washington and the other male then began to run away from the undercover vehicle. The officer ordered Washington to stop. Rather than complying with the police officer's order, Washington instead turned and ran westbound on Church Avenue. Another officer then pursued Washington and when Washington looked back at the police car, he ran into a metal garbage can. Washington knocked over the can and then fell down, landing on his hands and knees. Washington had dropped some money and a crack pipe while fleeing from the police officers. Officers noted in their police reports that 'Washington appeared highly intoxicated and under the influence of some type of narcotic. In connection with the above-described events, Washington pleaded guilty to possession of drugs under the only count of the indictment, a felony of the fifth degree. The Court determined that community control sanctions would adequately protect the public and sentenced him to four years of community control sanctions. CASE 14e CR-99-386042-A November ff 1999 Assi ned to: Frank D. Celebrezze's Courtroom -11- Brian Washington - History of Offenses On November 11, 1999, a victim reported his car stolen from a parking lot where he worked. Patrol, officers later observed a car that matched the description of the stolen vehicle. Furthermore, the pol•ice officers observed that. the Ariver of the stolen car had made several traffic violations. The officers began following the car and confirmed that it was stolen. The officers then followed the car to a gas station and approached the car's two passengers -before they re-entered the stolen car. The two men fled from the police and there was a brief foot pursuit. Washington was tackled and tried to swing his arms to avoid being handcuffed. Washington was found to have two screwdrivers in his possession when he was arrested. The steering colunm of the stolen car had been peeled back on the stolen vehicle. On March 10, 2000, Washington pleaded guilty to receiving stolen property; which was a felony of the fourth degree. The second count was nolled. Washington was sentenced to four years of community control sanctions, which ran concurrent to his sentence in CR-00-387592. Fourteen months after community control sanctions were imposed, Washington was.found in violation of those same sanctions. The Court then terminated his community control sanctions on June 6, 2001 CASE 15: ' CRw00-387592-^'aA Novernber 13 1999 Assi ned toe J~ranls.1c3. Celebrezze's Courtroaim On December 20, 1999, officers were dispatched to 13855 Superior Avenue to respond to a report that adult males were breaking into a vehicle. When the officers arrived, they observed male suspects occupying a gold colored Cadillac. Washington was seated in the -t.2- Brian Washington - History of Offenses driver's seat. Officers immediately apprehended Washington, and an unidentified male suspect successfully fled from the officers. The officers then observed that the steering column had been peeled, the radio had been removed from dashboard, and the glove compartment had been forced open. Furthermore, the driver's door lock had been damaged and there were two car speakers on the ground next to the Cadillac. The officers then arrested Washington. He was found to have a screwdriver on his person, which the officers confiscated. Washington later pleaded guilty to receiving stolen property (the motor vehicle). On recommendation from the State, the remaining charge for possessing criminal tools was dismissed. On April 12, 2000, the Court found that community control sanctions would adequately protect the public and sentenced him to serve four years of community control sanctions. As part of his community control sanctions, Washington was required to perform community service and was remanded to the county jail to participate in an in-patient drug treatment program with an out-patient aftercare program to follow. CASE 16b CR.-00-386507-ZA Janua 31, 2000 Assi ned to: Fran.k. D. Celebrezze's Courtroom ^------^------^DE^:.^ . ,.. - ^ 2^^.^2 ^A^t4^1+^G"Co^ECE-^;B^N;^P£^^1 ^€ShIL:€^k S ...... -----...... - This case arose from the same factual scenario described above in CR 00-386042. A 9mm handgun was found under the driver's seat of the car that Washington had been driving at the time of his arrest. -13- Brian Washington - History of Offenses In connection with these events, Brian Washington was arrested. He was later indicted with carrying an unloaded concealed weapon. Although Washington initially pleaded not guilty to •the charge, he, later retracted:•his plea and entered 'a plea of guilty •for , carrying a concealed weapon (the unloaded gun). The Court accepted Washington's guilty plea, found him guilty of the charge, and sentenced him to serve six months at the Cuyahoga County Jail. CASE 17: CR-00-401450-ZA December 7, 2000 Assigned to: Thontas J. Pokorny's Courtroom with: 2911.13 2 ;1,3.02 ATTEMPTED.GRAND:THEFT (Motor Vehicle) 2923.24 POSESSING CRIMINAL TOOLS Brian Washington was arrested in December of 2000 in connection with his seventeenth felony case. The facts leading to Washington's arrest are as follows: A witness looked out of his apartment window and observed two suspects casing cars in a rear parking lot. The witness informed an off-duty police officer in the apartment's lobby. The off-duty police officer then observed Washington prying the door lock of a 1985 Chevrolet. The officer placed Washington under arrest and confiscated a screwdriver which was in Washiiigton's possession. Upon further investigation, officers discovered damage to the passenger side, front door lock of the car. When Washington.was arrested, he acknowledged to the arresting officers that he was "getting too old for this silly stuf£" Despite the above-described facts, this case was later nolled in June of 2001 at the request of an assistant prosecuting attorney. -14- Brian Washington - History of Offenses CASE 18: CR-OI-400719-B December 7 20#I.0 Assigned toi Thoma.s J. Pokorn ss Courtroom Charged with: 2903.02 2905.91 KIDNAPPING :2911 1`..' AGGRAVATED ROBBERY ------€2ECEgVE sToLEiN PROPERTY=MoToR '4dEH €C 1..E In this case, Brian Washington actively participated in a murder, kidnapping, and , . .. . , . .., ^,,.., . robbery. Washington and his co-defendant, were riding in a car stolen by Washington. After Washington and his co-defendant spent the night drinking and getting high on crack cocaine, they became involved •in, a disagreement when they attempted to rob a drug dealer. Washington locked the doors-of the car to trap a drug dealer who was sitting in the backseat •with the victim. After Washington trapped the drug dealer in the backseat of the stolen car, Washington's accomplice stabbed and threatened the dealer with a sci•ewdriver, while demanding his drugs. Washington later drove the car away from the dealer's friend so that he could not help the dealer escape. The dealer then pulled a gun and as Washington's accomplice wrestled with the dealer for, the gun, the ^dealer was shot once in the foot and once in the chest by Washington's accomplice. The bullet that entered the victim's chest went through both of his lungs and his aorta. These wounds caused the victim to bleed to death. Washington did not assist the victim in any way after he was shot and instead fled the. scene. ,,, .. • . Washington was arrested on December 11, 2000. Approximately one month after his arrest, he was indicted for aggravated assault, abduction, aggravated robbery, and receiving stolen property (a motor vehicle). In June of 2001, Washington pleaded guilty pursuant to a negotiated plea agreement. In accordance with the agreement, Washington pleaded guilty to -15- Brian Washington - History of Offenses aggravated assault and abduction while the remaining charges were nolled. Following his convictions; the' 'Court iinposed a" prison term of_ six months. 'for each offense_to be served concurrently. The Court also imposed the maximum allowable term.of post-release.control to follow, Washington's' release from prison. Washington's accomplice was sentenced to life ;-. without parole eligibility for fifteen (15) -years for their heinous crimes.. - ., ..._- ^. CASE 19: CR-O1-414413-B September 22, 2001 Assigned to: Brian J. Corrigan's Courtroom.• This case led to Brian Washington's eleventh conviction for ieceiving stolen property of a motor vehicle. 'On September 22, 2001, Patrol officers observed Washington drivirig a stolen car, based on their hot sheet. Washington noticed the officers and accelerated quickly into a parkiing lot and exited the vehicle. Officers then ordered Washington into the vehicle- but he disregarded this instruction and begari to ruri away. At this point, another officer began to assist in the pursuit bf Biian Washington. After fleeing from the police, Washington was caught and arrested. Washington had damaged the stolen vehicle, a 1986 Oldsmobile, by peeling back the steering column, punching the door lock, and removing the radio: Based on these events, Brian Washington was arrested on September 22, 2001. The State indicted 'him with 'charges for receiving stolen property '(of the motor vehicle) and possessing criminal tools. Pursuant to a negotiated plea agreerrient, Washington pleaded guilty to receiving stolen property (of the motor vehicle) and the court nolled the charge for possessing -16- Brian Washington - History of Offenses criminal tools. The Court accepted Washington's guilty plea and sentenced him to one year at the Lorain Correctional Institution. CASE 20: CRA01a418718-ZA October.ll 12 December 1I. 2001 Assi ned toe Brian J. Conss CharSed with: 2921,33.11 .F,^^ ^JRE°T&C0^€^^ YoE Po€,I€ E oFFICER 2913.51 1ECEIVnN,^`v.STQLEN'EE.OEER"rY-MO7"s^^^^CLE 2923,24 EOSESSIN^ CRIMINAL TOOLS ------2913,51 REd;E'IV. 1NG STOLEN PROPERTY 2913.51 SECEIvIN. G STOLEN PROPERTY 2913.31 FORGERY U`€"rE^ING ------2.913.11 FORGERY 291331 'i3T!'ERrNG In his twentieth felony case, Washington attempted to cash a stolen check at a Keybank located on St. Clair Avenue. On that date, October 12, 2001, Washington was detained by security until police arrived. Further investigation revealed that the day before, October 11, 2001, Washington had presented another stoleri check to the teller of a Money Mart. When questioned by that teller about the veracity of the check,.Washington had fled from the store. On November 2, 2001, Keith Lusnia, the rightful holder of the checks that Washington had attempted to cash, made a statement to Cleveland Police officers. He indicated that his car had been parked near Cleveland State University for a couple hours on an earlier date. When Mr. Lusnia returned to the vehicle, he observed that the door had been unlocked and that the radio had been stolen. Additionally, a briefcase containing endorsed checks, including those that -17- Brian Washington - History of Offenses Washington had forged and attempted to cash, had been taken. Police determined that Washington was responsible for the ransacking of Mr. Lusnia's car and a warrant was issued for Washington's arrest. Brian Washington was later arrested on December 14, 2001. The State indicted him with two separate counts of forgery, two counts of uttering, three counts of receiving stolen ^ . , . property, one count of possessing"criminal tools, and one count of failure to corriply with an order or signal of a police officer. On March 14, 2002, Washington pleaded guilty to two counts of receiving stolen property and one count of forgery; the remaining charges were nolled. The Court accepted Washington's guilty, -pleas and found him guilty of all three charges. The Court imposed one year concurrent sentences for each offense. In addition, the Court imposed community control sanctions that were mandatory following Washington's term of imprisonment. CASE 21: CR-02-419059-ZA Aucust 15, 2001 Assigned to: Brian J. Corrigan's Courtroom Washington was observed in a high drug area of Cleveland, exchanging an item with an unidentified male in the middle of the street. The unidentified male was standing outside of the car that Washington was driving. Officers observed the transaction and concluded that it was likely that drugs were exchanged between the two men. After the exchange took place, Washington continued driving his car. Officers followed the car for approximately one block and then Washington parked the car in.a driveway and attempted to flee. Washington was pursued and caught by the officers. A screwdriver was found in his right front pocket. -18- :/. Brian Washington - History of Offenses Washington had deep cuts on his hands and forearms. He explained to the officers that he was injured from jumping over fences. In connection with the above-described events, Washington was arrested in August of 2001. He was later indicted for receiving stolen property (the motor vehicle) and possessing criminal tools. In April of 2002, Washington pleaded guilty to the charge of receiving stolen property (of the motor vehicle). On recommendation of the State, the charge for possessing criminal tools was nolled. At the sentencing hearing, the Court found that community control sanctions would adequately protect the public. The Court therefore imposed two years of community control sanctions that Washington was required to serve after completing his one year sentence in CR-01-414413. As part of his sanctions, Washington was required to receive drug treatment through the Salvation Army and follow all recommendations of his probation officer. Less than a year after community sanctions were imposed with the intention of adequately protecting the public, Brian Washington was again found in violation of his community control sanctions. On November 17, 2003, the Court ordered Washington's community control sanctions terminated and sentenced him to three years at the Lorain Correctional Institution. CASE 22: CR-02-432829-A December 26. 2002 Assigned to: Brian J. Corrigan's Courtroom Charged with: 2913.02 GRAND TT-IEF"r (of a motor vehicle) 2923.24 POSSESS^i6'CRf1vqNAL' TO®LS ,^^.. 2911.13 BREAKING AND ENTERING On December 26, 2002, Washington was convicted in his twenty-second felony case in Cuyahoga County. The victim in this case was the twenty-first victim of Brian Washington's -19- Brian Washington - History of Offenses extensive criminal career. The victim observed Washington steal his car and ride off with a woman in the passenger seat. The victim called police and reported the theft. Shortly thereafter, . police officers observed the stolen vehicle and stopped the driver. Washington was arrested. When officers searched the car following Washington's arrest, they discovered a screw driver on the floor by the driver's seat. Additionally, in similar fashion to many of Washington's prior criminal offenses, he had peeled the steering column on the car Washington pleaded not guilty to these charges on January 31, 2003. In April of 2003, the charges were nolled at the recommendation of the State. Upon further investigation, the State re-indicted this case under CR-03-433767. For any additional charges added to Washington's re-indictment; please see below. CASE 23. CR-03-433767-B December 26 2002 Assi ned to: Brian J. Corri anps Courtroom . . ,. ------Charged vr;t^ 49t3<^2 GFPAeIND THEFT (of amot€rr vehHc1e) 291102 txP_At+Tb T-H'E'F f (ot` amotoe vehacle) ...... : ...... , . . ..., . _.....,...: _.. . . 21911.43 ^^AKING AND ENTERING . . ...^--.'..;.:..,,....,•-...._, ..-..,...... 2911.13 ^^AMNr ,#N€7 ^13NTERING 1 2923 F°OSFSS€^^ CRIMrN.A,I. TOOLS A follow-up investigation of the crimes committed on December 26, 2002, revealed that Washington's crimes were more extensive than police officers initially knew. Further investigation revealed that Washington had actually been involved in a miniature crime spree. These crimes were all committed by Washington in the same course of conduct. Washington had been driving around all night with the female passenger with whom he was arrested, and another man, who was assisting him. He drove at least three cars during the course of the -20- Brian Washington,- History of Offenses evening, all of which were presumably stolen. The cars he drove included a Pontiac Grand Am, a Pontiac Bonneville, and a van. The Grand Am had been recovered by the time of the follow- up investigation, and its exterior was damaged, along with its steering column. In addition to the three (stolen) vehicles that witnesses had seen Washington drive, a Jeep Cherokee had been left, running and abandoned, near the place where one of the victim's cars had been stolen. This car was also presumably stolen by Washington as part of his crime spree. As a result.of this 'information, the case was re-indicted with the above charges. In this matter, Brian Washington was arrested on December 26, 2002. In February of 2003, Washington pleaded guilty to both charges of grand theft (of a motor vehicle); the remaining counts were nolled. In spite of the fact that Washington had presumably stolen three cars in one night, the Court found that community control sanctions would adequately protect the public. The. Court sentenced Washington to serve five years of community control sanctions. As part of his community control sanctions, Washington was required to submit to regular drug testing and follow all recommendations of Treatment Alternative to Street Crimes (TASC) case management. Approximately eight months after the Court found that community control sanctions would adequately protect the public, the Court found Washington in violation of the community control sanctions that had been imposed. The Court terminated Washington's community control sanctions and sentenced him to serve three years in the Lorain Correctional Institution. CASE 24: C.B.-II3-438452-A. Ma 16 20€i3 Assl ned to: Brian J. Corrigan's Courtroorn. -21- Brian Washington - History of Offenses E 2921:31 OBS(RUCTING OFF'ICIAL BUSlNESS In this case, Washington stole a vehicle from a parking lot. When the victim, Joe ;,^^^,_• -, ...... McDonough, saw his car a short time later and approached it, Washington entered the stolen automobile without consent and assaulted the victim with help from his co-defendant. The victim tried to grab the steering wheel through the driver's side window, and Brian Washington refused to stop at the victim's request, dragging the victim about 30 feet. Eventually the victim, Mr. McDonough, was thrown from the car by Washington's malicious driving. Mr. McDonough'then had to jump out of the way so that he would.not be hit when Washington sped away. Joe McDonough was left with nine 'stitches'in hi's left hand. The victim's injuries were so severe that he missed a month of work and had to give up his hobby of several years, playinl, the guitar, because 'of persistent pain caused by 'his irijuries. After Washington had assaultec, Joe McDonough and stolen his car, Washington willfully fled from police at high speeds. Police were successful in catching Brian Washington and arrested him on May 6, 2003. The State indicted Washington with four charges, including robbery, felonious assault, failure to comply with an order or signal of a police officer, and obstructing official business. Pursuant to a negotiated plea agreement, Washington pleaded guilty to count one for robbery, count two for felonious assault, and count three for failure to comply with an order/signal of a police officer; the charge of obstructing official business was nolled. At the sentencing hearing, the Court imposed a sentence of two years in Count one; two years in Count two; and one year in Count three. The sentences for counts one and two were ordered to run concurrently whereas the sentence for count three was ordered to run - consecutive to Washington's initial two year sentence. , ,., . . . ------...... -22------ ^ 1 I Brian Washington - History of Offenses CASE 254 CR-06-481985-A A ril 20 2006 Assi Med to: Lillian 1, Greene's Courtroom Com etenc Evaluation ordered Defendant deemed com etent Charged svith. AECEkVE STOLEN PROPERTY (MV) 2923.24 JPOS'BSS1N^ CRIMINAL TOOLS In Brian Washington's twenty-fifth felony case, he stole a victim's car from her place of occupation on April 20, 2006. The victim made a report to police that her car had been stolen. Two days later, patrol officers observed Washington driving the stolen vehicle with high beams on. The patrol officers ran the license plates of the car and confirmed that the vehicle was stolen. '. Washington. then pul-led -into a gas :station and exited the car. The officers approached Washington and requested that he. show .them his. driver's license. The officers arrested Washington when he informed the officers that he did not have a license. Following the arrest, officers inspected the car and discovered that Washington had stolen the vehicle using techniques consistent with his prior felony convictions. More specifically, officers observed that the steering column had been peeled back, there were no keys in the ignition, and there was a screwdriver on the seat. The State charged Washington with receiving stolen property (a motor vehicle) and possessing criminal tools. Pursuant to a negotiated plea agreement, Washington pleaded guilty to.receiving stolen property (a motor vehicle) and the charge of possessing criminal tools was dismissed. - The Court accepted Washington's guilty -plea and found that • community control sanctions would adequately protect the public. On November 3, 2006, the Court sentenced Brian Washington to two years of community control sanctions. The sanctions imposed by the Court required that Washington submit to regular drug testing, submit to random unrinalysis tests, and follow orders by his supervising probation officer. Exactly two months after -23- Brian Washington - History of Offenses Washington's sentencing hearing in this case, he was required to return to Court for a hearing concerriing aii :alleged ^.iolation` of 'the' co"mmunity. control: •sanctions! '' The Court' found that Washington had.failed to. report to his .probation_officer and that he. also had failed to_attend a 1 ^.nn., . Social Aetiology of Mental Illness Training Program (SAMI) as required by the terms of his community control sanctions. The Court therefore revoked his community control sanctions and sentenced him to a prison term of eleven months at the Lorain.Correctional Institution and an additional period of tlzi•ee years of community control sanctions to be served following his release from prison. . • ^ .: ^ . , . . .. , CASE 26: CR-07-502619-A September 30, 2007 Assianed to: Jose A. Villanueva's Courtroom (Mental Health Docket) : Charged with: '2911 Sl(A) RECEIVING STOLEN PROPERTY (MV) ..., ...... ^. .... r . .w:e ..'...... ^ .-.. . ^? .. i . . . : . :':. . .. A .^-.fl+.- . .: :. ,...:. . ^. ^ -. .._.... '. " ^ .: .^...... T .. _-._^_. ._... . :.. . :., ...^ ...... ^._.v..,^-..^ ,2923 _24(Al POSESSIlYG CRIMIIVAI TOOLS ,^ , ^ .. . . . Charles Lowe reported to police officers that his 1992 Buick Century was stolen from a street corner on September 30, 2007. Several days later on October 1, 2007, patrol officers noticed a Buick matching the description of Lowe's stolen vehicle. The driver of the stolen. vehicle was driving with the car's high beams turned on. Officers ran the plate number and confirmed that the observed car -was a match for Charles Lowe's stolen vehicle. Washington was driving the car and pulled it into a driveway. When the police approachedL the car, Washington jumped'out of the vehicle and 'ran' a'cross several'residential yards. 'He was later caught and arrested.' Wa:shington had a'screwdiivei in his possession when an:ested on October 1,2007. Less than a month after his arrest, Washington was indicted with receiving stolen property (a motor vehicle) and possessing criminal tools. In December of 2007, the Court . • . , , . . . I . , :-lk. 1 . , . . . • . . . -24- , , . . Brian Washington - History of Offenses ordered a competency evaluation of Brian Washington. The Court therefore referred Washington to the• court psychiatric clinic to make an evaluation of his competency•to stand trial. On February 14, 2008, the Court reviewed the report of the court psychiatric clinic and found that Brian Washington was in fact competent to stand trial. On that same day, Washington pleaded guilty to the charge of receiving stolen property (a motor vehicle) and possessing criminal tools. At the sentencing hearing, the Court found thatcommunity control sanctions would adequately protect the public. The Court imposed three years of community sanctions that required that Washington to submit to regular drug testing, obtain and maint.ain verifiable employment, and continue using mental health services. .,, . . . . -CASE-27: - CR-08-513027-A June 16; 2008 Assisned-to: Jose A. Villanueva's Courtroom (Mental Health Docket) . ,.,...... Charged with: 2911.13(A) BREAKING AND ENTERING 2913.02(A)( I) THEFT; AGGRAVATED THEFT In Brian Washington's twenty-seventh felony case, detectives noticed two black males loitering on a bridge near West 28`h Street and looking into vehicles. One of the males was Washington, who was observed holding a large black bag over his shoulder. The two males then went between two vehicles on Bridge Avenue and detectives heard glass breaking and a male yelling. Both male suspects were then seen running in the direction of the detectives, and both were carrying black bags. The detectives ordered the males to stop. Washington refused to comply with the detectives and instead he threw the bag he was carrying at the detectives. Property fell out of the bag when it hit the ground. The male suspects ran through yards and -25- 4 e . e Brian Washington - History of Offenses over fences. ' Police officers pursued both suspects and later apprehended Washington after they observed him hiding in.the bushes in front of a resident's home. - . 1 . ; . Washington was arrested and indicted for breaking and entering and theft. In October of 2008, he pleaded guilty to aggravated theft, a first degree misdemeanor. Pursuant to a negotiated plea agreement, the charge for breaking and entering was dismissed. At a sentencing hearing held in November of 2008, the Court determined that community control sanctions _ ...... , . a .. would adequately protect the public. Accordingly, the Court imposed community control . ,. , . „ , sanctions to run concurrently with CR-07-502619 until April 22, 2011. As part of his community control sanctions, Washington was required to submit to random drug testing, and pay court costs. Less than one year subsequent to the sentencing hearing, Brian Washington wa's'fequired'16return•to .court f®r:an alleged'violation of community control'sanctions. On a. . April 8, 2009, the Court found that Brian Washington had failed to report to the probation department as required by his community control sanctions. Accordingly, the Court found Brian Washington in violation in community control sanctions and sentenced him to serve six months of imprisonment in the Lorain Correctional Institution. CASE 28: CR-10-535298-B March 10, 2010 Assigned to: John D. Sutula's Courtroom (Mental1 0 -26- Brian Washington - History of Offenses Brian Washington, with the assistance of Clarence Harian, stole a vehicle at gunpoint. The vehicle• belonged -to Anthony Battle, a fellow.crack abuser, with whom Brian Washington. had been on a multi-week crack binge at the time the robbery and related crimes took place. Washington and Harian were in the victim's vehicle and Washington became angry, threatening him with a 9mm pistol and forcing him to exit the car. Harian and Washington were arrested on March 11, 2010, while driving in the victim's vehicle. Washington and his accomplice were in possession of a loaded 9mm pistol with the serial numbers filed from it, which was in the center console in between the two of them. Following his arrest, Washington was indicted with -charges of aggravated robbery; kidnapping, theft (of a motor vehicle), theft, defacing identification •ma.rks of firearm, and having weapons-,while under disability. The victim was d•isinterested in assisting the Prosecutors and was comfortable with any plea deal, which led to the low charges that were pleaded to. On February 3, 2011, Washington pleaded guilty to theft (of a motor vehicle) and amended charge of attempt to having weapons while under disability with 'forfeiture specifications. Pursuant to a negotiated plea agreement, the remaining charges for aggravated robbery, kidnapping, theft, defacing identification marks of firearm, were dismissed. At the sentencing hearing, the court found that community control sanctions would adequately protect the public and sentenced Washington to three years of community control sanctions. As part of hi's cominunity control sanctions, 'W'ashington was required to submit. to random drug testing, perform community. service, and maintain verifiable employment. On January 3, 2014, less than two years into his community control sanctions, Washington was required to attend a hearing for an alleged violation of his community controls sanctions. The probation violation arose from Washington's arrest on December 23, 2013, by -27- • 3 Brian Washington - History of Offenses members of the Cleveland Police Department. More specifically, Washington was arrested for a theft of items from a motor vehicle in the Ohio City, occurring in broad daylight on December 17, 2013. Washington was captured by a video camera breaking into the victim's vehicle and stealing items from within the car. Among the items taken were Christmas presents the victim had purchased for his family. On December 20, 2013, members of the Cleveland Police Department obtained and executed a search warrant of Washington's vehicle and residence. Several stolen items were found in Washington's vehicle. In addition, when Washington was interviewed by police officers, he admitted to the theft, and admitted to selling a GPS device stolen from the victim's vehicle. Based upon these events, the Court found that Washington had violated the terms of his community control sanctions and modified his community control by remanding him to serve sixty days in county jail and partake in an in-patient drug treatment program after the sixty days. -28- ...... 1d23/'^14 Messag ePriryter FrAm System, LEADS Received: 1/29/2014 11:56:46 AM To: Subject: DS(AIl Parts) Printed:1/29/2014 12:00:33 PM By: Photo Inf®r.rmtion BMVCUYPOD®O l . TXT DS.OH0I8013) REQUESTED SOCIAL SECURITY NUMBER IS NOT ON DATABASE LND LEADS TXT WW.OH018013A.. *MRI5585526..CUYPOD001. NO LEADS RECORDS FOUND MA.TCH]NG SEARCH CRITIaRIA ******END OF RECORD****** NCICCUYPOD001 TXT 1L010228, 5585526 OHOI8013A NO NCIC WANT **MESSAUE KEY QW SEARCHES WANTED PERSON FILE FELONY RECORDS REGARDLESS OF EX ITION AND MISD E OR RECORDS INDICATING POSSIBLE IN TERSTATE EXTRADITION FROM THE INQ Cx AGENCY S LOCATION. ALL OTHER NCIC PERSONS FILES ARE SE,ARCIED WITHOUT LiMITATIONS. UNLESS OTIiER.WISE NOTED, THIS LEADS THROUGHPUT IS EXEMPT FROM PUBLIC RECORDS REQUESTS PER ORC:149.43 AND OAC:4501:2-10-06. E^^1^lT I B https:J/rny.eris.cuyahogacxsunty:us/appslMessagieagfMessagePrirrter.aspx?MsgID=°1o 789%22 112 ...... 1/28/ro14 MessagePrinter :5585529 IN: # 114711 AT 29JAN2014 11:56:47 OUT: 0H018013A #679 AT 29JAN2014 11:56:47 0^14 ° e ue-s-t- ,L DS"..,mmmmmm • .. ^,^n• . CONFIDEN'ITAL This information is restricted to the use of duly authorized law enforcement or c°' justice agencies for ad tration of c l justice. r:.. .:^,. . .^ .-. ,., • . e v ^ https://rny.cris.cuyahogacounty.Lts/apps/M essag ing/Messag ePrinler.aspxC?Msg ID=%®2225208789%22 212 1/29(2014 SocialSecurit^6earch ^UbR114 Social S ,curity Search =a PRINT this eage Y • s , GoAgency Ba c6c File . • , Socia6 Retrest, Security Partiai SearchB Number 3r WASHINGTON, MB RECEIVE Arrest 1994/06/08 CP9400612 BRIAN 1968/08/31 STOLEN ARR VEHICLE WASHINGTON, MB RECEIVE Arrest 1994/05/18 CP9400595 BRIAN 1968/08/31 'TOLEN ARR VEHICLE L ^ 1 4 https:llrrryccris.cu}ehogacounty:us/A,ppslSuperSearchaslSpcialS®curitySearch.asp)l?DSSQC=5E6752M 9t9 1/29/2014 MessagePrinter Fa-om: System, LEADS Received: 1/29/2014 11:5 $ 52 AM To: Subject:._QRSID/B295.602.PUR/C.ATN/MCCaIN'TYT - (Parts 43 of4. Printed:1/29/2014 12:00:54 PM GfbYPOD.001'•.: TXT EL010228,MRI5586490 OH0].8013A k THIS INTERSTATE IDENTIFICATION INDEX RESPONSE IS THE RESULT OF YOUR RECORD REQUEST FOR S•ID/OHB29560:2'•IINDIVIDUAL S RECORD WILL BE COMPLETE WHEN ALL RESPONSES ARE RECEIVED FROM THE FOLLOWING SOURCES: CALIFORNIA - STATE ID/CA10516571 AN ADDITIONAL RECORD MAY BE OBTAINED FROM FILES WITHIN YOUR STATE. END . . _ i T.XT .. EL010228,MRI5586493 OH018013A THIS INTERSTATE IDENTIFICATION INDEX RESPONSE IS-THE RESULT OF YOUR RECORD REQUEST FOR FBI/^. INDIVIDUAL S RECORD WILL BE COMPLETE WHEN ALL RESPONSES ARE RECEIVED FROM THE FOLLOWING SOURCES: CAL'fFORNIA - STATE ID/C AN ADDITIONAL RECORD MAY BE OBTAINED FROM FILES WITHIN YOUR STATE. END TXT. ______-_--__.-_____.-_---ammmm-mmmanmmmmmmamm-.mmm-..-m-.w-dmmmm_-__w STATE OF OF3IO, OFFICE OF THE ATTORNEY GENERAL BUREAU OF CRIMINAL IDENTIFICATION & INVESTIGATION (OHBCIO000) P.O. BOX 365, LONDON, OHI0.43140 VALIDATED CRIMINAL HISTORY RECORD: DRE/1989AUG15 DLU/2013DEC27 QRO PUR/C -i0H018013A REQ/MCGINTYT DATE/2014JAN29 TIME/11:58:00 ------WARNING: APPROACH WITH CAUTION DNA IS REGISTERED IN THE OHIO DNA OFFENDER DATABANK ------BCI/B295602 NAM/WASHINGTON, BRIAN KEITH POB/OH AGE/45 DOB/1968AUG31 SEX/M RAC/B HGT/507 WGT/218' EYE/BRO HAI/BLK SMT/SC L EYE FBI/860868KA4 556752990 HFP/16M 11 R 010 14 FPC/PM 66 PI PO 14 MNU/AN-3268 L 28 W OII 14 18 PO PI PI 14 ICO/TAT DAWG LKA/511 E 118 CLEVELAND OH HCC/060 FLG/MLC M=MULTISTATE L=LOADED-III C=CAUTION CVF/N EVF/N HVF/N RSO/N FCF/Y HGF/C https:llmy.cris.cu)ehogacounty.us/apps/Ivl essag inglMessag ePrinter.aspxCtMsg ID=26208811 1/26 1/292014 MessagePrir4er **"''ADDITIONAL IDENTIFICATION DATA ------CONVICTED ON FELONY CHARGE AKA/WASHINGTON, BRIAN WASHINGTON, BRIAN K WASHINGTON, BRIAN K WASHINGTON, BRIAN K WASHINGTON, BRIAN K WASHINGTON, BRIAN K ^.c'• ._ „ ^=.•.-,. • TXT •WASHIIVGTON,' BRIN KEITH DOB/1968AUG13 1'958AUG31 MNU/AN-13643 AN-160334 AN-206962 AN-94823 AN-9913 CF-242232 CF-259398 CF-292937 CF-340211 AN-0160334 AN-9930679 AN-199944044 CF-387593 AN-200048069 AN-15194 AN-200147862 CF-424952 AN-200247314 AN-200316197 AN-200316372 CF-454608 AN-200650195 AN-200725836 AN-200728952 AN-200818162 CF-564023 AN-201006657 AN-201027979 DL-OHPT761781 AN-0000594705 AN-0000600832 SMT/TAT R ARM TAT RF ARM PRCD L EAR ***.SOME-INSTITUTIONAL DATA MAY NOT BE COMPUTERIZED *** CONTACT BCI BY TTY (OHBCIO000) FOR FURTHER INFORMATION *** CYCLE/01 DOA/1989MAR16 'SEQ/Ol ------DRE/1989AUG15 DLU/1991MAY21 ARREST .AGENCY/0H0431300 WILLOUGHBY HILLS PD ARREST#/3268 O1/POSS OF CRIM TOOLS DOO/1989MAR16 2923.24 EAG/OHBCI0000 JUDICIAL 01/POSSESSION OF CRIMINAL TOOLS CDD/1989JUL25 TXT DISP/CONVICTED CONFINEMENT/30D EAG/OHBCI0000 /1991MAY21 CYCLE/02 DOA/1991APR14 SEQ/01 ------DRE/1991MAY21 DLU/1995MAR29 ARREST AGENCY/OHCLP0000 CLEVELAND PD ARREST#/206962 ANA/WASHINGTON,BRIN KEITH 01/RECEIVING STOLEN PROPERTY 2803 DOO/1991APR14 2913.51 EAG/OHBCI0000 /19910CT29 ADD/080391 SO CUY CR266107 AN-160334 RSPMV, 080791 SO JUDICIAL 01/RECEIVING STOLEN PROPERTY CDD/19910CT17 PROVISIONS/COURT COST DISP/CONVICTED CONFINEMENT/1Y EAG/OHBCI0029 /1995MAR29 CYCLE/03 DOA/1991MAY07 SEQ/01 ------DRE/1991JUN18 DLU/1991JUN18 ARREST AGENCY/OH0181500 CLEVELAND HTS PD ARREST#/13643 https://my.cris.cuyahogxounty.us/apps/M essag ing/M essag ePrinter.asp)l?M sg ID=26208811 2126 1/29/2014 MessagePrinter TXT 01/RECEIVING STOLEN PROPERTY (AUTO) D0O/1991MAY07 EAG/OHBCI0000 02/POSSESSION OF CRIMINAL TOOLS DOO/1991MAY07 EAG/OHBCI0000 _ .... ._ --- , .'.., ^ _ . . CYCLE/04 DOA/1991AUG03 SEQ/01 ------DRE/1991SEP11 DLU/1 CT29 ARREST AGENCY/OH0180002 SO CUYAHOGA AR /160334 01/FAILURE COMPLY POLICE EAG/OHBCI0000 991OCT29 2921.331 C) ADD/CR266107, 080791 SO OO^ I VJ CYCLE/05 DOA/1991AUG07 SEQ/01 =------DRE/19 29 DLU/19910CT29 ARREST AGENCY/OH0180002 SO CUYAHOGA ARREST#/160334 01/GRAND THEFT MOTOR VEHICLE EAG/OHBCI 2913.02 ^ ADD/CR267431 c^o^ TXT CYCLE/06 DOA/19910CT24 SEQ/01 ^------DRE/1992SEP22 DLU/1992SEP22 ARREST ^ 01/INSTITUTION DATA RECEIVES EAG/OHBCI0015 /1992SEP22 JUDICIAL 4 01/RSP (MV) F3 C? DISP/CONVICTED, 2913-51 ^('^1 CONFINEMENT/lY PROVISIONS/CR26610f„`C.IT1'AHOGA CO EAG/OHBCI0015 /1992SEP22 02/THEFT (MV) F DISP/CONVICTED 2913.02 ^ CONFINEMENT/lY PROVISIONS/C _ RENT EAG/OHBCID015 /1992SEP22 C 67431, CUYAHOGA CO CUSTODY - $i7$rERVISION 01/R D- 242232 AGEN/^^^^047025C LORAIN CORR INST GRAFTON (LORCI) STA^^ATE/1991OCT29 EAG/OHBCI0015 / 1992SEP22 `0^7iPAROLED- ^GENCY/OH023035C SOUTHEASTERN CORR INST LANCASTER (SCI) ^START DATE/1992APR24 EAG/OHBCI0015 / 1992SEP22 ^:. ..._ . httpsJ/my.cris.cuyahog acounty.iu/apps/M essag ing/Messag ePrinter.aspC?Msg ID=26206811 W6 1/29/2014 Messag ePri nter TXT' 03/DISCHARG CRIM JUST SYS- FINAL RELEASE AGENCY/OH023035C SOUTHEASTERN CORR INST LANCASTER (SCI) START DATE/1992JUL22 EAG/OHBCI0015 /1992SEP22 pO^ CYCLE/07 DOA/1992JUL04 SEQ/01 ------DRE/1992SEP22 DLU/19920CT26 ARREST AGENCY/0H0181800 EUCLID PD ARREST#/9 01/RSP MTR VEH DOO/1992JUL04 2913.51A EAG/OHBCI0015 /1992SEP22 A ADD/PENDING JUDICIAL O1/ATT RSP CDD/1992JUL07 PROVISIONS/CREDITED WITH TIME SERVED DISP/CONVICTED LESSER ENSE ' CR284917 CONFINEMENT/6M EAG/OHBCI0024^oty CT26 - CYCLE/08 DOA/1992AUG25 SEQ/01 ------DRE/ OV19 DLU/1992NOV19 ARREST AGENCY/OH0180002 SO CUYAHOGA ARREST#/160334 TXT ^ 01/RECEIVING STOLEN PROPERTY MOTOR AGTOHBCI0008 /1992NOV19 VEHICLE ^ 2913.51 02/POSSESSION OF CRIMINAL TOOLS EAG/OHBCI0008 / 1992NOV19 2923.24 ADD/CR284917 CYCLE/09 DOA/1992SEP15 &/01 DRE/1992NOV19 DLU/1994AUG16 ARREST . 01/INSTITUTION DATk+IVED EAG/OHBC10008 /1992NOV19 JUDICIAL O1/ATT RSP MV DISP/CONVICTED 2913.51 CONFINEMENT/6M PROVISIONS/C^84917 CUY CO EAG/OHBCI00.08 /1992NOV19 CUSTODY SERVISION 01/R D- 259398 AGEN 047025C LORAIN CORR INST GRAFTON (LORCI) STA ATE/1992SEP15 EAG/OHBCI0008 /1992NOV19 02/DISCHARG CRIM JUST SYS- EXP DEF SENT AGENCY/OH065015C PICKAWAY CORR INST (PCI) START DATE/1992NOV06 EAG/OHBCI0022 /1994AUG16 https://n-y.cris.cuyahDgacounty.us/apps/M essag inglMessag ePrinter.aspC?M sg ID =2620B811 4/26 1/29/2014 Messag ePri nter CYCLE/10 DOA/1994MAR28 SEQ/01 ITN/240333A DRE/1994AUG16 DLU/1994AUG16 O ^Z ARREST AGENCY/OH0180300 BEDFORD PD ARREST#/94823 01/UNAUTHORIZED USE OF A MOTOR D00/1994MAR28 VEHICLE EAG/OHBCI0022 /1994AUG16 CYCLE/11 DOA/1994MAY03 SEQ/01 ITN/309771A DRE/1994AUG16 DLU/1994 ARREST AGENCY/OHCLP0000 CLEVELAND PD ARRESTE^SJ 6962 01/RECEIVING STOLEN PROPERTY 2803 DOO/1994MAY02 ^ 2913.51 EAG/OHBCI0022 /1994AUG1^ 0 bQ) CYCLE/12 DOA/1994JUN09 SEQ/01 ITN/366222A DRE/1994AUG ^LU/1994AUG16 ^ ARREST AGENCY/OH0180002 SO CUYAHOGA ARREST#/160334 TXT 01/GRAND THEFT MOTOR VEHICLE EAG/OH 2 /1994AUG16 CR#30884 ^V 2913.02 ^ 02/RECETVING STOLEN PROPERTY MOT G7OHBCI0022 / 1994AUG16 VEH CR#310525 ^ 2913.51 CYCLE/13 DOA/1994JUN24 SEQ/0 .l: N/365191A DRE/1995SEP07 DLU/1995SEP07 ARREST AGENCY/OH0180002 SO Aa^ A ARREST#/160334 O1/RECEIVING "STOLEN PROPEt ^ EAG/OHBCI0020 /1995SEP07 2913.51 02/POSSESSION CRIM T # EAG/OHBCI0020 /1995SEP07 2923.24 ADD/CR311959 CYCLE/14 D(dJ ^994JUL15 SEQ/01 DRE/1994AUG16 DLU/1994AUG16 ARREST 0o TXT 0 ^ NSTITUTION DATA RECEIVED EAG/OHBC10022 /1994AUG16 `- ICIAL 01/THEFT MOTOR VEHICLE F4 DISP/CONVICTED 2913.02A1 CONFINEMENT/lY PROVISIONS/CR308847 CUY CO EAG/OHBCI0022 /1994AUG16 https://rny.cris.cuyahog acainty. us/apps/Messag i ng /Messag ePri nter.aspx?M sg ID=26208811 5126 1/29/2014 M essag ePri nter CUSTODY - 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TO SERVE 36 MO(S) COMMUNITY CONTROLMUST PAY COST OO^ CYCLE/57 DOA/2010SEP21 SEQ/01 ITN/257765EX DRE/2010SEP29 DLU/2010SEP29 ^ ARREST AGENCY/OHCLP0000 CLEVELAND PD ARREST#/0160 0^ 01/RECEIVING STOLEN PROPERTY FEL EAG/OHBCIOOC2 /2010SEP29 ^ 2913.51 CYCLE/58 DOA/2012AUG06 SEQ/01 ITN/210816CC DRE/2012AUG13 D4 12AUG13 ARREST AGENCY/OHCLP0000 CLEVELAND PD ARRES'Z^r'/ 0000594705 ANA/WASHINGTON,BRIAN K 01/DOMESTIC VIOLENCE FEL EAG/OHBCIOOG5 /9 ^UG13 2919.25 CYCLE/59 DOA/20130CT28 SEQ/01 ITN/113382CD DR6^ OCT30 DLU/20130CT30 l:J TXT ARREST AGENCY/OHCLP0000 CLEVELAND PD n ARREST#/0000600832 ANA/WASHINGTON,BRIAN K 01/DOMESTIC VIOLENCE FEL /OHBCI00G8 /2013OCT30 2919.25 CYCLE/60 DOA/2013DEC24 SEQ/0 T N/320581EW DRE/2013DEC27 DLU/2013DEC27 ARREST AGENCY/OH0180000 CUYA^ 0 SO CLEVELAND ARREST#/0160334 ANA/WASHINGTON,BRIAN K 01/PROBATION VIOLATION F ^'535298 DISP/HELD 2951.08 ^ ^ EAG/OHBCIOOB1 /2013DEC27 WHERE DISPOSITIONS ARE 15^ ^§'HOWN - OR- FURTHER EXPLANATION OF A DISPOSITION OR CHARGE IS DESIRED,.^`E AE CONTACT THE CHARGING AGENCY OR COURT. THIS DATA, BASED ON RPRINT IDENTIFICATION BY BCI, IS ONLY TO BE USED FOR CRIMINAL JUSTICE PU ES AS DEFINED BY THE NCIC ADVISORY POLICY BOARD. *** NOTE: THIS IS LTI-SOURCE OFFENDER. MULTIPLE SOURCE INDICATES THAT AN INDIVIDUAL HAS CR NAL INFORMATION CONTAINED IN MULTIPLE SOURCES OR MAY HAVE CRIMINAL ARRES^IN MULTIPLE STATES. *END* ODQ TXT V ^ CR.CA I^ 00 09: 5 ^^]^ 29/2014 28194 09; Ol/29/2014 08193 OH018013A ^^/2L010228,.MRI5586490 \^N/MCGINTYT v********************** CRIMINAL HISTORY RECORD *********************** httpsl/rny.cris.cuyahog acounty.us/apps/M essag i ng /Messag ePri nter.asp^C?Msg ID=26208811 19/26 .:....::.i 1/28/2014 M essag ePrinter ° * r*^* t****+**** r r^^ r**** tt r* Introduction * ^ ***********^^ r*+^ xw***^*** This rap sheet was produced in response to the following request: State Id Number 10516571 O Purpose Code C Attention MCGINTYT The information in this rap sheet is subject to the following caveats: RESTRICTED - DO NOT USE FOR EMPLOYMENT, LICENSING, PLACEMENT OR CERTIFICATION PURPOSES (CA; 2014-01-29) *********** r* r******* t***** IDENTIFICATION *** ,r* r** c***^***** r***,^^*,r^ Subject Name(s) WASHINGTON, BRIAN KEITH Subject Description FBI Number State Id Number Social. Security Number Driver s License Number Sex Race Male Black Height Weight Date of Birth 5 07 190 1968-08-31 Hair Color Eye Color Black Brown Place of Birth Ethnicity OHIO Black Or African American Employment Occupation LABORER Employer *^#,r******^*****#t****^rr* CRIMINAL HIST®RY ^**+**+******tr*^*xrv*ar*r* i~'yUls J0^ ====^ 4_WW W._.^^W^_W. WWW:_ Earliest Event Date 1993-04-20 Arrest Date 1993-04-20 Arrest Case Number 93 1874 20193136 Arresting Agency CA0197500 CAPDWEST COVINA. Subject s Name WASHINGTON,BRIAN KEITH Comment(s) ARREST/DETAINED/CITED hitps://my.cris.ceWtwgacaunty.uslapps/Measag ing/MessagePrinter.asp)C?Msg ID= 11 2M 1/29/2014 MessagePrinter Cha!rge 1 Statute TAKE VEH W/O OWN CONSENT/VEH THEFT (10851 VC } State Offense Code 24053 Severity Felony OQq ,Charge 2 Statute BATTERY ( 242 PC State Offense Code 13045 Severity Misdemeanor Court Disposition (Cycle 001) Court Case Number 93M05314 Final Disposition Date 1993-04-22 s Court Agency CA019063J CAMCWEST COVINA Subject s Name WASHINGTON,BRIAN KEITH Charge 1 Charge Description 024 MONTH(S) PROBATION,003 DAY(S) JAIL C) Statute SEE COMMENT FOR CHARGE O ® State O ffense Code 66085 Severity Misdemeanor Disposition (CONVICTED-PROB/JAIL) Court Comment CNT 01 CHRG-415 PC Court Comment COURT ACTION Cycle 002 Earliest Event Date 1993-05-18 ^ ------^ ----_ Arrest Date 1993-05-18 Arrest Case Number 3538860 Arresting Agency CA0190000 CASOLOS AN L S Subject s Name WASHINGTON,BRIAN K Comment(s) ARREST/DETAINED/C,4 Charge 1 1^^%L'^/ Statute NO ARREST RECE https://my.cris.cuyahogacounty.us/apps/Messag ingMlessag ePri nter.aspx?MsglD=26208611 21/26 1/29/2014 MessagePrinter ^ubject s Name WASHINGTON,BRIAN KEITH Comment(s) ARREST/DETAINED/CITED Charge f^ Statute FORGERY (470 PC ) O^({^/^..^Jn State Offense Code 25006 Severity Felony ------Court Disposition (Cycle 003) ^ Court Case Number 93M05032 Final Disposition Date 1993-08-05 Court Agency CA019113J CAMCEL MONTE L:J Subject s Name WASHINGTON,BRIAN KEITH Charge ^ Statute FORGERY (470 PC State Offense Code 25006 Severity Unknown Disposition ( DISMISSED/FURTHERANCE OF JUSTICE) Charge 2 Statute FORGERY (470 PC ) ^OV State Offense Code 25006 Severity Misdemeanor Disposition ( CONVICTED-PROB/JAIL) Court Comment COURT ACTION ------Sentencing (Cycle 003) Sentence 015 DAYS JAIL; 024 MONTPROBATION; IMP SEN SS ********************** NON CRIMINAL INFORMA IOIV'v********************** ^ r** r***,r***,r r*** r**** r r r* INDEX OF AGEN ^*** r****** r* r******** r**** ^ Agency CAPDWEST COVIN.^EA0197500; ------A ------Agency CAS O LOS--A-_ ^^^S;-CA0190000; ------b ------Agency CAI %1W COVINA; CA019063J; ------=------Agency A'MCEL MONTE; CA019113J; * * * END OF RECO}. J * * TXT /1v CR.CAIIIO 09:58 01// 14 28195 09:58 Oll/, 2014 08194 OH018013A TXT .\. HDhR/ 228, MRI5586493 ATTYT **************** CRIMINAL-HISTORY RECORD *********************** Na************************* Introduction **************************** https://my.cris.cuyahog acounty.uslapps/M essag i ng/M essag ePri nter.asp:C?M sg ID =26208811 2026 172912014 MessagePrinter ^h:^s rap sheet was p'roduced Wn response to the following request.: State Id Number 10516571 Purpose Code c Attention MCGINTYT The information in this rap sheet is subject to the following caveats: RESTRICTED - DO NOT USE FOR EMPLOYMENT, 1,ICENSINO, PLACEMENT OR CERTIFICATION PURPOSES (CA; 2014-01-29) IDEN2"IF'ICP3'I`WDPv Subject Name(s) WASHINGTON, BRIAN KEITH Subject Description FBI Number State'Id Number r^^^ns ^ Social Security Number Driver a Lit.ense Number Sex Race Male Black Height Weight Date of Birth 5 07 190 1968-08-31 Hair Color Eye Color Black Brown Place of Birth Ethnicity 0HI0 Black Or African. Ameri.can. Employment Occupation LABORER Employer * r* r**** r*.