CLERK OF COURT SURREME COURTOFOHIO IN THE SUPREME COURT OF OHIO. [State ex. rel.] Jenkins Smith, Case No Original Action in Mandamus

Transcription

1 IN THE SUPREME COURT OF OHIO [State ex. rel.] Jenkins Smith, V. Relator, The Honorable Judge Nodine Miller (retired), et al, Case No Original Action in Mandamus Respondents. RESPONDENTS JUDGE NODINE MILLER, ET AL.'S MOTION TO DISMISS Jenkins Smith Inmate # Ross Correctional Institute P.O. Box 7010 Chillicothe, Ohio Relator PRO SE Ron O'Brien ( ) Prosecuting Attorney Franklin County, Ohio Paul Thies ( ) Asst. Prosecuting Attorney 373 South High Street, 13' Floor (614) FAX (614) pathies@franklincountyohio.gov COUNSEL FOR JUDGE NODINE MILLER, ET AL. RM CLERK OF COURT SURREME COURTOFOHIO

2 IN THE SUPREME COURT OF OHIO 2008 [State ex. rel.] Jenkins Smith, Relator, pro se,. Case No v.. Original Action for Writ of Mandamus The Honorable Judge Nodine Miller (retired), et al., Respondents. RESPONDENT'S MOTION TO DISMISS Now comes Respondents Judge Nodine Miller, et al. (hereinafter "Respondents"), by and through undersigned counsel, and move this Court to dismiss Relator's writ of mandamus for mootness. Respondents respectfully request that this Motion to Dismiss be granted in their favor and Relator's writ of mandamus be denied. Respondents' position is more fully set forth in the attached Memorandum in Support and is incorporated herein by reference. Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRANKLIN COUNTY, OHIO ng Attorney 373 Saafl'High Street, 13th Floor P: (614) F: (614) pathiesc^ a franklincountyohio.gov

3 MEMORANDUM IN SUPPORT 1. Introduction This action is before the Court on Relator's Petition for a Writ of Mandamus filed February 18, Relator asks this Court to compel Judge Nodine Miller to rule on a motion titled "Motion to Vacate Judgement [sic] on the Basis of New Supreme Court Decision in Accordance with Civil Rule 60 (B) (4)(5)&(6)" (hereinafter "Relator's Motion to Vacate Judgment") filed May 15, 2007 in the Franklin County Court of Common Pleas. A memorandum contra was filed by the Prosecuting Attomey on September 16, Relator filed a response to the memorandum contra on September 29, Judge Miller retired from the Franklin County Court of Common Pleas in Judge Timothy Horton, who replaced Judge Miller, overruled the Relator's Motion to Vacate Judgment on March 10, A copy of the decision is attached as Exhibit A. H. Law and Argument A. Standard of Review In considering a motion to dismiss for failure to state a claim, the Court must construe all material allegations in the Complaint and all inferences that may be reasonably drawn there from in favor of the nomnoving party. Fahnbulleh v. Strahan (1995), 73 Ohio St.3d 666, 653 N.E.2d In order for a trial court to dismiss a complaint for failure to state a claim upon which relief can be granted, it must appear beyond doubt from the complaint that plaintiff can prove no set of facts warranting relief. State ex rel. Jennings v. Nurre (1995), 72 Ohio St.3d 596, 651 N.E.2d

4 B. Relator Has No Right to the Relief Requested For a writ of mandamus to issue, a relator must show that they have a clear legal right to the relief prayed for, the respondent is under a clear legal duty to perform the requested act, and the relator has no plain and adequate remedy in the ordinary course of the law. State, ex rel. Olander, v. Ohio Environmental Protection Agency (1989), 45 Ohio St.3d 196, 197, citing State, ex rel Berger, v. McMonagle (1983), 6 Ohio St. 3d 28. Relator cannot meet the requirements for a writ of mandamus because the relief prayed for has occurred and this action is consequently moot. A writ of mandamus will not issue to compel an act already performed. State ex rel. Gantt v. Coleman (1983), 6 Ohio St.3d 5. Respondent issued a decision overruling Relator's Motion to Void Judgment on March 10, (Attached as Exhibit A) