^MAfiCIA J. ^i^:nc^l, CLERK PHrM^ C OURT OF OHIO. The State of Ohio Plaintiff-Appellee Case No

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1 IN THE SUPREME COURT OF OHIO The State of Ohio Plaintiff-Appellee Case No vs MOTION FOR APPOINTMENT OF JAMES E. PESCI COUNSEL, Ohio Public Defender Defendant-Appellant or other counsel Qualified to represent the Appellant MOTION FOR APPOINTMENT OF COUNSEL, PURSUANT TO THE SUPREME COURT OF OHIOt RULES OF PRACTICE RULE (3) section (7) Now comes JAMES E. PESCI, Pro-Se and Forma-Pauperis and hereby moves this Honorable Court for appointment of Counsel. The basis for this request,defendant-appellant is currently incarcerated and completely Indigent. Found Indigent by the Lake County Common Pleas Court who assigned Public-Counsel to trial-case No 98-CR Appeal case No 2001-L-026, Ohio Supreme Court case No Representation is Critical to prevent a manifest=injustice and Const. violation. Public-Counsel upon saying goodby, gave me all paperwork from trial-case No 98-CR In Pro-Se I did find Deception-Fraudulence which created the Conflict, which went into and out of the Ohio Supreme Court, Unnoticed. My trial-case 98-CR-0578,THE LAW OF THE CASE, was established by the llth Dist. App. Court,case No 2001-L-026. Five years ago the ruling was [there is a Nolle-Prosequi in this case] which stopped speedy-trial-rights for (1) one year. (herein,pert part page 5. I did underline it for you) Today my trial-case 98-CR-0578, THE LAW OF THE CASE, was Reestablish ed by the 11th Dist.Court by new case No 2006-L(="T1'2" ^(^^^=e-j;^? part page 6. (the ruling there is NO Nolle-Pro4equi 11n)J&J-6 I underlined it for you to read page 6. ) ^MAfiCIA J. ^i^:nc^l, CLERK PHrM^ C OURT OF OHIO

2 MOTION FOR',APPOINTMENT OF COUNSEL There is a Conflict between the two case's located in the llth Dist. Court, case No 2001-L-026 and case No 2006-L-112. How and why did this Conflict accure? I will show yo,i by going back to the trial-court-prosecutor's first motion to dismiss against my motion to dismiss, april 19,2000. The trial-court-prosecutor's motion teeter-totter's between corruptness and fraudulence. My Public defender's fell victim to this prosecutor's motion as well as the llth Dist. court of appeals, and the Ohio Supreme Court., Plus, my federal habeas-corpus-petition.relator's been in 3ail since 2001 because of the trial-court's-prosecutor's fraudulence,corruption. STATE'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS (herein for you to read) Quoting, page(1)paragraph(2)= On Dec 17,1998,Mentor Municipal Court entered a Nolle-Prosequi on defendants case that was pending in its court and defendants case in Mentor Municipal Court was dismissed. ( ok. This a deception because the Mentor Municipal Court dismissed the misdemeanor RC and sent the felony RC over into the Grand-Jury) now as we read the prosecutor will infer that on Dec 14, 1998 a secret indictment was filed by him ( ok. This a deception because the indictment came out Dec 14,1998.Not he filed it) page(1)paragraph(3)= As a result of the dismissal,the case was submitted to the Lake County Prosecutors Office for a secret indictment. (ok. deception because the case was sent over in a normal fashion not he submitted it into the Grand-Jury) True-Bill came out of the Grand-Jury on Dec 14,1998 not filed into the Grand-Jury.

3 MOTION FOR APPOINTMENT OF COUNSEL This year the ruling was [ there is NO Nolle-Prosequi in this case] This new ruling now means, speedy-trial-rights never stopped! This relator was arrested Sept 26,1998. had a trial Jan 11,2001. ( That's 24 years after motion to dismiss and arrest of defendant In PRO-SE I illustrated the LAW OF THE CASE CONFLICT, but I untrain ed in law and litigation do not have the expertise or resources to handle this conflict-situation, only the Ohio Public Defender or other qualified counsel has the expertise and resources. This is why JAMES E. PESCI respectfully requests Motion for Appoint ment of Counsel. JAMES E. PESCI # Lake Erie Corr. Inst. 501 Thompson Road P.O.Box 8000 Conneaut, Ohio CERTIFICATE OF SERVICE I, hereby certify that a copy of the foregoing MOTION FOR APPOINT MENT of counsel was sent by regular mail to Appellee-Counsel Lake County Judge EUGENE A. LUCCI, counsel of record, at the administration building, 105 main street, P.O.Box 490 Painesville Ohio 44077, on this,* DAY OF 1VX, JAMES E. PESCI #

