CORRECTION OR MODIFICATION OF THE RECORD pursuant to Rule 9(E), Ohio Rules ofappellate Procedures

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1 IN THE SUPREME COURT OF OHIO 2011 MICHAEL ROBERTS ) Appellant- Pro per -vs- ROBIN KNAB, CCI WARDEN Appellee, ) ) CASE NO On Appeal from Ross County Court of Appeals, Fourth District (Original Action) CORRECTION OR MODIFICATION OF THE RECORD pursuant to Rule 9(E), Ohio Rules ofappellate Procedures Comes now Plaintiff/Appellant Michael Roberts who humbly moves this Honorable Court for a modification of the record pursuant to App. R. 9(E), in order to correct the difference conoerning the statements of facts between parties, so that the record truly discloses actually what transpired in on the date the trial court circumvented R.C , Crim R. 32.2, and Local Rule Moreover,, pursuant to App. R. 9(c), appellant submits the following statements of evidence in addition to record modification. Please see attached memorandum in support. COUNSEL FOR DEFENDANT: GENE D. PARK* AssistantAttorney General 150 E. Gay Street, 16'" Street Columbus, Oh COUNSEL FOR PLAINTIFF- PRO PER Michael Roberts # CCI P.O. Box #5500 Chillicothe, Oh CERTIFICATE OF SERVICE I do hereby certify that I did forward a copy of tl}}s motion upon Counsel for Defendant, located at the address above, via., regular US Mail on this, 1,914-day of September, CC: FLLED -MC.R/^-- ATTACHMENT OCT 04 ZotI C! ^ i^k ^.)1COtll?f Su['RFNiE CoUltl t3(- OHIO

2 MEMORANDUM IN SUPPORT A) Presumption of Validity: In section (B) of defendant's Motion to Dismiss at page no. 6, paragraph 4, Defendant stated; "Roberts' challenge to his sentence is based on the alleged failure of the trial court to evaluate his PSI Report." "This argument was already presented to the Tenth Appellate District on Roberts' appeal of his Post-Conviction Relief, which was denied on the merits." Appellant, Mr. Roberts now moves for correction of the above mentioned statements, and advers against the presumption of correctness of the afore mention statements. Appellant Roberts reasserts the fact that there was never any such PSI Report to consider and evaluate to begin with, considering undeniable truths of the facts, Clerk of Courts Appearance Docket [flails to give any such indication that the trial court even [e]ffectively issued an Order for a Pre-Sentence Investigation, pursuant to Crim R. 55(A), and Crim R. 32(c). In this instance, there is no such legally binding PSI Order joumalized in the Record of the court prior to the day of Impositon of Community Control Sanctions. Moreover, considering additional facts that Appellant was only before said court for the first time, (Initial Arraignment) on January 30, 2008, it is not [c]ognizable that the trial court could a possibly ordered a presentence investigation to be conducted by Adult Probation Dept., and simultaneously evaluated and considered a, (short form) completed report all on the same day of sentencing, ( ). Also the criminal case processing sheet filed with the clerk fails to support any indication that the court followed Local Rule 83.01, by having Appellant's defense counsel immediately convey the request to Adult Probation Intake Office. In reference to defendant's contention about Appellant's intitial Motion to Vacate Voided Sentence, the trial court gave no findings of facts or conclusions of law in it's judgment entry of denial, and also the Tenth District in its erroneous decisions supposedly on the merits, failed to give any indication that it had misconstrued Appellant's motion as a postconviction relief petition. Furthennore, defendant conveniently [o]mitted both of Appellant's Motion(s) for Reconsideration attacking the presumption of Validity of the Tenth District's "objectively unreasonable" and erroneous legal determination at 110. Appellant effectively challenged that ruling by submitting newly discovered evidence provided by the very entity who is authorized to conduct the PSI Report in question. That evidence provided for review confirms as the date any such report was completed by one of its agents, approximately Ten Mont_hs after Appellant had already been placed under unlawful sanctions on , under case no. 07CR

