OHIO SUPREME COURT
LARRY E. EALY CASE NO.08-2444 4687 MARLIN AVE TROTWOOD OHIO 45416,
Petitioner,
Vs.
JUDGE JAMES D. RUPPERT zo 1063 EAST SECOND STREET PO.BOX369 FRANKLIN OHIO 45005 41 o fa .7(1Ue
SUFRFM^'C Respondent URTOF
AMENDED PETITION OF WRIT OF HABEAS CORPUS UNDER SECTION 2725.04 WITH ATTACHMENTS OF AFFIDAVITS IN RESPONSE AND COPY DOCKET SHEET OF WARRANT HAVING BEEN ISSUED
Larry E. Ealy Pro Se Petitioner files his amended Petition of Writ of Habeas Corpus for immediate relief from judgment of the Dayton Municipal Court visiting Judge James R. Ruppert whom has issued a warrant for his arrest in case NO. 2008TRD3189 for failure to appear on a 100 foot stop violation whereas the trial Judge Dayton Police and Prosecutes office have assembled a Kangaroo Court in an attempt to suspend the Petitioners drivers' license after destroying the video tape of the stop showing the innocents of Larry E. Ealy in violation of his due process rights of law. Strauder v. West Virginia 100 U.S. 309-310. Parratt v. Taylqr 620 F.2d 307. Monroe v. Pape Supra., 365 U.S. 167 (1961). Court.
ully Sub rt^ttei Larry E. Ealy {ARGUMENT} In the original Petition for Habeas Corpus the Petitioner titled the wrong Respondent and apologizing to Sheriff Phil Plummer for any inconvenience that may have been caused but these things do happen.
Now the Petitioner has added additional official paper work from Judge Ruppert and his work or business address since he is evading the certified mail in case NO. 08-2362 for service in the Writ of Prohibition to prohibit him from retaining further jurisdiction in traffic matter 2008TRD3189. The Petitioner left out several reasons why the Petition should be granted even though he has not been arrested. STATEMENT OF FACTS
In the first Petition the Petitioner had assumed that Judge James R. Ruppert was sitting on assignment by the order of the Ohio Supreme Court in case NO. 2008TRD3189, but he were assigned by Judge John S. Pickrel and now has conspired to maliciously prosecute the Petitioner after the prosecution destroyed the video tape evidence of the stop made 2-11-08.
Another point that must be made about this case is during a phone pretrial conference concerning case NO. 2008cv386 before attorney John C. Musto and attorney and County Commission Board member John C. Cummings, Prior to the Magistrate Sharon Ovington entering the conversation there was a discussion going about an arrest warrant filed against the Petitioner in caseNO 2008TRD3189.
This is the case were the destruction of the video tape was discovered, and right before the Judge came into the conversation when the clerk went to go get her John C. Musto stated to Mr. Cummings that Ealy had a warrant for his arrest and that he would be arrested sometime into future.
Mr. Musto did not realize that the Petitioner was already on the phone when he made that statement this shows Musto's involvement in the overt act of conspiracy against the Petitioner.
The need for the straining order discussed in cv386 is sustained for the very reasons why this Petition is needed and the request to transfer of the traffic case for fear persecution in the State of Ohio. See Strauder v. West Virginia 100 U.S. at 308-309, then later in Georgia v. Rachel 384 U.S. at 791. Strauder and Rachel explains the need in detail as of how and why Indigent African Americans and Poor Plaintiffs/ Defendants can not obtain a fair trial for denial of ones State Court of Rights. {28USC1443} (a) should be amended to all those who face persecution by State officials, this statute should not be limited to the colored race because it says that those who aided the newly freed slaves were persecuted as well.
"According to Justice Black" in Jones v. Cunningham. 92 A.L.R. 2d 675]) A petition of habeas corpus can be granted without the Petitioner having to actually be psychically restrained or denied his liberty. Mr. Musto knows me very well, I have tracked he and chief trial counsel John Danish very well, and they have tracked me very well, as stated in the pretrial conference held on 12-19-08 the strategy for the City in case N0.08-cv-386 involving a 1983, 1985, 1986 claims is to find a cheap way-out and this case with Judge Rupperts warrant for violation of a 100 foot stop is away to occupy the Petitioners time and hinder his civil actions.
The 100 foot stop although found in O.R.C.4510. Is very ridiculous but the City of Dayton will use any and all resources available to them and continue to perpetrate traffic offenses and destroy evidence at will, the criminal acts have been well documented in the Ealy history since his assault in the City of Dayton Ohio.
Explanation of why this case is of great importance.
Petitioner Larry E. Ealy who was stopped on 2-11-08 by Dayton Police Officer Nathan Speelman for allegedly failing to signal at a 100 feet. The Petitioner moved for the video evidence of the stop shortly after the first hearing in June of 2008.
The evidence would have shown inconstant stories concerning this case where the Petitioner was never provided evidence of the stoppage or shown to have been in violation of a 100 foot stop on 2-11-08.
The prosecution and trial Judge has gammed out the exclusion of the video tape to keep the jury from having been fully informed on the nature of the stop this is on going conspiracy and police misconduct in Dayton Ohio. See State v. South 162 Ohio 3d 123 2005-2152. {reversed and remand} by Justice Thomas Moyer. Citing State v, Amsterdam 138 Ohio App. 3d 866 where ineffective assistance was determined by the Court where the attorney of record kept the identity of two witnesses from coming forward.
Attorney Alan Gable assigned to the case claimed he had gotten a continuance but now there is warrant issued for failure to appear. Attorney Gable did not do all he could do to get the video tape or secure the presence of a particular Dayton Police Officer, the tape is not destroyed as he confirmed on 12-10-08 as told to him by prosecuting attorney Addie Jane. King but rather its being held allowing the malicious prosecution to happen with out evidence showing the innocents of his client.
In State v. Owens (1975), 51 Ohio App. 2d 132. The withholding of the video tape would preclude proper review of the Appeals Court this was already decided and willfully predetermined in violation with the Petitioners Federal Civil Rights under Title 42CUSC 1983, 1985, 1986. Citing Rankin v. Howard 633F.2d 844(1980). {Reversed and Remand}, In Rankin it's found that Judge Howard lacked jurisdiction over a party, then he lacks jurisdiction to adjudicate the parties rights whether or not the subject matter was properly before it.
Judge Ruppert stepped outside of his jurisdiction by withholding exculpatory evidence showing that the stop was invalid.
Gable stated if the Judge finds the Petitioner guilty he could appeal but Gable all ready knew without the tape of the stop it could not be reviewed on appeal that's ineffectiveness of counsel. See Kimmelman v. Morrison 477U.S.307, 324(1979). In Kimmelman The Supreme Court of the United States confirmed that all defendants are guaranteed the right to counsel and not only are they afforded the right to counsel but effective assistance of counsel.
Former Chief Justice William H. Rehnquist concurring that a Sixth Amendment violation of ineffective assistance of counsel would relitigate a Habeas Corpus Petition. Attorney Alan Gable appointed by the State acted wantonly and recklessly by failing to inform his client that he had the right to have the charges dismissed if the tape of the stop was destroyed.
In Morrison the Respondents attorney failed to file a motion to suppress the bed sheet as in this matter Alan Gable intentionally failed here to suppress the ticket even though he confirmed he would during the final pretrial conference held on November 18, 2008. In others words the right of an accused to counsel is beyond a fundamental right. See, e.g, Gideon, 372 U.S.., at 344. The right to counsel may not be deemed fair or fundamental in some countries but it is in ours") the right to counsel is the right to a fair trial itself without it, it would be of little consequence , see e,g. Cronic supra, at 653: United States v. Ash, 413 U.S. 300,307-308(1973) Argersinger v. Hamlin, 407 U.S. 25, 31-32(1972); Powell v. Alabama, 287 U.S. 45, 68-69(1932). Its through counsel the Defendant secures his other rights. Main v. Moulton, 474 U.S. 159, 168-170(1985).
The Constitutional guarantee of counsel is by far the most pervasive, for it effects his ability to assert any other rights he may have. The constitutional guarantee of counsel , however, cannot be satisfied by mere formal appointment, " see Avery v. Alabama 308 U.S. 444,446(1940)," An accused is entitled to be assisted by an attorney, whether retained or appointed who plays the role necessary to ensure that the trial is fair." Strickland supra, at 685. In other words, the right to counsel is the right to effective assistance of counsel Evitts v. Lucey, 469 U.S. 387, 395-396(1985). In this matter collateral review will be the only means through which the Defendant can effectuate the right to counsel restricting litigation of some sixth amendment claims of ineffectiveness to trial and direct review would seriously interfere with an accused right of effective representation. see Murray v. Carrier, post, at 488 (where a "procedural default is the result of ineffectiveness of counsel, the Sixth Amendment it self requires that the responsibility of the default be imputed to the State"); Cuyler, supra, at 3454("The right to counsel prevents the State from conducting trials at which persons facing incarceration must defend themselves without adequate representation")see Evitts, supra,, at 396("The Constitution mandate is addressed to action of the State"). The Defendant has official fired attorney Alan Gable for misrepresentation whereas a criminal conviction in a trial in which the accused is disproved of ineffective as assistance of counsel, the State .... unconstitutionally deprives the Defendant of his liberty."Cuyler,466 U.S.., at 343. The Defendant is thus in custody in violation of the Constitution,"28U.S.C. § 2254(a), and a Federal Habeas Corpus will have jurisdiction over his case regardless of the nature of the underlying attorney error. the Petitioners in Morrison claimed that a mere failure to file a motion to suppress does not constitute a per se Sixth Amendment violation, while the Court agreed with the Petitioners view that the failure to file a motion for a suppression hearing does not per se constitute ineffective assistance of counsel, but disagreed with the Petitioners assessment of counsels performance. In Strickland the Court explained that access to counsel's skills and knowledge is necessary to accord Defendants the ample opportunity to meet the case of the prosecution' to which they are entitled." 466 UI.S.., at 685(quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275 276(1942)). "Counsel.... Has a duty to bring to bear such skill and knowledge as well as render the trial a reliable adversarial testing process." 466 U.S.., AT 688. The Court observed, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. The trial record in this case clearly reveals that Morrison's attorney failed to file a timely suppression motion , not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the States intention to introduce the bed sheet into evidence. Counsel was unapprised of the search and seizer because he had conducted no pretrial discovery as with this case counsel here did not one shred of pretrial discovery to date leading to his firing. Counsel failure to request discovery, again, was not based on trial strategy, "but on counsel's failure to do his duty. Gable acted as though the State was obligated to take the intuitive and turn over all of its exculpatory evidence to the defense. Viewing counsels failure to conduct any discovery from his perspective at the time he decided to forgo that stage of pretrial preparation and applying a heavy measure of deference , 'abid., to his judgment, the Court should find counsel's decision unreasonable, that is, contrary to prevailing professional norms. As in this case the justifications in Morrison attorney offered for his omission betray a startling ignorance of law. Counsel has a duty to make reasonable investigations or to make reasonable decisions that makes particular investigations necessary.