4 icite as State v. Pesci, 2002-Obio THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATEOFOHIO, OPINION - vs - Plaintiff-Appellee, CASE NO L-026 JAMES E. PESCI, Defendant-Appellant. Criminal Appeal from the Court of Common Pleas, Case No. 98 CR Judgment: Affirmed. Charles E. Coulson, Lake County Prosecutor, and Amy E. Cheatham, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH ( For Plaintiff-Appellee). R. Paul LaPlante, Lake County Public Defender, and Vanessa R. Ctapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH (For Defendant-Appellant). WILLIAM M. O'NEILL, P.J. {11} This appeal arises from the Lake County Court of Common Pleas, wherein appellant, James E. Pesci, was convicted of three counts of burglary in a jury trial. {12} On September 26, 1998, Thomas Clarke ("Clarke") arrived home from a daylong trip to Sea World with his friend, Mike Puthoff and PuthofPs family. Clarke resided on Tamarin Court in the Wayside Lakes Development in Mentor, Ohio. Clarke

5 { 15} On December 14, 1998, appellant was indicted by the Lake County Grand Jury on three counts of burglary and one count of possessing criminal tools. On that same day, a warrant of the indictment was issued to the Lake County Sheriff. A holder was placed upon appellant at that time, as he had charges pending against him in Cuyahoga County and was in jail in lieu of bond awaiting trial on those charges. A nolle prosequi was entered on December 17, 1998, on the Mentor charges. {116} On January 18, 2000, appellant began serving a prison sentence out of Cuyahoga County. On January 24, 2000, the trial court ordered the Lake County Clerk of Courts to issue a warrant to the Lake County Sheriff to convey appellant to Lake County so that he could be arraigned on the above-mentioned charges. On January 2^ 2000, appellant was transported to the Lake County jail for an arraignment sche-d'uled for January 28, At the arraignment, an Assistant Lake County Public Defender attempted to represent appellant for the purpose of arraignment, but appellant refused to be arraigned because his privately retained attorney was not present. Appellant subsequently waived his right to be present at his arraignment on February 11, 2000, and the trial court entered a plea of not guilty on all charges. { 17} On March 23, 2000, appellant filed a motion to dismiss based upon speedy trial violations. This motion was denied by the trial court on April 21, { 18} On May 1, 2000, appellant filed a motion to suppress any out-of-court and in-court identifications of him. A hearing was held on the motion on September 8, 2000, and the motion was denied on September 21, { 19} On December 12, 2000, appellant filed a notice of alibi. On January 8, 2001, appellant filed another motion to dismiss based on speedy trial violations. A 5

6 Appellant also cites the fact that no fingerprints were found nor were any stolen items found on his person when arrested to establish that he committed the crimes. As noted prior, the identification of appellant by Clarke at the crime scene was not prejudicial or unduly suggestive. Also, the record reveals that gloves were found near the scene of the crimes, possibly accounting for the lack of fingerprints at any of the crime scenes. Several items belonging to all three homes were found in a backyard near the housing development. Thus, a review of the entire record reveals that the jury did not lose its way or create a manifest miscarriage of justice in reaching its guilty verdict. { 94} Appellant's fifth assignment of error is without merit. { 95} Appellant's assignments of error are without merit and the judgment of the trial court is affirmed. Judgment affirmed. JUDITH A. CHRISTLEY and ROBERT A. NADER, JJ., concur. 19

7 THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE ex rel. JAMES E. PESCI, Relator, PER CURIAM OPINION CASE NO L vs - TRIAL JUDGE EUGENE A. LUCCI, Respondent. Original Action for Writ of Prohibition. Judgment: Writ denied ^F COURT OF APP9AL3 MAR 3 0 2OL7 LYNNE L. MAZEIKA CLERK OF COURT LAKE COUNTY, OHiO James E. Pesci, pro se, PID: , Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, OH (Relator). Charles E. Coulson, Lake County Prosecutor, and Michael L. DeLeone, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH (For Respondent). PER CURIAM. ( 1) This action in prohibition is presently before this court for consideration of the motion for summary judgment of respondent, Judge Eugene L. Lucci of the Lake County Court of Common Pleas. As the primary basis for his motion, respondent states that relator, James E. Pesci, is not entitled to prevail on the final merits of his sole claim because the evidentiary materials before us establish that the common pleas court had proper jurisdiction over him in an underlying criminal case. For the following reasons, this court concludes that the summary judgment motion has merit.