* r,t r**** r**,r* r** CRIMINAL HISTORY ************ t t,r****+****** Cycle 001 Earliest Event Date 1993--04-20 ------__------_-_-----_-____------_------____----_--_.e_ Arrest Date 1993-04-20 Arrest Case Number 93 1874 20193136 Arresting Agency CA0197500 CAPDWEST COVINA Subject s Name WASHiNGaONrBRiAN KEITH womment (a) ARRESx,dDETAINEDt`CII'ED Charge 1 Statute TAKE VEH W10 OWN CONSENT,lVEH THEFT (10851 VC State Offense Code 24053 htlps:llrety:cris.ctryahogaemnly.tWapps6lviessaging/lalessagePirrter.aspa^?@Rsgl®=2b10891t 23126 1/2§I2014 MessagePrinter , • Severity Felony Charge 2 Statute BATTERY (242 PC State Offense Code 13045 ----Severi,.ty--Misdemeanor ------Court Disposition (Cycle 001) Court Case Number 93M05314 ^ Final Disposition Date 1993-04-22 Court Agency CA019063J CAMCWEST COVINA ^ • Subject s Name WASHINGTON,BRIAN KEITH ^ Charge 1 Charge Description 024 MONTH(S) PROBATION,003 DAY(S) JAIL Statute SEE COMMENT FOR CHARGE' () ^lJ State Offense Code 66085 ^ Severity Misdemeanor Q Disposition (CONVICTED-PROBIJAIL) Court Comment CNT 01 CHRG-415 PC dQV^ Court Comment COURT ACTION Cycle 002 Earliest Event Date 1993-05-18 ------Y--__-_------Arrest Date 1993-05-18 ^ Arrest Case Number 3538860 Arresting Agency CA0190000 CASOLOS ANGEL Subject s Name WASHINGTON,BRIAN KEITH Comment(s) ARREST/DETAINED/CITED Charge 1 Statute NO ARREST RECEIVED^, State Offense Code 00001 ^(V^/n Severity Other ^ Charge 2 Statute THEFT (484(A PC } State Offense Code 23099 Severity Misdemean•qQO ------4t^ ------=------Court Disposition (Cycl^L ) Court Case Number 93 Final Disposition Date 1 ^06-08 Court Agency 063J CAMCWEST COVINA Subject s Name ik HINGTON,BRIAN KEITH Charge Charge Descrip '^^ SEN-X36 MO PROB, 1 DS JI, FINE St^ e THEFT ( 484 (A) PC State Offense^ode 23099 erity Misdemeanor D^T^^ ition (CONVICTED-PROB/JAIL) Court t q'h^nt COURT ACTION ^------=== Cycle 003 Earl iest6l-iint Date 1993-08-03 ______Arre oate 1993-08-03 Ar -e Case Number 3633504 20193136 ting Agency CA0190000 CASOLOS ANGELES ^S^ ject s Name WASHINGTON,BRIAN KEITH `C^omment(s) ARREST/DETAINED/CITED ^Charge 1 https:/hry.cris.cuydhogacounty.us/apps/Messag i ng/M essag ePri nter.asp?Msg ID=26208811 2Q6 1/2$/2()14 M essag ePrinter Statute FORGERY (470 PC State Offense Code 25006 Severi,ty Felony ______-----__-_-__----_-__-____--_-______----_-____--___-- Court Disposition (Cycle 003) Court Case Number 93M05032 ^ Final Disposition Date 1993-08-05 Court Agency CA019113J CAMCEL MONTE 0^ ^ Subject s Name WASHINGTON,BRIAN KEITH Charge 1 ^ Statute FORGERY (470 PC ^ State Offense Code 25006 S eve r i.t-y Unknown Disposition ( DISMISSED/FURTHERANCE OF JUSTICE) OlJ Charge 2 . Statute FORGERY (470 PC Q) State Offense Code 25006 ' ,.. .. .• ::.: Severity Misdemeanor OOv,VJ Disposition (CONVICTED-PROB/JAIL) Court Comment COURT ACTION ---- ^` _\-v------Sentencing (Cycle 003) Sentence 015 DAYS JAIL; 024 MONTHS PRO$AA ON; IMP SEN SS **.******************** NON-CRIMINAL INFORMATIO l7^****************** ************************* INDEX OF AGENCIES z(*°^^********************** Agency CAPDWEST COVINA; C Q 7500; ------^------Agency CASOLOS ANGELE^A0190000; ------Agency CAMCWEST^CQ371I ; CA019063J; ------^------Agency CA^ONTE; CA019113J; * * * END OF RECORD * * ^*O VV UNLESS OTHERWISE NO THIS LEADS THROUGHPUT IS EXEMPT FROM PUBLIC RECORDS REQUESTS PER ORC: 43 AND OAC:4501:2-10-06. MRI: 5586564 IN: #9530 ^l•^9JAN2014 11:58:01 OUT: OH01 ^.^^_J#741 AT 29JAN2014 11:58:02 Origmal st QR.S 95602.PUR/C.ATN/MCGINTYT.RSN/139383 NFIDENTIAL ^ infomration is restricted to the use of duly authorized law enfarcement or crurrinal justice agencies for https://rny.cris.cuyahogacounty.us/apps/M essag i ng/Messag ePrinter.aspK?AAsg ID=26208811 }%, 1/29/2014 MessagePrinter , atim*istration of craninal jastice. b I yv oD^^ ^^OOb https://my.cri s.cuyahog acounty.us/apps/M essag i ng /Messag ePri nter.asp)C?M sg ID=26208811 26/26 tl 7 % .1. 1 2 THE STATE OF OHIO, 3 )SS JOHN D. SUTULA, J. 4 COUNTY OF CUYAHOGA.) 5 6 IN THE COURT OF COMMON PLEAS 7 CRIMINAL DIVISION 8 THE STATE OF OHIO, 9 Pla^.ntif,f , 10 -v- CR-535298-A & B 11 CLARENCE K. HARIAN AND BRIAN K..WASHINGTON, 12 Defendants. 13 14 DEFENDANT°S TRANSCRIPT OF PROCEEDINGS 15 16 APPEARANCES: 17 TIMOTHY J. McGINTY, ESQ., Prosecuting 18 Attorney, by: MAXWELL M. MARTIN ESQ., Asslstant County Prosecutor, 19 on behalf of the Plaintiff; 20 KEVIN CAFFERKEY, ESQ., 21 RICHARD NEFF, ESQ., on behalf of the Defendants. 22 23 24 Jeniffer L. Tokar Official Court Reporter 25 Cuyahoga County, Oh^o C ♦ Y'z 4 2 1 'THE STATE OF OHIO, 2 SS: JOHN D. SUTULA, J. ,COUNTY OF CUYAHOGA. 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHTO, 6 Plai ntiff^'f , 7 ..V_ ) CR-535298-A & B 8 ._ . ) CLARENCE K. HARIAN AND 9 BRIAN K. WASHINGTON, 10 Defendants. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 13 14 15 BE IT REMEMBERED, that at the JANUARY 16. A.D., 2011 term of said Court, to-wit, 17 commencing on THURSDAY, MARCH 3, 2011, this 18 cause came on to be heard before the Honorable .19 JOHN D. SUTULA, in Courtroom No. 23-.B, Courts 20 Tower, Justice Center, Cleveland, Ohio, upon 21 the indictment filed heretofore. 22 23 24 2:5- Q 9 C-v 4 3 1 2 THURSDAY, MARCH 3, 2 0 11 3 MORNING.,SESSION 4 5 THE COURT: All r ^ ghte 6 We' re here on the case of State of Ohio versus 7 Brian Washington. Mr. Washington had ^ previously pled guilty to two counts of theft 9 of a motur veh.icl2;- felony of the 4th degree 10 and attempted having ^eapan- und^r disability, 11 felony of the 4th degree,. 12 At that time,- he was represented-by 13 Attorney Richard Agopian. Mr. Agopian is a 14 well-known respected attorney. And, during is the course of the representations, there were 16 discussions about Mr. Washington entering a. 17 plea. And, based ^^on the discussions. that 18 Mr. Agopian had vuit^ the.Stat^ throuc^^ 19, assistant county prosecutor Max Martin and 20 with his client , Mr. Washington agreed to 21. partake in a plea. 22 Now, this is the same pl e a that was 23 offered to co-defendant Mr. Harian. And, Mr. 24 ^^^^^n has' accepted that plea. Mr. Harian is 25 represented by ^^^^rney- K^ ^ in Caff®rkey, wh,,-., ,•-, 4 1 is also well-respected, not quite as well as 2 Mr. Agopiaii6 --but a^:Ve.ry highly respect.e,d 3 4 attorney. And, the of f er to Mr. Harian and to 5 Mr. Washington ^^ a package deal is that.,both 6 had to plead. If one dl dn' t pl ead , the plea -- 7 was not offered to the other independently; is 8 that ca^rrect, _ Mr a-Martin? . 9 MR-, MARTIN: . . "I`hat '• s c orrect p 10 11 THE COURT: All right. So 12 now ^e have a sl tuat ion^where it is my- 13 understanc^ing Mr.. Harian is here with counsel 14 Mr. Cafferkey and that Mr. Harian still wants 15 to proceed with the plea. 16 MR. CAFFERKEY: That's correct. 17 We. want --t'o go-rlght. into sentencing. 18 s, .i • THE _COtJRTo Mr., Washington, 19 while . still represented by Attorney ^^^hard 20 Agopian, has. f 11^^ a motion to withdraw the 21 p3ea pro sea Now, this is done at the time 22 that he had court-appointed counsel. And, Mr. 23 Martin has given the Court a case, recent case 24 from the 8th District Court of Appeals. If 25 youY-hand -that . to .me;: .a^ai.r^^ sir. ------ 5 1 This is a case of State of Ohio 2 versus Jose Pizarro. It' s cited as 2011 Ohio 3 611 or: 2a11 Ohio appeal LEXIS 564. It was 4 journalized February 10th of this year. 5 And, the Court in that case, it' s 6 very similar to this, indicates that the Ohio 7 Supreme Court,is prohibited by representations, 8 that is a combination of pro se 9 representations along with the assistance of 10 11 And further, a criminal Defendant has 12 the right to representation by counsel or to 13 proceed prb se with the assistance caf standby 14 counsel. However, these two rights are 15 independent of each other and may not be 16 asserted simultaneously. One who is 17 represented by counsel and who had. not moved 18 the Court to proceed pro se® may not act as 19 counsel on his own ^ehal f . 20 Mr. Pizarro goes on to say in t hi s 21 case, the Defendant, while represented by 22 counsel, unilaterally filed a pro se motion to 23 withdraw his plea. As previously set forth, 24 every basis of the motion was contradicted by 2 5 Defendant's statements -1 n the record. PJ4Xrfi^:`J/J/J/.`/:'"fr:Y.Jflfi:'-+':1i://J//1/lJf.`fH..:4Ti.?r:•-r^r.•-lfn..rrrr:'^-r:r.Ywiirruirrrwr«iiiww w r w w.:...... i...... -. . ...^r..-^__ ._.. Pa 7 6 1 While the motion indicated Defendant 2 d1d. not want his assigned attorney to- continue 3 to represent. Y^im, -he--did flbt ^sk . to proc-^ed 4 pro se. -The Defendant was.repr€^^ented by 5 counsel at the sentencing ^eari.ng, . who^ 6 addressed t^^ Court on Def endant. ° ^ behalf. 7 Furthermore, when Defendant 8 personally addressed the Court during the 9 sentencing h^ar1ng6 -hedld not ra1se the 10 matter nor any of the allegations he had made 1.1 in the pro se motion. 12 Had the Defendant filed a presentence 13 motion to - withdraw, not pro ^^ -motion t.hat was 14 filed, the law-would have required some type 15 of h^^^inge There i.s-no indication that 16 defense counsel was even awarethat Defenc^ant 17 had filed this motion. is Court' s denial of - the motion was 19 appropriate since it was not proper befcar'e the 20 Court. 21 So, -Mrq Agopian had previously f iled 22 a motion to withdraw that was granted. So at 23 the point we granted the motion to withdraw, 24 Mr. Washington did not have counsel. But, as 25 ^^ora.-^as-ithe Court allowed Mr,4:^ Agopian to n. « 7 ^ withdraw, the Court appointed attorney Richard 2 Nef,f , who .is as highly ^^spected- a^ any other 3 counsel here, to represent Mr. Washlngt.ono ; 4 Now, Mr a _ .Washingt^n has not filed a 5 motion, in itself, saying he' wants to proceed 6 7 So, to boil this down, Mr. a Washington, if you decide to withdraw your 9 plea, then the plea is not going to be offered 10 to Mr. Harian. 11 In order for me to entertain your 12 motion to withdraw your plea, your counsel, 13 you've been repr^^ented all along here,_ has to 14 j 9in in that motion. If, your ^our^^el does not 15 jbi^ in that motion, you then have the right 16 to ask,t.hat ycu be able to proceed pro-se,. . 17 which is without counsel. 18 Now, you just shook your head. v What 19 does tha^ ^ear^?-_ 20 DEFENDANT WASHINGTON: I can' t 21 proceed by myself? 22 THE COURT: Now, you' v^ had 23 two attorneys tell you what they believe, 24 based upon their professional judgements, 25 the 4L r, ^dlsca^^^^^^^ about t1h^ evidex^^^ ^ ^available Av 8 ^ to the county prosecutor and the State that 2 would be introduced 'at the time of trial, of 3 what the evidence will be. 4 You're facing charges that inv®lve, 5 aggravated robbery. That's a felony of the 6 I.st degree with o.ne and. thr^e-year firearm 7 specifications. That's a minimum term of, if 8 convicted., of 6 years in prison up to 13. years 9 prison. . You also have in there a notice of prior conviction specification which would 12 require'the Court, if f^^nd guilty of that, to 13 impose a prison term. 14 There is also an RVO spec that would 15 require the Court to consider whether to 16 impose an additional prison term on top of the 17 r^^ximump. in yearly increments, up to another 18 ten ^ears. Underst and `^ 20 DEFENDANT WASHII^GTON; Yes.. 21. THE COURT: Count 2 that 22 you're facing is kidnapping. That's a felony 23 of the 2nd degree, but I thinkthat would, 24 merge into the aggravated robbery. 25 . ;,And-then th^ro- is ^ou-nt of theft, q v P 9 ^ which would merge also4 And then there is 2 possessing firearm, viol.ation,of 2923.02. 3 That' s a felony of the 4th degree, 18 ^^nth.s, 4 Now, a plea has been-worked out, as I 5 understand. And, the'Court does not get 6 involved with these plea deals. These are 7 between the State and you or Mr. .. Harian. That 8 would invrolve two felonies of -the 4th d.egree-- 9 with a maximum prison term; possibly, if run 10 consecutive, of 36 months, 12 to 36 months: 11 Now, I have looked at the- PSI and you 12 do have a record° lnvolved here. 13 DEFENDANT WASHINGTON: Yes, sir. 14 THE COURT: Now, each of is your counsel has advised you the practicality, 16 in other words, the reasonableness of this 17 plea, how it furthers your interests. It 1€3 lessens the risk of substantial incarceration 19 to you 20 And, I d.can. B t know if you care about 21 that. I Understand you're protesting . 22 innocence here. You know, you always have the 23 right to go to trial. And, I .d.on' t care if 24 you do go to tr 1 al e I ' m here no matter wh^. t. 25 I try a 1ot,of -caseso It d^^sn' t. matter to me r^ e 10 ^ whether you go to trial or not. 2 :Y®u know, it doesn' t give-me more 3 work '^o do, any-thing l i.ke. fhaf . - ^ou " kn®w, -you 4 don't face a greater prison term just because s you go to trial. But, if you' re found guilty 6 of the robbery, a^^ravated robbery, with one 7 and three-yea.r firearm specific^ti©ns, : 8ome, of '=-.. . _ 8 that' ^ mandatory time. And, I would,be 9 ^^qui^ed, . if you' re-found guilty of a 10 three-year firearm specifi.cation, -T would b,e 11 required by law to impose three years on y^la9 12 If you' re found guilty of tY^o 13. aggravated robbery and the notice of prior ,4 conviction, I would be ^^quired.to impose at 15 least the minimum-sentence of three years 16 there for minimum sentence of six years when 17 you take into account the firearm 18 specification that is served prior to and 19 consecutive. All right. 20 So, you believe you' ^e innocenf. -a 21 Jury of 12 people may decide otherwise. I 22 understand your firm convicti©n. there and, 23 like I said, you have the right to go to 24 trial. Your counsel has advised you that 2 ^ there is a plea h^^^ t-hata ^^ou__know§. minimi zes ------ e L i 1 ^our exposure to a lengthy prison term. 2 You may still go to prison but may 3 mi-ni.mize the exposure tca a lengthy prison term 4 and, you know, take into account the evidence 5 that the State has versus the evidence that 6 you ° ^ be able to present if you wanted to 7 p.^^^ent. evidence, you d.on9 t^ have to, but - if 8 you do want_ tc^ present evidence and then 9 wei-ghinq those and then exercising their 10 professional judgement and advising you. 11 Now, I know that neither Mr. Agopian 12 nor Mr. Nef fwalks away from a fight or a 13 battle. They d:on e t do that to sell. their 14 clients down the river, anything like that. 15 You know, they're here to do the best for you 16 and sometimes the attorneys have to tell you 17 something that you don't want to 1^e'aro 18 You know, they're not going to tell 19 you you' re going to Di sneywor ld if it's not in 20 the cards. If they did, they wouldn't be 21 fulfilling their obligation as your lawyers, 22 because you need. to know the good as well as 23 t-he bad and probably even the bad more than 24 the good, in terms of what could happen during 25 the r^^^^^^^tClat.ion for you to make a-declslon-. p^p^'.^p'bYfiYYffflf!/JNffF,F/ffflFJlffffFfffF£ffFfffrllfffFffffrfrsrrrsrss^^urr^rsrs^i^i..d^r..rr^^^..iii.,..i ...... -..-.... . 12 Now, you have expressed that you 2 don't wantto proceed without ccunsel`^ 3 DEFENDANT WASHINGTON: Yes. 4 THE COURT: Mr. Neff has 5 ind^dated. previously, in some conversations 6 w^ 've had, that he does not feel that based 7 upon everything th.^t he's learned since.he' s 8 been on the case, that it' s- in your interests 9 to'proceed with a motion to withdraw yo'ur 10 plea , 11 Now, if you don't want to proceed 12 with counsel, then your motion to withdraw 13 your plea is not before the Court. It can 14 only be before the Court if you wanted to 15 proceed without counsel. 16 Do you understand everything I e ve 17 said? 18 DEFENDANT WASHINGTON: No. m9 THE COURT: You don' t 20 u^^erstand what. I p ve said? 21 DEFENDANT WASHINGTON: I have to 22 represent myself? You're saying, I have to 23 represent myself? 24 THE COURT: According to 25 ^^i,-) case, you know, ^^^c was from the 8th 13 District Court of Appeals which governs this, 2 particular court. They've spoken on this 3 particular issue and I am sort of in the 4 positibn where I have to follow what they say. 5 1 don't necessarily agree with that analysis, 6 but I have to follow it because I think you 7 may have a right to withdraw.your plea if you 8 want to. It may not be the wisest move.®n ^ your behalf, but you have the right to do so 10 if you want, if I find there is sufficient 11 reason to do lt. 12 Again, it's not the wisest thing. I 13 can't make you do smart things. I can't make 1-4 you do wise things; neither can y^ur att^^^ey. 15 But, he Can tell you whether something is wise _6- or not wise. And,.he,can tell you why it's wise or not. w.^ ^e and let you make that final 18 d^ ^ ^ sion. ' But, I can t el l you this, based 19 upon their experience, both Mr. Agopian's 20 experience and Mr. Nef f " s experience, Mr. Neff 21 was a prosecutor'here- f®r a long, long time. 22 Mr. Agopian has been a defense 23 attorney for a long, long time. They both 24 come to the same conclusion here. And, their 25 l®gal -experience l^ ^^ry- valuable, ^c^l.^ know, 14 2 3 here. You don °.t have people who_are learning 4 how to do their business on your case; all.- 5 righ.t"? They know how to do their business d. 6 all right? 7 And, you know, all I can say is:that, 8 you know, i t' s advice that if you had to,pay 9 for it, it would be pretty expensive advice 10 because these are two top notch attorneys. 11 They care about their clients rights and 1. 2 everything. All I can say.^ 13 If you want to proceed with your 14 motion, Mr. Neff has indicated to me that he 15 do es not believe lfi.' s in your interests and 16 that he r^^^s not want to join that ^^tion. 17 So, you' d.. hav^ to ask me to dismiss him. 18 You' d have to proceed pro se and.I would not, 19 at that point, appoint anybody else for you 20 because I think you' ve been in the ^^stem . 21 enough that you have handled more cases. than 22 most prosecutors and know what the garne' s 23 about, know what ' s going on here. 24 ^ou want to have conversation with 25 Mr.. Neff? f ` 0 15 1 DEFENDANT WASHINGTON: " Yes9 ,. 2 THE COURT: We'll take a 3 ^^eak, 4 (Thereupon a recess. was had.) 5 THE COURT: Mr. Washington 6 is back. 7 Mr. Nef f "? 8 MR. T^^FF-p Judge, giv^^ the 9 parameters, my C'lient does not want to 10 represerit° .h.imsel f a - That's the bottom line. He doesn't feel capable to represent himself. 12 And,..if -that' s the scenario here, that in 13 order to try the case, he' d have to represent 14 himsel f , that's not what he wants. 15 He has entered a plea. He has 16 entered his plea. He still has the mindset of 17 wanting to withdraw the plea, but he does not 1 8 want to represent himself. 19 THE.COURT : You do riot want 20 to-represent yourself? 21 DEFENDANT WASHINGTON: No, sir.. 22 THE COURT: You understand 23 Mr. Neff doesn't want to j oin in that motion? 24 ^EF^^DAiN`Z° WASHINGTON: Yes, sir. 25 ?T^^ COURT; So therefore the ------ d s 1 motio,n to Withdraw plea is not before the 2 Court. LTn^.erstand that? . 3 DEFENDANT WASHINGTON: Yes, sir9 4 THE COURT: .t her efore I ' m s not goi.ng- to consider it. I'm going to 6 proceed with sentencing. 7 MR. NEFF: Yes, Your Honor. 8 THE COURT: We're here for 9 sentencing; do you understand that? 10 DtFEN^ANT WASHINGTON: Yes, sir. 11 THE COURT: Al l . right. . 12 We're here t^day with, what we're going to do 13 in this fashion, we're going to, both these 14 gentlemen pled to the same offenses, so we'll 15 go through the basics of everything together. 16 MR. CAFFERKEYY Yes, Your Honor. 17 MR. I^EFF:' Yes. 18 THE" COURTq Present today is 19 Clarence Harian, represented by Kevin 20 Caffer,key--and Brian Washington, represented by 21 Richard Nef f'. Both gentlemen, on a previous 22 day in court, case number 535298, pled guilty 23 to theft of a motor vehicle in violation of 24 R^vi.se«^ Code Section 2913.02. That E s a felony 25 of the 4t.h- degree. They also pl.ec^ guilty to L¢S'^-:5-1 T / J'-'.^-:•».9ri.+:,r.,.?;::l.aT.tT::i:..^:^.rt4Ti,r^^rr.c^rr.l.t•IrJ•.'r.9.; zJ/; i-., r,-..^r^r+,/,rrrrlb/Jrrr//%/r.firrfr.:Mr r:rrrrr:rrrr:r.rrr»,.r.,.^ ,r.. ..,...... """""""""' ...... ^.^^., 1.7 ^ attempted having weapons under disability in 2 violation of Revised Code ^^ction 2923 ; 02 and 3 2 92 3 e 13, second felony for each individual. 4 Now, each of those two felonies of 5 the 4th degree.for each Defendant is 6 punishable by time of incarceration in prison 7 in monthly lncrer^^nts between 6 and 18 months ^ inclusive and./or fines up to $5,000 each. 9 These two offenses could run consecutive for 10 each Def^ndaCnt. And, in that event, the 11 potential sentence then is 12 months in prison 12 up to 36 months in prison, inclusive, in 13 monthly increments and/or a fine up to 14 $10,000. 15 Now, if the Court imposes a prison 16 term on either Defendant, upon the complet:on 17 of that term, the State of Ohio Adult Parole 18 Authority will have the choice and not this 19 Court, as to whether or not the State of Ohio 20 Adult Parole Authority will supervise°each 2'L Defendant urider what is called post-release 22 control for up to 3 years. 23 Now, if either Defendant were to fail 24 to meet the terms and conditions of the 25 post-release control supervi-sion:-lmposed upon 18 ^ h.im, - then the Adult Parole Authority can 2 modify and/or extend that Defendanf ^ ^ 3 ^^^^rvision, _make it more restrictive, 4 incarcerate that. Defendant for.up to one half 5 the ^enten^e imposed by the Court, charge that 6 Defendant with a new felony called escape, 7 another felony where he would face additional 8 prison time and if either Defendant were to 9 c®mmit a.ner crime while under post-release 10 contrcal p that Defendant would face the maximum 11 penalties under the Aaw for the new crime 12 commi t t ed. . 13 Now, prior to coming out on the bench 14 for each Defendant, I had the opportunity to 15 view th.e,. entire case file, the two individual 16 presentence investigation reports, Revised 17 Code,Section 2929.11 for the principles a.nd 18 purposes of sentencing, Revised Code Section 19 2929 o I2 -for the --seric^^sn^^s and recidivism 20 factors.anc^ ^^vised. Code Section 2929 , 13 and 21 other Revised Code sections f®r felony 22 sentencing of the 4th degree. 23 Representing the interests of the 24 State of Ohio for each Defendant is assistant 25 ^^unty ^^^^^cut.^r Max. Mart i n.o . . ------ e s e 19 1 Mr. Martin. 2 MR. MARTIN: Thank you, Your 3 Honor. Your Honor, the State is satisfied ta. 4 leave the sentencing decision within the 5 di^^^^ti®n of the Court. 6 THE COURT: One other thing 7 here. Mr. . Ha^iaxa. h^^ three cases which he' s 8 on community control to. the Cour ts 510116, 9 524553 and 532573 , 10 Mr. Martin. 11 MR. MARTIN: Yes; Your Honor. 12 As I stated, State is satisfied to ^eave the 13 ^^^^encing decision within ^^^ sound discretion of this Ct^^rt. Thank you. 16 THE. ^^UR`I' s . Thank you. Mr. 17 Cafferkey, on behalf of Mr. Harian. 1€3 MR. CAFFERKEY: Thank you, Your 19 Honor. Your Honor, I believe at trial what, 20 this Coutt wauld have learned is that Mr. 21 Washington had known the victim in this case 22 and had, f ^ r a 3 Q - day ^ ^ ^ ^ od, had been out 23 w i^ h him. And, what these guys are gui l ty of 24 is'smokin^ crack cocaine. They ^^rtai_nly did 25 ^hatq But, ^he had be with this victim, had ------ o. e 20 ^ actually taken the victim over to his house, 2 had fe d him dinner'. There was a- relatic^^shi.p 3 4 And-Mr. Harian, I think, joined in s that a little later in that three-day period. 6 The bottomline, there was no animosity 7 whatsoever. The vehicle was the vict,im' s-in 8 this case and these guys had the opportunity 9 to'use that ^ehitlev The victim didn't care. 10 And the reality is they were all friends. 11 And, to make a long story short, these guys 12 were found three days later in the same 13 vicinity as where the alleged theft of the 14 vehicle had taken place. 15 And I wcauld. point out, Judge, that 16' th.is is a situation and, at court, -we would 17 have shown that this victim has made police 18 -rep®rts on six different occasions, in a very short timeframe, that his vehicle was stolen. 20 And whether he' s doing that to collect 21 insutance, whether he was doing it because of 22 his employment situation, he had all these. 23 other issues of always saying his car's been 24 stolen, whether he's rentinq it out forr crack 2S cocaine or renting it to people who- use crack. 21 1 This is a known crack area in the 2 neigh^orhood,- Judge. The reality is they get 3 stopped and inside a compartment, between the. 4 two front,seats, compartment was closed, was 5 the gun that was involved in this case. 6 ^o Judge, clearly, my client knows 7 that Y^e was smoking crack cocaine. He ha^s an 8 addiction, -He' s now spent, Judge, almost 12 ^ months injail on this case. And, he' ^ been 10 worki'ng the.program in there, going to .FA 11 meet ings-and he°s doing what he can to make 12 sure that -he doesn't use when he gets out. 13 And, he has some things he would like 14 to tell this Court. 15 THE COURT: All right, thank 16 17 Mr. Harian. 18 DEFENDANT HARIANe Your Honor, while I've been here, I've been going tc^ -NA 20 a.nd. AA meetings. Also been having bible study 21 in my pod and having meetings every couple 22 days. So, if you give me treatment or 23 outpatient treatment, I would be more 24 appreciative. But, if-yc^^ gave me inpatient 25 treatmen t s if you--do_.the MDO program, it would ------ 22 1 take anot he r 2 THE COURT: I want to make a 3 pc^int.here; This,.-case was pled,w^ile t^^ j'ury .4 was being selected; is that correct? 5 M. MARTIN: Actually, a jury 6 was being selected. Then both Defendants 7 waived a jury, began a bench trial. There was 8 already some- testi.mony, s.ome evidence had been 9 presented. 10 THE COURT: All r1 ght . Very 11 12 Mr. Hari an, ^ 13 DEFENDANT HARIAN9 T' m done. 14 THE COURT: Mr. Nef f . is MR. NEFF: Judge, I would 16 join in Mr. Cafferkey's recitation of the 17 facts as we believe they would have presented 18 at trial. ^ 19 My client, Judge, at the time he , 20 entered. his.'plea f obviously, recc^^niz^d -he had 21 some exposure and wanted to 1-imit that 22 exposure and then did enter the plea. 23 The reason he filed his pro se 24 motion, I know that's not before the Court 25 ^ow; but I t^ ink; it -needs --to be.- tal^ed about. 23 ^ As he sat in the county jail here for the last 2 couple of weeks awaiting the sentencing, the 3 entry of the plea just didn't sit well with 4 him because he truly believed that he was 5 innocent of these acts. 6 Now, that being said, he has taken 7 responsibility. He knows he needs to face 8 those consequences. But, I think the Court 9 needs to take into consideration what really 10 and truly happened here. I don't know if you 11 would get any dispute from Mr. Martin that L 2 there was some sort of electronic tape. The 13 detective, in interviewing the Defendant, 14 acknowledged that he didn't believe the victim is here and that those police reports that Mr. 16 Cafferkey referred to all occurred in this 17 very same neighborhood, right around this 18 time. Several times, this vic.tim reported his i s car stolen. 20 My client, as well, has been in the 21 county jail for a significant amount of time. 2.2 Judge, he had stable housing out there he has 23 now lost. He has his personal property, his 24 birth certificate, everything he owns is being 25 held ^n storage at that apartment where he was 24 1 living... His landlord was gracious enough to 2 hold onto that stuff for himo ^ 3 ^^ , he just wants: to get home to-^ave. 4 everything that he. owns, because he dc^^sn' t ^ think that the landlord.' s going to hold onto ^ it much longer a If the Court saw f ^t to grant 7 him.community cont-rol ^anctionsp immediately 8 he would live with his grandmother on East 9 128th. So, he does havesomeplace to go. 10 But what he really, long-termo. would like to 11 do, is qet-back with ^^co^^fy Resources, get 12 his vouchers-and get stable on his own again. 13 I defer to him at this point.irx 14 making that plea to you as well. is THE COURT: Thank you. 16 Mr. Washington, what do you have to 17 say? 18 DEFENDANT WASHINGTON: Your T^onor, 19 as my attorney was saying, I lost ever^thing, 20 I had my apartment and I '.^^ been trying to 21 locate the- prrperty manager. 22 THE COURT: That-could 23 happen if you go on a how many day crack 24 cocaine binge? I mean, you could spend that 25 in a ma"-. ter of - ^^inutes; a.l l th^ ^ t-uf f ^ hat you 25 ------^ have, you know, you°d be selling stuff. z How old are you? 3 DEFENDANT WASHINGTON: 42. 4 THE COURT: How long have 5 . you been do.^ngthi^^ 6 DEFENDANT WASHINGTON: 20 years. 7 THE COURT : You know, where 8 are you? 9 DEFENDANT WASHINGTON: In jail. 10 THE COURT: Wel l , :what' did I i1 tell you? I) i d I tell you you 1^^^^ ^ ^ ^ stop? 12 Most people stop this young, by the time 13 theyp re 30. You' ^^ ^ til l at it 12 years 14 later. 15 Go ahead. 16 DEFENDANT WASHINGTON: Property 17 manager notified my grandmother. I 'talked. to 18 them. They said they can only hold it so much 19 longer. They would give me couple more days 20 to get it every time the trial date kept 21 changing. So, they was trying to get me a 22 little more time4 E^^rything I have is in 23 'there. I was hoping that you see fitto let 24 me,g® home so I can get my l i f^^^^k in order. 25 . MR. CAFFERKEY.: As to Mr. ------ 26 1 Harian, I would concur with Mr. Nef,f , Your 2 Honor, just highlight he would live with his 3 wife and that also, apparently, inpatient for 4 MDO is an eight-week wait to get in and. 5 outpatient is much easier to get into. 6 THE COURT: All right. With 7 regards, I think both people involved in thi^ ^ was pr^tty much the same. And, you know, 9 ^entlor^en, you made a complete mess of y6ur 10 lives. You know, you got maybe 25, 30 years 11 Ief t e And, ite s up to you whether or not the 12 rest of that is going- to be doing the same 13 thing, w1^ether or not ^ou' re going to be in ^4 orange on a regular basis. Most people stop 'L 5 this stuff. 16 Mr. Harian, I! ve been trying to work 1? wit1^ -you how long to ^et you to stop? 18 DEFENDANT HARIANo Almost three 19 y^ars,noUV, 20 THE COURT: Al l right. I'm 21 getting pretty tired. I'm getting tired of 22 helping you out of ^rison. And, this is your 23 last chance with me to stay out of pra_son. 24 You stumble, you screw up, you look the wrong 25 way Ca. IC. the w^ong- pe.-son, you don' t-, if some .,.1 ..:.,.:. . J.^c>sy:^.::::.».:.::.::::.».»...... y ^ P 27 1 guatcl at some facility says, go stand in that 2 bucket, of , ^rap over ^^e're, you don' t do it 3 right away, you're going to ^ri^one. 4 DEFENDANT HAdL I ANo .L G sq sir. 5 THE COURT: Understarld me? 6 DEFENDANT HARIAN: Yes, sir. 7 THE COURT: I mean, it' ^ ^ within their authority. to do it. '^^u don't do 9 it, you're going to prison. i V DEFENDANT HARIAN: Yes, sir. 11 THE COURT: -" I could probably 12 send you away ten years. 13 A,d ^ F EN1.JAN^ HAdi. IAN:. Y i.., sg ' si-fl_. s 14 THE COURT: I, ° l l give you ^s time in a minute4. Why give out a minimum 1 6 sentence when you do go. I try real hard 17 before you go to-give you the opportunity to 18 get stuff dflne. That's for both of you. 19 Understand me? 20 DEFENDANT HARIA.1V . Yes, sir. 21 THE COURT: All right. Now 22 both, again, I think you both have similar 23 responsibility in these acts. You have 24 simili-ar lengthy records. These p1ea^ were ttaken in ^id-trial o .. T "m going to sentence .. . ;.^;. ;; .. . ,: ..: .. ,------. a a 28 ^ each of you to 36 months of community conttol, 2 You're both going to be under- I^^ 3 supervision. You °-re going to do 300 hours 4 communityty work service each. Have random drug 5 testing. Each are going to be arrested if 6 positive or too dilute. Both enter and 7 complete inpatient drug treatr^^^tpr®grarn for 8 at. -1^east 120 days. And,. you' re both going- to- 9 ^e referred to the Cuyahoga County Cleveland 10 based correctional facil i ty for that program .1.1 ther.e9 If you're accepted into that program, 12 that ` s si:^ ^oln.ths. You're going to stay there 13 for six months. 14 You both have drug problems that go 15 back 2 0 years. 16 421 . DEFENDANT HARIANo. Your Honor, you 17 just sent me to treatment. I just completed 18 it as part of my bond. 19 I didn't use. You just sent me to 20 treatment. You released me. I had st-uf f with 21 me and they said. I was sober. 22 THE COURT: For that six 23 days you were sc^^er. 24 DEFENDANT I-ARIAN; Not six days. 25 '^ou^ got me out in Ma-v, I ^am^ back irn. ------ A - a • ...... 29 1 September and I was reporting to Miss Dunn in 2 the . prc^bation ^.epartmente I got all the 3 certificates for youo I've been cl^^n, 4 THE COURT: This happened 5 last year. The evidence was that you both 6 7 DEFENDANT HARIAN:, You let me- out, 8 Your Honor. You gave me a bond in May. You 9 gave me a bond. 10 THE COURT: That doesn't 11 mean I caft't sentence you. 12 DEFENDANT HARIAN; T ' m not saying 13 that, Your Honor. 14 MR. CAFFERKEY: Judge, I think 15 what he's trying to say, in the ^^^e-1-im since 16 that time when he was on the bender and now, 17 he has completed inpatient. . DEFENDANT HARIANe You sent me 19 inpatient. You gave me personal bond, 20 condition of inpatient treatment and I 21 completed. I sent you Certif ica^^ and I was 22 just, the new case. 23 THE COURT: What are you 24 doing here in your car? 25 ^^^ENDAN^° HARIAN: I had people in ♦ a ^ F 30 1 my car. They had =^ bag in my car that was 2 stolen,property from other cases. I didn't 3 use^no more drugs°af t^r you sent me-^o 4 treatment. Z'ha t' s what I was trying to tell 5 6 THE COURT: You're going for 7 additional treatment; all right? If you don't ^ want the,treatment, then I got one 9 aZt^rn'ative. 10 Which do you want? 11 DEFENDANT HARIAN; Treatment. 12 THE COL3RT ; You know, l et° ^ 13 put it this way. You're in a car and 14 everybody el^e-has a bag of dope, whatever, in 15 the car. And, you have a long rec©rd. Wha,t 16 8hould you have done if you're driving the 17 car? You stop at the stop sign; you say, get 18 out of my car. -If you're a passenger you say, 19 stop at the stop sign. I want- ^ ^ get out of ' 20 this car. That's what you do if you want to 21 show anybo dy else that you're free of drugs. 22 That's what you do. You don't sit in the car 23 while everybody else is doing drugs and say, 24 hey, what can I do? You have alternatives.. 25 And, .those. al^ernat1^^s are, things e e 31 1 that-are going to help you stay out of prison. 2 , .. . Mr e ^^^hington i do you thi^^ ^ ^nybody 3 el^evould buy into- some of that stuff? 4 DEFENDANT WASHINGTON: What stuf f ? 5 THE COURT: I ' m trying my 6 best. I p m-^^ying my best and I'll take some 7 extra garbage because I think t1^at I can try 8 to get^ -through some people and get them into 9 treatment and start them on the right path to 10 11 ^. 2 13 DEFENDANT HARTAN: I ' rn not saying 14 15 THE COURT: If you don't 16 understand the circumstances where you found 17 yourself before and where you found yourself 18 in this case and you still need treatment, 19 because you're only here because of what 20 happened. All right. 21 You. b-oth-are to enter and complete 22 the Thinking For'a Change Program. If you 23 violate, each will receive 18 months in prison 24 on each of the two feloni.es of the 4th degreee 25 rj"^^^^ will be consecutive to each other. ue e ^ d 32 1 That' s 36 months t^talk. o You' l-l both pay costs 2 and fees. Sheriff is going to transport you. 3 Hold on one second. Now, for Mr. 4 Ha.rian, do you admit these new.violations? ^ MR. CAFFERKEY: Yes, Your Honor. 6 THE COURT: He' s found in 7 violation on case number 510116, 524553 and 8 532573. If he violates again for the last 9 time, he' 1 l r'eceive 18 months bn 510116 and 524553, 36 montla.s e `T"hat' s 18 months on each 11. of the two felonies of the 4th degree. And, 12 in case number 532573, 12 months, all 13 ^ons I ecut ive. So, that' s 66 months. 66 months 14 there and then 36 months here. T^at' s '^otal 15 of 102 months, 8 and a halfyearsq I'll do 16 it, al l - ri^ht? No further violations, Mr. 17 Harian; understand? 18 DEFENDANT HARIANd Yes, I 19 understand . But, Your Honor 20 THE COURT: The f i^ ^ ^ ^^ ^ ^ 21 up that you do, if you don' ^ get in that 22 bucket when the guy tells you to get in that 23 bucket. 24 25 ------ 33 1 T; do as many_ of them ^s,necessary. , But, it's 2 n^ -way- I could go-to my wife, wai^^ ther^ to 3 get into here? It's going to be two.r^onthso 4 THE. COLTRTa You' r^ riding in 5 this car with thi ^ ^ guy f again, you know. Gun 6 in between his seats. You guys are going to 7 be riding around in that car again? 8 MR. CAFFERKEY: Thank you, Your 9 F^onor. 10 '^^^ COURT: Get your 11 opportunity to get clean, get clean for a good 12 while. 13 DEFENDANT HARTANo T ° v^ been 14 sitting in here a year. How clean can I get, 15 Your HOnor? I'm c 1ean o 16 MR. CAFFERKEY: Thank you, 17 Judge. 18 THE COURT: My f aul t? 19 MR. NEFF: Thank you, very 20 much ^ou^r Honor. 21 (Thereupon, Court was adj ourned , ) 22 23 24 25 ------__ ^ ^, 34 1 CE R T IF TC A T E 2 I,-«Jenieffer L. Tokar_, Official 3 Ccurt Reporter for the Court of Common 4 Pleas, Cuyahoga County, Ohio, do hereby 5 certify that as such ^^^^^te . r I tock down 6 in stenotype all of the proceedings had in 7 said Court of Common Pleas in the a above-enti.tled cause; that I have 9 transcribed my said stenotype notes into 10 typewritten form, as appears in the 11 fcregoing Transcript of Proceedings; that 12 said transcript is a complete record of the 13 proceedings had in the trial of said cause 14 and constitutes a true and correct i5 Transcript of Proceedings had therein. 16 17 18 19 20 ______d_-am____ 21 Jeniffer L. Tokar Official Court Reporter 22 Cuyahoga County, Ohio 23 24 25 ------ 1 .1 THE STATE OF OHIO, ) SS : JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA.) 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL BRANCH 5 THE STATE OF OHIO, 6 Plaa.ntiff, 7 vs. ) Case No. CR 535298 a BRIAN K. WASHINGTON, C/A No. 9 Defend.ant . 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS VOLUME 1 OF 1 VOLUME 12 13 APPEARANCES: 14 Lakisha Sharp, 15 on behalf of the Cuyahoga County Adult Probation Department; 16 Mark DeFranco, Esq., 17 on behalf of the Defendant. 18 19 20 21 22 23 Deborah L. Kracht, RMR 24 Official Court Reporter 25 Cuyahoga County, Ohio I EXHlOITD ffrnL...... e..:. . _s....__.:v.ra3.^. /J a F_..:J_Fi^ .ff:F.iw.frrsr ^ rr:arr.:aa.:^.»::..:.,...:a«....^ ...... 2 ] THE STATE.OF OHIO, SS: JOHN D._ SUTULA,._J.. COUNTY OF CUYAHOGA.) IN THE COURT OF COMMON PLEAS CRIMINAL..BRANCH c THE STATE OF OHIO, E Plaintiff, VS. Case No. CR 535298 -BRIAN.K. WASHINGTON, C/A No: 5 Defendant. I C 11 DEFENDANT°S TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED, that at the June A.D. 14 2011 Term of said Court, this cause came on to be 15 heard before the Honorable John D. sutula, in 16 Courtroom No. 23-B, The Justice Center, Cleveland, 17 Ohio, on Wednesday, August 24, 2011, upon the 18 indictment filed heretofore. 19 20 21 22 23 24 25 26 OFFICIAL COURT REPORTERS 3 ------1 WEDNESDAY AFTERNOON SESSION, AUGLJST 24, 2011 2 ^ HE COURT: All ra. ght . We're here in the 3 case of the-.State of Ohio versus-Hrian Washington. 4 This is case no. 53528 298. And we're here on a 5 "domr^unity control violation hearing. 6 Present is Mr. Washington, along with his 7 counsel, Mark DeFranco. Anc3: representing the 8 interests of the State of Ohio is probation officer, 9 Lakisha Sharp. 10 Miss Sharp. 11 MS. SHARP: Thank you, Your Honor. 12 Mr. Washington was sentenced on March the 13 3rd, 2011. He's before the Court-this day for his 14 first violation heari.ng. 15 On August 12, 2011, 1 r^ceived a phone call 16 from his case manager, Miss Wade, reporting some 17 incidents that had occurred with regards to his 18 disinterest in using his clothing voucher from the 19 Mental Health Board for clothing and hygiene. 20 On the return back to the agency, he was 21 allegedly belligerent and argumentative with her. 22 He subsequently left the agency with the 23 money. 24 She gave me a call. 25 I did contact him. He did return the money, OFF T CI AL COURT REPORTERS ...... •1•l/Ji•!{ii.•%^^fJ11/.Sf!»'ll:%f•/f+S'1/.f!::fX^:S%'fffffJ.i:•1.:'^•f.5•I.Y.arn.:.•....r.rrrrrr» rrrr.-.r.-^rsrrrrsrsrssrssrrrrrrrrrrrrrr. rrrrr r rr , .. .. . ^•••••• . ••.••^••• ^•^. 4 ------1 saying that he had. spent $3 of the mon.ey.' z told 2 him return whatever else he had not spent and then 3 we' l1 meet on the 15th of August to reconvene .to 4 address the aituatian.as a team. 5 During the meeting, unfortunately, it was 6 not very productive. He refused to take any 7 responsibility or apologize to Mib°s^-Wad®, He 8 refused to even address andjor speak or look aL. her. 9 And, subsequently, the meeting ended w? th 10 him actually returning the total of $26 that he actua.l ly.had took iaxstaad of the three. 12 We're before the Court on this c3ate-far 13 these alleged violations, - disrespectfu1 behavior 14 towards Recovery Res©urces staf f . 15 Thank you, Your Honor. 16 THE COURT: Mr. DeFranco. 1.7 MR. DeFRANCO: Thank you, Your Honor. 18 I've spoken to Mr. Washington. This really is a case that i an ' twhat Mr. ,Washington is l ike , I 20 think these two personalities just really didn' t get 21 along. 22 I do have a few letters here. flne,ycau 23 ordered him to do the Thinking For a Change program. 24 The comments from that program is that he was one of 25 the most invol^ed. elie.nts.and his^participation was OFFICIAL COURT REPORTERS ...... 5 ------1 exeeptional. 2 .Another.letter from Hr.idg.eway having to do 3 with his housing. It says,.there are no concerns 4 with him. He' s.always -kept . the place clean ain.d a things like _that. 6 The schedule for Tri-C is here, Your Honor. 7 His wife is in the back..of::t.he courtroom. 8 Five months on probation. He's always shown 9 up. He's always been clean.: 10 I'd respectfully ask the Court to-consider 11 what Mr. Washington has done over five months rather, 12 than just one episode with one of the counsElors. 13 Thank you very much. 14 THE COURT: All right. Mr. Washington, what 15 do you have to say? 16 THE DEFENDANT: Yes. Your Honor, it was 17 just a big disagreement. I regret that it even 18 happened. 19 I'm trying to do some positive.things. I 20 just got married.August 5th. T'm in school.- I 21 start Tri-C on the 30th. I'm in class. I make all 22 rrty appointments. I do what I'm doing told. 23 It was just a disagreement. I wanted to 24 speak myself. I kind of felt like no one was 25 listening to me, and I-.got upset.- And - it , woxi,'.t OFFICIAL COURT REPORTERS 6 1 happen again. 2 THE COURT: Who is that.young lady_in the 3 back? 4 THE DEFENDANT: My wife. I just got^married 5 on the 5th. 6 THE COURT: What would you do to somebody.. 7 who talked to_-- if they talked t®°your'wife._the way 8 you talked to your manager-there? 9 THE DEFENDANT: I'd be upset. 10 THE COURT: Huh? 11 THE DEFENDANT: I'd be upset. 12 THE COURT: All right. I mean, what would 13 you I mean, how would you -- tell us if you -- 14 would she take it.the same way that.this manager. i5 did? 16 THE DEFENDANT: No. 17 THE'COURT: Okay. 'Would she be upset, too? 18 THE DEFENDANT: Yes. Yes, Your Honor. 19 THE COURT: All right. You know, and this 20 young lady was pregnant and everything and you just, 21 you know, talk about disrespecting. I mean; you 22 should treat her the same way you'd want anybody to 23 treat your wife, you know? 24 And I think if your wife.fully understood 25 what you did to this young lady-who-was-pregnant, OFFICIAL COURT REPORTERS 7 ------1 you know, you wouldn't be standing here. You'd be 2 one of these guys in a wheelchair coming up here. I 3 thin-k your wife would have done --- dealt you in 4 there. 5 THE DEFENDANT: Yes. 6 THE COURT: Rli right? Now, you know, she's 7 working for me. Just as if, you krnow; if she tells 8 you something, it's just as if I'm telling it to 9 you. 10 THE DEFENDANT: Yes. 11 THE COURT: All right? Nou,a,. people who do 12 these jobs aren't doing them for fame and.fortune. 13 They do it because they care about people who have 14 needs. And they're in this segment of the Probation 15 Department because they want to heLp somebody. And 16 they feel they can do some good. 17 And like you. -- you've done some good things 18 here. 19 THE DEFENDIaNT : Ye s . 20 THE COURT: But, you know; you're also 21 plotting and scheming how to scam people. 22 I wish you would use that sarme energy 23 towards getting a job or something like that. I 24 thi.nk that you'd even be more prouc3 of yourself once 25 you did. OFFICIAL COURT REPORTERS 8 1 THE DEFENDANT: Yeah. 2 THE COURT : Now, what kind •o f:. shoes you _ got . 3 on? . , 4 THE DEFENDANT: Some Nikes. 5 THE COURT: Huh? 6 THE DEFENDANT: Some Nikes. 7 THE COURT: Nikes. Are those $150 shoes? 8 -THE DEFENDANT: This is a--wpdda.ng present. 9 THE COURT: What? 10 THE DEFENDANT: I.just got married 11 August 5th. It was a wedding present. 12 THE COURT : Huh? 13 THE DEFENDANT: It was a wedding present. 14 THE COURT: Those are bran.d new shoes.. 15 These are my shoes.. You knova, my shoes are 16 falling in half and everything like that.- I make 17 10,000 bucks a month. That's what x wear, all. 18 right? 19 Now, you make 10,000 bucks a month? 20 THE DEFENDANT: No^ Your.Hon®r. 21 THE COURT: Okay. Now, you got to be 22 reasonable. 23 THE DEFENDANT: Yes, Your Honor. 24 THE COURT: You got to, you kn.ow, you're 25 only getting a limited amount of money. You know, ------ OFFICIAL COURT REPORTERS 9 1 and, you know, your .u;.ffe needs to 2 Your wife, daraes she work? 3 THE L7HFH^DANT--: Na, 4 THE COLTHT : XD you work,, m:a" am"? 5 THE L?HFENDANT-': I4o . She ` s going to school. 6 THE COURT: dALL right. But you got a 7 limited income. 8 THE DHFH^DAN'': Yes, sir. 9 THE COURT: 7c)LI got to use the money for 10 good things, you knofm, not just for -$15a Nikes that 11 you 1-ook decent. Th^-_re' s more than that. 12 You got any ^_-ir.is? 13 THE DHFHNI}ANT'"; Yes. 14 THE COURT: '.