SUPREME CCUP121, the existence of which is fatal to a request for the extraordinary remedy of...

IN THE SUPREME COURT OF OHIO

STATE EX. REL., GOLDSBERRY,

RELATOR,

vs.

UNION COUNTY COURT OF COMMON PLEAS,

RESPONDENT.

CASE NO. 2007-2180

MOTION TO DISMISS COMPLAINTFOR WRIT OF PROCEDENDO

David W. Phillips (0019966)Union County Prosecuting Attorney221 West Fifth Street, Suite 333Marysville, Ohio 43040Telephone: (937) 645-4190Fax: (937) 645-4191For Respondent Hon. Richard Parrott

DAVID W. PHILLIPSUNION COUNTY

PROSECUTINGATTORNEY

ASeletantPrusewtorsTerryL.NorOChlefAealelen[

RlckRUGgerMeliaSaA. Chase

221 WwtFIflhSVeelMaryaville.Ohb 43940

Teleplqna: 937E45-01 BOFax937845-0191

E-mail [email protected]

Michael E. Goldsberry (Inmate No. 539-160)Post Office Box 209Orient, Ohio 43146Relator, Pro se

DEC I G y`051f

CLERK OF CCIJPTSUPREME CCUPi OF .)H10

Now comes Respondent, Hon. Richard Parrott, Judge of the Union County Court

of Common Pleas, by and through counsel and, pursuant to S.Ct. Prac. Rule X (5) and

Civ. R. 12(b)(6), moves this court for an order dismissing the complaint for a writ of

procedendo. The complaint fails to state a claim upon which relief can be granted; the

relator has an adequate remedy at law, and any delay in ruling on the motions is minimal.

Respectfully submitted,

DAVID W. PHILLIPSPROSECUTING ATTORNEYUNION COUNTY, OHIO

David W. Phillips (0019966)Union County Prosecuting Attorney221 West Fifth Street, Suite 333Marysville, Ohio 43040Telephone: (937) 645-4190Fax: (937) 645-4191For Respondent Hon. Richard Parrott

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS


PROSECUTINOATTORNEY

Aa5191sntPmsecutaeTerty L. Hard ChiefAesistanf

Rick RCJBerMelisseA. Chaee

221 WeetfiBh SVeetMarysville.Ohb 43040

Telephone:9376464190Fas 937-8464191

E+nall pmsecula®oo.unbn.oh.us

1. Statement of the Case and Facts

In January of 2005, the Union County Grand Jury indicted relator, Michael E.

Goldsberry, on five counts of nonsupport of dependents in violation of R.C.

2919.21(A)(2) and five counts of nonsupport of dependents in violation of R.C.

2919.21(B). See, State v. Goldsberry, Union County C.P. Ct. Case No. 2005 CR 0008.

2

oAVIO W. PHILLIPSUNION COUNTY

PROSECUTING ATTORNEY

AssistantProsecubr5Terty L. Hord ChiefAssblant

Rick RodgerMelieeaA. Chese

221 WestFMhStreetMarysrdle,Ohb43040

Teleplrone:937b454190Far:937E454191

E+nal prosecutarom.unbn.oh.us

Relator was arraigned on January 21, 2005, at which time he entered a not guilty

plea. A scheduling conference was set for March 2, 2005. The Union County Public

Defenders Office was appointed relator's counsel on January 25, 2005. The State filed a

bill of particulars and discovery three days later.

Because of a conflict in the trial court's calendar, the scheduling conference was

continued until March 3, 2005. On that date, defendant withdrew his previously entered

plea of not guilty and entered a plea of guilty to the indictment. The trial court accepted

Goldsberry's plea of guilty, convicted him and ordered a pre-sentence report. The matter

was set for sentencing on March 23, 2005.

On March 23, 2005, the relator was sentenced to community control for a period

of three years. At that time, relator was orally advised that if he violated the terms of

community control, he "would" receive 120 months in prison.[Tr. of proceedings,

5/23/2005 at p. 9]. The journal entry of sentence, however, reflected that the relator

"could" receive 120 months in prison if he violated the terms of his community control.

[J.E. of sentence].

Relator did, in fact, violate the terms of his community control sanction, and on

November 3, 2005, the court re-imposed the community control sanctions, ordering

relator to perform an additional 100 hours of community service for violating the terms of

community control. This time, the court indicated to relator that he "will" receive 120

months in prison if he again violated the terms of community control. [J.E. 11/3/2005]

This new sentence was compliant with Ohio law, as relator was advised that he faced a

specific prison term of 120 months in prison for a violation of his community control.

See, State v. Fraley, 2004-Ohio-7110.

3

DAVIOW.PNILLIPSUNION COUNTY

PROSEGUTINGATTORNEY

Ass'stantPiosecutoraTerry L. Nord ChielASSislant

RickRodgerMelisaaA.Chese

221 WestFIllhStreetMarysvAle, Ohb430AG

Telephone:997-6

DAVIUW.PHILLIPSUNION COUNTY

PROSECUTINGATTORNEY

A5551anIPl0Ba0AGla

TanyL.HOrdChiefASSivlant

RickRodgerMelissaA. Chase

221 WesIFNhStraetMerymlIdOh043040

Telephone: 937$454190Fm 8376454791

E+nail pfaseala®oo.unqn.oh.us

Briefs were filed on behalf of the Relator and the State of Ohio in the appeal. Oral

argument was scheduled August 14, 2007.

On October 15, 2007, the Third District Court of Appeals sua sponte raised the

issue of whether it had jurisdiction to hear the relator's appeal. The Third District held

that the original sentencing entry did not comply with Crim. R. 32(C) because the original

sentence did not specify to which count or counts the community control sentence applied,

but rather had sentenced the relator to a "lump sum" of three years of community control.

Finding the trial court's entry of sentence to be interlocutory and not a final order, the

appellate court dismissed relator's appeal for want of jurisdiction. State v. Goldsberry,

2007-Ohio-4833. The decision was rendered by the Appellate court on October 15, 2007.

Relator filed his complaint for a writ of procedendo on November 21, 2007.

On November 29, 2007, Relator filed an appeal the Third District's decision to the

Supreme Court of Ohio The State's memorandum in response to jurisdiction is not yet

due. S.Ct. Prac. R. III, Sec. 2 and this court has not yet decided whether to accept

jurisdiction. See, State v. Goldsberry, Ohio Sup. Ct. Case No. 07-2182.

II. Law and Argument.

A. Relator has failed to state a claim upon which relief can be granted.

In order to dismiss a complaint under Civ.R. 12(B)(6), failure to state a claim upon

which relief can be granted, it must appear beyond doubt from the complaint, after all

factual allegations are presumed true and all reasonable inferences are made in favor of

the relator, that the relator can prove no set of facts warranting relief. State ex rel.

Williams Ford Sales, Inc. v. Connor (1995), 72 Ohio St. 3d 111, 113, 647 N.E.2d 804,

806.

5

In order to be entitled to a writ of procedendo, a relator must establish a clear legal

right to require the court to proceed, a clear legal duty on the part of the court to proceed,

and the lack of an adequate remedy in the ordinary course of the law. State ex rel. Miley v.

Parrott (1996), 77 Ohio St.3d 64, 65, 1996 Ohio 350, 671 N.E.2d 24. A writ of

procedendo is appropriate when a court has either refused to render a judgment or has

unnecessarily delayed proceeding to judgment. Id.

In his complaint, Relator seeks a writ compelling Respondent to "proceed to Final

Judgment in the Motion to Vacate and Set Aside Sentence, pursuant to Civ. R. 60, in the

above captioned cause (sic)..." [Relator's Complaint at ¶1] He alleges that he has filed a

motion pursuant to Civ. Rule 60(B) and that his motion has been pending for 120 days.

However, relator fails to set forth any additional facts to support a clear legal right to

have the court rule on his motion, and also fails to set forth any allegations demonstrating

that he has no adequate remedy at law.

As such, Goldsberry has failed to plead sufficient specific facts to withstand a Civ.R.

12(B)(6) dismissal motion. See, State ex. rel. Dehler v. Sutula, 74 Ohio St. 3d 33; 656

N.E.2d 332; 1995 Ohio LEXIS 2277.

Accordingly, this matter should be dismissed.

OAVID W. PNILLIPBUNION COUNTY

PROSECUTNGATTORNEV

ASSiSIantPi059

DAVIO W. PNU.uPSUNION COUNTY

PROSECUTINGATTORNEV

As881antPmsEtLlor9TenY L.1'iorC ChierASSislanl

Rick aod9arMalissaA. Chase

221 WestFiMhSVSqIMarysWle,Ohu4J040

Telsphons: 9376454790Fm:9376454191

E^ail [email protected]

It is axiomatic that a direct appeal constitutes a plain and adequate remedy in the

ordinary cause of the law, State, ex rel. Cleveland, v. Calandra (1980), 62 Ohio St. 2d

121, the existence of which is fatal to a request for the extraordinary remedy of

procedendo. State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St. 2d 171. In the instant

matter, relator complains that his sentence was in violation of State v. Brooks. This issue

is the subject of relator's direct appeal. Relator therefore has a remedy at law. Issues

cannot be considered in a petition for post-conviction relief where they have been or could

have been litigated on direct appeal. State v. Perry (1967), 10 Ohio St. 3d. 226, 448 N.E.

2d 104. This was recognized by the Respondent in ruling that "[a] post-conviction motion

in no substitute for an appeal."

Accordingly, this matter should be dismissed.

C. Relator has not demonstrated a clear legal right to relief.

Generally, post-conviction relief under R.C. 2953.21(A) is not sought until

conventional appellate relief has been sought. State v. Nichols (1984), 11 Ohio St.3d 40,

41, 463 N.E.2d 375; ef. State v. Gibson (1980), 69 Ohio App.2d 91, 430 N.E.2d 954.

Logically, if a defendant is granted relief in any form by an appellate court, especially a

reversal of a conviction, there would be no need to seek post-conviction relief pursuant to

R.C. 2953.21.

In the instant matter, relator has an appeal pending concerning the issues which

underlie his motion for post-conviction relief. As a direct appeal had been filed on the

Brooks-Fraley issue, the matter is res judicata bars the litigation of any matters which

were or could have been addressed on direct appeal. State v. Cooperrider, 4 Ohio St. 3d

226.

7

D. The Relator has not demonstrated that the court has either refused torender judgment or unnecessarily delayed proceeding to judgment.

UAVIO W. PNILLIPSUNION COUNTY

PROSECUTINGATTORNEY

AseislantPrtsealorsTerry L. Hord ChiefAesislant

RlckRodgerMellesaA. Chase

221 WeslFiOhStreetMarysville,Ohb43040

Teleplane: 93T{N54199Fac 9316454191

Email poseailor®oo.urian.oh.ue

This court has held that "'[a] writ of procedendo is appropriate when a court has

either refused to render a judgment or has unnecessarily delayed proceeding to

judgment."' State ex rel. CNG Financial Corp, v. Nadel, 111 Ohio St.3d 149, 2006 Ohio

5344, 855 N.E.2d 473.

