IN THE SUPREME COURT OF OHIO2011

Michael Roberts, ) CASE NO. 11-1364Appellant- Pro per,

)-vs- On Appeal from

) Ross County, Court of AppealsRobin knab, CCI Warden Fourth Appellate District

Appellee, ) (Original Action)

MERIT BRIEF OF MICHAEL ROBERTS,in Propria Persona

Michael Roberts #609-069 (Counsel of Record)C.C.I. P.O. Box #5500Chillicothe, Ohio 45601

COUNSEL FOR APPELLANT, PROPRIA PERSONA

Mike Dewine Ohio Attorney GeneralAssistant Ohio Attorney GeneralGene D. Park* (Counsel of Record)150 E. Gay Street, 16`h FloorColumbus, Oh 43215

COUNSEL FOR APPELLEE, ROBIN KNABCCI

CLERK OF G7LIRT{ supa;^^^

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................................. ii,iii,iiii

STATEMENTS OF FACTS ....................................................................................................... 1,2,3

ISSUES PRESENTED .............................................................................................................. 4,5,6

LAW AND ARGUMENT ................................................................................................................ 7

Proposition of Law One:

Whether Court of Appeals, 4`" Dist., acting as a"'IYier of Fact", in Appellant's "Habeas CorpusAction", brought forth for the first time between these two parties as an independent and separate"Civil" action, deprived Appellant a full and fair, impartial, de novo review as required pursuant toR.C. 2724.01,.06, and under U.S. XIV Amend. Due Process and Equal Protection Clauses, andOhio Const. Art. I, Sec. 10 & 16 ........................................................................................................ 7-10

Proposition of Law Two:

Wheter Habeas Court's Sua Sponte dismissal holding "resjudicata" barred Petitioner's first timeOriginal Petition, erred to the prejudice of Petitioner, depriving him of his Constitutional Rightto a full and fair independent review of the legality of his restraint ............................................. 11-15

Proposition of Law Three:

Whether Habeas Court's decision/judgment entry comports to a final appealable order underOhio Const. Art. IV § 3(B)(2), R.C. § 2505.02, Civ. R. 54(A) and (B) ........................................... 16-17

Proposition of Law Four:

Whether the Clerks Docket, pursuant to Crim R. 55(A), clearly and convincingly establishes theTrial Court's substantiv, non-waivable jurisdictional defects,plain error, and contrary to Law (Void)judgment ab initio, when it fails to list any [e]ffective PSI Order, pursuant to Crim R. 32(c), asmandated by Crim R. 32.2 and General Assembly's legislative enactment of R.C. § 2951.03..... 18-21

Proposition of Law Five:

The State of Ohio's prophylactic procedural mechanism is deficient, and failed to protect Petitioner'sFederal Claims of ineffective assistance of counsel, Due Process and Equal Protection of Law underthe 6`s and 14°h Amendments to the US Constitution ....................................................................... 22-26

CONCLUSION AND CERTIFICATE OF SERVICE ............................................................................................. 26

APPENDIX PAGES .................................................................................................................................... Beyond 26

TABLE OF AUTHORITIES

CASE LAW: PAGE NO:All State Ins . Co . v . Soto(Nov 30 2000) Cuyahoga App Nos 78115 2000 WL-1754000 ................ 17

Arnett v Sheats Ross App . No . 10CA3156 , 2010-Ohio-3985 .. ....................................................... 14Aurora Loan Srvs L L C v. Car, Slip Copy 2010 WL-11057415 Ohio App. 11`" Dist., 2010........... 20

Blakemore v. Blakemore ( 1983) 5 Ohio St.3d 217 219.450 N.E.2d 1140 ........................................... 9

Bowden v Sheldon 124 Ohio St.3d 551 ,925 N.E.2d 129, Ohio 2010 ............................................... 11Brecht v Abrahamson 507 U.S. 619 113 S.Ct. 1710 U.S. Wis.,1993 ................................................ 23

Brown v. Allen 344 U S 443 499-500 73 S Ct 397 422-443 97 L Ed 469 (1953) ......................... 24Davis v. Wolfe, 751 N.E.2d 1051-Ohio-2001 .................................................................................... 11

DeHart v . Aetna Lif Ins . Co ( 1982) 69 Ohio St.2d 189 , 192 ,431 N.E.2d 644 ..................................... 14

Desist v . United States 394 U S 244 262-263 89 S Ct 1030 1041 22 L.Ed . 2d 248 ( 1969) .............. 24Dickens v . Ogdin(Nov 24 1993) Meigs App . No . 498 1993 WL-491327 ...:....................................... 17

Evitts v. Lucev 469 US.387 393(1985) ............................................................................................. 25Ex Parte Briggs (1949) 86 Ohio App . 215 ,410. 0 . 90 87 N E 2d 1178 1181 ................................... 13

Fay v Noia, 372 U S 391 ,449,83 S Ct 822 , 854, 9 L Ed 2d 837 ( 1963) ............................................ 25Fisher v. Fisher, 10`h Dist. No. 01AP-1041 2002-Ohio-3086 ........................................................ 21,26

Foglio v. Alvis 143 N.E.2d 641 Ohio Com.Pl. 1957 .......................................................................... 10

Gaskins v Shiplevy, 656 N.E.2d 1282-Ohio-1995 ..............................:.............................................. 11

Harris v. Nelson , 394 U . S.286 ( 1969)' Id. 394 U.S. At 301 n.7 ......................................................... 15

Hudlin v. Alex ( 1992) 63 Ohio St.3d 153 155-156,586 N.E.2d 86,87 ................................................ 13

Huffman Hair Surgeon Inc ( 1985)19 Ohio St . 3d 83,87,482 N.E.2d 1248 ......................................... 10In Re D H Gallia App No 09CA11 2009-Ohio-6009 at ^ 49 ........................................................... 14In Re furQuson 487 P.2d 1234 ,5 Cal.3d 525,531 ( 1971) ....................................................................... 6In Re Lockhart ( 1952) 157 Ohio St.192 194 47 O.O. 129,105 N.E.2d 35 ........................................... 11In Re Luetzler (1889) 18 Ohio C.C. 826 , 829,9 Ohio C.D. 778,791 .................................................. 13

InRe Schott ( 1968) 16 Ohio App .2d 72 241 N E 2d 773 145 0 . 0.2d 1681 .......................................... 7Keeney v. Tamayo-Reyes,504.U.S. 1,10(1992) ............................................................................... 17,23

kennedy v . Cleveland ( 1984) 16 Ohio App . 3d 399 ,402 , 16 OBR 469 ,471 ,476 N.E.2d 683,687.......... 20

Linclon Tavern Inc . v. Snader(1956) 165 Ohio St.61,133 N.E.2d 606 ............................................... 21

Marich v . Knox Cty Dept of Human Serv (1989) 45 Ohio St.3d 163 165,543 N.E.2d 776 ................ 14M`Broom v Russell ( 1996) 77 Ohio St.3d 47 ,48 671 N.E.2d 10,11 ................................................... 11

M°Clesky v Zant ( 19910 499 U S 467 ,479 , 111 S.Ct. 1454 1462 113 L.Ed.2d 517,535 ..................... 13

M`Mullen v Maxwell ,30 Ohio St .2d 160 ,32 O O 2d 150 .209 N.E.2d 449(1965) ............................... 15

Morgan v Thomas 321 F Supp 565 (S .D. Miss. 1970) 573 ................................................................ 15Nat'l Amusements Inc v . Springdale ( 1990) 53 Ohio St.3d 60 62-63,558 N.E.2d 1178 ..................... 12

Patton v. Deimer(1988) 35 Ohio St.3d 68,518 N.E.2d 941 .................................................................. 21

Pegan v Crawmer, 666 N . E.2d 109 1 -Ohio- 1997 ................................................................................. 11

People v . Geiger, 674 2d 1303 Ca13d 510 520 ( 1984) .................................................................... 6 FN

Pratts v . Hurley, 102 Ohio St . 3d 81 806 N.E.2d 992.2004-Ohio-1980 ............................................... 21

I=;eed u-oss 468 U S . 1 , 1-0 104 S Ct 2901 291.17 89,-L Ed 2sIL(1284)......._. _....... ......... ....24Sanders v . United States ( 1963) 373 U S 1 , 8 , 83 S Ct 1068 1073 10 L Ed 2d 148.... .......... 12,14

Shie v . Smith, 123 Ohio St .3d 89• 2009-Ohio-4079 at ¶2 ................................................................... 13

Smith v . Voorhies , 119 Ohio St . 3d 345 , 894 N.E.2d 44-Ohio-2208 at ¶ 1 .......................................... 13ii

TABLE OF AUTHORITIES CONTINUED

Smith v. Wyrick,693 F.2d 808,810 (8`" Cir. 1982),Cert. Denied 460 U.S.1024(1983) ....................... 23State ex rel. Adams v. Gusweiler (1972),30 Ohio St.3d 326,59 0.O.2d 387,285 N.E.2d 22 ............. 13State ex re1 Akbar-El v. Griffin, Cuyahoga Cty,Ct. of Com. P1.,94 Ohio St.3d 210,-211,761N.E.2d 624 ......................................................................................................................................... 14State ex rel. Easterda(1991),58 Ohio St.3d 256,569 N.E.2d 1028 at Supra 151 .............................. 13State ex rel. Hanley v. Roberts(1985),17 Ohio St.3d 1,4,476 N.E.2d 1019 ......................................... 20State ex rel. Johnson v. Perry Cty Court (1986),25 Ohio St3d 53,25 O.B.R. 32,495 N.E.2d 16....... 13State ex rel. Jones v. Suster,84 Ohio St.3d 70,75 701 N.E.2d 1002,1998-Ohio-275 ........................... 21State ex rel. Key v. Spicer ,91 Ohio St.3d 469,470 746 N.E.2d 1119,2001 ......................................... 14State ex rel. Nelson v. Griffin,103 Ohio St.#d 167, 814 N.E.2d 866, 2004-Ohio-4754 ....................... 14State ex rel. Scott Edwards (Oct. 28, 1996),Ross App. No. 96CA2210 .............................................. 14State v. Beasley, 14 Ohio St.3d 74,471, N.E. 2D 774, Ohio 1984 ........................................................ 11State v. Fischer 128,Ohio St.3d 92,942 N.E.332 Ohio 2010 ............................................................... 20State v. Hillman, Slip Copy 10th Dist. WL-324417(2010) ................................................................... 10State v. Kalish, 120 Ohio St.3d 23,896 N.E.2d 124, 2008-Ohio-4912 .................................................. 9State v. Mitchell (2001),141 Ohio App.3d 770,753 N.E.2d 284 ............................................................ 8State v. Moss, not reported in N.E.2d, 2000 WL-1026691, Ohio App.9`h Dist ..................................... 8State v. Pickett CuyahogaApp. No. 91343, 2009-Ohio-2127 .......................................................... 8,19State v. Preston,155 Ohio App.3d 367,801 N.E.2d 501 Ohio App.lOth Dist.2003 ........................ 8,19,20State v. Ross, Slip Copy,2009 WL-2894452 8ih Dist ............................................................................ 8State v. Simpkins,117 Ohio St.3d 420,2008-Ohio-1197,884 N.E.2d 568 .................................... 7,11,19State v. Thomas,(1996),11 Ohio App.3d 510,512,676 N.E.2d 903 ................................................... 7,21State v. Walker,Cu yahoga App. No. 90692,2008-Ohio-5123; 92 Ohio St.3d 1443,751 N.E.2d 482.... 8State v. Wilson,73 Ohio St.3d 40,45 n.6,652 N.E.2d 196 ............................................................. 21, 26Stone v. Powell, 428 U.S. 465,96 S.Ct. 3037, 49 L..Ed.2d 1067, (1976) ............................................. 25Teague v. Lane, 489 U.S. 288, 306, 109 S.Ct. 1060. 1073, 103 L.Ed.2d 334 (1989) ..................... 24,25Terwood v. Harrison,(1967),10 Ohio St. 2d 170,171,226 N.E.2d 111 ............................................ 25,26Townsend v. Sain,372 U.S. 293,312 (1963) ..................................... ............................... 23United States v. Greatwalker (C.A.8 2002) 285 F.3d 727,729 ............................................................. 21Westmoreland v. Valley Homes Mut.housing Corp.(1975),42 Ohio St.2d 291,294,328 N.E.2d 406.. 21Withrow v. Williams, 507 U.S. At 700,113 S.Ct. At 1758 ................................................................. 25

iii

TABLE OF AUTHORITIES CONTINUED

United States Constitution:VI Amendment (Effective Assistance of Counsel) ...................................................................... 7,22XIV Amendment (Due Process and Equal Protection Clauses) ............................................ 5,6,7,22

Federal Laws:Title 48 U.S.C. § 1983 (Civil Rights Violations) ........................................................................... 6,7Title 28 U.S.C. § 2254 (Habeas Corpus Provisions) .................................................................. 6,7,17Title 28 U.S.C. § 2072(b); (Rules Enabling Act) ..........................................................................Fed. Rules of Civ. P. 56(C) (Merit judgment claim preclusion) ...................................................... 14

Ohio Constitution:Article I, Section, 10 & 16 ................................................................................................................ 5Article IV, Section, 3(B)(2) ........................................................................................................... 5,16

Ohio Revised Code:R.C. 2951.03, (PSI Order Mandate) ......................................................... 1,4,5,7,8,10,11,16,18,19,20,22R.C. 2505.02, (Non-Appealable Order) .................................................................................. 2,5,16,17R.C. 2725.01- 17 (Habeas Corpus Petition) .......................................................................... 7,8,9,11,14

Ohio Criminal Rules:Crim R. 32.2, (PSI Order Mandate) .............................................................. 1, 2,4,5,7,8,11,16,18,20,22Crim R. 32(C), (Order Journalization Mandate) ................................................... 1,2,4,5,9,10,11,18,20Crim R. 52(B), (Plain Error) .............................................................................................................. 23Crim R. 55(A), (Clerk Journalization of all Orders Mandate) ........................................... 1,2,4,9,16,18

Ohio Civil Rules:Civ R. 54(A)(B) ........................................................................................................................... 16,17Civ R. 56(c) ...................................................................................................................................... 14

Ohio Superintendence Rule:Rule 7, (Joumalization of all Order Mandate) ................................................................................... 20

Ohio Jurisprudence:26 Ohio Jurisprudence, 2d 568 Habeas Corpus, Sec. 14 ................................................................... 7

iiii

STATEMENT OF FACTSOn July 31, 2009, during a Revocation Hearing of (2) separated Case No(s)., 07CR-8717 and

08CR-5057. Appellant Roberts was sentenced to a (5) year Term of Imprisonment predicated on a

"Null & Void Judgment ab initio", imposed on January 30, 2008, under case No. 07CR-8717, and a

consecutive (1) year Term of Imprisonment predicated on the only "Valid Judgment", imposed by the

same Court on December 2, 2008, under Case No. 08CR-5057.

On January 30, 2008, (Journalized on February 1, 2008) under Docket No. 07CR-8717, Roberts'

first and only appearance before Judge Eric Brown, was convicted, sentenced, and immediately

released to an [invalid] term and condition of Community Control Sanctions, all in one day. (It is

important to note, prior to this case Mr. Roberts had no previous Arrest History in the State of Ohio).

Although on the surface Mr. Roberts plead guilty to Robbery, the Store's video surveillance will

establish he did not conunit any of the essential mens rea elements of that charge. Mr. Roberts being

over indicted on (2) counts of Robbery, 2"d and 3`d degree, and under the threat of a possible 13 yrs.,

accepted the proffered plea agreement of being released the same day without a PSI being ordered. Mr.

Roberts asserts, and has sworn under oath, that at no time on or before being placed on probation, did

he conduct any presentence investigation interview with anyone from Adult Probation Dept.

Despite the Judge's oral pronouncement that he had a "short form report", (Trs. 14) it is not

cognizable that he was able to obtain in (1) day a legally [e]ffective PSI Report as.mandated by Crim

R. 32.2 & R.C.§295I.03, especially when the Record reflects [no] effective PSI Order given, pursuant

to Crim R. 55(A) & Crim R. 32(C),(See Ex. A, Dkt. 07CR-8717).

On September 15, 2008, Appellant was subsequently arrested again stemming from a Capias

being issued for a check he had cashed prior to being on probation. Mr. Roberts was placed before

Judge Brown a second time under both cases. On November 6, 2008, under Case No. 08CR-5057,

Judge Brown, then and only then had given the only [e]ffective PSI Order issued by the trial court,

pursuant to Crim R. 55(A) & Crim R. 32(C) and as mandated by Crim R. 32.2, (See Ex. B, Dkt.

#08CR-5057, D.E. #48).

On July 31, 2009, at a Revocation Hearing before Judge Kimberly Cocroft, Roberts was

brought before the court without being_given any statements of violations, and was blind sided by the

reasons for revocation. As a consequence, Mr. Roberts was ordered to a total of (6) years of

Imprisonment. Mr. Roberts on his own discovered this "plain error", and initiated his own direct

appeal of right.

1

Mr. Roberts was appointed Mr. David Strait as his appellate counsel. Mr. Roberts immediately

sent notice to his Appellate Counsel, instructing him to raise (5) Assignments of Errors, to which the

Void Judgment Issue was raised, (Ass. #3). Mr. Strait, however was not responsive to these issues, so

as a result Mr. Roberts was forced to send a letter of legal instruction, and had that filed with the

Appellate Court under Affidavit of Verity, (See Ex.C, App. No. 09AP-816, D.E. #25).

The 10a' Dist. had stricken the letter of legal instructions. After Appellate Counsel disregarded

Mr. Roberts' Assignments of Errors and only raised (1) non-meritorious claim, Roberts sought leave to

have Counsel's Brief Supplemented, (See Ex.C, D.E.#37) That request was subsequently denied.

Acting with all due diligence, Roberts' filed a Judicial Notice Request as an attempt to get the

Reviewing Panel to address his (own) five claims, this too was subsequently denied, (See Ex.C,

D.E.#45). On or about June 25, 2010, Appellant timely filed a 26(B) Motion, which was also denied.

Before conclusion of his Direct Appeal No. 10AP-816, Roberts filed a Motion to Vacate Void

Sentence back in the trial court, predicated on previously blocked Assignment of Error No. 3. The

State is on Record, conceding and admitting that Mr. Roberts' Claim of Void Judgment "is apparent

from the Record", in their Contra Memo filed on February 17 , 2009 (See Ex. D). Trial court

subsequently denied that motion without any facts, findings, or conclusions of Law. As such, that

Judgment does not comport to R. C. § 2505.02, and is a non-appealable order. Mr. Roberts timely filed a

notice of appeal, despite having nothing in which to base his appeal on. On September 14, 2010, under

lOAP-223, the 10a' Dist., stated in (110), because the Sentencing Entry Form made [r]eference to a

supposed PSI Order and Consideration, and that because the Judge made an oral pronouncement that

he had a "Short Form Report", Appellant's claim has no merit, (See Ex.s).

On 09-23-10, Appellant timely filed a Motion for Reconsideration 26(A), and a Supplement to

it on 09-28-10, in which the 10a` Dist. granted. Mr. Roberts' 26(A)'s pointed out the obvious errors in

relying on statements mentioned above, to include that the Clerk's Docket is devoid of any such

effective PSI Order, pursuant to Crim R. 55(A) Crim R. 32(C)and Crim R. 32.2. Appellant's motion

also included a confirmation letter from the very entity that is authorized to conduct and complete PSI

Reports, Adult Probation Svc., confirmin that it's office had not com leted any prior to the Court

initial imposition of Probation on 1-30 08 (See .^l. T s attachment further substantiated Mr.

Roberts Claim, and also in addition to the Clerk's Docketing Statements, establishes the trial court's

contrary to law judgment ab initio. The 10th Dist. Again excluded and disregarded that substantive

evidence to the prejudice of Mr. Roberts and in error denied his Motion for Reconsideration.

11

Mr. Roberts did seek leave for Support of Jurisdiction with the Ohio Supreme Court under 10AP-223,

but that was not forthcoming.

Appellant Roberts being in possession of such substantive and accurate evidence, ie., Clerk's

Docket(s), and Newly Acquired Evidence provided by Franklin County Adult Probation, ie., Jason Pott's

Confirmation Letter, filed a second motion, captioned as a Common-Law Motion to Vacate Void

Judgment ab initio, and a simultaneous Judicial Notice,(Predicated on the confirmation letter from

Probation Officer, Jason Potts) in December of 2010. Those motion(s) have still been pending over

180 days, despite numerous request for judgment, (See Attny. Gen. Motion to Dismiss filed 5-19-11, as

exhibit 9),y ur:o4 C05(tis 6i+ Oi),

Acting with the knowledge and substantive evidence to support his claim of Void Judgment ab

initio, Appellant again sought relief by way of the Great Writ of Habeas Corpus Petition filed with the

Ross County Court of Appeals as an Original Action, attacking the intervening justification and or

privilege of C.C.I. Warden Robin Knab to continue to hold him in custody, predicated on the sentencing

court's [i]nvalid imposition of Community Control Sanctions and Void for certain Judgments. This

Cause of Action was initiated for the [flirst time between these two parties, as a f sleparate and

independent Original Action, not as any successive Appellate Review.

Mr. Roberts original Petition was met with a 12(B)(3) Motion to Dismiss, and was not afforded

any responsive pleading/answers to his claims. Mr. Roberts filed a dual Motion to Strike 12(F), and

Show Cause to Withstand Dismissal simultaneously. Mr. Roberts then filed for default, which was not

granted. Roberts then filed an Amended Petition, which was granted. Roberts received no response to

that Amendment.

Roberts filed a Request for Production of Documents, Statements for Admission of Truth, and a

Lack of Records Request, which some, were out right denied and the others deemed as moot, due to

the Court of Appeal's sua sponte dismissal.

It is from the 4^' Appellate District's, (Acting as a Habeas Court) "objectively unreasonable"

Decision and Judgment under Case No. 11 CA-3235 that Mr. Roberts now seeks afull and fair review

as an appeal of right to The Ohio Supreme Court.

I HABEAS CORPUS; A fundamental [s]afeguard against [un]lawful custody that is available to cure any detention.

ISSUES PRESENTEDThis Appeal of Right in essence deals with [w]hether the substantial evidence presented by

Appellant Michael Roberts in said lower court(s) of this great State, clearly and convincingly

establishes the trial courts "substantive plain error" and contrary to law Void Judgment ab initio, under

Docket No. 07CR-8717. Evidence provided as an accurate and ready determination by (2) separate

Political Subdivisions of a Municipal Corporation to wit: 1) Franklin County Clerk of Courts, and 2)

Franklin County Adult Probation Services Division of Common Pleas Court.

The first piece(s) of documented evidence provided by Appellant was the Clerk of Courts

Record pursuant to Crim R. 55(A), that requires the clerk to chronologically journalize all Orders, (PSI)

issued by the court. Also, pursuant to Crim R. 32(C) which mandates that before any Order, (PSI)

issued by the court to [b]e of any legal force and or effect, that Order, (PSI) [m]ust be specifically

entered into the Journal by the Clerk. The (2) Criminal Appearance Docketing Statement Sheets

journalized under Case No.(s) #07CR-8717 and #08CR-5057, that have been repeatedly provided as

exhibits by Appellant, gives the affirmative proof as to exactly when the same sentencing court in this

Controversy actually complied with the law and issued an [e]ffective PSI Order as mandated by Crim

R. 32.2 and R. C. §295I.03 before it illegally imposed an invalid terms and conditions of Community

Control Sanctions against Appellant on January 30, 2008. However, the proceeding was journalized on

February 1, 2008 under Dkt. No. 07CR-8717, (See Exhibits A & B, Dkt. Shts.).

The first Docket Sheet No. 07CR-8717,(Ex.A) is devoid of any [e]ffective PSI ORDER, and the

second Docket No. 08CR-5057, clearly shows an [e]ffective PSI ORDER,( Exhibit B, D.E.#48) being

issued and journalized on November 6, 2008, approximately Ten Months after the court unlawfully

imposed Comm. Cntrl. Sanct. in the first case.