^Bc)sba old are your kids? W5 THE DHHENDAN1"a; 22 and 21. 16 THE COURT: AAL'i- right. They need help? 17 THE ^EFHNDAN7: Yeah. My daughter has a 18 full scholarship to L-ase Western Reserve. This is 19 her last year. 20 THE COURT: !%,? 16 just think what that could 21 - - what all that moneey for those shoes could have 22 helped her, a1l- ragb.t:? 23 Now, you kr:oa::, I don' texpect any more 24 problems. You know, and, you know, I'll tell you, 25 • you know, when you t:Lak^ away somebody's sense -of JF"F-LCIAL Cfl1URY PHPOFg`I'ERS 10 1 security in a job like tha.t, and understand she's 2 taking a guy she doesn't really know all that well 3 out shopping alohe and trying to help them, and 4 she's in a.situation where she',s pregnantf in a car, 5 and you take away her sense of security, and she`s 6 to be prote,--ted because of her position. You're 7 taking away an awful iot of things °from her, 411 8 right? 9 And not only that, but you're probably also 10 taking away her. ability to help somebody else ' ca.use 11 she might be, you know, afraid to do that for 12 somebody else. And that's the big thing. 13 You know, it's hard to find people who are 14 devoted like this who want to do this work. And if 15 we lose somebody good like that, then that means 16 somebody else is not gonna' get help, too. And I 17 hate to have that happen. 18 Now, I thi_nk you ow(^ her an apology. 19 Is she here? 20 MS. SHARz' : No, Your Honor. 2 THE COURT:. Okay. I think you owe her an 22 apology. 23 THE DEFENDANT: I see her on August 30t=^. 24 THE COURT: I think you better write her an 25 apology. OFFICIAL COURT RE PORTE RS 11 1 MS. SHARP: Is that a Court order, Your 2 Honor? 3 THE COURT: Pardon me? 4 MS. SHARP: Is that.a Court order? 5 THE COURT: Yeah. 6 I think you better write her an apology. I 7 think you give it to Miss Sharp and--Miss Sharp will 8 have it delivered. 9 But, you know, it better TT it better not 10. it better be more than just two words. You better, 11 you know, analyze what you did and how it affected 12 her. 13 And you understand why you should never do 14 it again? 15 THE DEFENDANT: Yes, sir. 16 THE COURT: All right. 17 THE DEFENDANT: Yes. 18 THE COURT: All right. The defendant will 19 be found in violation. The community control will 20 be continued with prior conditions and modified 21 conditions. 22 In addition, you owe me something. You owe 23 me 20 additional hours of court community work 24 service because of what you did. 25 And the defendant is to write an apoiogy to OFFICIAL COURT REPORTERS ______:Tflfi:d?3+'".L'S'$:l.•JfNJ.""Jfsi^°r:!">r+firiffff.+^»rn>»m.nrir,aYidmssfir.ffm.+frr.rrr.:rrr.-n :. rrr'r^.T.. .-._-.. 12 ------1 the case worker at, is it Recovery Resources? 2 MS. SHARP: Yes, Your Honor. 3 THE COURT: When's his next report date? 4 MS. SHARP: He`sees me on Tuesdays. 5 THE COURT: Pardon me? 6 MS. SHARP: Tuesday. 7 THE.COURT: This coming up? 8 MS. SHARP: The 30th, yes, Your Honor. 9 THE COURT: And deliver that apology to 10 Miss Sharp. 11 THE DEFENDANT: You say 12 THE COURT: Right. 13 THE DEFENDANT: when I see her; is that 14 all right? 15 MS. SHARP :. That ' s.f ine . 16 THE COURT: And that will be August 30th? 17 MS. SHARP: Yes, Your Honor. 18 THE COURT: And the next violation will be 19 36 months in prison. 18 months on.each count, 20 consecutive, all right? 21 THE DEFENDANT: Yes. 22 THE COURT: Are we on the same page? 23 THE DEFENDANT: Yes, sir. 24 THE COURT: All right. 25 MR. DEFRANCO : Thari)c you, Your Honor._ OFFICIAL COURT REPORTERS 13 1 MS. SHARP: Thank you, Judge. 2 3 (Proceedings concluded.) 4 5 6 7 8 9 10 1'`^ 12 13 14 15 ^ 6 18 19 20 21 22 23 24 25 OFFICIAL COURT REPORTERS 14 ------1 C E R T T F T C A T E 2 I, Deborah L. Kracht, an Official Court 3 Reporter for,the Court.of Common Pleas, Cuyahoga 4 County, Ohio, do hereby certify that I am employed 5 as'an Official Court Reporter, and I took down in 6 stenotypy all of the proceedings had in the 7 above-entitled cause; that I have transcribed.my 8 said stenotype notes into typewritten form, as 9 appears in the foregoing Transcript of 10 Proceedings; that said transcript is a complete 11. record of the proceedings had in the said cause, 12 and constitutes a true and correct Transcript of 13 Proceedings had therein. 14 15 16 Deborah L. Kracht Official Court Reporter 17 Cuyahoga County, Ohio 18 19 20 21. 22 23 24 25 OFFICIAL COURT REPORTERS /4^ Nd..n+`+w• ^^ ^ - ... • s 4 1, THE STATE OF OHIO,.) 2 } SS: JOHN D. SUTULA, J. 3 COUNTY OF CUYAHOGA. ) 4 5 IN THE COURT OF COMMON PLEAS 6 CRIMINAL D IVI S I ON 7 THE STATE OF OHIO, 8 Plaintiff, 9 -v- Case No. CR-535298 10 BRIAN K. WASHINGTON, 11 Defendant. 12 13 TRANSCRIPT OF PROCEEDINGS 14 Whereupon the following proceedings 15 were had in Courtroom No. 23-B, The Justice Center, Cleveland, Ohio, before the Honorable 16 John D. Sutula on Thursday, January 2, 2014, upon the indictment filed heretofore. 17 APPEARANCES: 18 VICTORIA BOYD, Cuyahoga County.Probation Officer 19 on behalf of the Plaintiff; 20 CRAIG SMOTZER, ESQ., 21 on behalf of the Defendant. 22. 23 24 Ilene White, RMR-CRR Official Court Reporter 251 Cuyahoga County, Ohio EXHIBIT t 2 1 THURSDAY MORNING SESSION, JANUARY 2, 2014 2 THE COURT: All right. 3 We're here on the case of the State of Ohio 4 versus Brian Washington. This is Case Number 9. 5 535298. And we're here on a community control 6 violation hearing. 7 Preserit is Mr. Washington, along with 8. his counsel, Craig Smotzer. And representing 9 I'l the interest of the State of Ohio is Probation 10 Officer, Victoria Boyd. 11 MS. BOYD: Thank you, your 12 Honor. On March 3rd, 2011, the Defendant was I I 13' placed on community control with conditions. 14 His alleged violations are that he has a new 15 case in Cleveland Municipal Court for assault, 16 2013 CRB 034380. He also tested positive for 17 cocaine on November 2nd, 2013. He does report 18 as directed. All costs and fees have been 19 satisfied through Court community work 20 service. He was found'to b.e a violator on. 21 August 24th, 2011, and he was continued on 22 commun:4ty control sanctions with modified 23 conditions. 24 It should be noted that the Defendant 25 was arrested on Deceirtber 24th, 2013 at the I, ^3 1 request of the APA due to a new investigation 2 that is currently opened. His assault case in 3 Cleveland Municipal Court is currently in 4 continuance until the duration of the current 5 investigation. 6 The probationer has signed the waiver 7 of preliminary hearing. 8 Thank you, your Honor. 9 THE COURT: Al1 riqht. 10 Thank you. 11 MR. SMOTZER: Thank you, your 12 Honor, may it please the Court. I've had an 13 opportunity to speak to Mr. Washington. He 14 does admit to being a probation violator. He 15 does currently have a case in Cleveland 16 Municipal Court. I've advised him not to say 17 much about it in open court here today. 18 But he does acknowledge that he is 19 there, and there will be, I believe, a 20 restitution hearing coming up shortly. 21 THE COURT: On the 22 Municipal? 23 MR. SMOTZER: On the Municipal 24 Court case, yes. 25 THE COURT: What about the 4 1 other one? 2 MR. SMOTZER: The other one he 3 admits that he also has been indicted on the 4 second set of facts, your Honor. 5 I spoke to him before. We were riot 6 sure which case was•ongoing, but they both are 7 at this point in time. 8 What led to this whole mess is he had 9 been sober for about two-and-a-half years. 10 He stopped going to his meetings. He had 11 become overwhelmed in school and he started 12 use cocaine again. Once he started drinking, 13 he started using the cocaine again, and that 14 led to the majority of the situation that's 15 brought him before you today. 16 Other than that, your Honor, up until 17 that point where he did relapse, he was 18 compliant, he was reporting, he paid the fees. 19 He's done a lot of the things he neede-d to do 20 to remain on your community control sanctions, 21 so we'd ask for an opportunity here to see if 22 the Court would find him suitable for some 23 kind of treatment, or continuance where he 24 would be allowed to continue in the community ;_? 5 on community control w'anct7_ors. howe:ver, ...f 1 they do not and they do choose to impose time, 2 we would ask for a reduction of any time that 3 is imposed. 4 THE COURT: Miss •Bovd, do 5 you have a recommendation? 6 MS. BOYD: At most at this 7 point would be in-patient drug treatment that 8 I would recommend, but I guess the biggest 9 thing, it hasn't been an issue every time he 10 comes in. He hasn't tested positive for 11 anything, except for up to this point for 12 cocaine, which seems to be an issue, which now 13 explains more to me, which I'm talking to get 14 him to talk about when we were in my office 15 about the Cleveland Municipal case he picked 16 up. 17 THE COURT: All right. 18 Mr. Smotzer, anything else? 19 MR. SMOTZER: Nothing further 20 your Honor. 21 THE COURT: Mr. Washington. 22 THE DEFENDANT: Your Honor, I 23 think I just -- this last couple of months 24 I've just been going through a lot of 25 problems. I start back school on the 13th. 6 1 T got some more suitable classes for me. I 2 couldn't -- I think.I started seeing what my 3 life used to be. Because before I did, I 4 remember what you told me how a good life was 5 if I stopped using and for.two-and-a-half 6 years, I seen that, and now I've been back, 7 and I haven't been here since 2011. 8 And in jail, I look at myself, and 9 this ain't the life I want. If you look at" my 10 record, I did some things, and I changed my 11 life. Positive things. 12 I started going to my meetings. 13 Before I got picked up, I would call Cleveland 14 Clinic, and they got an outpatient because 15 when I made my schedule at school that I can 16 go to treatment,'but I was waiting for Care 17 Source to clear it, and then I got arrested 18 again. But, I'm really trying. I'm trying. 19 THE COURT: We haven't seen 20 you for a while, but what you need to do is 21 always consider yourself under treatment. 22 It's like being diabetic, or heart condition. 23 You always got to take your medication, you 24 never going to be cured. 2 5 In your case, it' s doln^y your 12-step 7 ^ meetings, doing the other stuff, the inpatient ^ stuff, introspection and all that.stuff. : You know, I don't know what to say, 4 but you've done some good stuff. But you went 5 right back to the worst part. 6 The problem is that when you fall off 7 the table, you hit the bottom right away. 8 You don't gradually slide down. You're. 9 catching yourself, you fall right to the 10 bottom. You hit hard. 11 And that's what the drug treatment's 12 supposed to do. Teach you how to stop the 13 fall before you hit bottom again. You 14 recognize those signs that are causing you to 15 do this again, the destructive behavior. 16 That's what the treatment's supposed to do. 17 And you can't forget that stuff. 18 THE DEFENDANT: I was doing good 19 until I stopped going to my meetings. 20 THE COURT: You probably 21 thought, I can do this by myself. 22 THE DEFENDANT: I was trying to 23 find a tutor, and I was spending more time at 24 the school and not going to my 25 THE COURT: Guess lnihat . 8 1 Guess what? The drugs and drug treatment is 2 more important than virtually anything else 3 for you. How long have you been doing drugs? 4 THE DEFENDANT: 5 Twenty-seven years. 6 THE COURT: It takes a long 7 time. It's learned behavior. You have got to 8 break that chain, because you went right back 9 to worse stuff again. 10 All right. Defendant will be found 11 in violation of community control. 'It will be 12 continued. Prior condition, modified 13 condition. You'll do 60 days in County Jail, 14 credit to 12--24, 2014. You'll do inpatient 15 drug treatment after the 60 days. Next 16 violation will be 18 months in prison, 17 18 months on each of felonies of the fourth 18 degree consecutive. 19 Take a break, get back to where 20 you're supposed to be. 21 And the other thing, too, you have 22 all these other pressures on you. 23 And that can overcome the good thing 24 that you learned in treatment. 25 If you succumb to too many other 9 1 pressures, then you decompensate, you can't 2 handle anything. And that's another problem, 3 you know, taking.on too much at once, and then 4 thinking you can do it without the treatment. 5 All right. 6 THE DE°UTY> Come on with me. 7 THE COURT: Are-we going to 8 see each other again? 9 THE DEFENDANT: You say are we 10 going to see each other? How about a Cav's 11 game? 12 THE COURT: How about never, 13 never. 14 -----000-- -- 15 (Thereupon, proceedings were adjourned.) 16 17 18 19 20 21 22 23 24 25 10 1 CE }: i I c' C F: '.[' E 2 I, Ilene White, Official Court 3 Reporter for the Court of Common Pleas, 4 Cuyahoga County, Ohio, do hereby certify that 5 as such reporter I took down in stenotype all 6 of the proceedings had in said Court of Common 7 Pleas in the above-entitled cause; that I have 8 transcribed my said stenotype notes into 9 typewritten form, as appears in the foregoing 10 Transci-ipt of Proceedings; that said 11 transcript is a complete record of the 12 proceedings had in the trial of said cause and 13 constitutes a true and correct Transcript of 14 Proceedings had therein. 15 16 17 18 19 ^------,l `i•^;,1`^: , ^ " ^; ; White, RMR/CRR 20 Official Court Reporter Cuyahoga County, Ohio 21 22 23 24 25 IiIIIU^I^IG^iIIIIIIIIIIII[^IIli^ki^IJllllili Illli 83038091 ,,. ^.,^ 1^^^ '^,UE COURT OF CC ^., LL: l. -- N ..,^ .^A:^ ^-^-. ;^ k e ^^.. ^. ^', 0^-^^:0 ^ ^,,^-^.'^ ^q^ ^^^^^;- OUi^^ ^ . 4 . as .w Ye.- i Case No: CR-10-542057-B THE STATE OF OHJO Plaintiff 20iq FwB I u p f: '31 Judge: JOHN D SUTULA CLECK ff CCI!RTS BRIAN WASHINGTON CiJY!'-.4`1r,.^^, ^' ^'.:^ v•^'^J J ',^T^ ^^1 INDICT:2913.51 RECEIVING STOLEN PROPERTY Defendant ^^^ ^^^^^^ ^^^RY JOURNAL ENTRY RE: STATE°S MOTION TO REOPEN HEARING AND HOLD FULL AND FAIR PV VIOLATION HEARING SIGNED, ATTACHED AND ORDERED FILED. OSJ. 02/14/2014 CPEDB 02/14/2014 12:17:32 EXHI HEAR 02/14/2014 Page 1 of I ------'^?='-r#°z.` `.•rr+ia`T^.^1.'^'rY 4...... • _ . - J^'!!",''hYlz^^..2^.?!+"3 i^a•,vi-xrn,^",fp^w.+eren^1'.+. 1039 i^^^iN^1^81 1 IN THE COURT OF COMMON PLEAS CUYA^l9G^.-_TYNTY r k.rm Case No: CR 535298 & 542057 STATE OF OF1IO 21014 FEB I ^)P I: 35 PI ^^f^, JU^9CE JOHN D. SUTULA ^ir ¢^^^ ^^F OLRTS Ct)Yt`,'l0 - AOUN-1 Y d. MOURP.OCR.L'F ENTRY BRIAN K. WASH1NGT0N ) Defendant. ) This matter is before the court for consideration of the motions filed by Timothy J. McGinty, Cuyahoga County Prosecutor, on January 6, 2014, captioned: State's Motion to Reopen Hearing and Hold Full and Fair Hearing Upon Brian K. Washington's Violations of Community Control Sanction Violations (hereinafter motion to reopen); and, on January 31, 2014, 25 days later, State's Motion to Hold a Probation Violation Hearing Upon Brian K. Washington's Violation of Community Control Sanctions (hereinafter motion to hold PV hearing). The U.S. Supreme Court, the Ohio Supreme Court and Ohio Appellate Courts including the Eighth District Appellate Court of Ohio have held that revocation of (1973), 408 U.S. probation or parole are not criminal proceedings. Morrisay v. Brewer Wright v. Ohio Adult Parole Authority 471; Gagnon v. Scarpelli (1973), 411 U.S. 778; (1991), 62 Ohio St. 3d 12; State v. (1996), 75 Ohio St. 3d 82; State v. Coulverson State v. Lenard, 2010 Ohio 81 (Court of App. OH Delaney (1984), 11 Ohio St. 3d 231; Cuyahoga App. No. 87642, 2006 Ohio 5924; In re: Bennet, a 8`n D); State v. Hayes, State v. Parsons, 1996 minor, 1997 Ohio App. LEXIS 2546 (Court of App. OH 8th D.); ' i^^^^^^^^M^ Ohio App. LEXIS 4957; State v. Ferguson (1991), 72 Ohio App. 3d 14, The State of Ohio is represented by the Probation Department. Morrisay v. Brewer (1973), 408 U.S. 471; Gagnon v. scarpella (1973), 411 U.S. 778; Wright v. Ohio Adult Parole Authority (1996), 75 Ohio St. 3d 82; R.C. 2929.15, 2951.08; Crim. R 32.3. This Court's duty of notice as directed by due process requirements for a probation revocation hearing does not include notice to the prosecutor as the prosecutor has no due process rights in revocation hearings. Gagnon v. Scarpelli (1973), 411 U.S. 778; State v. Lenard, 2010 Ohio 81 (Court of App. OlJ 8' D); R.C. 2929.15, 2951.08; Crim. R 32.3, In complying with the due process standards as set forth above, this Court held a probation revocation hearing on the record on January 2, 2014, wherein the State was represented by the Cuyahoga County Probation Department, Probation Officer Victoria Boyd, and the Defendant was present with counsel. In holding this probation revocation hearing, this court followed the long held customary procedures practiced by the Cuyahoga County Common Pleas Court, General Division, on which Mr. McGinty served as a Judge for 19 years. In following these procedures at no time did this Court hold or participate in ex parte hearings or communication as alleged in the motion to reopen as the state is represented by the Probation Department. This court is cognizant of its ethical obligations and at no time does it participate in ex parte comm.unications. This Court is obligated to report conduct which it suspects may be a violation of the O.hio Rules of Professional Conduct. Therefore, the Cotrrt is referring this matter to the Supreme Court Disciplinary Counsel to determine whether there is an ethical violation on the part of Mr. McGinty for knowingly making false allegations impugning the integrity of the court and the efficacy of the Judicial system for 2 allegedly having ex parte communications and hearings, very serious allegations. Ohio Rule of Professional Conduct II.2(a). The prosecutor under law can argue incarceration at the sentencing phase of the criminal proceeding, but does not have a second opportunity to do so at a probation revocation hearing. Therefore, according to legal precedents and authority above set forth, this court denies both of the prosecution's motions. The January 31, 2014, motion to hold a probation violation hearing is being denied as the court was aware of the arrest of the defendant at the hearing of January 2, 2014, and issued a punishment that adequately addressed that same issue, raised again by the January 31, 2014 motion. This Court ordered 60 days in jail and inpatient treatment. As the prosecution is not entitled to notice of probation violation hearings, it will not receive notice either from the Courk or from the Probation L7epartnzent. However, the Prosecutor can check the Desk Book which is open to the Prosecutor or the docket for scheduled probation violation hearings as has been customary in Cuyahoga County Common Pleas Court. The hearings are public and the Prosecutor is entitled to attend each hearing. At all future probation violation hearings in this case or any other case, should the prosecutor desire to bring to the attention of the Court or the Probation Department acts that may be a probation violation, it may do so. Since the State is represented by the Probation Department, the prosecutor is not inherently entitled to speak at a Probation hearing. In the event the Prosecutor's Office desires to speak at a hearing, it may only do so with leave of Court. A Request for Leave to be Heard shall be filed no later than 2 days before the scheduled probation revocation hearing and shall include any evidence 3 - ^ r and witnesses supporting the claimed violations. Case specific statements as to the violation shall be set forth in detail in a brief attached to the request, The Request for Leave to 'be Heard shall be served on the Probation Department, Counsel for the Defendant and the DeferidantF shou'id the Defendant wish to proceed pro se, at least 2 days prior to the hearing. Prior evidence and testimony received at the sentencing will not be considered as it will be considered cumulative or repetitious, IT ^S 50 ORDE`^EDa DA`6'E ,E^^`^.^^I£^.'E OF SERVI¢^^^ A copy of the forgoing Journal entry was served on the 14t^ day of February, 2014 by U.S. Mai! to Attorney Craig W. Smotzer, counsel for Defendant, 1914 Clark Avenue, Cleveland, Ohio 44109; and, by personal delivery to: Cuyahoga County Probation Department, 1200 Ontario Street, 7'-^' FloorF Cleveland, Ohio 441.13; and, Prosecutor Timothy J. McGinty, Cuyahoga County Prosecutor, 1200 Ontario Street, 9"'h Floor, Cleveland, Ohio 44113. ^.^^------ 4 i i. i. :. r; M 1-- FT i.t L 5 EFEB 2 4 2014 l r j / r ^ ^/!^ IN THE )JR;" OF COMMON ; e., ,::r^^,'; ^.. O. 'r^ f ^4 s' ^/1. ; o C#erk of Courts RI^^INA^ ^^^^!SfO4^ ^ ; . ^.:^, ..,:, %./ C'uyt:h^^pp Ccun:Y: (ft HOGA COUNTY, ^^^^ i. ^ ^r F i Y r.. ^', rrr . ari 1 06. T' : OF ` ^ ^ IO, CASE ^O,,;, CR 535298 P1ainti^-Appef^ant , vy lv!o- ti4 j^DGa'1: J'0HN ^'.^U-. i`U LA. A nV$z } %;'.,;;f.,..,.°OF , ,,.`,, ; , i.:^ isar^^'»^aa.,:^^^.a LFRLJ 41. K.W.^SH€^GTON Now cornes the State of Ohio ard hereby g€ves Natice of AppeaI to the .,- Appea1s for Cuyahoga ^^^^ty ^^^^^^^ ^udg^ial Distr^^^^ from th^^ entry of the Cou^^^ ^jl: ^ ^ Common Pleas for Cuyahoga County, Ohio, ^^urnal^^^^ ^^^ruary 14, 2014.. ^^^^^ctfuI^^ ^^bmi"tted: :^> a ^^^IOTHY J..McGiNTY (0024626) ^^^AH^^ C^^NTY PROSECUTOR ;;'.;r ^/A^^^^ ^^^^ (0067336)' MARY MCGRATH (0041381) Assistant Prose^uting Attorneys Justice Center, Oth Flloor '^ ^^0 O^^^^^^ Street ^^^veland, Ohio 44113 (216) 443-7800 SERVICE A copy of the fomgo€ng Notsc^ of ^^^^^l has been maiIed -1his 24'^ day February 2014, to CraE^ ^u-notzers attorney fol, defend ant-appeflee, 1914 Clark Ave€^ue, Cfeveland, Olilo 44109. ------rosecutiiig Attorney / B o I I l 1111111111111111111 f1111 {1111111i1 lllll l lll 1111 I^181 83038088 ^N TIM1C^_^ -T OF COMMON PLEAS CU^^^^^^ COUNTY9 OHIO P 1 ° 35 CR-10-53 5298-B T"E STATE OF OHIO Case No: Plaineiff W LF CJud e: JOHN D SUTULA i tl^'t^'r,^C,A CG^1^TY ^ BRIAN K WASHINGTON 9ND1CT:2911.01 AGGRAVATED ROBBERY /FRI3V91 /F'P-M3 Defendant /FORS /NPC /RVOS 2905°01 KIDNAPPING /FRM 1 /FRM3 /F®CC5 /NPC /RVOS 2913.02 THEFT (MV) ADDITIONAI, COUN'I'S°.. ^^^^^^ L I LN"^'WY JOURNAL ENTRY R.E` ST.:tTESMO'i"lON T'f31'd.FOPEI'^l, HEARING A7N1=t H0€.,D F131,L P,.19^'i FAIR PV VlOLATIOYR;` HFAP I1^0 S^^3NEDs A'lvl'ACHE1:'b AND ORDERED FILED. C3S1. 02/14/2014 CPr^,DB 02/14/2014 12:17:31 ...- - _.,. .^__...... :..,..--.._._._---- IN THE COURT OF CC3-MMON PLEAS CU.YA ^^ NTY ^^ ^^ STATE OF OHI4P ) Case C^o; CR 535298 & 542057 F^^ ^^)P ^- 35' p ! `t^t^, Jl^DGE JOHN D. S1^^°U^ .L^^,li ^^^= C^^R^S Ci1Y^, i°! + , f; `^ OUNTY V^ ^OURNAL EtATR3Y 13RiAN K. WASHINGTON ^ ) Dofendant, ^ This matter is before the court for consideration of the motions filed by Timothy J, MoGinty, Cuyahoga County Prosecutor, or,. January 6, 2014, captioned: State's Motion to Reopen flearir^g and Hold Full and Fair Hearing Upor! Brian K. Washiragton9 s Vioiations of Community Control Sanction Violations (hereinafter motion to reopen); and, on January 31, 2014, 25 days later, State's Motion to Halci a Probation Vfiolatiox, Hearing Ur)on Brian K. Washington's Violation 4if ^'ommursi¢y Control Sanotioaas (hereinafter motion to hold PV hearin^). The U.S. St^prcriae C'murt, lhe Ohio Supreme Court and Ohio Appellate Courts including ti,e Eighth District Appellate Court of Ohio have held that revocation of pro bation or parole are not criminal proceedings. M^rriscy v. Brewer (1973), 408 U.S. 471; Gagnon v. ^earpeIda (1973), 411 U.S. 778; Wright v. Ohio Adult Parole Authority {1996}, 75 Ohio St, 3d 82; State v. Coulverson (1991), 62 Ohio St, 3d 12; State V, Delaney (1984), 11 Ohio St. 3 d 231; State v. Lenard, 2010 Ohio 81 (f;our't of App. OH 8`h D); State v. Hqyes, Cuyahoga. App. No. 87642, 2006 Ohi6 5924; In re: Bennet, a minor, 1997 Ohio App. i_,EX1S 2546 (Court of App. OH 8'h D.); State v. Parsons, 1996 I ANN'i"I^^ii" ullll Ohio App. LEXIS 4957; State v. Ferguson (1991), 72 Ohio App. 3d 14. The State af Ohio is represented by the Probation Department. AfoYtasqy v,. Brewer (1973), 408 U.S, 471; Gagnon v, Scarpelli (1973), 411 US. 778, 1'Vrtglit v. Ohio Adult Parole Authority (1996), 75 Ohio St. 3d 82; R.C. 2929.1 5, 295 1.08; Crim. R 32.3. This Court's duty of notice as directed by dire process requirements for a probation revocation hearing does not ir^^lude notice to the prosecutor as the prosecutor has no due process rights irn revocatian hearings. Gagnon v. Sc^ppeill (1973), 411 US. 778; State v. Lenord, 2010 Ohio 81(Caurk of App. OH 8`^ D); R.C. 2929,15, 2951,08; C;rim. R 32.3. In complying with the due process standards as set #brth above, this Court held a probation revocation hearirag on the record on January 2, 2014, wherein the State was represented by the Cuyahoga County Probation Department, Probation Officer Victoria Boyd, and the Defeiadant was present w:th counsel. In holding this probation revocation hearing, this court followed the long held eustonaary procedures practiced by the Cuyaha^ga County Common Pleas Court, ^ierreral Division, s^^. which l^^r. 1VicGinty , served as a Judge for 19 years. In following these procedures at no time did this Court hold or participate in ex parte hearings or communication as alleged in the motion to reopen as the state is represented by the Probation Department. This ccsurl is cognizant of its ethical obligations and at no time does it participate in ex parte communications. I'his Court is obligated to report cgracluet which it suspects may be avioiat`sora of the Ohio Rules of Professional C®nduc.g. i herefore, the Court is referring this matter to the Supreme Court Disciplinary Caanset to deterrrcilze whether there is an ethical violation on the part of Mr. MeGinty for lcnrswiragly mak;rag, 1`alse, allegations impugning the integrity of the court and the efficacy of tlre Judicial systemx®r 2 // 9 V allegedly having ex parte communications and hearirags, very serious altegaticsras, ob-"so Rule of Professional Corsduct 8.2(a). The prosecutor taradeir law can argue incarceration at the sentencing phase of the criminal proceeding, but does not have a second opportunity to do so at ap;oba.tion revocation hearing. Therefore, according to legal precedents ar:d authority above set forth, this court denies both of the prosecution's motions. The January 31, 2014, mofion to hoid a probation violation hearing is being denied as the court was aware of the arrest of the defendant at the hearing of January 2, 2014, and issued a pungshmeai2 that adequately addressed that same issue, raised again by the Jariita.ry 31, 2014 rrletion. This Court ordered 60 days in jail and inpatient treatment. As the prosecution is not en;itled to notice of probation violation hearings, it will not receive notice either from the Court or frorn the Probation I3epartment, However, the Proseeutcar can check the Desk Book which is open to tile: Prosecutor or the deckp-t for schedtiled probation violation hearings as has bee.rz customary in Ctiyahoga CEunty Common Pleas Court. The hearings are Public and the Prosecutor is entitled to attend each liearing. At all future probation vi®lation hearings in this case or any other case, should the prosecutor desire to bring to the attention of the Court ;ar the Probation Department acts that may be aprcabation violation, it may do so. Since the State is represented by the Probation Department, the prosecutor is not inherently entitled to speak at a Probatdery hearing: In the event the Prosecutor's Office desires to speak at a hearing, it may only do so with leave of ^ourt. A Request for Leave to be Heard shall be f.'iled no later than 2 days before the scheduled probation revocation heargi^g and shall include any evidence 3 /^.. r and whncsses supporting the claimed viola;l€?ns. Case specific sfatexneaats as to the violation mha1^ be s ^^ forth igi deta:l an a brief attached to the r^quest, 'F^e Request for Leave ^o be Heat°d shall be served on the Probation ^^partment, Counsel for ^^^ ^^^^^^^^^ and the ^ef^^daiit, should the Defe3adant wish ¢c.3 proceed pro sc^3 at least 2 days prior 0 the hearang, Prior evidence and testimony received at the sentencing wffl not be cons:der^^ ^^ it will be considered cumulaii4^e or repetitious. F' T a 5 ^^ a RI^E R t€:01 DATE CER4BFIICATE ®F SERMECE A copy of the forgoing journal entry ^^^^ served on the 14 th day of Februani, 2014 by ^^.& ^^^^ to Attorney Cgaig W. ^^^^^^^^ counsel for Defendant, 191-1, Clark Avenue, Cleveland, Ohio 44109; and, by personal -detivei:^ ^^, Cuyahoga County Probation Department, 1200 Ontario Street, 7'R r-loord CNeVeland$ Ohio 44113p and, Pr^^^^^^^r 'rir^^^hy 1. McGinty, Cuyahoga County Prosecutor, 1200 ^^^^aric,, streete 9" Floorf Cleve3andY Ohio ^4113e D TE 4 tY{ r. A p i',::%` r-EB 2 4 Z0{4 3 . i^ ^ ^' 9 d 'r ^`` ^'•r_..f'••lr,i T • / .r ° ^^ G,v^^^^' EIGHTH D^ST^^^ 1^' 0 07F %^.i/^ Ji/^e,,//d.^.,•,.% CIz,~k of Courts . ^ f ?6 Cuyahoga Cr.urzty_Oh:o f1,%.Cr%^i" >.1 ^^.., f ^s/^, ,!r . r . ! y ^ 3 ^ :;i ° v. _ rial ^^ou^ ^'^3Se ^^r^.. CR 5°;^`^5^98f+ Sf ATE OF 01110, Date of Final JLidgment tAJYM10(9t Plaint€ff ^n Troal ^ouqM February 14, 2014 T^^s Na^^^^ of Appeal was Fiied T€mely in Compl^^^^^ ^^^th: BRIAN K. VVA^^^^^^^^ LO, Apo.R. 4(A) T_ within 30 days of the entry of judgment Defendant .] App,R. 4(B) -w exCept^on^ to the 3ow^^^ ^^^imment TO THE CLERK OF THE TRIAL COURT: Appeliant requests that the ^^e^k jw-nmediately prepare ^^^ ^^se-mble the origina1 H I papers and exhibits fi1ed in tile tri^^ court and a ce€ti^^^^ copy of dookei and journa1 entries. In addit€or€; appellant will cause the record in this appeal tO include the fol`ow^tjg (if applicable) %} a. ComoI^^^ ^^^^^cr^^^ under appel1^^e Ru3e 9(B). Fl b, '^artia! t^^^^^^ipt under A^^^^^^te- Rule 9(B) . c. Statement of ev6dence or prooeedir€^^ under Appeliate RLiie g(C). ^ d, Agreed ^^^^em^^Z tinder Appellate Rule g(D). ^^^^^^^fu^^^ Submittedj TIMOTHY J. tvicGIC^TY ^0024626^ CUYAHOGA COUNTY PROSECUTOR , +..,^. .. ___---.T. -_ _• 6 4 ...... ^.C.------^^--_ T, A ^.^.N R^GA^ (0067336) MARY MCGRATH (00=1A381) Ass€sfia€^^ ^^^^^cu^^^g Attorney % '•-/•:1'... ' . ^,:':^^"^^5.; ^^ . P rr ^/;pys/1^ ^ ^ .. % ^ i^' ° % r % ^.^ r > .. ^^% ; a! e is/r ^ ., f E a^ f ^1c 'a•':., O F ,fJ.^^^^^>.1-..i^a., ' ar„djA:LOC AL ^a%A.,E 94,0, P /. .! ,J:^.:i^: fhG O^^J^^•^ r•. ! 3 fr './ P 3 - 9 / J /'•. •.J l'..i _-.... ^.,.^_ ,i., ^ ^ii:.. 3 f ' ^•. ^, .,.+r' ^a`^i. . FG u..^ / ^ / ,I.,/3 'l:^ ':" r. O( 101.e'd%. TR;:r':.,._'t,UR..+. G!''.:'',:+E .a:J/33 a'i% l^$^^^`^^^^5 ^ CL["RK Of ►^`OM Plaintiff 69YANOGA CiOiJNTY• avs- BRIAN K. WASI-IJNGTON Defendant A, T^^^ APPEAL SHOULD BE ASwx^GNM _;..,->:. ^ The accelerafed calendar, The regular calendar F-I Der€ial of bail appea;. Assigned to the accelerated cafenda¢V for the reason(s) checked (see Loca( RuIe 11.^}e 0 1. No franscript required. i. Transcr€pt and ^^l other ev€dentiar-y mater€als conssst of one hundred (100) or fewer pages. Assggned to the regula€° calendar wifh full briefing for the reasons checked. [] ' firanscript and all other evider^^iary maferia€s are more th.-In one hundred (100) pages. 2 Braef e^ ^^^ess, of fifteen (15) pages is necessary to argue the issues adequate1y. ^ 3 AppeaI concerns unique issue of ^av^ that Ml be of substantia9 pr^ceder€ti^! value in defer€n€ri€^g similar cases. F^ 4. Appeal concerns rn;,€lf€ple or complex issues. El 5. A statement is submiifed under App,R. 9(C). •, i1,^^,r_-r._y.^'_..<•/•, p y1v_•,^ ^/ -i-/-•t ^^r.°o :J - -a•'%a>.^e_'^-:^ 5,•:, f%i•.''^.' ^• i;° i^b°^• 3 ,i 1 i yr- ,. °r . '. i.. ..^._-._-°.J : . o;% s., _i' ^ , ..i e .. ,.s i ', ° ^ . .^„•B^ %_/ I •.9a.,.. °J { i .^, s , e . ./ ^ „Di , •^ S ; , . , ^._i ; •./'°. d , *,1 ^„- APPEALS, Fiiiaf appealabIe order (a) ^^ ^ the trial courtd7sposed of all claims by and agamst aI^ pw-^^e-,'r [] Yes. Attach ^^^^es, of aIf judgments and orders ir^^^^^^^^^ that ail ciaims agaiiist all €^^^^^^ have been dismissed, ; ^ 9d {b) .. . ^^ the answer to (a) is "no," has the tria9 court made an express determenatE^^ that there is "no jLmt reason for delay 2, per CiV.R. 54(B), w€th respect to th^ judgment or order from which the ap^^^^ ^ taken? ^ Yes, ^^ the same judgment or order. ^ Yes, €r. a sLibsequent order dated ------. •--- Attach a copy of the subsequent order. F-I No, (c) ^ the ^^^^o-nent or order subject to ir^^^^^^cutory appeaI s.inder R.C._ 2505.02 (check alf that ^^^ly)? L 1 Yes, because the order affects a ^^^^^^^^^^^^^ ^^^^^ in a€^ ^^^^^^^ and prevents a ^^^gment. See R.C. 2505.02(-B)(1), ...^ Yes, because the order was made in a special pra^^^^^na. See R,C. 2505.02(B);21. ^ Yes, because the order vacates or se:^ ac-ide a ^udg€^erit or grants a new tr€al. See R.C. 2505M(8)(3)• ^ Yes, because the order ^^^^^^^ or d^^^^^ a ^^^^^^ional remedy and mee#s ihe other cri#eE €^ of RC° 2505.02(B)(A) ^ Yes, because the order determines that an action may e-r may €^^t b^ ^^^^taine^.^ as a c^^^^ ^^^^^^^ See R.C. 2505,02(B)(5) ^ ^3^. (d) Does the ^gM to an immediate appeaf ^^ke, from a ^^ovis€o€^ of ^ statute other fihan R.C, 2505,02'^ ^ Yes. Identify statute . NOTE: 9F THE ANSWER TO ALL OF THE ABOVE iS "NO " THE ORDER IS NOT A ^IN^L APPEALABLE ORDER, AND THE APPEAL WIL^ BE SUMMARI'LY DI^^^^^^^^^ FOR LACK OF APPELLATE JUR(SD;CTION, Z Nature ofoase; ^ Adm€n€^^Fat`s^^ ^^^^^l El Contract q ^^^^^^^^ory Judgment 0 Domestic R^^^^^^^^ El Juven€!e rOed3ca6 Malpractice Persona,l I^^ury Probate Other (describe);_. 3, Do you know of anc^^her case pending before this court that raises the sara^^ issue or issues? 1LJ Yes q No ff yes, p1^^^^ cite the case(s), 4, Does the appeal turn on an €nterpretats^^ or ^^^^^^^^^^^^ of a ^articular ^^^^ or ^^aW^^^ ^ Yes Ell No, If yes, pl^^se cite the case(s) or statute(s). 5, How wou6d characterize the extent of yotir ^^^^^ement df^^^swons before ^^^^^^^^^ ^ None ^ Wlinim^t El Moderate D. LEXtensive / c%. Have bett7ement disoussio€^^ ^^^en p1ace since the j€.s€^^^er',t or order appeaIed from was ^^^^^^^^^ ^ ^er, No. ^. Vilould a prehearing co€^^^^^^ce, assist the o^^^lution e^^^^^^s matter? F-I Yes No Maybe P^^^^^ ^^pWn (opt€onal):mm ^ Br€^^^^ ^^rnmar^^e the ass6^nnients of error ^^^^^^^^^y anticipated to be 4sed on aPPeal. (A#^^^h a separate sheet i^ necessary.) T. ALLAN REGAS (0067336) MARY MCGRATH (^^^ ^ ^^ ^ ) Assistant Prosecuting Attorneys ^ uv.,,•, vf /9f-rL;:NI..^^ ( . ^^^ 2 4 2014 Clerk of C.ouris IN HE COURT OF COMMON PLEAS Cuvahoc,;.1 County^ ohio ^ CRIrAiNAL D1VISgON ^ rs % j CUYAHOGA COUNTY, OH&O j 9 ^s^. : O;' OHIO s ^•.,?, !' r'_ ^. ;,/" ^. .. . '•_i{' .'. f• ^.: .. . e_%/c^9 . r PIaint€ff-AppelGant ) `' ^s.i "^^^.+ ^: ;i C^ ) ^ .. ; ;,,,,...%.. JOHN , , ;; ;$ ^1^k^3't^}V^6 â ) ..S •.^ J +'•.^/' e.^. , .^1'. j ^.P% . ^UTit Q^ ) vLePs_ tJOUO ) i•./,',f v^ ef'`^° ^o^` f iii%i:: !i. Y ^^IAN K. VVASHlNGTON^ ) n 1 Lseferida€^^-Appellant ) Now comes the State of Ohio and hereby gives Notice of Appeal to the Cot.^r4k' Of ^ Appea^s for Ct^^^^^g.4 ^^^^^^^ (Eighth Judicial District) from the entry of the Court of COMMOn Pleas for Cuyahoga County, Ohio, journa#ized Februarv 14, 2014, ^^^^^^ffulf^ ^ubmAted, W TIMOTHY J. MCGINTY (0024626) ^^^^^^^ COUNTY PROSECUTOR BY: ^' ,^,^• - AL..REGAS (0067336) MARY ^^^^^^^ ^^^^^^ IP I ^ ^^^^^^^^^ Prosecuting Attorneys Jostice Center, 9th Floor 1200 Oiiiar€o Street CIeveland, OhFo 44113 (216) 443-7300 SE^^^ A copy of the foregoing No^^^^ of ^^p-eaI has been ma€9ed this 24tr day of Febr^ary 2014, to Cr^^^ Smotzer, attorney for defendarztaappellee, 1914 Clark Avenue, C^eveland, Ohio 44109. ^.. ^^ cuting Aittorney f -. / / limiligimlikiiiiiiiii 83038088 1111 !.,;^^ ' ^'^^;s^^i> 46^ ^4r..^s•,, .^^^'r3 f-'e/ i1;.ri^^,A'-r ;'i ? i /" / r• r r ^ f^ .e ^ rr'^ '',v ;.J F ^,•^ - •L 1 -1- %I / )HI,G.i I . . r r > Plairotiff /I Jri.sll ^GJ CLCR{{ Oi COUCss CtlYA°r;aA COtIRT`^ I Jud^ e JOHN ^► SUTULA BRIAN K WASHiNGTON ^efer:dant INC?ICT:29I I,(pP AGGRAVATED ROBBERY /FP.A.rI j fPCDRS INFC /ItV'OS dFRiVl3 2905.01 KIDNAPPING IFRNII /FRM3 fFnRS ;I.rpC ORVOS 2913,02 THEFT (MV) ADDITIONAL COITNTS.,. .:'... !_. ,^ i, ._: _-,i,a^::,.:'''=!.^,' _ :.^^ ^^ :__^ • JOPURNAL ENTRY RE: STAa.TE`;S MfO``ION TO RE'C`sPF*I HEARII*IC'i ANI:"1 40I_,l) FULL SF^"`.aNE3); ATTACHED A^^ ORDERED FILED. OS.I, AND FAIR PV °a'90I.AT"ION I-IF-AP, fG 02/14/2014 C'PED8 02/14/2014 12:17:31 HEAR 02/14/2014 Page l s,• 1 f ' ^.._ , ...... _.. _ ,^....^ ^^^^ ^ IN TH^' COUF ^ OF COMMON PLEAS CUIA^OG^ ^^^ ^ ^ # A$ E OF QH^10,,. ^ Case N r l ''7 ^ ^.f fI 'c.,,,^i ^ ^,^ j ^ 2^y w;^;^'ft'r..^f'y t,^^r< ^ FT 4) fn^ ^^& &£•l'. , b. JUD4..;iE j•,tHN # *G.,^ s ^ i ^3 â" ^ „7., S;,,F o kJF.A %^^^f LJ ^^E ^ ^. iyb k 't^ AHOGA ^, ^ ...... ,.t., ^e ^ i BRIAN K, ''s,'s1^SHI3E'%GT''^^}N y This matter is before ^ M ^^ for ^onsHdera^^on, of the motions ^led b^ imathv J, McGWYo CuYattoga County prosecutor, on 3anuarv 6, 201 4, capt^r^,^,ed: State's Motion iO Reopen Hearing and Hold F'UIl and Fair Hearing Upoz, Bra^ ^, Waskaington's Violations of Cornm}ia^ity Corttrol Sanction Violations (hereinafter mcstion to r^^^ep aiid, on January 31, 2014, 25 days laterp Sta1^ys Nlotaoi to I-It3ld a Prcbatio z^ Vzo1a9ion Hearing (Jpon Brian K, Afa.^hffi^:^^^`fi ^oufali^^ of +.ez e.n a ue1ffA^6€E^3^}' C€'dnLr$'34 S"uY3ctfl65Hls ;hereinafter.^^^io,, to hold PV hearink.0, The US, Supreme ^ciurt„ 'the Ohio Supmzaae Cou€t and Ohio Appellate Courts including the Eighth District Appella^e Court of Ohio hav- held tlia:a revocation of probation or ^^^^e are rlot ^^irr^i^^^ proceedings, Marrjsa^ v. Brewer (1973), 408 U,& 471; Gagnon w, .9czsrpelli ( 1973), 411 US. 778; Wright v. Ohio Adult Parole .4ua'l^ority (1996), 75 Ohio St. 3d 82; &we v, Crsul^c-pson (199'k)y 62 Olaio St. 3d 12; &Icrte iF, Delaney (1984), 11 Obzo St, 3d 231; Siate v. Lenard, 2010 Ohio 81 (Court of App. OH 8a' D)r.S^^^e v. Yqjyes, Cuyahqjga App. No, 87642, 2046 Ohi^ 5924; In re: Bentletr a miaao,-, 1997 Ohio App. LEXIS 2546 (Court of App. 014 8t" D,)y Stqte v. PaiwoSas, 1996 IIII1IIIIII^^^^^^^r ^^ tl Oiiio App. LEXIS 4957; State iT. Ferguson (1991), 72 ^b-ia App, 3d 14. The State of Ohio is represented by the Probation Depa.-tment. l^orr€>say v. BrewgF (19'^^^, ^^^ U.S. 471; Gagnon r. Scappelli (1973), 411 U.S. 11783 Wright v: Ohio Adult Parole Authrsrity (I996)4 7^ Ohio St. 3d 82; R,C, 2929A55 29a3.0$; Cr^rm R 32,3, This Court's duty of rio€^^e as directed by due process requirements for a probation revocation hearing does rgot incluu^ ^odoe tr, the prosecutor as the prosecutor has no due process rights in revocation hearings, Gagnon v. ScappelIf (1973), 411 U.S. 778; gi€ate v. Lencrrd, 2010 Ohio 9 1 (Court al'App. OH 8'^ D ); R.C. 2929, 15, 295 1.08; Crim, R 32.3, In complying with the due process standards as set ^orth, above, this Caui•t held a probation revocation hearing on the reoord on January 2, 2014, wherein the State was represented by the Cuy^^^ga Couiity Probation Departmegit, Probation Officer Victoria Beyd, and tiie Defendant was present watla casuiisel. In. hoiding this probatio.L revocation hearing, this court followed the 'ioiig held customaiy procedures pa•aciiced by the Cuyahoga Coueity Comm on Pleas Court, General Davasion, ^r which Mr, Mccl-irlty served as a Judge for 19 years. In following these pe.^^edures at no time did this ^^^u.-I hold or pw?^^pate ill .-x p^e -hearings or communication as alleged in the motion to reoa^^^ as the state is represented by the Probatiori Dep2^^^^nL This court is cognizant esf its- etliia^^^ obligations and at no time does it paaiictg a^^ in ex par#e commuiiications. This Court is obligated to report conduct which it stispect^ ^^^^ be a v€olatioti of the Ohio Rules of Professional Conduct. Therefore, the Court is refera•ir:g this inatter ia the ^upr^^e Cotart Disciplinary Counsel to determine whether there a^ an ethical violation oir the part of Mr. McGint^ for knowingly riaakiB^^ faise allegations impugning the integrity of't^^^ cotart and the efficacy of the Judicial system for 2 / allegedly lhaving ex paile communications and hearings, very lerious allegations. Ohio Rule Of Professional Coiiduct 8.2(a)a Iprosecutor under law caai as^gue, incarceration at dz^ ^^ntencitig phase of the crirnaraal, proceeding, "but does not have a second opportunity to do so at a probation revocation hearing, Thereforeg according to legai precedeats and auahority^^aboti>b set proseciition"s motionL. `fhe January 31, 2014, niotion to hssld a pr(bba.,eon violation hearing is being den§ecl ag the, court was aiRrar^ of the arrest of the defendant at the hearing of Jaaiiiary 2, 2014, and issued a punishnient that adequately addrossed ttlat sanie issue, raised again bv the Ja,yuary 31, 2014 motion, This Court ordered 60 days in jail and inpatient trea€xuent. As the prosecution is not entitled to notice of probation violation ^^aflngti, it w"lx flO' receive nOtice eitiler fxom the Court or from the Probation Dopartrnczit. Nowever, the ff r^^^^^tor can check the Desk Book `vh:ch is (Veft tO the Prosecutor or the docket for scheduled probation violataon hearings as has beera customary in Cuyahoga County Co¢nmon FIM Court, The hearings ^^^e public and the Prosecutor is -n#xtled to attend eaw3°a hdaring, At all ^'^ulurti probatiort violation huaa^^^^^ in this case or aziy offiar case, should the prosecutor desire to bring to the attention of the Co^arc or k^- Probation Depa-^Iment acts that knay be a probation violation, it nnmy do so, ,^^^^ the State is repiese,q#ed by the Probation Department, the prosecutor is tio^ inherently entitted to speak at a Probation hear;ng, In the event the prosecutor's'Offic-, desires to speak at a ^^earing, it may only do so with ^eave of COW, A Rcqtiest for Leave ^^^ be Heard shall ^e filed no later than 2 days before the scheduled probation rovocatioai i^^^^in;^ and shall include any evidence 3 / and wisY^e'sses supporting the claimed Vi4,lations. ^a,^e s^.yec^fic statements ^u to (Iie vi^lat^^^ ^haii be set f^gh in detail in a briof ^^ta^:.hed to the re^^^^sL The Reqi3^^t f^Tf Leave to 'be Hmrd shall bQ served oii the Probation Department, Counsel for the ^efesnd^ntl aald the Defendanta should the Defendant wish to pr^^^^^^ ^z-o ^^, at least 2 days Przar to t3te hm.irg, Prior ev€&nce and ^^^^inioiiy rece^ved at the F^^^^ncind will not be ro.aaeeMred a:^ is iia^l 10e, considered c3lr.kulafive or repefiti<'+kls. IT ^^ ^^ ^^^^^ZrW, PY.ATE...... ^^^^^^^^^^ ^ ^^ ^^RVICE A copy of the forgoing ^^^^^^^ ^^^^ was ^^^^^ or! the i^^^ day of Febr€^^^^ 2014 by U.S, Mail to Attorney Craig W. Sm€^^^^^ ^ou^^^l for Defendant, 1914 k,faiN U^eye^andd Ohio 4^1C19p ^nd, by personal delivery to: ^u^^^"f09a Uou rrobatio^^ ^epdrtmentp 1200 Ontario street9 7E?, Floor Cleveeand, Ohio 44113; and^ ProSecutor Tima^hy J. t^^^^^ntys ^^^^^^^^a County Prosecutor, 1200 Ontario Street, 9'^ ^^^or, Cleveland5 Oh:^ 441i3, ^ ^PB) 2 4 20I`) C,%:erk of Courts F., EIGHTN'^^ST^^.^, ^^^^^ OF APPEALS NO., ^ X ^ F FRAECIPE STATE OF ^^^0, Triai Court Case No. CR 542057 0 V►' 4- pIaintiff ^I^f OP MR. Date of F@nal Judgment ^3A i; in'l'riaf ^^urt: February 14, ^^^^^ uvsA ^`^3^ ^^o^8^e G; op^^^al Was Filed Timeiy BR8AN K. WASHl^GTON ^n compliance with. Defendant App.R. 4(A) -- within 30 d; ;., of the entry of judgment ^q App.R,,4(B) - exceptions :c; the 30-day requirement TO THE CLERK OF THE TRIAL COURT: q ^ 1. AppeI€ant requests that the clerk immediately prepare and assemble the origqnal pap^^^ 8-nd exhlbits filed in the ^^^^^ court and a certified copy journal entries, of docket and q 2. In addit3on, app^^^^^t wiil cause the record in this app^^^ to ^^^^^^^^ the (if appl^^^^^^)^^^^^^^in g Z' a. Complete transCript Linder appellate Rule 9(B). q b. Partial transcript under Appellate Rule g(B). q c. ^^^^enieM of evidence or proceedings under Appellate Rule 9(C), q d. Agreed statement under Appellate RLile g(D), Respec^^^^^^ Submitted, T#^^OTHY J. klcG9NTY ( 0024626) CUYAHOGA COUNTY PROSECUTOR- B',/. T. ALLAN REGAS ^0067336; iMARY POCGRATH (0041381) Assistant Prosecuting Attorney v ., . ^ FCa 2 4 zo1n ^ v^i^^/.^>'^i3'^^'r^.^-fl^e ^.v P1 r,•f + 1A°^r t`j ^°:/srJ /v+r' .,.?`^r r.. 1^..4s,.s r^^^/d+ ,3 r r r ^'%!r^ ... i 1 , - sr /^f ., .fr^.^p. e,fv/^^ ^+'f ^ r . i ^ ^ ... i r , ♦ . % 1..-,. . . { . . . ^ v . .3 ^..^r3r^E1 d r. dA Tf-vV'ir.5%l ^ ..„.^,^ ^..+._ ^.e .. f ^i%., °•.+J e^ :..i ^ , ,'^ ^ a.: '•f /e v^%/, i . ,. a By° r''.^ .r f•., e^-. : , i r ''9 , .,,I.,,. ,.., t ../'..fi` r a../^^, /rJ. ^ ;A^^i Plaintiff ('A ^^^AN K. WAs^^^GT^^ Defendant A. THs S APPEAL SHOULD BE AS>_GNED TO: ^ The acceIerated caiendar. The ^^gular caIendar 0 Denial of baia appeal. ^^^^^^^^ to the accelerated calendar for the reason(s) checked (^ep- Locad Rule 1 I . ^ y^ L.,....., q 1, No franscr^^^^ ^^quired, q 2. Transcript and afi ^^^^^ evidentiary materials consist of-o€^e hundred -100) o,- fewer pages. Assigned to the regular caI^^^^r with $uEI briefing for the reasons checked. q 1. Transcript a.nd:all other evidentia€y materials are mare, th^^ one hundred (100) pages. q !. Brief in 6xcess of fifteen (16) pages €s necessary to argue the issues adeqLiately, q 3. Appeal concerns unique €^^^^^ of ^aw that will be of substantEal PrecedentiaE value in determining sim31ar cases, q 4. Appeal concerns muftepie or cornplex issues, q 5, A stafeme€it is submitted under ADp,R. 9(C). / ^. THE FOLLOWING ^^^ST^^^^^ APPLY TO ALL CIVIL AND ^^MUST^^^^IVE APPEALS: I . ^^^^^ ^^^^^^^^^^ order: (a; Has the tr;^l cowl disposed of all claims by aiid against all park€^^ ^ El Yes. Attach copies os' all j€,€^^^^^^ts^ and orders lndicatd^^ that alI ^^^irris agaiiisj ai^ parties have been disrnissed. [7 No. (b) If t€lO answer to (a.) isF'n,aF h^^ tl^e trial court r^^^^ an express deter€^^^^^^^^ that there i-s '^no just reason for ^^^ayJ" Per Giv. R. 54(8)F wi#^^ respect to the judgment or order from which ^^ ^^^^^^ is taken? El Yes, in 'Zhe same judgment or ordler. n Yes, iri a sttbseq€.€ent order dated ------.