Alan Gable said on 12-12-08 that he filed a motion to continue and a motion to dismiss. Citing State v. Dixon (1984) 14 Ohio App. 3d 390, citing State v. Sutton 1979 64 Ohio App. 2d 105 180. 03d 83 according to Crim. R. 48-A or 48 -B on a motion for Nolle maybe only entered when there is a confirmed deprivation of the Defendants Constitutional Rights which has barred further prosecution, according to Dixon this case meets good cause for open Court File Requirements of Crim. 48-A if the Prosecution actually destroyed the video of the stop without having the trial adjudicated n the merits.
In, In re Fisher, 39 Ohio St.2d 71 (1974), the Supreme Court of Ohio recognized that Habeas Corpus is the only adequate remedy available for reviewing a criminal or civil commitment.
(A).If this court determines that the Fourteenth Amendment to the United States Constitution requires that indigents are entitled to court appointed counsel at public expense in criminal/civil commitment detention . . . , then relief in habeas corpus must lie as the only ade quate remedy available for determination as to whether this right was denied. 39 Ohio St. 2d at 75. 477U.S.307, 324(1979)..
The present case does not involve a denial of counsel at public expense, but this does not alter the principle that Petitioner is entitled to Habeas Corpus to raise his Sixth and Fourteenth Amendment rights. Young v. Ragan, 337 U.S. 235 (1949).. Alan Gable was well aware of the Judges intention showing his ineffectiveness of counsel, Judge Ruppert filed an response to the affidavit of disqualification under the direction of prosecutor Addie J. King where he has a personnel interest in the case covering for the criminal activity of the Dayton Police who have a memorandum to stop the Defendant on sight 633F.2d 844(1980).
See additional responses to the second affidavit disqualification filed by Judge Ruppert. The refutation to the Petitioners affidavit of disqualification exceeded the Judges jurisdiction. Citing management Corp of America v. Grossman(1981), Florida App.D3)396 So 2d. 1169. See Bundy v. Rudd 366 So 2d 440, 442 (Florida 1978). Dickens v Parks 104 Florida 577 140(1932), Suarez. State 95 Florida 42 115 So 519 (1928) also see Theo Hirsch Co. v. McDonald Furniture Co. 94 Florida 185 114 So, 517 (1929). When a Judge has looked beyond the mere legal sufficiency of a motion and attempts to refute the charges of partiality and bias, the Judge has exceeded the proper scope of inquiry, the Petitioner had filed a second affidavit of disqualification and a Writ of Prohibition to the Ohio Supreme Court docketed on 12-10-08 that should prevent the Judge from retaining jurisdiction. In the present case the Petitioner filed an affidavit to recuse Judge Ruppert on 7-18-08 and the Judge responded to the allegation complained of about his conduct, it's now confirmed that if a Judge goes beyond legal sufficiency in a matter an intolerable adversary atmosphere is created calling for automatic disqualification but he is still presiding over this matter and now has issued a bogus bench warrant. This has occurred due to the faiiure to act of the presiding Judge Barbara P. Gorman. Judge Gorman allowed the trial Judge to refute the claims of prejudice now causing this intolerable atmosphere. After the affidavit was challenged by the Judge he held the Defendant in contempt at the next hearing for being late showing bias for filing the first affidavit of disqualification whereas he was required to recuse himself.
A continuance was granted according to Gable by phone conference with the Judge, Gable stated that he was unable to exculpate all evidence and review the claims of the State and secure all witnesses involved, I am not an attorney and has done more than Gable. 138 Ohio App. 3d 866.
Gable confirmed that Judge Ruppert quashed the subpoena for Dayton Police Officer Steve Hieber after Addie J. King destroyed the video tape showing Heiber's presents after Officer Speelman lied on the witness during a suppression hearing on November 7, 2008 Speelman who made the initial stop stated under oath Heiber was not present on 2-11-08. Hieber conducted an illegal search and seizer of the Petitioners vehicle the video tape shows Heiber searching for guns and drugs he claimed while Speelman went into the Petitioners trunk and took an official Court document out of his black brief case. Citing Terry v. Ohio 392 U.S.1(1968), The Dayton Police violated the Petitioners 4, 14 Amendments rights under the United States Constitution on February 11, 2008 and now have conspired with the Judge and Prosecutors office to destroy States evidence of the scene.
In case N0.2006TRD23651 Dayton Police Officer Michael Saylor of the 5 District Police force where Officers Hieber and Speelman are located Saylor confirmed on March 15, 2007 before acting Judge Tom Hagel that he had been on the force approximately 5 years and he was given a memorandum that states pull Ealy over on sight because he lied about having had excessive force used against him in 90cv-159 tried before this Court in1994. Ealy the Petitioner hear was assaulted apprehended and hung around his neck in the Dayton Municipal Courthouse then had the evidence of that attack ceased by the City of Dayton Officials thus spawning said actions to date.
This directive was used in the stop concerning this Petition, the Officers did not have probable cause for the stop the video will show the Petitioner having his signal on long before Speelman pulled up behind him and the trial Court has circumvented the Petitioners due process rights to a fair trial and cross examine the Officers charges according the video tape made on 2-11-08. Trial with out Heiber and the video tape was a well thought out stratagem there would be no Appellate review of the tape or the Police Officers conduct showing false arrest and illegal search and seizer.
See attachment (1). The Petitioner was charged with O.R.C.71.31 failure to signal at 100 feet. The Petitioner was charged with O.R.C.4510.263 (B) seat belt violation. The Petitioner with O.R.C.4510. 12.(A) No O/L The Petitioner was charged with 4510.21(A) Failure to reinstate. The Petitioner was charge with section O.R.C.4510.16(A) FRA-SUP.
The Officers towed the Petitioners vehicle out of spite and ill will then arrested the Petitioner. The vehicle only had one parking ticket on it constituting harassment. See attachment (2) memorandum transmitted by wire to all Dayton Police cruisers to harass and stop the Petitioner on sight due the 1990 assault.
On the supplementary side of attachment 1 it states that the Petitioner failed to signal during the lane change there was no lane on the Westside of Dayton where the Officer approached. Speelman stated also during the suppression hearing he did not ticket the Petitioner for the lane change because he had written him enough tickets. Even though the Petitioner is not incarcerated he is still entitled to his freedom during the out come of this case. citing In Re Smiley [66 C.2 606;58 Cal. Rptr.579,427 P.2d179. its been decided that habeas corpus has been restricted to situations in which the applicant is not actually in physical custody" Jones v. Cunningham, (1963) 371 U.S. 236, 239 [9L.Ed. 2d. 285, 83 S.Ct. . 373, 92 A.L.R. 2d 675]) in Jones as with Ealy he is out on bail. In re Peterson (1958) 51 Cal. 2d. 177.181-182[331 P.2d 24, 77 A.L.R. 2d 1291,. cited to relieve a wide variety of other restraints on a mans liberty. More over this Court may admit the Petitioner to bail pending the determination of the Habeas Corpus proceedings (Pen Code § 1476).
The reasoning applies with equal force to one who has been released on bail or his own recognizance although a statutory release was not enacted by congress until (1959)(Pen Code §§ 1318-1319.6 stats 1959 ch.1340 §1).it codified practice that long obtained in our Courts see, e.g., Ex parte Duncan(1878) 54 Cal. 75-78 Gustafson, bail in California (1956)44 Cal. L.Rev. 815-82.
"In Jones" Mr. Justice Black delivered the opinion of the Court.
A United States District Court has jurisdiction under 28 USC2241 to grant a Writ of Habeas Corpus to a prisoner...... in custody on a violation of the Constitution .....of the United States the question is can a prisoner who is placed on parole determined to be in custody with in the meaning of the section so that the Federal District Court who has jurisdiction to hear and determine that his State sentence was imposed in violation of the United States.
In this matter the evidence was destroyed and counsel could not secure evidence or the continuance like he said he did, the case itself rested on the right to secure such evidence that is needed in such a case to determine the guilt or innocents. at., 162 Ohio 3d 123 2005-2152.
In Jones the Court granted Certiorari "369 U.S 809" even though the Court of Appeals dismissed the case as moot because the Petitioner was released from custody to parole among other restrictions the Petitioner was required to obtain permission of his parole officer to leave the community.