It is an inferior court's refusal or failure to timely dispose of a pending action that

is the ill a Writ of Procedendo is designed to remedy; this Court has denied such a writ

when the delay is relatively minimal, including in State ex rel Dehler v Sutula (1995), 74

Ohio St. 3d 33 where a post - conviction relief petition had been pending for ten months.

In the instant case, the matter has been pending on appeal on the very issues relator

seeks to raise in his post conviction proceedings. While the Respondent recognizes that

the Court may rule on a post-conviction petition during the pendency of an appeal, see

R.C. 2953.21, which applies when different issues are involved. In the instant case, the

same issue which is raised on appeal is also raised in the trial court in the post-conviction

motions. If respondent had ruled on the relator's motion, Respondent would be exercising

jurisdiction inconsistent with the jurisdiction of the court of appeals. With his motions,

Relator collaterally attacks the very judgments which he has appealed.

An appeal is perfected upon the filing of a written notice of appeal. R.C. 2505.04.

Once a case has been appealed, the trial court loses jurisdiction except to take action in aid

of the appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas (1978),

55 Ohio St.2d 94, 97, 378 N.E.2d 162. The trial court retains jurisdiction over issues not

inconsistent with the appellate court's jurisdiction to reverse, modify, or affirm the

8

judgment appealed from. Id.; Yee v. Erie Cty. Sheriffs Dept. (1990), 51 Ohio St.3d 43, 44,

553 N.E.2d 1354.

Respondent has not, therefore, not "refused to render a judgment or unnecessarily

delayed" in ruling on Relator's motions, and this complaint is without merit.

CONCLUSION

Respondent the Honorable Judge Richard Parrott of the Court of Common Pleas

for Union County, respectfully requests that this complaint for a writ of procedendo be

dismissed.


DAVID W. PHILLIPSPROSECUTING ATTORNEYUNION COUNTY, OHIO

Da,X^W. Phillips (0019966)Union County Prosecuting Attorney221 West Fifth Street, Suite 333Marysville, Ohio 43040Telephone: (937) 645-4190Fax: (937) 645-4191For Respondent Hon. Richard Parrott


PROSECUTINGATTORNEY

Aseislsnt ProsawloreTerry L FWrd ChlelAasistant

Rick RodgerMelisea A. Chase

221 Weet Fi¢h 8treetMaryavtl1e,Ohb43G40

Telephone: 9316454190Fac 937-5454191

[email protected]

9

CERTIFICATE OF SERVICE

I hereby cerEify that I have served a true and accurate copy of the foregoing

Motion to Dismiss by ordinary United States Mail; postage prepaid, to Relator Michael E.

J^ayGoldsberry (Inmate No. 539-160) Post Office Box 209 Orient, Ohio 43146 this -

of December, 2007.


oAVIDW.PNiLLtPSUNION COUNTY

PROSECUTNOAITORNEY

A9991en(PfOSeatlareTerry L. McM ChiefAssletant

RickRnrlBerMelissaA. Chase

221 WeslFillhSVeeth7ary3ville,Ohu430I0

Telaplane:937E46b190Fati 937-80.5d191

Email [email protected]

10

APPENDIX

A. UNION COUNTY COURT OF COMMON PLEAS DOCKET SHEETSTATE V. GOLDSBERRY, 2005CR0008

B. THIRD DISTRICT COURT OF APPEALS DOCKET SHEETSTATE V. GOLDSBERRY, 14-07-06

C. JOURNAL ENTRY OF SENTENCE 3/23/2005

D. JOURNAL ENRY ON COMMUNITY CONTROL VIOLATION 11/3/2005

E. JOURNAL ENTRY ON COMMUNITY CONTROL VIOLATION 1/5/2007

F. JOURNAL ENTRY 6/18/2007

G. JOURNAL ENTRY AND OPINION - STATE V. GOLDSBERRY, THIRDDISTRICT COURT OF APPEALS 14-07-06 10/15/2007

H. TRANSCRIPT OF PROCEEDINGS 2005-CR-0008 (2 VOL.)

OAVIDW.PHILLIPSUNION COUNTY

PROSECUTINOAITORNEY

AseielanlPrceera4asTerry L. Flord ChiefAeslslenl

RickRatlBerMelieeaA. Chaee

221 We6lFillh SVeelMarysville,Ohio43D40

Telephone:937E454190Fmc937§aSd191

EmaA P^la®c0.unpn.oh.ue

lI

12/05/07 CRIMINAL DOCKET Judge: Rlchard B. Parrott 1-12-05

Case Nuaber:Case Origtn:

05-CR-0008 STATE OF OHIOUNION COUNTY CONNON PLEAS COURT

v GOLDSBBRRY, NICHABL B 1A539160 Date Filed: 1-12-05

---------------------------------------------------------------------------------°------°-°--------------------Defendant GOLDSBBRRY, MICHAEL E tA539160

PICKANAY CORRECTIONALIndictedDate Served; 1-16-05

P.O. 80% 209 Arraignaent Date: 1-21-05ORIENT OH 43146DOB: 4-17-57 55R: 296-52-8217

Attorney: ALISON

Yiolation(sl1 ORC 2919.21(A)(2)

Finding: 3-23-05ORC 2919.21(A)(2)

2 ORC 2919.21(81

Finding: 3-23-05ORC 2919.21(B)

3 ORC 2919.21(A)12;

Finding: 3-23-05ORC 2919,21(A)(21

4 ORC 2919,21(B)

Finding: 3-23-05ORC 2919,21(R(

5 ORC 2919.21(AI(21

Finding: 3-23-05ORC 2919.21(A)(2)

6 ORC 2919.21(B;

Finding: 3-23-05

BOGGS Court Appointed

FS NONSUPPORT OF DBPBRDBNTSOrtginal Plea: 1-21-05 Not GuiltyChange of Plea: 3-03-05 Guilty

GuiltyF9 NONSUPPORT OF DBPBNDBNTSF5 NONSUPPORT OF DEPENDENTSOriginal Plea: 1-21-05 Not GuiltyChange of Plea: 3-03-05 Guilty

GuiltyFS NONSUPPORT OF DEPENDENTSF5 NONSUPPORT OF DBPBNDBNTSOriginal Plea: 1-21-05 Not GuiltyChange of Plea: 3-03-05 Guilty

GuiltyF5 NONSUPPORT OF DBPBNOBNTSFS NONSUPPORT OF DEPENDENTSOriginal Plea: 1-21-05 Not GalltyChanqe of Plea: 3-03-05 Gutlty

GuiltyF5 NONSUPPORT OF DEPENDENTSF5 NONSUPPORT OF DEPENDENTSOriginal Plea: 1-21-05 Not GuiltyChange of Plea: 3-03-05 Guilty

GuiltyF5 NONSUPPORT OF DEPENDENTSF5 NONSUPPORT OF DBPBNDBNTSOriginal Plea: 1-21-05 Not GuiltyChange of Plea: 3-03-05 Guilty

GutltyORC 2919.21(B)

7 ORC 2919,21(Al(2)P5 NONSUPPORT OF DEPENDENTSF5 NONSUPPORT OF DEPENDENTS

Finding: 3-23-05

Original Plea:Change of Plea:

Guilty

1-21-05 Not Guilty3-03-05 Guilty

8ORC 2919.21(A)(2)ORC 2919.21(3)

F5 NONSUPPORT OF DEPENDENTSF5 NONSUPPORT OF DBPBNDBNTS

Findinq: 3-23-05

Original Plea:Change of Plea:

Guilty

1-21-85 Not Guilty3-03-05 Guilty

ORC 2919.21(B) F5 NONSUPPORT OF DBPRNDBNT9

I HEREBY CERTIFY iHIS IO BEA TRUE COPY OF THE GRIGINAL.

FILED IN THIS OFFI

CLERK OF COURTS'JNION COUNTY MAR'/SVILLF, OHIO

12/05/07 CRIKINAL DOCKBT Judge: Richard B. Parrott 1-12-05

Case Number: 05-CR-0108 STATE OF OHIO v GOLOSBKRRY, KICHASL 9 }A539160 Date Ftled: 1-12-85Case Origin: UNION COUNTY CONNON PLEAS COURT

Vtolatton(s)9 ORC 2919.21(AI(2) FS NONSUPPORT OF DBPBNDBNTB

Original Plea: 1-21-05 Not GutltyChange of Plea: 3-03-05 Guilty

Finding: 3-23-05 GuiltyORC 2919,21(A((2) F5 NONSUPPORT OF DEPENDENTS

10 ORC 2919.21(B; F5 NONSUPPORT OF DBPBNDBNTSOriglnal Plea: 1-21-05 Not GuiltyChange of Plea: 3-03-05 Guilty

Finding: 3-23-05 GuiltyORC 2919.21(BI ES NONSUPPORT OF DBPSNOBNTS

Related Case: 07-AP-0006 STATE OF OHIO vs. GOLDSBERRY, MICHAEL B

DocYet Bntries ----------------------------------------------------------------------------1-12-05 Indtctment Filed1-12-05 Request for Iseaance of Summons filed.

Arratgnment - January 21, 2005, at 1:00 PM1-13-05 Sumnons on Indictment Crt, Indictment

for Defendant: GOLDSBBRRY, MICHABL EPersonal Service by: SHBRIFF OF AADISON COUNTY

1-13-05 Coptes of Indictmenr, & Request isaued to Prosecutor1-19-05 PS Success on GOLUSBERRY, KICHABL E 0116051-21-05 Journal Entry ftled.

1. Scheduling Conference - Karch 2, 2085, at 2:30 PK2. OR K/Kaiver of Bxtradtion filed.3. Bond Condition - No contact with vtctim

1 21 05 Journal Entry filed.Defendant ts referred to the Ca.msel for Indtgents ofUnton County for evaluation as to eligibility forindtgent counsel services and representation.

1-21-05 Naiver of Extradition flled.1-21-05 Recognizance of Accused filed,1-21-05 Affidavit of Indigency filed.1-21-05 Audto Informatton1-21-05 Copies of 2)Journal Entries issued to Defendant at

counter1-24-05 Coples of 2)Journal Bntries issued to Prosecutor,APO,

Dorothy Liggett-Pelanda,Sheriff1-25-05 Sntry of Appearance of Couneel flled.

Atty:Dorothy Liggett-Pelanda1-28-05 Bili of Particulars filed.1-28-05 Prosecuting Attorney's Dtscovery Pursuant to Local

Rule 25.09 and Prosecuting Attorney's Demand forDiscovey from Defendant Pursuant to Local Rule 25.10filed.

2-09-05 COSTS FIGURED TO DATE3-e1-05 Hearing Notlce filed.

Scheduling Conference - Karch 3, 2005, at 1:45 PN3-02-05 Copies of Hearing Notice issued to Prosecutor,5hertff,

Defendant,Dorothy Liggett-Pelanda,APO3-03-05 Entry Withdrawing Plea of Nat Guilty, Bntertng Plea of

Gutlty and Referral for Presentence Investigation

12/05/07 CRININAL DOCKET Judge: Richard B. Parrott 1-12-05

Case Number; 05-CR-0008 STATR OF OHIO v GOLOSBERRY, HICHAKL B tA539160 Date ? tled: 1-12-05Case Origin: UNION COUNTY COMMON PLEAS COURT

Docket Kntries ----------------------------------------------------------------------------f(led.1. Sentencing - Narch 23, 2005, at 2:45 PN2. Bond continued.