^^ Attach -a cOPY a^ the subsequent arder. D - No. is the judgment or order swbj^^^ to ^^^^^^^^^^tM appeal t€nder R..'°,. 2505. 02 (check all that apRly)^ f.. ^A.-..-.-c. -_ a .>US.^:a^^(#^I^ l right in an a-}°ion and pfeven"s a j€.^dgiiien^. ^^^ ^.^. ^^^^.^^^^3^^^^. E-1 Yes, because the o^^^r vvas made in a sPeci^^ prooeed€'ng. See R.C. 2505.02(B)t2}, ^ Yes, because the order vacates or sets aside a j^^^^^^^^t o- r grants a new friel. See R.C, 2505.02(B)(3). ^ Yes, because the order grants o, denies a provisi^nal remedy and meets the other criteria of R.C. 2505.02(B)(4) ^ Yes, because the order determs^^^ that an action may o:° may not be mairita€ried as a class acfiiori. See R.C. 2505,02(B)(5) No. (d) Does the right to an ;pilknediat€; ^^^^^^ arise ^^^^^^ a provision of statute othe- than R.C, 2506M? Yes, Identifiy ^ . .•:5. . .. ^^OTE. ^F THE A^^StAIER TO ALL OF THE ABOVE IS 'M}` THE ORDER ^^ NOT A FINAL APPEALABLE ORDER, AND THE AP^EAl. ^ILL BE SUM1AARI1..Y ^^^iO^^SE^ ^^^ LACK OF APPELLATE JURESDICTION. 2. Nattire of case: _, . ^ Administrafve Appeal Contract ^ ^^^^^^^^ory Judgment Domestic Relations Ju+^eng^e IViedical Malpractice ^ Probate ^ Other (descoibe); _ 3. Do you know of another ^^^^ pending before this ^^^^^ that raises the same issue or issues'^ ^ Yes El NO lf Yes, please cite the case(s l): 4. Does the appeal turn ^^ ^^ interpretation or appli;:.^^^^^^ of a par^^cui^r case o^ ^^^^^^^^ ^ Yes No, If yes, please cite the case(s) or statute(s) ^ . - ...... How wouId characterize the extent of your settlement discussions befior^ judgment°^ ^ None ^ Minimal 0 Moder^^^ ^ Extensive 6. Have settI^i-nent discussioris taken place since the judgment or order appealed frow. was entered? El .^^^^ 0 ; ;. 7. Would a p^^^^^^^^^ conference assist the ^^^oMiof^ of this rnalter? q "' ;j No Nlaybe Piease exp1a3r, ^ 8" Briefly summar€ze the assignments of error prese>^^ly antgc€pated io be raised on appeal. (Att^^h a separate sheet i^ ^^^^^^^ry. ) T. ALLAN REGAS (0067336) ioAR'^ MCGRATH (0041381 ) Ass€^ta^^ Prosecuting Attorney' ^ r J,. lP:l ^^3 I; ^1^i^r ., . ! 1 ^. ,^_ ^ .. J J %" l^iv ^•. j d.%F f/ ^Fl,! /.^.3 GIi- ^'._l^ %a^ ^ °Jr^•'0^^ i ': ^. a•..1 •, r.. lf.iF 01°. Plai't1ff=APPO).^nt, ^ ayy_ ro,j^f. ^0rC7 f'.w& ^s -^ i.3 -^.L r.^ i.^ a .5.^4.. 5 4 a 98 3 q - { iD Cy S..$-.Y,2SJ^i y,ny' ^^ , Cfi ,fi a'^ It°^.N K. ^ ry^ H.^. ^d^^ET ^.IY`i J^ Defendant-ApPellee ^ _....,>_..._.,e_.,-_., ° r0 -7'o Ji 1 s. .rS.., r'•+•, •../ : ...r: i ^Ji.' . 3 1i^^!^., tJj'^ '`^ APi^^ C,'Oun,'-;el for Pla.in.tiff=Appellant 'F r^-^T-q. +[. '^. ^^ ^ .^ ^ ^-^ .G. J. ^ ^'3 J T.^y ALLAN^y ^a,="^^-_, YaE^'' ^° R A^^....^,5^ ^ nT F. .S i+^ +/T. SI / AY )MI-C L. S .4.1 & J^i ^ ^. ^ ^.C}^', g 5 ^4,^ ^ ^ y^ ^^^^^"sk^.^^ TL`°a.^'-`^.^ ^ .P^() ^ / ..^;^7^.T°^'I_„al^_A ^^"^`y^`^^R^^^^;:^ The P^^a^tice Center, 9r.tl Floor 1200 Ontario Street ^.^`leiTeland, ()hic, 44113 (210) 443-7800 Ceunse] -fer DeRzr^dant,Appeqjee ^ `%%; .,,-^ _;;- -•,l., ;•..•; _...i., ....1.t_^.oe 1914 Clark -Avenue Clevelar^^^, 011je 4410^= p 539-715'-7 -1 .,_/.e.,i^%^, 3 i-.i-i ^ i e1 is'-9^` !e r^ 1^;; k._/ ._^ ,:^^ ... .^ ^-.'., ^. ^' ^_i;-'r,s'..,...^ D;'!TRi?_ T O1.^ ^_..^1..•;;.^$^^-i'.r lt`.'., r00U:.°eTil > ^' ° a'., r: % ^ -_rlr,:.....+a,,.1?` ^"f „, .^ .. . _ »:'. .._;.° v=$^^^^^'',' ° i^^-1.dv.0 ^ Piaintiff-Appeii,,jut ^ -'^,p•., ;,;;: e•.; ,:..r ^ so,. _.___-----,S1 Ga..ax: -____ --'------: .:.._• .._^ -VS_ . ^A 3 ,.e .i+i I^^ r 1 . v ^^ , ^ .y i , ^._.v..ivv.r ^^ /.. ^'J AViii^fu / r° ^^%'' -----i+^f _.r_------. ".l^^^; ^ ^Y,'hJ,. ' ir%^ .^%.r f^r_^..l..I .'6'f .i7. .!P.r.,.:...% sr.>. . . ^ . i e:.'1^+^''^-^.1..+s.' Deii;j.i.dant-Appeilee ^ Now comes Timothy J. McGinty, Cuyahoga Cou-ntY Proseetitor, and respectfully requests l.eave to appeal pursuant to App. R. 5(C), R.C, 2605.02, and R.C. 2945.67 from a trial court order journalized February 14, 2014, for the reasons more ftxliv set forth in the Brief attached hereto and incorporated herein. Respeetftilly siibmitted, Ya 1M 01y11 Y J -^ ^ ^ ^ ;^ /- ^.^ ^, ^ ,^^^ ^''a-^3" ^# 0 ^^ ^ -, ^°, 6)- q-y Y.^ UIVA.9.1..Oe.-. A COUNTY ,i^,^5r A^ l^ ^3 ^e.j .,y, ^%.6-S, . S y{5e, 1e T. A.L_d^.5•^3.^^ ^^4i 9 4y AJ^i,-^.5^S^' ^ ^ 4^1^' d/ rI C^^ v.%+ ^ 29f iV1A R Y 271 C G --R, A'f '.^-1 `^^^^G•^I .3 8 1) ..^.Sf,7'IpJ'T'A.i'AT P.ROSEv../TLIf117ING ATTM': NEY The J-«stiee Center, 9t}i Floor 1200 Oaitario Street Cleveland, Ohio 44113 (216) 443- i 800 i'. J1?,kE "/,9 The State of Ohio respectfil1jlv seeks leave to appeal f^on-a an entry of a trial court ^oux•iialized Februarv 14, 2014, de^-iytng the State's Metien to Reopen Flearing azid Hold Full and Fair fl_earir^g Upc,r^ Brian K. Washington"s Njiolat-ic^^-is of Cemn-iullitY Control Sanction Violations arad the State's Moti'.vii to Hold a P â:°obatzell Violation Hearing on Brzai-i K. Washington's latest cramznai citnv,ction and Violation of Coinrriunitz% Control S anctiuns. A copy of the trial court's order is, attached hereto as State's Exhibit 1. Til its arder, the traa_l. court beld: 1. ThevioIat^on State he^^^ings, does not have a ri^ht to be p^°esei^.t at col^:linur^it.^' ca^^trol. 2. The ,^tate. is 1at3t entitled te ^^^^tice of comxnuz^.itv control violation ^ieaYZngs; 3. The trial court will not provide notice of cemmunity control vioIatio hearings to the State or the. geiieral ptiJ^lic, aad ^ A r-P„ , lle^^:^'r^ at cemmunitY control vielatiui-i hearzrgs, the State ^nust request leave to do so, ir^ writir , a al ih = ^ EI11111i1.7Ti Of two 1+71NTc lvc3;,r^^b earing and pro^^id-e notice of all. evidence and wi c t^te claimed vi^3latienstxlesses. suppc,rtir^g tile - ?.Ei The State of Ohio pespectf9a11^ subniit6 that this Honorable Court should gra -nt leave to appeal. for the followi^^g reasefl-is. The trial court held that the State is not entitled to notice of comillullit.y control violation or revocation hearizw-s, as probatioll efficers represent the State in court. The cc}-Lirt found that its prebatiO n officers fully represer^t all State ^^.te^e^t^ and fulfill all State responsibilities at these liea_rings. The trial court further held .1. that the State may not be heard at violation and revocation heariligs unle ^_,ss and until the court grants leave to do so, upon the State's written request filed at: least two days before the hearing. The trial cotirt's order ignores the very title of the case before this Court, State of Ohio v Brian K. Washington; the fact that the State is a party to these cri^^'in^d 'ases and, as s't.ic h, is el^t9.Lled to notice of all Proceedil7.gs within the case. The trial court, defies Ohio law: "The prosecuting attorney shall Pgosecute, on behalf of the state, all corraplaints, suits, and controversies in which the state is a party." R.C. 309.08(A). The County Prosecutor, as the State's legal retareseF^.tative in these criminal cases, is entitled to notice of all proceedings --- including violation and revocation hearings. Probation officers are employees of the court, "R.C. 2301.2 7 allows coairts of common pleas to appoint probation officers, fix their salaries, and supervise their work." State ex rel. Hillyer i1, Tuscarawas Ct,y. Bd. Of C"ommrs., 70 C3hio St.3d 94, 100; 637 MEM 311 (1994). Trial judge have specialized probation officers appearing in special docket courts and have full control over them. The probation officers are not prepared to confront or contest legal argunaents made hd their employer, the Court of Common Pleas. ln the trial. court's order, however, these court employTees-not prosecutors-represent all of the State's interests and satisfy all of the State's responsibilities in court. The trial court offers no valid explanation of how court employees may constitutionally do so. A judge could wrongly not, want challenges or c>piniens on the record that contradicts its decisien-rnal^ing in violation hearings. The State has the burden of proof at revocation lgearings -- to establish a violation and revoke coanmunitv cehatral sanctions by "substantial" evidence, state U. Lenard, 8th Dist. No. 93373, 201(}-Olaio-81. Probation officers are court employees; they are not atterneys and do not practice law. The trial c.el,igt Iias delegated axi evidentiary burden to nc,n-lawyer emplovees of the court itself. They do not, have the ability to subpoena witnesses or records. They have never presented witnesses (on direct or cross). The trial court's order is tJ_n unconstitutienal judicial pQUrer-grab from the exectitive branch and violates the separation of powers. That bas never been attempted by any other court in the long h_istory of this Common Pleas Court. Barring the State's legal representatives from being heard at violation and revocatiozi. hearings without leave of court is the ^,l4im ate ciawriti3 r .__ , ,. . zaa^ac; s^x cttx in1peI`la$ jYlfXlclary and re^"Jugna.tlt tE3 coIl.stltutltJnal law. T^e trial lllLB.H"L, lias xieid it v^rill not provide notice to the State, a party, of the scheduling of violation or revocation hearings. Such conduct may be convenient to the tria.l. court but it prevents the State from its statutory obligation to prosecute and sustain its burden of evidentiary proof at these hea.rings. The trial court has control of the probation officers and knowledge of the defense pesture in advance. If it, can proceed without real confrontation and assume the role of an advocate of the defense, without adversarial challen^e, the public may be again harmed if it has no 3 voice in court. Poor decisions h-v a trial court can result in more unnecessary victims o€` violence and crime from the likes of a Mr. Washington. If leave to appeal is not, granted, all fixture appropriate relief. will be foreclosed, to the great prejudice of the State. ''he trial court's order affects all future co^^munityr control violation and revocation hearings and. should be reversed as unconstitutional and a disfavored blanket Q 4 c^ y d 1dvL1J 'l-:Gl^,* a.LE2'^Cl:C 1$.A ^ ,^i'las a ,^22n interest in violatiora. heariaigs, as a party and. representative of the commuraity and victims of crime. A fair and reasonable trial court wants a balanced heari.ng of the state arid the defense arguments so that it caii maintain a neutral position aiid review all the pertinent facts. A decision barri-rig ®bio"s prosecutors from revocatioax hearingg and. delegating their authority to court employees is the kind of "step in the direction of arbitrary power" the Supreme Court warned about in State ex rel, Bray u. Russell, 89 Ohio St.3d 13m2l, 135, 729 XE.2d 359 (2000), The State respectl'-Lilly submits the trial cou_rt's order warrants this Coizrt's review. 2, tf;' le-%/a;;%, ... . _ ^s . /..,,'...3.9/+^'^s e. d+.,..^',;^^_ s In 2010, Brian K. Washigigtoz-i was indicted in CR 535298 on charges i-r-icludi^^g A^^ravated l.^,ol^besp^^, Kidnapping, ^`hel't of o Motor Vehicle, De#'acizig the identil`icatioxa Marks of aFirea.rm, and Attempted Having Weapons While I_T^der Disability. As in past cases, Washington was assigned to the Mental 1-lealth Court docke.t. Over the State's objPction, the trial court lowered Washing-ton's bond to a ::^. $5,000.00 personal bond, which Washington posted the same day and retu.rned to the streets. Five months later, while the case was assigxied to the slowest docket iia Cuyahoga C",otaiity Common Pleas Court, Washirflgton. was, as to be expected, ftom an habitual criminal arrested again and subsequently indicted in CR 542057 on a charge of Receiving Stolen Pro p erty ;R;^^9-'^`° ;' d-` 3, ^1vse^, x. ':.^..d^a ?cestary ^ v.icti.^a Cii a C;lotiti r docl^et• and poor judicial decisions. In 2011, Washington entered guilty pleas in both cases and was sentenced to community control. sanctions - despite having a 22-year criminal career that iiicluded over 60 arrests, 33 felony corivict,ions in 25 separate case:s, and - 3 indeperadent prison sentences imposed by 12 different Judges in a row of the C'uvahoga County C'ourt of Corrainoii. Pleas. Washin&on accumulated new probation violations includi.ng testing positive for cocaine and being charged with assaulting his wife, resulting in a capias for his arrest. Before being arrested oli the capias, Washington committed another auto break-in, was arrested, and charged in Cleveland Municipal Court. On J-anuary 2, 2014, before Washington was convicted of his latest ofl'e^ase; the trial court conduct.ed. a community coiitrol violation hearing in k",R 5,3,5208 - without journalization of the intent to hold a hearing and withoiat, notice to the State. Despite its knowledge that the State was very concerned about the case and the violation hearing, the trial court found Washington to be in violation of coinrza.unity cont.rol. sanctions, remanded him for 60 days, and continued him on community control. (A copy of the transcript is attached hereto as State's Exhibit 5 2). The State moved to re-open the January, 2014 violation hearing based on the lack of notice and opportunity to be heard. Thus, after Washington was convicted on January 9, 2014 in Clc-v elan.d Municipal Court, the State moved for another community contro]. violation hearing, on grounds that Washington's conviction constituted yet another violatiori. -His latest crime was a broad dav1igl^t. T)rea^.c.-in? of a car outside a restaurant. Ohio City. 1-1e smashed the window and stole wrapped family Christmas presents and other electronic devices. This brazen act was recorded on film and showed the work of a professional thief. However, the trial court refused to even allow the State to present this evidence at a hearing. The trial court refused to S'et a. liearing for the State to be heard and the trial court's order of February 1.4, 201.4 denied both motions without hearing. 3. The trial k',?3urt's :Wd.er is a final order su,bjt?d"`.t to revie w amY% a;.ti it % ff$'t',t:°^ a su9ry`^A'sential rActhtr_-}^bf5.^^.'; ^3t^'x."^;t? ^'^:9°e°Bk,ew°.'^i,^?^^ ^v b' d'cJe s violates the separation powers ai:^.d R.'C, 309e08Q forecloses appropriate relief in^ the fiatm:°e., ancl. pr^jud;cvs a party :nvolved., The State is required to seek leave of court pursuant to App.R. 5(C) as the trial court's order is not a decision in a criminal case enumerated in R.C. 2945.67g from which the State has an appeal of right. See State u. Tohatz, 811: Dist. Nos. 982)65, 98266, 98267, and 98268. R.C. 2505.02(r3)(7-) and (2) provide: (B) An order is a firial 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 judg^nent,; 6 ( 2) An order that affects a substantial right made in a special tipen a summa_•^- applicatieii in an actic^n after judgrrzent; prc^ceedit^^ or R.C. 2505.02(,A)(1) and (2) define "substantial right" and. "special proceedirzg" as follows: (1) "Substantial right" means a right that the IJr.iite;d States Constitution, the Ohio Constitutioxi, a statute, the common law, or a. rule of procedure entitles a person to enforce or protect. (2) "Special proceeding" a-rieai^.s aii actic^r^ o^° prec eedin,-, that is speciail created bY statute and that prior to 1853 was not denoted as an ae,ti ^ or a suit in equity. on at law `An order affects a substantial right only if, in the absence of ari immediate appeal, it ^erecl©ses ^pprGpriate relief in the future c^r° prejudices one of the parties anvelved, Be-11 L,. Mt. Sinai d111ed. Ctr., 67 Ohio St.3d W, 63, 616 N.E,2d 181 (1993) " State u. Awkal, 974 N.E.2d 200, 2012-Ohie-3970, T12, a- A bi.anket. poja:ey that the , tate will nS?^^ U 6:^;:re.)i -^,-i^slx^€:io$^ be notflf3:;d of n'om9: nu.^'.ii'; ^r and ^°e^,..^^°^^t^.on hear3^aa^=,hearings ffi.4^^ } ^,. p 'a rt^'rty i^'s ^'Qa&v^` d Ey^} k^^'' ^^^C,^t h^;s".^^3^e ^'.gti; a of a s%°a.^isst^K ^3.'s,cQ`A-fyy ^ ,> i ^.'i^}Rt ^^A'^X`S:i3E'tL-yd hNj l¢1 '.e ; a•v a. 3:i zs'^^'^s^^:^a^3 . '^"A.s^ ^.^v^ao - e^^a^)& r^^ Tb` Qw-e is a party inve1ved irl t}lese cases, State ti. Ma,>hr:41,0;tOYc,, CR 53,5298 and 542057. As a party, t.he State is e-ntitled to due process in these proceedin^s _ ^ reasonable notice and an opportunitv tc, be heard. The triai court mistakeni r 3 believes that Due Process only bei^n^gs to the criminally accused. The court's order is applicable to every future communit^ control vieia.tir^ii. and revocatien hearin in g the court axid may be adopted by other trial ceurts. In the absence of ai-i iminedia te appeal, the court's order forecloses appi°epriate relief in the fi-zture and will prejudice the State. 7 The trial court's order ignores the Prosecuting Attorney's statutory duty to prosecute, on behalf of the State, all cornplaints, suits, and controversies in which the State is a party. R.C. 309.08 provides, in part, as follows: ;^ v ^ a .J J !J. ,+ ;/ J. ../J^ /^+°/1rrJ! r 3 ^vt°-;l i/d•^'^ d.ss,.^-!d^ j_e//^3 !/. .. ^ . J ^ / l.s^i.. 1, , s_fJ-r d?a %/ r . .1 (A1 The prosecuting attorney nray inquire into the c,arun,ission of c.rirnes within the cotznty. The pr•osecutin^,n attorney shall prosecute, on behalf of the state, all cornplaints sults, and c4ntrOUersies in which the state is aparty except for those required to be prosecuted by a special prosecutor pursuant to section 177.03 of the Revised Code or by the attorney general pursuant to section 109.83 of the Revised Code, and other suits, matters, and controversies that the prosecuting attorney is required to prosecute within or orztside the county, in the probate court, court of common pleas, and court of appeals. In corrjunction with the attorney genera_l, the prosecuting attorney shall prosecute in the supreme court cases arising in the prosecuting attorney's county, except for those cases required to be prosecuted by a special prosecutor pursuant to sectiotr 177.03 of the Revised Code or by the attorney general pursuant, to section 109.83 of the Revised Code. R.C. 309.08(A) (emphasis added). The trial court found that probation violations hearings are not criminal in nature, and thus the State has no due process rights of reasonable notice and an opportunity to be heard. Prosecutor's duties are not limited to just criminal proceedings at the initial charge and trial of a defendant. "A violation of conzrxaunity-control sanctions, by virtue of a subsequent felony arrest, is certainly within the concept of `cornplaints, suits, and controversies' in which the s, tate remains an interested party." State v. YOung, 154 phio App.3d 609 798 IOT.F.2d 629, 2003-C}hio-4501, T 7, citing State U. Ferguson, (1991), 72 Ohio App.3d 714, 716, 8 595 N.E.2d 1011. Prebat,ieniCemmunity> Control Revocation hearinH6 reniai^^ w^its in which tbe State is a party, and therefore C11aiQ's prosecutors ma-v at^eiid aild partic;ipate. Young, supra. See aiso Rober°ts v. Ross, 680 F.Supp.1.144, 1 146 1 ^.D. Ohio 1937) (There is nothing in R.C. 2951.08 that prevents apro;;ecutor from seeking a warrant to arrest a probation violator because R.C. 309,03 requixes that prosecutor prosecute "=?ll :'om'^^laaa t5, seiat^, ai:Ei^ CoYIt^`C3^rerSles iii L^i'hiCh the state is a part3'. . .}9,). Moreover, this Court ha.s held that the State has the burden. of proof at revocation hearings to establish a violation and revoke cerraniunity control Uan.ctioi,s by "substantial" evidence. State r). Lenard, 8th Dist. Ne. 93313, 2010-Ohie-8l. Lack of notice and an opportunity to be heard prec.ludes the State from sustaining its burden. The trial court's order puts that burden on non-lawyer probation officers wlso have no training in. that regard, who have no ability to compel witnesses or records. Il'the defense misrepresents the facts or the law to the court, there is ne, one present at the hearing to correct legal or faettial error. 'Lhe tri.ai court failed to cite any case that holds his ruling as acceptable law in the U.S. or afl-iy other court in Obie as having served an order. As more fully discussed below, the trial court's conclusion that Z,ercard, 112orrrssey z). Brewer, 408 U.S. 471, 92 S.Ct. 2593 (19 714)9 and Gagnon u. Scarpelli (1973) 411. ? T.S. 773, hold that prosecutors have iio due process rights in revocation hearings is not supported whatsoever by these opinions. A search of all State and Federal opinions revealed iao opinions that held the State is not entitled to due process rights at viUlation. or 9 revocation hearing,s. The tria1 court fa iied to find ol° cite a six^ court ex parte hearixigs to be co^stitutiona.l, ^Ie that ^e^ds its The cotirt's order bolding that the State will not be n revocatioii hearings r^za ot^fieE^ of ^iolatioz^ and and. y not be heard unless granted leave by the E©tzrt is a vioTatio1-1 of the citze process rights of a pa-rty, the St wiii be foreciosLdA ate. All futtzre appropriat,e relief ii ieave to appeal is not ^° ^^ar^te^d. The St,ate ^vill be prej^aE^iced, as it will not be notified of hearings to which it is a party or be permitted to speak or present evidence unless granted leave by the court. In adopted by otheY trial cou^^ts the L the event the court's order is ^Star,e will be precluded from appropriate relief and p^'ejuE^iced. b< Probation as a y. ,[ ^+^,^^ ^^^S^L lo^r 'C^.^+9.^ b ^ c^S^ k ^^£.^,, CQ^li..D°^8^ ^'^s ¢ ^p. ^^s^eY^^;^^ $ 15 ^^.^° ^i^..ie Wbe st%Ew^L`5 ^^e^Blati^^`^:^. and j3'^te8.eb^y, y, s.:,4 s^^-, ^. ^'<;^v^3^"°a^.^;7 ^^3 'v 2 ^:i6A. k .Lp^gLf, The trial court's i11sistence that probation. r;ffio-^.^, ,^'epP'eserttatiVes" of g'^ ^^eE'a13ae ^.^^e ^• the State i -nores the basic 9oVerlinaentai sti 'Lictu those probation officers ^ ^e in ^ ^zc^ wop.^. ' 6^..C,. 6 ^301.2^^ allows courts of coMxrlon appoint probation officers, fix their sala^°ies ^Ieas to , and supervise their 4vork." State ex r•eZ. Hillyer v. Tuscarawas C"tv. Bd. of C`oiamrs. 70 Ohio St3d 94, J-00, 637 N.E.2d 313 (19-94). In the trial court's view, however, these coux° ; fully t empIoyces, not prosecutors, represent the State's interests aigd fulfill the State's ciuties. The trial court offers no valid explanation of how court epnpioyees may The t^'iai court's holding constatutioaially do so. faiis to recognize the differe-nt, sometimes conflicting, roles of prosecutors and probation of' ^ , f^cers. A probatio11 officer "acts as 10 a counselor tc, the probationer, and the officer's function is "not so much to compel conformance to a strgct code of behavior as to supervise a course of rehabilitation ** ^." Gagnon at 784, 1760." State v. .F"arsorc.s, 1996 WL 665004, *12. The appellate court in .Przrsons recognized that the conflicting roles, finding: Although recommending revocation and possifSlyT re-oresenting the State in the proceedings inevitably compromises the probation officer's role as mentor and counselor to tlbe '^`^^'`atl`g ^^.S'ner t ls.e4 rier.^`^a^;'con vfiiir is ni t^, iinl^ert,C + ^i iP^tC) l a prosecutor committed to "convict" the probationer of violating conditions of his or her probation. The probation officer is merely seeking a determ- ination of whether, in light of certain evidence, it is in the best interests of the probationer and the community to continue the probation. Id. As the State's legal representative, the County Prosecutor has the duty to prosecute crimes and protect the publ.i.c. A. probation officer functions as a"mentor and. counselor to the probationer," to seek rehabilitation of the offender. Id. lt may u7ell. be impossible to find aprobatien officer who lias advocated for revocation, particularly one assi,-ned to the Mental Health Cetirt or Drug Court dockets. Tasking aprehation officer with a duty to seek or advocate for revocation is unreasonable; it will compromise the officer's fzatux°e relationship with the probationer and, more importantly, mav place the probation officer in danger. By holding that the State's duties are fully satisfied by the presence of a probation officer ignores the statutory, prosecutorial duties of the County Prosecutor to participate in all complaints, suits, and controversies in which the State is a party as reqtzired by R.C. 309.()8(.A,) and the fact that the probation officer works for the court, is sometimes c1losen by the particular judge for a decisive duty, makes it unlikely t^, Probation flflii,er ^III ^ut flTl recflrd Its s P^'flbatifln flf^'^c;er', bflss-the ,^uc^ge. trong di'agreei^^^^^. ^ ^^^ the None of the, a^tbflrltl0s r^^^o,a ^D by the trial cOult certain the do not s^^ppvr, ^1C? ^IX1C'C+nq;tUtlfln{ll, sLzr'PepIIlgr PowflY'°g'rab flYlVIS1flI1ed by th trial flf3ti^^5^ The trial court relied on t3r^^C?^, d^,'tate ^^r^.ght L Oh.to Adult Parole .^^u.t^i., ^c.3C^ 82, ^F^^ b^T.^.2C^ '`2^; a C^}lao na4,„ , . I°e ^ i^^^^fll^'ill, a parolee who 9©u^hl a i^e^;^ parole ^'flea#^flr^ ^ea^i^'19. Unlike the probation Officers ^ ^ thl' ^6rIth.311 the s case, ^^arC^1e fl#'^ieers work ^^^ ^:k£'i,Ll^i6'£' branch, and therefore Wright has no bear , ^^'hat^,^tever. ^^ C1` State e,^" rel. Bray U. ^r on ^^"il^ E.a^f', RusseIl, 89 <7 ^1fl °3a9 St,1;d 13?r 135 , ^9(^€^C^^ )• i;plfi.pe ^`JisF? 729 :°^ .E...,^d the trial court relies on R.C'. 29-99.I,'^ and R.CE39,v 31 .)L{wr both flf 6^'hI(:^1 aI£? :61Ie?lt C) r 32 €^^P,^^£^ prf3ba tIE331 officers aSSCdrne the Gl-i^;Izr^eC^ in R.C. 3a.08. ^ ial pY'oc^^.ttie:^:^flL ^^i3Y ^^flr i9 the tria1. cflurt'.^ reh lar.tce ^ .,^. 4a1,01, l^^orrisse^ ^ ^.r 9? S,Ct. ^^59^ (1^^a4)e^r,e'r, 408 r a` 10wa case deallF19 with the i,, ri ghts FJc^., ^i; ^^F3¢aii3.id^ 4 Y N/ nC^^tf3 g probation ahd parole revoca*ifln heari 1^gs any more . r thC, ^.1"1 ^^ ^a'^^F^Yt^-rC.^ 6dli, 4 {.)^^er ina ^ pplicable authflaiti^ ^. Altli<^ttg.^ l^^,ar-r"is.^ev reco f^ ^a^°flle^ ^s ^°^a^l gr^izei^ that ^ d^ta'nod at the diroctifln of a parole flfficer , ' abSfll^ately sIIent as to whose j'ob it Is to ^^ re, ^'^e ^ a:^C ^^ ^ ^ent the State's Interests ane^er Oh€fl ]avv. Contrary to the trial cour^'s, findings, Alv ^ rrrssu7 Leszard •^'c{^rrpel'li (1^^i<^1 411 U.S. rs ^^r^nand Ga^ ^^. s'^8, do 'lflt hold prosecut o flt^ have I2fl dLic, process rigin rE?`rflflatiOn l1earIIIgs. Pl..oeeCturR rlot applicable C'our#9 not tile iO'^^ ashinglC^r^; ai^^' ^%'arr ^^ fl^aCifln flf^^c^r:^. a^^t for arrest is i^81le d by the -1^^^ e-: The trial cc';.irs9s4 +i3'"E^°der s%i..^"ohaw':e''.; the doctz'^::,,^t^., of .ss p.rs.%'a-io^l cWxn P;lweX:ic Tt should be clear that the triai court's order in this case, supplanting the role of execa^^Ive-bralich prosec-utors with judi.cia^ branch probation officers, violates the doctrine of se^ aratio^. powers. of "The reason the ie^zisiat.ive, executive9 and j . udiciai powers are separate and balanced is to protect the people, iiot to proteet the various branches of governinent." State ex re1. 1I^.l7yer i). Tuscaraivas Cty. Bd. Of Cornrn.Ns., 7 0 Ohio St.3d 941,135, 637 N.E.2d 311 The trial court's order i.n this case is partictilarly egregious because Ohio's prosecutors represent the concerns of Lhe community in any sui.t in which the State is apartg%. R.C. 309M. "It is inherent in our theory of goveriiment `that each of the three grand divisions of the government, inust be protected from the encroachrneilt:s of the others, so far that its integrity and, independence may be preserved State v. Hol:hItausler, 76 Ohio St.3d 455, 463, 668 N.E.2d 4:5 a (1996). ciuotii-ig Euclid i,), Jerrtilson, 28 Ohio St.3d 157, 159, 503 N.E._9d 136 (1986), and Fa?,rL;r.epc; . Gi;fee, i3 Ohio St. 183, 187, 76 ME. 865 (1905). "The sepax atioii-of=powers doctrine requires that each branch of government be permitted to exercise its constitutional duties without interference from the other two branches of 1-overnment." St-ate zx rel. Dann u. Taft, 109 Ohio St.3d 364, 372, 2006-Ohio-1825, 858 N.E.2d 471`.?'o The triai court's order is a. clear violation of tliis doctriiie, as it supplaiits the roIc of execittive-k}ranc,h prosecutors with jtidicial branch probation officers and delegates the evidentiary burden to non-lawyer employees of the court itself. 1-0 3 rd _J 3 v 3 r ^ i v r '_ tld'v 9de^ 3 r ! 3 J ^ .r?r/'' 4 _ / . . ' d at Od d° 3JDt r v;i19 r.1,°.I,.^r 3 ist 3 / v! I,%l.ae v/{: l^^.F^/; j^v'rrr . 3 ,'iJ 3 yl.v , 'oi :'ovr:.^e^ ;/, rd:',i,i$l,./,v, r i; Gt ^ r ^ / -- l_ .,'e:..d I^ . . ..-L.^ .+ •_ ^J. _„'....J tGJ.tde:/^.'/' ` ! . ' ..,,.J r/ "%dr+• l '. 3 As set forth above, revocation hearings are siiits in which the State is a party; therefore prosecutors may attend and participatc lQung, supra. Mandating- that a prosecutor may not, spealt at a heahng to which the Si.ate is a party unless granted leave by the court is the saa^imate iexample of an imperial Jazdic:iarT. Such attitude ^ ^d was one reason our nation's forefathers found it necessary to engage in their battle fox• independeiice, Ferturiat.ely, their revolution was successful and a Constituticsn that created three balancing b^auches of ^ove^^nmen:; besuiteci. Arhii,raxy.hlanke . t policies are disfavored and have been found to he aii "'abdieatioii. of judieial. responsihiiity." State u. Jon,es, 996 N.E.2ei 569, 572. In Jones, the Sixth Circuit cited cases in which this Court reversed various trial court fixed policies including one eiitered by the trial court refusing to accept pleas the day of triai. See ;.5^^^e t1. Sr.vatoe-r, 8th Dist. ^^iyahoga No. 93533, 20I0-Ohio-24 a 3, 2010 WL 2206399. In adciitieii, to being a violation of due process, reqtixing a prosecutor to raake a ivrittern request to speak at a revocatioii hearing a i-ninimum of two da --s^ before the hearing fails to account for re;al-lii`e situations and ignores the practices of i-tiany trial courts of setting prohation vic}latioia heariiigs at a. tnoinent's notice or holding the hearing at the plea or sentencing of a. new felony case. In raet' ^ ^ee, a probationer rnay be hrought hefbre the trial court without notice to the State, 14 including an entrv scheduiing the iaearing being jeurnalizecl. 2 Often, defense counsel is appointed m4inutes before a violation hearing or after the probation or pleas in another. It is impracticable to require a prosecutor to seek written permission to speak and provide writteBZ notice of witnesses and evidence. More importantly, such a fixed rule deprives the prosecutor from an opportunity to represent the victims, whose ig!terest^ ^"^„->"4 ^,^ '-.`°„'-"„¢^.a .ex,^^, r^re ^Je.vtte t^ +.k ^evth ettipY'o^Jat1Qn officer, ^^ 2i N^.v_^a,^J i.^ #'3..^1 ^i- The State respectfully requests that leave to appeal be granted so that the County Prosecutor is not denied the abilitv to fiiii'ili his statutory duties under P;.C', 309.08. The trial ceurt.'s order affects substantial rights of the State, a party to these cases, to due process and violates the doctrine of separation of powers. The trial court's order, which institutes adisfaSTereci blanket policy, will affect all future cu^nmunitv control violatieii aiid revocation hearings in the court, and potentially additional trial cc,urts. In the absence of an ixrinieciiate appeai, appropriate reiiei`in the fLiture will be foreclosed. No trial court, has ever before denied the Cuyahoga County Prosecutor the request to represent, the State and this procedure creates a prejudice that would endanger the public safet^^. There is no precedent in C^^.ie or other states that suggests the posture of the trial court. The State of Ohio respectfully requests that this Honorable Court grant its Mot,iai-i for Leave to -Appeal. 2 No entry of notice was produced in this case. Nor will any docket aranazzncement be created by this trial court's new process. 1,5 Respectfully submitted, TIMO^^",z.HY J, McGi.;.^''iTY (#0024626) C UYAHa.'.^GA COUNTY PROSECC'' UTOR T. ..`-^a.LL^'3.N Rx G^AS (#0067336) 'V^.I ^ ^ Y"1^¢ . ^.^:1'".Y.^^ ^ .^ s. '°.^" 1_^^ ...... +^Z^^ . . ASSI ^^^n^ r; .. .6. e.f }JZ_.d e...^'^^^^^rysy^G @J A z... 5 2i i '^^ ES^TY^'^.^^^'`"'^". .G. '°4.Yx. $.$.^3 :en. The Justice Center, 9th Floor 1200 Ontario Street Clevelancl. Ohio 44113 (216) 443-7800 16 / ^:"%'.•v/ry.I.v !' y'^ v-/^". a ^ _ ^ ^_•v i'.f^h 3 r3 S i_ll;.:^______i^ i.s^.^at^r:^a?..e•l^^ ______l •_J. lf^^^1^^^a^^^F^'.• . _.v . v ! .. ^_ A copy of the foregoing State of Ohio`s Motion for l1eave to.Appea^ has been sent by regular T TU.& Mail this 224t'^ day of Febrii^.^rd, 2014, to Craig Sriotzer, attorney for defendant-appellee, 191-4 Clark Aveyme, Cleveland, Ohiio 44109. TIMOTHY J. MeGINTY (#002;4'.626) °^`^T. ALLAN :^. R^j' ^_ S^' .%^^• ^z".^^"`^ .^'^z^,^^^^ MA.^ ^ Y BJ- %X'9.RA.^ H- (0041381, ^ 1^ / N J s.f, r J 3 l^ L il; ^.s°^i.i.^^ ^^' °t_dJ° . ^.,^,...,.^-r;. + , %3 ?.i ^^!'^^ioir"^ •.1..%:.,_'i.^...1' •..JL'^.:. T '^ f /; ..''^i^'' ^^; ,/"'y •5 1 ^ "!v 5 F .i.:. si._'S ^.]. . . ; :.a, J'.. •..5 ;_ : 3 'i {1 .I ''^^^^,-v i•i^:; J'!'• 1ji.,:^% .^^^intif^ APpellant -Vs- j"r'p-v;':.':i,• .+.J r,,'i° +i J% R1`..r.^'F_. r - . ^."r°..,+, ^p,&n^^am-App^^j0,c, ....,>_a....,,..__ .6111._.._. ..1. r :^.J._; ^/- °lsr^/^ ' iv//!v,,v+/j°i ^ ^ / ^ja ^sieJ',•r ^ °fi^^ v fr/ ^! ^° r . 1.. L. ais :l1,_r!. ° . i^ 'i' C^^^^^^^l ff," Plaa^^iff^Appe1^ant TI.^ OTHyj G'A ^.^`OUNTY P^^^^^^ ^^TOR T. AILAN m^^ ^^ RYMCGURA^^^ ^^^^^^^^^) A^^^^TIANT P:^^0,9E. ^ ^Tf^'^^^^ ATTORNEYS `^'hp J?^stic£? celIt^^° Floor 1200 0Yjttj^^^ Stzcet, Cleveland . Ohio 4•111,3 Counsel for ^^efez^^ant-Appell^^ ^IZAJC, W. ^ ^jo`^°^^^^ ^^^^ Clark Avenue ^^levelaxzd, Ohio 44109 (2 1.6) ^^^^^^ ^ ^^7 i 3^i'j+:, S.'"^'C !•°',.1•% °^'J^^'. - :'iu^F^ / %t'-^f^°' 1 i .^.0._e. 'J. .. /.'r-J;'4 il1 GH11, 1 1 _^^ 11u^/IC1AL Di iTRdCr!% Os°^i'^ 01HU0 ^ '% i^i% f -^ ^''• ^-^ l^ ^•L` • -%.^.'ir.^'s:/'itJ% °.lASri .- fO:. ° l.% J1.1iJ^ _?",ro.^q,. ^+r; 'rs .+..^J' ^s .,^':;-vi^r/-;^, t^.5 .%i„ 9-'f-r. ..5..- `^.-%f.i '.i'^ Plai^^^iff AppT;flant ^^ /Q ^+'x'^Vk.^ ^3ki Y s6„^I^. •D @^ Il1fRj' 11'iSt^.^'f^'( . ^y^ ^UPPLET^'.^^^T N101^.-4 LEAVE T9 ^^^^EAL BRJAN R G,v! Sl%1% (/TON ^^^endan#-Appefl^e Nlr3w^oxnes Timothy J. TSJIcGix^ty, Cuyahoga County Prosecutor, and his s^^idersign.ed assistants, and.^^^^eetkallY SePks to supplement Appel.lan, State ()f ^^^io'N Motioii fo-r Leave to Appeal filed February 24, 20:^4 with State's Exbibit 2, a tz°^^scri^^ of the January 2, 2014 ppoc^^^^^^^g in ^R 535298, for the reasons ^et forth izi the attached Briefo RespectfuIly saabmit^ed, ^...... ^.------^------^------w.____.^ 'I'IM, HY Je MC^°^INTr (#0024626) CU'YA^^^^ ^ ^^ ^ ^ ^^ ^ ^^ PROSECUTOR T. ALLA^:F REGAS C40067^^^^ TMARY M^GRA`^^ (^0041381) A^^ZSTANT PROSECUTING ATTORNE^.rS' The Justice Center, 9th 1200 On^arf^ ^^^^et Cleveland, Ohio 44113, (2116) 443° S 800 f>Wlli: On F^brUa^^ 24, 2014, A.^^ehant Statc ` Of Ollio fileda i'4;)ti0y, for Leave seeking^r tc) Appeal l^a^ e toa^eai from the t^°^al cO^^^-"s order i^ ^^a ;e NTutb^^s ^^^ ^i3^^ 5420r^^^ .^^^^ax•^^a^.^zr;d ^'^bruaPy 14, 2^3^.^:. in its MOtio^^, the ^ ^aa^ he State refr:^^nced EXhibit,^, -1 and 2, w^'tate's E^xhi^^it t 1, tlle tl'ial couirtss oi^dpr of`F^^ruary 14, 2014 slkb'er°t- ssf the ^a..,a-..'-- that.^s c-iae ^,^ F^tizna.^'. ti aPP£^^ ^, w^s attached. State's Exhibit 2, a transcrip^ of th,, tria0 E.nu^^ ^^^oo-eed.^^^^ ht,,IdJa--luary2, 20^.4. ^was inar^vert&nrj.^ Ou^ittod fram t^e ,prat, ^^^^ til-^e of Ro these reas6ns, the State ^^^^^^, tfully seeksco s,pplerxen^ its Le.ave ^cs.^^^PP^:,al ^^Yit^. :^:^.ij)lt 2, attar,he.r^ .^^arr:to. ^s^^ ^es'p€:ctf^^^y ;^ubmitted, .^.. ^ ^ f r^'^,^^^^^,^^,^ CUYAHOGA ^OUNTY PR^^^OU,11OR T. A L L.A ^j ^R, G1 A^ #^^^ .^.^^RY McGRATH (#0048 38 P^^'bo ^`^^ j€aqt?(,e ^ °^ ^^0SE^;^rr^°°.^ C;^Y,,.ter> gth ^^^_^ N^"^ ^".a`^"^'R.s^^:^? ^ ^_2^90 ^^)a^^:ar^.4.a 91'rr;4t ^^f,'Ve.Ea.nd. C^icf 441.13 ^ ^ 1(^; 442--78()() 3 ^^^R^4.8EICAaY.9'a_f& SE.B.& Y3F.^^;^ A copy of the foregoIng Appellant State of obic?'s mot.i.oll to Supploment M atioii io^° Leave to A,peal ^^as ^^eonssnt by segulz^r 6^,S. Mail t^iis ..r^A _^ ^ _ -----_ o^^ of Fe1^ruary, 2014; to Craig S^n^^tzc,^; ^.^:t^.^^°^^.^;v for r^^;^'e^.€^^^^^t-a^^^,-ollei,, 1914 ^^1^^^ Avemuo, Clevegand; Ohio 44109. ^..- / ------^--- / ------v--^^--- '^IMOT ^^ ^^cGx'^:`^TY (^0024 6326) '.E ALL. N, REGA^ (^ON'^^^^) MARY MoGRATI-^ (#^041,38 1) 4 . . • , AQ ^H ^v.^ Au rbwl' JJ'Cti^/1F1'tJVVy.^ 4 ^^El s3'%^°^^ ^3^" ^tte^^^ { 2 JOHNDrr wU1 MA,,...w'^...,. 3 w OUNITly 0^^ Csy YA^Ceam. ^ 5 IN ^^^ COURT 4;v CO^^^ON" PLEAS G ^IVIS"ON . ?. lp^^'^, H:^^OP "`` ^ ^, 918^. Pw`intiff, 3.® ^ ) De^'er^darzt. 12 13 ^^ ^^^^^ ^^ ^^^GS 14 iAFher^^p6n ttre yollowi.ng prcceeda.ngs 15 were hud in Courtroom No. 23-B, The Jus C° cnt ^ .>.,•^r h ,, ^J.^^ ^ ^: ^^- ^E'^:^.^fifc^p Ohio, k^^fOxe the Honorable 161 john D. Sutula on ThGrsdayF ^Tanuary 2, 2014: ^f upon the indictment filed ^:erQV;so,^e, APPEARANCESo 18 s., 's? j' ,f: 9 ' .. .. s :'L g' CIt "s'i, :';. t :i .:/xobi,.. + -.1 oi'... -,; %•' r. . . '<, 20acs'. ... %i ./••"1,'^ ;. .rr s".i^?'i J; d s'., %i i j, ^^. !J,Gi_ ^%i^i;S,^i.^.^ °%;= t 38'+.;p, 22^ 23 24 1'1en^ ^hite, Rt^R-CR1: Jfficial Court PeporLer 25 . Cuyahoga County, 0h.ao ^ 2 I , HURSDZaY MORk^^^^ ^^^^ION, JA,^ .a_ARY^ 2 i 2014 THE COURT< ' All right,. here on ^"Et^ ^, W'ase 3. ^ Stat£ ^f (')hj-o Washi^gtor. This is c^^^ ^umb ^ 535298. Ar: d we° re here n n a corrm Mun-it 6 y corkt: x-,^ v:4olat;.on h^ariRr< (D ^ C Preselt is M.^, Washin gton. ^• ) . his cc;ul-i:^el a Craig 4mot^er4 And the int^^^st of the S. 10 LaMe of ohac is Prabatj.cbra Gffirerl V3.ctoxia Boyr^^ MS. BOYDa ThaY8 k yr OU 12 ^onr3ys " ^e^^^ On March 31d, 2011, the Drfe¢ldant was it placed on commun its ^contro1 with Condxtioris.. Hia alletxed va. olat a. ons are that he has ^ ^ esw toase it^ (lieve1abd m^^icapal r'ouxt fol; assaE^^^ 16^ 2t^2:^ ^;t^^ ^ -..N ^.•31d80, awe a1so t^sted poss.tiy^ r ,L ^ ^ cOcaine 00 MQvember >^:^ ^d! G0P.^s Y3 18 ^ !"i e d^Z e,h7 as d^,Y°^^.te^t:^. Al'. ^^^^^t 19 005ts and feus have k^een Court c^r^r^urEi^ "fl ^^^vice, He w6s 21 ^ vi^^ator on, h1^ us ^ t 24th, 2011, and he ^vas cor:t.^.n.ued 11 `=omiriuraity control sanctions wAtt? 23 ^ cUnc!?,tione, It s;n ou1 d be noted t 1; at 251, zlle Detendant was aYxested on DOcem^^r 24th, 2013 at the > 1 request of the APA due to a ne,4 :Investia^^ 2 assault C-ase 3 Cleveland 14sinici^al Cowsr^ ^ ^ currently ira continuance u3iti.I tYdo ouyation of the cux-r 5 a.nvestigation, ^i The vrobati€aY3ei: h^^ signed [:he "t of ^relimis;,ary ^^arinq. II Thank you, your floror. ^ THE C OLJR'E' ; ' P ,3 1 r ifi.t ht Zfl Ti i cl i"i k you. .^ ^. Mg[ 12. alonor, g:ay it uleaye t1le Court, I've had arz 13 opportunity to speak to M5:. Washington. 14 does adm^ t t:o being a prob.^tioEi vaoYator_ ^ e, 1;i does currently ^^^ve, a case in Clevelancl 1.6 Mur; icipal co;Art. I9 xr e ad vised him rio t to , ay ^^iu,k^ a - bo4.^t it. i.^ open court here :aci.ay. .a. $ Su#; hc- does acknowledge that he °z9 there, and there will be, I believe, a ^G r^^ti^^tior, hearing coming up sl:csrt7.y, THE COURT: O;i the Municipal? 2-11 IIF a S M 0 m 7 ER; Or3 ^ ^ ^ Nur-a ir^I, pa5 24 Court case, yos> 25 THE COURT: What about the ,:. ^.:.: r..... x,,..^.:... . .,..^:.....,.:.^.. _ .,._,...__ ... . _.. ... -^ ---^, ------ I 1 othex one? 2 MR. SMOTZER: The other one 3 idm?.ts that he also has been i^di(ited on thtt-11 ^ second set of ^act:6 your flunorn I spoke to h'ita befQre, lqe w^^e tot i°w W e wh :. ch ca ^ e w%ir;. +'^ :^W. r^ c^ '? 5''; n , • s'!^ i g z t^. hf^;l ^^ '^5 '^ i; ; at this point in i°. i r.e. ^ What led to t'hil whole Piess ^Excd 9 been sober for ab^^^t twoWandWa-1half years, He stopped goanq to his meetings. 14 e h.,;;l d. ^s become overwhelmed ira school and l:^ ^tart^^ 12 use cocaine again. onoe he started drinking, 13 he started usin€.^ the cocaine ^^air:p rTid t^^t 14 led to the maj o r.~. ^ y of th^ s:. tuatt a n t h at ° .1 15 brought him before you taday. 16 Other than that, JoLE.^ lionors ^ap 17 that point where he did relapse, he was . 18 compliant, he was reporting, he paid the fees. 1-9 He° s done -a lot of ;, :ra e th iRgs he n^ edet to do. 20 lo remain on your community control Saraction., 2 1 so we'd ask for an opportunity here to sec, if 22 the Court would find him suitable for some 23 kind of ^^eatmentF ';ai continuance wheri he, 24 would be alliwed to c© nt.^ ^ ^ e in th6 cs om munit; y 25 '4JA'. community -'^.+Vd+tA\+l 3U'n{'1.i.o:dat however, .Lf ^.cru^i^".^1•a.v^C••^•••,••^•f".•,•^wran.yy'tira^:r::.z..w:,^+.wrr-Y="v- w^-+^,;•._. ^ ______ ------5 1 thev do riot and they do choose t.o impose ^ imer .2 we would ask for a Teducticn of ony 1;J.me t ^^.^t 3 is 4 Tq^,°. C OURT : Mi s s B o 4' d , ^s 5 you have a recommendation? MR; AoX r)< At most at v -; ^ ^ 7 PoirU would be in-patient drug treatment t^^^ 8 I would rocommena, but I guess the biggest 9 thing, it hasr' t been an i ssue every time l')e r41^^^s in < He hasn' t tes t ed positAve for ^.^ anything, except for up to thi5 point for 12 coea^.ne, which seems to be an issue, wh^;-^. nQw ^ 13 explains more to ^r^e, which I'm taUing to 14 bim to talk about when we were ar^ my o^fir°e 15 about the Cleveland Municipal r.,ase ;^^ p-Ac:.keci 16 1"HE yOTJP3 . Alw. ^- 18 Mx. SuEotzerF anything else? 19 MR. S?v3OTZERB tio:.h, i nci „f'ur Ft) -3 r 20 your 1-lonor. 21 THE COURT.: Mr. Washa.rlgtan. T1-iL" DE EEN0AW^ : You.r Honor^^ 23 t93a.r,^ I Jutt; .. this aaV4 couple of ^lonths 24 Vve be-en going threa^^gh a lot E.^^ 25 prob1 ems . I start back sc h oo1. on the 13t-^, , ^i I got somo-, :sIore suitable classes for ms:, ;r. ^ couldnpt M- I thin.k. 1 started seeing what ^ life used to boo BecaLise before i dxdp ^ remember viY: at Y ^.^ u told me how a good li f r.^ va a ? if I sto-pped using and for .twoP-andwa-hajf 1 Years, I sinen that, aYld now i' vn been baYvd1.d . and I have.n'^ been kiere since 2011. . . E And in jail, I la o k at in ysi3, fr ar^ ^ this ain"t the life I want, • if you look at yqy record, I did some t.h::^^ge; and 7 >r.ha?iged my life, Positive things. I started going to my mee;;ings, Z.. ^ efo^ ^ 1 got picked up, I would call cleve1 aX^ ^ Clinic, and they got an outpatie:;t because 15 when I made my sc he+^ ule at school ttia t ;C c, an b t t go to t=° ea tm€^ nty ks :x t I was waiting for ^ ar^ 17 Bou?" i:, F? to clear ..^.. t b a nd t hen ... g5°.iE`. arrested 7.ir again, But, I"nr really trying. I°m tryjng, '.^^^E COURT; (^^ haven't ^^e^n 20 you for a while, but what you need to do is 21 always consider yourself ii^^^^ treatment, 22 S• It4 s like l-aeir.-q diabetic, or^ heart cQnditwoala 23 You always got to take your medication, you 24 ^^^^er going to be cured. 25 in your case, it's daing your 12--step 7 sneetings, doing the other stuff, the lnpat:F.t ^ staff, a.f,trospec;tion and all t^at.'Stiuffo .i YOU k^OwsI d©n 't know wiiat to ^a.y^ 4 but you ° ve done some good stuff, But you Vv e rii 5 riqE:,t back to the 'worst part. 6 The problem is that wher, you fa.l1 Of. -,, the table, you hit the ^^tk"om right awaya t^ You don ° t gradjaal-iy slide dotvn. You're ^ catching youYsela a you fai1 wlight to the z0 battom, You hil, hard. 11 And that ` s what thu drug ^reatmert,5 s- 12 au^posea to do. Teach you how to-sto.^ ^he, 1 f.alI beTore you hit bottom again. You 14, recognize those signs that are caQs.i^g you ,^^ 15 do this again, the destructive )^,,ehava.or, a^ „1; ^- +.€ ^ 4b4 ^ $Upposed to do .. •3 Pp AncA yau can't forget t^ae-- stuff, THE DEFENDANT: I was doing cjc,()cx ,n 19 untiI. a stopped goirtg to my mee+,:i.ngs. 20 THE COCIRTa You pr:c^^^bly th'Ju^',t^ . I can do tha.s by myse' f . zz^ THE DEFENDANT: I was tr,`^ in cj t o 23 find a tutor, and I was spending more time ai^. 24 i, ^ ae achoa -I and not gca-r^g to yny ,... 25 THE COURT: Gaess what. 8 1. Guess what? The drugs and drug treatment i 2 more i.mpcsitani than virtually anything els.Ee 3 for aFouL ;^ow long have you '^^en doing ^ruqjs•e, 4 THu bEFEEeDANT: ^ Twenty- ^even yearso ^ THC COURT: It takes a Tobg 7 timee it's learned behaviar, xou have ^ot! `La byeak that cY^ainP ^e(oatise you went right batc ; 9 to worse stuff again> A0 A3.l right. Defendant will be found 11 in violation of community ^^^t-ral, it Will be 12 continued, Prior condati.ari, modified 13 canditian, You'll do 60 days in Cacaity ja il, 14 credit to 12-24; 2014. You'll do inpatient 15 drug treatment after the 60 da}js< tqext 16 violation will be 18 mo::tQ in prison, 17 18 months on each of felonies of }i?e fw+.'^IrtF 18 degree cbxasecuua.veo ... 9 Take a break, get back to where 20 you're supposed to be. 21 And the cFf.;kier thing, too, you h^ vc- 22 a:l1 these other pressures on you< 23 And that can overeomc the good thing 24 that you learned in treatment. 25 If you succumb to tc?o mapy other 3 prassure Sr tticn you decornpen.sate, yoa c:o.ta' 't 1 haridle araything, And that' s another pr:oblerr•, „ 2 you know, tak3.ng. on too much at cance, and 3 tbanking you can do it without the treatrr^^^-^-.. ^ A11 righto ^ THE. DEPUTY ; r-ome on with THE COURT; Are 'we gozng 'to ^ see each other again? THE oEFENDANT: Xoa say are we, going to see eacb other? How about a Cav°^-q 79 game? ;low about riiever, THE COURT: 1 ^ nei.rer , ^ ^ ('a'Yse?^eproceedings were a.djcrux^^`^ew.u ) 1 5 4 3 61 ; ..^ .^ 22 23• 24 25 p^+ ,• A ^ s_. 1w A 3. F ...... ---.w-....«,-,..8...... 1 . :...______...... I , Ilene White, C^^fitaal Court 2 Reportet for the Court of Common Pa.easF 3 Cuyahoga wounty, Ohio, d-o hereby ^e rtify that 4 as such reporter I took down in stenotype all 5 of the proceedings had in said Court of COMMon ^7 Pieas in the abcve-nentitwed cause; that ..4. ^^v^r_z transcribed my ^a-id stenotype 3-sn^^s into 8 as appears in the foregoing 9 typewritten foryt, Traa,^^ript of Pxcsceedings^^ that said transcript is a complete record of ^^^e proceedings had in t-h^ trial of said cause and 1f cor^^ti^.utes a true and correct Tr.ar:s!^^rj^t C>f PI-oceedings 1;^^ ^^erern. 7. 