The Petitioner had to have permission to change residences, or to own or operate a motor vehicle. He was further required to make monthly reports to his parole officer, to permit the parole officer to visit his home and work place at any time and follow the officer's instructions. The Habeas Corpus jurisdictional statute implements the constitutional command that the Writ be available. While limiting its availability to those "in custody" the statute dose not attempt to mark the boundaries of "custody" or in any way can limit the way the Writ can be used. To determine whether Habeas Corpus could be used to test the legality of a given restraint on liberty, this Court has generally looked to common law usages and the history of Habeas Corpus both in England and in the United States.
The warrant issued hear has limited and restricted the Petitioner from his normal course of life where he is a freeman of the land and the Dayton Municipal Court has abused its authority to restrict the Petitioners right to be free in Dayton Ohio because of the long battle for equality.
rry F/Ealy 4687 arlin Ave Trotwood Ohio 45416
CERTIFICATE OF SERVICE I hereby certify that a copy of the forgoing will be served to Attorney Addie J. King Attorney for the State of Ohio/City of Dayton at 335 West Third Street Dayton Ohio 454202 by ordinary US. Mail within 3 days of)Kis filing on is day of December_ 2008. TO: Court Detae►
FROM: Sergeant Jeremy Roy
DATE: December 6, 2006
SF/B7ECFr Larry Ealy (115163, 5`7", 220 lbs.)
If Mr. Ealy enters the CPC/DMCC Complex or is located any were on the property, you will verify that he is herefor official business and he is to be EWW at all times while inside the Court Complex without exception. pt JNtt"owD STAT^ ^°° W O F REPOftT OF ACTION ON CASE m me oa.r,^N uIJNICIPAI.CPJRI TICPQ'^T1728024 NO. ^ p. GFPF.RE6l L INIHEM'NITG'UMkYhCOUNiYJ/W/^l^un z ^r^1MLMYW ._-- . - cPSE No IACiNI! _ mrv U PfLF.49[n Tn OnlR WThYJRIL'/ NAME L'A^P.1^ ]1"rwv_YY ADO TIONAL OFFICER crrv,srure r ^t ^^rr^^^ zlpY^^Xda LfCEN9E198UFll0.1U.^_YRQL EXP•iRE961RTHDt.TE20 9Tn7E ^a _ __. Pda Na _. 4-d--_ i ^N Gp91m0' DAYU`S YR.^^. f14C€ $EX XFILNT W HT HNR EYE3 FWlWCIALRE$FY.W6IBILIrY morol Yen (, ^ ^o.T a^Z 02- PBODFSXOWN 0Yer.sANo n.ur ul H r)tl. -2vHK bf^ 'alorN' ^^1._-IntC^^?1_tT.°, '. LJCEIffiE N0. Glrn_ ppee¢ NOf AAppJ/ 1playBt's Add. . cuputlpn TO DEFENDANT: CDMPLAINT.. OFFICER'S SUPPLEMENTAI. COMMENTS GNizl-- 20el-^ AT IGIS M. Y[WJGPERArE- P.EQNlALNECYA Jgp ITCOmm. OGYCh nPr a OHBZ.IdW. nctlon W On ) . (9TMfF"/1 YEHICIE:YR. 63iIMKEC- a- BODYrYPE C'e prefiended a eTATE 6i1 . UFOpIAPIJBLIGHIGNWAY,NPAffLY ^nf-aIYVY^a^^ {p1 P. AT 5 iA 4l'7^ -Q5 Nrrwe cirv oF DAYTON IN 1.roNTT90MERY ..
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IN THE DAYTON MUNICIPAL COURT, DAYTON, OHIO TRAFFIC DIV4SiON
STATE OF OHIp j ) CASE FJO.OSTFt03189 PLAINTIFF, } i LARRY E. EALY ) RESPONSE TO AFFiDAV1T } OF DiSQUALfFICATtQN DEFENDANT. ^
The Defendant hereinfiled an Affidavit of Disqualification on July 17", 2008, aiteging prejudice of the undersigned, Jamea D. Ruppert, assigned by the Ohia Supreme Court as Visiting Judge, as a resuiCof the Gourt's overruling of a Motion for Chanc,leof Venue, 'The [lefendant's Motion was filed Ap111 17", 2008_ By Entry dated Aprli 28, 2008, the Couit schedufed a hearing on said Motion for May 21", 2008.
The heartng oh theJVotion for Change nfvenue prpcaaded ag gchedufect to affordihe Defendant the opportvnity-to presentsny 0idence in support of said Motion. At the conoluslort of the heafing, the Geuri held that there was no evidence before ft Goutt which would indieate that afair and irripartiai trial could hot be held in this Cburt, norwes any evidence pr$sented that said Matiern should be granted for the convenience of tiie parties and ih the interest of justice. Accordingly, the Court fon;Vardgd its Entry overruling the Motion for Change of Venue for filing on June 3'd, 2008.
The undersigned also presided as Visiting Judge in Case No. 2407TRO6411 wherein the Defendant was charged with No Operator's License, Failure to Signal, and a 6eetbelt Violation. That cause proceeded to trial ch Septemher 19, 2()08, at URiOTl08 13:I6 F.iY 037 748 1R5a f2t!PPERT 6ROVSOV tLt'ilU3
vAiich time the State withdrew #he charga of No Operator s License and a hearing was held on 1ha charge of Falture to Signal and a Seatbelt Violafien. The Court entered a finding of guiity o.n the Failure to Signal, imposing a fine of $25 plus Court costs. and not guflty on the 9eatbeit Violatiorl_ Although the Defendant alleges that certain obstructions and misconduct on the part of some Courk personnei occurred, those issues were riot before the Court on the minor misdameanor trial In that cause. The undersigned, as Trial Judge. had no bias or prejudice, no personal knowledge of the facts, and knows of no other basfs for disqualificat€on. Afthough the Defendant feels personally aggrleved, his Constitetlonal rights have somehow been violated, the undersigned has no hostile feeling or spirtt of 11 will or favoritism toward either party and wifl decfde tFis cause before him trased on the evidence and the law:
pMEStl' RUPP aiting Judge by As gnment
to: Proseeutor's office Larry E. Ea7y, Sr.; 4687 Matrliti Ave., Dayton; OH 49416 A1an Gabel, Attoeney for Defendant, P. Q. Box 1423, Dayton OH 45401 E)AY Cil`4 'Rl??tCtPAL C©UtZ-T:" iFt^,Cr^^^ t7i`dl^s{C3l?
IN THE DAYTON MUNICIPAL COURT, DAYTON, OHIO
STATE OF OHIO, ) ) CASE NO.O8TRD3189 PLAINTIFF, ) ) vs: ) ) AFFIDAVIT OF JAMFS LARRY E. EALY, ) D. RUPPERT, VISITING JUDGE ) DEFENDANT. )
STATE OF OHIO, COUNTY OF WARREN, SS
Now comes Affiant, Visiting Judge James D. Ruppert, and hereby states as follows:
I. As Visiting Judge assigned by the Ohio Supreme Court the undersigned has not engaged in any ex parte comrrrunicaflons with Addie J. King, Assistant City Prosecutor, in regard to the pending case involving Larry E. Ealy.
2. AtTrant further states that the only communications with Prosecutor King have either been in open Court or in the presence of defense counsel assigned to represent the Defendant herein. FL.TR.THER AFFIA_NT SAYETH NOT^- ,,...... , JAMES D. RUPPE
Sworn and subscribed to befo me by a£fiant, James D. Ruppert, this /261ay of December, 2008.
dV"LfIEMM N*qAuftB%ivd 09bf O^ee^ JAVi cP', CO=IRT
08 DEC I I °H`3' 18 i"iA i K 'E'. O4'JEN 3 ^LE Ri'
IN THE DAYTON MUIVICIPAL COURT, DAYTON, OHIO
STATE OF OIIIO, CASE RiO, OSTRD3189 PLAI:`iTIFF, vs: RESPONSE'I'O SECOND LARRY E. EALY, AFFIDAVIT OF DISQUALIFICATION
DEFENDANT.
The Defendant herein filed a Second Affidavit of Disqualification on December 5s', 2008, on the day this matter was set for frnal pretrial. A jury trial is scheduled before the Court on December I e, 2008.
The Defendant alleges that the undersigned violated the Code of Ethics in having committed ex par[e communication with Prosecutor Addie J. King. As indicated in the attached Affidavit, the only communioations with Prosecutox King regarding the pending matter occurred, either in open Court or in the presence of defense counsel.
The Defendant's Affidavit of Disqualification has no merit and should be surunarily dismissed. Pursuant to the provisions of Section 2701.031(D)(4) the Court will continue to preside in the proceedings prior to and until the ruling on the second Affidavit by the presiding Judge of the Common pleas Court.
SO ORDERED:
D. RUPPE Visiting Judge by Assi IN THE DAYTON MUNICIPAL COURT, DAYTON, OHIO
STATE OF OHIO, CASE NO. 07TRD3189 PLAINTIFF, vs: ENTRY LARRY E. EALY,
DEFENDANT.
This matter came before the Court on the Defendant's filing of a Second Affidavit of Disqualification, As a result of the Defendant's filing, the pending case is to be referred to the presiding Judge of the Montgomery County Common Pleas Court.
IT IS THEREFORE ORDERED that the Clerk shall forward the Second Affidavit of Disqualification, together with any documents submitted therewith, to the presiding Judge of The Montgomery County Court of Conimon Pleas for determination.
Dated this / fiNay of December, 2008.