Furthermore, the second piece of [p]robative evidence provided by Appellant that further

establishes his claim of Void Judgment as [t]rue, is from the very entity whose Authority it is to conduct

and complete Pre Sentence Investigation Interviews & Reports, to wit: Franklin County Adult Probation

Services. Appellant submitted,(Newly Discovered) a confirmation letter forwarded to him by former

Probation Officer Jason Potts, that confirms and convincingly establishes the date of November 24,

2008 that his Office did in fact complete the PSI in question, again Ten Months after and contrary to

the [s]upposed PSI Order made [r]eference to in the Sentencing Entry Form under Case No.

07CR-8717, (See Exhibit B1, Adult Prob).

4

Moreover, the people representing the State of Ohio [is] also on Record as conceding and

admitting over four separate times as stating "defendant's claim is apparent from the Record", (See Ex.

D, Contra-Memo). As a consequence of all said above, this appeal presents issues of law and fact as to

lwlhether or not the Record effectively establishes the Trial Courts' circumvention of (2) coincidinQ

Laws pursuant to Crim R. 32.2 and R C§295103 which as a conseauence divest it of subseauent

"subiect matter iurisdiction" to revoke and imoose a term of imnrisonment upon Appellant as a result,

of allegedly violatine those unlawfully imposed conditions in the first instance.

This appeal also presents the issue of whether the State's lower courts violated Appellant's

Rights under Due Process and Equal Protection afforded by the US Const., XIV Amendment, and OH.

Const. Art. I, § 16. Whether those courts provided an independent and adequate, full & fair, impartial

review of his claims, and if the decision(s) on the merits are objectively unreasonable in light of

Appellant's evidence supported by the record. (Important to note; not once has the court(s) mentioned

anything about the existence of Appellant's evidence, or what material his claim is based on ).

Also, [w]hether the 101 Dist. had [no] jurisdiction to consider Appellant's appeal(s) of his

initial Motion to Vacate,(10AP-223) under Ohio Const. Art. IV § 3(B)(2), because the trial courts

judgment was not a final appealable order, pursuant to R.C.§2505.02, and Crim R. 32(C), and if the

decision given at 1/10 is authentically supported by the Record and evidence presented.

Furthermore, [w]hether the Court of Appeals, 4" Appellate Dist., acting as trier of fact on a

[f]irst time Habeas Corpus Petition, reviewing Appellant's Original Action of a [c]ontroversy brought to

it for the first time between these two parties, [e]rred and deprived Appellant of his Constitutional Right

to an independent and adequate De Novo Habeas Corpus Review, by ruling "Res Judicata" as a claim

preclusion to fully investigate his demand for immediate release from unlawful custody by Respondent.

Moreover, the many substantial issues now presented for review by this State highest Court, are

matters of strict law and fact, that are [unlambiguous in its language, and leaves no room for discretion.

The Law is set and the facts presented are [tlrue as supported by the record. The Habeas Court in this

instance, circumvented Justice under the Law, by its over reliance and misapplication of the doctrine of

Res-Judicataused as a_flame_throw_er to-potentially kill Appellant's claim attacking the jurisdiction of

the sentencing court, and the intervening justification and privilege of the Respondent to continue to

hold him in unlawful custody.

1 Appellant being an unlemt Pro se litigant, humbly ask that his appeal be construed with the utmost liberality...

Though the doctrine of Res Judicata, itself be fair on its face, yet if misapplied and unjustly

administered by Public Authority with an "evil eye" and an unequal hand to make unjust an illegal

discrimination between persons with similar circumstances material to their rights is the denial of equal

justice. It seems as though the Ohio Courts have exercised a [s]pecial collusional proscription towards

Appellant's claim, by systemically blocking Due Process pursuant to the US XIV Amendment, and acts

prescribed under Title 42 U.S.C. §1983.

The Habeas Court failed in its duty as a trier of fact, as presented by Petitioner/Appellant

demanding immediate release from unlawful custody by Respondent for the first time, and thereby

creating a[c]ontroversy that has never been raised as an issue before by these two parties. The search

for [t]ruth is only too easily obtained in this matter, and has not been served but hindered by

concealment, and disregard of Appellant's relevant and substantial evidence. Although, the system of

administering Criminal Justice is adversary in nature, Appellant's Sovereignty of Life material to his

existence in this World is not a game to be played with. The Justice Systems ultimate goal [should] be

predicated in the ascertainment of [T]ruth, and where the furtherance of the adversary system comes in

conflict with that ultimate goal, the system [m]ust give way to reasonable restraint to further that goal,

[sic], In re Ferguson,487 P.2d 1234,5 Cal.3d 525,53](1971).

It is now left up to The Supreme Court of Ohio to determine whether the evidence presented by

Appellant to the lower courts, affirmatively establishes the Trial Courts plain error, where initial

imposition of Comm. Cntrl. Sanct. on January 30, 2008 under Case No. 07CR-8717 is contrary to law

and its Judgment Null and Void ab initio, and as a consequence was [is] divested of subject-matter

jurisdiction and Constitutional Authority to imposed a subsequent term of imprisonment for any said

violations of those [invalid] terms & conditions imposed in the first instance. Which also as another

consequence thereby divest the Respondent/Appellee of her privilege to continue to keep Appellant Mr.

Roberts in her custody, when the intervening justification no longer exist.2

6

2 Our courts are no gambling halls but forums for the discovery of truth... [sic] People v. Geiger, 674.2d 1303, Cal.3d,510,

520(1984)

LAW AND ARGUMENT

Proposition One: Whether Court of Appeals, 4' Dist., acting as a "Trier of Fact", in Appellant's

"Original Habeas Corpus Action", brought forth for thefirst time between these two parties as an

independent and separate "civil" action, deprived Appellant a full and fair, impartial, de novo

review as required pursuant to R.C.¢2725.01,.06, and under U.S. XIV Amend. Due Process and

Equal Protection Clauses, and Ohio Const. Art. I, Sec. 10, & 16.

In this instance, because this is an original action, the Habeas Court must also conduct a hearing

de novo, so it can make its own independent determination as to whether the trial court [un]lawfully

imposed community control sanctions on January 30, 2008 under case No. 07CR-8717 as substantive

evidence provided by Petitioner suggest, to see if it is supported and [t]ruly reflected by the record. In

re Schott (1968) . 16 Ohio App 2d 72 241 N.E.2d 773 [45 O.O 2d 1681, wherein the Court of Appeals

for Hamilton County held, at 74, 241 N.E.2d 773 that:

"However, upon the facts before us, we are constrained to take the position that the question

whether the petitioner, Schott, has been denied due process of law has been raised".

"Beyond question, no citizen of Ohio may be deprived of his liberty without due process of law.

"Therefore, one who is deprived of his liberty by an Ohio court without due process of law is entitled to

a writ of habeas corpus for the purpose of inquiring into the matter. 26 Ohio Jurisprudence 2d 568,

Habeas Corpus, Section 14, and cases cited thereunder." (Emphasis added.)

This matter was an original Habeas action filed in the 4' Dist. Court of Appeals as an

"Independent and Separate Civil Complaint" raising [c]ontroversy for the [f]irst time between Petitioner

Micheal Roberts, and Respondent Robin Knab, CCI Warden. Thereby, attacking her privilege and

intervening justification to continue to hold him in [un]lawful custody that is predicated on the lack of

"subject-matter jurisdiction" by the [R]evocation Court to impose a term of imprisonment stemming

from the Trial Courts Original "Void Judgment ab initio". Petitioner providing "substantive" evidence

proving the Court overstepped its Constitutional Jurisdiction to circumvent the Statutory Enactment of

R.C.,¢ 2951.03, and Superceding Crim R. 32.2, when it "unlawfully" imposed "invalid" terms and

conditdo..ns-af com-mun;-ty_controLsanctions an_Ol 3D_08, therQbX restdering its initial "Judgment Void

ab initio". See Simpkins 117 Ohio St 3d 420 2008-Ohio-1797. 884 N.E.2d 568 at 9( 42-43. See also

State v. Thomas (1996) , 111 Ohio App 3d 510 512 676 N.E.2d 903. which held. " The only sentence

which a trial court may impose is that provided for by statute."

7

A court has no power to substitute a different sentence for that provided for by statute or one that

is either greater or lesser than that provided for by law." See also, State v. Ross Sli12 Copv.2009 WL.

2894452 8' Dist, as holding; Thus, the trial court was required to order and consider a presentence

investigation report before imposing community control sanctions. See State v. Pic•kett. Cuvahoga A1212.

No. 91343. 2009-Ohio-2127: State v. Mitchell (2001). 141 Ohio Ann 3d 770 753 N E 2d 284.State v.

Walker. Cuvahoga App No. 90692 2008-Ohio-5123: discretionary appeal not allowed by 92 Ohio St.3d

1443. 751 N.E.2d 482: see, also, State v. Preston 155 Ohio App 3d 367. 801 N.E.2d 501.

In this instance, Petitioner has provided substantive evidence in which the record demonstrates,

however, that the court failed to do so, also providing evidence that State Prosecuting Attorney is on

record conceding and admitting that "Appellant's Claim is apparent from the record",(See Ex. D, St.

Contra-Memo). The action is brought pursuant to R.C. 2725.01 et seq., and the petition, as

supplemented, substantially complies with the requirements as set forth in R.C. 2725.04.

As the petitioner is not contesting his original conviction, as stated in the 4`h Districts decision,

only the " Non-Waivable Jurisdictional Authority" of the initial sentencing Court to disregard the

mandated language of R.C. 2951.03 and Crim R. 32.2 before imposing his sentence to 5 yrs. of Comm.

Cntrl., whereby, rendering that Judgment Void ab initio, and testing his continued restraint, pursuant to

the subsequent [R]evocation Court's lack of "Subject-Matter Jurisdiction" to Revoke those unlawful

terms to substitute with a term of 5 yrs. of imprisonment. Thereby, rendering both Judgments,(Feb 1,

2008 & July 31, 2009) "Null & Void" of no legal force and or effect, which ultimately divest the

Warden/Respondent of her intervening justification and or privilege to continue holding Petitioner, Mr.

Roberts in her custody.

R.C. 2725.01 provides:

Whoever is unlawfully restrained of his liberty, or entitled to the custody of another, of whichcustody such person is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the

cause of such imprisonment, restraint, or deprivation.

Thus, R.C. 2725.06 provides that:

"When a petition for a writ of habeas corpus is presented, if it appears that the writ ought to issue, a

court or judge authorized to grant the writ must grant it forthwith." (Emphasis added.)

8

CONCLUSION OF PROPOSITION ONE

When considering the totality of the circumstances in this instance, and the substantive nature of

the Law and Factual issues raised by Petitioner/Appellant, providing accurate probative documentation

that is supported by the record of the court, it should be clear that the Habeas Court acting a a trier of

facts [e]rred to the prejudice of Mr. Roberts, and thus depriving him of his Constitutional Rights to Due

Process and Equal Protection of the Law. In State v. Kalish. 120 Ohio St.3d 23, 896 N.E.2d 124, 2008-

Ohio-4912. the Ohio Supreme Court set forth the standard for appellate review of felony sentences

subsequent to its ruling in State v. Foster.FN2 Post- Foster, we must use a two-step process in reviewing

sentences. First, we "must examine the sentencing court's compliance with all applicable rules and

statutes in imposing the sentence to deterniine whether the sentence is clearly and convincingly

contrary to law." FN3 If this first prong is satisfied, we must then review the trial court's decision under

an abuse-of-discretion standard.FN4 Applying this standard, we conclude Lee's sentence is contrary to

law and thus, invalid. We agree a PSI report must be considered prior to sentencing a defendant who

committed a felony to community control.

In this instance, the Habeas Court merely relied on the objectively unreasonable legal

determination set forth by the 10" Dist. in Roberts II, (10AP223) in the appeal of his Motion to Vacate

Void Sentence request. The Habeas Court just adopted the same erroneous decision as their own

without independent and adequate investigation into Mr. Roberts' substantive evidence of the contrary,

showing that, that determination is not fully supported by the record, pursuant to the mandates of Crim

R. 32(C), and Crim R. 55(A), The Habeas Court's decision is highly prejudicial to the petitioner, a

dereliction of duties as set forth in the language of Title 2725, and a deprivation of Due Process and

Equal Protection under the Constitution.

The scope of a petition for a writ of habeas corpus is dictated by R.C. 2725.01, which

provides as follows: Whoever is unlawfully restrained of his liberty, or entitled to the custody of

another, of which custody such person is unlawfully deprived, may prosecute a writ of habeas

corpus, to inquire into the cause of such imprisonment, restraint, or deprivation.

inrthis casE-subj udice, -the Habeas-C-ourt acting-asirier ai fac.ts;-did-no-such inquir-y; an-d-simpl-g

substituted its decision for that of the 10" dist. See Blakemore v. Blakemore (1983). 5 Ohio St.3d 217,

219. 450 N.E.2d 1140. "When applying the abuse of discretion standard, a reviewing court may not

simply substitute its judgment for that of the trial court. " Id., or another appellate districts, (emphasis).

9

Petitioner adamantly challenged the presumptions of correctness of that decision in his

successive 26(A) Motion(s) for Reconsideration, and laid a colorable claim to the contrary, in his Writ

[e]xposing the obvious error in that determination, a determination not fully supported in the record,

and not legally supported by law, (See Exhibit F).

"A decision is unreasonable if there is no sound reasoning process that would sunoort that

decision." The 10' District's legal determination of the sentencing entry's mere [r]eference to a non

existent PSI Order is not supported by the record, when pursuant to Crim R. 32(C) there is no effective

PSI Order specifically to be found in the clerk's journalization of the criminal appearance docket sheet

under Case No. 07CR-8717, pursuant to Crim R. 55(A). See Hufman v. Hair Sureeon.Inc.(1985).19.

Ohio St. 3d 83.8Z482 N.E.2d 1248; which states, "Abuse of discretion" has been defined as an attitude

that is unreasonable, arbitrary, or unconscionable.

The courts in the following cited case law all have held; It is well recognized that a court speaks

through its journals and that an entry, (PSI Order) is [e]ffective only when it has been specifically

journalized. To journalize a decision means that certain formal requirements have been met, i.e., the

decision is reduced to writing, signed by a judge, and filed with the clerk so that it may be apart of the

permanent record of the court. See, Fo¢lio v. Alvis 143 N.E. 641 Ohio Com.Pl. 1957: State v. Hillman

Slip CoPv 10" Dist.WL-324417(2010); and State v. Moss Not Reported in NE 2d 2000 WL-1026691..

Ohio Apy.9' Dist. In this instance, there is no legally effective PSI Order as mandated by Law.

Despite Judges oral pronouncement of a Short Form Report,it is not cognizable that the court

could have ordered a PSI, and considered that PSI,("short form") Report all in one day. Petitioner was

[o]nly before that court for the [f]irst time, In fact, the Short Form in question was in actuality a pre-

trial service report for a possible recognizance bond, which does not meet the necessary requirements

of Crim R. 32.2, or R.C. §2951.03.

Wherefore (despite States concession) Petitioner's attempts at remedial redress has been

drowned in systemic legalese, depriving him of a full and fair, impartial review of his claim, and or a

lawful legal determination that is fully supported by the record. Petitioner has exhausted all available

remedies, that has not been [a]dequately provided for. The inherent nature of The Writ of Habeas

Corpus is to be used in [e]xtraordinary situations such as this, especially when petitioner's substantive

evidence [is] fully supported by the record, and precedent case law holds the trial courts judgment are

null & void for certain.

10

LA W AU® AR Gu IMEMT

Proposition Two: Whether Habeas Court's Sua Sponte disniissal holding "res judicata" barred

Petitioner's first time Original Petition, erred to the prejudice of Petitioner, depriving him of his

Constitutional Right to a full and fair independent review of the legality of his restraint.

In order to withstand Sua Sponte dismissal, a petition for a writ of habeas corpus must conform

to R.C. 2725.04 and state with particularity the extraordinary circumstances entitling the petitioner to

the writ. McBroom v. Russell (1996)77 Ohio St.3d 47. 48, 671 N.E:2d 10, 11 .

"Whoever is unlawfully restrained of his liberty, or entitled to the custody of another, of which

custody such person is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into the

cause of such imprisonment, restraint, or deprivation." R.C. 2725.01 The purpose of habeas corpus is to

determine the legality of the restraint under which a person is held, not to determine guilt or innocence.

In re Lockhart (1952)157 Ohio St. 192 194,47 0.0. 129 105 N E 2d 35.

See Gaskins v. Shinlevy. 656 N.E.2d 1282-Ohio-1995, which held; "When a court's judgment is void

because it lacked jurisdiction to act, habeas is sill an appropriate remedy despite to availability of

appeal.°" Citing, Pegan v. Crawmer. 666 N.E.2d 1091-Ohio-1997, Davis v. Wolfe 751 N.E.2d 1051-

Ohio-2001, and Bowen v. Seldon 124 Ohio St.3d 551925 N.E.2d 129. Ohio 2010 at 9 24; which held,

void judgments opens the door to Habeas remedy, because it is a legal nullity, issued by a court lacking

jurisdiction. A void judgment is not a final appealable order. "A judgment declared void is susceptible

to collateral attack at any time, and a defendant has a right to a writ of Habeas Corpus when a judgment

is void due to lack of jurisdiction despite the availability of alternative remedies such as appeal. Citing

Pesan v. Crawmer, and State v. Simpkins 117 Ohio St.3d 420 2008-Ohio-1197.884 N.E.2d 568 at 9 47.

In State v. Beasley,14 Ohio St.3d 74,471 N.E.2d 774.Ohio 1984, the court held; "Any attempt by

a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a

nullity or void." The function and duty of a court is to apply law as specifically written, R.C.§295I.03

and coinciding Crim R. 32.2 both mandating the court to order a PSI, from Adult Probation Dept., to

complete the interviewing report, then submit it to the court for its consideration [b]efore imposing a

term of comm. cntrl. sanct. in felony convictions.

At first blush, it is convincingly clear from the Clerks Record that there is no legally effective

arc er Tor a-PSI, (as per Case No:08C2=5f757, see ExhibiY B) pursuant t6 t'rim R. 32(C): The -court

should have looked into the matter independently, in order to determine on its own findings of facts if

the trial court's judgment is actually contrary to law and void, especially when the State is on record

conceding that Petitioner's claim is apparent from the record, (See Exhibit D, States Memo in Contra).

^^

If it is determined as such, then as a matter of law there is but one thing left to do, and that

requirement is to vacate the unlawful judgment. It matters not if, when, or how Petitioner has presented

his claim in this instance, because the initial judgment is void and [a] legal nullity, and will always be as

such.

In this case subjudice, Mr. Roberts initiated an Original Habeas Petition instituted for the first

time, [a] controversy between these (2) parties, sought redress through the extraordinary remedy

provided for by the Writ, because he has so far been systematically blocked and deprived of his

Constitutional Due Process Rights in his previous attempts the get Ohio State Courts to acknowledge

the trial courts judgments as "Void ab initio ".

Considering the "totality of the mitigating circumstances" as set forth with particularity in his

Habeas Action. The 411 District's "arbitrary and mechanical" misapplication of "Res Judicata" as a

claim preclusion barring merit review into the legality of Petitioner/Appellant's restraint is

unconscionable and should be contra bonos mores to any reasonable jurist. [It is important to note, in

this instance, this is not a "successive" petition. ]

Moreover, the substantive nature of evidence provided for by (2) separate political subdivisions

as an accurate and ready determination by resort to sources that cannot reasonably be question, clearly

and convincingly establishes the trial court's judgments as "Null & Void ab initio.

See Natl Amusements Inc. v. Snrinedale (1990). 53 Ohio St.3d 60, 62-63, 558 N.E.2d 1178,

where the Ohio Supreme Court stated, at {9[ 18}: "Because a strict application of res judicata might

frustrate other objectives of the legal system, `a series of exceptions have evolved to accommodate what

deems to be these more important policies.

However, it is important to note that although a number of cases may speak in terms of allowing

an exception as being in the "public interest" or because it avoids "injustice," these generally are

overstatements. * * * [E]xceptions to res judicata most commonly and properly are invoked only in

specialized situations in which a specific policy is deemed to outweigh judicial economy concerns.'

(Footnotes omitted.) Friedenthal, Kane & Miller, Civil Procedure (1985)

656, Section 14.8.

For example, habeas corpus actions are exempt from res judicata because `[c]onventional

notions of finality of litigation have no place where life or liberty is at stake ***.' Sanders v. United,

Stotes (1963) , 373 U . S. 1 8. 83 S.Ct. 1068. 1073. 10 L.Ed.2d 148."

12

Nevertheless, in Hudlin v. Alexander (1992)63 Ohio St . 3d 153. 155-156. 586 N.E.2d 86. 87.

after noting the foregoing statement from Natl. Amusements, we held that res judicata is applicable to

[s]uccessive habeas corpus petitions because habeas corpus petitioners have the right to appeal adverse

judgments in habeas corpus cases. See, also, McCleskev v. Zant ( 1991). 499 U.S. 467. 479. 111 S.Ct.

1454. 1462, 113 L.Ed.2d 517, 535 .

Moreover, the availability of an adequate remedy becomes immaterial when a inferior court has

no jurisdiction whatsoever to act. See State ex rel Easterdav v . Zieba(1991).58 Ohio St. 3d 256. 569.

N.E.2d 1028 at Supra (51. where the court further held "where a court has no jurisdiction to act, we

have allowed the Writ, notwithstanding an availability of appeal", citing State ex rel. Adams v. _

Gusweiler(1972) 30 Ohio St.3d 32659 0.O.2d 38Z285 N.E.2d 22; State ex rel. Johnson v. Perrv Ctv_

Court (1986) 25 Ohio St. 3d 53.25 O.B.R. 32 , 495 N.E.2d 16.

Furthermore, the Habeas Court's decision relied on an erroneous legal determination, and

misapplication of codified Habeas Corpus Law. The Habeas Court conunitted plain error in its

determination. `Abuse of discretion' has been defined as an attitude that is unreasonable, arbitrary, or

unconscionable Law. The decision was based on Shie v. Smith , 123 Ohio St.3d 89: 2009-Ohio-4079, at,

fl 2, which is inapplicable to the Law and facts set forth in Mr. Roberts petition. Also, the Habeas court

supplemented its decision with Smith v. Voorhies 119 Ohio St . 3d 345. 894 N E 2d 44-Ohio-2008 at 1/ 1,

which states, "This is an appeal from a judgment dismissing a petition for a writ of habeas corpus.

Because the petition failed to state a viable claim, we affirm."

Again, Mr. Roberts in this instance, has stated a claim that the State Adversary. (itself) is on

record as holding, "Defendant's, (Petitioner/Appellant) claim is apparent from the record", (See Exhibit

D). Petitioner's claim hacks a the root of the Constitutional Authority of the trial court to impose a

contrary to law judgment ab initio.

The Sixth Circuit Court of Appeals held that: "[W]hat has been set forth in the answers as res

judicata does not amount to a good plea in bar, and does not stand in the way of our proceeding to act

upon this application [for writs of habeas corpus]; neither does it afford us just ground for refusing to

act" See In re Luetzler (1899) 18 Ohio C . C. 826.829.9 Ohio C.D. 778.791. Citing Luetzler; the Courts

of Appeals for Montgomery and Franklin Counties have reached the same conclusion in, respectively,

Ex parteBriQes (1949). 86 Ohio App. 215. 410.0 90. 87 N.E.2d 1178, 1181, we stated:

13

"* *[H]abeas corpus actions are exempt from res judicata because '[c]onventional notions of finality

of litigation have no place where life or liberty is at stake***.' Sanders v. United States (1963),

Nonetheless, the habeas court neglected to do any meaningful inquiry into Appellant's Petition

establishing a controversy for the [f]irst time between these two parties, and because the habeas court

considered matters outside the pleadings to sustain its Sua Sponte Dismissal of the complaint, then

summary judgment standard of review, under Ohio Civ. R. 56(c), and Fed. R. Civ.P. 56(c), applies to

this appeal. See Briggs v. Ohio Elections Comm'n,61 E3d 487,493 (6`h Cir. 1995); Bell v. Chesapeake

& Ohio Ry.Co.,929 F2d 220,221-22 (6" Cir. 1991).