8 (A), the criminal jurisdiction of an Ohio municipal court is generally limited to any misdemeanor violation and any violation of a municipal ordinance. In relation to any felony violation, R.C (B) provides that a municipal court only has the power to conduct any hearing which may be necessary before an indictment is issued against a defendant. Given the specific wording of the foregoing provisions, it has been held that a municipal court cannot exercise any jurisdiction over a felony offense. See State v. Sims, 9th Dist. No , 2006-Ohio-2415, at 24. { 11} In the instant matter, the certified copy of the docket in relator's common pleas proceeding shows that each of the three burglary charges in the indictment was a second-degree felony. As a result, the Mentor Municipal Court would not have had any jurisdiction to dismiss any of the charges of which relator was subsequently convicted. { 12} As part of the evidentiary submissions in this action, neither side has tried to provide a proper copy of the nolle prosequi judgment of the municipal court. Thus, this court simply cannot determine if the municipal court actually sought to dismiss the three burglary charges which had just been issued in the grand jury's indictment. But even if we were to assume for the sake of this discussion that the municipal court truly intended to dismiss an indictment which had only been returned three days earlier, its dismissal judgment still would not have had any effect upon the indictment because the municipal court did not have any jurisdiction over the burglary charges. { 13} In considering the ramifications of an error by a municipal court upon later criminal proceedings before a common pleas court, this court has indicated that such errors would not alter the validity of any ensuing felony conviction. Johnson v. Bobby, 11th Dist. No T-0181, 2004-Ohio-1075, at 9. Although not expressly stated in 5

9 the Johnson opinion, its holding is obviously based upon the fact that the jurisdiction of the municipal court and the common pleas court are distinct, and that once jurisdiction over a criminal matter has been properly transferred, no error by the municipal court can affect the ability of the common pleas court to go forward. In the present matter, after the Lake County Grand Jury had returned the indictment against relator, the jurisdiction of the Lake County Court of Common Pleas had been properly invoked. Under such circumstances, even if the Mentor Municipal Court did try to somehow dismiss any of the charges in the indictment, it was a vane act which had no effect on the subsequent common pleas proceedings. { 14} As an aside, this court would indicate that it is highly likely that the Mentor Municipal Court was not attempting to dismiss the charges in the indictment when the nolle prosequi judgment was rendered. At the outset of the municipal proceedings in September 1998, some type of complaint against relator had to have been filed in order for that court to have authority over the mafter. In turn, by issuing the December 1998 dismissal judgment, the municipal court was simply indicating that it would not be going forward on the initial complaint in the matter, and that the general case against relator would now be going forward in the common pleas court. {1115} In his prohibition petition, relator relied heavily upon a decision of the First Appellate District in State ex rel. Flynt v. Dinkelacker, 156 Ohio App.3d 595, 2004-Ohio However, Flynt involved a situation in which the common pleas court allowed the state to reinstate the original indictment after it had been dismissed under the terms of a plea agreement. In the present case, a review of the certified copy of the common pleas court's docket readily establishes that the common pleas court never ordered the 6

10 STATE OF OHIO COUNTY OF LAKE IN THE COURT OF APPEALS ELEVENTH DISTRICT STATE ex rel. JAMES E, P Relator, - vs - TRIAL JUDGE EUGENE A. F I L E D COURT OF APPEALS MAR ? JU6GMENT ENTRY LYNN% L, tvhazliika o^%nk or aour7 CA$E NO L-112 UCCI.L4KE COUNTY, OHIO Respondent. For the reasons state in the Per Curiam Opinion of this Court, Respondent's motion for summary judgment is granted. It is the order of this Court that judgment is hereby entered in favor of Respondent as to Relator's entire prohibition petition. Pursuant to this judgment entry, all pending motions are hereby overruled as moot. IDING JUDGE CYNTHIA WESTCOTT RICE JUDGE WILLIAM M. O'NEILL JUDGE COLLEEN MAW O'TOOLE