SO ORDERED:
ES D. RUPPER'I^, A7iAiting Judge Wejis - Dayton Municipal Court Yage 1 ot I
Warrant History at Dayton Municipal Court for Larry E Ealy SR
Warrant No Warrant Type Case Number Issue Date Status 9700056 1996-CRM-016286 01/02/1997 Served 9700213 1996-TRD-020515 01/04/1997 Served 9722169 Failure 'ho Appear 1997-CRB-014215 11/26/1997 Served 9723033 Failure To Appear 1997-CRM-014580 l 2/11 / 1997 Served 9909599 Failure To Appear 1999-CRB-005896 06/01/1999 Served 9912323 Failure To Appear 1999-CRB-005896 07/08/1999 Served 9906883 Failure To Appear 1999-CRM-003638 04/15/1999 Served 9912081 Failure To Appear 1999-CRM-005241 07/07/1999 Served 9905089 Failure To Appear 1999-TRD-002865 03/19/1999 Served 0412644 Failure To Appear 2004-CRB-002573 07/22/2004 Served 0509561 Failure To Appear 2005-CRB-006404 05/18/2005 Seived 0606733 Failure To Appear 2005-CRM-013316 03/27/2006 Served 0525675 Failure To Appear 2005-TRD-020420 12/14/2005 Served 0506509 Failure To Appear 2005-TRT-004674 04/12/2005 Served 0614782 Failure To Appear 2006-TRD-002228 07/06/2006 Served 0614783 Failure To Appear 2006-TRD-005821 07/06/2006 Served 0725288 Failure To Appear 2007-TRD-021429 12/06/2007 Served 0802006 Failure To Appear 2007-TRD-021429 01/28/2008 Served 0809631 Failure To Appear 2007-TRD-021429 05/09/2008 Served 0827538 Failure To Appear 2008-TRD-003189 12/18/2008 Active
STdTN V. WILSON .S'CATE v. gpUTll 122 Oteas 162 061a d„R3
[2, 3] {97} We agree wit!i appellant that the practice oT USillf;^ a 011C-1)21'5911 G^oas, 97 Ohio Su od 1 vi, ZuoL-Oluo- 'L'hc F,LKCG, ol' lH1fu. appeltee, ^;nu^^ rh' iE utheic,t tl7 su35estnve. Str tc e. (1988), 10 Ohio St.3d 277, bd24, 116 N.F,.2cl 1061, at 1124 citing S(ute c- I^iootn r. Derau,o (1967), 388 LLS-293, 302, 84 S.Ct 2,M: 533 N.E.2d 682, citing Stuvnll SOOTH, Appcllant. 1967, 18 L.Ed?d 1199. However, under certtun circumstances, Such as when the show-up occ.vs shortly after the time of the crime, the identification can be very lCite a, ,S'6de m_ Strrrlh, I62 Uhin 1pp;ll 12;, 'lll,l-;rUhio-Plol.l tr. lhladi.soia (1980), G4 Ohio St.2d 322, 332, 18 0.0.3d 491, 410 accurate. Strde S'tates (C.A.D.C.1968), 405 F.2d 1104. Accord Clourt of ,-ippcaln' of Ohin, N.E.2d 272, citing L3ates v. Uai.t.etd Foliette Ninth District, Smnmif Counte- Sezvell v" Card.zuedi. (C.A.f, 1972), 454 F.2d 177, 180, and U'aited Stutes v. (C.A.2, 1970), 435 F.2d 1380, 1383, certiorari denied (1971), 401 U.S. 9ft0, 91 SCi. No. 232SB. the towlity of 1214, 28 L.Ed"2d 331. Therefore, we must consider whe6her un der the cscumstances, the identification of appeAant was reliable in this case. In Deciclecl May 4, 2005. doing so, we must consider several faetors, including (1) the witness's opportunity Background: Defendant was convicted in the Court ofCommon Plu to view the suspect at the time of the crime, (2) the witness's degree of attention, County, No. CR 2003 12 3893, af failure to eomply Ndth order or sign (3) the accuracy of the description, (4) the witness's level of certainty, and (5) the of'ficer, driving under suspension, and failure to obe)^ stop sign, H time between the crime and the confrontation. Munson v. Bra.Lhwatte (1972),(1) 409 U ^2 Holdings: The Court of Appeals, Batchelder, J-, helcl that: U.S. 98, at 114,.97 S.Ct. 2243, 53 L.Ed.2d 140; Neil u. Bigge'rs (1) the state was required under discovery rule to provide defendant 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401. ^l videotape froln police cruiser's video camei a, and the victim had ample opportunity to view the suspect from a {9 8} In this ease, Her attention was drawn to him because of his suspicious (2) defendant was prejudiced by the state's ref'usal. distance and up close. behavior and the tug of war with the purse. The victim was able to deseribe the -; Reversed and remanded. robber as a young white male wearing a knit cap. Although she was unable to-_;- Moore, J., concurred in ,judgment only. provide a more detailed description of the robber, that inability does not ize the robber when seeing automatically disqnalify her from being able to recogn Carr, P.J., dissented and filed opinion. him less than an hour iater. The officer explained that she conducted the show- up because of the victim's advanced age. Realizing the danger of a suggestice show-up, the officer took care not to bias the victim during the drive by. The Criminal Law c 627.5(1) officer specifically noted the victim's reactions to make sure that the victim was A defendant has a constitutional gilarantee to access to evidl being honest. Finally, the victim was certain that the man shown to her was the `Batchelder, J., with one ,judge concuriing in judgment,) man who had robbed her. {II 91 After weighing all the factors of reliability, we find that there was not at, 2. Criminal Law co627,6(3) erefore, we find that the - substantial likelihood of misidentification in this case. Th The state was required under discovery ivle to provide ciefendant Appellants sole'^ trial court did not err in denying the motion to suppress. of videotape from police cruiser's video camera, in proseeution for traffiI assignment of error is not well taken. even thoagh the state provided open-fSle discovery under local rule; t the trial court did not commit error prejudletal to {9 10} Having f0un d tha ugued that if he had been provided copy of videotape, ivhticlt a•as u anpellant and that substantial justice has been done, the judgment of the Lucas'a might have been able to enhance it and disprove the state's case by shr officer misread County Court of Cominon Pleas is affirmed. license plate on vehicle stopped or t17at smneone else w Judgment affirrned: vehicle, the state's refusal prevented defendant from enhancing tape an . _ -_ _._ ,.^.^.., wLe inbenuen [o an(1 nld lise vi( ti;ial. (Per Batchelder, J., with one jutlge concurring In ju(lgment !-jGrim.Proc., Rule iG. -1 sr.A'rL N. SoCiTH S'rATE ^. S017c11 12u Cllcos 162 Ohio App.3d 123. 2005.01hiu2152 (Ilic.,s I62 O6im APh-3A 12,1, 2005-0Gin-?152
C.rilnlnzl l,aw ^6 27.B6 1 at speetis ot up to 90 tnph_ 9'llc h;lh 111.- ,,.. ..,,,,,,I oaucll (uw ^ ulte i[nall D•fNtdant was Inajudiced in proseetltion for ualt_c oifanses Uy che acates into Cuyahoga Fad15 until she iost sight oI the sedaul and the t4river escaped. usel to provide defendant ^¢^th copy of cideot.ape from police cruiser's vidco Dut'ing the pursuit, Officer Spencer had called into her lispatcher, rrporting Ihc Ilera, which v olatn« chsc.ove.ry rule, even though thn state argiied that defen- Gcense plate number she had read t7om the sedau and prnviding' a tlevt!y iptiun of )t offered onlv speeulation and could not siiow that videotape vvould have the driver as a"wliite male dtiver; looked like he was in ]tis late 40's, eal ly een his innacer.ce: the state's reiusal prevented clefendant fiom enhancing She later described him as slight or frail mrci mearing glasses. e, which was unclear, and showing its materiality to his defense, and the f {94} The license plate number reported by Officer Spencer was disrncereri to te's argurient proved nothing but that defendant had conducted no experiment be registered to a leasing cumpany, ancl the V1N associated with that licenso I., with one judge.: ' a c:deotape that he did not have. (Per Batchelde-, regi9tzation was fisther traced to one Joe Moll:•ic, who explained to police that lie cmring in judgment.) Rules Crim.Proe, Rule 16. had not been in Hudson that night, had never been to Kepner's Tavern, and that e VIN in question was for a Ford Esplorer SUV. Furthermore , Mollric is 6'1" tall and 287 lbs. Mollric was eliminated as a suspect. tichard D. Fisenberg,f'or appellant. tichard S. Pasay, Assisttint Prosecuting Attorney, for appellee. {¶ 5} Officer Spencer assunied that the se(lan liad originally turned onto Route 303 from a parking lot near Kepner's Tavern, so she returned to that location and spoke with the bartender and some customers•. Upon hearing a physical descrip- ;ATCHELUNR, Judge. -tioq the bartender implicated appellant, Edward A. South.. Several days later, 1! 1} Appellant, Edward A. South, appeals from a conviction in tne Summit! tkle Hudson Police anived at South's.home, Officer Speicer identified him as tho xnty Court of Common Pleas. We reverse. driver of the sedan, and the officers arrested him. Upon arrival, the officers discovered South driving his ouii car, an Oldsmobile. Neither the reported (icense plate I nor the white Dodge Intrepid sedan was ever located. {1f 6} For the events on the night of November 23 , 2003 , 9 2} At approximately 215 a.m. on November 23, 2003, Hudson Police Officei South ccas charged th one count of failure to comply with the order or signal of a police officer in rina Spencer was parked in a police cruiser along State Route 303 in Hudsonf olation of R.C_ 2921331(B), a third-degree felony; one count of driving under nitoring traffic. She observed a white, four-door Dodge Intrepid sedan turri suspension in violation of R.C. 4507.02, a first-degree o westhoind 303 without making a complete stop at the stop sign. As thi i^; misdemeanor; and one eount of failure to obey a stop sign in violation an passed her location, she observed the driver to be an older white maleand of R.C. 4511.12, aminor misdemeanor. South pleacled not guilty and sought discovei.y uuder Crim.R. 16, nis speed at 36 mph in a 25 mph zone . Of'Picer Spencer activated he istered sp.ecifically requesting, alnong other tliings, a copy of the police-enxiser video. iser's lights and siren and began putsuit of the sedan along Route 303. Shor yVhen the state refused to provide the discovery, South movecl to compel activated the cruiser's dashboard camera almost iminediately. The centra$ 'discovery, which the court denied. Eventually, the case uroceecled to ti:al. ie ir, this appeal is the videotape recording from this camera, {9 7} The case was tried to a jury, which returned guilty verdicts on all three f 3} According to the video, after a little more than two minutes of pursuil (cqunts. South filed ainotion to set aside the verciict, which cvas denie(l. sedan eventually pullecl over, and Officer Spencer activated the cruiseti T.hereafter, the court sentenced him accorclingly. South tintelNappe.ailed, assert- tlight. Because of the extreme glare froin the cruiser's lights, as well as from ngthree assignments ^ of error for reviev, whicli have Iieen consolidated to sedan's rear lights, neither tlle license plate number nor a clear picture of thE- acilitate the analysis. , ^er is evident in ihe video . As the sedan idled Off2cer Spencer exitedheri rear of the sedan, erossing;in} lser and walked sloa-iv to the passenger-side II nt of the cruiser, and apparently looking at the driver Chrough the sedan's rea First Assignment of Error ^ dow. As she reached che rear of the sedan and began to circle back around Officer Spencer hurried driver's side, the se dan suddenly accelerated away. ,Appellant was denied due process by the state's refusing to compl ,y ,,ftl:. Criminal Rule 16 by failiug to produce tequested discoveiy, k to her car, radioed foixassistance, and pursued the sedan west on Route 3M',d STATE v. L^pUTFI 12(i STeYPE v. SOUTlI 127
Seconc: Assigmnent uf h,rror SO Lh';lt t1lA StAtQ 1 p,p(^ pOt "}O,,i.^lwllh prov^r^e° i^te^or„n, ^,F ,,,-,1 - I ..-;A_„__. ctiscrucxed ]n GrInLELL 16[B)lll(e). llecsutse, ^wu fa^ur rhe plain lungu.a The trial court crre.c'1 in denyn,q appellamt's tho5nn to cmnpel , e o(lhi. rules, we cannot agree.