3 9 r c ^ --- - - ... _. ., .» ,. - .. ._...... - Ilene White, RMR/CRR C^^fic:^aj C'our'^ Reporter 2 D cv}^ahoga CountY> Ohs.O 2 i 2 2 2 3 i 9 5 I IIINI IIiI IIIII iiIiIIIN IIIII IIN IIII IIII 11111 83229623 IN TH^AU^^pF COMMON PLEAS C A$'C^i^A COUNTY, OHIO THE STATE OF OHIO 10 14 MAR-5 P 4- 1- 4 Case No: CR- I 0-542057-B Plaintiff CLERK OF COUR ^ Judge: JOHN D SUTULA CUYAHOCA COUNTY BRIAN WASHINGTON Defendant INDICT: 2913.51 RECEIVING STOLEN PROPERTY ,T®URNAI, ENTRY DEFENDANT IN COURT. COUNSEL CRAIG W. SMOTZER PRESENT. PROSECUTOR(S) MELISSA RILEY PRESENT. DEFENDANT, BRIAN WASHINGTON, IN OPEN COURT REPRESENTED BY COUNSEL FOR HEARING ON ALLEGED VIOLATION OF COMMUNITY CONTROL SANCTIONS. HEARING HAD. COURT FINDS DEFENDANT, BRIAN WASHINGTON, TO BE IN VIOLATION OF COMMUNITY CONTROL SANCTIONS. COMMUNITY CONTROL IS CONTINUED AND EXTENDED TO 02/28/2016,WITH PRIOR CONDITIONS. COMMUNITY CONTROL IS MODIFIED AS FOLLOWS: DEFENDANT TO PERFORM 50 ADDITIONAL HOURS OF CCWS; INPATIENT DRUG TREATMENT/ANGER MANAGEMENT. NEXT VIOLATION: CR 542057 - 18 MONTHS IN PRISON; CR 535298 - 18 MONTHS IN PRISION, TO RUN CONSECUTIVELY FOR A TOTAL OF 36 MONTHS IN PRISION. SHERIFF ORDERED TO TRANSPORT DEFENDANT BRIAN WASHINGTON, DOB: 08/31/1968, GENDER: MALE, RACE: BLACK. 02/28/2014 CPKAO 03/03/2014 09:33:26 EXHIBIT HEAR 02/28/2014 Sherlp,sl0nolft l-^I----- Page l of l ANDREA F. ROCCO CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Appeals MOTION Electronically Filed: April 3, 2014 12:58 By: T ALLAN REGAS 0067336 Confirmation Nbr. 97969 STATE OF OHIO CA 14 101039 vrs. Judge: BRIAN K. WASHINGTON Pages Filed: 3 EXHIBIT ^ Electronically Filed 04/03/2014 12:58 / MOTION / CA 14 101039 / Confirmation Nbr. 97969 / CLMKJ IN THE COURT OF APPEALS . F.EG^:A TL H JUDICIAL DISTRICT OF OHIO CUYAHOGA COUNTY CASE NOS. 101039 and 101040 STATE OF OHIO ) Plaintiff-Appellant ) NOTICE OF THE PARTIES' -vs- ) AGREEMENT THAT THESE PROCEEDINGS BE DISMISSED BRIAN K. WASHINGTON ) PURSUANT TO APP.R. 28 Defendant-Appellee ) Now comes Timothy J. McGinty, Cuyahoga County Prosecutor, and T. Allan Regas, Assistant Prosecuting Attorney, on behalf of Appellant State of Ohio, and Cullen Sweeney, Assistant Public Defender, on behalf of Appellee Brian K. Washington, and respectfully notify this Honorable Court of the parties' agreement that these proceedings be dismissed pursuant to App. R. 28. Appellant State of Ohio agrees to pay any costs that are due in this matter. (By telephone consent 4/1/14) Isl T. Allan Regas CULLEN SWEENEY (#0077187) TIMOTHY J.1VIeGINTY (#0024626) Assistant Public Defender Cuyahoga County Prosecutor 310 Lakeside Avenue, Suite 200 T. ALLAN REGAS(#0067336) Cleveland, Ohio 44113 Assistant Prosecuting Attorney (216) 443-7583 The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7800 1 Electronically Filed 04/03/2014 12:58 / MOTION / CA 14 101039 / Confirmation Nbr. 97969 1 CLMKJ BRIEF 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. Respectfully submitted, /s/ T. Allan Regas TIMOTHY J. McGINTY (#0024626) CUYAHOGA COUNTY PROSECUTOR T. ALLAN REGAS (#0067336) ASSISTANT PROSECUTING ATTORNEY The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7800 2 Electronically Filed 04/03/2014 12:58 / MOTION / CA 14 101039 / Confirmation Nbr. 97969 / CLMKJ CERTIFICATE OF SERVICE A copy of the foregoing Parties' Notice of Agreement that these Proceedings be Dismissed Pursuant to App.R. 28 has been sent by electronic service notification and regular U.S. Mail this 3rd day of April, 2014, to Cullen Sweeney, assistant public defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113. is, T. All.a.nRe -as -- TIlVIOTIiY J. McGINTY (#0024626) T. ALLAN REGAS (#0067336) 3 Electronically Filed 04/03/2014 12:58 / MOTION / CA 14 101039 / Confirmation Nbr. 97969 / CLMKJ ANDREA F. ROCCO CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION Electronically Filed: April 9, 2014 09:15 By: CULLEN SWEENEY 0077187 Confirmation Nbr. 102015 THE STATE OF OHIO CR 10 542057-B vrs. Judge: BRIAN WASHINGTON JOHN D. SUTULA Pages Filed: 11 EXHiBiT Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO Case No. 535298 & 542057 Plaintiff JUDGE JOHN D. SUTULA vs. MOTION TO STAY EXECUTION OF SENTENCE PENDING s APPEAL BRiAN WASHINGTON Defendant Now comes the defendant, Brian Washington, by and through undersigned counsel, and respectfully moves this Honorable Court, pursuant to Ohio Revised Code 2949.02(C) and 2953.09, Rule 8 of the Ohio Rules of Appellate Procedure and Rule 46 of the Ohio Rules of Criminal Procedure, to suspend further execution of his sentence pending the appeal of this Court's decision finding him in violation of community control sanctions on March 5, 2014 and extending his community control sanctions until 2016. Reasons and authorities in support of this motion are set forth in the attached memorandum, which is incorporated herein by reference. Respectfully submitted, ROBERT L. TOBIK Chief Public Defender !s! Cullen Sweeney CULLEN SWEENEY S.Ct.Reg.No. 0077187 Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113 (216) 443-3660 Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB MEMORANDUM IN SUPPORT With this motion, Brian Washington respectfully requests that this Court stay its March 5, 2014 order extending his sentence of community control sanctions until 2016. Mr. Washington has filed a timely appeal of that decision and intends to argue, among other things, that: 1) This Court lacked jurisdiction to enter its March 5t" order because Washington's term -of coinmunity control sanctions expired by March 3, 2014; and 2) Washington was punished twice in violation of State and Federal Double Jeopardy for the same conduct on January 3, 2014 and March 5, 2014. To ensure that Washington receives meaningful relief if he prevails on appeal, he respectfully requests that this Court stay any further execution of his sentence until the Eighth District resolves his case. A. Background On March 18, 2010, Defendant Brian Washington was charged in a seven-count indictment in Case No. 535298. On September 21, 2010, Washington was charged in second case, Case No. 542057, with a single count of receiving stolen property. Mr. Washington and the State of Ohio resolved both cases by plea agreement. In Case No. 535298, Washington agreed to plead guilty to theft of a motor vehicle (F4) and attempted having weapons while under disability (F4), while the State agreed to dismiss the remaining charges. And, in Case No. 542057, Washington pled to a single count of receiving stolen property (F5). This Court accepted the plea. On March 3, 2011, this Court held a sentencing hearing and imposed a sentence of 36 months of community control sanctions with the following conditions: 1) Payment of $20/monthly supervision.fee; 2) Completion of 300 hours of community work service; 3) Random drug testing; 4) Complete an in-patient treatment program; 5) Attend AA/NA meetings; 6) Obtain verifiable employment; 7) Complete the "Thinking for a Change Program;" and 7) Participate in six-month at the Community-Based Correctional Facility. This Court subsequently trarisferred Washington's Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 1 CLIVB supervision to the MDO unit of the probation department. On August 24,2011, this Court held a violation hearing in Case No. 535298. This Court found Washington to be in violation and continued him on 3 years of probation with the following two additional conditions: 1) Perform another 20 hours of community work service; and 2) Write apology letter to case worker at Recovery Resources. On August 23, 2012, per the request of the probation department, this Court found that Washington had satisfied all his fines and court costs through the completion of community work service and suspended any requirement that he pay a probation supervision fee. On January 2,2014, this Court held a violation hearing in both cases. This Courtfound Washington to be in violation and continued him on community control with the additional conditions of serving 60 days in county jail and participating in in-patient treatment following his release from county jail. On February 28, 2014, this Court held a second violation hearing for the same alleged violations. At this hearing, this Court punished Washington a second time for the violations and added the following conditions (in addition to what was imposed on January 2, 2014): 1) Period of community control was extended by 2 years; 2) an additional 50 hours of community work service; 3) anger management. - This Court joumalized this order on March 5, 2014. Washington filed a timely appeal of the March 5, 2014 judgment entry. B. Law and Argument Mr. Washington respectfully requests that this Court suspend the execution of its March 5, 2014 order pending appeal. Specifically, Washington requests that this Court stay the imposition of an additional two years of probation along with the additional conditions imposed in the March 5, 2014 order. Given the length of the appellate process, Washington's appeal will have little Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1 VB meaning, even if he prevails, because he will be forced to serve most of the very sentence he is challenging. In Ohio, there is express statutory authority for suspending the execution of a sentence pending appeal and granting an appellate bond. R.C. 2949.02(C) and 2953.09. In determining the type, amount, and conditions of bond, courts must consider all relevant infoimiation including specific factors listed in Crim. R. 46(C). Ohio's appellate rules provide that requests to stay the execution of a criminal judgment "shall be made in the first instance in the trial court." App. R. 8(B). Mr. Washington asserts that a stay of execution is appropriate in his case because he does not constitute a flight risk and because his appeal raises substantial questions which might result in the reversal of this Court's March 5, 2014 judgment. Cf. United States v. Affleck (C.A. 10, 1985), 765 F.2d 955; United States v. Crabtree (C.A. 5,1985), 754 F.2d 1200. On appeal, Washington intends to argue that: 1) This Court lacked jurisdiction to extend his community control sanctions after his original term had expired; and 2) This Court could not, as a matter of state and federal Double Jeopardy, punish Washington twice for the same alleged violations. With respect to Washington's jurisdictional argument, the Eighth District has held that a trial court loses jurisdiction to impose sanctions for a probation violation once the original term expired. See State v. Jones, 8t1i Dist. No. 92622, 2010-Ohio-2448, ¶¶ 20-22. Since an entty is "only effective upon joumalization," the trial court loses jurisdiction to issue an entry after the term expired even if the probation violation hearing occurred prior to the expiration of the term. Id at ¶ 20. And that is precisely what happened here. Washington's term of community control sanctions expired on March 3, 2014 and this Court lost jurisdiction over the case on that date. Jones makes clear that the entry issued on March 5, 2014-two days after this Court lost jurisdiction-is Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB therefore invalid. Even if this Court had jurisdiction, Washington intends to argue that the Double Jeopardy provisions oftlie state and federal constitution prohibited this Court from imposing multiple punishments at successive hearings for the same alleged probation violations. The Double Jeopardy Clauses of the state and federal constitutions prevent the imposition of multiple punishments for the sarne offense. State v. Gustafson (1996), 76 Ohio St. 3d 425, 432; see also North Carolina v. Pearce (1969), 395 U.S. 711, 717. These Double Jeopardy provisions additionally prevent a trial court from modifying or amending a sentence to increase the punishment original imposed. State v. Hooks (1998),128 Ohio App. 3d 750, 752. In the probation context, a trial court may not "modify the terms of a defendant's probation" unless the defendant commits a new violation. Id. Modifying the terms of a defendant's probation, without a new violation, constitutes a "clear violation of double jeopardy restrictions." Id. Cf. State v. Jackson (1997), 123 Ohio App. 3d 22,25. In this case, Washington was in county jail for the entire time between the January 2, 2014 probation violating hearing and the February 28, 2014 probation violation hearing. See Sheriffls Booking Sheet attached as Ex. A (in custody from 12/24/13 to 3/4/14). And, there is no suggestion that Washington violated his probation while in the County Jail. Accordingly, the additional sanctions imposed upon Washington with this Court's March 5, 2014 violated his Double Jeopardy protections since he was previously punished for the same conduct. C. Conclusion Given the substantial questions presented by Mr. Washington's appeal, he urges this Honorable Court to grant his request to stay the execution of its March 5, 2014 judgment pending appeal. Without the benefit of stay, Mr. Washington will be forced to serve most of his sentence prior to the resolution of his appellate issues. Accordingly, this Court should stay the execution 4 Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1 VB of his sentence until the appellate proceedings are completed. Respectfully submitted, /it` Cullen Sweene Cullen Sweeney, Esq. Attomey for Defendant Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1V6 CER1`Ili'1CAT'E OF SERVICE The undersigned counsel hereby certifies that a true and accurate copy ofthe foregoing Motion was served, by means of electronic service through the e-filing system, on Timothy J. McGinty, Cuyahoga County Prosecutor and/or a member of his staff, 1200 Ontario Street, Cleveland, Ohio 44114, on this 8th day of April 2014. /s/ Cullen Sweene CULLEN SWEENEY Attorney for Defendant Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB EF IBIT A Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB ...... Print Date: 4/8/2014 SO# :.....0160334 ...... _...... _...... Booking# !20131224013 Birth Date Birth City Birth State Race Gender 8/31 /1968 CLEVELAND OH B M Booking # Booked Under Name Booking Date Release Date Release Reason _..__.-.... - -- ... . - _...... -... 2013122401 WASHINGTON, BRIAN, 12/24/2013 314/2014 TOT HALFWAY H.iMATT TALBO'! Cases: 535298 542057 2010092203 WASHINGTON, BRIAN 9122/2010 5/25/2011 TOT HALFWAY HOUSE Cases: 642067 j201 003 9 906 WASHINGTON, BRIAN; 3/19/2010 5/12/2010 TOT TREATMENT CENTER Cases: 636298 2009033002 WASHINGTON, BRIAN 3130/2009 4/1 5120 0 9 SENT TO INST/LORAIN C.I. Cases: 502619 513027 12008082002 WASHINGTON, BRIAN 6/2012008 . 12/30/2008 TOT HALFWAY H.ICOMMUNITY Cases: 502619 613027 ------. 2007100590 WASHINGTON, BRIAN .10/5/2007 1/17/2008 COMMON PLEAS BOND/PERSC' Cases: 502619 `2006120701 WASHINGTON, BRIAN: 12/7/2006 111012007 . SENT TO INSTR.ORAIN C.I. Cases: 481986 ...... 2008042890 WASHINGTON, BRIAN 4/26/2006 10/13/2006 COMMON PLEAS BOND/PERSC Cases: 481986 2005010700 WASHINGTON, BRIAN 1/7/2005 3/3/2005 RETURNED TO INST/MARION Cases: 486462 ...... _ _...... -..... 2003051604 WASHINGTON, BRIAN 5/1612003 11/18/2003 SENT TO INST/LORAIN C.I. Cases: 419059 433767 438452 2002123005 WASHINGTON, BRIANi 12/3012002 5/1/2003 TOT HALFWAY H./STELLA MAR Cases: 432829 433767 2002101003 WASHINGTON, BRIAN 10/10/2D02 10/24/2002 RETURNED TO INST/LAKE ERII Cases: 414413 I of 3 4/8/2014 4:34 PM Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB _.: __.._. 2001121803 WASHINGTON, BRIAN 1211812001 4/18/2002 SENT TO fNSTILORAIN C.I. Cases: 414413 418718 419059 2001103050 WASHINGTON, BRIAN ' 10/30/2001 .10/30/2001 i ARRAIGNMENT SAME BOND Cases: 414413 -- --- 2001092803 ` WASHINGTON, BRIANi 812612001 1011/2001 COMMON PLEAS BOND/SURE1 Cases: BJ2770 i 2000121102 WASHINGTON, BRIAN: 12l11/2000 6111/2001 TOT SUBURBS (CT REL) Cases: 386042 387592 400719 401460 ------2000092908 WASHINGTON, BRIAN 9/29/2000 1 0/2 312 0 0 0 TOT HALFWAY H.lSALVATION A Cases: 387592 1999122208 WASHINGTON, BRIAN' 12/22/1999 4120l2000 SENT TO INSTILORAIN C.I. Cases: 367202 383266 386042 386607 387592 - 1999111605 WASHINGTON, BRIAN 11/16/19999 11/16/1999 TOT SUBURBS (BOND) Cases: MA2616 -1999011103 WABHINGTON, BRIAN 1/11/1999 1/19/1999 • TOT HALFWAY H.lHARBOR LIG Cases: 367202 ' 1998092151 WASHINGTON, BRIAN 9/21/1998 9/21/1998 ARRAIGNMENT SAME BOND Cases: 367202 ._ ....._..__ 1998072706 WASHINGTON, BRIAN 7/27/1998 8!3/1998 MUNICIPAL BOND Cases: M71716 11997031203 WASHINGTON, BRIAN ' 3/12/1997 5/13/1997 SENT TO INST/LORAIN C.I. Cases: 347923 349829 1897012707 WASHINGTON, BRIAN ' 1/2711997 211/1997 COMMON PLEAS BOND/SURE1 Casm 881342 --- 1995111406' WASHINGTON, BRIAN 11l14/1995 71I2111995 RETURNED TO INSTITUTION Cases: 329331 ------1995081003 WASHINGTON, BRIAN 8l1011995 9/20/1995 SENT TO INSTlLORAIN C.I. Cases: 310626 311959 323890 B13297 19a15042004 WASHINGTON, RRIAN' 400/1qB5 e/1?l1995 TOT HALFWAY HJHARBOR LIG Cases: 310525 311969 323890 ' of 3 4/8/2014 4:34 PM Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1VB H _. _. _ . 1984081000. WAS6NGTON, BRIAN 8/10f1994 9115/1994 RETURNED TO INST/LORAIN C Casas: 308847 310528 312298 1984080900 WASHINGTON, BRIAN 6/9/1994 7/15/1994 ! i SENT TO INST/LORAIN C.I. Cases: 308847 310525 311959 ^------.. ------_._ --- 1994032805 WASHINGTON, BRIAN 3/2811994 ! 3/31/1994 COMMON PLEAS BOND/SUREI! Cases: 308847 ---_. _ . , . ._..._.... -._.._ __.... ._ 1992082504 WA$HINGTON, SRIAN : 8/25/1992 ; 9/1511992 SENT TO INST/LORAIN C.I. Cases: 284917 _. _.. . ------;------...... _ :1991101703 WASHINGTON, BRIAN 10/17/1991 ' 10124l1991 SENT TO INST/LORAIN C.I. Cases: 266107 267431 f------.. _.. . ------. _.._ __ .1991080300 WASHINGTON, BRIAN 8/3/1991 8/7/1991 TOT CPD (BOND) Casas: 266107 267431 of 3 4/8/2014 4:34 PM Electronically Filed 04/09/2014 09:15 / MOTION / CR 10 542057-B / Confirmation Nbr. 102015 / CL1 VB ANDREAF:ROCCO CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF Electronically Filed: April 15, 201415:39 By: MARY MCGRATH 0041381 Confnmation Nbr. 106901 THE STATE OF OHIO CR 10 535298-B Vrs Judge: BRIAN K WASHINGTON JOHN D. SUTULA Pages Filed: 4 EEXHIMIT Electronically Filed 04/15/2014 15:39 / BRIEF / CR 10 535298-B / Confirmation Nbr. 106901 / CL1VB IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO ) CASE NOS. CR 5352984 542057 Plaintiff-Appellant ) JUDGE JOHN D. SUTULA -vs- ) BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO STAY BRIAN K. WASHINGTON. ) EXECUTION OF SENTENCE PENDING APPEAL Defenda.nt-Appellee ) Now comes Timothy J. McGinty, Cuyahoga County Prosecutor, and his undersigned assistant on behalf of the State of Ohio and respectfully opposes Defendant's Motion to Stay Execution of Sentence Pending Appeal for the reasons set forth in the Brief attached hereto and incorporated herein. Respectfully submitted, TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR MARY McGRATH (#0041381) Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-7800 1 Electronically Filed 04/15/2014 15:39 / BRIEF / CR 10 535298-B / Confirmation Nbr. 106901 / CL1VB BII,I:EF Defendant Brian Washington has appealed from this Court's decision of February 28," 2014, journalized March 5, 2014, finding him in violation of community control sanctions and extending his term of community control. Washington seeks to have his sentence suspended pending appeal on two grounds: 1) he is not a flight risk, and 2) his appeal raises substantial questions which might result in a reversal of the Court's judgment. Initially, a review of Washington's criminal history demonstrates that he poses a risk of flight and a danger to the community if released. In 2011, Washington entered guilty pleas in these cases and was sentenced to 36 months of community control sanctions. Washington has accumulated probation violations including testing positive for cocaine and being charged with assaulting his wife. These cases are on the Court's Mental Health Court docket, indicating Washington's heightened need for supervision including completing court-ordered inpatient drug treatment. Washington has a 22-year criminal career that includes 60 arrests, 33 felony convictions in 25 separate cases, and 13 independent prison sentences imposed by 12 different Judges of this Court. Washington has demonstrated that he cannot conform his behavior to that of a law-abiding citizen. Releasing Washington on bond would undoubtedly result in continued probation violations, failure to attend and complete drug treatment, and a risk to the community of being victims of additional criminal. offenses. rz Electronically Filed 04/15/2014 15:39 / BRIEF / CR 10 535298-B / Confirmation Nbr. 106901 / Cl1VB Washington's second claim is that his appeal raises substantial grounds which might result in reversal. In support, Washington argues that the Court lost jurisdiction on March 3, 2014 to extend his term of community control. Washington claims his 36 month term expired on March 3, 2014; since the Court's order extending community control was not journalized until March 5, 2014, Washington claims his term had expired and the Court did not have jurisdiction to extend it. Although Washington's term of community control was imposed on March 3, 2011, the order was not journalized until March 9, 2011 in CR 535298 and March 10, 2011 in CR 542057. Since an entry is "only effective upon journalization" the Court had jurisdiction until March 9, 2014 in CR 535298 and until March 10, 2014 in CR 542057 to extend Washington's community control. State v. Jones, 8th Dist. No. 92622, 2010-Ohio-2448, ¶ 21. As such, the Court had jurisdiction on March 5, 2014 to order Washington's community control sanctions be extended. Based on the above, the State respectfully requests that this, Honorable Court deny Defendant Brian Washington's Motion to Stay Execution of Sentence Pending Appeal. Respectfully submitted, TIMOTHY J. McGINTYY CUYAHOGA COUNTY PROSECUTOR /s/ Mary McGrath MARY McGRATH (#0041381) Assistant Prosecuting Attorney The Justice Center, 8tb Floor 1200 Ontario Street P^vi°c'vctaaiu, l a nh vaaiv 44113 (216) 443-7800 3 Electronically Filed 04/15/2014 15:39 / BRIEF / CR 10 535298-B / Confirmation Nbr. 106901 / CL1VB CEB,TSFIC'ATE OF SERVICE A copy of the foregoing Brief in Opposition to Defendant's Motion to Stay Execution of Sentence Pending Appeal has been sent electronically and by regular U.S. Mail this 15th day of April, 2014, to Cullen Sweeney, assistant public defender, 310 Lakeside Avenue, Suite 200, Cleveland, Ohio 44113. /s/ Mary McGrath Assistant Pros.ecuting Attorney 4 Electronically Filed 04/15/2014 15:39 / BRIEF / CR 10 535298-B / Confirmation Nbr. 106901 / CL1VB I IIIIII IIIII IIIII IIIiI IIIII IIIII IIIII IIIII IIII Ili I IIII 83890521 IN T T OF COMMON PLEAS C GA COUNTY, OHIO THE STATE OF OH!O aOfU APR 21 A8: 39 , I Case No: CR-10-542057-B Plaintiff CLERK OF COURTS Judge: JOHN D SUTULA CUYAHQrA COUNTY BRIAN WASHINGTON Defendant INDICT: 2913.51 RECEIVING STOLEN PROPERTY JOURNAL ENTRY SUA SPONTE COURT ORDERS BRIEF OF COUNTY PROSECUTORS 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 1 1:15:10 EXhiIBIT HEAR 04/16/2014 13 Page 1 of 1 I IIIIII IIIII IIIII IIIII IIIII IINI II II IIlII IIII III I III 83920387 IN TqE IKCLUBT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO THE STATE OF OHIO 20I4 APR 23 A 8: 55 , , Case No: CR-10-542057-B Plaintiff CLERPt OF COURTS Judge: JOHN D SUTULA CUYAyOGA COUNTY BRIAN WASHINGTON Defendant INDICT:29I3.51 RECEIVING STOLEN 1'ROPERTY JOURNAL ENTRY 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. THE COURT ON PAGE ONE OF THE TRANSCRIPT STATES THAT THE STATE OF OHIO WAS REPRESENTED BY THE PROBATION DEPARTMENT (VICTORIA BOYD, P.O.) AND CRAIG SMOTZER FOR THE DEFENDANT. THE COURT ALSO NOTED THE ASSISTANT COUNTY PROSECUTOR WAS PRESENT, NOT REPRESENTING ANY PARTY. THE COURT REPORTER IS DIRECTED TO CHANGE THE COVER SHEET TO COMPLY WITH TF(E ACTUAL PROCEEDING. 04/18/20I4 CPTRC 04/21/2014 09:23:54 EXHIBIT HEAR 04/ 18/20 i 4 Page 1 of I IIIhNIIINIIIIIINII^IN111111110111111111IIII IIIII 83975147 IN THE COU., O 9MMON PLEAS CUYAH GA O NTY, OHIO THE STATE OF OHIO Z014 APR 30 8tfiDNo: CR-10-542057-B Plaintiff CLERK t:F CO R]Sdge: JOHN D SUTULA CUYAHOL;A C UNTY BRIAN WASHINGTON Defendant INDICT:2913.51 RECEIVING STOLEN PROPERTY JOURNAL ENTRY HEARING SET ON DEFENJDANT'S MOTION TO STAY EXECUTION OF SENTENCE, FILED 04/09/20'14. HEARING SET FOR 04/24/201,4 AT 10:30 AM. 04/23/2014 CPDXM 04/24/2014 08:51:02 EXHIBIT HEAR 04/23/2014 Page l of l . 1 ------1 THE STATE OF OHIO, SS: JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA. 3 IN THE COURT OF COMMON PLEAS (CRIMINAL BRANCH) 4 THE STATE OF OHIO, } 5 } Plaintiff, } 6 vs. ) Case Nos. CR-535298 7 CR-542057 BRIAN WASHINGTON, 8 Defen dant . 9 10 TRANSCRIPT OF PROCEEDINGS 11 12 Whereupon, the following proceedings were 13 had in Courtroom No. 23-B, The Justice Center, Cleveland, Ohio, before the Honorable 14 John D. Sutula, on Thursday, April 24, 2014, upon the indictment filed heretofore. 15 16 17 APPEARAI`TCES : 18 Cuyahoga County Probation Department, by: Victoria Boyd, Probation Officer, 19 ®n behalf of the Cuyahoga County Probation 20 Department. 21 Robert L. Tobik, Cuyahoga County Public Defender, by: Cullen Sweeney, Esq., 22 On behalf of the Defendant. 23 EXHiBIT 24 Diane L. Cieply, RMR 25 Official Court Reporter II Cuyahoga County, Ohio 2 1 THURSDAY MORNING SESSION 2 APRIL 24, 2014 3 THE COURT : We're here in the case of the 4 State of Ohio versus Brian Washington. This is 5 Case Nos. 585289 and 542057. We're actually here 6 on a Motion to Stay Execution of Sentence Pending 7 Appeal. 8 Present is the Defendant, Mr. Washington, 9 along with his counsel, Cullen Sweeney. 10 Representing the interests of the State of Ohio is 11 Probation Officer Victoria Boyd. 12 Ms. Boyd? 13 MS. BOYD: Thank you, Your Honor. On 14 March 3rd, 2011, the Defendant was placed on 15 community control sanctions for a term of three 16 years with conditions. 17 On August 24th, 2011, the Defendant was 18 found to be a violator and continued on community 19 control sanctions with modified conditions. He 20 was ordered to complete 20 additional court 21 community work service hours, as well as to write 22 an apology letter to a case worker at Recovery 23 Resources. 24 On January 2nd, 2014, the Defendant was 25 found to be a violator and continued on community 3 ------1 control sanctions with modified conditions. He 2 was remanded for 60 days in county jai.l.,and he 3 was ordered to partake in inpatient drug treatment 4 after his 60-day sentence. 5 On February 27th, 2014, the Court ordered 6 this officer to have a one-year extension waiver 7 signed by the Defendant. The Defendant refused to 8 sign the one-year extension form and the Court was 9 notified. The Court set a hearing for 10 February 28th, 2014. 11. On February 28th, 2014 ,the Defendant was 12 found to be a violator and continued on community 13 control sanctions with modified conditions. He 14 was extended on community control sanctions until 15 February 28th, 2016. He was ordered to complete 16 an additional 5® hours of court community work 17 service hours and ordered to complete inpatient 18 drug treatment. 19 On. April 14th, 2014, the Defendant 20 suceessfu11y completed the Matt Talbot Inpatient 21 Drug Treatment Program. 22 This officer' s presence was requested on 23 April 24th, 2014, for the Defendant ps attorney 24 filed a Motion to Stay Execution of Sentence. 25 It should be noted the Defendant owes a 4 ------1 balance of $585 in court costs in CR-10-542057 and 2 $105 in court costs i., Case CRm10-54 -- I believe 3 1 put that --- I'm sorry, it .is CR-10m535298-B. It 4 should also be noted that he does still have those 5 additional 50 hours of court community work 6 service to complete. 7 Thank you, Your Honor. 8 THE COURT: All right. Thank you. 9 Mr. Sweeney? 10 MR. SWEENEY: Yes, Your Honor. This Court 11 is aware of the procedural history of this case, 12 and I just want to focus on the issue that we are 13 raising on appeal and the reason we're asking this 14 Court.to stay execution of the sentence. 15 Mr. Washington came before this Court on 16 January 2nd and faced, as I understand it, -three 17 violations at that time: Testing positive for 18 cocaina, an assault charge that was later 19 dismissed, and a petty theft case out of Cleveland 20 Municipal Court. 21 THE COURT: Well, at the time we knew the 22 charge for the petty theft existed -- 23 MR. SWEENEY: Right. 24 THE COURT: -- but we didn't do anything 25 as to the ruling on that because, you know, the 5 ------1 Court was not going to put him in a position where 2 he would have to admit that conduct in this 3 proceeding when he had his right to silence in the 4 muni court proceeding. So we didn't ask that he 5 admit to be a violator because of that muni court 6 charge. 7 It was subsequently brought to the light 8 of the Court that he did, in fact, plead guilty to 9 that and the Court looked at that. 10 MR. SWEENEY: I appreciate that 11 correction. The one thing, I understand that 12 there was those three violations alleged. He just 13 admitted to being a violator. I understand what 14 you're saying, that he subsequently pled guilty, 15 but at the time that the sentence -- the sanction 16 was imposed, I mean, the Court was at least aware. 17 THE COURT: The Court was aware that a 18 proceeding was there, but not that it had been 19 resolved. 20 MR. SWEENEY: And then subsequently ---- and 21 he was in jail from January 2nd until this Court 22 held a subsequent hearing on February 28th, and at 23 that hearing imposed additional conditions for 24 community control, including extending his period 25 of time for two years. 6 ------1 ®ur position is that -- two things: First 2 of all, and this is the reason we filed,the. 3 appeal. It was actually journalized -- the order 4 was journalized on March 5th of 2014, and 5 Mr. Washi.ngton's probation expired on March 3rd. 6 Now, I understand the Court held a hearing 7 before that, but we cite a case in our brief where 8 it is exactly a similar situation where the Court 9 is very clear that the journalization has to occur 10 prior to the expiration ®f probation, and so we 11 believe that's a meritorious issue. 12 THE COURT: Hold on a second. 13 Mr. Newman, Mr. Sweeney is saying that we 14 didn't process the journal entry for the 15 February 28th hearing until March 5th, so his 16 community control was over. 17 THE BAILIFF: I'll have to check the 18 docket. 19 MR. SWEENEY : That ' s what it says on the 20 docket, but that's the case time wise. So the 21 State's response, the State filed a response, 22 which I saw, that said, you know, what actually -- 23 it didn't expire at that time, because community 24 control sanctions didn't start until it was 25 journalized back in March. So he didn't actually 7 ------1 go on probation on March 3rd of 2011, it was 2 actually later, because that journal entry was 3 delayed in its.filing. 4 THF'COURT: That's not true either. I 5 don't know what the prosecutor's office is doing 6 around this whole thing. What happened was is 7 that he was originally sentenced in 2011, and then 8 there was an appeal. And the second sentencing 9 occurred where the same terms were imposed, but in 10 actuality it was like a nunc pro tunc, it actually 11 relates back to the .11th of -- or 2011. That's 12 the position of the Court. 13 In a January hearing, the Court was 14 looking at that 2012 journal entry and didn't 15 realize that that was done on remand.' And so the 16 Court in January, when the Court had the option of 17 extending the community control, didn't realize 18 that the community control would be expiring in 19 March of 2014. He vuas under the impression that 20 he had three years, until March of 2015. 21 The Court was wrong, and, you know, took 22 care of that issue in the hearing on 23 February 28th. 24 MR. SWEENEY: Right. So I certainly 25 understand that issue, and I understand how things 8 ------1 turned out the way they did. The only thing I 2 would say is that it is our position that this 3 Court lacks jurisdiction to extend it on the 5th 4 when the journal entry was entered. 5 The one thing I would say is, you know, we 6 make a lot of legal arguments, et cetera; here, 7 but I guess one of the things I would suggest to 8 this Court is that Ms. Boyd is here, and obviously 9 she could speak on this, this whole thing could be 10 resolved by considering terminating his community 11 control sanctions, because this Court imposed as 12 its conditions that he serve 60 days in jail, 13 which he did. He went to Matt Talbot, 14 successfully completed, he has the certificate 15 here, and he completed anger management. 16 I think this Court's underlying concerns 17 have been addressed. And, you know, we can 18 obviously litigate this issue on appeal and we're 19 asking this Court to stay execution. 20 THE COURT: Are you now asking to 21 terminate the community control? 22 MR. SWEENEY: Honestly, Your Honor, since 23 we filed this motion, I found out that he had 24 completed the Matt Talbot treatment, and it seemed 25 to me a more practical solution to this whole 9 ------1 affair. I mean, he's been on probation for three 2 years. 3 THE COURT: Let me say this: One of my 4 main concerns in the January hearing was that he 5 does get drug treatment. We had discussions 6 about, you know, stepping up and making those 7 final commitments to sobriety and to living a life 8 of being an upstanding citizen. 9 I think that, you know, going through the 10 drug treatment is a major step, and it's a major 11 step in doing the anger management. 12 Now, you know, the Court may be more 13 willing to stay the imposition of the 50 hours if 14 he makes some substantial payment toward the costs 15 and fees that are outstanding and continues to be 16 negative as to drug testing over the next three or 17 four months, the Court will seriously consider 18 that type of a motion. 19 MR. SWEENEY: Okay. 20 THE COURT: I will stay the 50 hours right 21 now. I'11 stay those 50 hours pending the appeal,, 22 but, you know, Mr. Sweeney is more correct in that 23 I was more interested in you getting the- 24 treatment, more interested in you doing the anger 25 management and getting that out of the way. Do 10 1 you understand? 2 You know, I don't want to see you again. 3 Do you want to see me again? 4 THE DEFENDANT: No. 5 THE COURT: Pardon? 6 THE DEFENDANT: No. 7 THE COURT: If you can show me that, you 8 know, you're drug free for an extended period of 9 time here, for three or four months, I'm willing 10 to walk away from this and let the whole thing go, 11 but you have to make some commitment of paying the 12 costs and fees in some fashion. 13 MR. SWEENEY: Okay, Your Honor, we 14 appreciate it. I think -- 15 THE COURT: But at this point I'm willing 16 to stay the -- stay the additional 50 hours. 17 MR. SWEENEY: Thank you, Your Honor. I 18 suspect, I hope Mr. Washington will continue to do 19 as well as he has, and we will file a motion at 20 the appropriate time, assuming that he does well. 21 THE COURT: All right. Thank you. 22 MR. CHALOUPKA: Your Honor, may the 23 prosecutor's office please be heard briefly, for 24 the record? 25 THE COURT: Did you file a motion for 1_1 ------1 leave to speak? 2 MR. CHALOUPKA: Mary McGrath filed one. 3 T'm in her stead today. 4 THE COURT: When did she do that? 5 MR. CHAL®UPKA: She filed the original 6 motion, we just found out that you denied it. 7 THE COURT: No, she didn't file a motion. 8 MR. CHALOUPKA: She filed the original 9 motion, not asking you 10 THE COURT: She filed a motion -- a brief 11 in opposition. 12 MR. CHAL®UPKA: We understand -- 13 THE COURT: That wasn't a motion for 14 le ave . 1s MR. CHALOUPKA: We had just found out that 16 you denied it yesterday. 17 THE COURT: It's denied. 18 MR. CHALOUPKA: For the record, can we say 19 we oppose that decision by this Court? 20 THE COURT: It's denied. You're not here 21 representing anybody. I don't know who you're 22 representing, but you're not representing anybody. 23 MR. CHALOUPKA: Well, Mr. Sweeney served 24 our office, Your Honor. 25 THE COURT: He doesn't determine who the 1e ------ -L parties are, the Court does. And you're not one 2 of the parties to this action. 3 MR. CHALOUPRA: The State maintains it is. 4 THE COURT: Please sit down. 5 MR. SWEENEY: Thank you, Your Honor. 6 THE COURT: Thank you. So the Court will 7 stay -- the Motion to Stay is granted in part. 8 The 50 hours of court community work service is 9 stayed pending the appeal. 10 MR. SWEENEY: Thank you, Your Honor. 11 THE COURT: All right. Thank you. 12 MS. BOYD: Thank you, Your Honor. 13 14 (Thereupon, proceedings were adjourned.) 1 F, 13 1 C E R T I F I C A T E 2 3 I, Diane L. Cieply, Official Court 4 Reporter for the Court of Common Pleas, Cuyahoga 5 County, Ohio, do hereby certify that I am employed 6 as an Official Court Reporter, and I took down in 7 stenotypy all of the proceedings had in said Cour.t 8 of Common Pleas in theabove-entitled cause; that I 9 have transcribed my said stenotype notes into 10 typewritten form, as a^^ea-rs in the foregoing 11 Transcript of Proceedings; that said transdript 12 is a complete record of the proceedings had in the 13 said cause, and constitutes a true and correct 14 Transcript of Proceedings had therein. 15 16 17 18 19 Diane L. Ciep1y, RMR 20 Official Court Reporter Cuyahoga County, Ohio 21 83997772 T E CV COMMON PLEAS CUYA `G 9UNTY, OHIO THE STATE OF OHIO 10111 APR 3Q ° ` Case No: CR-10-542057-B Plaintiff CLERK OF COURTS Judge: JOHN D SUTULA CUYAHOCA C®UNT BRIAN WASHINGTON Defendant INDICT: 2913.51 RECEIVING STOLEN PROPERTY J U AL ENTTI.Y DEFENDANT IN COURT. COUNSEL CULLEN SWEENEY PRESENT. HEARING HELD ON DEFENDANT'S MOTION TO STAY EXECUTION PENDING APPEAL. MOTION TO STAY IS GRANTED IN PART. THE 50 CCWS HOURS STAYED PENDING THE APPEAL. 04/24/2014 CPEDB 04/25/2014 09:18:19 HEAR 04/24/2014 Page 1 of 1 Court of Appeals of Ohio, Eighth District County of Cuyahoga Andrea Rocco, Clerk of Courts STATE OF OHIO Appellant COA NO. LOWER COURT NO. 101406 CR-10-542057-B COMMON PLEAS COURT -vs- BRIAN K. WASHINGTON Appellee MOTION NO. 474987 Date 06/04/14 Jeurnai Eno- > Motion by appellant for leave to appeal is denied. :?' ;A^-^ ^ ;•z =:d ^EfVED^^ FOR FIL1NG 0Z go <1' ^ ,-; JUN x A- 2. 0 14 ^ CU^`P^H ^ NTY CLERK qF^^ ^I^PPEALS Deputy E^a Judge EILEEN A. GALLAGHER, Concurs F(ATRICiA A. SLACKMON Presiding Judge EXHIBIT II 18 ANDREA F. ROCCO CUYAliOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION Electronically Filed: June 2, 2014 16:52 By: ADAM M. CHALOUPKA 0089193 Confimlation Nbr. 143896 THE STATE OF OHIO CR 10 535298-B vrs. Judge: BRIAN K WASHINGTON JOHN D. SUTULA Pages Filed: 24 Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535298-B / Confirmation Nbr. 143896 / CLJK1 IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION CUYAHOGA COUNTY, OHIO STATE OF OHIO, CASE NOS. CR 535298, CR 542057 Plaintiff JUDGE JOHN D. SUTULA V. STATE'S MOTION TO HOLD A HEARING AND IMPOSE BRIAN K. WASHINGTON, PRISON UPON VIOLATION OF Defendant COMMUNITY CONTROL SANCTIONS The State, by and through Cuyahoga County Prosecutor Timothy J. McGinty, now moves this Court to hold a probation violation hearing and find Defendant, Brian K. Washington, a probation violator under R.C. 2929.15 after an arrest for violation of state drug laws and the possession of criminal tools on May 26, 2014, at approximately 2:35AM in the area of East 117th and St. Clair Avenue in Cleveland, Ohio. The Prosecuting Attorney further asks this Court to impose the maximum consecutive punishment of three (3) years in case numbers CR 535298 and CR 542057; cases in which Washington has been free to continue committing offenses against the Citizens of Cuyahoga County. WASHINGTON'S LATEST ARREST AND PENDING CRIMINAL CASE On May 26, 2014, at approximately 2:35AM, Cleveland Gang Impact Unit Detectives arrested Brian K. Washington in connection with violations of state drug laws under R.C. 2925.03 and the possession of criminal tools under R.C. 2923.24. While on patrol in the area of East 117`b Street and St. Clair Avenue, the detectives observed two males standing on the southwest corner of the Marathon gas station. Upon seeing the detectives, the first male, later identified as Kynan M. Stems began waving his arms to flag the detectives down. The second male, later identified as Bryan K. Washington, asked, "What Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 5352981-B / Confirmation Nbr. 143896 1 CLJK1 you need?" One of the Gang Unit detectives replied, "What you got?" and then motioned Washington and Stems over to their detective car. Both males then jogged up to the car, not realizing it was Cleveland police detectives calling them over, and asked the detectives what they wanted and how much they needed. One of the detectives replied, "a sixty (term often used in the offering of buying and or selling illegal narcotics)!" The detectives then exited their car and identified themselves as police. Washington and Stems then ran towards the gas station. However, the detectives were able to apprehend the two men. Both initially denied trying to sell the detectives drugs, but eventually told detectives that another man sitting in a car parked towards the front of the gas station would have actually made the drug transaction with the detectives if Washington and Stems brought the detectives to him. The gang, unit detectives then approached the front of the gas station and observed a black male, later identified as Dionte C. Shepard, entering into a gray car. The detectives, now clearly indicating they were police, approached Shepard. Shepard realized the detectives were getting close and he began to conceal and/or retrieve something from his glove box. As, he quickly attempted to exit the vehicle, the detectives were able to apprehend and detain Shepard. A search of the car resulted in the recovery of a suspected bag of crack cocaine. That offense has since been charged in in the Cleveland Municipal Court under case no. 2014 CRA 13646. The mere arrest resulting from Washington association with drug dealers in the middle of the night is enough to find him in violation of his probation, as he was ordered by this Court that a part of his community control sanctions required inpatient treatment for drugs and anger management. By being out at 2:35AM dealing drugs, he plainly ignored this Court's order. Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535299-B / Confirmation Nbr. 143896 / CLJK1 THE CUYAHOGA COUNTY PROSECUTOR'S OFFICE HAS A LEGAL RIGHT TO BE PRESENT AND DUTY TO REPRESENT THE PUBLIC AT THE PROBATION VIOLATION HEARING Because the Prosecuting Attorney has an interest in the prosecution of crimes and has an interest in all controversies in a criminal matter, this Court is required to recognize the State of Ohio, by an through the Cuyahoga County Prosecutor and his assistants, as a party at the probation violation hearing. See, R.C. 309.03; State v. Young, 154 Ohio App.3d 609, 2003 - Ohio- 4501, at ¶ 7 ("A violation of community-control sanctions, by virtue of a subsequent felony arrest, is certainly within the concept of "complaints, suits, and controversies" in which the state remains an interested party." (Citing, State v. Paul (N.M.App.1971), 82 N.M. 791, 792, 487 P.2d 493, 494; State v. Malbrough (1980), 5 Kan.App.2d 295, 297, 615 P.2d 165, 168.) ) "[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330 (1934), overruled in part on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964). This Court must notify the State through the Prosecuting Attorney (by journal or otherwise) of its intent to hold a community control sanction violation hearing. Otherwise the hearing and the essential elements of due process of notice and an opportunity to be heard are ignored. See, Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487 (1985). The State has a statutory right to be present at a sentencing hearing. R.C. 2929.19(A)(1). A v.iolation hearing is a matter which follows such hearing, and courts have found that the State has an interest, and thus a right to notification of any proceeding. Young, supra. Therefore, the trial court will violate the State's rights to notice and opportunity to be heard if the State is denied an opportunity to be present at the violation hearing and to present evidence. Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 5352981B / Confirmation Nbr. 143896 / CLJK1 WASHINGTON'S MOST RECENT PROBATION VIOLATIONS This office is aware that even before Washington's recent drug related arrest, he had multiple probation violations. Washington was arrested on December 23, 2013, by members of the Cleveland Police Department in connection with theft of items from a motor vehicle in the Ohio City area, a brazen crime occurring in broad daylight on December 17, 2013. Washington was captured by a video camera breaking into the victim's vehicle and stealing items from within. Among the items taken were Christmas presents the victim had purchased for his family. On December 20, 2013, Detective David Santiago of the Cleveland Police Department 2nd District obtained and executed a search warrant of Washington's vehicle and residence. Several stolen items were found in Washington's vehicle. When Detective Santiago interviewed Washington, he admitted to the theft, and admitted to selling a GPS device stolen from the victim's vehicle. Consequently, on January 8, 2014, Washington was convicted of Petty Theft and Criminal Damaging/Endangering in the Cleveland Municipal Court, case no. 2013 CRB 038933. The municipal court judge imposed a suspended jail sentence of 180 days and informed Washington of the additional consequences he was facing due to his probation violations in the common pleas court for these offense. On February 28, 2014, the Court of Common Pleas found Washington to be in violation of his community control sanctions and extended Washington's tenn of probation for an additional two years until February 28, 2016. Additionally, Washington tested positive for having cocaine in his system on November 26, 2014. He was charged with the assault on his wife occurred on October 29, 2014 in the Cleveland Municipal Court under 2013 CRB 034080. After failing to appear in court for those charges, on December 12th, a capias was issued for his arrest. That warrant was pending when Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535294B / Confirmation Nbr. 143896 / CLJK1 Washington committed, and was arrested for, the Ohio City theft offense. However, that assault case was dismissed on January 9, 2014 when the victim became uncooperative. It is readily apparent that Washington has proven himself to be a menace to Cuyahoga County, having committed felonies in this County since 1991. The Citizens of Cuyahoga County should not have to tolerate career criminals who are allowed to remain free, flaunting the law and committing acts that undermine the public's rights to liberty, property, and safety. WASHINGTON IS A CAREER CRIMINAL In 2010, after a 20-year history of felonious behavior undermining the quality of life in our community, Washington was placed under Community Control Sanctions by this Court. In case number CR- 535298, Washington pleaded guilty to two felony offenses: Theft of a Motor Vehicle in violation of R.C. 2913.02 A(1); and Attempted Having a Weapon While Under a Disability in violation of R.C. 2923.02/2923.13 A(2). On June 12, 2012, this Court sentenced Washington to 36 months of Community Control Sanctions, with notice that a violation could result in an aggregate prison sentence of 36 months. In case number CR- 542057, Washington pleaded guilty to Receiving Stolen Property in violation of R.C. 2913.51(A). This Court sentenced Washington to Community Control Sanctions for a period of 36 months, with notice that a violation could result in a prison term of 12 months. Previously, he was subject to the imposition of an aggregate 4 year prison sentence for his violations of the terms of his probation, but after this Court's modification of community control terms on February 28, 2014, Washingto is now subject to the imposition of an aggregate 3 year prison sentence for newest violation. Prior to the crimes for which this Court allowed Washington to be free, Washington amassed an extensive history_. of criminal cases. Of the 27 felony dockets previously filed against him in Cuyahoga County Court of Common Pleas, he pleaded guilty to 25 of those cases; all but Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 53524-B / Confirmation Nbr. 1438961 CLJK1 two of the 25 convictions were for felony offenses. The quantity of charges amassed against him in the last 22 years and the perpetual nature of Washington's crimes renders his lack of respect for the law and the people of Cuyahoga County unmistakable. He has led a life of crime and should no longer be allowed to remain free. A list of the convictions and sentences Washington has received in this Court since 1991 is attached to this motion as Exhibit A. Defendant began his lengthy list of felony convictions in , this county with receiving stolen property, motor vehicle under R.C. 2913.51, in 1991 when he was arrested driving a stolen car. He was convicted under this same statute 12 more times through 2010. Washington diversified his portfolio of crimes with a conviction for grand theft auto under R.C. 2913.02 one month later, in 1991. He stole a victim's car from the victim's driveway, using a screwdriver, and also took the victim's personal possessions, some cassette tapes, out of the car with him. It took Washington just over a year to earn his third, individual felony conviction in this county. This conviction was for attempted receiving stolen property, motor vehicle, under R.C. 2923.23/2913.51., a lesser and included offense under the charge of the indictment. The events that gave rise to this conviction were Washington's theft of property from the trunk of an automobile that was parked in a parking lot. He drove to this parking lot in a vehicle that was stolen, and used a screwdriver to get into the trunk. After his 1992 conviction, he had a quiet year in 1993, aided by incarceration. He wasted no time after being released, however, and by the end of 1994, he had received four more felony convictions in the Cuyahoga County Court of Common Pleas. The first of these convictions arose when he stole his friend's work van, after asking to borrow it for less than an hour. In the Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535299 B/ Confirmation Nbr. 143896 / CLJK1 van were his friend's tools and house keys, so that Washington handicapped his friend's ability to go home or work while he held the van. Washington was convicted of two more felonies in 1995, before agairi taking another brief break from his convictions. Once again, his lack of further convictions was likely aided by incarceration. Both of these convictions came from events when Washington was found driving stolen cars. Washington fled from police during the second arrest. Between 1997 and 2000, Washington was convicted of at least one more felony each year, for a total of 6 more felony convictions, and one misdemeanor. This period included his first drug-related felony in the county and a concealed weapon charge, in addition to the property crimes that had become, by this point, unacceptably routine. When Washington was arrested for the drug charge, in 1999, he ran from police. He only stopped when he ran into a metal trash can and police officers were able to catch him. During that arrest, he had a crack pipe and crack cocaine in his possession. At the turn of the millennium, Washington failed to show any growth in his respect for the laws of this State, and in 2001, he received felony level convictions for both assault under R.C. 2903.12 and abduction under R.C. 2905.02. The details of these violent offenses are described below. In that same year, Washington was also convicted of multiple counts of receiving stolen property, forgery under R.C. 2913.31, and of failing to comply with an order or signal of police under R.C. 2921.33 1. The conviction for the last offense was the result of Washington fleeing police in a car with a passenger, stopping only when an accident disabled the vehicle, and then running on foot until police officers caught him and took him into custody, Over the next two _years, 2002-2003, Washington was found guilty of committing 5 more felony offenses, including theft of a motor vehicle under R.C. 2913.02, robbery under R.C. Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535299-B / Confirmation Nbr. 143896 / CLJK1 2911.02, felonious assault under R.C. 2903.11, and failing to comply with an order or signal of police under R.C. 2921.331. Once again, Washington fled from police in a vehicle when they requested that he stop, and ran on foot after crashing and disabling the vehicle. This time, however, the car that Washington crashed belonged to the victim of his robbery offense. Between 2006 and 2008, Washington pleaded guilty to charges in three more cases, for a total of two more felony convictions and one more misdemeanor. Washington was sentenced to probation on each of those three convictions. As in the past, and now, probation failed. Washington failed to report to the probation department, and absconded from in-patient treatment. Following his sentence, he committed the crimes that led to the present charges and most recent probation violation. This latest criminal escapade was very predictable based on his ridiculously long history of arrests and convictions. The next crime and victim is even more certain to occur if this Court continues Defendant's probation. The risk would be absurdly high. Please set the case for a Probation Violation Hearing as soon as possible. WASHINGTON HAS A VIOLENT CRIMINAL HISTORY Washington's extensive criminal history is not limited to property crimes, and includes inultiple violent crimes. In 2001, he pleaded guilty to aggravated assault under R.C. 2903.12 and abduction under R.C. 2905.02. This case involved a murder, kidnapping, and robbery. These crimes took place when Washington and his co-defendant, riding in a car stolen by Washington, and after spending the night drinking and getting high on crack cocaine, became involved in a disagreement when they attempted to rob a drug dealer. Washington locked the doors of the car to trap a drug dealer who was sitting in the backseat with the victim, while his accomplice stabbed and threatened the dealer with a screwdriver, demanding his drugs. Washington also Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535299LB / Confirmation Nbr. 143896 / CLJK1 drove the car away from the dealer's friend so that he could not help the dealer escape. The dealer then pulled a gun and as Washington's accomplice wrestled with him for it, the victim was shot once in the foot and once in the chest. The bullet that entered his chest went through both of his lungs and his aorta. These wounds caused the victim to bleed to death and Washington fled the scene. Washington's accomplice was sentenced to life without parole eligibility for fifteen (15) years for their heinous crimes. In 2003, Washington pleaded guilty to both robbery under R.C. 2911.02(A)(2) and felonious assault under R.C. 2903.11. Washington stole his victim's vehicle from a parking lot. When the victim saw his car a short time later and approached it, Washington entered the stolen automobile without consent and assaulted the victim with help from his co-defendant. The victim tried to grab the steering wheel through the driver's side window, and Brian Washington refused to stop at the victim's request, instead dragging the victim about 30 feet. Eventually the victim was thrown from the car by Brian Washington's malicious driving. The victim then had to jump out of the way so that he would not be hit when Washington sped away. The victim was left with 9 stitches in his left hand and Washington willfully fled from police at high speeds. The victim's injuries were so severe that he missed a month of work and had to give up his hobby of several years, playing the guitar, because of persistent pain caused by his injuries. Brian Washington also has a pending case in the municipal court for assaulting a household member. His history of violent activity shows that his lack of respect is not limited to other people's property, our laws, and the courts, he has also demonstrated no concern for the physical well-being of the people in this community and has proven a threat to their health and safety. Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535299B / Confirmation Nbr. 143896 / CLJKI WASHINGTON HAS A HISTORY OF PROBATION VIOLATIONS This most recent probation violation is the 10th by Washington. He has repeatedly thrown away chances granted to him by the Court of Common Pleas and has continuously proven that he has no respect for the probation system. At various times, Washington has violated probation by absconding from rehabilitation centers, failing to attend programming, failing to report, testing positive for illicit substances- usually cocaine, and as in the present issue, by violating the law during the probation period. He violated his probation in the following cases during the years listed: • Case number CR- 367202 in 2000 • Case number CR- 387592 in 2001 • Case number CR- 386042 in 2001 • Case number CR- 419059 in 2003 • Case number CR- 433767 in 2003 • Case number CR- 481986 in 2007 • Case number CR- 502619 in 2011 • Case number CR- 513027 in 2011 o Case number CR- 535298 in 2014 • Case number CR- 542057 in 2014 The continuous nature of Washington's criminal activity and his stubborn refusal to better himself and respect the community suggests that this Court will only serve the interests of justice and prevent future crimes and probation violations by imposing the maximum sentence under law for this most recent probation violation. Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535294% / Confirmation Nbr. 143896 / CLJK1 THE CITIZENS OF CUYAHOGA COUNTY MUST BE FREED FROM CRIMES COMMITTED BY CAREER CRIMINALS LIKE WASHINGTON Washington is clearly in violation of the Community Control Sanctions imposed in case numbers CR- 535298 and CR- 542057 after for violation of state drug laws and the possession of criminal tools on May 26, 2014, at approximately 2:35AM in the area of East 117tt' and St. Clair Avenue in Cleveland, Ohio, the case now filed in the- Cleveland Municipal Court. Washington has shown no respect to this Court or to the law by his continued criminal activity-especially when this Court ordered him to complete inpatient treatment as a part of his community control sanctions. Further, this Court has not shown any respect to the community; by placing this dangerous felon on the streets and not into prison, this Court endangered the community. Probation for Washington was error. It is tiine to correct that error before more innocents become victims of Washington's crimes. That Washington will continue to offend was not a mere probability at the time this Court sentenced him to probation, it was a certainty. Now, instead of seeking treatment for his own drug problems, Washington is pedaling illicit narcotics while on probation. That certainty of future offenses has come to fruition, and the State asks that this Court take action to protect the community from crime by this career criminal and impose the maximum sentence under law, an aggregate prison term of three (3) years. Respectfully submitted, Is1 Adarn M. Chaloupka TIMOTHY J. McGINTY (0024626) CUYAHOGA COUNTY PROSECUTOR T. ALLAN REGAS (0067336) ADAM M. CHALOUPKA (0089193) ASSISTANT COUNTY PROSECUTORS 1200 Ontario Street, 9`h Floor Cleveland, Ohio 44113 (216) 443-7800 Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 5352A1B / Confirmation Nbr. 143896 / CLJK1 SERVICE A copy of the foregoing Motion to Impose Prison Upon Violation of Comniunity Control Sanctions has been electronically served this 2°d day of June, 2014, to Cullen Sweeney, counsel for defendant, 310 West Lakeside Avenue, Suite 400, Cleveland, OH 44113. /si Adam M. Chaloupka TIMOTHY J. McGINTY (0024626) CUYAHOGA COUNTY PROSECUTOR T. ALLAN REGAS (0067336) ADAM M. CHALOUPKA (0089193) ASSISTANT COUNTY PROSECUTORS Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535242B / Confirmation Nbr. 143896 / CLJK1 Electronically Filed 06/02/2014 16:52 / MOTION / CR 10 535243B / Confirmation Nbr. 143896 / CLJK1 z z w ^ 0 w ^° ^,„^^°w aw 0 C G^ Z^t 9^^ o 0 0 Z ® z z z ^^^^ z0 r^ ^° z > z^^ cq W w Z^ z z z ^^^ WW Z .4 wZ E- ^ ^z C, ^ 0 k* Z M z ^sa Z ^° w ^m CL, cn *^0-0 z^ z z ^ ^0 ^^ 40 w c ^z-etz^w r^ Z w m 0 Z 3^C z F. ^ °3 z ^F^E1-0 F^^^ w sZ z^ 0 < z ^ w w 0 ^ s t^ t^i^^^^^^^^^ c^^ ,^^^ z Z ^ ^1- ^ Z z z c^ ^3 saC_ ^°^Or^^^^ ^^ A^ E r-, 0.4 .C :m u ^^z ® ^a ^^ LL ^' ^^= Z ^ ,eaz ^ ^N ^° 0c^ ^ 0 ^t Z ba W > ar,Wr^a ^^ Z ^^;^^ ^^^^^'^A^ z z^ .4-E.o WWZWO LU _9^ 0^ rA ^ ^ ^ ^ ^ ^ea tz ^^^ N ^cn e^a L^tw^ ^r > Zu° ° ` z ba° ^re ' ef^ ems Z ^^ >^Qf^ >C7 Z 2 ^ W E°° ^^0 zz o ^ F-1 ON ^ T.4 ON ^ El9 in Ln^ I S3 [a ^3° CC 0 ^°°I f^ f7 4q fi'H f°^S f°P9 t^ C^! 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CR 10 635298-B / (Wirmatio^m Nbr. 143696 1 CLJK1 ANDREA F. ROCCO CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION Electronically Filed: June 5, 2014 09:01 By: TIMOTHY J. MCGINTY 0024626 Confirmation Nbr. 146512 THE STATE OF OHIO CR 10 535298-B Vrs. Judge: BRIAN K WASHINGTON JOHN D. SUTULA Pages FYled: 16 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION CUYAHOGA COUNTY, OHIO STATE OF OHIO, CASE NOS. CR 535298, CR 542057 Plaintiff JUDGE JOHN D. SUTULA V. STATE'S MOTION FOR COURT TO RECUSE ITSELF FOR BIAS BRIAN K. WASHINGTON, Defendant The State, by and through Cuyahoga County Prosecutor Timothy J. McGinty, now moves this Court to recuse itself from presiding over the Criminal Cases, State v. Brian Washington, Case Nos. CR 535298, 542057, where this Court's bias toward the State and the Prosecuting Attorney and his assistants has empowered a career criminal to repeatedly violate the terms and conditions of community control and commit further crime. Where a trial judge has a bias or prejudice against a party to a proceeding pending before the court, the court is disqualified from hearing that case. R.C. 2701.03. THIS COURT'S ORDERS AND ACTIONS DEMONSTRATE BIAS TOWARD THE PROSECUTING ATTORNEY In this matter, this Court has denied the State the ability to be present at hearings in a criminal case, in direct conflict with the law of the State of Ohio. The Court's hostility and bias is evidenced by the Court during the proceedings in these criminal cases. First, in an order journalized February 14, 2014, denying the State's Motion to Reopen Hearing and Hold Full and Fair Hearing Upon Brian K. 1 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ Washington's Violations of Community Control Sanction Violations and the State's Motion to Hold a Probation Violation Hearing on Brian K. Washington's latest criminal conviction and Violation of Community Control Sanctions, this Court set forth rules prohibiting the Prosecuting Attorney from appearing at court hearings in a criminal case, except upon leave and permission from this Court. This Court went further, stating: This Court is obligated to report conduct which it suspects may be a violation of the Ohio Rules of Professional Conduct. Therefore, the Court is referring this matter to the Supreme Court Disciplinary Counsel to determine whether there is an ethical violation on the part of Mr. McGinty for knowingly making false allegations impugning the integrity of the court and the efficacy of the Judicial system for allegedly having ex parte communications and hearings, very serious allegations. Ohio Rule of Professional Conduct 8.2(a). Next, in implementing its order, this Court went further than barring the State from appearing at community control violation hearings without leave when this Court struck the State's brief in opposition to Washington's Motion to Stay Execution.Pending Appeal on April 16, 2014. Further, On April 18, 2014, this Court ordered the following: 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. The court on page one of the transcript states that the State of Ohio was represented by the probation department (Victoria Boyd, P.O.) and Craig Smotzer for the defendant. The court also noted the assistant county prosecutor was present, not representing any party. The court reporter is directed to change the cover sheet to comply with the actual proceeding. 2 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ And, on April 24, 2014, this Court held a hearing upon Washington's Motion to Stay Execution Pending Appeal. During that hearing on a postconviction motion hearing, this Court barred the State from appearing, stating, You're not here representing anybody. I don't know who you're representing, but you're not representing anybody. * * * * He (defense counsel) doesn't determine who the parties are, the Court does. And you're "not one of the parties to this action. (Tr. 11-12, Motion hearing of April 24, 2014). Instead of the Prosecuting Attorney or his assistant appearing in Court and representing the State upon a postconviction motion in a criminal case, this Court required the defendant's probation officer to appear and be heard on the motion as representing the interests of the State of Ohio. This Court ignored R.C. 309.08(A) which provides that, "[t]he prosecuting attorney shall prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party." Further, the law in Ohio is clear as to the right of the prosecuting attorney to represent the State in all criminal proceedings before the Court. "A violation of community-control sanctions, by virtue of a subsequent felony arrest, is certainly within the concept of `complaints, suits, and controversies' in which the state remains an interested party." State v. Young, 154 Ohio App.3d 609, 798 N.E.2d 629, 2003-Ohio-4501, ¶ 7, citing State v. Ferguson (1991), 72 Ohio App.3d 714, 716, 595 N.E.2d 1011. Probation/Community Control Revocation hearings remain suits in which the State is a party, and i r ^i_• _ iu ,,.:iii,^. V,.,...r tnereIUreVi1107 S prUBe GUI OI'SLUelld altu it.7 :^"pitrt4ttgs.ij^a^c•^4^ 'irt 4L1^1V^G"^^^ ^'^^iicai , vw^1,5, 3 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ supra. See also Roberts u. Ross, 680 F.Supp.1144, 1146 (S.D. Ohio 1987) (There is nothing in R.C. 2951.08 that prevents a prosecutor from seeking a warrant to arrest a probation violator because R.C. 309.08 requires that prosecutor prosecute "all complaints, suits, and controversies in which the state is a party. .."). Moreover, the Eighth District Court of Appeals has held that the State has the burden of proof at revocation hearings to establish a violation and revoke community control sanctions by "substantial" evidence. State u. Lenard, 8th Dist. No. 93373, 2010- Ohio-81. In light of the established law in Ohio that the prosecuting attorney is not only a party to all criminal proceedings, and is entitled to bring allegations of probation violation hearings, this Court continues to deny the State notice of, or an opportunity to be heard at, community control violation or revocation hearings by reasoning that probation officers fully represent all State interests and fulfill all State responsibilities at these hearings. This can only be explained by bias. THE COURT HAS IGNORED THE PROSECUTING ATTORNEY'S ATTEMPTS TO HIGHLIGHT WASHINGTON'S DEMONSTRATED CRIMINAL ACTIVITY AND THE THREAT HE POSES TO THE COMMUNITY In these cases, the Prosecuting Attorney filed several motions showing the error of this Court's handling of a Washington on community control, noting this Court's delay and coddling of Washington has led this career criminal to act with impunity and terrorize the community by continuing to commit new crimes. Instead of objectively reading the established law, and allowing the State to be present at hearings so this Court may be apprised of all facts to assess the threat Washington 4 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ poses to the community; this Court has become entrenched in its position to ignore the law. WASHINGTON IS A CAREER CRIMINAL In 2010, after a 20-year history of felonious behavior undermining the quality of life in our community, Washington was placed under Conununity Control Sanctions by this Court. In case number CR- 535298, Washington pleaded guilty to two felony offenses: Theft of a Motor Vehicle in violation of R.C. 2913.02 A(l); and Attempted Having a Weapon While Under a Disability in violation of R.C. 2923.02/2923.13 A(2). On June 12, 2012, this Court sentenced Washington to 36 months of Community Control Sanctions, with notice that a violation could result in an aggregate prison sentence of 36 months. In case number CR- 542057, Washington pleaded guilty to Receiving Stolen Property in violation of R.C. 2913.51(A). This Court sentenced Washington to Community Control Sanctions for a period of 36 months, with notice that a violation could result in a prison term of 12 months. Previously, he was subject to the imposition of an aggregate 4 year prison sentence for his violations of the terms of his probation, but after this Court's modification of community control terms on February 28, 2014, Washingto is now subject to the imposition of an aggregate 3 year prison sentence for newest violation. Prior to the crimes for which this Court allowed Washington to be free, Washington amassed an extensive history of criminal cases. Of the 27 felony dockets previously filed against him in Cuyahoga County Court of Common Pleas, he pleaded guilty to 25 of those cases; all but two of the 25 convictions were for felony offenses. The quantity of charges amassed against him in the last 22 years and the perpetual nature of Washington's crimes renders his lack of respect for the law and the people of Cuyahoga County unmistakable. He has led a life of crime and should no longer be allowecl to remain free. 5 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ A list of the convictions and sentences Washington has received in this Court since 1991 is attached to this motion as Exhibit A. Defendant began his lengthy list of felony convictions in this county with receiving stolen property, motor vehicle under R.C. 2913.51, in 1991 when he was arrested driving a stolen car. He was convicted under this saine statute 12 more times through 2010. Washington diversified his portfolio of crimes with a conviction for grand theft auto under R.C. 2913.02 one month later, in 1991. He stole a victim's car from the victim's driveway, using a screwdriver, and also took the victim's personal possessions, some cassette tapes, out of the car with him. lt took Washington just over a year to earn his third, individual felony conviction in this county. This conviction was for attempted receiving stolen property, motor vehicle, under R.C. 2923.23/2913.51, a lesser and included offense under the charge of the indictment. The events that gave rise to this conviction were Washington's theft of property from the trunk of an automobile that was parked in a parking lot. He drove to this parking lot in a vehicle that was stolen, and used a screwdriver to get into the trunk. After his 1992 conviction, he had a quiet year in 1993, aided by incarceration. He wasted no time after being released, however, and by the end of 1994, he had received four more felony convictions in the Cuyahoga County Court of Common Pleas. The first of these convictions arose when he stole his friend's work van, after asking to borrow it for less than an hour. In the van were his friend's tools and house keys, so that Washington handicapped his friend's ability to go home or work while he held the van. Washington was convicted of two more felonies in 1995, before again taking another brief break from his convictions. Once again, his lack of further convictions was likely aided by 6 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ incarceration. Both of these convictions came from events when Washington was found driving stolen cars. Washington fled from police during the second arrest. Between 1997 and 2000, Washington was convicted of at least one more felony each year, for a total of 6 more felony convictions, and one misdenneanor. This period included his first drug-related felony in the county and a concealed weapon charge, in addition to the property crimes that had become, by this point, unacceptably routine. When Washington was arrested for the drug charge, in 1999, he ran from police. He only stopped when he ran into a metal trash can and police officers were able to catch him. During that arrest, he had a crack pipe and crack cocaine in his possession. At the turn of the millennium, Washington failed to show any growth in his respect for the laws of this State, and in 2001, he received felony level convictions for both assault under R.C. 2903.12 and abduction under R.C. 2905.02. The details of these violent offenses are described below. In that same year, Washington was also convicted of multiple counts of receiving stolen property, forgery under R.C. 2913.31, and of failing to comply with an order or signal of police under R.C. 2921.331. The conviction for the last offense was the result of Washington fleeing police in a car with a passenger, stopping only when an accident disabled. the vehicle, and then running on foot until police officers caught him and took him into custody. Over the next two years, 2002-2003, Washington was found guilty of committing 5 more felony offenses, including theft of a motor vehicle under R.C. 2913.02, robbery under R.C. 2911.02, felonious assault under R.C. 2903.11, and failing to comply with an order or signal of police under R.C. 2921.331. Once again, Washington fled from police in a vehicle when they requested that he stop, and ran on foot after crashing and disabling the vehicle. This time, L.,.. .L... tl...+ ZI7..^1.:.^,.r.,., toa l+olr.,,r.or7 liVGvGl,w L1lG V0.1 Lll(LL YY QJ11111E',LV/l Vras11^+U V^.1V11^vUtv tl;e vi^t:m ^f hic rnhherv nffPnca J . 7 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 1 CLLAJ Between 2006 and 2008, Washington pleaded guilty to charges in tlu-ee more cases, for a total of two more felony convictions and one more misdemeanor. Washington was sentenced to probation on each of those three convictions. As in the past, and now, probation failed. Washington failed to report to the probation department, and absconded from in-patient treatment. Following his sentence, he comniitted the crimes that led to the present charges and most recent probation violation. This latest criminal escapade was very predictable based on his ridiculously long history of arrests and convictions. The next crime and victim is even more certain to occur if this Court continues Defezidant's probation. The risk would be absurdly high. Please set the case for a Probation Violation Hearing as soon as possible. WASHINGTON HAS A VIOLENT CRIMINAL HISTORY Washington's extensive criminal history is not limited to property crimes, and includes inultiple violent crimes. In 2001, he pleaded guilty to aggravated assault under R.C. 2903.12 and abduction under R.C. 2905.02. This case involved a murder, kidnapping, and robbery. These crimes took place when Washington and his co-defendant, riding in a car stolen by Washington, and after spending the night drinking and getting high on crack cocaine, becaine involved in a disagreement when they attempted to rob a drug dealer. Washington locked the doors of the car to trap a drug dealer who was sitting in the backseat with the victim, while his accomplice stabbed and threatened the dealer with a screwdriver, demanding his drugs. Washington also drove the car away from the dealer's friend so that he could not help the dealer escape. The dealer then pulled a gun and as Washington's accomplice wrestled with him for it, the victim was shot once in the foot and once in the chest. The bullet that entered his chest went through kV+1, Vf' i,' 1 ,-ro u Lll l llls lUllgs al1and J1 11aol^^aa . These. :.^.^,'.:nd^ caused the inct im to 1Jleed t^? de ath and 8 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ Washington fled the scene. Washington's accomplice was sentenced to life without parole eligibility for fifteen (15) years for their heinous crimes. In 2003, Washington pleaded guilty to both robbery under R.C. 2911.02(A)(2) and felonious assault under R.C. 2903.11. Washington stole his victim's vehicle from a parking lot. When the victim saw his car a short time later and approached it, Washington entered the stolen automobile without consent and assaulted the victim with help from his co-defendant. The victim tried to grab the steering wheel through the driver's side window, and Brian Washington refused to stop at the victim's request, instead dragging the victim about 30 feet. Eventually the victim was thrown from the car by Brian Washington's malicious driving. The victim then had to jump out of the way so that he would not be hit when Washington sped. away. The victim was left with 9 stitches in his left hand and Washington willfully fled from police at high speeds. The victim's injuries were so severe that he missed a month of work and had to give up his hobby of several years, playing the guitar, because of persistent pain caused by his injuries. Brian Washington also has a pending case in the municipal court for assaulting a household member. His history of violent activity shows that his lack of respect is not limited to other people's property, our laws, and the courts, he has also demonstrated no concem for the physical well-being of the people in this community and has proven a threat to their health and safety. WASHINGTON HAS A HISTORY OF PROBATION VIOLATIONS This most recent probation violation is the 10th by Washington. He has repeatedly thrown away chances granted to him by the Court of Common Pleas and has continuously proven that he has no respect for the probation system. At various times, Washington has 1 roa ,- h-ti.,,, by , ah^^nndin vJV la4\+u 1VVtA41V11p ., g .frnm rehahilitatinn ePnterc, failin "ao to attPnrl o_r'nrngramminp_ ' , 9 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ failing to report, testing positive for illicit substances- usually cocaine, and as in the present issue, by violating the law during the probation period. He violated his probation in the following cases during the years listed: • Case number CR- 367202 in 2000 • Case number CR- 387592 in 2001 • Case number CR- 386042 in 2001 • Case number CR- 419059 in 2003 • Case number CR- 433767 in 2003 • Case number CR- 481986 in 2007 • Case number CR- 502619 in 2011 • Case number CR- 513027 in 2011 • Case number CR- 535298 in 2014 • Case number CR- 542057 in 2014 The continuous nature of Washington's criminal activity and his stubborn refusal to better himself and respect the community suggests that this Court has refused to recognize the import and effect of its decision to continue Washington on community control sanctions. THIS COURT'S REFUSAL TO ALLOW THE PROSECUTING ATTORNEY TO REPRESENT THE STATE OF OHIO IN COURT HAS RESULTED IN INEVITABLE CONTINUED CRIMINAL ACTIVITY BY WASHINGTON In light of perceived criticism of its decision to allow Washington to continue under its supervision, this Court now not only bars this Prosecuting Attorney from participating in postconviction proceedings, it has found that he and his assistants may not appear at a hearing on whether or not the criminal case should be stayed pending appeal. This Court would not bar a party to a lawsuit from appearing and 10 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ being heard upon a motion in any other instance. Nor has it. Thus, the barring of the Prosecuting Attorney and his assistants in this case can only be attributed to its hostility and bias. Such bias to the Prosecuting Attorney has led to the unfortunate situation that the public continues to be endangered by Washington's presence in the community. Not only has he been arrested and convicted in Cleveland Municipal Court for theft; this Court allowed him to remain in the community after his brazen daylight break-in of a car in Ohio City. That decision to allow Washington to remain in the community, was the latest in a series of violation hearings in which this Court warned Washington future violations would result in a prison sentence. But without any imposition of such sentences, this Court empowered Washington to continue to commit crimes. Washington's latest actions that resulted in his arrest and indictment in State v. Washington, CR 585919, are that on May 26, 2014, at approximately 2:35AM, Cleveland Gang lmpact Unit Detectives arrested Brian K. Washington in connection with violations of state drug laws under R.C. 2925.03 and the possession of criminal tools under R.C. 2923.24. While on patrol in the area of East 117th Street and St. Clair Avenue, the detectives observed two males standing on the southwest corner of the Marathon gas station. Upon seeing the detectives, the first male, later identified as Kynan M. Sterns began waving his arms to flag the detectives down. The second male, later identified as Bryan K. Washington, asked, "What you need?" One of the Gang Unit detectives replied, "What you got?" and then motioned Washington and Sterns over to their detective car. Both males then jogged up to the car, not 11 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 I CLLAJ realizing it was Cleveland police detectives calling them over, and asked the detectives what they wanted and how much they needed. One of the detectives replied, "a sixty (term often used in the offering of buying and or selling illegal narcotics)!" The detectives then exited their car and identified themselves as police. Washington and Stems then ran towards the gas station. However, the detectives were able to apprehend the two men. Both initially denied trying to sell the detectives drugs, but eventually told detectives that another man sitting in a car parked towards the front of the gas station would have actually made the drug transaction with the detectives if Washington and Stems brought the detectives to him. The gang unit detectives then approached the front of the gas station and observed a black male, later identified as Dionte C. Shepard, entering into a gray car. The detectives, now clearly indicating they were police, approached Shepard. Shepard realized the detectives were getting close and he began to conceal and/or retrieve something from his glove box. As, he quickly attempted to exit the vehicle, the detectives were able to apprehend and detain Shepard. A search of the car resulted in the recovery of a suspected bag of crack cocaine. THIS COURT HAS EXHIBITED BIAS THAT HAS PLACED THE SAFETY OF THE COMMUNITY AT RISK WHERE IT HAS DISREGARDED WASHINGTON'S CONTINUED VIOLATIONS OF COMMUNITY CONTROL AND BARRED THE PROSECUTOR FROM APPEARING IN COURT UPON THE RECORD In this case, this Court has allowed Washington the liberty to continue to commit crimes without fear of punishment. In Washington's lengthy criminal history, detailed both in this motion and in prior motions before this Court, Washington has proven that he is a career criminal. With over 20 felony separate convictions for felony offenses in Cuyahoga County, and with a continuous history of violations while on community control, it was inevitable that Washington would violate community control before this Court. Moreover, he committed the offense in Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ Case No. 542057 while on bond in Case No. 535298. This commitment to criminality throughout Washington's life was not only documented by his numerous felony convictions, but was set forth squarely before this Court when it determined that Washington did not pose a threat to the public and sentenced him to community control sanctions. Had this Court looked objectively at Washington, his history, and provided the Prosecutor the right to be heard in Court, this Court would have come to only one conclusion, community control sanctions have proven ineffective with Defendant Washington. However, that logical conclusion has been absent in these cases. This Court's bias and refusal to hear the State on the record and be confronted with Washington's repeated and predictable failures on community control sanctions has allowed Washington to be confident in his ability to continue criminal behavior. While in the community under the watch of this Court, Washington has failed to report to the Court, Washington has used illegal substances, has been arrested on domestic violence charges, has committed a professionally orchestrated auto break-in stealing children's wrapped Christmas presents, and has now engaged in the drug trade. These violations and the brashness with which Washington treats the criminal justice system will likely be repeated if this Court presides over the latest criminal case. As with the several violations that have been excused by this Court with hollow admonitions of prison upon the next violation, it is likely that this pattern will continue if this Court romainc ac tha ac.ciunPrl^-a--- rnurt to hear WaGhino'ton's,-- - latest case. 13 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ At each and every hearing held in this case examining Washington's violations of community control sanctions, this Court has warned Washington he would be imprisoned upon any future violation.. However, despite those warnings, and despite Washington's history violations of his community control sanctions over the past twenty years, this Court continued to allow Washington to remain in the community. There can be no rational explanation for these decisions, other than that this Court has allowed its bias against the Prosecuting Attorney to ignore the fact that Washington was, and is, and will be, a danger to the community. CONCLUSION Washington has openly engaged in the drug trade while on Community Control. Thi-s latest crime, for which he now stands indicted in Case No. 585919, was made possible by this Court's commitment to allow Washington the freedom he has so obviously forfeited with his history of violating terms and conditions of community. control. Washington stands indicted of offering to sell narcotics by waving cars ' down on the street. That this Court has continued to allow Washington to remain on the streets of Cleveland to commit further crimes is enigmatic. The only interpretation of this Court's actions in continuing to allow Washington freedom to commit new crimes - after several violation have been and admitted - can only be attributed to its bias against the Prosecuting Attorney. There can be no explanation other than bias toward the Prosecuting Attorney that would explain this Court's indifference to the safety of the community by allowing Washington to he free. Washington has proven bv his criminal actions for 14 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ the past two decades he would violate probation. Washington has proven by his history of probation violations that he would violate probation. And Washington has been arrested in the early morning hours in the company of felons. That fact alone - after Washington's repeated violations -would lead any reasonable jurist to conclude continued community control sanctions would be ineffective. And this Court failed to recognize that Washington would commit new crimes, ignoring the best evidence of future criminal activity that exists, past criminal activity. Instead of viewing Washington's history and repeated violations of the terms and conditions of community control and examining these facts at hearing, the Court simply determined the Prosecutor could not participate and present these facts openly in court and upon the record. That the Prosecuting Attorney does not represent the State of Ohio in a criminal matter is a position unique in this State. Such belief exhibits prejudice and bias toward the Prosecutor, bias that has resulted in Washington having the opportunity to be out in the early morning hours and placing himself in the company of felons. For these reasons, and the safety of the community, the State of Ohio, by and through its legal representative, the Prosecuting Attorney of Cuyahoga County, asks this Court recuse itself from Washington's criminal cases. Respectfully submitted, BY: /s/ Tinioth-v J. McGinty-..... ------TIMOTHY J. McGINTY (0024626) CUYAHOGA COUNTY PROSECUTOR 1200 Ontario Street, 9th Floor Cleveland, nhin 4411:3 216.443.7800 is Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ SERVICE A copy of the foregoing State's Motion for Court to Recuse Itself for Bias has been sent via electronic filing portal this the 5th day of June 2014 to: Cullen Sweeney, 310 Lakeside Ave., 2nd Floor, Cleveland, Ohio 44113 csvree^?c_uw ^ h o^aco^a_nty, ^1 s ----- J5lf ;.1-TX3.ot ay J . Mt xinE: ------TIMOTHY J. McGINTY (0024626) CUYAHOGA COUNTY PROSECUTOR 16 Electronically Filed 06/05/2014 09:01 / MOTION / CR 10 535298-B / Confirmation Nbr. 146512 / CLLAJ ANDREAF:ROCCO CUYAHHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION Electronically Filed: June 5, 201414:15 By: CULLEN SWEENEY 0077187 Confirmation Nbr. 147217 THE STATE OF OHIO CR 10 535298-B vrs. Judge: BRIAN K WASHINGTON JOHN D. SUTULA Pages Filed: 7 Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO Case No. 535298 & 542057 Plaintiff JUDCiE JOHN D. SUTULA vs. . DEFE]`1DANT°S MOTION FOR APPOINTMENT OF A BRiAN WASHINGTON SPECIAL PROSECUTOR Defendant Now comes the defendant, Brian Washington, by and through undersigned counsel, and respectfully moves this Honorable Court for the appointment of a Special Prosecutor to handle all further matters related to this case. Reasons and authorities in support of this motion are set forth in the attached memorandum, which is incorporated herein by reference. Respectfully submitted, ROBERT L. TOBIK Chief Public Defender JOHN T. MARTINil-0020606) Assistant Public Defender Appellate Supervisor CULLEN SWEENEY (#0077187 Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113 (216) 443-3660 Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ MEMGMNDjM IN SL^'I*PGR`l' With this motion, Mr. Washington respectfully requests that this Court appoint a special prosecutor for reasons set forth in detail below. Washington planned to file this motion yesterday. However, as a matter of professional courtesy, undersigned counsel contacted the prosecutor's office to see if this issue could be resolved infonnally. (See Ex. A, Email exchange between Assistant Public Defender Cullen Sweeney and Assistant County Prosecutor T. Allan Regas). In light of the Prosecutor's decision to file the "State's Motion for Court to Recuse Itself for Bias," Mr. Washington assumes that Prosecutor McGinty is not interested in resolving this matter informally. Accordingly, the within motion is now being filed. On March 3, 2011, the trial court sentenced Mr. Washington to 36 months of community control sanctions for three low-level felonies: theft of a motor vehicle (F-4), attempted having a weapon while under disability (F-4), and receiving stolen property (F-5). This Court recently extended Washington's period of community control sanctions by two years. Now pending before this Court is the State's motion to hold a hearing and impose "the maximum consecutive punishment of three (3) years" in these cases because Washington was arrested on May 26, 2014 for allegedly engaging in an arnbiguous conversation with two undercover police detectives. Brian Washington respectfully requests that this Court appoint a special prosecutor to handle all further matters related.to this case, including but not limited to any hearings, for two reasons: 1) County Prosecutor Timothy J. MeGinty has a personal interest in this case because one of Mr. Washington's prior violations involved one of Mr. McGinty's family members; and 2) County Prosecutor Timothy J. McGinty has treated Mr. Washington differently due to Mr. McGinty's personal connection to this case. Because of an actual conflict and, at a minimum, an appearance of impropriety, Mr. Washington asks this Court to appoint a special prosecutor. Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ R.C. 2941.63 provides: The court of common pleas, or the court of appeals, whenever it is of the opinion that the public interest requires it, may appoint an attorney to assist the prosecuting attorney in the trial of a case pending in such court. The board of county commissioners shall pay said assistant to the prosecuting attorney such compensation for his services as the court approves. This statutory provision provides this court with broad discretion to appoint a special prosecutor in a criminal case "whenever it is of the opinion that the public interest so requires." State ex rel. Williams v. Zaleski (1984), 12 Ohio St. 3d 109, 113. Indeed, there is no requirement that this Court conduct a hearing prior to disqualification of the prosecuting attorney. Id. Washington maintains that the public interest requires the appointment of a special prosecutor because Cuyahoga County Prosecutor Timothy J. McGinty has a personal interest in Mr. Washington's case and that personal interest has led to unprecedented litigation in which Washington has been treated differently than other probationers. Undersigned counsel has become aware that Prosecutor McGinty became personally involved in Mr. Washington's case because the victim of Washington's December 2013 misdemeanor case (2013 CRB 38933) was one of Mr. McGinty's family members. Since that time, Prosecutor McGinty and his office have taken several unprecedented steps including the following: • Filing a 21-page motion to "reopen" and "hold full and fair" community control sanctions violation hearing in this case, see,king a "maximum consecutive punishment of four (4) years" due to the December 2013 misdemeanor vandalism and petty theft case. (Filed on January 6, 2014) 2 Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ • Filing a 122-page motion to hold a "probation violation hearing." (Filed on January 31, 2014) • Requesting leave to appeal the trial court's denial of his request to reopen the probation violation hearing. (Filed February 24, 2014) • Requesting leave to appeal the trial court's order staying SO hours of community service pending Washington's appeal. (Filed May 19, 2014) • Now filing a new 24-page "motion to hold a hearing and impose prison upon violation of community control sanctions" the day after Washington was indicted for an F-S drug.offense. (Filed June 2, 2014) • Filing a 16-age "State's motion for court to recuse itself for bias." (Filed June 5, 2014). It should be noted that Prosecutor McGinty's motion only questions this Court's impartiality in this case and not any other matter in which the County Prosecutor is a party. County Prosecutor McGinty personally signed most, if not all, of these filings. Undersigned counsel is unaware of any other low-level felony case in which County Prosecutor McGinty has become so personally involved and filed such lengthy and extraordinary pleadings. The elected County Prosecutor obviously has both a duty and a mandate to prosecute crimes and seek punitive sanctions that he deems to be appropriate. The public expects no less. It is not, however, in the public interest for a County Prosecutor to become personally involved in a case because, whether in whole or in part, he has a personal interest in the outcome. Whether or not County Prosecutor McGinty would have taken the very same extraordinary steps in another low-level probation violation hearing, 3 Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ there is at, a minimum, a perception that this case has been handled differently because of his persdnal connection to the case. To avoid the actual conflict that has developed because of County Prosecutor's personal connection to the instant case, as well as the appearance, if not reality, that Washington is being treated differently because of that personal connection, this Court should appoint a Special Prosecutor from outside of the Cuyahoga County Prosecutor's Office. Res y b ed, John T. Markin, Esq. Cullen Sweeney, Esq. CERTIPICATE OF SERVICE The undersigned counsel hereby certifies that a true and accurate copy of the foregoing Motion was served, by means of electronic service through the e-filing system, on Timothy J. McGinty, Cuyahoga County Prosecutor and/or a member of his staff, 1200 Ontario Street; Cleveland, Ohio 44114, on this 5th day of June 2014. C EN SWEENIJ^- Attorney for Defendant 4 Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ Exhibit A Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ Cuflen Sweeney - RE: Draft motion ^s>u^^a.wvr.nxawa:!rwar.^utsmu¢axs^,^rr.v^zar.s^ue^ie^n'eita:au^usxe^xn:ava=.re: xats*xear^+ v.nrrecien^.x:sa^xar,^,^s^xae;en:n^! rax^r^a.a+:x r^rar:mcaas:oe.ae+n.o :trcn.tio-;ve;^s^:±,w c:«cs.;. From: Cullen Sweeney To: T Allan Regas Date: 6/4/2014 1:29 PM Subject: RE: Draft motion Thanks Allan. »> T Allan Regas I will try. Let me know if he calls for a haring. Thanks. From: Cullen Sweeney {ma6lto:[email protected]] Sent: Wednesday, June 04, 2014 11:56 AM To: T Allan Regas Cc: Martin, John Subject: Draft motion Allen: Here is our draft, Please let us know by the end of tomorrow if you can. Thanks. Cullen fiie:///C:/Users/csweeney/AppData/Local/Temp/XPgrpwise/538F1F22DO CCGWPOI CC... 6/5/2014 Electronically Filed 06/05/2014 14:15 / MOTION / CR 10 535298-B / Confirmation Nbr. 147217 / CLLAJ ANDREA F. ROCCO CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF Electronically Filed: June 5, 201416:30 By: CULLEN SWEENEY 0077187 Confirmation Nbr. 147625 THE STATE OF OHIO CR 10 535298-B vrs. Judge: BRIAN K WASHINGTON JOHN D. SUTULA Pages Filed: 4 Electronically Filed 06/05/2014 16:30 / BRIEF / CR 10 535298-B / Confirmation Nbr. 147625 / CLLAJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO Case No. 535298 & 542057 Plaintiff JUDGE JOHN D. SUTULA vs. . DEFENDAINT"S RESPONSE TO STATE'S MOTION F'OR.__------CO'iJ-R'I` BRIAN WASHLNGTON TO RECUSE 1TSELF FOR BIAS Defendant Now comes the defendant, Brian Washington, by and through undersigned counsel, and respectfully requests that this Honorable Court deny the "State's Motion for the Court to Recuse Itself for Bias." Reasons and authorities in support of this motion are set forth in the attached memorandum, which is incorporated herein by reference. Respectfully submitted, ROBERT L. TOBIK Chief Public Defender ;"s% Cullerk Sweeney ------JOHN T. MARTIN (#0020606) Assistant Public Defender Appellate Supervisor CULLEN SWEENEY (#0077187 Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113 (216) 443-3660 Electronically Filed 06/05/2014 16:30 / BRIEF / CR 10 535298-B / Confirmation Nbr. 147625 / CLLAJ MEMORANDUM IN SUPPORT Less than 24 hours after being told by the defense that a defense motion to appoint a special prosecutor had been prepared, the County Prosecutor's Office chose not to accept the defense invitation to discuss this matter before any defense motion was filed. Instead, County Prosecutor Timothy J. McGinty personally filed a motion on behalf of his Office - not to withdraw the County Prosecutor's Office from this case but, for the first time, to remove this Court from the case instead. Mr. McGinty's motion unfairly calls into question this Court's integrity and impartiality. Rather than recognize the log of bias in his own eye, Mr. McGinty is searching for a speck of bias in the eye of this Court,' a speck that does not exist. The motion for this Court to recuse itself should be denied for the reasons set forth below. 1. This Court has not demonstrated an unfair bias in this case. This Court has not been unfair in this case. Unlike Mr. McGinty, this Court does not have a personal relationship with any person who has been associated with Mr. Washington or with any person who is or was a potential witness against Mr. Washington in any case, past or present. Indeed, the timing of Mr. McGinty's motion (i.e., its coming at a time when the defense was waiting to see if the Prosecutor's Office wished to discuss the issue of Mr. McGinty's conflict) further undermines the validity of the motion. A central part of Mr. McGinty's argument is that this Court's bias is demonstrated by its failure to incarcerate Mr. Washington when Mr. McGinty believes Washington should be in prison. Mr. McGinty's motion goes so far as to claim that the only rational explanation for not sentencing Mr. Washington to prison is judicial bias. Contrary to Mr. McGinty's argument, not Matt, 7:4 (New Amerir.an ^tandard)^ "Or how can vnii cay to your brother, 'Let me take the speck out of your eye,' and behold, the log is in your own eye?" 1 Electronically Filed 06/05/2014 16:30 / BRIEF / CR 10 535298-B / Confirmation Nbr. 147625 / CLLAJ everyone who disagrees with him is either irrational or biased. If this Court were to recuse itself, it might be perceived by others that the Prosecutor can remove judges when they refuse to agree with the Prosecutor that a defendant should be incarcerated. 2. The appointment of a special prosecutor will make Mr. McGinty's motion moot. To the extent that Mr. McGinty complains that this Court cannot be fair so long as Mr. McGinty's office is involved in this case, the answer is simple: By granting the defense motion that has now been filed to remove Mr. McGinty's office and appoint a special prosecutor, this Court will solve eveiyone's problem. This Court will continue with the case and the State of Ohio will be represented by a special prosecutor who has no connection to Mr. McGinty. Then, Mr. McGinty will not have to worry about any bias against his office - even a bias that does not exist. Wherefore, the motion should be denied. Respectfully submitted, /s/ Cullen Sweeney John T. Martin, Esq. Cullen Sweeney, Esq. 2 Electronically Filed 06/05/2014 16:30 / BRIEF / CR 10 535298-B / Confirmation Nbr. 147625 / CLLAJ CERTIFICATE OFSERVlClr The undersigned counsel hereby certifies that a true and accurate copy of the foregoing Motion was served, by means of electronic service through the e-filing system, on Timothy J. McGinty, Cuyahoga County Prosecutor and/or a member of his staff, 1200 Ontario Street, Cleveland, Ohio 44114, on this 5th day of June 2014. Cullen S-weenev CULLEN SWEENEY Attomey for Defendant Electronically Filed 06/05/2014 16:30 / BRIEF / CR 10 535298-B / Confirmation Nbr. 1476251 CLLAJ ANDREA F. ROCCO CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas BRIEF Electronically Filed: June 11, 201417:45 By: TIMOTHY J. MCGINTY 0024626 Confirnmtion Nbr. 152495 THE STATE OF OHIO CR 10 535298-B vrs. Judge: BRIAN K WASHINGTON JOHN D. SUTULA Pages Filed: 21 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION CUYAHOGA COUNTY, OHIO STATE OF OHIO, ) CASE NOS. CR 535298, 542057 Plaintiff ) JUDGE JOHN D. SUTULA -vs- ) RESPONSE TO MOTION TO APPOINT BRIAN K. WASHINGTON, SPECIAL PROSECUTOR Defendant ) Defendant Brian K. Washington demands another, less enthusiastic, prosecutor be assigned to his case. He has filed a motion to appoint a special prosecutor, highlighting the vigorous posture the Cuyahoga County Prosecutor's Office has taken in the continuing criminal exploits of his life of crime. It is certain that all career criminals would join him with his attempt creating a new policy that would allow the criminal to choose the prosecutor of his choice. The State opposes this motion. This prosecution is based upon the egregious conduct that Mr. Washington himself has displayed while on community control sanctions and his history as a habitual criminal. Mr. Washington has continually violated the terms and conditions of community control by committing crimes while on probation. Mr. Washington's ridiculous motion is simply a means to attempt to select his own prosecutor and remove the obstacle of a prosecutor that will no longer tolerate continued criminal behavior by this Defendant. He and his counsel also are obviously attempting to take advantage of the policy dispute that is currently in place between the County Prosecutor's Office and this Court due to this Court's highly unuss'uai stance in ref,Ncinrr1`b t^ atlnly the Prneorµtnr tn runrpcPntr' tha Statar nn nrnhatinn 1 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN violations in his courtroom. This Court's position is that it will decide who will represent the State of Ohio in his courtroom and that the. Court has chosen his employee the probation officer, not the statutorily designated county prosecutor. This is a matter of great contention and will continue'to be litigated in the appellate courts. Although the defense concedes that the State is represented by the County Prosecutor at all sentencing and probation violation hearings, it cannot resist exploiting the opportunities this policy argument has created and has decided to file this frivolous motion. Because Mr. Washington has been free to commit new crimes and flaunt the authority of this Court since being placed on community control in his two criminal cases, he now wants to pick his own prosecutor by creating claims of bias and impropriety. For the reasons that follow, Mr. Washington has not shown that the prosecution in ' any way exhibits particular bias that would allow for the removal of the prosecutor; has not shown that the law countenances such motions without more than allegations of a vigorous prosecution; but he has shown that his own continued criminal behavior on community control demonstrates the necessity for proactive and interested prosecutions. Mr. Washington is a one man crime wave. Every day he is on the street the public's safety is endangered. The Cuyahoga County Prosecutor's office will continue to vigorously prosecute Mr. Washington for every crime he has committed while on probation and for every crime he will commit in the future. It is Pollyannaish to believe he will not continue to victimizing vulnerable people in the community. Past behavior remains the best predictor of future behavior. For these reasons, the State of Ohio objects to the appointment of a special prosecutor. 2 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN I. WASHINGTON'S MOTION IS AN ATTEMPT TO CHOOSE HIS OWN PROSECUTOR The Cuyahoga County Prosecutor recognizes that this Court has issued a dubious order that finds the County Prosecutor does not represent the State in criminal cases postconvction; having found the Court's employees in the probation department represent the interests of the State. See, February 14, 2014 Journal Entry; See May 18, 2014 Journal Entry (Ordering Court reporter to change transcript of proceedings.) However, Mr. Washington, who should endorse this Court's order (that this Court will not allow this Prosecutor to present evidence, examine witnesses, and argue for his incarceration) tacitly disagrees with this Court's understanding of the law; otherwise there would be no need to remove the Prosecutor and appoint another; such exercise would be moot in light of this Court's refusal to recognize the statutory authority bestowed upon the county prosecutor to prosecute all criminal matters. Because of this, Mr. Washington's motion is an exercise in futility, which if the Court is consistent will deny such motion as moot. II. WASHINGTON'S MOTION DOES NOT STATE BIAS OR INTEREST Defendant attempts to suggest that the State ffled a motion for this Court to recuse itself after his counsel notified an assistant prosecuting attorney that the defense strategy was to remove Tim 1VIcGinty as the Prosecuting Attorney in this matter. Let it be noted for the record that the State's motion to recuse from the matter was written and prepared to be filed; it was held to be filed upon an adverse ruling upon the State's motion for a hearing; not in response to Defendant's attempt to choose his own prosecution. Further, the recusal motion was filed immediately after the Eighth District Court of Appeals denied the State's leave for appeal on the issues surrounding the April 24, 2014, hearing. A hearing where this 3 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN Court barred an Assistant County Prosecutor from representing the State of Ohio on a post- conviction motion. The State is also preparing a brief on that issue for the Supreme Court of Ohio. III. WASHINGTON'S EGREGIOUS CONTINUED ABUSE OF THE LAWS OF SOCIETY AND THE COURT'S ORDERS NECESSITATE A STRONG AND DRIVEN STANCE TO PROTECT THE PU.BLIC Since the Prosecutor became aware of Mr. Washington's brazen daylight car break-in in Ohio City at the eve of the Christmas Holidays, he has vigorously taken a stand to fully prosecute this career criminal. Had this Court allowed the State a hearing on the matter it would have learned that the Prosecutor's original involvement was with the city's policy regarding investigations into low-level offenses involving career criminals. The Prosecutor's issues with the Court's failure to sentence repeat and dangerous offenders who violated felony probation were not anticipated in this Case as we expected that even this Court would now finally sentence this habitual criminal to prison.. In prior filings with this Court, Mr. Washington's inability to follow the law and the terms and condition of probation or community control sanctions was thoroughly demonstrated. Defendant's counsel detailed the length of these filings; finding them to be "unprecedented." Such filings were only necessitated by the unprecedented criminality exhibited by Mr. Washington himsel£ Not only has he been arrested over 80 times, but he has been convicted on over 20 separate felony dockets. The past dozen Common Pleas Judges all sentenced Mr. Washington to prison terms. And yet, when he was convicted of an offense, and committed another on bond to for that offense, this Court believed Mr. Washington not to be a risk to the public safety. This Office takes this same action in all 4 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN cases concerning violent, habitual criminals. The sentencing errors in Mr. Washington's case are unequaled by any other court, but should another court ever endanger the public in similar fashion, this office will also vigorously fight to incarcerate him for all his new convictions. Only after Mr. Washington violated his probation several times and then was arrested for the second time for criminal offenses did the Prosecutor learn of Mr. Washington and this Court's actions in extending him the ability to remain in the community. That Mr. Washington was free to commit new crimes after all this is unprecedented; demanding a full, thorough, and vigorous response from the State. To cite the Prosecutor as being wrong in the pursuit of justice and the safety of the community by filing full, complete, and strongly worded motions is to reward Mr. Washington and condone this Court's failure to protect the community. In short, the filings by the State are intended to be thorough, full, and accurate accounts of the danger Mr. Washington poses to the community. There are reasons that these motions have been signed by the Prosecutor himself. These cases are important, as they represent how the justice system in Cuyahoga County and the City of Cleveland fails at the edges. Mr. Washington came to the Prosecutor's attention when a relative (his wife's nephew) was victimized by this career criminal. When it was learned that the police department took no decisive interest or action in the case (and where the municipal court erroneously relied on this Court to fashion any punishment) the Prosecutor determined he would sign the motions in this matter. This was done because 1) the motions would inherently and strongly state to the Court that this Office disagrees with what appears to be a patent abuse of discretion in the years it has allowed Mr. Washington to remain in the community; committing violation after violation and crime after crime. And , Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN 2) because of this, this Court has personally and publicly threatened the Prosecutor himself with a referral for discipline with the Ohio Supreme Court disciplinary committee. The Prosecutor will not subject any of his assistants to the same threats and intimidation from the Court for taking a stand against a poor policy of the court that protects career criminals. The Prosecutor has determined that he will review and sign all the filings in this case in front of this Court so the Court is unable to file additional, retaliatory complaints in the Ohio Supreme Court against the assistant prosecuting attorneys working the case. To suggest that this was done because the victim happens to be one of the Prosecutor's wife's nephews is absurd. The Prosecutor has hundreds of relatives and in-laws. If we were to attempt to assemble all of the relatives of all of the Defendant's victims, we would have to rent out a stadium. Had this Court allowed the State to present witnesses for our case, the Court would have learned that the original reason the Prosecutor got involved in the case was policy issue with the police department. The Prosecutor, post State v. Anthony Sowell, has encouraged reform and awareness of career criminals as they enter our criminal justice system. Once you have them in custody with actual evidence, it is not wise to just release them. Each opportunity to prosecute dangerous, violent, and career criminals is the chance to prevent inevitable future crimes from being committed (i.e. fewer victims). Mr. Washington is one of many cases this Prosecutor has used as an example to improve police and prosecutor performance for the sake of community safety. Washington is not by far the only habitual criminal before this Court with a long record of criminal behavior. This Court has on its docket others like him who are obvious dangers to the community: Mr. Eugene Marks has amassed over two dozen felony dockets1 1 Mr. Marks has been indicted in the following cases in Cuyahoga County: 6 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN and this Court saw it fit to not place him in prison after being found a probation violator. See, State v. Marks, Cuyahoga Ct. of Comm. Pls. Case No. CR-571857 (Docket entry forthcoming for violation hearing on June 11, 2014.) By this Prosecutor taking an active role in probation violations will only lead to more career criminals being locked safely behind bars. This Prosecutor ran for and was elected to improve the justice system, to care about the quality of life in our communities, whether the suburbs or the inner city. Mr. Washington has been continuously involved in crime, including violent and dangerous offenses in his career. If he is allowed to slip through the cracks and have the liberty to continue to reoffend he will continue to destroy the quality of life for those around him. There can be no tolerance by this Prosecutor's office of career, habitual, offenders; it will deal with offenders like Mr. Washington with all its resources. To expect less is to cede this community to lawlessness and fear of those like Mr. Washington who act freely in their crimes, without fear of any serious consequences. We predict future crime to this Court and argue that Mr. Washington belongs in prison, but the Court, nevertheless, again continues him on probation and Mr. Washington, true to form and shortly after being re-released from jail by the Court, brazenly attempted to sell crack to police, on the street, in the middle of the night, in a high crime area, with other felons. CR-13-571857, CR-12-569789-A, CR-08-512654-A, CR-08-512473-A, CR-08-511683-A, CR- 08-507516-A, CR-07-494851-A, CR-07-494850-A, CR-06-489860-A, CR-06-476333-A, CR- 05-471176-A, CR-05-470855-A, CR-05-470423-A, CR-05-465374-A, CR-03-443506-ZA, CR- 02-427652-ZA, CR-02-427029-ZA, CR-02-426588-B, CR-01-414008-A, CR-00-397027-ZA, CR-00-396430-ZA, CR-99-382956-ZA, CR-99-382722-ZA, CR-99-381602-ZA, CR-99- 2412ti[_7A JVIJVJ-L+L],rn_a4_27o.^.A.Q_Ze V1\-JJ-^J/!1'1V CR_o8_36?6Z3_Ze rR_46-3a6574_ZA t], CR-94-310605-7A aa, --, - CR-94-307274-ZA, CR-93-292396-ZA, CR-91-270149-ZA, CR-90-252060-ZA, CR-89- 243421-ZA, CR-89-241513-B, CR-88-230021-ZA Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN The goal of this Prosecutor's office is to focus on the small percentage of habitual and dangers criminals like Mr. Washington, who are responsible for the majority of dangerous and violent crimes. This office is committed to improving our performance and that of our criminal justice system by creating meaningful performance measures, setting goals based on best practices, and achievements of other jurisdictions and there by setting a new and business-like sense. of accountability and a culture of continuous improvement in our criminal justice system. The result of focusing our limited resources on the dangerous and career criminals will be a drop in crime and an increase in community confidence. With that, and once career criminals like Mr. Washington are removed, Cleveland will be a far safer place to live, work, and raise a family. IV. A PROSECUTOR'S DETERMINATION AND PERSONAL KNOWLEDGE IS NOT A BAR TO CONTINUED REPRESENTATION OF THE STATE OF OHIO Courts throughout the State have only in extremely rare circumstances resorted to the use of R.C. 2941.63 recognizing the necessity of an independent prosecution. Courts require extraordinary circumstances in order to undermine the will of the voters who elected the prosecutor. Courts recognize the concept of a separation of powers and realize that if they pick their own person to represent the State of Ohio, they are making a mockery of the US Constitution's Separation of Powers provision. To that end, the legislature has enacted R.C. 2941.63, which states: The court of common pleas, or the court of appeals, whenever it is of the opinion that the public interest requires it, may appoint an attorney to assist the prosecuting attorney in the trial of a case pending in such court. The board of county commissioners shall pay said assistant to the prosecuting 8 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN attorney such compensation for his services as the court approves. The statute requires that the public interest must be clearly served y before any removal of a prosecutor in a criminal case can take place. Such limitation creates a huge burden upon a defendant seeking to remove an elected official from the performance of his duties; one that Defendarit Washington and his counsel have not reached in their motion. "The statute does not define the term 'public interest.' Black's Law Dictionary defines the term as 'something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question."' State v. Judd, 81h Dist. Cuyahoga No. 89278, 2007-Ohio- 6811, ¶ 28, citing State ex rel. Ross v. Guion, 82 Ohio Law.Abs. 1, 9, 161 N.E.2d 800 (8th Dist. 1959). In this case, the motion seeking to remove the prosecutor does not allege illegality or that there is any pecuniary interest in which the public's legal rights or liabilities are affected. To the contrary, the public interest is best served by this Prosecutor, who has presented a strong and committed stance to remove Mr. Washington's freedom as he remains a career criminal with no regard for the rule of law or the rules of this Court. Mr. Washington obviously does not take seriously the Court's many warnings that he will be sent to prison if he violates rules and commits additional crimes. The Court has said it would send Mr. Washington to prison at every sentencing and has never followed through. He has heard this speech by the Court many times and it is clear to him that the Court is not serious. The Defendant seerningly doesn't beileve tiie Court a ►id has no fear of it. 9 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN Mr. Washington has alleged two reasons for his motion; that the Prosecutor's wife's nephew was the victim of one of the scores of crimes he has committed, and that that has been the reason the Prosecutor has thus been strident and thorough in the proceedings in this matter. The Defendant's basis is false and falls short of demonstrating any prejudice to him -- he has continued to violate the terms of his community control. To expect the prosecution to not be committed to placing him in prison, and not to be interested in the matter of a career criminal out of control would be to fall prey to the indifference to the harm he causes in the community. In short, the defendant has shown no actual prejudice, as any prosecutor would be expected to mount a full, thorough, and conscientious effort to have his community control sanctions revoked and a prison sentence imposed on the likes of Mr. Washington. In an office of over 300 persons it is highly likely that many victims are distantly related, at least through marriage, to someone in the office in a fair percentage of the cases this office handles. This office is doing a thorough job in this case because 1) that is what we try to do with all cases, and 2) this Court's unusual disposition and handling of this case is unjust, unlawful, and dangerous to the community's safety. Never before has a judge said the elected prosecutor does not represent the State of Ohio in his courtroom in criminalcases,. and he, the judge, will pick his own representative of the State. It is that bizarre and perplexing ruling that has permitted this career criminal of a defendant to push his luck and seek another one that allows the criminal to discharge the Prosecutor who is determined to bring him to justice. Because Mr. Washington has not shown, and cannot show, that he would suffer any actual prejudice by the current Prosecutor, this Court must deny the motion to appoint a 10 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN special prosecutor. Courts hold that the disqualification of an entire prosecutor's office requires a defendant to demonstrate actual prejudice. State v. Petrowski, 1 lth Dist. Ashtabula No. 99-A-0019, 2001 WL 180258 (Feb. 26, 2001), *4-5, citing State v. Vidu, 8th Dist. Cuyahoga Nos. 71703, 71704, 1998 WL 413764 (July 23, 1998) (opinion sealed nunc pro tunc on June 25, 2008). Actual prejudice is a much higher standard than that required to disqualify a judge from hearing a particular case. Rule 1.2 of the Ohio Code of Judicial Conduct states: "A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety." That same standard in the past was applied to lawyers, too, under Canon 9 of the Code of Professional Responsibility. EC 9-6; Columbus Bar Assn. v. Plymate, 91 Ohio St.3d 367, 371, 745 N.E.2d 413 (2001). Now, it does not. The Code of Professional Responsibility was superseded by the Ohio Rules of Professional Responsibility. The most recent version of the rules for the professional conduct of lawyers, effective January 1, 2012, contains no such limitation on a lawyer's conduct. In fact, the word "impropriety" does not appear in the rules of professional conduct (it appears once in the comments to Rule 1.11 relating to special conflicts of interest for former and current government officers and employees). Thus, Mr. Washington's reliance on "an appearance of impropriety" in arguing the Cuyahoga County Prosecutor's Office be removed is improper. See State v. Cornick, 8th Dist. No. 99609, 2014-Ohio-2049, ¶ 7. Rule 3.8 covering the special responsibilities of a prosecuting attorney only requires that a prosecutor not pursue a charges where he knows it is not supported by probable cause, follow the rules of discovery, and be judicious with his presentation of evidence to a grand jury. The Ohio Rules of Professional Responsibility do not limit a county prosecutor's ability to pursue justice and 11 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN protect his community from career criminals like Mr. Washington and to highlight the errors in judgment of a Court that has allowed Mr. Washington the freedom to commit new crimes. Further, courts across Ohio agree that even in cases where prosecutors had a close relationship with a victim is not grounds for disqualification of a county prosecutor's office and the appointment of a special prosecutor under R.C. 2941.63. A special prosecutor was not required when the victim was the elected prosecutor's family member and was employed by the prosecutor's office as an assistant prosecuting attorney. State v. Summers, 2nd Dist. Montgomery No. 1465, 2006-Ohio-3199. In Summers, the defendant contended that the trial court was required to appoint a special prosecutor under R.C. 2941.63 because the victim in the case was a Montgomery County Assistant Prosecuting Attorney and the cousin of the Montgomery County Prosecutor. The claim was based upon the premise that the defendant was prosecuted more zealously due to the relationship the between the victim and the prosecutor's office. Id. at ¶ 35. The Second District found this argument unpersuasive in analyzing the "public interest" language of the special prosecutor statute. ld. at ¶ 35-37. Our, own district court of appeals holds a county prosecutor's relationship with the victim is not grounds of the appointment of a special prosecutor. In Judd, supra, allegations were made that the defendant rammed his car into a car driven by an assistant Cuyahoga county prosecutor assigned to handle the case prior to trial. There the Eighth District rejected the defendant's claim of prejudice because there was no evidence the prosecutor handled the case in a different manner than it would handle any similar case. Id. at ¶ 29-31. Finally, the Eleventh District ruled a special prosecutor need not be appointed when the defendant was prosecuted for assaulting a sheriffs deputy who was the husband of the 12 Electronically Filed 06/11/2014 17:45 / BRIEF I CR 10 535298-B / Confirmation Nbr. 152495 I CLMMN Chief Assistant Prosectitor of Ashtabula County. Petrowski, supra, at *4. There, the defendant did not demoristrate any actual prejudice that Ashtabula County prosecutors who tried the case against appellant were prejudicially biased against him because of their relationship with their Chief. Id. at *5. Courts have not removed prosecutors or their offices when there are close family ties and relationships to the victim of a defendant's crime. Here, one of the Defendant's many victims happens to be the Prosecutor's nephew by marriage. Yet, this relationship is absolutely irrelevant and not a factor at all in the prosecution of Mr. Washington. Further, at issue is not trial preparation or strategy, but an examination of the sentence to be imposed upon Mr. Washington as he has, predictably, continued to commit violation after violation and crime after crime only to be continued on probation again and again. Where there were no grounds for removal when the relation of the victim to the office was by marriage to the chief assistant prosecuting attorney of an office; where there were no grounds for removal when an assistant prosecuting attorney was alleged to have been assaulted by a defendant, and where there were no grounds for removal when the cousin and assistant to the elected prosecutor was the victim of the defendant under the law, there can be no grounds in this matter for the removal of the Prosecutor or his assistants in this case when the crime involving the nephew of the prosecutor's wife was only a misdemeanor that was already prosecuted by the municipal court and has no bearing on the several felony dockets pending before this Court. 13 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN V. WASHINGTON HAS NOT DEMONSTRATED MALICE OR VINDICTIVENESS THAT WOULD PERMIT ANY REMOVAL OF THE ELECTED PROSECUTOR The criminal defendant has no basis in law or fact to ask this Court to disqualify the Cuyahoga County Prosecutor's Office and appoint a special prosecutor in these proceedings. He and his attorneys are simply attempting to take advantage of the apparent bias the Court has demonstrated against the State when it refused to allow the Prosecutor's office to represent the State. After seeing that unprecedented decision they figured: Why not try this equally unusually motion? Mr. Washington's most recent arrest on May 26, 2014, for engaging in the drug trade, weeks after being re-released by this Court and over the State's objection, is a clear violation of the terms and conditions of the community control sanctions set forth by this Court. For the defense to say the Cleveland Gang Impact Unit arrested Mr. Washington because of an "ambiguous" conversation with undercover detectives is a disingenuous characterization of the facts. Mr. Washington was arrested because he clearly and deliberately tried to sell the police illegal narcotics. He himself admitted as much to the detectives when he was apprehended. Moreover, this Court need not wait until Mr. Washington has been convicted of his most recent offense to find him a probation violator. He was out at 2:35 AM associating with known felons and ex-cons, while he should have been in inpatient drug and anger management treatment as ordered by this Court as a part of Mr. Washington's community control/probation sanctions. The time of his arrest, the location being a high crime area, and his felonious companions alone would be enough to have a probation violation hearing and find him to be a probation violator and ship him to the penitentiary. There is no need to wait for the disposition of his latest felony case. Have the probation violation hearing and have 14 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN the State represent the State at that hearing, not your designated personal prosecutor, the probation officer. There is no conflict, nor appearance of impropriety, by the Cuyahoga County Prosecutor, as he continues his duty and vigorously prosecutes Brian K. Washington in the Cuyahoga County Court of Common Pleas for Mr. Washington's ongoing probation violations in CR- 535298 and CR- 542057, his new drug case, and any new felony offense he commits in Cuyahoga County. It is this Prosecutor's long stated and practiced policy to do the same for all such career criminals and this Prosecutor will continue to do so. In Ohio, the County Prosecutor is designated with the authority to "inquire into the commission of crimes within the county" and "prosecute, on behalf of the state, all complaints, suits, and controversies in which the state is a party." R.C. 309.08(A). "A violation of community-control sanctions, byvirtue of a subsequent felony arrest, is certainly within the concept of 'complaints, suits, and controversies' in which the state remains an interested party." State v. Young, 154 Ohio App.3d 609, 798 N.E.2d 629, 2003-Ohio-4501, ¶ 7, citing State v. Ferguson (1991), 72 Ohio App.3d 714, 716, 595 N.E.2d 1011. And, here, the Prosecutor is doing just that-prosecuting the offenses of Mr. Washington in a manner of which the law allows. The only conflict in these matters is this Court's conflict. If a court continues to coddle career criminals without apology, this encourages habitual criminals to continue to operate with impunity. And, if that continues, then such a court must expect a vigorous policy dispute with the elected representative in every county in the State of Ohio whose duty it is to prosecute such threats to the community. The claim that the County Prosecutor has a personal interest in this case because of a misdemeanor petty theft conviction in the Cleveland Municipal Court in which the County 15 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 1524951 CLMMN Prosecutor's family member was the victim is disingenuous. It is better to consider the fact that Mr. Washington has been allowed the freedom to commit violation after violation and crime after crime to understand the role the Prosecutor has taken in this case. R.C: 2941.63 does not require a county prosecutor's office to recuse itself when a relationship between the office and a victim exists. Instead, a trial court is only to appoint.a special prosecutor when it is in the public's interest. Here, the public's interest requires a zealous prosecutor in light of the past three years of probation in which Mr. Washington has been rewarded by this Court for his crimes. In fact, of the many cases Mr. Washington has been prosecuted in, the only case Mr. Washington chooses to highlight involves the County Prosecutor's relative. However, that case was not even handled by the Cuyahoga County Prosecutor's Office. Since it was a misdemeamor for petty theft, the City of Cleveland's Prosecutor handled the adjudication of that offense. The County Prosecutor's Office was not involved at all. No one approached the city prosecutor or the municipal judge about the case. We did not participate at sentencing. Rather, the Prosecution hoped that municipal court would protect its community by imposing a jail sentence. Regretfully, that Court determined that it would cede that duty to punish and protect to this Court as it obvious Mr. Washington was going to be a probation violator and was an ex-con on two separate felony probations. Since it was assumed he would be sentenced back to prison, it may have been assumed there was no need for a municipal jail sentence since such a sentence must run concurrent with a felony prison sentence. However, the Defendant was not returned to prison. In this matter, Mr. Washington is being treated the same as all career criminals have and will be treated by this Office. Without a strong stance and a voice speaking to protect the community against career criminals like Mr. Washington, they will continue to victimize 16 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN the law abiding citizens of this county. This Court's indifference to "low-level" offenses is exactly why this Prosecutor chose to run for and became the county prosecutor-to ensure the public safety and restore confidence in the justice system by focusing on the likes of Mr. Washington: dangerous, career criminals. We are determined that all habitual criminals are identified as they reenter the criminal justice system and do not slip out - released like Anthony Sowell only to harm others. In this matter, the sanction sought by the Cuyahoga County Prosecutor's Office - a maximum term of incarceration - is reasonable and appropriate. Over the past three years, Mr. Washington's criminal behavior resulted in numerous occasions eligible to be considered probation violations. Well before the car break-in, Mr. Washington tested positive for cocaine and was arrested for assaulting his wife and other violations all while on probation in these cases. His behavior has not been to adjust to the laws of society for the three years he has been supervised by this Court; rather it is to escalate the danger he poses to the community. He must be stopped or the people of Cuyahoga County will be re- victimized by him. As such, the steps taken by this office are not "extraordinary", but to be expected of any responsible prosecutor. When information of Mr. Washington's arrest for petty theft and other probation violations were discovered and adjudicated the Prosecutor took action to ensure Mr. Washington could no longer harass the citizenry and attempted to initiate a fair and full probation violation hearing to invoke Mr. Washington's outstanding prison term in this matter. Sadly, such attempts became futile before this Court. Consequently, the additional litigation in this matter is not about "low-level" felonies, but it is about a system that has equated "low-level" offenses to ineffectual indifference which has given rise to a conflict 17 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN between this Court and its constituents in this matter over the past three years by enabling a defendant to exploit the justice system by continued criminal behavior and the inability of the justice system to respond to the threat Mr. Washington and other career felons like him pose to the community. VI. CONCLUSION: THE DANGERS OF AN IMPERIAL JUDICIARY We, like the founders of our country, believe in the separation of powers. It is notthis Court's role to determine the policy of the Prosecutor's Office or who will represent the State of Ohio. The statutes of the State and the Constitution have already done that. This nation's political history demonstrates the disastrous effects of the perceived politicization of the courts. Charges that King George "ha[d] obstructed the Administration of Justice" and "ha [d] made judges dependent on his will alone [...]" were among the founding generation's motivations for the Revolution in 1775. The Declaration of Independence, at ¶ 11 (U.S. 1776). Similar concerns apply outside the context of monarchy: Where the judiciary is drawn into the policy making roles of its coordinate branches, the public might well "fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice of both law and equity." The Federalist No. 81, at 452 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Hamilton makes that statement in an explanation of why the Supreme Court of the United States is "composed of a distinct body of magistrates, instead of being one of the branches of the legislature, as in the government of Great Britain [...]