3-03-05 Submitted for Sentencing or Judgment3-03-05 Sentencing Recommendation ftled.

1. Could recelve a prieon ter¢ of 6 to 12 months onCounts 1-10 and these offenses would be concnrrent,

3-03-05 AUDIO INFORWATIDN FORK3-08-05 Coptes of Bntry Withdrawing Plea issued to Prosecutor

Defendant,Dorothy Liggett-Pelanda,Sheriff,APO3-23-05 JOURNAL ENTRY OF SENTENCE/FELONY SENTENCING filed.3-23-05 Placed on 3 years Communtty Control3-23-05 AUDIO INFORNATION FORK3-25-05 MAO to GDLDSB&RRY, NICHARL E & Attorney/e3-25-05 Notice-Appealable Order filed.3-25-05 Coptes of Journal Entry tssued to Proeecutor,Defendant

Dorothy Liggett-Pelanda,Shertff,APO,Karen Haller3-25-05 DSR REPORT COKFLBT6/CARD NAILBD3-31-05 COSTS FIGURED TO DATE10-07-05 Journal Entry ttled.

It is Ordered that a Captas be issued for thearrest of defendant, Nichael Goldsberry.

10-11-05 Capias GOLDSBBRRY, MICHAEL EService by SHERIFF OF UNION COUNTY

10-17-05 PS Success on GOLDSBBRRY, NICHAKL 3 10160510-17-05 Case Reactivated ae Criminal10-19-05 Nottfication of Alleged Supervtaton Violattona flled.

(P0 - Jill Brady;10-19-05 Financial Disclosure/Indigency

(Did not pay $25.00)10-20-05 Notlce of Hearing filed.

Probatton Violation hearing set for November 3, 2005at 1:15 PN.

10-28-05 Copy of Hearing Notice issued to Proeecutor,sheriff,Defendant, APO, Counsel for Indigents.

11-03-05 Journal &ntry/Feiony Sentencing tiled.11-03-05 Defendant's probatton is continued under the same

terme and conditions previously tnposed.11-03-05 Fax Transmission of Journal Entry to Tri-County Jail11-07-05 NAO to GOLDSBSRRY, WICHABL R & Attorney/s11-07-05 Notice-Appealable Order ftled.11-07-05 Copies of Journal Entry issued to Prosecutor,Defendant

Dorothy Liggett-Pelanda,Sheriff,APO,Karen Halier12-14-06 Journal Entry and Order for Bench Warrant filed.

Captas Ordered.12-14-06 Capias GOLOSBBRRY, NICHA6L B

12/05/07 CAININAL DOCKET Judge: Richard B. Parrott 1-12-05

Case Number: 05-CR-0008 STATE OF OHIO v GOLOSB&RRY, NICHABL B 4539160 Date Filed: 1-12-05Case Origin: UNION COUNTY CONNOH PLBAS COURT

Docket Entries ----------------------------------------------------------------------------Servtce by SHERIFF OF UNION COUNTY

12-14-06 Copies of Journal Bntry iesued to Prosecutor,GefendantDorothy Llggett-Pelanda,Sheriff,APO

12-15-06 PS Success on GOLOSB6RRY, NICHA&L 6 12150612-18-06 Case Reactivated as Crtainal12-19-06 Notiflcation of ALleged Supervision(s)fi(ed.

APO - Dave Stebeneck12-19-06 Financial Disclosure/Affidavit of Indigency ftted.12-19-06 Nottce of Hearing filed.

Probation Violation hearing set for January 5, 2007at 9:00 AN,

12-22-06 Copy of Heartng Notice issued to prosecutor,sherift,defendant,APO, Perry Parsons.

12-27-06 Entry of Appearance of Counsel ttled.Atty:Cltff Valenttne,Jr,

12-27-06 Copy of Entry of Appearance i ssued to Oetendant1-05-07 Journal Entry filed.1-05-07 Defendant is ordered confined to the CRC for a term of

6 months on each of 10 counts to be servedconsec+atively to each other.

1 08 07 Warrant to Convey GOLOS86RRY, NICHA6L ETo Correctional Reception CenterCrt. Indictment, Entry Withdrawing Plea, 2 Journal&ntries

1-08-07 NAO to GOLOSBERRY, NICHABL S & Attorney/s1-08-07 Notice-Appealable Order filed.1-08-07 Fax Transmiseton Notice Appealable order to attorneys1-08-07 Copies of Journal Entry issued to prosecutor, sherlff,

APO, CLtff Vatentine, dafendant,Crt.copy to Burean ofSentence Computation.

1-12-07 PS Success on GOLUSBERRY, NICHABL E 011+-071-25-07 Not(ce of Commitment and Calculatton of Sentence filed2-05-07 Afftdavit of Indigency filed.2-05-07 Notice of Appeal filed.

(14-07-06)2-05-07 Statement and Precipe filed.

(Complete Transcrtpt)2-05-07 Criminal Appeal Oockettng Statement ftled.2-05-07 Notion for Appointment of the Offtce of the Ohio

Public Defender as Counsel filed,!Atty. John Fenionl

2-05-07 Notion for Preparation of Complete Transcrtpt ofProceedings at State Expense ftled.rptty. John Fenlon)

2-06-07 dournal 6ntry filed.Defendant is fonnd to be Indigent and hereby ie

12/05/07 CRIMINAL DOCKET Judge: Richard B. Parrott ?-12-05

Case Nuaber: 05-CR-0008 STATB OF OHIO v GOLOSBBRRY, NICHABL E iA539160 Date Filed: 1-12-05Case Originc UNION COUNTY CONNON PLEAS COURT

Docket Bntries ----------------------------------------------------------------------------appolnted counael. A transcrtpt of proceedings lsOrdered to be prepared.

2-07-07 Copies of Journal Entry issued to the Prosecutor,Defendant, Perry Parsons, John Fenlon, Tanny eieiber.

2-08-07 Entry of Appearance of Counsel filed.Atty,Alison Boggs

2-08-07 Fax Transmisslon2-09-07 Copy ot Bntry ot Appearance issued to Defendant3-19-07 Transcript of Proceedings filed3-19-07 Certificatton of Record ttled.4-02-07 Letter filed.

See case 07-CR-00056-13-07 Petition to Vacate and Set Aside the Sentence Pursuant

to Secttan 2953.21 & 2953.23 of the Ohio Revised Codefiled,by Defendant/Pro Se

6-13-07 Notton to Vacate and Set Aeide Sentence Pursuant toCivil Rules of Court filed,by Defendant/Pro Se

6-13-07 Copies of ?etition & Notlon tssaed to Prosecutor6-18-07 Journal Entry filed.

Motion for Appointaent ot.counsel and trancr!pt isOVERRULED.

6-18-07 Copies of Journal Entry issued to prosecutor,0efendantAlison Boggs,Clt,ff Velanttne,Jr.,Sheriff,APO

10-17-07 Received crt, Journal Entry & Crt. 0pinion from Courtof Appeals.Appeal Dississed

Sentence ----------------------------------------------------------------------------3-23-05 Journal Entry of Sentence filed.

1. Placed on 3 years Community Control2. Pay the costs of this proceedtng within 120 days & all costs of

proeecmtion and all court appointed comsel costs in the sum of$500.00.

3. Community Service - 200 hours4. Pay child support of $656.50 per month as prevlously ordered until

the total arrearage of $224417.97 ts paid in fulL5. Hereby notified that he may be required to relmburse any local

correctional facility.6. Bond released.

11-03-05 Journal 3ntry of Sentence filed.1. Defendant's probatton is continued under the same terms and

conditione previously imposed,2. Pay all fines and costs as directed by the Cairt, including fines

and costs that have prevtoasly accusulated !n this case.

12/05/07 CRININAL DOCKET Judge: Richard B. Parrott 1-12-05

Case Nugber: 05-CR-0000 STATE OF OHIO v GOLOSBERRY, NICHARL & 1AS39160 Date Fi!ed: 1- 12-05Case Grigin: UNICN COUNTY CONNON PL6AS COURT

Sentence ------- ----------------------------------------- --------------------------3. Complete add(tional 100 hours of co¢uunity service.

1-05-07 Jonrnal 3ntry filed.1. Defendant !s ordered confined for a ter® of 6 months on each

10 counts to be served consecutlvely to each other,2. Granted 19 days.prior jail tine credit & 24 days current jatl tiae

cred(t.

12/05/07 APPEAL DOCKET

Case Number: 07-AP-0006 Appeals Court Case No: 14-07-06 Date Filed: 2-45-07 Case Ortgin: UNION COUNTY COWKON PLEAS2005-CR-0008

Case Style: STATE OF OHIO vs. GOLDSBERRY, KICHAEL 6Filtng Attorney: JOHN FENLON

Transcript RequtredOrtginal Date Transcript Due: 3-19-07 Coaplete: 3-19-07Original Date Appellant Brief Due: 4-09-07 Ftled: 4-05-07Original Date Appellee Brief Due: 4-25-07 Ftled: 4-24-07

Party Ro 1 STATE OF OHIO Platntift-Appellee Attorney: DAVID W PHILLIPS

Party No 2 GOLDSRSRRY, KTCHARL BCRC

Defendant-Appellant Attorney: JOHNAttorney: ALISON

?RNLDNBOGGS

P0 BOX 300ORIRNT OH 43146

TO BL-I HEREBY CERTIFY fHiSParty No 3 PHILLIPS, DAVID ATTORNEY FOR APPELLEE A TRUE COPY OF THE qRIC,INA;.

FILED IN THIS OFFICf5TH ST221 W

^.3RD FLOOR/RK 333

O

'/HARYSVILLB OH 41040 CLERK OF COUts

UHION COUNTY, L1ARY^111,^(. OHIO

Party No 4 FRNLON, JOHNPUBLIC DSF6NDBRS OFFICES B, LONG ST/11TH FLOORCOLUKBUS OH 43215

Party No 5 VALBNTINB, CLIFTON128 WBST KAIN STREETPLAIN CITY OH 43064

Party No 6 COURT OF APPEALS204 N KAIN STRSBTP0 BOX 1243LIKA OH 45801

ATTORNEY POR APPELLANT

ATTORNSY

COURT OF APPEALS

Party No 7 XL6IBBR, TAKKY COURT REPORTER

Party No 0 BOGGS, ALISON240 WEST FIPTH STREETMARYSVILLE OH 43040

ATTORNEY FOR APPELLANT

Party No 9 PARROTT, HON RICHARD 6 JUDGE

Party No 10 WARN6R, PAULA P CLERK OF COURTS

Docket Entries ----------------------------------------------------------------------------2-05-07 Nottce of Appeal filed.

(14-07-0612-05-07 Statelent and Precipe filed.