In re D H Gallia App No 09CA112009-Ohio-6009, at 11 49 ("Our standard of review of a

denial of a writ of habeas corpus is de novo."), citing State ex rel. Scott Edwards(Oct. 28. 1996). Ross,

Al2p.No. 96CA2210. " As a general proposition of law, the extraordinary writ of habeas is the proper

vehicle by which to seek release from prison." Arnett v. Sheets, Ross App . No 10CA3156. 2010-Ohio-

3985, at 116. citing State ex rel. Nelson v. Griffin 103 Ohio St.3d 167814 N E 2d 866 , 2004-Ohio-4754,

at 5; State ex rel. Akbar-El v. Cuy ho.ea Ctv.Court of Common Pleas,94 Ohio St.3d 210 210-211 761

N E 2d 624 2002-Ohio-475: State ex rel. Kev v Snicer 91 Ohio St.3d 469,470, 746 N.E.2d 1119.2001.

In DeHart v. Aetna Life Ins Co (1982 ) 69 Ohio St.2d 189192,431 N.E.2d 644, the Ohio

Supreme Court explained that "it is a fundamental tenet of judicial review in Ohio that courts should

decide cases on the merits." The Ohio Supreme Court continued, "[j]udicial discretion [m]ust be

carefully- and cautiously-exercised before this court will uphold an outright dismissal of a case on

purely procedural grounds." Id. Also the Ohio Supreme Court has indicated that a remedy will not be

considered 'adequate' unless it is beneficial, complete, and speedy." Id at 1/ 4. 646 N.E.2d 162, citing

Marich v. Knox Ctv Dent of Human Serv (1989) 45 Ohio St.3d 163165.543 N.E.2d 776.

Habeas Corpus is an extraordinary civil remedy to enforce the right of personal liberty and is

available to free a person unlawfully detained for any reason. The privilege of the writ is expressly

guaranteed in both the Ohio and Federal Constitution(s). The use of the Writ in Ohio practice is

specifically spelled out in R.C.§ 2725.01. The Writ has a long impressive history, which was

guaranteed in Ohio's original Constitution and before the Northwest Ordinance. In 1765-69, Blackstone

described Habeas Corpus ad subjiciendum as "the great and efficaious writ, in all manner of illegal

14

confinement,[which was] handed down to us from our saxon ancestors and established on the firmest

basis of Magna Carta. Modern practice of the writ has its genesis in the Habeas Corpus Act of 1679,

which was designed to correct abuses that tended to thwart the effectiveness of the writ. In general

practice in Ohio Habeas Corpus is the appropriate remedy to obtain freedom from any kind of illegal

detention, regardless of whether the detention is with or without color of law, the writ is available to

obtain freedom from unlawful imprisonment under criminal process. See, M`mullen v. Maxwell.30_

Ohio St.2d 160 32 O O 2d 150 , 209 N E 2d 449(1965 ).

IN CONCLUSION OF PROPOSITION TWO

In this case, Petitioner/Appellant raises substantive non-waivable -constitutional -jurisdictional-

issues. Issues that is supported by substantial [p]robative evidence, and is also supported by the clerk's

journal. Although, in this instance, Habeas Petitioner/Appellant acted with all due diligence in his

efforts to seek available remedies afforded under Ohio law, those remedies have been systematically

rendered non-existent due to overactive legalese, prejudice, bias, and unlawful application of Due

Process of Law. The [o]ne merit review given by the 10' Dist. App.No. 10AP-223, is objectively

unreasonable and not supported in law, nor the record of the Court. Now Petitioner is further

prejudiced by the Habeas Courts refusal to give petitioner a full and fair de novo review of his claim.

United States Supreme Court's recent decisions have made it clear that Habeas Corpus is not

now and never has been a [s]tatic, narrow, formalistic remedy; "its scpe has grown to achieve its grand

purpose - the protection of individual against erosion of their right to be free from [w]rongful restraints

upon their liberty." See, Morgan v. Thomas 321 FSuan 565(S D Miss 1970).573.

In Harris v. tVelson 394 U.S.286(19691: Id. 394 U.S. at 301 n.7; the court held, "but where

specific allegations before the court show reason to believe that petitioner may, if the facts are fully

developed, be able to demonstrate that he is confined illegally and is therefore entitled to relief, it is the

duty of the court to provide the necessary facilities and procedures for adequate inquiry."

Wherefore; as the people of the State of Ohio have already concluded and admitted on record,

Appellant's claim of initial trial court's judgment is void ab initio, " is apparent from the record." [sic].

15

LAW AND ARGUMENT

Proposition Three: Whether Habeas Court's decision/judgment entry comports to a final

appealable order under Ohio Const. Art. IV § 3(B)(2), R.C. § 2505.02, Civ. R.54(A),and (B).

In this instance, the habeas court shirked its constitutional duty to fully and fairly inquire into

the allegations de novo as set forth with the utmost particularity in Petitioner's Original and Amended

Complaint/Petition. The Petition set forth not one, but [t]hree separate and distinct particularized

claims. Claim one being, and or attacking the intervening justification and privilege of the Respondent

to continue to keep Petitioner in her unlawful custody, a$er successfully completing the only valid

judgment/sentence under case no. 08CR-5057, which has expired as of June 6, 2010. (See Orig.

Commitment Document).

Claim two being, and or attacking the objectively unreasonable determination of the 10`h

District's ruling as held in Roberts' II, 10AP-223 at ¶ 10. When it is apparent from the record that no

such effective PSI Order exist within the Appearance Docket, as per Crim R. 32(c), Crim R. 55(A),

pursuant to Crim R. 32.2 and R.C.§ 2951.03. Also, when considering the probative documentation

provided as evidence from the Franklin County Adult Probation Dept., (itself) establishing that it had

only completed (1) PSI Report against petitioner under case no. 08CR-5057, on November 24, 2008,

approximately, (10) Ten Months after petitioner was already under community control under case no.

07CR-8717.

Moreover, it is not cognizable that the trial court could have ordered and considered a PSI

Report from Adult Probation, when considering that January 30, 2008,(the day of conviction &

sentencing) was the very first time that Petitioner had been before the court, and was immediately

sentenced to community control all in, (1) one day.

Furthermore, its worth repeating; State's Prosecuting Attomey is on record conceding and

admitting to the material facts as being true and "apparent from the record," (See Exhibit D).

Claim three being, and or attacking the subject-matter jurisdiction of the revocation court and

its separate judgment entry filed on July 31, 2009, to revoke, and impose [a] term of imprisonment for

violating said unlawful, and invalid terms and conditions of community control imposed contrary to

law under the initial judgment entry filed on February 1, 2008.

As such, Petitioner's Habeas Claim at bar, succinctly described in each claim the extraordinary

mitigating factual circumstances with particularity, supported with irrefutable evidence, that effectively

16

establishes his claim for relief under Ohio Revised Code Title 2725.

In this instant case, the 4th District's decision/judgment does not comply with Civ. R. 54(B).

See, e.g. Dickens v. OQdin(Nov 241993) MeiQs App . No.498,1993 WL 491327 , unreported (delcaratory

judgment not final where judgment does not contain Civ. R. 54(B) language and claims remain pending

in the trial court); All State Ins. Co. v. Soto(Nov. 330 , 2000), Cuyahoga App . Nos. 78115 , 2000 WL-

1754000, language and underlying tort action with which it was consolidated remains pending.

Further, even if the judgment contained Civ. R. 54(B) language, it is not clear that the judgment

addresses the substantial rights under R.C.§ 2505.2(B)(2), which states a judgment that leaves issues

unresolved and contemplates that further action must be taken is not a final appealable order.

The Habeas Court's,(acting as trier of facts) decision is deficient, in that it fails to inquire into

any of the particularized claims raised by petitioner, it fails to address or even mention the substantive

evidence provided for as exhibits. Petitioner has suffered prejudice by this lack of judicial inquiry, and

received no real meaningful review of his federal claims. "The State must afford petitioner a full and

fair review on the Constitutional issues, else Federal rehearing of the facts is required by 28 U.S.C.§

2254(d)(2), § 2254(e)(1). Also see Keenev v. Tamayoi-Reyes,504 US.1 10(1992), which states; any

deficiency in state procedures would effect the presumption of correctness accorded the state court's

findings

CONCLUSION OF PROPOSITION THREE

Wherefore, the 4th District Court of Appeals' decision/judgment did not address any of the

facts, or the evidence as raised in the Petition's separate and independent claims, nor did it give any

facts, findings, or conclusions of law on those particularized issues. It is also deficient of any

independent review of the substantive merits presented before the court, and therefore does not

constitute a final appealable order.

17

LAW AND ARGUMENT

Proposition of Law Four: Whether the Clerks Docket, pursuant to Crim R. 55(A), clearly andconvincingly establishes the Trial Courts substantive,non-waivable jurisdictional defect, plain

error, and contrary to Law,(Void) judgment ab initio, when it fails to list any [elffective PSIOrder, pursuant to Crim R. 32(c), as mandated by Crim R. 32.2 and General Assembly'slegislative enactment of R.C.§ 2951.03.

In this instance, Petitioner was subjected to imposition(s) of community control sanctions under

(2) two separate and distinct case number(s), #07CR-8717, and #08CR-5057, that were eventually

combined to a modified condition of probation after the court did effectively order a PSI report on

November 6, 2008 under the second case no. 08CR-5057, in which Maryellen O'Shaughnessy,

Franklin County Clerk of Courts created separate journals and or appearance dockets, pursuant to

Crim R. 55(A), which states in part; "the clerk shall chronological journalize all, (PSI) Orders under

each Docket."

Under the first case No. 07CR-8717,(Exhibit A) the certified Appearance Docket [f]ails to

reflect, or establish any such legally effective Pre-Sentence Investigation Order upon Franklin County

Adult Probation Dept., pursuant to Crim R. 32(c), which states in part; "all orders must be reduced to

writing and specifically journalized by the Clerk of Court, and that it does not become legally binding

until clerks journalization. "

However, under the second case No. 08CR-5057,(Exhibit B) the Docket clearly shows an

[e]ffective PSI ORDER being issued by the same Judge on November 6, 2008,(See D.E.#48) which

substantiates the confirmation letter submitted as evidence, from The Franklin County Adult Probation

Services Division,( Exhibit B1) stating that a PSI Report was completed by them on November 24,

2008, approximately Ten Months after Petitioner was already unlawfully under community control

sanctions for case No. 07CR-8717.

Petitioner now poses the following question(s) of law before this States Highest Court. As a

court of record, does the Clerk's Appearance Docket, pursuant to Crirn R. 55(A), establish the fact that

the trial court [f]ailed to order a PSI from Adult Probation Div.,(as mandated by Crim R. 32.2) when it

lacks any such specifically joumalized, (effective) PSI Order, pursuant to Crim R. 32(C) ?

If so, whether that circumvention despite the strict and unambiguous legislative intent held

within the mandatory language of R. C.§ 2951.03, and harmonious Crim R. 32.2 render that

18

judgment and or imposition [i]nvalid, unlawful, contrary to law, and null & void for certain ?

If so, does that as a consequence divest the same trial court of its subsequent subject matter

jurisdiction to revoke those contrary to law terms & conditions, in order to enforce a term of

imprisonment for alleged violation thereof ?

Moreover, does the State's admission of truth stating that Mr. Roberts' claim is apparent on the

record eliminate any genuine issue of material facts about petitioner's claim of the trial courts judgment

being void ab initio ?

Furthermore, does the letter of confirmation from Franklin County Adult Probation establishing

11-24-08 as the official date that its office actually completed [a] Pre-Sentence Investigation Report

about Petitioner under a separate case No. 08CR-5057, solidify the impossibility of the court in

question to have truthfully considered a PSI Report before it unlawfully imposed Comm. Cntrl. Sanct.

On 01-30-08 under case No. 07CR-8717, (Ten Months Prior) ?

IN CONCLUSION OF PROPOSITION FOUR

If the court is inclined to answers yes to all of the above, then the conclusion of law must be that

after Petitioner had completed the lawful (1) year term of imprisonment under case No. 08CR-5057,

imposed simultaneously during the Revocation Hearing on 07-31-09, then the intervening justification

and or privilege of the Respondent to keep Petitioner, Mr. Roberts in her custody under the void

judgment ab initio no longer legally exist after that completion. See State v. Simpkins at¶ 42-43; State v.

Pickett(2009); State v. Mitchell(2001); State v. Preston, 155 Ohio App.3d 367 , 801 N.E.2d 501. These

courts have consistently held that, pursuant to R.C.§ 2951.03, courts have no statutory duty to impose

Comm. Cntrl. Sanct./Probation without first ordering a PSI from the Probation Dept., where no

statutory authority exists to support a judgment, res judicata does not act to bar a trial court from

correcting the error, nor does it bar a defendant from successive collateral attacks, due to the forever

legal nullity of the judgment, (emphasis).

Moreover, Rule 7 of the Rules of Superintendence for the courts of Ohio makes it incumbent

upon a court to journalize all judgments or [o]rders before they are of any legal force and effect. In the

case initially imposed against the liberty of Mr. Roberts,(07CR-8717) the Trial Courts [f]ailure to

journalize an effective PSI Order, like it did in case no. 08CR-5057 has effectively divested the

Franklin County Adult Probation Services Division of its subject-matter jurisdiction to enforce the

unlawfully imposed conditions as a matter under the Separation of Powers Doctrine.

19

See Kennedy v. Cleveland(1984) 16 Ohio ARp 3d 399 40216 OBR 469,471,476 N E 2d 683 687.

Furthermore, Crim R. 32(c) reflects the [a]xiom that a court of record speaks only through its

journal and not by oral pronouncement or mere written minute or memorandums, see State ex rel.

Hanley v. Roberts(1985).17 Ohio St.3d 1,4 476NE.2d 1019.

Although, in the judgment in question, the 10ih District correctly held in Roberts II, (10AP-223

at ¶10) that the "Sentencing Entry" specifically stated that the court had ordered and considered a PSI

Report, and notwithstanding the Judge's oral statements from the bench,(Short Form Report, Trs. 14),

that sole reliance, and legal determination based on those factors alone does not comport to law,

considering the fact that a "Sentencing Entry" is [n]ot a legally effective PSI ORDER, it only made

[r]eference to the,(non-existant) source document and does not suffice as substantive evidence that the

court actually did order a PSI, when it specifically and [in]dependantly does not exist within the clerks

journal itself. The ruling in Roberts rI conflicts, and is contrary to the previous ruling held in the same

district, see State v. Preston, 155 Ohio ARp 3d 367 , 801 N E.2d 501 Ohio App.10`h Dist., 2003 at ¶7.

Where the court recognized that the sentencing entry indicated parties waived a PSI

consideration. However, despite the sentencing entry reference as such, being that no such waiver

actually and independently existed within the record does not legally establish the truth of that fact and

does not comport to law, pursuant to Crim R.32(c), and SuperlnL R. 7.

In State v. Fischer 128 Ohio St.3d 92,942 NE.332 Ohio 2010, at ¶'s19,21,22,&23, that court

describes the fundamental difference between "void and voidable"judgments. If the judgment or

action of the court is contrary to legislative enactments, then that [a]ction is [Void], unlawful, illegal,

and strictly forbidden by law. The court goes on to point out the jurisdictional authority of the court,

and fundamental understanding of Constitutional democracy.

The authority to sentence in a criminal case is limited by the people through Ohio Constitution

and by our legislators, through the Revised Code. The court goes on to state "Judges have no inherent

power to create sentences, and are duty bound to apply sentencing laws as they are written, quoting

State v. Thomas(1996) Il Ohio App.3d 510 512, 676 N.E.2d 903.

Although, Fischer deals with the statutory requirements of Post Release Control, the principles

still applies in this case at bar, considering the strict mandating language of R.C. 2951.03, Crim R.

32.2.

In concluding this conclusion, the Court in, Aurora Loan Srvs. L.L.C. v. Car,Slip Copy2010 WL-

1057415 Ohio App. 11 `h Dist., 2010 stated; Motion to Vacate Void Judgment is properly

20

characterized as a common law motion to vacate, inasmuch as it contends that the underlying judgment

of the trial court is void ab initio, and the authority of the court to vacate such judgment is an inherent

power of the court. Westmoreland v Valley Homes Mut HousinQ Corp. (1975) 42 Ohio St.2d 291 294,

328 N.E.2d 406. " A proceeding to vacate a judgment on grounds that it is void for want of jurisdiction

is not subject to the provisions of Civ. R. 60(B), which apply to the vacation or modification of only

those judgments which are merely voidable and not those which are void ab initio." Linclon Tavern,

Inc. v. Snader(1956), 165 Ohio St. 61 , 133 N E.2d 606, at paragraph one of the syllabus; citing Patton

v. Deimer(1988) 35 Ohio St.3d 68 , 518 N.E.2d 941, at paragraph four of the syllabus.

The Aurora Loan Court further stated at ¶16 & 17; " A jurisdictional defect cannot be waived,"

and, therefore, "the lack of [subject-matter] jurisdiction can be raised at any time." State ex rel. Jones v.

Suster, 84 Ohio St. 3d 70 , 75 701 N.E. 1002 1998-Ohio-275 (citations omitted); Pratts v. Hurleu 102

Ohio St.3d 81 , 806 N E 2d 992,2004-Ohio 1980 at 1I 11 ('[b]ecause subject-matter jurisdiction goes to

the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged

at any time"). Accordingly, that aspect of the doctrine of res judicata barring a litigant from raising

issues that could have been raised at a prior point in the proceedings does not apply where the

underlying judgment is void for lack of subject-matter jurisdiction. State vWilson 73 Ohio St.3d 40,45

n. 6652 N.E. 2d 196 (Citation omitted), 1995-Ohio-217 73 Ohio St. 3d 40 652 N.E.2d 196: Fischer v.

Fisher, 10th Dist. No. 01Ap-1041, 2020-Ohio-3086 at ¶ 27 ("[p]rinciples of res judicata did not

prevernt defendant form seeking relief with a second motion to vacate judgment").

Wherefore: Petitioner/Appellant having been sent to prison from a revocation of a combined

probation/community control sanctions under two cases,(07CR-8717 & 08CR-5057) to run

consecutively, has successfully completed the [o]nly Constitutionally lawful judgment under the case

No. 08CR-5057, and that time having expired on or about June 6, 2010, he is now being held under the

unlawful , null and void judgment under case No. 07CR-8717, and is entitled to immediate release

from Prison on the underlying void judgment(s) in case No. 07CR-8717 as a matter of law.

See United States v. Greatwalker 62A . 8 2002) 285 F3d 727 729, where the Federal Ct. stated,

"Trial Courts judgment is [i]llegal, which generally means Forbidden by Law." Blacks Law Dictionay

(9`h Ed. 2009).

21

LAW AND ARGUMENT

Proposition of law Five: The State of Ohio's prophylactic procedural mechanism is deficient, andfailed to protect Petitioner's Federal Claims of ineffective assistance of counsel, Due Process andEqual Protection of Law under the 6th and 14th Amendments to the US Constitution.

In this instance, Petitioner/Appellant has acted with all due diligence in his repeatedly

unsuccessful attempts to gain relief under the State's remedial provisions. Mr. Roberts being under

conditions of Comm. Cntrl. Sanct. for (2) separate cases simultaneously, had a revocation hearing for

both cases on July 31, 2009.

Mr. Roberts was misled to believe that he was being revocated for an arrest that had been

dismissed prior to the hearing. Mr. Roberts was never afforded any fair due process notification of

statements of violations and suffered prejudiced by that failure, thus depriving him of an opportunity to

raise any defense against said surprise allegations. As a result, Mr. Roberts was thrown into prison

without the courts justification as to why he would be receiving the 5yr. Maximum sentence for his first

time felony 3 conviction that would run consecutively lyr. Felony 5 conviction. Furthermore, Mr.

Roberts was never advised of his right to appeal that decision.

However, Mr. Roberts initiated his own appeal from Prison, after discovering some structural

non-waivable jurisdictional issues. Believing in the fundamental fairness and justice within this States

Judicial System, he requested to have Appellate Counsel represent him in his appeal, 09AP-816. After

repeated attempts to get counsel to raise the structural issues for assignment of errors, counsel failed to

acknowledge those issues, even after receiving a filed stamped letter of legal instructions to do so.

Mr. Roberts sought leave to supplement counsel's much weaker argument to no avail, and then

sought leave for Judicial Notice. As a result of Appellate Counsels negligence, pursuant to Ohio

Professional Rules of Conduct, and ineffective assistance, Mr. Roberts suffered prejudiced by the

denial of his appeal that had been systematically highjacked by court appointed counsel. Mr. Roberts

filed a timely 26(B) Motion, which was also denied.

Before, the lOth District's ruling on 09AP-816, Mr. Roberts filed a Motion to Vacate Void

Sentence directly into the trial court, predicated on the clerks two separate journals that effectively

show when the same trial court did in fact comply with the law, pursuant to R.C. 2951.03 and Crim R.

32.2. The State responded in their contra motion filed February 17, 2009, admitting to the essential

elements of Mr. Roberts initial motion to vacate, " as being apparent from the record."

22

The trial court simply denied Appellant's motion without explanation, and he was forced to

appeal without any legal determination in which to appeal from,see Roberts II,(lOAP-223 at ¶10).

Despite the States admission to the veracity of Mr. Roberts' claim, the reviewing panel chose to

disregard the relevant facts, substantial evidence, and state's admissions of truth, to give an erroneous

legal determination. Mr. Roberts timely filed an application for reconsideration, and sought leave to

supplement it with "newly discoverd" evidence provided by the Franklin County Adult Probation Dept.

confirming the obvious error in their legal determination, and inadequately premised factfindings or its

admittedly erroneous legal determination. The Federal Courts have held; "States must afford the

petitioner a full and fair hearing on his federal claims", or else federal rehearing of the facts is required,

See Keeney v. Tamayo-Reyes 504 U.S. 1,10 (1992)

Mr. Roberts then filed a Common-Law Motion to Vacate Void Judgment ab initio, pursuant to

Crim R. 52(B), and a instanter Judicial Notice. Those motion have been pending in the trial court since

December 13, 2010, despite repeated request to proceed to judgment, and a letter of inquiry to the

Court Administrator. As a consequence, Mr. Roberts again sought relief by way of the great writ of

habeas corpus, and despite all his dispositve motions the Habeas Court failed to afford this petitioner a

full and fair due process, and equal protection hearing on his federal claims, See Townsend v. Sain,372

U.S. 293 312(1963), where the court held; state determinations of fact not binding in federal habeas

proceedings if not based on full and fair factfindings.

Yet and still Mr. Roberts repeated attempts at remedial redress and presentation to state courts

have been futile, based on the state's "ineffective corrective process. " See Smith v. Wyrick 693 F2d

808 810(8' Cir.1982) cert. Denied, 460 US.1024(1983). The US Supreme Court held in re, Brecht v.

Abrahamson,507 U.S.619113 S.Ct.1710 US.IJrs. 1993, citing Chayman v. California, 386 U.S.1887

S.Ct. 824, 17 L.Ed2d 705(1967, despite potential friction between federal and state courts, established

the federal nature of the harmless-error standard to be applied when constitutional rights are at stake.

Such rights are "rooted in the bill of Rights, offered and championed by Congress that the independent

federal courts would be the'guardians of those rights.' Id. at 21 , 87 S.Ct. At 826 (footnote omitted).

Thus,"[w]hether a conviction for crime should stand when a State has failed to accord ** 1726

federal constitutionally guaranteed rights is every bit as much of a federal question as what particular

federal constitutional provisions themselves mean, what they guarantee, and whether they have been

denied. With faithfulness to the constitutional union of the States, we cannot leave to the States the

23

formulation of the authoritative laws, rules, and remedies designed to protect people from infractions

by the States of federally guaranteed rights." Ibid. (emphasis added).

"[T]he threat of habeas serves as a necessary additional incentive for trial and appellate courts

throughout the land to conduct their proceedings in a manner consistent with established constitutional

standards." Desist v. United States 394 U S 244 262-263 89 S Ct 1030 104122 L Ed.2d 248 (1969)

(Harlan, J., dissenting); see also Teague v. Lane 489 U S 288 306 . 109 S.Ct. 1060 1073, 103 L.Ed.2d

334 (1989) (plurality opinion). In response, the majority characterizes review of the Chapman

determination by a federal habeas court as "scarcely ... logical," ante, at 1721, and, in any event, sees

no evidence that deterrence is needed. Ibid. Yet the logic of such practice is not ours to assess for, as

Justice Frankfurter explained:

"Congress could have left the enforcement of federal constitutional rights governing theadministration

of criminal justice in the States exclusively to the State courts. These tribunals are under the same duty

as the federal courts to respect rights under the United States Constitution.... But the wisdom of such a

modification in the law is for Congress to consider...." *649 Brown v. Allen 344 U.S. 443 499-500, 73

S Ct 397 442-443 97 L Ed 469 (1953) (opinion of Frankfurter, J.).