Thud Assignment of Erinr {1111} South made a timelv, ra-ritten reqnest to the st.nte seei:ieg discnver,t^ of The trial cutut errecl in clenvina appeflant" motton to set aside ver(lict. numeraus materials, inelud9ng a specific request 1'or a. cohy oi' Che pohcc crui.^er'S dashboard videotape. 'Phe si.;^tte o£tered open-file discocerl^, ^ch9eh apowed Aouth {F 8} 8outh asserts that the state wrongfully refused to provide discoverable to review the file tnatenals, bair refused to prmide. a copv of the videotape. Upon materials, that the trial court erred in t-ef'using to compel the sLate to produce South's motion to compel, the trial cout-t concluded that production was not ^hose materials, and that it was demonstrated at tx:al that the refiisal of eertain necessary because open-file discovci;y waG.suff'icient The cas-c pviceerlcd Lo trial. materials prior to trial severely prejudiced his defense. We agree. and South argues that he was prejudiced by the inability to obtain the evidence {4 9} ln each assigntnent of error, South argues in effect the sanle point: that prior to trial. Specifically, South argues that had he been provided a c opy o f th e lte was clenied the right to certain discovery rlue to a misinterpretation or videotape, he miglxt have been able to enltance it and rlisprove the state's case misapplication of Crim.R. 16, under the guise of open-file discovery. We begin, >?under either of two possibitities. First, he suggests that Officer Spencer misread ^- th wlth the aziom: e license plate number fiom the sedan and Lhat if the actua] license plate It is emphatically the province and duty of the judicial department to say what number could be obtained from the videotape, then the sedan could be located the law is. Those who apply the rule to particular cases, must of necessity and the true culprit ideut.ified. Alternatively, enhancement of the v-ideo mi ght expotmn and interpret that rule. If two laws conflict with each other, the ;.providea better picture of the driver and thereby show that someon e oth er than iSouth was driving the sedan. courts inust decide on ihe operation of each. .[2] {ll 12} Because Nlarbary u Madisou (1803), 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60. Thus, we the refusal to provide South with a copy of the videotape are called upon to consider the appGcation and effect of a Rule of Criminal prevented him from enhancing the tape and thereby demonstrating its materiali- Raceway Video 'tv to his defense, we cannot conelude that the refusal to provide a copy of the Procedure and proceed mider a de novo standard of review. See (1997), 118 Ohio App.3d tape was itnnxaterial. TherePore, we cannot conclude that open-file discovery , & Book.s7iop. Lna v. Clevel.and Bd. of Zoiiing Appeals in 264, 269, 692 N.E.2d 656 ("On matters of Iaw-choice, interpretation, or appfira- this eircumst2nce, was sufflcienily protective of South's constitutional right of accesso t id Th Sd Di tion-our revievi is, of course, plenary"). See, also, Sta.te v. Linscott (Aug. 22; evence.eeconstrict Court of Appeals has opined in a sitnilar ease: 1995),.. 4th Dist Nos 94CA1633 and 94CA1634, at 6, 1995 WL 500512 ( "The state maintains that this matter 'should have been resolved pursuant to the Crirninal Pliioce ctvsers are equipped with videotape cameras in order to make a record to.<.:: oef [th] events Rules of Yrocedure that govern discovery.' We conduct a de novo review for any later prosecution. On that basis, and pursuant to Crim.R. 16, they are ava.ilable for determine the applicable law that governs cGscovexy"). aese by an a.ccused as they are}br use bly the Statein such proceedings. [1] { 9 10 } CrimR.. 16(A) provides: "Upon written request each pac'ty shall;; fmphasis added.) State v. Fuller forthvr,th provide the discovery herein allowed." This includes providing coptes,; (Apr. 26, 2002), 2nd Dist. No. 18994 200L WL "A defen ' %5,7671. In the presentstate intencled case, to and did the in fact , use the material evidence within the state's cusiody. Crim.R. 16(B)(1)(c). of 152.i ^deotape at trial- Moreover, the state eandidly admitted that it had attempted dant has a constitr.rtional guarantee to access to evidence." State v. Benson, he Ohia; ` teto; veoape,uaaed. enhance thidt bt If hd these fil videota es are truly Ohio App.3d 495, 2003-0.^io-1944, 788 N.E.2d 693, at 9 10. Moreover, t p available Supeme Court has beenexplicit, stating that "the rule does not provide for what''^ to'khe defendant the sanie "as they are for use by the State," then Lhe defendant sic.) State ex^ hnust be afforded an opportunity at least equal to that which the state woulcl have is of'ten called TnP.; 'complete' or'open file discovery( Emphasis 2 enhance the videotape in preparation of trial. South was afforcled no such , 70 Ohio St 3d 420, 428, 639 N.E..d 83 Thus' rel Steekman u Jackson (1994) op.p.artunity, despite his requests. , a criminal defendant has no right to open 19e imder prevailing state law ht under Summit County Local Rules. Sees L3] {913} The state contends that even if its refusal to provide ihe videotal,re disdovery. but does have that rig so argues the state, the 6estowal of open -file discovery 's±. -...--. ^^w. ^.a . ueu so snow rnaG he wa9 Loc.R 2 l 06 However, servee to geld the plain meamng of Crim R 16`., mejudiced but rather, by the refusal as he offesonl,y speculation and camiot cletnunstrate Ilot %v;lol;y' benevolent, 128 sTATE v- 5oU'rti a'r:^'rt. ,. tiotrrll Cileus 162 11h1o APV3d 123, 2005-Ilh'w-2152 Ci,cnn 152 f1M1in Alll,^itl 113, _0115-nl,ii, 21i2 i2S1 dlat t.he tape ccnald h,lve Ilroven his ir,lmcame dltr olu' initial ber,%ilderment, {T:15} While M°e favur t-he Aliec-m-Wnndueltind vice qUestiOn v\heLhCr tlle SRtte n ra[ . iuns h adhauu:ig Chl^ eVice-nl vvo,d^rlav,d vouftroulcu w•nh sinnltr UI•ettlat l t-ouing lilr< nnolnd ih¢ cunilultllllywni allegorp of ,loseph Hel et s Catch 22. ar,gi unent. The tauWogy is ton om`:o.ls: thc deieud
A Is easy to perceive the unfairness of requiring the defendant to prove CAaa, Presiding Judge, dissenting. prejudice to the same degree of certainty whether or not he was permitted ta {91911 respectfully dissent. Although not mentioned in the majoiity opinion, rour d^re the jury. Indeed portions of the majoritv opinion illustrate the the first issue we as an appellate court must examine is whether the trial court Catch ?2 the holding vvill creat2. '''However, a defendant can hardly be abused its discretion in denying appellant's lnotion to cornpel. The granting or vair dtire expected to prove that he was prejudiced through the use of adeqnate denial of motions to compel discovel-y are reviewed under an abuse-of-discretion dire. %3he.n he has been denied all right to conduct voir standard. State ex rel. The V Cos. v. MarsFcall ( 1998), 81 Ohio St.3d 467, 469, (i92 4Vel(e a, Mvrln:y (C.A.4, 1957), 831 F.2d 468, 481 (Murnaghan, J., dissenting). N.E.2d 198. As I believe the trial court did not abuse its disct'-etion in refusing to Thus, we r,re left to ponder this Cateh-22 of how South would so conclusively order the state to provide a copy of the dashcam video, I would affirm. prove that an enhanced version of the tape would establish his innocence without {920} Although appellant was provided with complete open-`ile discovery having access to the tape or an opportunity to attempt the anticipated enhance- pursuant to Loc.R. 21.06, appellant was not given copies of items he reqnested. ment If the state's rebuttal is to call for testimony by a video-enhancement However, he was able to view, review, inspect, and take notes pursuant to the expert, ther, its argument against speculation is entirely undone, for an expert open-file discovery custom followed in Summit County. Appellant filed a motion opinion is still just thaG-an opini.on-which is no more than speculation all to compel to obtain copies of the items he requested. The trial court denied this dressed up in a fancy suitcoat. Moreover, the state irnplicitly admitted the nrotion to compel based on the fact t,hat appellant had been able to view po^.ibilitg that the video might be enhanced when it conducted its own experi- everything in the state's file including the videotape and based on case law from mentationtowud that end, and we are confident that had the result of that this court approving of the open-file discovery procedure. Nonetheless, despite a espcrimenf. been to the benefit of the state's case, it would have offered the local rule providing for open-file discovery and case law frotn this com", approving enhanced version at trial. Thus, we remain unpersuaded by the states conten- it, the majority concludes that the trial court erred in denving the motion to tion that South failed to show preju(lice. compel. {4 16} Finalh•, the Ohio Supreine Court has emphasized Crim.R. 16's mandato- {921} Regulation of discoverv is a matter w-ithimthe sound cliset-etion of'the ty nature, and explained, "The philosophy of the Criminal Rules is to remove the trial court. State v. Lov.yla, 9th Dist- No. 21547, 2004-Ohio-596, 2004 WL 239917, v. Howard (1978), 56 Ohio 3t2d element of games•manship from a tria>J." Stete at 111. This regulation will not be disturbed by a revieving coui2 absent an 's discovery" 32fl, 333, 10 0.0.8d 448, 383 N^.E.'2d 9,12. The state's angst over South abuse of discretion. Id. The term "abuse of disesetion" implies nrore than an appear to be requests and the ensuing refusal to provide a copy of the videotape erior of law or judgment; it implies that the couit's attitude is unreasonable, the type of gamesmanship that the Supreme Court admonished against in; arbitrary, or unconscionable. State v. Adams (1980). 