." Id. at 451. In short, when sitting judges make active policy decisions and violate the separation of powers clause of the United States and Ohio Constitutions the public may begin to see them not as neutral arbiters of a 18 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN limited system of governance, but as participants in the larger game of politics, like King George's pre-revolution judiciary where the judiciary and executive (the prosecutor) were one. The judge cannot be a neutral magistrate and at the same time assume the duties of the prosecutor. When the Court chooses its own employee to serve as prosecutor under his direction instead of the elected prosecutor, that Court has now become the prosecutor. Here, Defendant, a career criminal (if there has ever been one), has asked this Court to appoint a special prosecutor. He seeks to remove the Prosecutor who has taken a stand against Mr. Washington's seemingly endless lawlessness and who has followed his duty and taken the time and effort to stand up to those career criminals like Mr. Washington. The Prosecutor's goal is to eventual have this Court realize that Mr. Washington is a danger to the community and every day that he is continued on community control sanctions is another day in which another victim can be unnecessarily created. The extent and resolve of the Prosecutor in this case is not at doubt; Mr. Washington should not remain free to commit new crimes after repeated conviction while on probation. This effort may appear "unprecedented" to Mr. Washington, but in fact it is par for the course for this Prosecutor's Office. Mr. Washington is the exact type of repeat offender that we want to focus our limited resources on to bring justice to the community. The result would be less victims and greater community confidence with an appreciation for their criminal justice system just by the sheer massive number of people involved. The fact that Mr. Washington and his defense counsel attribute such vigorous prosecution to the fact that one of Mr. Washington's many victims is also one of the nephews of the Prosecutor's wife should not be a surprise. If all the many relatives of Mr. Washington's victims were ever assembled, there would be numerous relatives, friends, and 19 Electronically Filed 06111/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN acquaintances to the Prosecution, law enforcement, the judiciary, and the defense bar. "Surprise" does not amount to prejudice, nor does Mr. Washington and his counsel's surprise at the vigor of the efforts being taken to protect the community from a career criminal amount to prejudice. Rather, the only "surprise" to any rational observer of the history of these two criminal cases is the fact that Mr. Washington, an undisputed lifelong criminal, has been in the community for three years and been afforded opportunity after opportunity to violate probation and commit new offenses. That the Prosecutor has taken a stand to defend the community from dangerous and career criminals and advocate with all necessary resources that they be removed from the community after convictions is no surprise, nor does such action equate to any form of actual prejudice. It is a sound policy, grounded in a legal right, for which the Prosecutor was elected by the people of this County to advance. The Prosecutor ran for this Office on that very same platform. For these reasons, this Court must deny the motion to appoint special prosecutor. Respectfully submitted, ' /s/ I'imssthv i,_McGintv TIMOTHY J. McGINTY ( 0024626) CUYAHOGA COUNTY PROSECUTOR 1200 Ontario Street, 91 Floor Cleveland, Ohio 44113 (216) 443-7800 20 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN SERVICE A copy of the foregoing Response to Motion to Appoint Special Prosecutor has been electronically served this 12th day of June, 2014, to Cullen Sweeney, counsel for defendant, 310 West Lakeside Avenue, Suite 400, Cleveland, OH 44113. /s/ Timothy J. McGinty TIMOTHY J. MeGINTY (0024626) CUYAHOGA COUNTY PROSECUTOR 21 Electronically Filed 06/11/2014 17:45 / BRIEF / CR 10 535298-B / Confirmation Nbr. 152495 / CLMMN ob I lllllilll1111^111111111^^^IINIIIIIHIIII^ 1IIII 84626639 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO THE STATE OF OHIO I Case No: CR-10-535298-B Plaintiff Judge; JOHN D SUTULA BRIAN K WASHINGTON Defendant INDICT: 2911.01 AGGRAVATED ROBBERY /FRM I/FRM3 IFORS /NPC IRVOS 2905.01 KIDNAPPING /FRMI /FRM3 /FORS INPC /RVOS 2913.02 THEFT (MV) ADDITIONAL COUNTS... JOURNAL ENTRY STATE'S MOTION FOR COURT TO RECUSE l i'SEL,I• FOR BIAS, FILED 6-5-14, IS DENIED. JOURNAL ENTRY SIGNED, ATTACHED AND ORDERED FILED. OSJ. 46/12/2414 OPEDE 06/12/2014 11:02:08 ii HEAR 06/12/2014 Dn^... 1 ..F 7 ,.^. Y , . 411111010111111f1111i IN 84626636 IN THE COUIZT OF COMMON PLEAS CUYAHOOA COUNTY, OHIO THE STATE OF OHIO 1 CaseNo: CR-10-542057-B Plaintiff Judge: JOHN D SUTULA BRIAN WASHINGTON Defendant INDICT: 2913.51 R.ECEIVING STOLEN PROPERTY JOURNAL ENTRY STATE'S MOTION FOR COURT TO RECUSE ITSELF FOR BIAS, FILV-D 6-5-14, IS DENIED. JOURNAL ENTRY SIGNED, ATTACHED AND ORDERED FILED. OSJ. 06/12/2014 CPEDB 06/12/2014 11:02:08 HEAR 06/12/2014 pana 1 nf 1 r ^^ .. IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY STATE OF OHIO ) Case No: CR 535298 and CR 542057 ) Plaintiffs, ) JUDGE JOHN D. SUTULA . ) V. ) ) 70URNALENTRY BRIAN K. WASHINGTON ) ) Defendant. ) The Prosecutor's Motion For Court To Recuse Itself For Bias, filed June 5, 2014, raises the same subject matters and arguments it raised in its Motions filed January 6t" and 315t of 2014, to wit: Prosecutors Motfon To Reopen Hearing and Hold Fu0 , and Fair Hearing Upon Brian K. Washington s Violations of Community Control Sanction Vlolations ; and Prosecutors, Motion to Hold A Probation Violation Hearing Upon Brian K. Washington's Vio/ation of Community Control Sanctions, respectively. This Court denied these motions February 14, 2014, pursuant to Journal Entry entered upon its docket to which the Prosecutor appealed to the Eighth District Court on February 24, 2014. The Prosecutor appealed these rulings. Thereafter, the Prosecutor dismissed his appeals on April 3, 2014. The Prosecutor chose to forego its opportunity to contest these rulings by dismissing the annaalrr^.... Presenting the same subject matter and legal issues in a pleading captioned "Mofion For Court To Recuse Itself For Bias" will not change the fact t . • ^ that this court has already ruled on these issues. The Supreme Court has held, "... a judge's adverse rulings, even erroneous ones, are not evidence of bias or prejudice." In Re Disqualit!cation of Floyd, 101 Ohio St. 3d 1217, 2003 Ohio 7351. The Supreme Court has further held: Indeed, it is well established that an affidavit of disqualification `is not a vehicle to contest matters of substantive or procedural law.' In Re Disqualitication of Solovan, 100 Ohio St. 3d 1214, 2003 Ohio 5484. The Court has no professional or personal bias or prejudice against the Prosecutor's Office or the elected Prosecutor. This Court has stated the legal reasons for its. position, Attempts at professional slights made by the Prosecutor does not give rise to bias. The Prosecutor cannot create bias when none exists. Finally, this Court gave the Prosecutor a simple procedure to follow if it wants to submit arguments or evidence to the Court in community control violations so th.at defendants may have notice of the Prosecutor's argument or evidence, and not be cumulative or repetitious. This Prosecutor has yet to follow this procedure. Motion For Court To Recuse Itself For Bias is DENIED. IT IS SO ORDERED. DATEi 2 .E THE STATE OF OHIO,.) ) S S a JOHN D. SUTULA, J. COUNTY OF CUYAHOGA.) IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION THE STATE OF OHIO, E Plaintiff, mv® Case No. 569789 571857 E C/A: N/A EUGENE MARKS, 0 J Defendant. 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 12 13 APPEARANCES: 14 MEGHAN TEANEY, 15 on behalf of the Probation Department; 16 DAVID KRAUS, ESQUIRE, 17 on behalf of the Defendant. 18 Also Present: ADAM CHALOUPKA, ESQUIRE 19 20 21 22 23 24 Carla V. Kuhn, RMR, CRR EXIilB T Official Court Reporter 25 Cuyahoga County, Ohio ^^^ 2 ] THE STATE OF OHIO, SS: JOHN D. SUTULA, J. COUNTY OF CUYAHOGA. IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 _v- Case No. 569789 8 571857 C/A: N/A 9 EUGENE MARKS, 10 Defendant. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDTNGS 13 14 BE IT REMEMBERED, that at the May 15 A.D., 2014 term of said Court, to-wit, 16 commencing on Wednesday, June 11th, 2014, this 17 cause came on to be heard before the Honorable 18 John D. Sutula in Courtroom No. 23-B, Courts 19 Tower, Justice Center, Cleveland, Ohio, upon 20 the indictment filed heretoforea 21 22 23 24 25 3 WEDNESDAY AFTERNOON SESSION, JUNE 11, 2014 THE COURT: We're here in the case of the State of Ohio versus Eugene Marcus. This is case numbers 569789 and 571857. We're here to institute the community control. Mr. Marks has just finished a i sentence on another case and we're he.re on 8 these two cases. 9 Present is Mr. Marks along with his 10 counsel, David Kraus, and representing the 11 interest of the State of Ohio is probation 12 officer Meghan Teaney. 13 MR. CHALOUPKA: Again, your 14 Honor, assistant county prosecutor Adams 15 Chaloupka would like this Court to und'erstand 16 the prosecutor's office has a right to be at 17 these hearings. 18 THE COURT: You can attend 19 the hearing. I don't care if you attend the 20 hearing. 21 MR. CHALOUPKA: And speak and 22 provide evidence. 23 THE COURT: Not to speak. 7 24 control who speaks at a hearing. Please sit 25 down. 4 1 Ms. Teaney? 2 MS. TEANEY: Thank you, your 3 Honor. 4 On March 25th, 2013, Mr. Marks was 5 sentenced in docket 569789 on Counts 1 and 2 6 to 18 months prison. In regards to Count 4 on 7 that docket, the defendant was also placed on 8 60 months community control with special 9 conditions. On that same date, Mr. Marks was 10 sentenced in docket 571857 to 60 months 11 community control with special conditions. 12 We're before you today for an alleged 13 probation violation. While the defendant was 14 in prison, he violated the no contact order 15 given on March 25th, 2013 by sending two 16 letters to one of the victims. 17 At this time the probable cause 18 waiver has been given to the defendant's 19 counsel. I'm unaware if it has been signed at 20 this time. Thank you, your Honor. 21 THE COURT: All right. 22 Thank you. 23 Mr. Kraus? 24 MR. KRAUS: Thank you, 25 Judge. 5 Respectfully, I think it would be in my client's best interest to waive'any probable cause at this point because I think there's a question as to whether he was on probation to begin with. E THE COURT: Well, the order 7 -- I've reviewed the order. The order 8 indicates it's not a part of probation. The 9 order indicates no contact with the victim. 10 MR. KRAUS: And in regards 11 to that, the second argument would`be we 12 understand there's been some letters sent but 13 14 THE DEFENDANT: Not by me. 15 MR. KRAUS: Hold on. 16 But I would just respectfully submit 17 that there should be some kind of evidentiary 18 hearing in that regard. We have no means to 19 know the authenticity of where these came 20 from. I guess what I'm saying is I'm not sure 21 that that should be part of the -- 22 THE COURT: We'll set that 23 for an evidentiary hearing, but at the same 24 time the Court is going to refer the matter to 25 the prosecutor's office to determine whether 6 or not there is a criminal violation by the -- violating that contact order and whether or not there was a further crime in terms of c intimidation or any other crime that may have occurred. I don't know. I'll refer them to E the prosecutor's office. 7 MR. KRAUS: In the interim, 8 your Honor, given that the order states he's 9 to be on community control aft-er completion of 10 his prison sentence we're hoping and asking 11 the Court to consider some type of interim 12 release. Thank you. 13 THE COURT: The Court will 14 then order him to be referred to the CBCF for 15 inpatient treatment. Sheriff will transport. 16 Now, if he's not accepted then he'll be 17 brought back to the court for further 18 proceedings. As I indicated, the matter of 19 whether or not these orders violated any other 20 law will be referred to the prosecutor's 21 office. 22 MR. KRAUS: Thank you, your 23 Honor. 24 25 (Thereupon, Court was adjourned.) 7 C E R T I F I C A T E I, Carla V. Kuhn, Official Court Reporter for the Court of Common Pleas, Cuyahoga County, Ohio, do hereby certify that as such reporter I took down in stenotype all E of the proceedings had in said Court of Common 7 Pleas in the above-entitled cause; that I have 8 transcribed my said stenotype notes into 9 typewritten form, as appears in the foregoing 10 Transcript of Proceedings; that said 11 transcript is a complete record of the 12 proceedings had in the hearing ofsaid cause 13 and constitutes a true and correct Transcript 14 of Proceedings had therein. 15 16 17 18 - 4 VV3 19 .- 1 - U ^.^------n. -_. Carla V. Kuhn, RMR, CRR 20 Official Court Reporter Cuyahoga County, Ohio 21 22 23 24 25 1 1 THE STATE OF OHIO, ) ) SS: JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA.) 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 -v- Case No. 569505 C/A: N/A 8 JERRY JENKINS, 9 Defendant. 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 12 13 APPEARANCES: 14 KELLY BARR, 15 on behalf of the Probation Department; 16 TON! REIN, ESQUIRE, 17 on behalf of the Defendant. 18 Also Present: ADAM CHALOUPKA, ESQUIRE 19 20 21 22 23 24 Carla V. Kuhn, RMR, CRR Official Court Reporter 25 Cuyahoga County, Ohio 2 1 THE STATE OF OHIO, } } SS: JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA. } 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 -v- Case No. 569505 8 C/A: N/A 9 JERRY JENKINS, 10 Defendant. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 13 14 BE IT REMEMBERED, that at the May 15 A.D., 2014 term of said Court, to-wit, 16 commencing on Wednesday, June 11th, 2014, this 17 cause came on to be heard before the Honorable 18 John D. Sutula in Courtroom No. 23-B, Courts 19 Tower, Justice Center, Cleveland, Ohio, upon 20 the indictment filed heretofore. 21 22 23 24 25 3 1 WEDNESDAY AFTERNOON SESSION, JUNE 11, 2014 2 THE COURT: We're here in 3 the case of the State of Ohio versus Jerry 4 Jenkins. This is 569505. This is a 5 continuation of a community control violation 6 hearing that we started last week. Present is 7 Mr. Jenkins along with his counsel, Thomas 8 Rein, and representing the interest of the 9 State of Ohio is probation officer Kelly Barr. 10 MR. CHALOUPKA: And assistant 11 county prosecutor Adam Chaloupka is present to 12 maintain the prosecutor's office's statutory 13 right to be present and participate in all 14 probation violation proceedings and hearings. 15 THE COURT: And again, you 16 know, for the umpteenth time, the progecutor',s 17 office doesn't have that right. The probation 18 office is representing the interest'of the 19 state. This is not a criminal proceeding at 20 this point from the standpoint of anything 21 else -- anything that I do here is not subject 22 to appeal by the prosecutor's office in fact. 23 MR. CHALOUPKA: We could always 24 ask for leave to appeal, your Honor. 25 THE COURT: Well, I don't 4 1 know about that. And then again you dismissed 2 your appeal. 3 MR. CHALOUPKA: In a different 4 matter. 5 THE COURT: Same situation. 6 Same situation. Same order. That order as 7 indicated to the prosecutor's office to apply 8 to all subsequent probation violations in that 9 case or any other case so the prosecutor has 10 adequate notice of, you know, procedure that 11 this court is maintaining in this matter. 12 Ms. Barr. 13 MS. BARR: Thank you, your 14 Honor. 15 As you stated, we were here last week 16 on probation violation hearing. The defendant 17 was booked into the county jail on May 27th of 18 this year after we had issued a capias for him 19 on October 15th of last year for failing to 20 report to the probation department after he 21 was released from the county jail on September 22 25th of 2013. 23 Your Honor, this is the third 24 violation hearing that we are having with Mr. 25 Jenkins. He did complete his inpatient drug 5 1 treatment back last year when he was 2 originally sentenced on probation. Since 3 completing that program he has faiied to 4 report to the probation department ever since 5 being on probation. Every time we have issued 6 a warrant, had a hearing and released him from 7 county jail. He was also terminated from his 8 mental health services at Frontline Services 9 back on January 8th of this year. Thank you. 10 THE COURT: Mr. Rein? 11 MR. REIN: Judge, if it 12 please the Court. Judge, again, he admits 13 he's in violation. He's 54 years old. He 14 tells me that after the woman that he got 15 pregnant, she lost the baby, threw, basically, 16 his life into disarray. 17 Again, Judge, he completed inpatient 18 drug treatment program without absconding. He 19 tells me he's back on his medication. He is 20 willing to start his community control 21 sanctions over to prove to this Honorable 22 Court he can do what's required to 23 successfully complete that. He tells me he's 24 been sober for over 50 days. He doesn't want 25 to be locked up anymore. FIe wants to go home 6 1 and he wants to report to the probation 2 department. Thank you, your Honor. 3 THE COURT: Thank you. 4 Mr. Jenkins, do you have anything to 5 offer other than what you said last week? 6 THE DEFENDANT: Yes, sir. I got 7 it, sir, and it was planted in my head, sir. 8 First of all, Ms. Kelly Barr, I want 9 to apologize for not coming to see you. My 10 wife is back there and she just coming from 11 Detroit and she'll keep me in order. She been 12 in Detroit for -- 13 THE COURT: If we can't do 14 it, how can she? 15 THE DEFENDANT: Well, because 16 I'm going to do it, sir. See, I should not 17 run from ya'll because ya'll are trying to 18 help me, sir. Do you see what I'm saying? 19 And you know, I really feel bad because, you 20 know, you tried, you tried, you tried, but you 21 know, prison is not the answer. I would like 22 to finish my outpatient program and show 23 you -- show you, sir. And I promise you I 24 will do the right thing, sir, and I just need 25 one more chance, sir. Please. I beg ya'll. 7 1 THE COURT: Well, I'll go 2 halfway on this. I'm going to refer you to 3 the CBCF, sheriff to transport. You complete 4 that program, it tells me something about 5 whether or not you're willing to comply. 6 My big problem here is once you 7 complete the program you never show up. 8 You've got to show up. Next violation will be 9 12 months in prison. 10 11 (Thereupon, Court was adjourned.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 1 C E R T IFI CA T E 2 I, Carla V. Kuhn, Official Court 3 Reporter for the Court of Common Pleas, 4 Cuyahoga County, Ohio, do hereby certify that 5 as such reporter I took down in stenotype all, 6 of the proceedings had in said Court of Common 7 Pleas in the above-entitled cause; that I have 8 transcribed my said stenotype notes into 9 typewritten form, as appears in the foregoing 10 Transcript of Proceedings; that said 11 transcript is a complete record of the 12 proceedings had in the hearing of said cause 13 and constitutes a true and correct Transcript 14 of Proceedings had therein. 15 16 17 18 19 ' --_------Carla V. Kuhn, RMR, CRR 20 Official Court Reporter Cuyahoga County, Ohio 21 22 23 24 25 1 1 THE STATE OF OHIO,.) ) SS: JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA.) 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 -e,r- Case No. 578872 C/A: N/A 8 DONALD SCOTT, 9 Defendant. 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 12 13 APPEARANCES: 14 VICTORIA BOYD and JULIE PIOTROWSKI, 15 on behalf of the Probation Department; 16 THOMAS REIN, ESQUIRE, 17 on behalf of the Defendant. 18 Also Present: ADAM CHALOUPKA, ESQUIRE 19 20 21 22 23 24 Carla V. Kuhn, RMR, CRR EXNIBIT Official Court Reporter -)-7 25 Cuyahoga County, Ohio 2 1 THE STATE OF OHIO, ) ) SS: JOHN D. SUTULA, J. 2 COUNTY' OF CUYAHOGA. 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 -v- Case No. 578872 8 C/A: N/A 9 DONALD SCOTT, 10 Defendant. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 13 14 BE IT REMEMBERED, that at the May 15 A.D., 2014 term of said Court, to-wit, 16 commencing on Wednesday, June 11th, 2014, this 17 cause came on to be heard before the Honorable 18 John D. Sutula in Courtroom No. 23-B, Courts 19 Tower, Justice Center, Cleveland, Ohio, upon 20 the indictment filed heretofore. 21 22 23 24 25 3 1 WEDNESDAY AFTERNOON SESSION, JUNE 11, 2014 2 THE COURT: We're here now 3 in the case of the State of Ohio versus Donald 4 Scott. This is case number 578872. We're 5 here on a community control violation hearing. 6 Present is Mr. Scott along with his 7 counsel, Thomas Rein, and representing the 8 interest of the State of Ohio is Victoria Boyd 9 and Julie Piotrowski. 10 MR. CHALOUPKA: Assistant county 11 prosecutor Adam Chaloupka here to maintain the 12 county prosecutor's office statutory right to 13 be present and participate in all 14 post-conviction and probation violation 15 hearings as they are criminal proceedings. 16 THE COURT: Well, they're 17 not criminal proceedings and the law says 18 that. It's amazing that you guys can read a 19 book and see the words in the book and not see 20 that those words say what they say. 21 Ms. Boyd. 22 MS. BOYD: Thank you, your 23 Honor. 24 On February llth, 2014, the defendant 25 was sentenced to three years of community 4 1 control sanctions. He was transported to the 2 CBCF on April 8th, 2014. On May 28th, 2014 3 the defendant was unsuccessfully discharge d 4 from the CBCF for engaging in aggressive 5 behavior toward another CBC client. 6 It is the recommendation of his 7 officer that the defendant be reconsidered for 8 the CBCF and screened for the CBCF. If the 9 defendant is not accepted into the CBCF we 10 would ask that the defendant be referred to 11 residential drug treatment at Matt Talbot and 12 Parmadale. Thank you, your Honor. 13 THE COURT: All right. 14 Thank you. 15 MR. REIN: Thank you, your 16 Honor. May it please the Court. 17 He admits he's in violation of his 18 court-ordered community control sanctions. 19 Your Honor, not to minimize his involvement 20 here as to what happened at CBCF, he says he 21 was defending himself. Judge, that having 22 been said, he's more than willing, if this 23 Court sees it appropriate to try CBCF again, 24 oa- inpatient, whatever would help that is 25 necessary. 5 Your Honor, I had some difficulty L communicating with him as he appears to be 3 somewhat slow, but ultimately I think he 4 understands what's going on. He knows that 5 he's got these mental issues that he needs to 6 come to grips with. He tells me he's doing a 7 lot better when he's on his medication as he 8 is now in county jail. He wants to deal with 9 his issues, asks this Court for another 10 chance. Thank you. 11 THE COURT: Thank you. 12 Mr. Scott, do you have anything to 13 say? 14 THE DEFENDANT: At the time I 15 wasn't taking my meds. 16 THE COURT: Why don't you 17 take them all the time? 18 THE DEFENDANT: I don't know. 19 Sometimes I don't take them. 20 THE COURT: Do you have side 21 effects? 22 THE DEFENDANT: No. 23 THE COURT: Do you know what 24 I mean by side effects? 25 THE DEFENDANT: No. 6 1 THE COURT: I mean, when you 2 take the medication do you have like tremors, 3 you know, your hands shake or you get dry 4 mouth, anything like that? Can't sleep? 5 THE DEFENDANT: Yeah. 6 THE COURT: Pardon me? 7 THE DEFENDANT: I get real 8 nervous. 9 THE COURT: Well, that's one 10 of the things -- taking the medication is 11 supposed to help you with that. Usually my 12 experience is people who take medications for 13 your issues, you know, that medication does 14 help them with anxiety and slows their 15 thinking process down so they can process 16 information better and not be anxious. I 17 think that maybe you're not taking it long 18 term. You take it for a while and get off, 19 you take it for a while and get off instead of 20 just taking it all the time and getting used 21 to 1 t. 22 I mean, it's important that you take 23 it all the time. It you take it all the time, 24 you're a different guy. I mean, it's 25 important that you do take it. 7 1 This is what we're going to do. 2 We're going to find you in violation. We're 3 going to re-refer you to the CBCF. If you're 4 not accepted then you'll be brought back for 5 further disposition. 6 You're going to take all prescribed 7 medication. I mean, that's a rule. It's so 8 important that you do that. It's crazy that 9 you're not taking it because you put yourse?f 10 in jeopardy of going to prison. Do you want 11 to do that? 12 THE DEFENDANT: No. 13 THE COURT: Here's another 14 thing. You have a mental illness. That 15 doesn't mean you're a bad person, but when 16 you're not taking your medication you can do 17 bad things. Your medication helps prevent you 18 from doing those bad things. Just because you 19 have a mental illness, you're not a bad 20 person. All right? But you have a chronic 21 problem, just like heart disease or kidney 22 problems. You always have to take your 23 medication; otherwise, bad things are going to 24 happen. Next violation will be 18 months in 25 prison. 8 1 MS. BOYD: Thank you, your 2 Honor. 3 4 (Thereupon, Court was adjourned.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 1 C^ R T I^' I_C ^ T^ 2 I, Carla V. Kuhn, Official Court 3 Reporter for the Court of Common Pleas, 4 Cuyahoga County, Ohio, do hereby certify that 5 as such reporter I took down in stenotype all 6 of the proceedings had in said Court of Common 7 Pleas in the above-entitled cause; that,I have 8 transcribed my said stenotype notes into 9 typewritten form, as appears in the foregoing 10 Transcript of Proceedings; that said 11 transcript is a complete record of the 12 proceedings had in the trial of said cause and 13 constitutes a true and correct Transcript of 14 Proceedings had therein. 15 16 17 18 19 W ^^_ V.-i1-1 _ ^') ------Carla V. Kuhn, RMR, CRR 20 Official Court Reporter Cuyahoga County, Ohio 21 22 23 24 25 1 THE STATE OF OHIO,.) ) SS: JOHN D. SUTULA, J. COUNTY OF CUYAHOGA.) IN THE COURT OF COMMON PLEAS [ CRIMINAL DIVISION THE STATE OF OHIO, E Plaintiff, 7 -`z_ Case No. 554572 C/A: N/A 8 TONY HARRIS, 9 Defendant. 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 12 13 APPEARANCES: 14 KELLY BARR, 15 on behalf of the Probation Department; 16 THOMAS REIN, ESQUIRE, 17 on behalf of the Defendant. 18 Also Present: ADAM CHALOUPKA, ESQUIRE 19 20 21 22 23 24 Carla V. Kuhn, RMR, CRR Official Court Reporter 25 Cuyahoga County, Ohio 2 THE STATE OF OHIO, ) ) SS: JOHN D. SUTULA, J. L COUNTY OF CUYAHOGA. IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION ^ THE STATE OF OHIO, 6 Plaintiff, 7 -cr- Case No. 554572 8 C/A: N/A 9 TONY HARRIS, 10 Defendant. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 13 14 BE IT REMEMBERED, that at the May 15 A.D., 2014 term of said Court, to-wit, 16 commencing on Wednesday, June 11th, 2014, this 17 cause came on to be heard before the Honorable 18 John D. Sutula in Courtroom No. 23-B, Courts 19 Tower, Justice Center, Cleveland, Ohio, upon 20 the indictment filed heretofore. 21 22 23 24 25 3 1 WEDNESDAY AFTERNOON SESSION, JUNE 11, 2014 2 THE COURT: We're here in 3 the case of the State of Ohio versus Tony 4 Harris. This is case number 554572. We're 5 here on a community control hearing. Present 6 is Mr. Harris along with his counsel, Thomas 7 Rein. Representing the in.terest of the State 8 of Ohio is assistant county prosecutor Kelly 9 Barr. 10 Ms. Barr. 11 MR. CHALOUPKA: Your Honor, 12 correction. Assistant county prosecutor is 13 Adam Chaloupka and we're here to maintain our 14 statutory right to be present and participate 15 in post-conviction and probation violation 16 hearings. 17 THE COURT: Did you file a 18 request to appear in this matter and to give 19 the defendant notice that you were going to 20 appear? 21 MR. CHALOUPKA: We did not 22 because there is no 23 THE COURT: Thank you. 24 Please sit down. Please sit down. Please sit 25 down. Thank you. Please sit down. You have 4 1 to give them notice. Thank you. 2 Ms. Barr. 3 MS. BARR: Thank you, your 4 Honor. 5 This is Mr. Harris's fourth time 6 before you for a violation hearing. Most 7 recently we are here on April 9th.of this year 8 due to the defendant testing positive for 9 alcohol on February 14th and Febriiary 25th. 10 We found him to be in violation at that time 11 and ordered that he complete IOP and after 12 care and attend four AA meetings a week. Also 13 -- and complete an additional 50 hours of 14 community service. 15 On June 3rd of this year the 16 defendant tested positive for alcohol at 17 Recovery Resources at his IOP program. Also 18 he failed to report to IOP on June 5th, June 19 6th, June 9th and June 10th. 20 The defendant informed this officer 21 yesterday that he had received an open 22 container ticket a couple weeks ago and he was 23 working off some community work service 24 through the clerk of courts for a fine he had 25 to pay through that, and that is why he's 5 ] missed his IOP. To date, your Honor, he's not officially discharged from the IOP at Recovery 4 Resources, but due to his continued drinking 5 they are recommending that he receive a higher 6 level of care. This is his second time at 7 IOP. He did complete it successfully last 8 year but at this point I don't think that he's 9 benefitting from the program. Thank you, your 10 Honor. 11 THE COURT: Mr. Rein? 12 MR. REIN: Thank you, your 13 Honor. May it please the Court. 14 Judge, Mr. Harris admits he's in 15 violation of his court-ordered community 16 control sanctions. Judge, point blank, it's 17 pretty obvious and he readily admits that he's 18 an alcoholic. He tells me he goes to AA 19 meetings, he's trying to get sober, he's 20 trying to work the program, trying to do one 21 day at a time. He's obviously having some 22 difficulty and challenges with that. 23 Judge, he appears to have an 24 addictive personality, also says he's addicted 25 to nicotine, smokes a lot of cigarettes he 6 1 says as well. Judge, he wants help. He wants 2 to quit drinking. He's asking this Court.t o 3 take steps to try to help him. Thank you, 4 Judge. 5 THE COURT: Mr. Harris, do 6 you have anything to say? 7 THE DEFENDANT: Huh? 8 THE COURT: Do you have 9 anything to say? 10 THE DEFENDANT: Your Honor, I 11 just want to get in the program, you know what 12 I'm saying, and help me because I got a 13 problem. I'm trying to stop. 14 THE COURT: All right. 15 Defendant will be found in violation. 16 The community control will be continued with 17 prior conditions and modified conditions. 18 He's to do 50 additional hours of court 19 community work service, inpatient drug and 20 alcohol treatment, and the next violation will 21 be 12 months in prison. Sheriff to transport. 22 23 (Thereupon, Court was adjourned.) 24 25 7 1 CE R T IF T CA T K 2 I, Carla V. Kuhn, Official Court 3 Reporter for the Court of Common Pleas,: 4 Cuyahoga County, Ohio, do hereby certify that 5 as such reporter I took down in stenotype all 6 of the proceedings'had in said Court of Common 7 Pleas in the above-entitled cause; that I have 8 transcribed my said stenotype notes into 9 typewritten form, as appears in the foregoing 10 Transcript of Proceedings; that said 11 transcript is a complete record of the 12 proceedings had in the trial of said cause and 13 constitutes a true and correct Transcript of 14 Proceedings had therein. 15 16 17 18 19 -V, __ ------Carla V. Kuhn, RMR, CRR 20 Official Court Reporter Cuyahoga County, Ohio 21 22 23 24 25 1 THE STATE OF OHIO,.) S S : JOHN D. SUTULA, J. ^ COUNTY OF CUYAHOGA.) IN THE COURT OF COMMON PLEAS ^ CRIMINAL DIVISION THE STATE OF OHIO, E Plaintiff, i -vW Case No. 547091 C/A: N/A 8 DELTA ROSARIO, 9 Defendant. 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 12 13 APPEARANCES: 14 MEGAN PATTON, 15 on behalf of the Probation Department; 16 THOMAS REIN, ESQUIRE, 17 on behalf of the Defendant. 18 Also Present: ADAM CHALOUPKA, ESQUIRE 19 20 21 22 23 24 Carla V. Kuhn, RMR, CRR Official Court Reporter 25 Cuyahoga County, Ohio Ii 19 2 THE STATE OF OHIO, ) SS: JOHN D. SUTULA, J. COUNTY OF CUYAHOGA. ) IN THE COURT OF COMMON PLEAS z CRIMINAL DIVISI.ON THE STATE OF OHIO, Plaintiff, v Case No. 547091 8 C/A: N/A 0 J DELTA ROSARIO, 10 Defendant. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 13 14 BE IT REMEMBERED, that at the May 15 A.D., 2014 term of said Court, to-wit, 16 commencing on Wednesday, June 11th, 2014, this 17 cause came on to be heard before the Honorable 18 John D. Sutula in Courtroom No. 23-B, Courts 19 Tower, Justice Center, Cleveland, Ohio, upon 20 the indictment filed heretofore. 21 22 23 24 25 3 1 WEDNESDAY AFTERNOON SESSION, JYJNE 11, 2014 2 THE COURT: We're here on 3 the case of State of Ohio versus Delta 4 Rosario. This is 547091. We're here on a 5 community control hearing, and present is Ms. 6 Rosario along with her counsel, Thomas Rein. 7 Representing the interest of the State of Ohio 8 is probation officer Megan Patton. 9 MR. CHALOUPKA: And again, 10 assistant county prosecutor Adam Chaloupka 11 maintaining the State of Ohio through the 12 county prosecutor's right to be present and 13 participate in all probation violation 14 hearings. 15 THE COURT: And for all the 16 reasons I°ve already said and all the other 17 cases, please sit down. 18 Ms. Patton. 19 MS. PATTON: We are here 20 today because the defendant is due to expire 21 on June 24th and the Court asks for a hearing 22 to be held. To date, the defendant has 23 complied with almost all of her comntunity 24 control conditions. She is compliant with all 25 of her mental health appointments and 3 I W^DNESDAY AFTERNL3ON SESSION, JUNE 11, 2014 2 THE COURT: We're here on 3 the case of State of Ohio versus Delta 4 Rosa'rio. This is 547091. We're here on a 5 community control hearing, and present is Ms. 6 Rosario along with her counsel, Thomas Rein. 7 Representing the interest of the State of Ohio 8 is probation officer Megan Patton. 9 MR. CHALOUPKA: And again, 10 assistant county prosecutor Adam Chaloupka 11 maintaining the State of Ohio through the 12 county prosecutor's right to be present and 13 participate in all probation violation 14 hearings. 15 THE COURT: And for all the 16 reasons I've already said and all the other 17 cases, please sit down. 18 Ms. Patton. 19 MS. PATTON: We are here 20 today because the defendant is due to expire 21 on June 24th and the Court asks for a hearing 22 to be held. To date, the defendant has 23 complied with almost all of her community 24 control conditions. She is compliant with all 25 of her mental health appointments and 4 medications. She reports to me as asked. We have been in front of the Court on one prior PV for misdemeanor charges that she has taken care of, and complied with their terms as well. She is currently in GED E classes and attempting to obtain her GED. She 7 receives SSI, cares for two of her grandkids 8 and has paid $485 in court costs and fees, 9 leaving her with a balance of $322. 10 Today we're here to determine if she 11 can be complete with her court. I think we 12 were directed by the Court to possibly sign a 13 cognovit note as to the court costs. 14 THE COURT: Thank you. 15 Mr. Rein? 16 MR. REIN: Judge, thank 17 you. May it please the Court. On Ms. 18 Rosario's behalf, we would ask this Honorable 19 Court to terminate community control sanctions 20 at this point. Again, Judge, she's 39 years 21 old. Her own daughter is incarcerated leaving 22 her to raise her two young grandchildren, 23 She lives in a bad neighborhood. Her 24 car windows got shot out not too long ago. 7" 25 don't know if it's some family dispute 5 regarding her sons or daughters or what's going on there, but she wants to relocate to Kentucky. She's willing to sign whateez er notes so that she can pay those court costs and be done with this. Thank you, Judge. THE COURT: Ms. Rosario, 7 what do you have to say? 8 THE DEFENDANT: Nothing really, 9 your Honor. I'm going to continue to -- when 10 I do move I'm going to continue to try to get 11 my GED and take care of my grandchildren and 12 pay my fines, the rest of my fines. 13 THE COURT: All right. 14 IA: you sign a cognovit note of the 15 balance and fees and costs, upon doing so 16 we'll terminate your community control. All 17 right? 18 MR. REIN: Thank you, 19 Judge. 20 MS. PATTON: Thank you. 21 THE DEFENDANT: Thank you, your 22 Honor. 23 24 (Thereupon, Court was adjourned.) 25 6 ^ E FR r FI Cl1 L Y 2 I, Carla V. Kuhn, Official Court 3 Reporter for the Court of Common Pleas, Cuyahoga County, Ohio, do hereby certify that as such reporter I took down in stenotype all of the proceedings from the audio/videotape in the above-entitled cause; that I have transcribed my said stenotype notes to the c best of my ability into typewritten form, as 1C appears in the foregoing Transcript of 11 Proceedings; that said transcript is a 12 complete record of the proceedings had in said 13 cause and constitutes a true and correct 14 Transcript of Proceedings had therein as the 15 quality of the recording allowed. 16 17 18 19 20 p I _------Carla V. Kuhn, RMR, CRR 21 Official Court Reporte.r Cuyahoga County, Ohio , 22 23 24 25 1 1 THE STATE OF OHIO, ) ) SS: JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA.) 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 -vm Case No. 577452 C/A: N/A 8 ROGER WILEY, 9 Defendant. 10 11 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 12 13 APPEARANCES: 14 VICTORIA BOYD, 15 on behalf of the Probation Department; 16 DAVID KRAUS, ESQUIRE, 17 on behalf of the Defendant. 18 Also Present: ADAM CHALOUPKA, ESQUIRE 19 20 21 22 23 24 Carla V. Kuhn, RMR, CRR Official Court Reporter 25 Cuyahoga County, Ohio 2 1 THE STATE OF OHIO, SS: JOHN D. SUTULA, J. 2 COUNTY OF CUYAHOGA. 3 IN THE COURT OF COMMON PLEAS 4 CRIMINAL DIVISION 5 THE STATE OF OHIO, 6 Plaintiff, 7 _v_ Case No. 577452 8 C/A: N/A 9 ROGER WILEY, 10 Defendant. 11 12 DEFENDANT'S TRANSCRIPT OF PROCEEDINGS 13 14 BE IT REMEMBERED, that at the May 15 A.D., 2014 term of said Court, to-wit, 16 commencing on Wednesday, June 11th, 2014, this 17 cause came on to be heard before the Honorable 18 John D. Sutula in Courtroom No. 23--B, Courts 19 Tower, Justice Center, Cleveland, Ohio, upon 20 the indictment filed heretofore. 21 22 23 24 25 3 WEDNESDAY AFTERNOON SESSION, JUNE 11, 2014 2 THE COURT: We're here in 3 the case of the State of Ohio versus Roger 4 Wiley. This is case number 577452. We're 5 here in a community control violation hearing. 6 Present is Mr. Wiley along with his counsel, 7 David Kraus. Representing the interest of the 8 Sta-te of Ohio is probation officer Victoria 9 Boyd. 10 Ms. Boyd. 11 MR. CHALOUPKA: Your Honor, 12 assistant county prosecutor actually -- 13 THE COURT: Please sit down. 14 MR. CHALOUPKA: Sir, for the 15 record -- may I proffer ourarguments after? 16 THE COURT: Please sit down. 17 State your name, please. 18 MR. CHALOUPKA: Adam Chaloupka. 19 THE COURT: Sir, have you 20 filed the rule of the court in terms of 21 appearing here? 22 MR. CHALOUPKA: I have not 23 because our office does not believe that rule 24 is valid. 25 THE COURT: Well, you 4 1 appealed that andthen you dismissed your 2 appeal, all right, and then -- and that's it. 3 Here it is. You can appeal the 4 ruling or not. Since you didn't appeal the 5 ruling, it's valid in this courtroom, okay? 6 And now you did not file anything here and you 7 have to give notice to the defendant here. 8 You haven't given any notice to the defendant 9 as to your appearance here, as to anything 10 that you're going to say, so they have no 11 opportunity to prepare. 12 This is not -- this is not an ambush, 13 all right? It is not an ambush. There are 14 things you need to do to represent anybody 15 here and you don't represent anybody because 16 the probation officer represents the State of 17 Ohio. 18 MR. CHALOUPKA: Obviously our 19 position is opposite of that. 20 THE COURT: You had an 21 opportunity to appeal that; you dismissed your 22 appeal to an adverse ruling. That ruling ---- 23 MR. CHALOUPKA: We disinissed our 24 appeal because you --- 25 THE COURT: That ruling 5 1 stands. 2 MR. CHALOUPKA: We dismissed the 3 appeal because you decided to recognize us as 4 a party. 5 THE COURT: No, we did not. 6 MR. CHALOUPKA: That is why us 7 at the public defender's office -- 8 THE COURT: No, I did not. 9 That ruling stands. I have discretion to have 10 anybody speak in this courtroom. You don't 11 have the right. I have the discretion to 12 grant people to speak. Unless you request 13 that discretion by procedure that I say, then 14 no, you're not going to speak. 15 MR. CHALOUPKA: Under the 16 statute and case law we have the right to be 17 here. 18 THE COURT: No, you don't. 19 Not in a probation violation hearing. 20 MR. CHALOUPKA: It is a general 21 procedure. 22 THE COURT: And I said no. 23 I`m not going to argue the law ai.ready because 24 I've already declared what the law is in this 25 courtroom and it's in compliance with the 6 Supreme Court of the State of Ohio, it's in 2 compliance with the Supreme Court of the 3 United States and you haven't taken a position 4 contrary to all that. 5 It's not going to go forward, so 6 you're going to sit down at this point and 7 allow this hearing to proceed. 8 MR. CHALOUPKA: May I proffer 9 any of our arguments after? 10 THE COURT: No, you may not, 11 at this point, because you have not requested 12 leave to appear in these matters and you have 13 not given notice to the defendant as to what 14 you're going to do here or say in this matter 15 so that they have an opportunity to respond. 16 You coming in here and trying to make 17 arguments or appearances without notice to the 18 defendant is unfair. It's just simply unfair. ':.9 This is a procedure that's been in court for 20 decades. Mr. McGinty used the same exact same 21 procedure for 19 years that he was a judge. 22 MR. CHALOUPKA: All the other 23 judges have agreed that we're a party. 24 THE COURT: Nineteen years 25. as a judge he did that. All right? I'm not 7 1 going to change things for this. All right? 2 Ms. Boyd. 3 MS. BOYD: Thank you, your 4 Honor. 5 On September 26th, 2013, the 6 defendant was placed on community control 7 sanctions for a term of three years with 8 conditions. 9 On January 14th, 2014, the defendant 10 tested positive for marijuana and PCP. On 11 January 14th, 2014, the defendant pled no 12 contest to disorderly conduct and 13 intoxication, including municipal court case 14 2014-CRB-000710. 15 On February 13th, 2014 a capias was 16 issued for failure to report to the probation 17 department. 18 On June 9th, 2014 the defendant was 19 found guilty of driving under suspensi-on in 20 Cleveland Municipal Court case 21 2014-TRD-004949. Thank you, your Honor. 22 THE COURT: All right. n n m , ^ LJ 11-1d11K yo1..1 . 24 Mr. Kraus? 25 MR. KRAUS: Judge, thank 8 1 you. 2 This is the first probation violation 3 for my client. He did report for a period of 4 time but things kind of went awry. 5 As far as the new matters, the more 6 serious cases been dismissed in fact two days 7 ago. Yes, there is a driving under suspension 8 but I think the overwhelming concern is the 9 failure to report. I believe that you would 10 have in the past. 11 He was a little afraid. He had this 12 alleged victim constantly calling the 13 probation department, trying to create a 14 problem for him where there wasn't one, and I 15 think it's all just got to him. He's picked 16 up no new cases other than that, Judge, and I 17 believe he deserves a second chance. He's 18 asking the court for that. This is his first 19 violation. We're hoping for the least 20 restriction sanction. Thank you, Judge. He's 21 been in jail a week now. 22 THE COURT: All right. 23 Thank you. 24 Mr. Wiley, do you have anything to 25 say? 9 1 THE DEFENDANT: Yes, your Honor. 2 I messed up not showing up. I got nervous. I 3 had some -- man, I had a problem with this 4 lady. She did some bad things to me that made 5 me do bad, got me in a messed-up situation and 6 I panicked and I'm sorry for not showing up. 7 I'd ask the Court, can you please forgive me 8 for that, give me one more chance. I promise 9 not to do wrong this time. I was doing good, 10 I was doing good. A had a job and everything. 11 I still got my job, I still -- 12 MR. KRAUS: And also, your 13 Honor, I misspoke. 43 days he's actually been 14 in county jail I believe, correct? 15 THE DEFENDANT: Yeah. 16 MR. KRAUS: He was here on 17 the city case, so he's served a significant 18 amount of time thank you. 19 THE COURT: The defendant 20 will be found in violation. The community 21 control will be continued with a prior 22 condition and a modified condition. 50 23 additional hours of community work service, 24 inpatient drug treatment, sheriff will 25 transport. Next violation will be 12 months 10 1 in prison. 2 MS. BOYD: Thank you, your 3 Honor. 4 5 (Thereupon, Court was adjourned.) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 11 1 CER'.,' I: r.^ CAT E 2 I, Carla V. Kuhn, Official Court 3 Reporter for the Court of Common Pleas, 4 Cuyahoga County, Ohio, do hereb.y certify that 5 as such reporter I took down in stenotype all 6 of the proceedings had in said Court of Common 7 Pleas in the above-entitled cause; that I have 8 transcribed my said stenotype notes into 9 typewritten form, as appears in the foregoing 10 Transcript of Proceedings; that said 11 transcript is a complete record of the 12 proceedings had in the hearing of said cause 13 and constitutes a true and correct Transcript 14 of Proceedings had therein. 15 16 17 18 19 Carla V. Kuhn, RMR, CRR 20 Official Court Reporter Cuyahoga County, Ohio 21 22 23 24 25