"[T]he prior State determination of a claim under the United States Constitution cannot* * 1728

foreclose consideration of such a claim, else the State court would have the final say which the

Congress ... provided it should not have." Id. , at 500. 73 S.Ct., at 443.

See also Reed v. Ross 468 U S 1 10 , 104 S Ct 2901 , 2907 82 L Ed 2d 1(1984). As for the

"empirical evidence" the majority apparently seeks, I cannot understand its import. Either state courts

are faithful to federal law, in which case there is no cost in applying the Chapman as opposed to the

Kotteakos standard on collateral review; or they are not, and it is precisely the role of habeas corpus to

rectify that situation.

Ultimately, the central question is whether States may detain someone whose conviction was

tarnished by a constitutional violation that is not harmless beyond a reasonable doubt. Chapman-- ---- -

dictates that they may not; the majority suggests that, so long as direct review has not corrected this

error in time, they may. If state courts remain obliged to apply Chapman, and in light of the

infrequency

24

with which we grant certiorari, I fail to see how this decision can be reconciled with Congress' intent.

Teague v Lane 489 U S 288 , 299 310 109 S Ct 1060, 1069-1075, 103 L.Ed.2d 334 (1989) ( habeas

claims adjudicated under the law prevailing at time conviction became final and not on the basis of

intervening changes of law). But decisions concerning the Great Writ "warrant restraint," Withrow, 507

U S at 700 113 S.Ct., at 1758 (O'CONNOR, J., concurring in part and dissenting in part), for we

ought not take lightly alteration of that "`fundamental safeguard against unlawful custody,' " id., at

697-698, 113 S.Ct., at 1756 (quoting Fa v. Noia, 372 U.S. 391, 449, 83 S.Ct. 822. 854, 9 L.Ed.2d 837

1963 (Harlan, J., dissenting)).

In my view, restraint should control our decision today. The issue before us is not whether we

should remove from the cognizance of the federal courts on habeas a discrete prophylactic rule

unrelated to the truthfinding function of trial, as was the case in Stone v. Powell, 428 U.S. 465 96 S.Ct.

3037 , 49 L .Ed.2d 1067 (1976), and more recently in Withrow v. Williams 507 U.S. 680, 113 S.Ct.

1745. 123 L.Ed.2d 407. Rather, we are asked to alter a standard that not only finds application in

virtually every case of error but that also may be critical to our faith in the reliability of the criminal

process. **1729 Because I am not convinced that the principles governing the exercise of our habeas

powers-federalism, finality, and fairness-counsel against applying Chapman's harmless-error standard

on collateral review, I would adhere to our *651 former practice of applying it to cases on habeas and

direct review alike. See ante, at 1717-1718. I therefore respectfully dissent.

IN CONCLUSION OF PROPOSITION OF LAW FIVE

Nonetheless, it seems to me that the Court's decision cuts too broadly and deeply to comport

with the equitable and remedial nature of the habeas writ; it is neither justified nor *657 justifiable

from the standpoint of fairness or judicial efficiency. It is the solemn duty of [State] courts, to

safeguard personal liberties and consider Federal Claims in accord with Federal Laws, Tee v. Lane,

and Evitts v. Lucey, 469 U.S.387 393(1985).

Furthermore, Res Judicata is [in]applicable and does not comport to barr a[f]irst time Habeas

Petitioner, who colorfully raises, [non- waivable jurisdictional defects] with utmost particularity. See

Terwood v. Harrison(1967) 10 Ohio St 2d 170 , 171 , 226 N E 2d 111 at ¶ 16, which held; "A

Jurisdictional defect cannot be waived," and therefore, the lack of (subject-matter) jurisdiction, and or

[A]uthority to act, (emphasis) can be raised at anytime, (¶17) Accordingly, that aspect of res judicata

barring a litigant

25

from raising issues that could have been raised at a prior point in a proceeding does not apply where the

underlying judgment is "void". See State v. Wilson, 73 Ohio St.3d 40,45 n.6, 652 N.E.2d 196, citing

Fisher v. Fisher 10`" Dist. No OIAP-1041 2002-Ohio-3086 at ¶ 27.

Wherefore, all said reasons as setforth in the above Five Propositions of Law,

Petitioner/Appellant, Mr. Roberts prays relief by the granting of this appeal and the ascertainment of

truth by this Honorable Court, to the acknowledgment and confinnation of the initial void judgment

filed in the Franklin County Court of Common Pleas on February 1, 2008, and July 31,

2009,(Revocation Hearing) under Case No. 07CR-8717, notwithstanding the Federal Claims of Due

Process and Equal Protection violations under the Ohio Constitution, as well as the United States

Constitution.

Respectfully submitted,

Counsel of Record for Appellee:

State of Ohio Attorney GeneralMike DewineAssistant Attny. GeneralGene D. Parks30 East Broad Street, 17ih FloorColumbus, Oh 43215

CERTIFICATE OF SERVICEI do hereby certify that I did forward a copy of this motion upon Defendants, Counsel of

Record,Gene Park, located at the address above, via., regular US Mail on this^ ay of September, 2011.

26

APPENDIX

APPENDIX TABLE OF CONTENTS

TAB NO.

Notice of Appeal to Ohio Supreme CourtAu st12, 2011 1( ^ ) ............................................................................................................................

Decision and Judgment Entry of Court of Appeals, Fourth District( Y ) .................................................................................................................................Jul 19, 2011 2

Memo Decision on Motion for Reconsideration,(vacate) Court of Appeals, Tenth District(October 28, 2010) ........................................................................................................................... 3

Decision on Motion to Vacate Appeal from Fr. County Com. Pls. to Tenth District Appeals Ct.(September 14, 2010) ....................................................................................................................... 4

Judgment Entry on Motion to Vacate from Common Pleas Court, Franklin County

(January ) ..............................................................................................................................Januat1, 2010 5

Judgment Entry on Revocation Appeal from Appeals Court, Tenth District

(March ) ..............................................................................................................................30, 2010 6

EXHIBIT PAGES

Certified Clerk's Appearance Docket No. 07CR-8717 .................................................................... A

Clerk's Appearance Docket No. 08CR-5057 ................................................................................... B

Franklin County Adult Probation Services confirmation letter ..................................................... B 1

Clerk's Appearance Docket No. 09AP-816 ...................................................................................... C

State Prosecutor's Contra-Memo ..................................................................................................... D

Tenth Dist. Decision on Motion to Vacate Voided Sentence, App. No. 10AP-223(September 14, 2010), (See Tab No. 4) ............................................................................................ E

Copy of Petitioner's 26(A) Application for Reconsideration of App. No. 10AP-223 ...................... F

Appellant/Petitioner's Affidavit of Verity ........................................................................................ G

Cited Statutes, Criminal Rules and Relevant Case Law .................................................................. H

6UPREME COURT OF OHIO ^^ _ 1^ 6 L^2u1 l AiJ^ k 2^^^ 2011

MICHAEL ROBERTS ) CASE NO.Sp^^^^ ►tt^ on appeal from Court <c3I AppealsPetitionTA

-vs- C4Ct;}` ^ CgrOR^^ ) Ross County, 4tn 13i-qt:rict,T i

ROBIN KNAB, CCI WARDENAppellee,

)Case No.11CA-3.:>35

(Original Action)Decision Rendered On

July 19,2011

NOTICE OF APPEAL OF APPELLANT MICHAEL ROBERTS

MICHAEL ROBERTS #609-069 (COUNSEL OF RECORD)C.C.I. P.O. Box #5500CHILLICOTHE, OH 45601

COUNSEL FOR APPELLANT, PRO SE

ASSISTANT OHIO ATTORNEY GENERALGENE D. PARK*(COUNSEL OF RECORD)150 E. GAY STREET,16TH FLOORCOLUMBUS, OH 43215

COUNSEL FOR APPELLEE, ROBIN KNAB,C.C.I. WARDEN

^AUG 10 Z0111

CLERK OF COURT ISUPREME COURT OF OHIO

(^^^ (T,q8 I)

Notice of Appeal of Appellant Michael Roberts

Appellant Michael Roberts hereby gives notice of appeal to the Supreme Court of Ohio from

the

judgment of the Court of Appeals, Ross County, Fourth Appellate District, entered on July 19, 2011,

under case No. 11CA-003235.

This case is an appeal of appellant's Writ of Habeas Corpus filed as an original action in the

Court of Appeals. 1'he Writ of Habeas Corpus calls into question the intervening justification of C.C.I.

Warden Robin Knab to continue to hold Michael Roberts in custody, predicated on a Null & Void

Judgment ab inito, filed in the Franklin County Court of Common Pleas on February 1, 2008 under

Case No. 07CR-8717, and a subsequent Revocation Entry filed on July 31, 2009 based on the Court's

[in]valid imposition of Community Control Sanctions in the [f]irst instance.

The Writ establishes a[c]ontroversy attacking the trial court's jurisdictional authority to

circumvent Crim R. 32.2 and R.C.§ 2951.03 when it imposed Comm. Cntrl. Sanct. on 02-01-08, and

the trial court's subject-matter jurisdiction to Revoke the [i]nvalid term to now include a term of

imprisonment.

Respectfully submitted,

chael Roberts #609-069

CERTIFIACATE OF SERVICEI certify that a copy of this Notice of Appeal was sent by ordinary U.S. Mail to counsel of

appellEe,--Robin-Kr.ab,Asst.-OhicsA3tny.C-ren., Oene-D.-Park,-1-1.LE-Fsery-Street 1-6`h-Floor -ColumbusOH 43215 on d[dg ^; 2011.

RrQ" - _

p3c ^- ( -A 6 1)

IN THE COURT OF APPEALS OF OHIOFOURTH APPELLATE DISTRICT

ROSS COUNTY

Michael Roberts,

Petitioner,

V.

Robin Knab, Warden,

Respondent.

Case No. 11 CA3235

DECISION ANDJUDGMENT ENTRY

APPEARANCES:

Michael Roberts, Chillicothe Correctional Institution, Petitioner.

Michael DeWine, Ohio Attorney General, and Gene D. Park, Assistant AttorneyGeneral, Columbus, Ohio, for Respondent.

McFarland, J.:

Petitioner, Michael Roberts, has filed a petition for a writ of habeas corpus to

compel respondent, Chillicothe Correctional Institution Warden Robin Knab, to release

him from prison. Roberts argues that his conviction on one count of robbery is void

because the trial court failed to order and consider a pre-sentence investigation report

prior to sentencing him. Because res judicata bars Roberts from raising this issue, the

writ of habeas corpus is DENIED and the petition is sua sponte DISMISSED.

In February 2008, Roberts pleaded guilty to a single count of robbery. The trial

court sentenced Roberts to five years of community control. However, in July_2009, the

trial court revoked Roberts' community control and imposed a five-year prison

sentence. The Tenth District Court of Appeals affirmed. See State v. Roberts, Franklin

16t ^,

(TAb l.^..yJ

3 zoss App. No. 11 CA3235 2

App. No. 09AP-816, 2010-Ohio-1326.

While his appeal of the revocation of his community control was pending,

Roberts filed a motion to vacate his original conviction in the trial court. He argued that

the sentence in his underlying conviction was invalid because the trial court had

imposed community control without ordering a pre-sentence investigation report. The

trial court denied Roberts' motion. On appeal, the Tenth District Court of Appeals

disagreed with Roberts' review of the record and affirmed the trial court's decision. In

dair,gr so, the court found that "[t]he trial court's February 1, 2008 sentencing entry

specifically states that '[t]he court ordered and received a pre-sentence investigation."'

The court further observed that during the January 30, 2011 sentencing hearing the trial

court noted that it had before it a "short-form presentence report." See State v.

Roberts, Franklin App. No. 10AP-223, 2010-Ohio-4324, ¶10.

As we noted earlier, Roberts has raised the same claim in this petition for a writ

of habeas corpus that he did in his motion to vacate. Res judicata, however, bars a

petitioner from obtaining successive appellate review of the same issue. Shie v. Smith,

123 Ohio St.3d 89; 2009-Ohio-4079, ¶2. See, also, Smith v. Voorhies, 119 Ohio St.3d

345, 2008-Ohio-4479, at ¶1. As such, Roberts is forever barred from raising this claim.

CASE.=DISM4SSED. !COSTS TO PETiTIOfVER. ANY PENDING MOTIONS ARE

DENIED AS MOOT. IT IS SO ORDERED.

Harsha, P.J., Abele, J.: Concur.

FOR THE COURT

Matthew W. McFarlandAdministrative Judge

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appellee,

V.

Michael L. Roberts,

Defendant-Appellant.

AT(lOCT28 Py 09

CLERK OF COURTS

No. 10AP-223(C.P.C. No. 07CR12-8717)

(REGULAR CALENDAR)

MEMORANDUM DECISION

Rendered on October 28, 2010

Ron O'Brien, Prosecuting Attorney, and Barbara A.Fambacher, for appellee.

Michael L. Roberts, pro se.

ON MOTION FOR RECONSIDERATION

SADLER, J.

{¶1} Appellant, Michael L. Roberts ("appellant"), has filed a motion for

reconsideration asking that we reconsider our decision in this case, in which we

affirmed a judgment by the Franklin County Court of Common Pleas denying appellant's

motion to vacate his sentence. State v. Roberts, 10th Dist. No. 10AP-223, 2010-Ohio-

4324. Appellant subsequently filed a motion seeking to amend his motion for

I

No. 10AP=223 2

T5(09ajt%rf&;?%hich we granted. Appellant then filed a motion seeking to enlarge the

^ytirtla T^►'^'^in^ a' ,motion for reconsideration, making reference to his amended motion for

reconsideration. Because we accepted appellant's amended motion for

reconsideration, appellant's motion to enlarge the time for filing the motion is rendered

moot.

{¶2} In deciding whether to grant a motion for reconsideration (more properly

titled an application for reconsideration), we must determine whether the application

"calls to the attention of the court an obvious error in its decision, or raises an issue for

consideration that was either not considered at all or was not fully considered by the

court when it should have been." Columbus v. Hodge ( 1987), 37 Ohio App.3d 68, citing

Matthews v. Matthews (1981), 5 Ohio App.3d 140. However, "[a]n application for

reconsideration is not designed for use in instances where a party simply disagrees with

the conclusions reached and the logic used by an appellate court." State v. Owens

( 1996), 112 Ohio App.3d 334, 336, dismissed, appeal not allowed, 77 Ohio St.3d 1487.

{¶3} In our decision in this case, we overruled appellant's two assignments of

error, which involved appellant's assertion that the sentence imposed on him after his

plea of guiJty to one count of robbery was void, because the trial court purportedly

imposed a term of community control (subsequently revoked) without having a

presentence investigation report prepared in violation of Crim.R. 32.2 and R.C. 2951.03.

We-repected- appellant's assertion--because -our-r-e-vie-w-of-the record-sho_wert that"[t]he

trial court's February 1, 2008 sentencing entry specifically states that'[t]he court ordered

and received a pre-sentence investigatio.n[.]' Furthermore, at the January 30, 2008

No. 10AP-223 3

sentencing hearing, the trial court stated, `I do have before me a short-form presentence

report.' (Tr: 14.)" Roberts at 110.

{114} In his motion for reconsideration, appellant continues to argue that the trial

court did not have a presentence investigation prepared before imposing a term of

community control, notwithstanding that the sentencing entry and the transcript of the

sentencing hearing i

ider:

1115) Therefore, appellant's motion for reconsideration is denied.

Motion for reconsideration denied.

KLATT and FRENCH, JJ,, concur.

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

Plaintiff-Appellee,

V.

Michael L. Roberts,

Defend a nt-Appe llant.

_Fn

SEP Ii+ pM 17:u8

:LErit i;r GOU^i1- S

No. 10AP-223(C.P.C. No. 07CR12-8717)

(REGULAR CALENDAR)

D E C I S 1 O N

Rendered on September 14, 2010

Ron O'Brien, Prosecuting Attorney, and Barbara A.Fambacher, for appellee.

Michael L. Roberts, pro se.

APPEAL from the Franklin County Court of Common Pleas.

SADLER, J.

{¶1} Appellant, Michael L. Roberts ("appellant"), filed this appeal seeking

reversal of a judgment by the Franklin County Court of Common Pleas denying his

m- o-tian-xo-vaca-te-has-sentence: For-the rea-§ons-that-foitaw, we affirm.

{¶2} On December 6, 2007, appellant was indicted on two counts of robbery in

violation of R.C. 2911.02. On January 30, 2008, appellant entered a plea of guilty to

(7_tq ,6 4]

No. 10AP-2232

one count of robbery„` a third-degree''felony, and a nolle prosequi was entered on the

other count. In aneri'tryfiled on February 1, 2008, the trial court imposed five years of

community control sanctions; and_included a statement that if community control were

ever to be revoked,appeltant would be sentenced to a term of five years in prison. No

appeal was filed from the trial court's sentence.

{¶3} On November 18, 2008, a probation officer filed a request for revocation of

appeliant's commuhity; control, alleging that appeiiant had vioiated a number of the

terms of the community control. The trial court declined to revoke, and imposed

additional conditions on appellant's community control, including successful completion

of a community based correctional facility ("CBCF") program.

(¶4} On February 27, 2009, a probation officer filed a second request for

revocation of community control, alleging as grounds that appellant had failed to

successfully complete the CBCF program. The trial court again declined to revoke and

instead reduced the period of community control to two years, stating that if appellant

violated any of the conditions for community control within the next year, appellant

would be required to serve a sentence of incarceration of "five years plus 12 months

consecutive."

{¶5} On July 6, 2009, a probation officer filed a third request for revocation of

community control, alleging that appellant violated a number of conditions for

community control. On July 31, 2009, the trial court conducted a hearing, after which

the court revoked appellant's community control and imposed a five-year sentence of

imprisonment. We affirmed the trial court's decision. State v. Roberts, 10th Dist. No.

09AP-816, 2010-Ohio-1326.

No. 10AP-223 3

{¶6} On January 14, 2010, while appellant's appeal of the trial courts decision

revoking community control was still pending before us, appellant filed a pleading with

the trial court entitled "MOTION TO VACATE A VOIDED SENTENCE." Appellant

argued that he was entitled to have his sentence vacated on the grounds that, in its

original sentencing entry, the trial court had imposed a sentence of community control

without ordering a pre-sentence investigation as required by Crim.R. 32.2 and R.C.

2951.03. The state filed a memorandum contra, arguing that: (1) the motion constituted

a petition seeking post-conviction relief, and did not meet the requirements for timely

filing of such a petition; (2) appellant's claim was barred by the doctrine of res judicata;.

and (3) appellant's claim lacked merit, since the trial court had not ordered a pre-

sentence investigation prior to sentencing appellant to a term of communi^ tv control

because appellant had requested that the trial court proceed immediately to sentencing

after the guilty plea was entered.

{¶7} The trial court issued an entry denying appellant's motion without

explanation. Appellant filed this appeal, asserting two assignments of error:

Proposition of Law Error One: Trial Court erred onFebruary 1, 2008, when it imposed Cornmunitv ControlSanctions before ordering a Pre-Sentence Investigation inpursuant to R.C. §2951.03, and Crim. R. 32.2.

Proposition of Law Error Two: Trial Court lacked subjectmatter jurisdiction to impose modifications and or imposed aprison term from revocation of a voided sentence ab initio.

{9} Appellant's assignments of error are interrelated, and will therefore be

addressed together. Appellant essentially argues that the sentence imposed on him

was void, and should therefore be vacated.

No. 10AP-2234

{¶9} Crim.R. 32.2 provides that "ji]n felony cases the court shall, and in

misdemeanor cases the court may, order a presentence investigation and report before

imposing community control sanctions or granting probation." Similarly, R.C.

2951.03(A)(1) provides, in relevant part, that "[n]o person who hassbeen convicted of or

pleaded guilty to a felony shall be placed under a community control sanction until a

written presentence investigation report has been considered by the court." Appellant

argues tiiat the iriaf cuurt did not order a pre-sentence irrvestigation before imposing the

sentence of five years of community control, and that this failure renders his sentence

void.

{1110} A review of the record shows that there is no merit to appellant's

contention that the trial court imposed community control without ordering or receiving a

pre-sentence investigation report. The trial court's February 1, 2008 sentencing entry

specifically states thaf "[t]he court ordered and received a pre-sentence investigation."

Furthermore, at the January 30, 2008 sentencing hearing, the trial court stated, "I do

have before me a short-form presentence report." (Tr. 14.)

{¶11} Consequently, the trial court did not err in denying appellant's motion

seeking vacation of his sentence. Therefore, appellant's two assignments of error are

overruled.

{¶12} Having overruled appellant's two assignments of error, we affirm the

judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

KLATT and FRENCH, JJ., concur.

IN THE COURT OF COMMON PLEAS, FRANKLIN COUNTY, OHIO

STATE OF OHIO1

Plaintiff,

v. Case No. 07CR-8717 (Cocroft, J.)

MICHAEL L. ROBERTS,

Defendant.

ENTRY DENYING DEFENDANT'S MOTION TO VACATE A VOIDED SENTENCEFILED 1-14-2010

This cause came on for consideration upon Defendant's Motion to Vacate a

Voided Sentence filed 1-14-2010 and Plaintiffs Memorandum Contra filed 2-17-2010.

Defendant's motion is DENIED.

SO ORDERED.

Copies to:

Richard TermuhlenCounsel for Plaintiff

Michael RobertsDefendant pro se

wko

5)(14

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio,

. Plaintiff-Appellee,

Michael L. Roberts,

Defendant-Appellant.

JUDGMENT ENTRY

No. 09AP-816(C.P.C. No. 07CR-12-8717)

(REGULAR CALENDAR)

14

For the reasons stated in the decision of this court rendered herein on

March 30, 2010, appellant's pro se "motion of judicial notice," filed subsequent to the

filing of appellant's counsel's brief, is denied. Appellant's single assignment of error is

overruled, and it is the judgment and order of this court that the judgment of the Franklin

County Court of Common Pleas is affirmed. Costs are assessed against appellant.

BROWN, J., TYACK, P.J., & FRENCH, J.