3 Continued This evidence was not even considered, when it alone proves Appellant's Claim of Void Judgment ab initio. These two motions have been [o]mitted by Appellee, and by the courts. Both motions effectively attacking the Tenth District's presumption of correctness and unlawful legal determination, when the [c]lerk's record fully discloses the initial trial courts failure to comport to R.C and Crim R. 32.2, pursuant to Crim R. 55(A) and Crim R. 32(c), docket no. 07CR B) STATEMENTS OF EVIDENCE 1) Franklin County Clerk of Court's, (Certified) Appearance Docketing Statement Sheet No. 07CR-8717; pursuant to Crim R. 55(A) {fails} to indicate any legally effective/binding PSI ORDER, pursuant to Crim R. 32(c), and Crim R ) Appearance Docket No. 08CR-5057, pursuant to Crim R.55(A) and Crim R. 32(c) clearly and clearly and convincingly [i]ndicates an effective PSI ORDER being issued on November 6, 2008 by same Judge approximately ten Months later and after the fact in controversy. 3) Confinnation Letter of response from Franklin County Adult Probation Dept., signed by Appellant's former Probation Officer Mr. Jason Potts, confirming November 24, 2008 as the actual date of said Reports completion, addressing his letter of inquiry as to the date his office had actually completed any such PSI Report against Appellant. 4) STATE PROSECUTOR'S OFFICE, admissions of truth to material facts, as stated on record, quoting, "Defendant's Claim, (Non-Waivable Jurisdictional defect, Void Judgment ab initio) is apparent from the record of the court's proceedings, (See Appelles Motion to Dismiss, Ex.#9, Index No.s thru 020). 5) Criminal Case Processing Sheet filed under case no. 07CR-8717, also fails to give any indication that the trial court ordered any PSI, and Adult Probation Intake Office records fails to establish that Defendant's defense counsel conveyed the sheet, pursuant to Local Rule 83.01, (See attachment). 6) Defendant/Appellant's repeated attempts attacking the presumption of regularity and validity variousbtate C2urk rulings via., 26(A) Motion(s) 26^B) Motion, Motion(s)to Vacate, and Judicial Notice(s), has demonstrated his due diligence at claim exhaustion requirements and opens the to Federal Review. 2

4 7) All evidence previously submitted by Appellant and now re-asserted as particularly stated above, clearly and convincingly establishes the initial trial court's "non-waivable jurisdictional defect, and exposes that it circumvented the legislative enactment of R. C , and Crim R on under case no. 07CR-8717, and overstepped it's Constitutional Authority to impose unlawful terms and conditions of community control sanctions against Mr. Roberts. " Moreover, as a consequence of that non-compliance renders that judgment null and void for certain, and as a strict matter of the Separation of Powers Doctrine, divested the Adult Probation Dept. of its authority to enforce the unlawful conditions in the first place. Also subsequently divested the Revocation Court of its subjectmatter jurisdiction to impose and enforce those unlawful conditions to now include a more punitive judgment of imprisonment. Wherefore, as a matter of unambiguous law the Director of Correction and or the Warden has no intervening justification to continue to hold Mr. Roberts in custody under the Void Judgment ab initio of Case No. 07CR Respectfully submitted, CC:FILED MLRIsc ENCLOSURE

5 X3 3 FRANKLiN COUNTY COMMON PLEAS COURT CRIMINAL CASE PROCESSING SHEET STATE OF OIIIO -vs- Mt^^^^i ^. kod^ -^ 67 C-n ^ ^1-2 DEFENDANT PLEA TAKEN OR TRIAL CONCLUDED on PLEA OF GUILTY to NOLLEPROSEQUI FOUND GUILTY of FOUND NOT GUILTY of CASE NO. SENTENCING DATE PSI Ordered POST_ CBCF _ OTHER OTHER DISPOSITION Evaluate for _ Diversion Competency Treatment in Lieu Santty at the time! of offense Other Judtctal Release Hearing Held Granted Denied Continue for Bond Heanng Tnal (per En ) l^tenctng DATE ^ Z00',^^- BF & CAPIAS for failure to appear tnal pre-tnal to be set aside BOND HEARING NO CHANGE REPORTING.> n, WORK RELEASE r- O' -S O. APPEARANCE r+i 00 3 CASH/PROPERTY/SURETY 5 HOUSEARREST > O 7O RECOG S DRUG SCREENS O m Lmr UNSEC APP S n O O C a ^cn TOTAL $ -d Prosecuting Attorney w =Ao OTHER < COMMUNITY CONTROL REVOCATION HEARING t st Heanng Set Held Probable Cause stipulated/found 2nd Hearing Set Held 'Violations stipulated/found Communtty-Control Termmated - Community Control Restored new sanction(s) imposed Commtrmt^ Control Revoked, Pnson or Jail Sentence Imposed (see attached Dtsposthon Sbeet) Other SPECIAL INSTRUCTIONS TO CLERK/SHERIFF/OTHER: Jail Ttme Credit JUDGE DATE Onginal Cterk ofcouns. Copia Probatton Dept, ShrnR revlsed 5/99 (D