(Complete Transcript)2-05-07 Crtalnal Appeal Docteting Stateaent filed.2-05-07 Affidavit of Indigency flled.2-06-07 Clork's Nottce of flltng Notice of Appeal flled.2-06-07 Regular Hail PHILLIPS, DAVID

Nottce of Appeal/Notice of ftting2-06-07 Regular Kail F&NLON, JOHN


Case Number: 07-AP-0006 Appeals Court Case Ao; 14-07-06 Date Filed; 2-05-07

Docket Entries ----------------------------------------------------------------------------Notlce of filtng Botice of Appeal

2-06-07 Regular Nail VALENTINE, CLIFTONNotlce of Appeal/Mottce ot flling

2-06-07 Regular Mail COURT OF APPEALSNotice of Appeal/Notice of filing

Statement & Precipe/Crimtnal Docketing Statement /Affidavit of ?ndigency/Copy Notton for Appotntment ofCounsel/Copy Notion to Prepare Transcript/Crt JournalEntry/Crt Trial Court 0ocfet/Crt Appeal Oocket,

2-06-07 Personal Service SLEIBER, TAHMYMotice ot Appeal/Statement and

Precipe/Oockettng Statement/Notion to Prepare theTranscript.

3-19-07 Original Trial Court pleadings filed.3-19-07 Transcript of Proceedings filed3-19-07 RECORD ON APPEAL FILEU.3-19-07 Clerk's Nottce of ftl!ng Record on Appeal issued.3-19-07 Regnlar Nail PHILLIPS, DAVID

Notice of ftling Record on Appeal3-19-07 Regular Natl FEHLON, JOHM

!totlce of filing Record on Appeal3-19-07 Regular Nail COURT OF APPEALS

!lotlce of tiling Record on Appeal3-19-07 Regular Natl BOGGS, ALISON

votice of filing Record on Appeal4-05-07 Brtef of Appellant filed.4-05-07 Clerk's Nottce of filtng Appellan+. Brief filed,4-05-07 Regular Matl PHILLIPS, DAVID

Notic f fili A ll t 9 t fe o ng ppe an r e4-05-07 Regular Mail FENLON, JOHN

Notlce of filing Appetlant Brief4-05-07 Regular Nail COURT OF APPEALS

A ll t B i f/N ti f fllippe an r e o ce o ng4-05-07 Regular Nait BOGGS, ALISON

Notice ot filing Appellant Brtef4-24-07 Brief of Appellee filed,4-25-07 Clerk's Notice of tiling Appellee Brief ftled,4-25-07 Regular Natl PHILLIPS, DAVID

Mottce of ttltn ellee 9rtA fg pp e4-25-07 Regular Nail FENLON, JOHN

N ti f ftli A ll B i fo ce o ng ppe ee r e4-25-07 Regular Nalt COURT OF APPEALS

Appellee Brlef/Notice of filtng4-25-07 Regular Mail BOGGS, ALISON

Notice of fit!ng Appellee Brief7-20-07 Assignment ftled.

Nearing set for August 14, 2007 at 9:00 AN.Requests for oral argmment must be received in Llma


Case Number: 07-AP-0006 Appeals Court Case Ao: 14-07-06 Date Filed: 2-05-07

Docket 6ntrlee ----------------------------------------------------------------------------by August 3, 2007,

7-23-07 Regular Mall PHILLIPS, DAVIDAsai nment

7-23-07 Regular Mailg

POGGS, ALISONAssignment

1-25-07 Notice of Request for Oral Argument fi!ed.

7-25-07State of OhioFax Transmission Request for Oral Argumenr, to Court of

10-15-07Appeals.Journal Entry tiled.

11-15-07The Appeal is Uismissed for want of jurisdlct[on.Appeal Olemissed

10-15-07 Oplnlon flled.10-15-07 âegular !!Sall PHILLIPS, DAVID

10-17-07 Reqular MallJournal Entry & Opinion

BOGGS, ALISONJonrnal Entr & O lnion

10-17-07 Personal Servicepy

PARROTT, HON RICHARD EC t l EJ O i i

10-17-0? Personal Servtcer . ourna ntry e. p n onWARNER, PAULA P

Crt. Jonrnal Entry & Opinton11--29-07 Notice of Appeal of Appellant Michael Goldsberry filed

!To the Supreme Court of OhioJ11-19-07 Regular Mail COURT OF APPEALS

Notice of Appeal/Supreme Court11-29-07 Personal Service PARROTT, HON RICHARD E

Notice of Appeal/Supreme Court11 29 07 Regular Mail PHILLIPS, DAVID

Notice of Appeal/Supreme Court11-29-07 Case returned from Court of Appeals.

IN THE COURT OF COMMON PLEAS, UNION COUNTY, OHIO

State of Ohio

-vs- Case No. 05-CR-000

N r _

Michael E. Goldsberry, W niJudge Richard E. parr@^t c n,

--Defendant JOURNAL ENTRY O ENR^iCE<

7C h '^'

On the 23`d day of March, 2005, Defendant's Sentencing

hearing was held pursuant to R.C. 2929.19. At the hearing

Defendant appeared in open Court represented by Attorney Dorothy

Liggett Pelanda and the Union County a g,. Prosecuting Attorney

was also present. The Defendant was afforded all

rig ts pursuant to Crim. R. 32. The Court has considered the

record, oral statements, the victim impact statement, the pre-

sentence report, as well as the principles and purposes of

sentencing under R.C. 2929.11 and has balanced the seriousness

and recidivism factors under R.C. 2929.12. (See Attached)

The Court finds that the Defendant has been convicted of:

Five counts of Nonsupport of Dependents in violation of Ohio

Revised Code Section 2919.21(A)(2), and Five counts of Non-

Support of Dependents in violation of ORC 2919.21(B), each a

felony of the fifth degree.

It is therefore ORDERED:

The Defendant be and hereby is placed on 3 years of

Community Control upon the following terms and conditions:

1) Defendant pay the costs of this proceeding within 120days.

2) Defendant is ordered to pay all costs of prosecution,and if applicable, all court appointed counsel costs inthe sum of $500.00 and fees permitted pursuant to R.C.2929.18 (A) (4).

3) Defendant is advised that he/she may appeal theproceedings herein within 30 days of this date.

4) Defendant is to obtain and maintain employment.

5) Bond released.

6) Defendant not to violate any laws of the State ofOhio, the United States, or any municipality, townshipor village.

7) Defendant to participate in drug/alcohol/abuse testing,and counseling and treatment as directed by the AdultProbation Officer, at his/her sole expense. Defendantnot to imbibe or ingest or possess alcohol/prescriptiondrugs not prescribed by his/her physician, nor shallDefendant enter any establishment the primary purposefor which is the dispensing of alcoholic beverages.

8) Defendant to perform 200 hours of community serviceand is to report to the Union County Day Reportingofficer forthwith for such purpose.

9) The Court further finds that the Court has notifiedthe Defendant in writing and orally that if theconditions of community control are violated, theCourt may impose a longer time under the samesanction, may impose a more restrictive sanction, ormay impose a prison term on the Defendant and theCourt hereby indicates that in the event the Courtdoes impose a prison sentence on the offender ifhe/she violates community control, the Court hasindicated the Defendant could receive a maximumprison term of up to 120 months.

So10) Defendant to pay child support of $^,56 per ta^ as

previously ordered, and to pay $ per weekplus poundage additionally to and through Union CountyDepa.1;tment of Human Services until the total arrearageof $JJYL4,tt' is paid in full.

11) Defendant to report to his/her Union County AdultProbation Officer forthwith.

12) Defendant to abide by all orders, rules and regulationsof the Union County Adult Probation Department, aswell as those rules and regulations promulgated bythis Court.

13) Defendant is hereby notified that he/she may berequired to reimburse any local correctional facilityfor the costs of incarceration as authorized by thepay-for-stay program, and failure to pay will resultin a certificate of judgment being entered for theunpaid amount of the reimbursement owed. If suchjudgment is rendered, it automatically becomes part ofthe sentence being imposed by this court. ORC 2929.37

14) Defendant to show proof of high school diploma or GEDto Adult Probation Officer or obtain his/her GED

within 180 days.

15) Defendant to pay a supervision fee before the 5th dayof each month through the Clerk of this Court in thesum of $5.00, beginning April 1, 2005.

Mar. 23, 2005

Date Judge'Riiahard E. Parrott

copies to:

Union County Prosecuting Attorney

DefendantUnion County Adult Probation DepartmentKaren Haller, Director, Community ServiceAttomey for DefendantCSEA

(WORKSHEET)

State of Ohio v. YU CW ^" '. Case.No. C;w 1 ^ Date:

Purpose and principles, R. C. 2929.11(A) and 2929.12 A) - Judge shall punish offenders and protect the public from future crimes bythe offender and oth'ers. To achieve these purposes, the Court must consider the need to: (a) Incapacitate the offender, (b) deter theoffender and others; (c) rehabilitate the offender and, (d) make restitution to the vicbm.

Sentencing Factors, R.C. 2929.12(a) - (E)

More Sertous Sentencing -Fd's, R.C.2929.13(C)1. The Injury to 8m vldim rrrs worsened because of .1. No presumptbn -1, 2, 3, 4, 5 ,

the physical or mental condition or age of the vidim; 2. Most Weight- More Serious - Less SerlotJ^ 1^^ ^^t Llk[/lThe vtdlm stAferad sedous physical, psycholoqlcal, or e 3. Most Welght- Reddivlsm Llkaiy-No

one)G dharm:3. The offender held a public offioe or poslUon of bust and the

offense was related to that office or busl:4. The offender•s occupalion or office requlred the offender to

prevent or proseaute those cammlt9ng the offense;S. Professlonal n:putaUon, occupaUon oroffioe fadlitated the

offense;•_/ 6. Offense facilitated byoffendefs relaUonship with the vldim;

7. Committed for htre or as part of organized cdminaladivlty,

_ e. Crime modvated by preJudice based onmce, ethnicity, gender,seaual odentaUon or religion.

9. Any oUier factor.

Less Serious_ 1. The victim Induced or facilitated the offense;

2. The offender was strongly provoked;C/S"No physical hacm to persons or property expected or caused;

4. Substantial grounds for mitigation.S. Anyotherfadoc-__

'Most weightMore Sed s Loss Serfous

Recidivism Likely_ I. Offender rras out on ball before trial or sentencing, or under

court sandion or under post release control or parole whenoffense was wmmltled-

^ Pdoradjudicationofdelinquenuyorhistory ofcdminalconvidions;

3. Failure to respond favorably In the past to probaUon or parole^ Failure to admowtedge pattem of drug or alcohol abuse ttwt

Is related to the offense;No genuine remorse.

_6. Anyolherfador.

Recldivism Not Ukely- i. Offender has not been adjudicated delinquent

2. No pda criminat convidlons;_ 3. Offender has been law abid'mg for a significant number of

years;_ 4. Offense ooourted under draumstanoes not Bkely to recur,

5. l'Mender genulnety remorsefut._6. Anyctlter fador

Most weight -Llkely Not LJkely(C4+de one)

Sentendng - F•t's, F-2's, R.C. 2929.13(0)1. Presump5on of Pdson '

F-1 3.4.5.6.7.8.9.10F-2 2,3,4,5,8,7,8

(Ctrde one)

2. Rebutpresump5on_ a, Less serious outwatghs more serious, and_ b. Redd"rvlsntnot Bkely outwelghs reddidsm t.Ikaiy._ C. A oommunity conlrot sarfo8on would adequately puntsh Iha

offender and proted the publfc and vrould not demean 8iesedousness of 8ie oHense.

Repeat Vldent txfender, RVO-R.C. 2929.14(O)(2)1.2.3.4.5.6.7.6.9.10

- Must have recalved matdmum sentenoe for F-i or F-2- Being sentenced for murder. F-I or F-2 Involving violence;- Previously served pdson Ume for above;- Basic term inadequate to punlsh and protect._ Serious and likoly outweigh less serious and not likely.

( e ..,. Zr4. Pdson (s, Is not) conslslent with the pury+s and gpdpro- of^

sentencing. • i, ; N ^ t-- ^_;

s..,,fa^dnn-Fd's.F-5's.R0.2929.i3f81 T^_1._2.

_-3.

_4.

The offender caused physical harm to a CThe offender attempted to cause, orcm; an a al thrAt of, 3physical harm wlth a weapon; ^rf C.JThe offender attempted to cause, ormta,0e an a^Wl Oveat of, 2physical hann to a person, and the oder pre}^xisly vrasconNded of aooffense that caused su harm;The offender held a pubec office or posi6on or trust and Iheoffense related to the ofrice or poslUon; the offender•sposiUOn ob8galed the offender to prevent the offense or bringthose commit8ng k to )us6ce; or the offenders reputaUOn ofposi6on facilitated the offense or was likely to InBuence thefuture cendudotothers;

_5. The offense was committed for hire or as part of an organizedcriminal aclivlty,The crime Is a sez offense;

^. The offender previously served a R4alh term; (A_8. The offense vras committed while the offenders under a

community oontrol sanction.

A. If none of the above are found, the Court shall 4npose acommunity control sandion with the puryoses and principles ofsentencing.

B. Finding one or none of the above, the Court finds that

3Weighltenn

thy do ess and reddivism fadors, a pdsonnsistent with the purposes of R.C.

2929. 1; and, r^7Tie dffender ( , amenable to ava8able community

sandions.F-4 6, 7, 8, 9, 10, 11, 12. 13.14.15.16.17, IS monlhs.

F-5 6, 7, 8, 9, 10, 11, 12 months.

Oral Findings NeussaryMaodmum sentence. MuBiple madmum santence.

_Consew8ve sentenoeaf exceeds maximum sentence,,_F-f's and F-2's H rw pdson

F-4's and F-5's If i-8 not found._Needed to jus6(y a disparate postconvkdon or qlegal

sentence dwltetqe.

Advise and NotHy DefendaetPdson-wam atatR bad 9me and posltelease control.

L-1donununity Controt -vram abobt tougher sanWau andpo'ssible pdson term.Tlme orpost-retease contnN.

,•Fines

Mandatory_F-1 > $20,000, F-2 > $16.000

F3> 510,000 F-4 > $5,000FS> $2,500

Ab01ty to Pay (Consider ab18ty to borrow)_Oefendant b able to pay ehe sandbn or Is Ilkety In the fulure

to be able fdpay._f>afendant can onty pay $_tkfendant Is unable to pay anything now or in Ihe fuWre.

Union County Common Pleas CourtWest 5th and Court Streets

Marysville, OH 43040

NOTICE OF APPFAr.aar.F ORDER

937-645-3006

--------------------------------------------- ------------------------------------------

State of Ohio v GOLDSBERRY, MICHAEL E 05-CR-0008

To: DAVID W PHILLIPS221 WEST 5th St.3rd floor, Room 333Marysville OH 43040

What appears to be an appealable order was filed in the above-referenced case onthe 23rd day of March, 2005

3/25/05 Clerk of Courts: Paula Warner

lrVl? Jl.f'1 1/ nt " ^ -Deputy

Copies Mailed To:

GOLDSBERRY, MICHAEL E DOROTHY LIGGEPI'-PELANDA

445 FAIRFIELD DRIVE P0 Box 1

APT. 10 122 East Fifth Street

PLAIN CITY OH 43064 Marysville OH 43040


STATE OF OHIO

-VS- CASE NO. 2005 CR 0008

MICHAEL E. GOLDSBERRY

DEFENDANT JOURNAL ENTRY

This matter came before the Court on November 3, 2005, for hearii* on

community control violation charges. Present in Court were the following: Union

County Chief Assistant Prosecuting Attorney Terry Hord; Jill R. Brady, Adult

Probation Officer; and the Defendant, Michael E. Goldsberry, represented by

attorney Dorothy Liggett-Pelanda.

Whereupon, the Defendant admitted the community control violations

and/or upon the admissions of the Defendant, the Court finds the Defendant violated

his community control in the following particulars:

1) Since on or about August 1, 2005 and thereafter, Michael E.Goldsberry has failed to keep his supervising officer informed of hisresidence;

2) Since August 1, 2005 and thereafter, Michael E. Goldsberry hasfailed to report to the Adult Parole Authority as directed;

3) Michael E. Goldsberry has failed to complete his communityService hours as instructed by the Court;

4) Michael E. Goldsberry has failed to pay child support as previouslyordered by the Union County Common Pleas Court.

Whereupon, the Defendant and/or Defendant's counsel were given an

opporhmity to make a statement in mitigation.

It is hereby ordered that the Defendant's probation is continued under the

same terms and conditions previously imposed.

It is further ordered that all of the terms and conditions of the order of

conununity control previously issued by this Court on March 23, 2005 are

incorporated herein. The Defendant is ordered to complete an additional 100 hours

of community service. The Defendant is further ordered not to violate any laws of

the United States, State of Ohio, or any village or municipality. The Defendant is

advised that if he violates any of the tenns or conditions of community control, the-t

Court may impose a more restrictive community control or the Defendant w be

sent to prison for one hundred twenty (120) months.

It is hereby ordered that if a prison sentence is imposed at any time the

defendant may/will be subject to a period of post release control imposed by the

parole board of up to three (3) years, which would commence upon his actual

release from prison.

The Defendant is further advised that if he violates the terms and conditions

of post-release control, the Adult Parole Authority may/will impose a more

restrictive sanction, increase the term of post-release control up to a maximum term

of three (3) years, or impose a prison term upon the defendant not to exceed 50% of

the stated prison term originally imposed as part of the sentence. The Defendant is

further advised that if he commits a new felony while under post-release control, he

may/will receive a prison sentence for both the new felony and any post release

control violation which shall be served consecutively.

The Defendant is hereby notified that he a^e required to reimburse any

local correctional facility for the costs of incarceration as authorized by the pay-for-

stay program and failure to pay will result in a certificate of judgment being entered

for the unpaid amount of the reimbursement owed. If such judgment is rendered, it

automatically becomes part of the sentence being imposed by this court under Ohio

Revised Code Section 2929.37.

The Defendant is also directed to pay a probation supervision fee of $5.00

per month on or before the 5`h day of each month beginning with his release from

incarceration. This fee is to be paid through the Clerk of this Court.

It is further ordered that the Defendant pay all of the fines and costs as

directed by the Court, including fines and costs that have previously accumulated (if

applicable) in this case as well as the current costs of this proceeding.

IT IS SO ORDERED.

7UDGE

COPIES TO:

Union County Prosecutor's OfficeDefendantAttomey for DefendantProbation Department

u''...` C-C. ' %^

(WORKSHEET)

State bf Ohio v case No. _Q^^) p Date: I I"3-OS

Purpose and pr(nGples, R C. 2929.11(A) and 2929.12(A)- Judge shall punish offenders and protect the public from future cAmes bythe offender and others. To achieve these purposes, the Court must consider the need to: (a) Incapacitate the offender, (b) deter theoffender and others; (c) rehabilitate the offender, and, (d) make restitution to the vlcUm.

Sentencing Factors, R.C. 2929.12(6) - (E)

More Serlous_ 1. The LnJury to Ihe viUim was worsened because of" /- the physkal or mental condition or age of the viW m;(/ 2. The victim suffered sedous physieal, psychologlcal, or economic

harm;_ 3. The offender held a pubric office or posi8on of trust and the

offense was related (o [hat of8oe or bust;_ 4. The offende(s occupation or offioa required the offender to

prevent or proseaule those commitOng the offense;5. Professbnal reputation, oaupadon or office fadlitated the^affense;

1/6. Offense fadlitated by offendefs reWtionship wtfh the vldim;_ T. Conunhted for hlre or as pan of organized trtminat

adivity,_ B. Crime motivated by prejudice based onrace, ethnicity, gender,

Sentencing -FJ's, R.C.2929.13(C).1. Nopresump8on-1,43,4,52. Most Welght-More SeAous-Less Se3. Most Wetght-ReddWlsmLBceiy- Not

(Cirde one)4. Pdson (is, Is not) aonslstent with the

sentendng.

z =_^ pSOS arttFpcinc^sgf

rTiO^-x.

Sentencing - FJ's, F- 5's, R.C. 2929.13(B),- -0 C

Union County Common Pleas CourtWest 5th and Court Streets

Marysville, OH 43040

NOTICE OF APPFAT.ART.F ORDER

937-645-3006

----------------------------------------------------------------------------------------

State of Ohio v GOLDSffiLRY, MICHAEL E 05-C,R-0008

----------------------------------------------------------------------------------------

To: DAVID W PHILLIPS221 WEST 5th St.3rd floor, Room 333Marysville OH 43040

What appears to be an appealable order was filed in the above-referenced case onthe 3rd day of November, 2005

11/07/05 rk of Courts: Paula Warner

f ^n

Copies Mailed To:

GOLDSBERRY, MICHAEL EC/O TRI COUNTY JAIL4099 ST RT 559MECHANICSBURG OH 43044

puty

DOROTHY LIGGElT-PELANDAP0 Hox 1122 East Fifth StreetMarysville OH 43040

IN THE COURT OF COMMON PLEAS, UNION COUNT

STATE OF OHIO

-VS- CASE NO. 2005 CR 0008

MICHAEL E. GOLDSBERRY

DEFENDANT JOURNAL ENTRY

This matter came before the Court on January 5, 2007 for hearing on community

control violation charges. Present in Court were the following: Union County Chief Assistant

Prosecuting Attorney Terry L. Hord; Dave Siebeneck, Adult Probation Officer; and the

Defendant Michael E. Goldsberry, who was represented by attonrey Cliff Valentine.

Whereupon, the Defendant admitted/denied the community control violations and/or

upon the admissions of the Defendant, the Court finds the Defendant violated his connnunity

control in the following particulars:

1) Michael E. Goldsberry has failed to make any monthly payments toward hiscourt costs and has an outstanding balance of $885.61;

2) Michael E. Goldsberry has failed to make his full child support payment duesince August of 2006, arrearage as of November 30, 2006 is $36,156.96;

4) Michael E. Goldsberry has failed to complete his community service asordered by the Court.