Judge Susan Brown

^^b ^)

Cririiinal Case Detail

® iAdvencetl Soarch

CRIMINAL CASE DETAIL.reviou 'fls2

CASE NUMBER07 CR 008717

JUDGEKIMBERLY COCROFT

DEFENDANT(S)Name

®MICHAEL L ROBERTS

i Einail UDdates

HOW FILED DATE FILED MUN COMP ARREST DATE STATUS

INDICTMENT 12/06/2007 CPD 30181/07 11127/2007 CLOSED

PROSECUTORCOURTROOMCOURTROOM 4E345 SOUTH HIGH STREET4TH FLOOR

OH 43215COLUMBUS THESdATE0^O8S`J

UB G"u!M',i12"u'.11k+k,OF Tl,i'c COilia3' OF G<wNMG

k1 M%^dSi°11i$ 6ti

RICHARD TERMUHLEN

,1 Fran;tGr Gounbl, ss

,PLk:AS, ",.D COUN11;

AttorneySSN: XXX-XX- MICHAEL D WINSTON0000

! HEREIiv CERTiF `^ ^^ Hni- T"E ABOVE AND F(1RE_{iS TRU„Y TA"t(EPd hND (:CRNEJ, s(1i11 Tn

Co-De(endant(s)Nane

eONl ON FtCE1N t,4N OFECEWJBE°^ fvi'f HANiJ AND S OF Qa^J f;Ql1 ^^

F^ CHARGES totsciaimeo The rsted "Ott. Data" may ba inaceurate oo caJdateoltheOH so.6eedockatentresbelowiorCaseHistory

Off. Date Code Description

11/27/07 2911.02 ROBBERYSpeciDcationsiNone

11/27/07 2911.02 ROBBERYSpec^oations:None

f^ BONDSDate Type12/10/07 APPEARANCE12/10/07 SURETY12/10/07 RECOG

HE-IND163MENT

DegreeF2

F3

Status Amount Descriplion Posted By

INACTIVE 20,00000 BONDSET - APPEARANCE N/A

INACTIVE 25,00000 BONDSET -SURETY N/A

INACTIVE 10,000.00 BOND SET - RECOGNIZANCE N/A

DOCKETShowAll Select Docket All ^ Stan Prev Jul s$ 11Category ._. .. .. _ . . ' Date

Descriptions E

Date Chg.Description Image Fiche Frame

LvI 777 052^06/22/11 02 MOTION DENIED 57

06/15/11 00 LETTERS57773 G19

®57773 G12

^'(06/15I11p0E103/11

0000

LETiERSMASS TRANFER OF JUDGE LOCATION

@04126/11 00 MISCELLANEOUS PAPER FILED 57744 T82

(si' 04/12/11 00 MEMORANDUM CONTRA FILED 57736 C73

yx 03/23/11 00 MISCELLANEOUS ORDER 57722 Y22,

03123/11 00 APPEAL MEMO DECISION 57722 Y16

03121/11 01 PRAECIPE TO THE CLERK 57720 X04

^0321/11 02 JUDICIAL RELEASE - MOTION FOR 57720 X04

0 PRAECIPETOTHECLERK 57720 X0403/21/11

g902/23/112

00 APPEALDISMISSED - OHIOSUPREMECOURT 57706 M61

MISCELLANEOUS PAPER FILED 57676 S51^01/25/11

01113/110000 APPEAL MEMO DECISION 57669

-

U36

-[+g01/11/11 00 LETTERS 67668

576681A@3V90

@01/11/11 00 LETTERSEfe 12/30/10 00 MISCELLANEOUS PAPER FILED 57665 K53

9312116110 00 MEMORANDUM CONTRA FILED 57655 L72

a^ 12116/10 00 MEMORANDUM CONTRA FILED 57655 L64

12/13/10 00 AFFIDAVIT OF INDIGENCY 74 57650 027

ig 12/13/10 01 MOTION FILED57650 024

M12/13/10 01 MOTION FILED57650 006

012113/10 02 MOTION FILED 57650 024

^12/13/10 02 MOTION FILED57650 006

®11/09/10 00 MISCELLANEOUSORDER 57633 G16

11/09110 00 APPEAL MEMO DECISION 57633 F19

10/06/10 00 APPEALDECISION 57608 T82

M10/06/10 01 JUDGMENT AFFIRMED - COURT OF APPEALS 57608 U39

ext

Pages

2

^^,6;f ^https://fcdcfcj s.co.franklin.oh.us/CaseInformationOnline/caseSearch?FDpuZTPZwMvm4n... 7/11/2011

Page 1 of 3

as^

c9A( HNES ,tIe^i wS1MAR^NODispositionNOLLE

9ri^ROSEOUI-IIJHAR E

eA'J^lr

I Criminal Case Detail Page 2 of 3

57624 P61 3Q09129/10 00 LETTERS 57590 T49E09/20/10 00 LETTERS 57590 T41 2W09/20I10 00 LETTERS 57551 J65 4D07I20/10 00 LETTERS 57482 J66.e. 04/16110 00 MISCELLANEOUS PAPER FILED

57474 U71 604/08110 00 APPEAL DECISION

M04108/10 01 JUDGMENT AFFIRMED - COURT OF APPEALS57474 U53 2

03/25/10 00 RECORD CERTIFICATION SHEET WITH PLEADS 97-109.03111110 00 AFFIDAVIT OF INDIGENCY ^ 57498 G77

[303111/10 00 DOCKETING STATEMENT FILED $` 57498 G762

il03/11/10 01 NOTICE OF APPEAL FILED - COURT OF APPEALS57498 G74

1RI02/25I10 01 MOTION DENIED ^ 57450 J24

1@02124/10 00 LETTERS ^ 57449 P38

M02124/10 00 MISCELLANEOUS PAPER FILED ^ 57449 T13 2

MEMORANDUM CONTRA FILED ^ 57443 E98 73102/17110

02/17/100001 MOTION FILED ^ 57443 FO6 2

.}^ 57443 F06 25102117/10 02 MOTION FILED R 1E102/16/10 00 ASSIGNMENT OF ASSISTANT PROSECUTING ATTORNEY

5743757437

16Ri6 1

M02/16/10 00 PROSECUTORWITHDRAWN

R01/14/10 01 MOTION FILED57422 H83

,[Sj01/14/10 01 MOTION FILED

5742257422

H81

H83

2

Ig']01/14/10 02 MOTION FILED 57422 H81 2M01/14/10 02 MOTION FILED 57389 Q82 3M 11/30109 00

LETTERS THERECORDRS TO10/27/09 00 .SUPPLEMENTAL RECORD TO ADD 2 T r^ 57398 W86 38910/21/09 00 TRANSCRIPT-FILED

57398 NB3 23(^10/21/09 00 TRANSCRIPT-FILED 57344 Y24 1

09/16I09 00 ADDITIONALCOSTBILLFROMNIGHTLYRUN

09/16109 00 ADDITIONAL COST BILL REQUESTED09/11/09 00 RECORD CERTIFICATION SHEET 91 PLS. +a_ 57337 %12 1

^J09108/09 00 MISCELLANEOUS PAPER FILED57394 C2B 1

08/28/09 00 AFFIDAVIT OF INDIGENCY 57394 C26 1508/28/09 00 DOCKETING STATEMENT FILED

94 C27 208/28109 01 PRAECIPE TO THE CLERK ^

57339 C25 1

308/28/09 01 NOTICE OF APPEAL FILED - COURT OF APPEALS57 4

6 K59 1M08/26/09 00 COURT REPORTER CERTIFICATE FILED M 5733

5 319 B99 2M 08/06/09 00 WARRANTTOCONVEYRETURNED-SERVED y¢ 7

57315 103 1EB08/03/09 00 WARRANT TO CONVEY 57308 X03 2M07/31/09 00 COSTS SUSPENDED IN PART

0713V09 00 CRIMINAL DISPOSITION SHEET FILED ^ 57308 X0207/31/09 00 NOTICE -PRISONIMPOSED 57308 X03 2

,+107131/09 02 JAIL TIME CREDIT^ 7308 X03 2

07/31109 02 POST RELEASE CONTROLyy 5

7308 X03 2107/31/09 02 INCARCERATION

5. 57308 X03 2(]07/31/09 02 PROBATION - REVOKED 57301 U15007/13109 00 NOTICE RETURNED@07/08/09 00 ORIGINAL COPY OF HEARING NOTICE FILED

® 07/08/09 00 ORIGINAL COPY OF HEARING NOTICE FILED

I-^" 07/08/09 00 ORIGINAL COPY OF HEARING NOTICE FILED 57284 K62®07/07/09 01 HEARING/ EVENT SCHEDULED 57284 K62@07/07109 02 HEARING I EVENT SCHEDULED 5728857288 C13'^07/06I09 02 REVOKEPROBATION -REQUESTTO

NG16

^]04/09/09 00 ADDITIONAL COST BILL FROM NIGHTLY RU57225 T53

04/06/09 02 ADDITIONAL CONDITIONS OF PROBATION ^ 57225 T53N 04/06/09 02 PROBATION - PLACEMENT

57224 W98®03126/09 00 COURT REPORTER CERTIFICATE FILED 57224 R14

03/26/09 00 CRIMINALDISPOSITIONSHEETFILED57225 E85 2

N 03126109 02 JAIL TIME CREDIT ^^

57225 E65 2^03/26/09 02 COMMUNITY CONTROL - PLACEMENT 57212 E29l^103/10/09 00 NOTICE RETURNED 57200 U49M 02I27109 02 REVOKE PROBATION - REQUEST TO

d 02126/09 00 ORIGINAL COPY OF HEARING NOTICE FILED

(-#^02/26/09 00 ORIGINAL COPY OF HEARING NOTICE FILED

W02126/09 00 ORIGINAL COPY OF HEARING NOTICE FILED 57190 N40N 02125I09 01 HEARING/EVENTSCHEDULED

UP000 A01Z102125/09 02 HEARING/EVENTSCHEDULED 57185 062M02/10/09 01 PROBATION - HOLD

®02106/09 00 MASS TRANFER OF JUDGE LOCATION 57174 G91012118/08 00 ADDITIONAL COST BILL FROM NIGHTLY RUN ^ 57137 P14^12/04/06 00 MISCELLANEOUS ORDER

^57140 Y31

12/04/08 00 ORDERTOTRANSPORT1`' 57140 Y31

^ 12/04/08 01 PROBATION - HOLD y57137 P14

n12104108_ 02INCARCERATION .._571-00... 055_12/03/08 00 CRIMINAL DISPOSITION SHEET FILED 57136 X15

5112102/08 00 NOTICE RETURNED 57134 E35911/24/08 00 NOTICE RETURNED 57126 K01gi11/18I08 02 REVOKE PROBATION - REQUEST TO

M11117108 00 ORIGINAL COPY OF HEARING NOTICE FILED

[111/17/08 00 ORIGINAL COPY OF HEARING NOTICE FILED

I'g 11/17/08 00 ORIGINAL COPY OF HEARING NOTICE FILED ^ 57114 X3311I06108 00 CRIMINAL DISPOSITION SHEET FILED ^ 57114 X33

.11/06/08 01 SCHEDULING ORDER ^ 57114 X33=11/O6108 02 SCHEDULINGORDER

A 10130/08 00 ORIGINAL COPY OF HEARING NOTICE FILED^p] 10/30/08 00 ORIGINAL COPY OF HEARING NOTICE FILED

ED010/30/08 00 ORIGINAL COPY OF HEARING NOTICE FIL 57114 J01:110130I08 01 CONTINUANCE - COURTREQUEST ^ UP000 A01

10/30/08 E T02 CONTINUANCE- COURTREQU S

(^a AJhttps://fcdcfcj s.co.franklin.oh.us/CaseInformationOnline/caseSearch?FDpuZTPZwMvm4n... 7/11/2011

Criminal Case DetailPage 3 of 3

m 57114 H26 2M 10127/08 00 BONDHEARING - MOTIONFOR 57114 H26 2JEJ 10/27108 01 HEARING / EVENT SCHEDULED

UP000 A01 110/27/08 02 HEARING / EVENT SCHEDULED 57111 D6110120/08 01 PROBATION - HOLD 57096 L19 1

[A 10/02/08 01 PROBATION - HOLD

06/23/08 00 BALANCE 161.00 / FCS $90706123/08 00 SECURITY DEPOSIT RECENED

(g706/23/08 00 CLERKFEE

9106123108 00 APPLIED - FRANKLIN COUNTY SHERIFF 00W03119/08 00 BONDINACTIVATED 00®03/19108 00 BOND INACTIVATED 00003/19/08 00 BOND INACTIVATEDM03/14/08 00 APPLIED-2743.70-30.00

NJ 03/14/08 00 APPLIED - 2949.091-15.0003/14/08

M03/14/080000

BALANCE 174.00APPLIED-APPOINTED ATTORNEY FEE

Rj 03/14/08 00 APPLIED - CRIME STOPPERS

03/14/08 00 SECURITY DEPOSIT RECEIVED

^03/14/08 00 CLERKFEEfl 03/14/08 00 CLERK COMPUTERIZATION® 03/14/05 00 APPLIED - LEGAL RESEARCH 56932 A27 4N03/1P/08 00 ATTORNEY FEES ORDER 56931 A27 4

00 ATTORNEY FEES - MOTION FOR5103/12/08 56919 J53D02/15/08 00 COST BILL PRINTED IN NIGHTLY RUN 56886 X94 2

^,. 02/01 /09 00 COSTS ASSESSED 56886 X91 102/01/08 00 NOTICE - COMMUNITYCONTROLIMPOSED 56886 X9002/01/08 00 SENTENCING DISPOSITION SHEET 56886 X92 202/01/08 01 NOLLEPROSEQUI - CHARGE 56886 X94 202101/08 02 JAIL TIME CREDIT 56886 X94 2

I}7, 02/01/08 02 COMMUNITYCONTROL - PLACEMENT 56888 X92 202I01/08 02 PLEA OF GUILTY TO THE INDICTMENT 1

3301/16/08 00 NOTICE RETURNED5688156882

124E43 1

01/16/08 00 CRIMINAL DISPOSITION SHEET FILED 56879 K05^.^01/15/08 00SUBPOENA-RETURNEDSERVED 56877 W11al01/11108 00 SUBPOENA - RETURNED SERVED 56877 B23 1s01/10/08 00 SUBPOENA-RETURNEDSERVED 56871 A82m01/08/OB 00 NOTICE RETURNED 56871 B24 1[j01/07/08 00 SUBPOENA - FILED 56871 B23 1®01107/O8 00 SUBPOENA - FILED 56871 B07E101/07/08 00 DISCLOSURE OF EVIDENCE - REQUEST FOR

M 12131/07 00 ORIGINAL COPY OF HEARING NOTICE FILED

212131/07 00 ORIGINAL COPY OF HEARING NOTICE FILED

712{31I07 00 ORIGINAL COPY OF HEARING NOTICE FILED

.>'^ 12731/07 00 ORIGINAL COPY OF HEARING NOTICE FILED

^[r712131/07 00 ORIGINAL COPY OF HEARING NOTICE FILED

[312f31107 00 ORIGINAL COPY OF HEARING NOTICE FILED 56823 B88^ 12/27/07 00 SUBPOENA- FILED 56805 A23

12124/07 01 HEARING I EVENT SCHEDULED 56805 A23p 12/24107 01 HEARING / EVENT SCHEDULED 56805 A23M 12124/07 02 HEARING / EVENT SCHEDULED 56805 A23,.112124/07 02 HEARING / EVENT SCHEDULED 56744 B45 1,112/18107 00 ASSIGNMENT OF ASSISTANT PROSECUTING ATTORNEY 56653 882 1

12/10/07 00 READING OF THE INDICTMENT WAIVED 56653 B82 1@1.2110/07 00 JUDGE ASSIGNED-ORIGINAL 56653 B81 1

12/10107 00 COURT APPDINTED ATTORNEY -$25 FEE ASSESSED 56653 B81 1gR 12/10/07 00 APPOINTMENT OF PRIVATE COUNSEL 56653 B81 1

1010107 00 AFFIDAVIT OF INDIGENCY 56653 B81 15112/10107 00 CHANGE OF ADDRESS FILED 56666 A94 1®12/10/07 00 BOND SET - RECOGNIZANCE 56666 A94 19112/10/07 00 BOND SET-SURETY 56666 A94 1W12/10/07 00 BOND SET - APPEARANCE 56653 B82 1

12!10/07 01 PLE.AOF NOTGUILTY 56653 B8212/10107 02 PLEA OF NOT GUILTY 56650 A76

I'+ 12/07/07 00 WARRANT - RETURNED SERVED

^ 12I06/07 00 WARRANT ISSUED - TO JAIL 66633 A45 112/06/07 00 WARRANT - PROSECUTOR REQUEST FOR

ED56633 A46 3

12106/07El 12/06/07

0000

INDICTMENTFIL2949.091 FEE ASSESSED

L c 1 f-®rv,, ^^r^^^ .,1-k$^1a

https://fcdcfcj s.co.franklin.oh.us/CaselnformationOnline/caseSearch?FDpuZTPZwMvm4n... 7/ 11 /2011

Criminal Case Detail

Last Name:

M Advancetl Search

CASE NUMBER HOW FILED DATE FILED MUN COMP ARREST DATE

07 CR 008717 INDICTMENT 121082007 CPD 30181/07 11/27/2007

JUDGEKIMBERLY COCROFT

EFENDANTiS)Name

COURTROOM

COURTROOM 4E345 SOUTH HIGH STREET

4TH FLOORCOLUMBUS, OH 43215

Attomey

GIMICHAEL L ROBERTS SSN' XXX-XX- MICHAEL D WINSTON0000

Co-Detendanqs)None

Page 1 of 1

Ne' s

STATUSCLOSED

PROSECUTORRICHARD TERMUHLEN

a CHARGES (PisdeimenTbe listed'OH. Date' mey 60, inaccurete on oasaafiled prwrto 104192. This is the date tbe eiedronlc docket forthi s convenetl to a new syst notthe amuai

date ofthe (>flense_Sbe docketentries bolowforCase History.)Degree

Off. Date11/27107

11127/07

Code Descrip5on2911.02 ROBBERYSpecificatiohs:None2911.02 ROBBERYSpeclftcations:None

DispositionNOLLEPROSEQUI - CHARGE

PLEA OF GUILTY TO THE INDICTMENT

F2

F3

M BONDS

Date Type Status Amount DescriptionAPPEARANCENDSET

Posted By

N/A12110/0712/10/07

APPEARANCESURETY

INACTIVEINACTIVE

20,000.0025,000.00

-BOBONDSET - SURETY N/A

12110/07 RECOG INACTIVE 10,000.00 BONDSET - RECOGNIZANCE N/A

DOCKETShowAll SelectDocket All Start

Descriptionslr Category .. __. .. ... .. . _. . . . ' Date

Date Chg.DescriptionLvl

9112/06/07 00 2743.70 FEE ASSESSEDRt 12I06107 01 HEARING / ARRAIGNMENT SCHEDULED

Image

1 Prev ]ul

Fiche

jL^, 2011Searc

Frame Pages

https://fcdcfcj s.co.franklin-oh.us/CaseInformationOnline/caseSearch?docketdatekey=7992... 7/11/2011

t'Criminal Case Detail

Case Information Onlinec.^....e_.. . .....^_ r_.... I r...+. . All

CASENUMBER HOW FILED08 CR 005057 INDICTMENT

JUDGEKIMBERLY COCROFT

COURTROOM

COURTROOM 4E345 SOUTH HIGH STREET4TH FLOORCOLUMBUS, OH 43215

CRIMINAL CASE DETAIL

DATE FILED MUN COMP07/11/2008 CPD NoComp

Page 1 of 3

fffi:1l^?4^'a

ARREST DATE STATUSNone CLOSED

DEFENDANT(S)Name Attorney

,f}JMICHAEL L ROBERTS IAN J JONESCo-0etendanqs)Nona

PROSECUTOR

MICHAEL J MCLEAN

BCHARGEB (Oisclaimer:Thelisted"OIf Oate"mayCeinaccurateoncaseshletlpriorto1O19i92Thisis-thedatetheelectroeictlxketfortbiscasewasconve^dtoanswsystem,entlnotthear<ualtlate of the Cfrense See tlecket entnes bebw for Case Histary.)

Ofl.Date Code Descrip6on Disposition De9ree

1015107 291331 FORGERY PLEA OF GUILTY TO THE INDICTMENT F5Specifications:Nona

10P25/07 2923.24 POSSESS CRIM TOOLS NOLLEPROSEQUI-CHARGE F5Specifications:None

EIBONDS

Date Type Status Amount Description Posted By09'17/0609117106

SURETYRECOG

INACTIVE 7,500.00 BONDSET-SURETYINACTIVE 1,000.(10 BOND SET - RECOGNIZANCE

N/A

WA

DOCKET__._.

ShowAll Descriptions i'e`^; Seleet Docket Ca[epary ^l

Date ImageChg.DescriptionLvl

Flche Frame Pages

ERU6128/11 00 MISCELLANEOUS ORDER $7782 F99 206128/11 00 APPEAL MEMO DECISION 57782 F95 4

s06103/i1 00 MASS TRANFEROF JUDGE LOCATION

OLD JUDGE/LOC IND: L

04/14/11 00 APPEAL DEGSION 57738 U68 6E104/14(11 01 JUDGMENTAFFIRMED-COURTOFAPPEALS 57736 U74 219l 1 00 LETTERS 57724 M72 12ID03123111 00 LETTERS 57724 M67

®09129&10 00 LETTERS 57624 P64 208/16/10 00 RECORDCERRFICATIONSHEETWITH104PLS.

[g06/06'10 00 MISCELLANEOUS PAPER FILED 57563 H2906/02110 01 PRAECIPE TO THE CLERK 57595 X70

M06/02f10 01 NOTICEOFAPPEALFILED-COURTOFAPPEALS 57595 X67 3W07/19/10 01 MOTION DENIED 57550 L31[J+06122Ji0 00 MISCELLANEOUSPAPERFILED 57533 T49 2p09109f10 00 MEMORANDUM CONTRA FILED 57526 D66 4

06/01/10 00 AFFIDAVIT OF INDIGENCY 57519 096 1m06/01/10 01 JAILTIMECREDIT-MOTIONFOR 57519 094 8M04/13110 00 LETTERS 57481 112 2m12108'09 00 MISCELLANEOUSORDER 57396 F90

Q12/08'09 01 MOTION FILED 57395 P74 30127G8(09 02 MOTION FILED 57395 P74 3MTfliFl09 06TETTERS -57383 uso

1

11/16'09 00 AFFIDAVITOFINDIGENCY 57383 U99®11/16r09 01 MOTIONDEMED 57363 U46

[)+ 11M W09 01 MOTION FILED 57383 U47 2g311/18/09 02 MOTION FILED 57903 U47 2m09/76/09 00 LETTERS 57342 Q04 2Q08/14/09 00 ADDITIONAL COST BILL FROM NIGHTLY RUN 57362 U21 1(gZO6l06/09 00 WARRANT TO CONVEY RETURNED - SERVED 57319 D82 2BOB/03/09 00 WARRANT TO CONVEY 57315 104 1

07f31/09 00 CRIMNAL DISPOSITION SHEET FILED 57315 MIS 107/31/09 00 COSTS SUSPENDED 57308 XOB 207/31/09 00 NOTICE - PRISON IMPOSED 57308 X05 1

1B07/31/09 01 JAIL TIME CREDIT 57308 X06 2®07/31/09 01 RESTITUTION ORDER 57308 X06 2

http://fcdcfejs.co.franklin. oh.us/CaseInformationOnline/caseSearch?utReDD6SFrTttUMe...(EX►,;w+ 6)

8/22/2011

>Criminal Case Detail

B07131/09 01 SETASIDE ORDER- CHARGE07/31lOB 01 POST RELEASE CONTROL

007131/09 01 INCARCERATION®07/31/09 01 PROBATION - REVOKEDE907f28'09 00 LETTERS807/08M 00 ORIGINAL COPY OF HEARING NOTICE FILED1907/0&09 00 ORIGINAL COPY OF HEARING NOTICE FILEDID07/08'09 00 ORIGIDl4L COPY OF HEARING NOTICE FILED(D07107/09 01 HEARING / EVENT SCHEDULEDM07/07/09 02 HEARING / EVEN7 SCHEDULED[J07/06'09 01 REVOKE PROBATION - REQUEST TO910823109 01 PROBATION - HOLD1909/09/09 00 ADDITIONAL COST BILL FROM NIGHTLY RUN

04/08m 01 ADDITIONAL CONDITIONS OF PROBATION(R04/0609 01 PROBATION - PLACEMENT

03IZ60) 00 CRIMINAL DISPOSITION SHEET FILEDM0312609 01 COMMUNITY CONTROL - PLACEMENTW02/27/09 01 REVOKE PROBATION - REQUEST TOG902/25M 00 ORIGINAL COPY OF HEARING NOTICE FILED(00226'09 00 ORIGINAL COPY OF HEARING NOTICE FILED['< 02126/09 00 ORlGINAL COPY OF HEARING NOTICE FlLED+(+02725108 01 HEARING / EVENT SCHEDULED002/2909 02 HEARING / EVENT SCHEDULED002/0609 00 MASS TRANFER OF JUDGE LOCATION[c{12118OB 00 COST BILL PRINTED IN NIGHTLY RUNQ12/12t08 00 BOND INACTIVATED®12/12106 00 BONDINACTIVATED

12/04'OB 00 COSTSASSESSED1912I0408 00 PROSECUTOR VICTIM RESTITUIION INFORMATION FORM

12/04'OB 00 NOTICE-COMMUMTYCONTROLIMPOSED12/0408 00 SENTENCING DISPOSITION SHEET12104W 00 ORDER TO TRANSPORT

p72/04'OB 01 INCARCERATION'{; 12/04M 01 COMMUNITYCONTROL-PLACEMENT

(g712/04/08 01 PROBATION - HOLD(912103M OD COURT REPORTER CERTIFICATE FILED(il11l28'08 00 LETTERSm11/28m8j]1112m8

0DOD

LETTERSLETTERS

M11/17/08 OD ORIGINAL COPY OF HEARING NOTICE FILED[]11/17/08 00 ORIGINALCOPYOFHEARINGNOTICEFILEDE011/17/08 0D ORIGINALCOPYOFHEARINGNOTCEFILEDQ 11 /17/08 01 STRIKE SCHEDULED DATEB71/17/OB 02 STRIKE SCHEDULED DATE