62 Ohio St.2d 151, 157, 16 Ff oic¢7d. 0.0.3d 169, 404 N.E:2d 144. When applying the abuse-of-discretion standmd, an {i l7} We couclude that the statz shoul(I have provided the videotape, that the appellate court n•,ay not substitute its judgment for that of the trial court. Pois.s com-t ;hnuld have compelled the production of the videotape if necessary, and2 v..Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748. 1 cannot that the utihire lo do so was per se Prejudicial to Sonth- South's assignments oi-'. find that the trial court abused it,s discretion here. error are we.ll tail {929} In Sta.te v. Io.cona (Mar. 15, 2000), 9th Dist. No. 2891-M, 2000 WL 2', 4911. this court held: Potentially exculpatory evidence subject to disclosure under Crim.R- 16 is material "only if there is a reasonable probability that, had the evidence been: disclosed Co the defense, the result of the proceeding would have been^.'. difTerent. " Stote v. JolznstoTt (198S), 39 Ohio St.3d 48 [529 N.E.2d 898], COURIE, Appellant, Keene, [ ( 1998) ] 81 Ohio p aragraph five of the syllabus. See, also, State v. . .2d 246] (concluding that the definition of materCaGty St.Sd (G46] ah Ci50 [693 N E provided by Brady is also applicable to Crim.R. 16[B1[1][t7 ). A reasonable^`. ALCOA et al., Appellees. in the . :S probability emisists of "a prob ability sufficient to undermine confidence [Cite as Couin v. ALCOA, 8981, at paragraph;,rr 162 Ohio Aop.5d 133, 2005-Ohio-3483-] outcome" State o. Johitstar4 39 Ohio St.3d 48 [529 N.E.2d Com't of Appeals of Ohio, five of the syllabus. EigBth District, Cuyalwga County. {9 26} Appellant has not demonstrated prejudice. Appellant says he might be N o. 85285. able to hire an expeet who might, be able to enhance the videotape. The: cideotapewas disclosed to appellant. He was able to view it before trial. Itwas Decided July 7, 2005. hicimabcnt upon appellant to present somc evidence to the trial court that the' ;^Background: Employee brought action against einployer and empluyer's hmna e cuuld be enhanced. Appellant coulcl have secured an affidavit front an vicleotap i^g'sourve supervisor, alieging claims of reverse race cliserimination, hostile wor espel t attesting tn the fact that the video could be euhanced so as to be able to enqironment, intent,iontil intetferuece mdth employment, and intentional inflic.tion c riev, the driver ancUm- the license plate. All we have is speculation. In } einotional distress. Case was renoveci to federal court but was la ter semanded C acldie.ssin,g a simi]ar arguuieut undetan inelfective-assistance-of-cum3sel clalm. Fstate court The Court of Coinlnon Pleas, Cuyahoga County, No. CV-50S466, grante, die bburLh District Court of Appeals heldi -defendents' motion fox sunimal-y judgment. Employee appealed. L;ecaase no "enhaneerl" vcrsion of thc videotape current7y exists, it is clltncult ; $oldings: The Court of'Appeals, Ann Dyke. P.J., held that: ' Ibr us to perceive or to speCUl:r^ huw the tape. wou;dhdve aided D vlss i ;(1) discipline iinposed on employee did not amount to revelse race disc:riminatiun defunse. We note that cou rts h,,va r'epeatudly held that. imder the Strrick2and5 '(2)supervisor ^:r, prejnce ^,^11 not be implir^d , Without solno zi.ffirmative demonstra: could not be held persmtzll}liahle. fur dicriminaiion; = ton thw. an enhtmc.e.d versiou ul' the videotajla shovs a vehicle passing the bus mi B)`eri,ployer and supeivlsor clid nnt create hoatile work euvtrnnn3ont by 11 v racia and itltottt ,I de:mitive nho„'inS tlrat thc vehiclc wus positioned in Davis's lana -s^ =` harassnent'.; G":.`i3i1;:'«, A C :.: d1-°^ `f2SP-4 S LL4TiCGYr o"^; Uablk) J ','1 !W„l4gr;.;^!,^.^^,^.^ 1-1, ; z'd^, 868 STATE v. ARMSTEAD STATE v. ARMSTEAD (2000), 138 Ohio App.3d 866 869 Cite>s Citeas (2000), 138 Ohin App.3d 866 7. Criminal Law c>274(1, 9) to testify in a limited capacity regarding the telephone conversation overheard by When a defendant files a pre-sentencing motion to withdraw her guilty plea, the undercover narcotics.officer. The trial court ruled that it was excluding the witnesses the trial court is charged with the responsibility of evaluating the motivations the because defense counsel had failed to provide reciprocal discovery to state behind the guilty plea, and the appellate court wiih reviewing the record of the pursuant to Crim.R. 16. A recess was taken and, that same day, April hearing; the good faith, credibility, and weight of appellant's assertions in support 8, 1999, appellant entered a plea of guilty to both counts of the indictment without of the motion are matters to be resolved by the trial court. the specification. The trial court set a sentencing dateof April 29, 1999. On April 21, 1999, appellant filed a motion to withdraw her guilty plea. The Laura M Rayce, state filed a memorandum contra on Mav 19 , 1999. Ron O'Brien, Franklin County Prosecuting Attorney, and The trial court denied the Assistant Prosecuting Attorney, for appellee. motion without conducting a hearing on May 24, 1999. On June 10, 1999, appellant was sentenced to eight years on count one and four vears on count two Parry, for appellant. Richard A. with the sentences to run concurrently. On Februarv 16, 2000, this court granted appellant's mot on for leave to f le a LE.znaus, Judge. delayed appeal and appointed counsel. Appellant assigns the followin , g as error: Defendant-appellant, Macia Armstead, appeals from the NIay 24 1999 decision ; "I. The defendant-appellant was ineffectivel y represented by counsel and, and entry of the Franklin Countv Court of Common Pleas denying her motion to t ,-therefore, denied her constitutionally guaranteed rights under the Sixth and Fourteenth Amen ovithdraw her guilty plea. For the reasons that follow, we reverse and remand ;'! dments of the United States. Constitution and her rights under the matter for the trial court to conduct a hearing on appellant's motion `ron the Ohio Constituti b ecause her trial counsel did not properly comply with the ., . eciprocal discovery rul On August 14, 1997, appellant was indicted on two counts of possesston of '. e. cocaine in violation of R.C. 2925.11. The first count carried a major drug,% "II. The trial court erred in denying the defendant-appellant's motion to offender specification pursuant to R.C. 2941.1410. A jury trial began on Apri1,7, ^ ithdraw her guilty pl ea to the charges against her and to all ow her to proceed 1999. orward on all counts against her. The state's witnesses testified that, on August 7, 1997, a police informant told -".i -"III. Defendant-appellant did not voluntaril y enter a guilty plea because the them that a person matching appellant's description would be transporting R, defendant-appellant was surprised when she discovered at trial th at her wifr Using that information, an undercover narcotics officer nesses were not going to be permitted to testify in her b large quantSty of drugs. ehalf and she was unable set up surveillance at the SuperAmerica gas station at the corner of Maple'. to present her defense." " Canyon Drive and State Route 161 in Columbus, Ohio. The officer overheard As our resolution of appellant's second assignment of error aff ects the remain- appellant making a telephone call stating, "'Hurry up, I got it, it's hot up here,', ng.analysis, we will address this argument frst. Appellant argues that she was or words to that effect. not afforded a hearing on the motion to withdraw her guilty plea, wldch would The undercover officer then called a marked cruiser, and uniformed Columbus? 7havepermitted her to present all of her arguments. police officers stopped appellant's vehicle for a traffic violation, as her vehicle ha«d I1] The state has cited , Sta.te v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, no rear ]ieense plate light. Officer Martin Kestner testified that on the flooi ' .for the proposition that a defendant is not entitled to an evidenti board in front of the driver's seat, he saw a "Kroger-style plastic grocery bag.', ary hearing on ev,ery motion to withdraw a guilty plea. However, in the context of a presentence with two plastic bags, Ziploc bags inside of that with-inside of that I saw,a; inotion to withdraw a gvi cookie-crack cocaine, and a large amount of powder cocaine." One bag, coef^ lty plea, Ohio Supreme Court syllabus law is cleara th [a] trial court must conduct a hearing to determine whether there is - tained 178.9 grams of crack cocaine, and the other bag contained 252.4 grams^z reasonat blearid legitimate basis for the withdrawal of the plea." Id. at paragraph one of , powder cocaine. he syllabus See also, State v. Smith , (June 1, 2000), Franklin App. No. 99AP- After the state had presented four police witnesses, appellant was mfo ^ t6, uiireported 2000 WL 704953 ( case reversed and remanded to allow the trial that the trial court was going to exclude two of her witnesses. Appellanf?^ urtto conduct a hearing on motion to withdraw guilty plea). Thus, it was error counsel stated that the witnesses were appellant's sisters, and they were expCc^el; or tlietrial court to deny appellant's motion without first conducting a hearing. .4. ^, . . 870 STATE v. ARMSTEAD STATE v. ARMSTEAD ( 871 Citeas (20OU). 