11 GkHISIr ol IN THE COURT OF COMMON PLEAS LAI%= COUNTY, OHIO ll'0 4/,R STATE OF ) CASE OHIO NO. 98-CR 0005^,^ r 9 /; 3Z vs. PLAINTIFF ) JUDGE MARTIN 0. P,4ftW-,rq^Attl,^4 JAMES E. PECSI ) STATES RESPONSE ^ DEFENDANT ) DEFENDANTS MOTION TO DISMISS Now comes the State of Ohio, by and through Charles E Coulson, Lake County Prosecuting Attorney, and Vincent A. Culotta, Chief Assistant Prosecuting Attorney, and respectfully requests that this Honorable Court overrule Defendant's Motion to Dismiss for reasons fully stated in the Memorandum attached hereto and incorporated herein. Respectfully submitted, CHARLES E COULSON ( ) PROSECUTING ATTORNEY Vincent A. Culotta ( ) CHIEFASSISTANT PROSECUTINGATTORNEY VAC/san

12 r MQy1ORANDUM Procedural History On September 26, 1998, James Pecsi, defendant herein, was arrested by the Mentor Police Department and charged with one count of Burglary, a felony of the second degree, in violation of Revised Code Section and one count of Possession of Criminal Tools, a felony of the fifth degree, in violation of Revised Code Section On September 28, 1998, defendant appeared before the Mentor Municipal Court for his initial appearance wherein he entered a plea of "Not Guilty" and bond was set at $5, cash/surety. (See Exhibit I and 2). Defendant posted bond in the Mentor Municipal Court on that date. Defendant, however, was not released at that time as a warrant for his arrest on unrelated burglary charges had been issued out of Cuyahoga County. Defendant, thus, was picked up by the Cuyahoga County Sheriff's Department: Defendant then was incarcerated in the Cuyahoga County Sheriff's Department, without bond, as defendant's bond had been revoked by the Cuyahoga County Common Pleas Court. Due to defendant's incarceration in the Cuyahoga County jail, defendant was unavailable to Mentor Municipal Court to conduct the preliminary hearing on defendant's case: On December 17, 1998, Mentor Municipal Court entered a nolle prosequi on defendant's case that was pending in its court, and defendant's case in -----^ _-- _ Cylentor Municipal Court was dismissed. (See Exhibit 3). As a result of the dismissal, the case was submitted to the Lake County Prosecutor's Officefor secret indictment. On December 14, 1998, a secret indictment was filed charging defendant with three counts of Burglary, each felonies of the second degree, and each a violation of Revise Code Section , and one count of Possession of Criminal Tools, a felony of the fifth degree, in violation of Revised Code Section (See Exhibit 4). On that same date, a warrant on the secret indictment was issued. (See Exhibit 5 and 6). At that time defendant was still in the 1

13 custody of the Cuyahoga County Sheriff's Department. The Lake County Sheriff s Department entered thewarrant into LEADS and also placed a holder on the defendant with the Cuyahoga County Sheriff's Department. (See 6(hibit 7). Defendant was eventually convicted and sentenced in Cuyahoga County Common Fleas Court to the Lorain Correctional Institution. Immediately upon his arrival to the Lorain Correctional Institution, the Lake County Sheriff's Department acted on its holder and conveyed defendant from the Lorain Correctional Institution to the Lake County Sheriff's Department. This occurred on January 26, (See Exhibit 8). On January 27, 2000, the warrant on secret indictment was served on defendant, and defendant was subsequently arraigned. (See Exhibit 9). Ar,gument I Defendant claims that his statutory right to a speedy trial has been violated. Defendant's claim, however, is without merit. RC (C)(2) provides that a person against whom a charge of felony is pending shall be brought to trial within two hundred seventy (270) days after the person's arrest. Thus, this two hundred seventy-day period only runs during the time charges are pending'against the defendant after his arrest. In this case, defendant was arrested on September26, He was charged with one count of burglary and one count of possession of criminal tools. These charges, however, were dismissed by Mentor Municipal Court on December 17,1998. Thus, eighty-three (83) days elapsed from the date of arrest to the date of dismissal. Calculating the first three days defendant was in jail before posting bond as three for one, eighty-nine (89) days are chargeable to the State. After December 17, 1998, there were no charges pending against the defendant. Thus, the time period to bring the defendant to trial had stopped running. 2

14 In weighing the four factors set forth in Barker, defendant was not deprived of his constitutional right to a speedy trial, and defendant's request that the charges against him be dismissed must be overruled. CONCLUSION Based upon the foregoing, the State of Ohio respectfully requests that this Honorable Court deny the defendant's Motion to Dismiss. Respectfully submitted, CHARLES E COULSON ( ) PROSECUTING ATTORNEY VAC/san Vincent A. tulotta ( ) CH IEFASSI STA NT PROSECUTI NG ATTORN EY 9