COURT DATE: 11/1gi06

COURTTIME: 09:00AM

COURT LOCATION: COURTROOM 4A345 SOUTH HIGH STREET4TH FLOORCOLUMBUS, OH 43215

TIE FIUNG DATE: 10127/0871/08'06 00 CRIMINAL DISPOSITION SHEET FILED1108/08 00 CBCFEVAL

_pl°° _ W_°PRESEN0&08 '°d^

QunanFRFn _TIGATION ORD

COURT REPORTER: CELESTE DAWLEYNUMBER OF DAYS: 1.0

1511/Ofil06 01 SCHEDUUNG ORDER

COURT DATE: 12/02/08COURTTIME: 09:00AMCOURTLOCATION: COURTROOM4A

345 SOU(H HIGH STREET4TH FLOORCOLUMBUS, OH 43215

HEARING TYPE DESC: SENIENCENOTICE REQUESTEO: V

^ )p n1 ^^, 4C^1 /k ^- rRED ^^A96FV^0v 7

NOT RET ADDR DESC: CLERKOFCOURTOFCOMMONPLEAS-CRIMINALDIVISION

NOTICE PRINT DATE: 11/17/08

NOTICE MAIL DATE: 11/M0811/06108 01

+D71/OS'08 021V0608 02

[711/0408 00(B10/31/08 00m10/30W 00

{mi0/30/08_ fA_[+;j10/30108 00E110(30108 01[B10/30'OB 02['3+iDY27/08 001910/27/08 00d10P27/08 00a710/27/08 00m10/27/08 01W10Y17ro8 01W10/27/08 02Q10Y27/08 02q10/24/08 00810/23'OB 00

PLEA OF GUILTY TO THE INDICTMENTSCHEDUUNG ORDER

NOLLEPROSEQUI-CHARGESUBPOENA DUCES TECUM - RETURNED SERVEDSUBPOENA FOREIGN SHERIFF - FILEDORGINAL COPY OF HEARING NOTICE FILED

-ORIGINAtCOPY9FHEARING-NO9ICEFILEDORIGINAL COPY OF HEARING NOTICE FILEDCONTINUANCE-COURTREQUESTCONTINUANCE-COURTREQUESTBOND HEARING - MOTION FORORIGINAL COPY OF HEARING NOTICE FILEDORIGINAL COPY OF HEARING NOTICE FILEDORIGINAL COPY OF FE:ARING NOTICE FILEDHEARING I EVENT SCHEDULEDHEARNG/EVENPSCHEDULEDHEARING/EVENTSCHEDULEDHEAFSNG/EVENTSCHEDULEDLETTERSDISCOVERY-REQUESTFOR

ATTORNEY TYPE:P

57306 X0857308 X06

57306 X0657306 X0657309 V159

57284 K62

57284 K62

57288 C1257281 L2557247 F8157225 T5557225 T5557224 R1557225 E6357207 T53

57190 N40UP000 A01

57174 H450000

57137 R3157137 R3057137 R2957137 R2857140 Y3257137 R3157137 R3157140 Y3257140 N1957740 07057138 K8157136 K60

57114 X3257114 X32

57114 X3257114 X3257114 X3257123 030

57114 X32

57118 T7057114 X32

57118 T7057122 A0757120 V38

57114 J01UPWO A0157114 H24

57114 H2457114 H01UP000 A01UPOOO A0157113 52057112 W58

Page 2 of 3

http://fcdcfcjs.co.franklin. oh.us(CaseInformationOnline/caseSearch?utRcDD6SFrTttUMe... 8/22/2011

Michael Roberts#.609-069Vhillico .:e, Oh 4560 1

Dear Mr. Roberts,

FRANKLIN COUNTYADULT PROBATION SERVICES

373 SOUTH HIGH ST. 10TH FLOORCOLUMBUS, OHIO 43215

(614) 462-3700FAX (614) 462-3685

I hope this letter finds you well. I appreciate the kind words you put in your letter. I really dowish you the best of luck. I have found the information you requested. Your PSI was completed,on 11/24/08. I'm glad to see that you have made some efforts to make positive life changes andwish you success with Hocking College and your Recovery Services.

^incerely,

^ason PottsAdult Probation373 S High St 10' FlColumbus, Ohio 43215

ber 2 t,S^^y! S I S ^057. 7'

fe^^^Pg^^^s^..+^3^ C^o^^, ^f'I'

FRANKLIN COUNTY

ADULT PROBATION DEPARTMENT

In Re: Case No. 07CR-8717

Dear Mr. Jason Potts,

I have been attempting to contact you with all due diligence for the past year. I have yet to

receive any response from you. I have sacrificed spending the cost of certified mailing, only because I

am unsure about my letters even reaching you.

theegrtourrdo

y ^tayou foI always had appreciated and respecte the courtts orderfor adatehe actual ^t __.e aur ose for writi^yoa is m tshown me. VZv P

PSI was received y, n d :fcallv the date that I had conducted the pre sentenceb vm,r ent an spec e correc

interview with the to the above captioned case no. Ifmy memory serves magent in re erence cancting the interview at t e wor ouI remember con u h kh se about mtd November of 2008, you please

confrm this date for me.

As for me 1am making the best use of my current circumstances. I am presently enrolled in

Hocking College, have a current GPA of 3.2, and made the "scholars list". Also I am involve in the

Recovery services programs here at CCL However, due to the extreme overcrowded condition here,time on various waiting list to get involved in otherbide myand heavy budget cuts, I am force to

programs such as victims awareness. It is due to my own stupidity and bad behavior that has cause mea

to suffer these ading character. ^ui's a daily struggle to changet my bad habit ^of thi k ng, for

person

of integrity and upstandingI am determined to change.

Your time, effort, and consideration in providing the above requested information is greatlyappreciated. May you continue to show your current probationers the same professionalism you have

always afforded me, and I look forward to your timely resoponse.

Thanks in advance

Michael Roberts #609-069CCI P.O. Box #5500Chillicothe, Oh 45601

MLR/MECC: FILED

o o --ttempth

tl.y

9.re.rcuS vneholeA ® h 1/-q (d

0lr^5 P.S,(f ^c'.GP^F'F^

0i/26/11 MARYELLEN O'SHAUGHNESSY

CLERK OF THE TENTH DISTRICT COURT OF APPEALS PAGE 1 OF 6

FRANKLIN COUNTY, OHIO

CASE HISTORY

STATE OF OHIO -VS- MICHAEL L ROBERTS

09 AP 816 A

FILED: 08/28/09

CASE IS CLOSED

LOWER COURT - #07CR8717

FILE

AFFIDAVIT-INDIGENCY D

# DATE SUB# ACTN DESCRIPTION FIELD VALUES

1 082809 0001 5145

2 082809 0005 8923 DOCKET

3 082809 0006 9210 NOTICE

4 082809 0007 9216

5 082809 0008 8215

6 082809 0009 6825

7 082809 0010 9465

8 082809 0011 9489

083109 0001

9 090209 0002

FICHE: 20629

STMNT FILED D

FICHE: 20629

OF APPEAL FLD D

FICHE: 20629

LC CASE HISTORY PRT

FICHE: 20629

LOWER COURT JUDGMENT

FICHE: 20629

PRAECIPE TO CLERK

LOC: C CRIMINAL

MICHAEL L. ROBERTS

FRAME: H91 PAGES: 1

MICHAEL L. ROBERTS A

FRAME: H88 PAGES: 1

MICHAEL L. ROBERTS

FRAME: H87 PAGES: 1

FPJLME: H82 PAC-ES:

FRAME: H92 PAGES: 2

FICHE: 20629 FRAME: H89 PAGES: 2

MTN APPNT OFCOUNSEL D MICHAEL L. ROBERTS

FICHE: 20629 FRAME: D43 PAGES:

NARRATIVE - SYS GEN ACTION HAS BEEN GRANTED

MTN TRANSC ST EXPENS D MICHAEL L. ROBERTS

FICHE: 20629 FRAME: D45 PAGES:

NARRATIVE - SYS GEN ACTION HAS BEEN GRANTED

5834C PROOF OF REG MAILING

FICHE: FRAME:

NOTICE OF APPEAL,PREACIPE,AFFIDAVIT

TN FOR TRANSCRIPT STATE EXPENSE,MTN

EL

9200 NOTICE

2090809

2090809

PAGES: 0

OF INDIGENCY,M

FOR APPT COUNS

FICHE: 20630 FRAME: U05 PAGES: 1

NOTICE OF APPEARANCE OF COUNSEL LAURA R SWISHER

10 090809 0001 3201 MOTION GRANTED JUCFICHE: 20631 FRAME: V21 PAGES: 1

11 090809 0002 3201 MOTION GRANTED JUCFICHE: 20631 FRAME: V21 PAGES: 1

12 090809 0004 1460 JE - LEAVE TO JUCFICHE: 20631 FRAME: V21 PAGES: 1

APLTS 082809 MTN ARE GRANTED

090909 0001 5834C PROOF OF REG MAILING

FICHE:

JOURNAL ENTRY

090909 0002 5834C PROOF OF REG MAILING

FICHE:

. . .. . .. . JOURNAL- ENTI2-Y-

FRAME: PAGES: 0

FRAME: PAGES: 0

13 091109 0001 9224 NOTICE OF FILING REC

FICHE: 20632 FRAME: 045 PAGES: 1

RECORD TRANSMITTED TO C/A WITH 91 PLS.

091109 0002 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

NOTICE OF FILING RECORD

03/26/11 CASE HISTORY APL672D

09 AP 816 A PAGE 2 OF

STATE OF OHIO -VS- MICHAEL L ROBERTS

FILE# DATE SUB# ACTN DESCRIPTION FIELD VALUES

091109 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

NOTICE OF FILING RECORD

091109 0004 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

NOTICE OF FILING RECORD

14 091409 0001 9200 NOTICEFICHE: 20632 FRAME: S76 PAGES: 2

NOTICE OF APPEARANCE OF COUNSEL DAVID L STRAIT

15 091409 0002 7900 MISCELLANEOUS PAPERFICHE: 20632 FRAME: S83 PAGES: 1

REQUEST TO FILE TRANSCRIPT

16 091409 0003 6530 ATTY APR DAVID L. STRAIT MICHAEL L. ROBERTS

FICHE: UP000 FRA-ME: A01 PAGES: 1

17 091409 0004 9100 MOTION D MICHAEL L. ROBERTSFICHE: 20632 FRAME: S84 PAGES: 2

MOTION FOR PROCEDURAL ORDERS

NARRATIVE -SYS GEN ACTION HAS BEEN GRANTED 091709

18 091709 0001 6541 ATTY APR FLD-PRO SE MICHAEL L. ROBERTS

FICHE: UP000 FRAME: A01 PAGES: 2

19 091709 0002 9100 MOTION D MICHAEL L. ROBERTSFICHE: 20633 FRAME: 070 PAGES: 2

MOTION TO CORRECT ORDER FOR PRECIPE

NARRATIVE - SYS GEN ACTION HAS BEEN DENIED 093009

20 091709 0003 3201 MOTION GRANTED JUHFICHE: 20633 FRAME: V58 PAGES: 1

21 091709 0004 2915 JE-EXTENSION OF TIME JUHFICHE: 20633 FRAME: V58 PAGES: 1

APLTS 091409 MTN FOR EXT OF TIME UNTIL 102609 TO S

UPPLEMENT THE RECD WITH THE TRANSCRIPT OF PROCEEDI

NGS IS GRANTED

22 091709 0005 1416 JE-EXT TIME-FILE BRF JUHFICHE: 20633 FRAME: V58 PAGES: 1

091809 0001 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

091809 0002.5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

091809 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

093009 0001 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

....aTOI7Lid7AL_ENTIiY_ . . . . .

093009 0002 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

093009 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

01/26/11 CASE HISTORY APL672D

09 AP 816 A PAGE 3 OF 6

STATE OF OHIO -VS- MICHAEL L ROBERTS

FILE# DATE SUB# ACTN DESCRIPTION FIELD VALUES

23 093009 0004 3200 MOTION DENIED JUHFICHE: 20637 FRAME: D63 PAGES:

24 093009 0005 2130 JOURNAL ENTRY JUHFICHE: 20637 FRAME: D63 PAGES:

COUNSEL HAS BEEN APPOINTED TO REPRESENT APLT APLTS

091709 PRO SE MOTION TO CORRECT PRAECIPE IS DENIE

D

25 100609 0001 5235 AFFIDAVIT FILEDFICHE: 20638 FRAME: A89 PAGES: 16

AFFIDAVIT OF VERITY

NARRATIVE - SYS GEN PLEADING STRICKEN 100809

26 100809 0001 2303 JE - PLEADING STRCKN JUAFICHE: 20638 FRAME:I17 PAGES: 1

27 100809 0002 1460 JR - LEAVE TO JUAFICHE: 20638 FRAME: 117 PAGES: 1

UNLESS APLT FILES A BRIEF FULLY COMPLIES WITH ALL

RULES NLT 102309 THIS APPEAL SHALL BE DISMISSED

100809 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

100809 0004 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

100809 0005 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

101309 0001 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

101309 0002 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

101309 0003 5834C PROOF OFREG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

28 102709 0001 9226 NOTC FIL-SUPL RECORDFICHE: 20642 FRAME: L50 PAGES: 1

SUPPLEMENTAL RECORD TO ADD 2 TRS TO THE RECORD.

102709 0002 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

NOTICE OF FILING SUPPLEMENTAL RECORD

102709 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

NOTICE OF FILING SUPPLEMENTAL RECORD

1-072-709 00-04 - 583-4CP-ROOF_OF REG_MAILINGFICHE: FRAME: PAGES: 0

NOTICE OF FILING SUPPLEMENTAL RECORD

29 111609 0001 9107 MOTN-EXTNSN-APLT BRF D MICHAEL L. ROBERTS

FICHE: 20646 FRAME: N32 PAGES: 3

NARRATIVE - SYS GEN ACTION HAS BEEN GRANTED 111809

30 111809 0001 3201 MOTION GRANTED JUBFICHE: 20647 FRAME: 040 PAGES: 1

0>1/26/11 CASE HISTORY APL672D

09 AP 816 A PAGE 4 OF 6

STATE OF OHIO -VS- MICHAEL L ROBERTS

FILE

# DATE SUB# ACTN DESCRIPTION FIELD VALUES

31 111809 0002 1416 JE-EXT TIME-FILE BRF JUBFICHE: 20647 FRAME: 040 PAGES: 1

32 111809 0003 1451 JE-TRANS REG CALENDR JUB

FICHE: 20647 FRAME: 040 PAGES: 1

111809 0004 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

111809 0005 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

111809 0006 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

33 120109 0001 9107 MOTN-EXTNSN-APLT BRF D MICHAEL L. ROBERTS

FICHE: 20650 FRAME: A87 PAGES: 3

NARRATIVE - SYS GEN ACTION HAS BEEN GRANTED 120309

34 120309 0001 3201 MOTION GRANTED JUA-FICHE: 20650 FRAME: P97 PAGES: 1

35 120309 0002 1416 JE-EXT TIME-FILE BRF JUAFICHE: 20650 FRAME: P97 PAGES: 1

120409 0001 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

120409 0002 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

120409 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

36 120709 0001 7410 BRIEF OF APPELLANT MICHAEL L. ROBERTS

FICHE: 20651 FRAME: C84 PAGES: 12

37 121709 0001 9110 MTN FOR LEAVE TO FIL D MICHAEL L. ROBERTS

I FICHE: 20653 FRAME: H69 PAGES: 2

MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF

NARRATIVE - SYS GEN ACTION HAS BEEN DENIED 122909

38 122109 0001 6530 ATTY APR BARBARA A. FARNBACHER STATE OF OHIO

FICHE: FRAME: PAGES: 0

39 122109 0002 9237 NOTC OF SUBST COUNSLFICHE: 20653 FRAME: Z89 PAGES: 1

40 122109 0003 7420 BRIEF OF APPELLEE STATE OF OHIO

FICHE: 20654 FRAME: B03 PAGES: 9

122909 0001 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

122909-00-02583aC_PROOFO^REG_MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

122909 0003 5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JOURNAL ENTRY

41 122909 0004 3200 MOTION DENIED JUBFICHE: 20656 FRAME: F60 PAGES: 1

0^1/26/11 CASE HISTORY APL672D

a9 AP 816 A PAGE 5 OF 6

STAT&OF OHIO -VS- MICHAEL L ROBERTS

FILE# DATE SUB# ACTN DESCRIPTION FIELD VALUES

42 122909 0005

43 012510 0001

012610 0001

012610 0002

012610 0003

44 021910 0001

45 022210 0001

46 022210 0002

47 022410 0001

033010 0001

033010 0002

033010 0003

48 033010 0004

49 033010 0005

50 033010 0006

033110 0001

033110 0002

2130 JOURNAL ENTRY JUB

FICHE: 20656 FRAME: F60 PAGES: 1

APLTS PRO SE 121709 MTN FOR LVE TO FILE A SUPPLMEN

TAL BRIEF IS DENIED

5050 SUBMITTED TO COURT 23B 022410 0900 AM OA

FICHE: 20661 FRAME: X48 PAGES: 1

9279C ORIG COPY HEAR NOTC 23B 022410 0900 AM OA P

FICHE: FRAME: PAGES: 0

9279C ORIG COPY HEAR NOTC 23B 022410 0900 AM OA D

FICHE: FRAME: PAGES: 0

9279C ORIG COPY HEAR NOTC 23B 02.2410 0900 AM OA D

FICHE: FRAME: PAGES: 0

9246 NOTC-WAIVR/ORAL ARGU D MICHAEL L. ROBERTS

9100 MOTION

FICHE: 20667 FRAME: E83 PAGES: 1

D MICHAEL L. ROBERTS

FICHE: 20667 FRAME: 087 PAGES: 3

MOTION OF JUDICIAL NOTICE

NARRATIVE - SYS GEN ACTION HAS BEEN DENIED 033010

7550 SUPPLEMENTAL BRIEF D MICHAELL. ROBERTS

FICHE: 20667 FRAME: R83 PAGES: 11

5260 MEMO CONTRA P STATE OF OHIO

FICHE: 20668 FRAME: M78 PAGES: 3

5834C PROOF OF REG MAILING

FICHE:

DECISION

5834C PROOF OF REG MAILING

FICHE:

FRAME:

FRAME:

PAGES:

PAGES:

0

0

DECISION

5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

DECISION

7944 DECISION JUG JUA JUC

4120

FICHE: 20675 FRAME: Y99 PAGES: 6

RENDERED 033010 MOTION DENIED JUDGMENT AFFIRMED

MOTION DENIED JUG

FICHE: 20675 FRAME: X55 PAGES: 1

JEJ TR CT JDG AFFIRM JUG

FICHE: 20675 FRAME: X55 PAGES: 1

5834C PROOF OF REG MAILINGFICHE: FRAME: PAGES: 0

JUDGMENT ENTRY

5834C PROOF OF REG MAILING

FICHE:

JUDGMENT ENTRY

033-110fl-00-3

041310 0001

51 041510 0001

-58S4C PROOF--OF_REG_MAILING

FICHE:

JUDGMENT ENTRY

FRAME:

FRAME:

PAGES:

PAGES:

0

6621C SUBSEQUENT COST BILL 53.00FICHE: FRAME: PAGES: 0

6720 COST BILL PREPARED 53.00

FICHE: FRAME: PAGES: 0

COST BILL SENT TO CCI FOR COLLECTION FROM INMATE M

ICHAEL ROBERTS PER TERM ENTRY

CASE HISTORY APL672D01/26/11 PAGE 6 OF 6Q9 AP 816 ASTATE OF OHIO -VS- MICHAEL L ROBERTS

FILE$ DATE SUB#{ ACTN DESCRIPTION FIELD VALUES

52 041610 0001 8212 RETRN RECT-TR C FILEFICHE: 20680 FRAME: J73 PAGES: 1

53 062310 0001 9100 MOTION D MICHAEL L. ROBERTSFICHE: 20695 FRAME: 093 PAGES: 24

MOTION FOR REOPENING

54 062810 0001 6675 APPLIED - CLERK 43.00 5393926 D MICHAEL L. ROBERTSFICHE: FRAME: 00 PAGES: 0

55 062810 0002 6630 APPLIED - DAILY RPTR 10.00 5393926 D MICHAEL L. ROBERTS

FICHE: FRAME: 00 PAGES: 0

56 NARRATIVE . .. . .

Pd in full, CCI ck; Bal -0-

57 062810 0004 6699 SECURITY DEP RECEIVD 53.00 5393926 D MICHAEL L. ROBERTSFICHE: FRAME: 00 PAGES: 0

Pd in full, CCI ck; Bal -0-

58 070610 0001 5260 MEMO CONTRA P STATE OF OHIOFICHE: 20698 FRAME: C74 PAGES: 6

record to demonstrate that he was entitled to state post-conviction relief, under State v. Calhozin,

86 Ohio St.3d 279, 1999-Ohio-102;^and because his claim is apparent from the record an^^

therefore should have been raised at trial and then in the line of direct appeal, not in a collateral

proceeding. State v. Steffen (1994), 70 Ohio St.3d 399, 410.

First, in order to file an untimely petition, the defendant must show that he was delayed in

discovering new information about his case, information that is necessarily outside the record, or

that the United States Supreme Court has recognized a new constitutional right that applies to the

defendant retroactively. R.C. 2953.23(A). Importantly, the statutory time limit is jurisdictional,

State v. Myers, 10 h Dist. No. 05AP-228, 2005-Ohio-5998, ¶¶28, 34, and a trial court has no

authority to entertain an untimely petition, unless the petitioner demonstrates that one of the

exceptions contained in R.C. 2953.23(A) applies. As with any post-conviction petition, the error

that the defendant seeks to correct must be constitutional in nature. State v. Perry (1967), 10

Ohio St.2d 175.

The defendant's motion does not meet any of the criteria for filing an untimely state post

conviction petition, under R.C. 2953.23(A). He did not demonstrate that he was unavoidably

prevented from discovering the facts on which he relies; there was no new federal or state

constitutional right that applied retroactively to his case; and the defendant did not demonstrate

that he would not have been convicted but for the error he claims entitles him to relief. R.C.

2953.23(A)(1)(a) and (b). Defendant's untimely petition fails to articulate any explanation for

his delay in seeking relief. Since it is his burden to demonstrate that his untimely filing meets

one of the exceptions listed in the statute, his failure to meet this burden leaves this Court

without jurisdiction to entertain his petition.

4

Also, the defendant failed to allege any facts outside the record that would have resulted

in his acquittal to support his request for state post conviction relief State v. Calhoun, 86 Ohio

St.3d 279. The petitioner must present some credible evidence outside the record to demonstrate

his claim. When a defendant files a post conviction petition, "the trial court has a statutorily

imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing."

State v. Cole(1982), 2 Ohio St.3d 112, 113. Before a defendant can obtain an evidentiary

hearing, the defendant must provide evidentiary documentation setting forth specific operative

facts to support his claims. See State v. Kapper (1983), 5 Ohio St.3d 36; State v. Pankey (1981),

68 Ohio St.2d 58; State v. Jackson (1980), 64 Ohio St.2d 107. The evidentiary materials must

support each element of the constitutional claim being raised. See Jackson, 64 Ohio St.2d at

111. "It bears emphasis here that claims in post conviction proceedings must be supported by

some competent evidence of a constitutional violation. A mere hypothesis of a constitutional

claim upon further discovery is not sufficient to warrant an evidentiary hearing" State v.

Coleman(March 17, 1993), 15` Dist. No. C-900811, *5. "[T]he purpose of postconviction

proceedings is not to afford one convicted of a crime a chance to retry his case." Id.

The defendant did not attach any evidentiary materials outside the record to support the

claim he now raises in his motion, and, in fact, his claim is not based on matters dehors the

record.^ I Rather his claim is apparent from the record of this Court's proceedingsy a he is seeking

to challenge matters related to the imposition of sentence. He therefore is not entitled to anys6

relief.j Because the claim the defendant nowseeks to raise is aPParent from the record, his claim

is not properly raised in a post conviction proceeding, under R.C. 2953.21, et seq.