138 Ohio App.3d 866 Citeas 200U), 138 Ohio App.3d 866 In her first and third assignmenis of error, appellant contends that she was on a prediction whether the evidence likely would have changed the outcome of deprived of her right to effective assistance of counsel according to the standards the trial. HilL supra, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210-211. (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 set forth in Strickland v. Washington L.Ed.2d 074. In particular, appellant contends that her trial counsel was [5, 6] Here, there is evidence in the record that, but for the exclusion of her witnesses, appellant would have continued with her trial. On the other hand, it is ineffective because he failed to provide the names of two witnesses he intended to call at trial. Appellant had subpoenaed three witnesses in her case. The first not clear from the record what, if any, effect appellant's sisters' testimony would witness was the state's informant. The other two witnesses, appellant's sisters, have had on the outcome of the trial. In her opening statement, appellant's ed that she would be unable were precluded from testifying. Af'ter being inform counsel asserted the defense of entrapment. The defense of entrapment is to call her sisters as witnesses, appellant elected to enter a guilty plea indicatmg, established where the criminal design originates with the officials of the govern- that she had "no choice," that she was being "railroaded," and that " [e]verything;_.;: ment, and that they implant in the mind of an innocent person the disposition to . Appellant also that I had as part of my defense all of a sudden was gone " commit the alleged offense and induce its commission in order to prosecute. stated, "I was stupid, but the only thing I was looking at was trying t.o get it State v. Doran (1983), 5 Ohio St.3d 187, 5 OBR 404, 449 N.E.2d 1295, paragraph one of the syllabus. With away from my children." respect to the excluded witnesses, defense counsel merely indicated that appellant's sisters "would be testifying in a limited capacity The state concedes that appellant's trial counsel was deficient in failing to, disclose the names of the witnesses, particularly because the witnesses had been with regard to the telephone conversation that was going on on the evening of subpoenaed several times to appear. However, the state contends that appellant ; 817/97 as it relates to what OfficerGauthney tesiified to." cannot show that there was a reasonable probability that the witnesses ' testimony [7] The trial court is charged with the responsibility of evaluating the would have changed the outcome of the trial. motivations behind the guilty plea, and the appellate court with reviewing the for evaluating claims of [2] The twopart standard adopted in Strickland record of the hearing. Xie, , , . . counsels;^t supra at 525 584 N E 2d at 718. The good faith, assistance of counsel requiring that the defendant show that ineffective o.,d fAat}hem.r.'. icredibility, and weight of appellant's assertions in support of the motion are represeui,awo.. io., u^.^.. u•• ^-e--_ _ ___. _ ... atters to be resolved by the trial court. Id. Therefore, we must remand the is a reasonable probabihty that, but for counsel's unprofessional errors, the res0 matter in order for the trial court to conduct a hearing on appellant's motion to of the proceeding would have been different, applies to guilty plea challengesf withdraw her guilty plea. based on ineffective assistance of counsel. However, in the context of"guilty?; pleas, the prejudice element focuses on whether counsel's constitutionally ineffec "s Based on the foregoing, appellant's second assignment of error is overruled in rt'Ei Gve performance affected the outcome of the plea process. Hzll V. Lockha part and sustained in part with the matter to be remanded for a hearing, the first (1985), 474 U.S. 52, 59, 106 5.Ct. 366, 370, 88 L.Ed.2d 203, 210-211. and third assignments of error are overruled as moot , and the judgment of ihe Franklin County Court of Common Pleas is reversed and remanded with [3,41 A guilty plea waives ihe right to claim ineffective assistance of cqunsel„^, instractions. except to the extent that the defects complained of caused the plea to be less than; (1992), 64 Ohio St.3d 269, 269 599.'1 knowing and voluntary. See State v. Spates Judgment reversed and N.E .2d 351 , 351, paragraph two of the syllabus ("a defendant's plea of jguTlty^ ,remanded with instructions. entered into knowingly, intelligently and voluntarily after a prelumnary.hearmgr,,^^, r¢-' waives def'endant's right to challenge a claimeddeprivation of the constituhonal ") Ir ^ right to counsel at the preliminary hearing stage of a criniinal proceeding 1`rACx and DESaLSx, JJ., concur. order to satisfy the second, or "prejudice;" requirement, the defendant musi sho}i;, that there is a reasonable probability that, but for counsel's errors, he would ndf supra, ded guilty and would have insisted on going to trial. H2i have plea at 524 ao U.S. at 52-53, 106 B.Ct. at 367, 88 L.Ed.2d at 210-211; Xie, suprat CA98^1,6-13 , N.E.2d at 717-718; State v. Davis (Aug. 7, 2000), Butler App. No. in turn, will depend in large pa^ unreported, 2000 WL 1086723. This assessment ).2l^ vcr -'la® eM isax=ri-r^_',';u^r: r 396 COURT OF APPEALS [14 Ohio App. 3d 14 Ohio App. 3d] STATE v. DIXON 3^ THE STATE oF OHIo, APPELLANT, v, p.m. that day or face a dismissal with discovery order, the court nolled the On this basis, the court granted tl DI%ON ET AL., APPELLEES. prejudice of theirpase. case with prejudice. nolle, but prevented the state from evi [Cite as State v. Dixon (1984), The following morning, the court in- Initially, we note that neither Crim. reindicting. This procedure is a co: 14 Ohio App. 3d 396.1 quired whether the state had complie(i R. 48(A) nor 48(B) provides for a tradiction in terms. A noUe prosequi as ordered. Defense counsel stated that dismissal with prejudice. Hence, we con- merely a withdrawal of the indictmen Criminal Zaw - Dismissal or nolle the prosecution had in essence only clude that a dismissal or nolle with prej- which if done before jeopardy has a prosequi with prejudice rnay only be copied the indictments into the bill of udice pursuant to Crim. R. 48(A), as in tached, does not prohibit reindictmen entered where defendant's constitu- particulars and had not listed all its Crim. R. 48(B), may only be entered State v. Eberhardt (1978), 56 Ohio Ap, tional or statutory rights have been evidence and witnesses. The state then where there is a deprivation of adefen- 2d 193 [10 0.0.3d 197]. Hence, we co: violated so as to bar further prosecu- requested that the case be nolled due to dant's constitutional or statutory rights, clude that the trial court abused i hon - Crtim. R. 48(A). insufficient evidence. Defense counsel the violation of which would, in and of discretion in granting the prosecutor 01ar 3d Cominal Law 55 1090, 1094. asked that this be done with prejudice, itself, bar further prosecution. Sutton, request for- a nolle prosequi and the 1. A dismissal or nollewith prejudice but did not object to the case being supra. preventing reindictment. nolled. Thereafter, the court nolled the pursuant to Crim. R. 48(A) may on- In the instant case we find no such Accordingly, the assignment of e ly be entered where there is a case with prejudice, based on the state's deprivation. Although appellees are en- ror is sustained. deprivation of a defendant's con- failure to comply with discovery. titled to discovery under Crim. R. 16, Judgment is reversed and remande stitutiohal or statutory rights, the The state appeals that judgment they are,required to follow the two-step with instructions that this case I violation of which would, in and of citing one assignment of error. process set out by this courtin State v. nolled, and that the language "with pre itself, bar further prosecution. "Assignment of Error No. I Hicks (1976), 48 Oldo App. 2d 135 [2 udice" be deleted. 0.0.3d 107]. Appellees admittedly failed 2. A nolle prosequi is merely a with- "I. Where the state requests a to follow this procedure by not filing a drawal of the indictment, which if nolle pursuant to Criminal Rule 48(A) Jvdgrn,ent reversed an timely motion to compel discovery with done before jeopardy has attached, on the grounds of insufficiency of proof, cause remande( the court after their first request went does not prohibit reindictment. the trial court is without authority to unanswered. nollie [sic] the case with prejudice." PRYATEL and CORRIGAN, JJ., Cot (No. 47009-Decided March 26, 1984.) Nevertheless, the court sanetioned Under Crim. R. 48(B)' the court cur. the state by accepting the APPEAL: Court of Appeals for may not dismiss an indictment with prej- nolle, but with prejudice. Although Crim. R. 16(E)(3)e Cuyahoga County. udice unless it is apparent that the DAY, C.J., dissents. allows a court to enter sanctions against defendant has been denied either a con- Mr. John T. Corrigan, prosecuting a noncomplying party, we find that in stitutional or statutory right, the viola- DAY, C.J., dissenting. Respectfull, attorney, for appellant. dismissing the case with prejudice (the tion of which would, in itself, bar prose- I dissent and add a few words of e; Mr. Edward Sullivan and Mr. harshest of all sanctions) under the cir- cution. State v. Sutton (1979), 64 Ohio planation. Timothy Catner, for appellees. cumstances at bar, the trial court abused App. 2d 105 [18 0.0.3d 