It is hereby ordered that the attached journal entry is incorporated herein and the Court

finds that the shortest prison term will demean the seriousness of the offender's conduct and

will not adequately protect the public from future crimes by the offender or others.

Whereupon, the Court has considered the record, the statements of the State, as well as

the defense counsel, and has given the Defendant the opportunity to make a statement in

J.i_ 28f' G0i7

mitigation. The Court has also considered the pre-sentence report as part of the record and

has considered the principles and purposes of sentencing under Ohio Revised Code Section

2929.11 and has balanced the seriousness and recidivism factors under Ohio Revised Code

Section 2929.12.

The Defendant is ordered confined to the Correctional Reception Center in Orient,

Ohio for a terh^of ^ months on each often (10) counts of Nonsupport of Dependents in

violation of Ohio Revised Code Sections 2919.21(A)(2) and 2919.21(B), all felonies of the

fifth degree to be served sew.a^consecutively to each other.

It is hereby ordered that if a prison sentence is imposed the defendant may/will be

subject to a period of post release control imposed by the parole board of up to three (3) years,

which would commence upon actual release from prison.

The Defendant is further advised that if he violates the terms and conditions of post-

release control, the Adult Parole Authority may/will impose a more restrictive sanction,

increase the term of post-release control up to a maximum term of three (3) years, or impose a

prison term upon the defendant not to exceed 50% of the stated prison term originally

imposed as part of the sentence. The Defendant is further advised that if he commits a new

felony while under post-release control, he may/will receive a prison sentence for both the

new felony and any post release control violation which shall be served consecutively.

The Defendant is hereby notified that he may be required to reimburse 16 1

cors4e6^naLf144';' for the costs of incarceration as authorized by the pay-for-stay program .

! iti8i"o 0t8

The DXfendant is *o directed to p" a proj^,dfion supeoion feeg.of $5.0O.l5er month

on :or be re the 5`" d of eacontlyfiegiruyifig with hisfelease m inc^fceration//This^fee

is t e paid thr gh the Cler of this Court/. /f^o

The Defendant is granted prior jail time credit of 19 days and current jail time credit

tiof days.

The Defendant is ordered to pay the costs of this action, including $500 toward costs

of indigent counsel being provided, if applicable, for which execution is awarded.

It is further ordered that the Sheriff of Union County convey the Defendant to the

Correctional Reception Center in Orient for xe ution of sentence.`t^y^.^..rk^.s 3o d,z.^y ^ ; d•^^ a,.^ ^P-IT IS SO ORDERED.

COPIES TO:

Union County Prosecuting AttorneyDefendantAttorney for DefendantProbation DepartmentDesignated Correctional Facility

j 12bPG U1J


STATE OF OHIO

-vs-

Michael E. GOLDSBERRY,

^ ^N r

c> >[ _'r".'.^ z

CASE NO. 05-CkOOa$

DEFENDANT 7OURNALENTRY

Motion for Appointment of counsel and transcript is

OVERRULED. A post-conviction Motion is no substitute for an

appeal.

copies to:

DefendantProsecuting AttorneyAttorney for Defendant

RIC ARD E. PARROTT, JUDGE

W /

0

IN THE COURT OF APPEALS OF THE THIRD APPELLATE JUDICIAL DISTRICT OF OHIO

UNION COUNTY

STATE OF OHIO9

PLAINTIFF-APPELLEE,

V.

MICHAEL GOLDSBERRY,

DEFENDANT-APPELLANT.

CASE NUMBER 14-07-06

JOURNAL

ENTRY

For the reasons stated in the opinion of this Court it is the judgment and order

of this Court that the appeal is dismissed for want of jurisdiction at the costs of the

appellant for which judgment is rendered, and that the cause be remanded to the

trial court for execution of the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this

judgment to that court as the mandate prescribed by Appellate Rule 27 or by any

other provision of law, and also furnish a copy of the opinion filed concurrently

with this entry to the trial judge and parties of record.

DATED: October 15, 2007

,^Q

COURT OF APPEALSTHIRD APPELLATE DISTRICT

UNION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE,

V.

MICHAEL GOLDSBERRY,

DEFENDANT-APPELLANT.

CASE NUMBER 14-07

OPINION

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court.

JUDGMENT: Appeal dismissed.

DATE OF JUDGMENT ENTRY: October 15, 2007

ATTORNEYS:

ALISON BOGGSAttorney at LawReg. #0055841240 West Fifth Street, Suite AMarysville, OH 43040For Appellant.

DAVID W. PHILLIPSProsecuting AttorneyReg.#0019966Terry L. HordReg. #0025979221 West Fifth Street, Suite 333Marysville, OH 43040For Appellee.

Case Number 14-07-06

Rogers, P.J.,

{¶1} Defendant-Appellant, Michael E. Goldsberry, appeals the judgment of the

Union County Court of Common Pleas sentencing him to sixty months in prison. On

appeal, Goldsberry argues that the trial court erred when it imposed a prison sentence at

his second community control violation hearing. Finding that the trial court failed to

sentence Goldsberry on each count of his conviction, we dismiss Goldsberry's appeal for

lack of a fmal appealable order.

{1[2} In January 2005, the Union County Grand Jury indicted Goldsberry for five

counts of nonsupport of dependants in violation of R.C. 2919.21(A)(2), felonies of the

fifth degree, and five counts of nonsupport of dependants in violation of R.C. 2919.21(B),

felonies of the fifth degree. Subsequently, Goldsberry entered a plea of not guilty as to

all counts in the indictment.

{¶3} In March 2005, Goldsberry withdrew his plea of not guilty and entered a

plea of guilty as to all counts in the indictment. The trial court accepted Goldsberry's

guilty plea, convicted him, and sentenced him to three years of community control,

stating that:

The Court finds that [Goldsberry] has been convicted of:Five counts of Nonsupport of Dependants in violation of OhioRevised Code Section 2919.21(A)(2), and Five counts ofNonsupport of Dependants in violation of ORC 2919.21(B), eacha felony of the fifth degree.

It is therefore ORDERED: [Goldsberry] be and hereby isplaced on 3 years of Community Control[.] * * *

2


(March 2005 Journal Entry, p. 1).

{¶4} In November 2005, the trial court held a community control violation

hearing and found that Goldsberry had violated the terms of his community control. The

trial court then ordered Goldsberry to complete an additional one-hundred hours of

community service, stating that "[t]he Defendant is advised that if he violates any of the

terms or conditions of community control, the Court may impose a more restrictive

community control or the Defendant will be sent to prison for one hundred twenty (120)

months." (November 2005 Journal Entry, pp. 1-2).

{1[5} In January 2007, the trial court held a second community control violation

hearing and found that Goldsberry had again violated the terms of his community control.

The trial court then sentenced Goldsberry to a six month prison term on each conviction

of nonsupport of dependants to be served consecutively for a total of sixty months.

{¶6} It is from this judgment that Goldsberry appeals, presenting the following

assignment of error for our review.

THE TRIAL COURT ERRED WHEN IT IMPOSED A PRISONSENTENCE AT APPELLANT'S SECOND PROBATIONVIOLATION HEARING WHEN THE COURT FAILED TO NOTIFYAPPELLANT OF A SPECIFIC SENTENCE AT BOTH HISORIGINAL SENTENCING HEARING AND AT HIS FIRSTPROBATION VIOLATION HEARING.

{¶7} In his sole assignment of error, Goldsberry argues that the trial court erred

when it imposed a prison sentence at his second community control violation hearing

3


because it failed to notify him of a specific sentence at both his original sentencing

hearing and at his first community control violation hearing. Specifically, Goldsberry

asserts that the trial court could not impose a prison sentence on him if it did not

previously advise him of a specific prison term that it would impose upon violation of the

terms of community control. Because this Court lacks jurisdiction, we do not address the

merits of Goldsberry's argument.

{1[8} Appellate jurisdiction is limited to review of lower courts' final judgments.

Section 3(B)(2), Article IV of the Ohio Constitution. To be a final, appealable order, a

judgment entry must meet the requirements of R.C. 2505.02 and, if applicable, Crim.R.

32(C). Chef Italiano Corp. v. Kent State Univ. (1989), 44 Ohio St.3d 86, 88; Centex

Home Equity Co., L.L.C. v. Williams, 3d Dist. No. 6-06-07, 2007-Ohio-902, ¶12.

Additionally, the issue of whether a judgment is a fmal appealable order is a

jurisdictional question, which an appellate court may raise sua sponte. Chef Italiano

Corp., 44 Ohio St.3d at 87. In criminal cases, "`[t]he necessity of journalizing an entry in

accordance with Crim.R. 32(C) is jurisdictional. Without a properly journalized

judgment of conviction, this court has no power to hear this appeal."' State v. Moore, 3d

Dist. No. 14-06-53, 2007-Ohio-4941, ¶7, quoting State v. Teague, 3d Dist. No. 9-01-25,

2001-Ohio-2286; see also Maple Heights v. Pinkney, 8th Dist. No. 81514, 2003-Ohio-

3941, ¶1.

4


{19} In a case factually similar to Goldsberry's, this Court recently addressed the .'

effect of noncompliance with Crim.R. 32(C) on jurisdiction and found "[t]hat a journal

entry which did not dispose of the court's rulings as to each charge renders the order

merely interlocutory." Moore, 2007-Ohio-4941, at ¶10, citing State v. Hayes (May 24,

2000), 9th Dist. No. 99CA007416. See also State v. Pace (June 5, 1998), 1st Dist. No. C-

970546; State v. Taylor (May 26, 1995), 4th Dist. No. 94 CA 585; State v. Huntsman

(March 13, 2000), 5th Dist. No. 1999-CA-00282; State v. Yingling (December 30, 1993),

6th Dist. No. L-93-076; State v. Waters, 8th Dist. No. 85691, 2005-Ohio-5137, ¶16; State

v. Garner, 11th Dist. No. 2002-T-0025, 2003-Ohio-5222, ¶7.

{110} In Moore, supra, a defendant pled guilty to five counts of deception to

obtain a dangerous drug and the trial court imposed a lump sentence of three years of

community control. However, the journal entry of sentence did not specify to which

count or counts the three year community control sentence applied. On appeal, the

defendant asserted that she had not been properly notified of a specific prison term that

would be imposed upon a community control violation. This Court dismissed the appeal,

finding that the journal entry of sentence did not comply with Crim.R. 32(C). Id., at ¶18.

See also State v. Hoelscher, 9th Dist. No. 05CA0085-M, 2006-Ohio-3531, ¶10.

{¶11} Here, Goldsberry initially pled guilty to and was convicted of five counts of

nonsupport of dependants in violation of R.C. 2919.21(A)(2) and five counts of

nonsupport of dependants in violation of R.C. 2919.21(B). Instead of sentencing

5


Goldsberry on each count of the conviction, the trial court sentenced Goldsberry to a

lump sum of three years of community control. As in Moore, the journal entry of

sentence did not specify to which count or counts the sentence applied, and, therefore,

does not comply with Crim.R. 32(C). Consequently, pursuant to our decision in Moore,

we must dismiss Goldsberry's appeal for lack of jurisdiction.