Also, review of the defendant's claim is barred by application of the doctrine of res

judicata. Res judicata "bars any claim that was or could have been raised at trial or on direct

5

appeal." State v. Steffen (1994), 70 Ohio St.3d 399, 410. The Supreme Court of Ohio has long

noted the importance of res judicata in underscoring the finality of issues that have already been

litigated:

Under the doctrine of res judicata, a final judgment of convictionbars a convicted defendant who was represented by counsel fromraising and litigating in any proceeding except an appeal from thatjudgment, any defense or any claimed lack of due process that wasraised or could have been raised by the defendant at the trial, whichresulted in that judgment of conviction, or on an appeal from thatjudgment.

State v. Perry, supra, at paragraph nine of the syllabus (emphasis in original). Thus, res judicata

bars any defense that could have been raised during trial. Id. Res judicata will apply "if the

petition for post conviction relief does not include any materials out[side] of the original record

to support the claim for relief." State v. Combs (1994), 100 Ohio App.3d 90, 97. Because the

defendant's claim is based solely on matters that are apparent from theracord., he was required to,._... _.^.

raise his claim at trial and on direct appeal, and his failure to raise them in a timely direct appeal

bars this Court's review.

For all of these reasons, a merit review of the defendant's claim is barred. Specifically,

the defendant failed to file a timely post conviction petition, and he cannot meet an exception for

filing an untimely petition. R.C. 2953.23. His claim is apparent from the record of this Court's

proceedings, and therefore cannot be raised in a state post conviction petition, under R.C.

2953.21, and review of his claim is barred by application of the doctrine of res judicata. And he

failed to attach to his petition evidence dehors the record to demonstrate his claim.

Nonetheless, if this Court reaches the merits of the defendant's claim, the State submits

that the defendant's claim is without merit. First, the record demonstrates that the defendant

requested that this Court proceed with sentencing immediately following the acceptance of his

0

PLEASE REFER TO TABNO. 4

(EXHIBIT E)

`

IN THE COURT OF APPEALSTENTH APPELLATE DISTRICT

State of Ohio Case No. 10AP-223

Appellee, )-vs- C.P.C. No. 07CR-8717

Michael L. Roberts )Appellant,

Decision filed onOctober 28, 2010

APPELLANT'S SECOND MOTION FOR RECONSIDERATIONin pursuant to App. R. 26(A)

Comes now Appellant Michael L. Roberts who respectfully moves this honorable court to grant

this second motion for reconsideration, due to "new substantive material evidence recently obtained

from the Franklin County Adult Probation Services, establishing and confirming the actual date the pre

sentence investigation was conducted and completed by their office, and fot-other probative values set

forth in the hereto attached memorandum in support.

Appelle^ o

4 Barbara,^. Farabacher 0036862^',4sss ro °Cuting Attorney

ftet, 13' Floor

Appellant,

Respectfully submitted,

CERTIFICATE OF SERVICE

I-do-l:ereby-certi€y-thatIrtlid-forward-a eopy-o€-this-enction-to-Asst: Prosecuting-Attorney via.Regular US mail located at the address above, on this Z2O day of November, 2010.

MLR/MECC.•FILED

L^h;b ► ^° F

I. BackEround•MEMORANDUM IN SUPPORT

On January 14, 2010 appellant filed an instant motion to vacate a voided sentence, predicated

by the Clerk of Court's journal lack of showing any effective PSI Order as mandated by Crim R. 32.2

and Crim R. 32(C). On September 14, 2010 this court affirmed the trial courts denial, basing it's

decision on the February 1, 2008 sentencing entry's [r)eference to a"non-existent" order, and the

courts oral pronouncement. On September 20, 2010 appellant forwarded a motion to reconsider based

on the review panels oversight in acknowledging the fact that the clerks journal fails to establish any

such effective PSI order. On October 28,2010 this court re-affirmed it's earlier decision stating

essentially the same grounds. It is now before this court, Appellant's second request for reconsideration

based on "newly" acquired substantive evidence from his former Franklin County Probation Officer.

U. Standard for review:

This district held in State ez reL Coudill v. Industrial Comm. OfOhio 2002-Ohio App.10

Dist. Wl-1013022 ¶4) Continuing jurisdiction is not unlimited and it's prerequisites are 1) New &

Changed circumstances, 2) Fraud, 3) Clear Mistake of Facts, and 4) Clear Mistake of Law. In this

instance, appellant seeks relief of a clear void judgment ab initio, and now presents newly acquired

indisputable evidence that is accurate and ready determination supported from a reliable source whose

accuracy cannot be reasonably questioned. Appellant asserts 1,3,&4 of the above cited case law as

held by this District. State ex reLNicholls v. Indus. ComnL(1998) 81 Okio St3d.454.458.692.N.E.2d.

88. citing, State ex reL Foster v. Indus. Comm(1999)85. Ohio St3d.320.322.707.N.E.2d 1122: The

Ohio Supreme Court stated in*2) Identification of error after reconsideration does allow a reviewing

court to adjudicate. (Emphasis sic). May extend ten day time limit. However, the motion must raise

issue of sufficient importance to warrant exception, Rice v. Rice(2002)Ohio-5032.Oh.App.9" Dist

WL-31115187. Furthermore, in pursuant to App. R.26(A) the standard applied to a motion for

reconsideration is whether the motion calls to the attention of the court an "Obvious Error" in the prior

determination, or raises an issue that was not properly considered by the court in the first instance,

Columbus v. Hodge(1987)37. Ohio App.3d 68.523 N.E.2d 515, also as held in Matthew v.

Matthew(1981) 5-Ohio Apn.3d 140.5 OBR. 320.450. N.E.2d278 1) The test generally applied upon

the filing of a motion fro reconsideration in the court of appeals is whether the motion calls to the

attention of the court an issue fro consideration that was either not considered at all or was not fullly

considered by the court when it should have been. 2) The duty is incumbent upon the Appellant to

provide all evidence in the appellate record so that the claimed error is demonstrated to the reviewing

court.

A oF 6^

(E^ P)

III. Substantive Grounds of Law and Fact:

Fact one: On November 9, 2010 appellant mailed a third letter of request,via. Certified Mailing to his

former Franklin County Probation Officer Mr. Jason Potts, asking specifically what date was it that his

office conducted and completed the PSI Order. On November 17, 2010 appellant received a direct

response signed by Jason Potts that "confirmed and substantiated 11-24-08" as the actual date the PSI

was conducted and completed. Moreover, it supports this Appellant's contention that the Clerks Journal

is [a]bsent of any such supposed PSI Order under case #07CR-8717, before the court irnposed

community control sanction on January 30, 2008, but was journalized on February 1, 2008. See the

following substantiated evidence provided as attachments: 1) Appellant's letter of request, 2) Franklin

County Adult Probation Services confirmation letter signed by Agent Jason Potts, 3) Franklin County

Clerk of Courts, Maryellen O' Shdughnessy Journal[s] showing explicitly when the court [a]ctually

gave an order for a pre-sentence investigation, 4)Certifred proof of mailing, 5) affidavit of verity.

Fact two: Crim R. S5(A) States in part; The clerk IsJhaU keep a crhninal appearance docket,

and thereafter the clerk Islhall chronologicat{y note in the appearance docket all:

process Issued and returns, pleas and motions, papers fded, IordersJ, and judgments

Crim R 32(C) States in part; The jadge IsjhaU sign the jadgment and the clerk/sJhall

enter Pt on the journaL A jrudgment, and or [order] ls e,Q''ecUve only when entered on the

journal by the clerk.

In Gaskins v. Shinlev 76 Oh.St3d.880,382, that court held, that Crim R.32(C) reflects the

axiom that [al court of record [only] speaks through it's" journalized entries", not by oral

pronouncements as decided in State v. Roberts 10th Dist. {OAP-223 ¶10 {Tr.#14}, or by mere written

references, such as in a{sentencing entry}. In this instance, Appellant had provided the

unquestionable proof in the trial court's docket statement under 07CR-8717 does not show any

evidence that the court actually gave any order for a PSI before it'simposition of sentence on January

30, 2008.

Fact three: The States own initial contra motion filed February 17, 2010 is clear, in that it agrees that

this appellant's claim is apparent from the clerks record, stated no less than (5) times. See pages 4,5,&6.

Furthermore, it confirms that the trial court failed int it's statutory duty in pursuant to R.C 2941.03.

,^, aI'0

(ExF)

continued

Fact three: In State v. Roberts 10thDisL10AP-22316(3), the review panel [a]ptly quoted the states own

admission that the trial court never ordered a PSI due to appellant's request to be sentenced

immediately, {16(3)} "since the trial court had not ordered a pre- sentence investigation prior to

sentencing appellant to a term of community control because appellant had requested that the trial court

proceed innnediately to sentencing after the guilty plea was entered, id.

Reasonable minds can only come to one conclusion when faced with the facts. On January30,

2008 the appellant entered into a plea agreement, trial court accepted that plea, convicted , "supposedly

ordered a PSI & simultaneously considered that Report" sentenced and released the appellant all in the

same day. (See Docket #07CR-8717 02-01-08). Again appellant's contention is the docket shows [no]

order for a PSI.

In Conclusion: This is a matter of strict law and fact, no discretion, and or latitude is given. Any

reference to a PSI Order within the sentencing entry form does not suffice as to an "effective" PSI

ORDER as per Crim R. 32(C), and Crim R. 55(A). Since the review panel chose to only look at the

trial courts written reference within the sentencing entry, and to look at [Tr.#l4] reference to the judges

open court pronouncement, regardless of appellant's essential claim about the Journal being absent of

any effective PSI ORDER. The appellant has obtained more substantive proof from his own Probation

Officer confirming that 11-24-08 is the actual date the Franklin County Adult Probation Services

conducted and completed a Presentence Investigation Report upon this appellant. (See Attachments).

Furthermore, Appellant presents evidence from (3) separate Govt agencies,l) Franklin County

Adult Probation Services letter of confirmation, 2) Maryellen O'Shaughnessy, Franklin County Clerk of

Courts journal[s] 07CR-8717 & 08CR-5057, and 3) The State of Ohio's Prosecuting Attorney's Contra

Motion filed February 17, 2010, adniitting [5] times that appellant's claim is apparent from the

record,id. It is very clear from the face of the record that the trial court did not order and consider any

proper PSI report as is mandated by law. Subsequently, it's judgment is [void] and is divested of

subject matter jurisdiction to impose any conditions against appellants liberty.

Wherefore: It is now before this court of review substantive indisputable evidence who's

-source[s]9f,ucurac3rcannot reasonaWbequestioned. It is incumbent uQon this court to vacate

appellant's sentenced as it does not comport to the General Assembly's Statutory mandate, and against

Constitutional Authority.

-t

^^^ ^^

FRANKLIN COUNTY

ADULT PROBATION DEPARTMENT

In Re: CaseNo. 07CR-8717 11^10

Dear Mr. Jason Potts,

I have been attempting to contact you with all due diligence for the past year. I have yet to

receive any response from you I have sacrificed spending the cost of certified mailing, only because Iam unsure about my letters even reaching you

I always had appreciated and respected you for your integrity, and the professionalism you've

shown me. My purpose for writing you is in the attempt to obtain the actual date the court's order for a

PSI was received by your Dept., and specifically the date that I had conducted the pre-sentenceinterview with the agent, in reference to the above captioned case no. Ifmy memory serves me correctlyI remember conducting the interview at the workhouse about mid-November of 2008, can you please

confirm this date for me.

As for me I am making the best use of my current circumstances. I am presently enrolled in

Hocking College, have a current GPA of 3.2, and made the "scholars list". Also I am involve in the

Recovery services programs here at CCI. However, due to the extreme overcrowded condition here,and heavy budget cuts, I am force to bide my time on various waiting list to get involved in otherprograms such as victims awareness. It is due to my own stupidity and bad behavior that has cause meto suffer these negative consequences, but l am determined to make it a positive by becoming a personof integrity and upstanding character. It is a daily struggle to change my bad habits of thinking, for

which I am determined to change.

Your time, effort, and consideration in providing the above requested information is greatlyappreciated May you continue to show your current probationers the same professionalism you havealways afforded me, and I lookforward to your timely resoponse.

Thanks in advanceMichael Roberts #609-069CCI-P0.-Po"504Chillicothe, Oh 45601

MLR/MECC.•FILED

mo;d.ed tJce^-I-' C^.t--F^Fi^d m0.;l^h1USP,S o& 7p09_0,ff.) oo ^ 00v13 931_707,f

p e,1^J ^ re.a^ a,,+ ^:sspm !G-la-lp.1"crl`D^

n

FRANKLIN COUNTYADULT PROBATION SERVICES

373 SOUTH HIGH ST. 10TH FLOORCOLUMBUS, OHIO 43215

(614) 462-3700FAX (614) 462-3685

Michael Roberts#609-069Chillicothe, Oh 45601

Dear Mr. Roberts,

MOOORW I'm glad to see that you have made some efforts to make positrve i e c anges andwish you success with Hocking College and your Recovery Services.

wish you the best of luck. I have found the information you requested.I hope this letter finds you well. I appreciate the kind words you put in your letter. Ireally do

Adult Probation373 S High St 10d'FlColumbus, Ohio 43215

^1%Jason Potts

^ ^/-^tX FI)

(-3<)

08 CR5057 - ROBERTS PAGE 3 OF 5

FILE# DATE CHG SUB# ACTN DESCRIPTION FIELD VALUES

42 103008 02 0001 9155 CONTINUANCE-CRTREQST 4A 110608 1100 AM RB 103008 0900FICHE: UP000 FRAME: A01

43 103108 01 0001 8300 SUBP FR SHRF FILED D OH 57FICHE: 57120 FRAME: V38

44 110408 01 0001 8221 SUBP.DUC TEC RET SRV 110408 0.00 0.00 100FICHE: 57122 FRAME: A07

45 110608 01 0001 9580 COURT RPT CERT FILED CDAW 1.0 0.00FICHE: 57123 FRAME: D30

46 110608 01 0001 2502 PLEA GLTY - INDICTFICHE: 57118 FRAME: T70

47 110608 02 0001 3925 NOLLE PROSEQUI-CHRG FICHE: 57118 FRAME: T70

48-3-1Ots@8--^v'rfr6o"^-3025--^RHERE^. -^FICHE: 57114 FRAME: X32

49 110608 01 0002 0552 SCHEDULING ORDER 4A 120208 0900 AM SFICHE: 57114 FRAME: X32

50 110608 01 0003 3029 CBCF EVAL ORDEREDFICHE: 57114 FRAME: X32

51 110608 01 0004 0550 CRIM DISPO SHEET FLD FICHE: 57114 FRAME: X32

52 111708 01 0001 9950 STRIKE SCHED DATE 4A 111908 0900 AMFICHE: 57114 FRAME: X32

53 112608 01 0001 9997 LETTERS PFICHE: 57136 FRAME: K60

LETTER TO DEFT FROM JUDGE BROWN

54 112608 01 0002 9997 LETTERS DFICHE: 57136 FRAME: K61

LETTER TO JUDGE BROWN

55 112608 01 0003 9997 LETTERS DFICHE: 57140 FRAME: 070

LETTER FROM DEFT TO JUDGE

56 120308 01 0001 9580 COURT RPT CERTFILED CDAW 1.0 0.00FICHE: 57140 FRAME: N19

57 120408 01 0001 0505 ORDER TO TRANSPORTFICHE: 57140 FRAME: Y32

58 120408 01 0001 3005 PROBATION - HOLD 000 00 0.0 06FICHE: 57140 FRAME: Y32

59 120408 01 0002 0551 SENTENCE DISPO SHEETFICHE: 57137 FRAME: R28

60 120408 01 0002 3004 COMUNTY CNTRL-PLACED 005 00 0.0 01FICHE: 57137 FRAME: R31

61 120408 01 0003 7773 NTC COM CTRL IMPOSEDFICHE: 57137 FRAME: R29

62 120408 01 0003 0500 INCARCERATION CBAIFFICHE: 57137 FRAME: R31

C-O- ND-ITION- OF--PROBATION_. . . . .

63 120408 01 0004 6794 VICTIM REST. INFO. PFICHE: 57137 FRAME: R30

64 120408 01 0004 3020 RESTITUTION ORDERFICHE:57137 FRAME: R31

RESTITUTION IN THE AMOUNT OF 461.27 TO 1436 S HAMILTON ROAD COLUMBUS, OH 43227

iS 7"ac4qll Gl-e,ae(,C

.o frQU-eS k ►A_t^ th-2 CotA4(+jQV e aM. 6F=Re,t+i`v-e_ ^%, X. Go w ►os

CLERK OF THE COURT OF COMMOM PLEAS PAGE 1 OF

FRANKLIN COUNTY, OHIO

CASE HISTORY

'2iwkjmw^ 184 S OAKLEY AVENUE

FILED: 12/06/07 COLUMBUS, OH 43204-0000

CHARGES: #01 - ROBBERY

402- ROBBERY

5 • • - --/ r, o vc.. .

#FILE

DATE CHG SUB# ACTN DESCRIPTION FIELD VALUES

1 120607 01 0001 7991 HEAR/ARRAIGN SCHED'D 1B 121007 0100 PM A

FICHE: FRAME:

2 120607 01 0003 6100 INDICTMENT FILED FICHE: 56633FRAME: A46

3 120607 01 0004 7020 WARRANT-PROS REQUEST 00 06 01A45ME

4 120607 01 0005 7150

FICHE: 56633

WARRANT ISS-TO JAIL 2

FICHE:

:FRA

FRAME:

NARRATIVE - SYS GEN RETURNED - SERVED

5 120707 01 0001 7021 WARRA14T-RETRND"SERVD 12060710..50 0.00FICHE: 56650 FRAME: A76

6 121007 01 0001 0007 BOND SE'P APPEARANCE 20000.00 0001 N

FICHE: 56666 FRAME: A94

DEFT SHALL HAVE NO CONTACT DIRECT OR INDIRECT W/AN

YALLEGED VICTIMS OR WITNESSES IDENTIFIED IN THE I

7 121007 01 0001 2550NDICTMENT

PLEA OF NOT GUILTYFICHE: 56653 FRAME:B82

8 121007 01 0002 0008 BOND SET SURETY 25000.00 0002 N

FICHE: 56666 FRAME: A94

DEFTSHALL HAVE NO CONTACT DIRECT OR INDIRECT W/ANIED IN THEIY ALLL+GEDVICTIMS OR WITNESSES IDENTIF

NDICTMENT

9 121007 01 0003 0005 BOND SET RECOGNIZANC 10000.00 0003 NFICHE: 56666 FRAME: A94

DEFT SHALL HAVE NO CONTACT DIRECT OR INDIRECT W/AN

Y ALLEGED VICTIMS OR WITNESSES IDENTIFIED IN THE I

.. NDICTMENT

,0 121007 01 0004 8883CI3ANGE>OF ADDRESSFICEE: 56653 FRAMEc B81

11 121007 01 0005 5800 AFFIDAVIT INDIGENCYFICHE: 56653 FRFdKEt B81

12 121007 01 0006 0496 APTMNT OF PRIVTCNSL 75294.DFICHE: 56653 FRAME: B81

13 121007 01 0007 1821 APPT ATTY FEE-$25FICHE: 56653 FRAME: B81^

14 121007 01 0009 7969 READ OF INDICT WAIVDFICHE: 56653 FRAME: B82.^.

ATTY 905 P15 121807 01 0001 6850 69ASSGN ASST PROS...:... .. FICHE. 5674.4-.. FRAME: B45...- ... .....

16 122407 01 0001 7998 HEAR/EVENTSCHED'D 4A 011508 0900 AM PT

FICHE: 56805 FRAME: A23

g 0-raG,3

a

YHVb z vr -+

7CR 87,17 - ROBERTS

FILE

# DATE CHG SUB# ACTNFIELD VALUES

DESCRIPTION

17 122707 01 0001 8500 SUBPOENA -FILED FICHE0056823 FRAME:B88

18 010708 01 0001 7774 DISC EVIDNCE-REQ FOR DFICHE: 56871 FRAME: B07

19 010708 01 0002 8500 SUBPOENA -FILED FICHE0056871 FRAME: B23

20 010708 01 0003 8500 SUBPOENA -FILED FICHE0056871 FRAME: B24

21 010808 01 0001 9280 NOTICE RETURNED FICHE: 563

871 FRAME: A82

250022 011008 01 0001 8521 SUBPOENA - RET SRVD 0108 07 R^EF

B23

23 011108

24 011508

01

01

0001

0001

8521

8521

SUBPOENA - RET SRVD FICHE : 12280 7

SUBPOENA - 10908

5 . 0 0RAME25W11

1 8.00 42 5

01160825 01 0001 0550 CRIM DISPO SHEET FLDFICHE: 56882 FRAME: E43

26 011608 01 0002 9280 NOTICE RETURNED FICHE20563881 FRAME: 124

1^10 QS= UQ.a2C ^^.m ^,r p^E^Pe-°^ttSST27 -0•391E16°'8'Y"0@9'T"b'9'g'Y"^FICHE: 56886 FRAME: X90

28

29

020108 01 0001 3925 NOLLE PROSEQUI-CHRGFICHE: 56886 FRAME: X92

020108 02 0001 2502 PLEA GLTY - INDICTFICHE: FRAME: X9256886

30 038488--01-00&2-°7't7'3"-NTC--COWCTRL-iMPQSEDFICHE: 56886 FRAME:

eNT4Z_F,.-.PI*ALE5''005 00 0.0 0131 A-24148"'-0-Q'^0^`^Tf4V-COMCTN^1`` FICHE: 56886 FRAME:

32 020108 01 0003 2960 COSTS ASSESSED

33 ^e^^a5 02

0003 1800 ^Q^1'^g TIME CREDIT

34 031208 01 0001 9198 ATTY FEES-MOTION

35 031208 01.0002 1701 ATTORNEY FEES

36 031408 01 0001 6660 APPLD-LEGAL

FICHE: 56886

000000FICHE: 56886

FOR D

FICHE: 56931

ORDER 75294 DFICHE: 56932

RESEARCH 3.00

37 031408 01 0002 6665 CLERK COMPUTERIZATN

38 031408 01 0003 6675 CLERK FEE

39 031408 01 0004 6699

FICHE:

10.00FICHE:

6.00FICHE:

SEC DEPOSIT RECEIVED 90.00FICHE:

BALANCE 174.00

40 031408 01 0005 6857 APPLD-CRIME STOPPER FI1.00CHE:

X91

X94

FRAME: X94

65.0FRAME: X94

FRAME: A27

FRAME: A27

FRAME:

FRAME:

FRAME:

FRAME:

FRAME:

`m-ert, Pa r a PSr

''' l-2 -!o -67I$ E cd r`h '1^Ss c`Y,I'l'IQo ^oW e^+^ ^^i Pi q. a Fls

4 n pars"w+ fa Mm 2, 55, a"d CkI rr Q, ?z(C) ,

cjrhd 'e^,n 36, -to o(3 xm.pasWan

Also, the defendant failed to allege any facts outside the record that would have resulted

in his acquittal to support his request for state post conviction relief. State v. Calhoun, 86 Ohio

St.3d 279. The petitioner must present some credible evidence outside the record to demonstrate

his claim. When a defendant files a post conviction petition, "the trial court has a statutorily

imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing."

State v. Cole (1982), 2 Ohio St.3d 112, 113. Before a defendant can obtain an evidentiary

hearing, the defendant must provide evidentiary documentation setting forth specific operative

facts to support his claims. See State v. Kapper (1983), 5 Ohio St.3d 36; State v. Pankey (1981),

68 Ohio St.2d 58; State v. Jackson (1980), 64 Ohio St.2d 107. The evidentiary materials must

support each element of the constitutional claim being raised. See Jackson, 64 Ohio St.2d at

111. "It bears emphasis here that claims in post conviction proceedings must be supported by

some competent evidence of a constitutional violation. A mere hypothesis of a constitutional

claim upon fiuther discovery is not sufficient to warrant an evidentiary hearing." State v.

Coleman (March 17, 1993), 1s` Dist. No. C-90081 1, *5. "[T]he purpose of postconviction

proceedings is not to afford one convicted of a crime a chance to retry his case." Id.

The defendant did not attach any evidentiary materials outside the record to support the

claim he now raises in his motion, and, in fact, his claim is not based on matters dehors the

record. RatheOis claim is apparent frorn the rocord of this Court's proceedings, as he is seeking

to challenge matters related to the imposition of sentence. He therefore is not entitled to any

relief. Because the'r•.;•laini the defendant now seeks to raise is apparent frorn therecord, his claim

is not properly raised in a post conviction proceeding, under R.C. 2953.21, et seq.