83]. Moreover, First, I have no quarrelwith th its discretion. Moreover, the court did Per Curtiam. Defendants, Leroy where the state's motion for a nolle authorities cited by the majority. not independently analyze what had Dixon, Jr. and April East, were indicted prosequi meets the good cause and open simply deem them irrelevant. For the been produced by the state through for eight counts of forgery, eight counts court requirements of Crim. R. 48(A),2 it do not address the limits of the court discovery. Instead, the court relied upon of uttering, one count of grand theft and should be granted. Sutton, supra. authority in managing the trial prc the alleged deficiencies pointed out by one count of receiving stolen property. In the instant case the state moved ceedings. A court order was disobeye defense counsel. Additionally, the pros- On the day scheduled for trial, defense to nolle the indictment for insufficient and it had inherent authority to enforc ecutor stated that he attempted to com- counsel informed the court that the state evidence. The court granted this re- its mandate in any manner short of a ply with the court's order, but while do- had not fully complied with his request quest, finding that insufficient evidence abuse of discretion. ing so realized that he had insufficient for discovery. The court then ordered was good cause. However, in an ap- In this case the trial court was in evidence to prove his case and that fur- the state to grant discoverv and submit parent attempt to punish the state for position to assess the prosecution ther investigation would be necessary. a more detailed bill of particulars by 4:00 not adequately complying with its discovery failings and to fashion a prol ' Crim. R 48(A)reads: ' Crim. R. 48(B) reads: Crim. R. 16(E)(3) reads: may order such party to permit the discover "(B) Dismissal by the court. If the court "(A) Dismissal by the state. The state "Failure to comply. If at any time during or inspection, grant a continuance, or pr, dismisses an in- over ohjection of tce state may by leave of court and in open eourt file the course of the proceedings ic is brought to hibit the party :rom introducing in evidenr dictment, i:.fonmation, or complaint, it shall an entry of dismissal of an indictment, infor- the attention of the court that a party has the material not disclosed, ct it may malH mation, or comolaint and the proeecution stzte on the record its findings of fact and failed to comply with this rule or ivith an such other order as it deems just under tF reasons for che GismissaC' ahall thereupon terminate:" order issued pursuant to this rule, the court oircumstances." 398 COURT OF APPEALS (140hioApp.3d 14 Ohio App. 3d] LANSINGER v. UNITED PETROLEUM 39 er sanction, cf. Crim. R. 16(E)(3). in addition to the other requisites of site at a cost of $65,000, but the well was farm-out agreement, Pennzoil did iv Moreover, a presumptSon of regularity a cause of action, that a remedy at never hydraulically fractured, no equip- assign the leases to appellant. Appellin attended the trial court's action. Unless law is lacking or that such remedies ment necessary for production was ever was over six weeks late in drilling ti we are prepared to attempt to run trials as may be availed by action at law put into place. In 1979, appellant was test well, no additional wells were subs, from afar, trial courts must be allowed are inadequate to afford relief. adjudicated as bankrupt. In May 1980, a quently drilled, and the well drilled t considerable leeway in vindicating their (No. 1348-Decided April 2, 1984.) plan of reorganization was confirmed appellant was never completed so that authority. From all that appears, vin- and appellant's assets were transferred was capable of producing oil and gas. dication was the program here. I would APPEAL; Court of Appeals for to the present owners. In 1981, ap- find it so. I would further find that the Portage County. Accordingly, appellant obtained r pellees demanded PennzoIl surrender leasehold interest in appellees' propert, trial court acted within thhe limits of its the oil and gas leases which, in July discretion and affirm. Mr. Gerald B. Graham, for ap- The leasehold interest remained i pellees. 1981, was done by Pennzoil. Pennzoil. Since the first term of ft Mr. W. Dallas Woodall, for ap- Appellees filed an action against ap- lease had expired and there.was no oil c oellant United Petroleum Corp. pellant, Pennzoil, and Energy Re- gas being produced, appellees' leases 1 sources, Ltd., seeking a declaratory Pennzoil expired and Pennzoil properl Coox, P.J. On May 27, 1971, ap- judgment that the companies had no in- surrendered theleases. pellees, Mamie Lansinger, Marvin and terest in appellees' property. Appellees Appellant contends the court erre LANBINGER ET AL., APPELLEES, v. Birgit Lansinger, Lucille and Paul May, later amended their complaint to include in not giving it a reasonable time i jJNITED PETROLEUM CqRPORATION and Margaret and BernardPaul, owners a claim for property damage and a claim which to complete its operations sun ET AL., APPELLeWTB. of eighty-eight acres of farmland in of abandonment of certain personal they had already incurred considerab Freedom Township, executed oil and property, but said issues are not in- [Cite as Lansinger v. United expenses and because: completion wou gas leases with Pennzoil Comparry, f.k.a. volved in the instant appeal. The case Petroleum Corp. (1984), be beneficial both to appellant and aj Pennzoil United, Inc. The primary term was consolidated with Farrell v. Penn- 14 Ohio App. 3d 398.] pellees. of the lease was for ten years, and the zoil Company, case No. 82 CV 0272, for Real property - Oil and gas lease - second term was for as long as oil or gas trial. Upon the trial of the equitable However, in the instant cause, aj Ten- year term with second term for was produced. issues, the court quieted title in al] pellant drilled the test well in July 19 i as long as oil or gas is produced - Pennzoil did not exercise its right to respects in the properties in favor of ap- but had done nothing in the subsequei First term of lease expires and rw drill under the lease but made "delay pellees. The court found there was no four years to complete the well for pri oii or gus produced - Property rental payments" as provided for in the just cause for delay. duction purposes. Appellant already ha ovrners bring dec6aratory paGdgment lease. Appellant has appealed the judg- had a reasonable time to make the we action to quiet title - Decree In February 1977, Pennzoil entered ment of the trial court and has filed the operational. into a"farmout" agreement with ap o'uietting title accorded, whzn. following four assignments of error: In the farm-out agreement, al pellant, United Petroleum Corporation, "1. The trial court erred to the pellant, as one of the conditions to ha, O.Jur 3d Ejectment etc. $§ 141, 142. which was an agreement by Pennzoil to prejudice of appellant in determining ing Pennzoil assign the gas and oil leasE 1. When real property owners lease assign its oil and gas driâ ing rights on that Pennzoil surrendered the lease. to it, was to complete a well capable c their land to an oil company for a said property if appellant commenced "2. The trial court erred to United producing oil and/or gas in marketab: primary term of ten years and a sec- drilling a test well on or before May 24, Petroleum's prejudice by holding that quantities. Appellant drilled a well bl ond term for as long as oil or gas is 1977, supplied certain reports to Penn- the lease expired at the end of the had not produced any oil or gas. I produced and at the end of ten zoil, including a report on completion primary term. Murdock-West Co. v. Logan (1904), E years the company has not drilled a progress, drilled other wells within nine- "3. The trial court erred to ap- Ohio St. 514, the court, faced wil well which was producing oil or gas ty days after completior, of the first well, pellant's prejudice by failing to grant a similar facts, at 519-520, stated: as required by the lease and sur- and completed a well capable of produc- reasonable extension of time in which to "" ' In order to continue the renders the lease to the landowner, ing oil and/or gas in marketable quan- complete drilling and begin production. lease beyond the stipulated time it w: a trial court does not err in quieting tities. Only then, under the agreement, "4. The court below erred to ap- necessary for the lessees to find oil title when the landowners seek a was appellant entitled to an assignment pellant's prejudice in granting equitable paying quantities. For this purpose declaratory judgment that the oil of the oil and gas lease on £ne subject relief without ascertaining the availabili was not sufficient to complete a WE company and a potentiai assignee of property from Pennzoil. ty of a legal remedy." having some indications of oil, or a we the lease have no interesL in their Later in 1977, appellant entered ap- The assigned errors are without which might be developed into a we land. pellees' property to begin drilling, in- merit. producing oil in payable quantities, bi 2. A decree quieting title may be ac- stalling casing and pipe a depth of four Due to the fact that appellant did ev[FRm w'im[t eno CuenplkiRL 6hOw5, Uiousenc] flve hundrea Ieet at tRe well the lessees must actually find oil in pa; not fultll the conditions set forth in the ing quantities and this is the same as ol