Appeal DismBssed

PRESTON and WILLAMOWSKI, JJ., concur.

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co

7 IN THE COURT OF COMMON PLEAS, UNION COUNTY, OHIO mc 7;

- - -8 ° 'oT

9 STATE OF OHIO, 106p

mifl Plaintiff1

^^© 0 C)

^ ) Case No. 2005-CR-0008 °^11 -vs- ^O

12 MICHAEL E. GOL'HSBERRY, ) APPEAL N0. 14-2007-06

13 Defendant.

14 - - -

15 TRANSCRIPT OF PROCEEDINGS

16 Before the Honorable Richard E. Parrott, Judge of

17 the Union County Common Pleas Court, on Wednesday, March 23,

18 2005, from 2:46 P.M. to 2:58 P.M.

19 - - -

20

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2

1 APPEARANCES:

2 Mr. Terry L. Hord, Chief Assistant Union CountyProsecuting Attorney, 221 West Fifth Street, Justice Center

3 - Suite 333, Marysville, Ohio, 43040, on behalf of thePlaintiff, the State of Ohio.

4Ms. Dorothy Liggett-Pelanda, Esquire, 122 East

5 Fifth Street, P.O. Box 1, Marysville, Ohio, 43040, on behalfof the Defendant, Michael E. Goldsberry.

6ALSO PRESENT:

7 Ms. Wendy Golden, Paralegal at the Child SupportEnforcement Agency.

8

1 Wednesday, March 23, 2005.

2

3 (THEREUPON, THE FbLLOWING PROCEEDINGS WERE HELD IN

4 THE PRESENCE OF THE COURT, BOTH COUNSEL, AND THE DEFENDANT.)

5 - - -

6 THE COURT: Goldsberry. Case number

7 05-CR-0008, State of Ohio versus Michael Everett Goldsberry.

8 Coming on for sentencing of the defendant. Mr. Hord, is

9 there anything you wish the Court to consider?

10 MR. HORD: Your Honor, in looking at the

11 presentence investigation, it appears that Mr. Goldsberry

12 has zero days credit. He was a graduate of the Marysville

13 High School in 1977. 19 -- or excuse me -- in January of

14 '96 he did have an 0 M V I charge and a possession of

15 marijuana. He also did have a concentration of alcohol

16 charge and a drug paraphernalia in March of 2001. It does

17 not appear that he has any employment. The restitution

18 figure in this case, your Honor, as of the time of the

19 indictment is $24,417.97.

20 THE COURT: And how much -- what's his

21 weekly?

22 MR. HORD: His obligation on a monthly

23 basis, your Honor, is $656.50. The State would then defer

24 to the sentencing recommendation in this case.

25 THE COURT: Mrs. Pelanda, is there anything

4

1 you wish the Court to consider?

2 MS. PELANDA: Yes, your Honor. Thank you.

3 Stand up. Your Honor, I stressed to Mr. Goldsberry the

4 importance of obtaining employment. It was with difficulty,

5 due to the fact that he's been unemployed for a lengthy

6 period of time, that in fact he has succeeded in obtaining

7 employment. And I've been explaining to him the necessity

8 of setting up a bank account. He's being paid $10 an hour

9 cash. I'm going to ask him to state for the record the name

10 of his ernployer and the location. And I'll direct him to

11 CSEA so he can give that further information to them at the

12 conclusion of today.

13 THE COURT: I hope he's not working for

14 Hostetler's brother.

15 DEFENDANT: No, sir.

16 THE COURT: All right.

17 MS. PELANDA: Tell the Judge --

18 THE COURT: Who you working for?

19 DEFENDANT: I'm working for Small Business

20 Touch. It's a hardscape landscaping business. It's a

21 private business.

22 THE COURT: What's the name of it?

23 DEFENDANT: Small Business Touch.

24 MS. PELANDA: Small Business Touch.

25 THE COURT: Touch. Okay. And where --

5

1 where's -- what's his address?

2 DEFENDANT: He's -- lives outside of Plain

3 City somewhere, but he's -- he's (INAUDIBI,E) garage to put

4 his machinery in in Plain City.

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8

THE COURT: What's his name?

DEFENDANT: Brain Cain.

THE COURT: What is it?

DEFENDANT: Brian Cain.

9 MS. PELANDA: Brian Cain.

10 DEFENDANT: Cain.

11 THE COURT: Chain or Cain?

12 DEFENDANT: Cain as in cane, a walking

13 stick.

14 THE COURT: Okay. And -- and you get $10 an

15 hour. How -- how many hours do you work a week?

16 DEFENDANT: Not a lot yet, but it's outside.

17 It's outside work so it should be coming on real strong here

18 soon. It's -- the weather's going to break and.

19 THE COURT: When you say that, what are you

20 -- see, you haven't told me anything because I don't -- I

21 don't have any idea how many hours you're working.

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DEFENDANT: At least 30.

THE COURT: 30?

DEFENDANT: Yes. I just talked to him last

25 night and he said it will be at least 30 hours a week, and

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1 then it'll be more when the summer comes on. As the weather

2 gets better, it'll, you know, improve to quite an extent

3 actually.

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THE COURT: Are you paid by check?

DEFENDANT: It'll be --

THE COURT: Cash, huh?

DEFENDANT: Yes, sir.

THE COURT: What do you want me to do on --

MR. HORD: Your Honor, I believe under the

11 circumstances it -- it appeared that he is an independent

12 contractor. Although I'm not here to make that

13 determination and whether or not if he satisfies the I R S

14 guidelines, that's between him and them. But it appears

15 that under the circumstances, I know that this Court does

16 have jurisdiction to order him as part of his coirnrninity

17 control to make payments on what is due and owing. As far

18 as his current payments, that would be between him and CSEA.

19 And I believe he should have set up an account so that --

20 and identify that account so that they have a way of

21 collecting. If he wants to modify his payments based on his

22 income, he's got to handle that and it's not here. It's

23 whether through the administration or through Court, but

24 this is not the place.

25 THE COURT: CSEA, what do you want to do?

7

1 MS. GOLDEN: Have him establish a financial

2 account.

3 THE COURT: How much?

4 MS. GOLDEN: For the entire monthly amount

5(INAUDIBLE) current and past due amounts, which I gave Mr.

6 Hord the amount.

7 MR. HORD: I've got it.

8 THE COURT: Well, you're telling -- you're

9 telling me $656.50 for the month.

10 MS. GOLDEN: Currently he's looking to

11 modify based upon his employment.

12 THE COURT: That's what I wondered.

13 MR. HORD: That's just his monthly. That's

14 not on the arrears.

15 MS. GOLDEN: That's the current amount

16 (INAUDIBLE). It's all in there together.

17 THE COURT: Well, are you going to -- are

18 you going to recompute, is that what you're going to do?

19 MS. GOLDEN: He needs (INAUDIBLE)

20 modification so that we can go through and (INAUDIBLE)

21 parties. And once he does that, (INAUDIBLE).

22 THE COURT: All right. On April 15th I want

23 you to request modification. Don't do it before then.

24 Don't do it after then. Do it on April 15th and then that

25 way we'll know how many -- how -- how much time that you're

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1 spending on a week. Because by that time the weather's

2 good. Okay. Anything further?

3 MS. PELANDA: No, your Honor.

4 MR. HORD: No, your Honor.

5 THE COURT: The Court's considered the

6 statement of the Prosecuting Attorney, victim impact

7 statement, statement of defense counsel, given the defendant

8 the opportunity to speak in mitigation. The Court's

9 considered the record, the presentence report, and the

10 purposes and principles of sentencing under Revised Code

11 2929.11 et seq. The Court finds the victim's suffered

12 serious economic harm. That the offense was facilitated by

13 the offender's relationship with the victim. And the most

14 weight is given to more serious. That there's been a prior

15 history of criminal convictions. Failed to respond

16 favorably in the past to -- and failed to acknowledge a

17 pattern of drug or alcohol abuse that related to the

18 offense. Has no genuine remorse. The Court finds that

19 weighing the seriousness and recidivism factors that a

20 prison term is not consistent with the purposes of Revised.

21 Code 2929.11. And the offender is amenable to available

22 community sanctions. You'11 be placed on three years of

23 community control upon the following terms and conditions:

24 That you'll pay all costs of prosecution including $500

25 toward court appointed counsel costs. You can appeal these

9

1 proceedings within 30 days of this date. You're to obtain

2 and maintain employment. Your bond's released. You're not

3 to violate any laws of the State of Ohio, the United States,

4 or of any municipality, township, or village. You're to

5 participate in drug, alcohol abuse testing and counseling

6 and treatment as directed by the Adult Probation Officer at

7 your sole cost and expense. You're not to imbibe or ingest

8 or possess alcohol or prescription drugs not prescribed by

9 your physician, nor shall you enter any establishment, the

10 primary purpose of which is the dispensing of alcoholic

11 beverages. You're to perform 200 hours of community

12 service. And you're to report to the Union County Day

13 Reporting Officer immediately following your reporting to

14 your Adult Probation Officer's the gentleman seated on the

15 front row here. And then after that you're to report the

16 lady -- the blond lady on the second row. You're notified

17 that if the conditions of community control are violated,

18 the Court may irnpose a longer time under the same sanction,

19 may impose a more restrictive sanction, or may impose a

20 prison term on you. And in the event that I impose a prison

21 term on you, you'll get 120 months in prison. You're to pay

22 child support of $656.50 per month as previously ordered.

23 And pay the arrearage of $24,417.97 or any other amount that

24 CSEA determines is due and owing from you. You're to report

25 to your probation officer immediately following these

10

1 proceedings. You're to abide by all orders, rules, and

2 regulations of the Union County Adult Probation Department

3 as well as those rules and regulations promulgated by this

4 Court. You're notified that you may be required to

5 reimburse Tri-County Jail for the costs of incarceration as

6 authorized by the pay for stay program. If you fail to pay,

7 it'll result in a certificate of judgment being entered for

8 the unpaid amount of reimbursement owed. If such judgment's

9 rendered, it automatically becomes a part of the sentence

10 being imposed by this Court. You're to show proof of a high

11 school diploma or G E D to your Adult Probation Officer or

12 obtain your G E D within 180 days. You're to pay a

13 supervision fee before the 5th day of each month to the

14 Clerk of this court in the sum of $5 beginning April 1,

15 2005. Do you have any questions with regard to the

16 sentencing?

17 DEFENDANT: No, sir.

18 THE COURT: Done and done. I want you to

19 know you're on your last time right now. So you don't pay,

20 you don't maintain the (INAUDIBLE), or you don't do your

21 community service at least 20 hours a month, I'm going to

22 tell you right now that you're on your way to prison.

23 Because there's no sense, if I've got to support your

24 family, then I'm going to make sure that you're locked up.

25 Just that simple. Okay. Anything further?

11

1 MR. HORD: No, your Honor.

2 MS. PELANDA: No, your Honor. Thank you.

3 THE COURT: Thank you.

4 - - -

5 (THEREUPON, THE HEARING CONCLUDED AT 2:58 P.M. ON

6 MARCH 25, 2005.)

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1 CERTIFICATE

2

3 I, Tanuny G. Kleiber, Official Court Reporter for

4 the Court of Common Pleas, Union County, Ohio, duly

5 appointed therein, do hereby certify that the foregoing,

6 consisting of 11 pages, together with exhibits, if any, is a

7 true and accurate transcript as transcribed by me of the

8 proceedings conducted in that court on the 23rd day of

9 March, 2005, before the Honorable Richard E. Parrott, Judge

10 of said Court, and I do further certify that I was

11 personally present in the courtroom and operated the digital

12 recording equipment during all of the said proceedings.

13 Subscribed this 4th day of March, 2007.

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Tammy^.eikaerOfficial Court Reporter

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7 IN THE COURT OF COMMON PLEAS, UNION COUNTY, OHIO

8

9 STATE OF OHIO,

10 Plaintiff,

11 -vs-

12 MICHAEL E !^^;^LDSBERRY,

Defendant.

Case No. 2005-CR-0008

APPEAL NO. 14-2007-06

TRANSCRIPT OF PROCEEDINGS

Before the Honorable Richard E. Parrott,

17 the Union County Connon

Judge of

Pleas Court, on Friday, January 5,

18 2007, from 9:31 A.M. to 9:49 A.M.

19

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1 APPEARANCES:

2 Mr. Rick Rodger, Assistant Union CountyProsecuting Attorney, 221 West Fifth Street, Justice Center

3 - Suite 333, Marysville, Ohio, 43040, on behalf of thePlaintiff, the State of Ohio.

4Mr. Clifton G. Valentine, Jr., Esquire, 128 West

5 Main Street, Plain City, Ohio, 43064, on behalf of theDefendant, Michael E. Goldsberry.

6

7 ALSO PRESENT:Mr. Corey Dykstra, Adult Probation Officer, 221

8 West Fifth Street, Justice Center - Third Floor, Marysville,Ohio 43040.

9

3

1 Friday, January 5, 2007.

2 - - -

3 (THEREUPON, THE FOLLOWING PROCEEDINGS WERE HELD IN

4 THE PRESENCE OF THE COURT, BOTH COUNSEL, AND THE DEFENDANT,

5 BY VIDEO BETWEEN THE COURTROOM AND TRI-COUNTY JAIL.).

6

7 THE COURT: This is case number 05-CR-0008,

8 State of Ohio versus Michael E. Goldsberry. Mr. Goldsberry,

9 can you see and hear me or can you at least hear me?

10

11

12

13

DEFENDANT: Yes. I can hear you.

THE COURT: And can you see your attorney?

DEFENDANT: Yes, sir.

THE COURT: Okay. Seated to his right is

14 the Assistant Prosecuting Attorney, Lester R. Rodger. Mr.

15 Valentine has been -- has your client received copies of the

16 alleged probation violations?

17 MR. VALENTINE: He has.

18 THE COURT: And does he admit or deny those?

19 MR. VALENTINE: He admits violations 1 A and

20 1 B, also violation 2 B. He denies the allegations contained

21 in violation 2 A, which are that he failed to report to his

22 Adult Probation Officer since May 9th of 2006.

23 THE COURT: Okay. So he's failed to make

24 his monthly payments toward court costs, he's failed to pay

25 his child support -- child support, and he's failed to

4

1 complete his corrnnunity service, is that correct?

2 MR. VALENTINE: That is correct.

3 THE COURT: Okay. What's the Prosecutor's

4 wish me to do with number 3?

5 MR. RODGER: The 2 A, your Honor, we would

6 dismiss at this point. He did fail to report. However, he

7 was reporting to Delaware according to the Probation

8 Department. But in light of his admissions, we'll dismiss

9 2 A.

10 THE COURT: Okay. Recommendation?

11 MR. RODGER: Your Honor, at the time he was

12 sentenced, he was sentenced to 120 months. We would ask the

13 Court to impose -- reimpose that at this time. He would

14 have a prior jail time credit of a total of 43 days. He had

15 19 days prior jail time credit and 23 -- 24 -- I'm sorry --

16 to the present time for a total of 43 days. But we would

17 ask the Court to reinpose.

18 THE COURT: All right. And he has -- and he

19 has 120 months. 10 months -- or 12 months on each count,

20 right, and there are 10 counts?

21

22

MR. RODGER: I believe so.

THE COURT: And those were all ordered to be

23 served consecutively or concurrently?

24 MR. RODGER: Let me go back to the Court's

25 entry and you reimposed that. (Reviewing documents) In the

5

1 last entry the Court filed November 3rd of 2005, it did not

2 indicate consecutive or concurrent. Let me go back to the

3 original sentencing entry. The original sentencing entry

4 placed him on community control.

5

6 anything?

7

THE COURT: Did not -- and did not give him

MR. RODGER: Correct. It says you can

8 receive a maximum up to 120 months. That was then. At the

9 time of the last probation violation, the Court indicated in

10 the last entry in November that he would receive -- and will

11 receive the 120 months. But didn't indicate consecutive or

12 concurrent. It does indicate in the entry dated November

13 3rd that if he violates the terms of post release control,

14 was given the -- the sentence is hereby advised -- well, I'm

15 sorry. That doesn't apply. So it does not indicate whether

16 it's consecutive or concurrent.

17 THE COURT: All right. Mr. Valentine, is

18 there anything you wish the Court to consider?

19 MR. VALENTINE: Yes, your Honor. In

20 speaking with Mr. Goldsberry, all the violations were a

21 result of him trying to maintain employment so he could pay

22 his child support. He was working full time for a company

23 by the name of Environmental Management doing lawn

24 maintenance. And as a result was, as I said, he was working

25 full time. He tells me he did some amount of community

6

1 service hours. He believed he had done at least, I think,

2 it was three hours per week. We don't have any verification

3 of that. We would ask-the Court, this is a child support

4 case, given the circumstances, we would ask the Court to

5 sentence Mr. Goldsberry to concurrent sentences. We do not

6 believe that the 120 months on a child support case is

7 appropriate under these circumstances.

8 MR. RODGER: Your Honor, I would note that

9 as of November 30th his arrearage was $36,156.96.

10 THE COURT: Mr. Goldsberry, is there

11 anything you wish the Court to consider? Anything by way of

12 mitigation?

13 DEFENDANT: Yes, sir. Well, sir, yes, I did

14 do as much community service as I could. The only place in

15 Plain City that I know of that does that is the food pantry

16 and they're only open three hours a day on Wednesdays and

17 Saturdays.

18 THE COURT: Did you ask -- did you ask --

19 did you ask the community service director if there was any

20 other -- any other place that you could perform your duties?

21 DEFENDANT: Well, she -- she told me that

22 she only wanted me to go to one place and --

23 THE COURT: Wait a minute. Did you tell her

24 that you weren't getting enough hours and you needed

25 additional hours?

7

1 DEFENDANT: I told her how many hours I was

2 getting. She said she (INAUDIBLE). And she didn't really

3 say anything about any other place in town. And I asked the

4 Fire Department and the City. And the City, I'm not sure if

5 they still do it or not. They didn't really verify. And

6 the Fire Department said that they did not do it any more.

7 THE COURT: All right.

8 DEFENDANT: Your Honor, I do have a son, you

9 know, still in high school. He's -- he's 19 but he's still

10 in high school right now.

11 THE COURT: Okay.

12 MR. VALENTINE: It went out I think, Judge.

13 THE COURT: Tammy, we're -- we're off the

14 record.

15 - - -

16 (THE VIDEO LINK FAILED BETWEEN THE COURTROOM AND

17 TRI-COUNTY JAIL FAILED. THE RECORDING EQUIPMENT WAS TURNED

18 OFF AT 9:30 A.M.)

19 - - -

20 (RECORDING EQUIPMENT TURNED ON AT 9:40 A.M.)

21 - - -

22 THE COURT: Okay. It's the -- the Court

23 finds that the shortest prison term would demean the

24 seriousness of your conduct and would not adequately protect

25 the public from future crime by you. I look at your record

8

1 and it's showing $36,000 in arrears. You know, that tells

2 me you're not trying very hard. The Court's considered the

3 record, the statements of the State, and as well as defense

4 counsel, has given you the opportunity --

5 MR. VALENTINE: Just went out again.

6 tHE COURT: It's out again.

7

8 (THEREUPON, THE LINK BETWEEN THE COURTROOM AND

9 TRI-COUNTY JAIL FAILED. THE RECORDING EQUIPMENT WAS TURNED

10 OFF AT 9:41 A.M.)

11 - - -

12 (THE RECORDING EQUIPMENT WAS TURNED ON AT 9:45

13 A.M.)

14 - - -

15 DEFENDANT: -- to include it there. There's

16 an old woman I've been helping, you know, since her husband

17 passed away. I've been helping her do things that she can't

18 like wash clothes, etcetera. And I don't know. She may be

19 in the courtroom. I tried to get a message to her but she

20 has a cell phone. I couldn't call her.

21 THE COURT: She's here. She's here.

22 DEFENDANT: Okay. Well, she -- she said

23 that she would give me a ride to go find job and

24 transportation back and forth to look for, you know, until I

25 can find a better way.

9

1 THE COURT: Now, can you see -- can you see

2 your attorney?

3

4

5

DEFENDANT: Yes. About half of him.

THE COURT: Is that right?

DEFENDANT: There he is. That's good.

6 There he is.

7 THE COURT: Okay. Okay. Is that better?

8 DEFENDANT: Yes.

9 THE COURT: Okay. Fine. The Courts's

10 considered the statements and I've given you the opportunity

11 to make a statement. I've considered the presentence report

12 as part of the record. And I've considered the principles

13 and purposes of sentencing. And balanced the seriousness

14 and recidivism factors under Revised Code 2929.12. You're

15 ordered confined to the Correctional Reception Center at

16 Orient, Ohio, for a term of six months on each of ten counts

17 of non-support of dependents in violation of Ohio Revised

18 Code Sections 2919.21 A 2 and 2919.21 B. All felonies of

19 the fifth degree to be served consecutively to one another.

20 You're ordered -- you'll be subject to a period of post

21 release control imposed by the Parole Board of up to three

22 years which would commence upon your actual release from

23 prison. If you violate the terms and conditions of post

24 release control, the Adult Parole Authority will impose a

25 more restrictive sanction, increase the term of post release

10

1 control up to a maximum term of three years, or impose a

2 prison term upon you not to exceed 50 percent of the stated

3 prison term originally imposed as part of the sentence. If

4 you conmiit a new felony while under post release control,

5 you'll receive a prison sentence for both the new felony and

6 any post release control violation which will be served

7 consecutively. You're to reimburse Union County for the

8 cost of incarceration as authorized by the pay for stay

9 program. And that reimbursement's to be made through the

10 Union County Sheriff's Office. You're granted prior jail

11 time credit of 19 days, current jail time credit of 24 days.

12 You're to pay the costs of this action including $500 to --

13 to Union County as partial reimbursement fo

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