Also, review of the defendant's claim is barred by application of the doctrine of res

judicata. Res judicata "bars any claim that was or could have been raised at trial or on direct

t0 o-f-135

appeal." State v. Steffen (1994), 70 Ohio St.3d 399, 410. The Supreme Court of Ohio has long

noted the importance of res judicata in underscoring the fmality of issues that have already been

litigated:

Under the doctrine of res judicata, a final judgment of convictionbars a convicted defendant who was represented by counsel fromraising and litigating in any proceeding except an appeal from thatjudgment, any defense or any claimed lack of due process that wasraised or could have been raised by the defendant at the trial, whichresulted in that judgment of conviction, or on an appeal from thatjudgment.

State v. Perry, supra, at paragraph nine of the syllabus (emphasis in original). Thus, res judicata

bars any defense that could have been raised during trial. Id. Res judicata will apply "if the

petition for post conviction relief does not include any materials out[side] of the original record

to support the claim for relief." State v. Combs (1994), 100 Ohio App.3d 90, 97. Because the

defendant's claim is based solely on matters thataiea tfro^ he was required to

raise his claim attrial and on direct appeal, and his failure to raise them in a timely direct appeal

bars this Court's review.

For all of these reasons, a merit review of the defendant's claim is barred. Specifically,

the defendant failed to file a timely post conviction petition, and he cannot meet an exception for

filing an untimely petition. R.C. 2953.23. ^ appaCen teCourt's

proceedings, and therefore cannot be raised in a state post conviction petition, under R.C.

2953.21, and review of his claim is barred by application of the doctrine of res judicata. And he

failed to attach to his petition evidence dehors the record to demonstrate his claim.

Nonetheless, if this Court reaches the merits of the defendant's claim, the State submits

that the defendant's claim is without merit. First, the record demonstrates that the defendant

requested that this Court proceed with sentencing immediately following the acceptance of his

-S'-fp,+pS C.(^vr^^ W10 ^' iO vlbt oaPs

Z)6 'Fti 1o cJl ^ eb 17I ^•o lC^ x ^^

guilty plea. (Transcript of Proceedings, January 30, 2008, p. 14, filed in State v. Roberts, 10s'

Dist. No. 09AP-816 on Oct. 21, 2009). The defendant cannot "take advantage of an alleged error---------------

that [he] induced or invited the trial court to make." State v. Chambers (July 13, 2000), I Os' Dist.

No. 99AP-1308, *5. In addition, the record establishes that this Court received and considered a

short-form presentence report prior to imposing the jointly recommended sentence. (Id.) Thus,

the defendant has not demonstrated that any error occurred. See State v. Preston, 155 Ohio

App.3d 367, 2003-Ohio-6187. Accordingly, the defendant's claim is devoid of any possible

merit, and this Court may deny the defendant's motion on this basis, as well.

For all of the foregoing reasons, the defendant's motion lacks merit and must therefore be

denied.

Respectfully submitted,

RON O'BRIEN 0017245

WIZUZZOXMARA A. FARNBACHER 0036862Assistant Prosecuting Attorney373 South High Street, 13' FloorColumbus, Ohio 43215614-462-3555

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent by regular U.S. Mail this day,

February 17, 2010, to Michael L. Roberts, #609-069, pro se, Chillicothe Correctional Institution,

P.O. Box 5500, Chillicothe, Ohio, 45601; Counsel for Defendant-Appellant.

ARA A. FARNBACHER 0036862Assistant Prosecuting Attomey

l^ ^^

IN THE COURT OF APPEALSTENTH DISTRICT

2010

STATE OF OHIO-vs-Michael L. Roberts

)

)

CASE NO.10AP-223

AFFIDAVIT OF VERITY

I Michael L. Roberts do hereby certify the foUowing statements are true and factual, and that

I am of sound mind, body, and spirit

1) That on November 9,2010 I did forward a letter of request via. certified mail, address to Mr. JasonPotts, located at the Franklin County Adult Probation Services. Requesting the actual date that hisoffice conducted and completed the Pre-sentence investigation report regarding my community controlsanctions under case no.#07CR-8717.

2) That on November I-A'2010 I did receive Jason Potts(my only Probation Officer), response

confirming my contentions that the courtfailed to order and consider a PSI before my initialimposition of community control on January 30, 2008, under case 07CR-8717.

3) Again I swear that at no time before January 30, 2008 did I ever consent, and or conduct any pre-sentence investigation interview, with anyone from Franklin County Adult Probation Services.

4) That prior to case no. #07CR-8717 I have never been arrested within the State of Ohio.

5) That enclosed and attached to this affidavit is a copy of Jason Potts original letter confirming thatth- e onty PSI listed with his offtce was conducted and compkted on November 24, 2008, under adiJj'erent case no.# 08CR-5057, apprax. 10 months after I had already been senfence to communitycontrol sanctions under the previous case 07CR-8717.

6) That Franklin County Adult Probation Officer, Mr. Jason Pott's letter that I just received on theabove listed date, and as evidenced by the Certified Mailing receipt, substantiates the Clerk of CourtsJournal under 07CR-8717, that no PSI ORDER was given or received by the Franklin County AdultProbation Services prior to imposition of Mike Roberts's sentence of comm. cont. sanct. on Jan. 30, 08.

This affiant, further sayeth naught.

Swore-and-subscribedxo vAthin-my_presence onthisMday of November, 2010

RespecW-ly submitted^

SEvtb. M

chae Ro rtsAfflaitt

NOTARY P

NOTARY PUBLICMY COMMISSION EXPIRES

Mp ^ DAY_^ YEARo !!

IN THE SUPREME COURT OF OHIO

Michael Roberts,

Appellant,

-vs-

Robin Knab, CCI Warden,

Appellee,

)

)Case No. 11-

)

) On Appeal from theRoss County Court of Appeals

) Fourth Appellate District

AFFIDAVIT OF VERITY

I Michael Roberts hereby certify that I am fully competent to testify to the truth of theherein after following statements. I being of sound mind, body and spirit do assert that thefollowing statements are the truth as to the best of my recollection.

1) I did not commit any of the essential mens rea elements of Robbery, that I only plead guilty out offear/duress, and because I was told I would be released the same day on probation or face the possibility

of doing 13 years in Prison.

2) Prior to Case No. 07CR-8717, I did not have any criminal arrest history in the State of Ohio.

3) At no time prior to being released on terms & conditions of community control sanction on January 30,2008, under case No. 07CR-8717, did I consent, and or conduct any pre-sentence investigation interview

with anyone from the Franklin County Adult Probation Services Division.

4) I did, however, conduct a PSI with an agent from Franklin County Adult Probation Services on or aboutNovember 24, 2009, under case No. 08CR-5057, that was effectively ordered on November 6, 2008 bythe same presiding Judge, (See Dkt.#5057, D.E. #48) approximately (10) Months after already being on

Comm. Cntrl. Sancts. under the first case, (See Exhibit $1).

5) After several attempts I did receive, (Newly Discovered) a confirmation letter from my former ProbationOfficer, Jason Potts, that substantiates his Department only completed (1) PSI Report about me on

November 24, 2008, (See Ex. BI).

Sworn and subscribed to in my presenceonthis -q_ dayofAuMt,^1

EAVM1'I - .M.-.. .., I KO

Respectfully submitted,

Sentencing Entry does not suffice as a PSI Order

.1. State v. Preston.155 Ohio App.3d 367, 801 N.E.2d 501, 2003 -Ohio- 6187, Ohio App. 10 Dist., November 20, 2003 (NO.

03AP-401) .{$ 7} The trial court's sentencing entrindicates that the 12arties waived the consideration of a PSI.

However, there is no indication in the record that annellant waived a PSI. In fact, appellant specificallyrequested the preparation of a PSI. Moreover, even if the parties waived the consideration of a PSI, R.C.2951.03 prohibits the trial court from imposing community control sanctions without considering a I.

Gilliam, supra. Therefore, regardless of whether there was a waiver, the trial court could not impose

community control sanctions without considering a PSI. {18} It is clear from the record that the trialcourt believed that a PSI was not required to impose community control sanctions. The trial court was

mistaken and violated...IUDGES ORAL PRONOUNCEMENT FROM THE BENCH

State v. HillmanSlip Copy, 2010 WL 324417

Ohio App. 10 Dist.,2010.

{115} It is well-settled law that a court speaks through its journal entries. See State ex rel Foele v. -

Steiner 74 Ohio St.3d 158 656 N .E.2d 1288, 1995-Ohio-278 Gaskins v. Shiplevv 76 Ohio St.3d 380,

667 N E 2d 1194 1996-Ohio-38• State ex rel. Leadingham v. Schisler, 4th Dist. No. 02CA2827, 2003-

Ohio-7293; State v Ellineton (1987) . 36 Ohio App 3d 76 ,..521 N .E.2d 504. Without the transcript, we

don't know whether the trial court actually did conduct the appropriate analysis or make the appropriate

findings under the correct statute. However, even assuming, arguendo, that the trial court did conduct

an analysis on the record using the correct statute, this is still problematic. If a journal entry and the

trial judge's opinion are in conflict, the journal entry controls. Andrews v. Bd. ofLiauor Control (1955).

164 Ohio St. 275. 131 N.E.2d 390. Furthermore, where a journalized order and the trial judge's

comments from the bench are contradictory, the journalized order controls. State v. Burnett (Sept. 18,

1997), 8th Dist. No. 72373, citing Economv Fire & Cas. Co. v. Cra t Gen. Contractors, Inc. (1982). 7

Ohio Ann 3d 335 455 N.E . 2d 1037. See also Scarbrough v. Scarbrough (July 18, 2001), 9th Dist. No.

00CA007743 (a trial court speaks through its journal entry and an oral pronouncement of judgment is

not binding).

Failure to Order a PSI before imnosina Comm. Cntrl.

State v. Ross

Slip Copy, 2009 WL 2894452Ohio App. 8 Dist.,2009.

September 10, 2009 (Approx. 2 pages)

{14} Crim.R. 32.2 states "[fln felony cases the court shall, and in niisdemeanor cases the co-art-may,

order a presentence investigation and report before imposing community control sanctions or granting

probation." Likewise, R.C. 2951.03(A)(1) provides in part "[n]o person who has been convicted of orpleaded guilty to a felony shall be placed under a community control sanction until a written

presentence investigation report has been considered by the court. ***:'

{9[ 5} In the instant case, the record demonstrates the court failed to prescribe to the mandates of

Crim.R. 32.2 and R.C. 2951.03(A)(1). Ross pled guilty to one count of attempted theft in office inviolation of R.C. 2923.02 and 2921.41(A)(1). This offense is a felony of the fifth degree punishable by

six to twelve months in prison. R.C. 2929.14(A)(5). Thus, the trial court was required to order and

consider a presentence investigation report before imposing community control sanctions. See State v. -

Pickett, Cuvahoga App . No. 91343. 2009-Ohio-2127: State v. Walker. Cuyahoga App . No. 90692. 2008-

Ohio-5123: State v. Mitchell (2001)141 Ohio ApI2 3d 770 753 N E 2d 284, discretionary appeal not

allowed by 92 Ohio St.3d 1443 751 N.E.2d 482; see, also, State v. Preston 155 Ohio App 3d 367 801

N.E.2d 501. The record demonstrates, however, that the court failed to do so.

{9[ 6} Because Ross pled guilty to a felony and because the trial court failed to comply with the

mandates of Crim.R. 32.2 and R.C. 2951.03(A)(1), we must vacate Ross's sentence and remand the

matter for resentencing. Prior to resentencing, the trial court must order the preparation of apresentence investigation report if it intends to impose conununity control sanctions. Accordingly, the

State's assignment of error is sustained. Ross's sentence is vacated, and the matter remanded for

resentencing.

CONSEOUENCE OF VOID JUDGMENTS

Fisher v. FisherNot Reported in N.E.2d, 2002 WL 1020152

Ohio App. 10 Dist.,2002.

West Headnotes

jZI KeyCite Citine References for this Headnote

.30 Appeal and Error30XIII Dismissal, Withdrawal, or Abandonment

.30k779 Grounds for Dismissal30k782 k. Want of Jurisdiction.

If an order is not final and appealable, then the Court of Appeals has no jurisdiction to review the

matter being appealed and it must be dismissed. Const. Art. 4, § 3(B)(2); R.C. ^ 2505.03.

j101. KeyCite Citing References for this Headnote

228 Judgment-128iX-Opening or Vacating

228k346 k. Invalidity of Judgment in General.

.228 Judgment KeyCite Citine References for this Headnote

228XI Collateral Attack

228XI B Grounds

228k486 Invalidity of Judgment in General

228k486(1 ) k. In General.Court orders which are void ab initio may be attacked and impeached at any time, either by direct or

collateral proceeding.

CRIMINAL RULES

Crim R 32.2 Presentence investigation

In felony cases the court shall, and in misdemeanor cases the court may, order a presentenceinvestigation and report before imposing community control sanctions or granting probation.

Crim R 55 Records

(A) Criminal appearance docket

The clerk shall keep a criminal appearance docket. Upon the commencement of a criminal action theclerk shall assign each action a number. This number shall be placed on the first page, and everycontinuation page, of the appearance docket which concerns the particular action. In addition thisnumber and the names of the parties shall be placed on the case file and every paper filed in the action.

At the time the action is commenced the clerk shall enter in the appearance docket the names, except as

provided in Rule 6(E), of the parties in full, the names of counsel and index the action by the name ofeach defendant. Thereafter the clerk shall chronologically note in the appearance docket all: process

issued and returns, pleas and motions, papers filed in the action, orders, verdicts and judgments. Thenotations shall be brief but shall show the date of filing and the substance of each order, verdict and

judgment.

REVISED CODES

2951.03 Presentence investigation reports; confidentiality

(A)(1) No person who has been convicted of or pleaded guilty to a felony shall be placed under acommunity control sanction until a written presentence investigation report has been considered by the

court. If a court orders the preparation of a presentence investigation report pursuant to this section,

section 2947.06 of the Revised Code, or Criminal Rule 32.2, the officer making the report shall inquire

into the circumstances of the offense and the criminal record, social history, and present condition of

the defendant, all information available regarding any prior adjudications of the defendant as adelinquent child and regarding the dispositions made relative to those adjudications, and any othermatters specified in Criminal Rule 32.2. Whenever the officer considers it advisable, the officer's

investigation may include a physical and mental examination of the defendant. A physical examinationof the defendant may include a drug test consisting of a chemical analysis of a blood or urine specimenof the defendant to determine whether the defendant ingested or was injected with a drug of abuse. If,

pursuant to section 2930.13 of the Revised Code, the victim of the offense of which the defendant has

been convicted wishes to make a statement regarding the impact of the offense for the officer's use in

preparing the presentence investigation report, the officer shall comply with the requirements of that

section.

ORIGINAL HABEAS ACTION EXEMPT FROM RES JUDICATA

Hudlin v. Alexander

63 Ohio St.3d 153, 586 N.E.2d 86Ohio,1992.

FN1. R.C. 2725.03 provides:"If a person restrained of his liberty is an inmate of a state benevolent or penal institution, the

location of which is fixed by statute, and at the time is in the custody of the officers of suchinstitution, no court or judge other than the courts or judges of the county in which such institution islocated has jurisdiction to issue or determine a writ of habeas corpus for his production or discharge.Such writ issued by a court or judge of another county to an officer or person in charge at such state

institution to compel the production or discharge of an inmate thereof is void."

**87 [1 *155 We reject appellant's argument. R.C. 2725.03 limits the territorial jurisdiction of

courts of appeals-see Bridces v. McMackin (1989). 44 Ohio St.3d 135, 541 N.E.2d 1035-but does

not affect the statewide jurisdiction of this court to hear original actions in habeas corpus.

On the other hand, we have never applied the doctrine of res judicata to successive habeas corpus

petitions. In Burch v. Morris (1986)25 Ohio St.3d 18, 19 25 OBR 15 16, 494 N.E.2d 1137, 1138, we

stated that when an issue has been raised on direct appeal or through postconviction proceedings, it"may not later be relitigated by way of habeas corpus:" However, the decision does not expressly

disallow successive habeas corpus petitions.

In In re Luetzler (1899) , 18 Ohio C C 826 829 , 9 Ohio C.D. 778, 791, the Sixth Circuit Court of

Appeals, after reviewing English and American precedent, held that:

"[W]hat has been set forth in the answers as resjudicata does not amount to a good plea in bar, and

does not stand in the way of our proceeding to act upon this application [for writs of habeas corpus];

neither does it afford us just ground for refusing to act."

Citing Luetzler, the Courts of Appeals for Montgomery and Franklin Counties have reached the

same conclusion in, respectively, Ex parte Brl2es (1949) 86 Ohio App 215 410.0. 90. 87 N.E.2d

605, and State ex rel. Dalev, v Myers (1958) , 78 Ohio Law Abs. 534 153 N.E.2d 531.

These decisions have received support from this court and the Supreme Court of the United States.

For example, in National Amusements Inc. v. SnrinQdale (1990)53 Ohio St.3d 60 63 558 N.E.2d

1178. 1181, we stated:

"***[H]abeas corpus actions are exempt from res judicata because `[c]onventional notions of

finality of litigation have no place where life or liberty is at stake ***.' Sanders v. United States

(1963) 373 U S 1 8 183 S Ct 1068 1073 10 L.Ed . 2d 148. 1571"

However, more recently, the Supreme Court of the United States has limited the right to bring

successive federal habeas corpus actions under the federal "abuse-of-the-writ" doctrine. McCleskv v.-

Zant (1991) 499 U S 467 111 S Ct 1454. 113 L .Ed.2d 517. In McClesky, the court traced the history of

resjudicata and habeas corpus in state cases, explaining that:

"At common law, res judicata did not attach to a court's denial of habeas relief. *** The rule made

sense because at common law an order denying * 156 habeas relief could not be reviewed. ***

Successive petitions served as a substitute for appeal. * * *

CONSEOUENCE OF A VOID JUDGMENT

State v. Beasley

14 Ohio St.3d 74,471 N.E.2d 774, Ohio 1984

Void sentences-Disre¢ard Statutory Repuirements

{^[ 8} The Supreme Court turned its attention to void sentences in 1984 in an oft-cited case, State v.-

Beaslev (1984) 14 Ohio St.3d 74.14 OBR 511, 471 N.E.2d 774. In Beasley. the Supreme Court

reviewed a sentence it found void, holding:

Any attempt by a court to disregard statutory requirements when imposing a sentence renders theattempted sentence a nullity or void. The applicable sentencing statute in this case, R.C. 2929.11,mandates a two to fifteen year prison term and an optional fine for felonious assault. The trial courtdisregarded the statute and imposed only a fine. In doing so the trial court exceeded its authority and

this sentence must be considered void.

tHABEAS CORPUS ACTION EXEMPT FROM RES JUDICATA BAR

In In re Luetzler (1899) 18 Ohio C C 826 , 829 , 9 Ohio C.D . 778 , 791, the Sixth Circuit Court of

Appeals, after reviewing English and American precedent, held that:

"[W]hat has been set forth in the answers as res judicata does not amount to a good plea in bar, and

does not stand in the way of our proceeding to act upon this application [for writs of habeas corpus];neither does it afford us just ground for refusing to act."

lo,.---^Citing Luetzler, the Courts of Appeals for Montgomery and Franklin Counties have reached the

same conclusion in, respectively, Ex parte Briggs ( 1949) 86 Ohio App. 215,410.0. 90, 87 N.E.2d

605, and State ex rel Daley , v Myers (1958) 78 Ohio LawAbs. 534 153 N.E.2d 531.

^J 3 These decisions have received support from this court and the Supreme Court of the United States.For example, in National Amusements Inc . v. Springdale 199053 Ohio St.3d 60 63, 558 N.E.2d

1178, 1181, we stated:

"***[H]abeas corpus actions are exempt from res judicata because `[c]onventional notions offinality of litigation have no place where life or liberty is at stake ***.' Sanders v. United States(1963)373 U S 1 8 [83 S Ct 1068 1073 10 L.Ed.2d 148, 1571."

However, more recently, the Supreme Court of the United States has limited the right to bringsuccessive federal habeas corpus actions under the federal "abuse-of-the-writ" doctrine. McCl

Zant (1991) . 499 U S 467 111 S.Ct. 1454 113 L.Ed.2d 517. In McClesky, the court traced the history

of res judicata and habeas corpus in state cases, explaining that:

"At common law, res judicata did not attach to a court's denial of habeas relief. *** The rule madesense because at common law an order denying * 156 habeas relief could not be reviewed. ***Successive petitions served as a substitute for appeal. ***

"As appellate review became available from a decision in habeas [corpus] refusing to discharge theprisoner, courts began to question the continuing validity of the common-law rule allowing endlesssuccessive petitions. * * * Some courts rejected the common-law rule, holding a denial of habeas[corpus] relief res judicata. ***" 499 U S at ---- 111 S.Ct. at 1462 113 L.Ed.2d at 535.

1___^[21131 R.C. 2725.26 provides for appeal of habeas corpus cases. Accordingly, we hold that the

doctrine of res judicata is applicable to successive habeas corpus petitions. In the instant case,petitioner had no appeal as of right because he filed his original petition in this court. However, heelected voluntarily to receive and did receive a decision from the state's highest court in the firstinstance, which limited his right of appeal to a discretionary appeal to the United States Supreme Court.By so choosing, he waived, in effect, R.C. 2725.26's right to appeal, and the doctrine of resjudicata

applies to hun as we .SUMMARRY DISMISSAL

Because the court considered matters outside the pleadings to dismiss the suit, the summary judgmentstandard of review, under Fed.R.Civ.P. 56(c), applies to this appeal, see Briggs v. Ohio Elections

Comm'n 61 F.3d 487 493 (6th Cir.1995); Bell v. Chesapeake & Ohio Ry. Co., 929 F.2d 220 221-22

(6th Cir.1991). Sununary judgment is proper "if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).^ ®'F 2

C^ ti^^

State ex rel. Kelly v. Frick 14 Ohio Law Abs. 355Formerly 197k4Ohio.App.2.Dist.Montgomery.Co.,193 3Under void order of commitment the person imprisoned has choice of remedies, either by proceedings

in error or habeas corpus.

Gaskins v. Shiplew 656 N.E.2d 1282Ohio,1995When court's judgment is void because it lacked jurisdiction, habeas is still an appropriate remedy

despite the availability of appeal.

Pegan v. Crawmer. 666 N.E.2d 1091Ohio,1996When judgment is void due to lack of jurisdiction, habeas corpus is appropriate remedy despiteavailability of alternative remedies such as appeal.Rash v. Anderson, 686 N.E.2d 505Ohio,1997When court's judgment is void because the court lacked subject-matter jurisdiction, habeas corpus isgenerally appropriate remedy despite availability of appeal.

Davis v. Wolfe, 751 N.E.2d 1051Ohio,2001When a court's judgment is void because the court lacked subject-matter jurisdiction, habeas corpus isgenerally an appropriate remedy despite the availability of appeal.

Bowen v. Sheldon124 Ohio St.3d 551, 925 N.E.2d 129

Ohio,2010.

{¶ 24} This court's decision to label these judgments "void" opens the door to the habeas remedy.To call a judgment void is to state that it is a legal nullity, issued by a court lacking jurisdiction. A voidjudgment is not a final, appealable order. "Ajudgment declared void is susceptible to collateral attackat any time, and a defendant has a right to a writ of habeas corpus when a judgment is void due to lackof jurisdiction despite the availability of alternative remedies such as appeal. Pegan v. Crawmer (1996),76 Ohio St.3d 97 99-100, 666 N.E.2d 1091." State v. Simpkins, 117 Ohio St.3d 420 2008-Ohio-1197884 N.E.2d 568, 147 (Lanzinger, J., dissenting). When the trial court sentenced Bowen in 2006 to twoyears' imprisonment because of a violation of nonexistent postrelease control, it lacked jurisdiction toimpose the sentence, and consequently, the sentence is void. Bowen is unable to appeal from the trialcourt's 2006 entry, and he is left without any adequate remedy at law. Based on this understanding,

habeas relief is proper in this situation.

--) c

CE/I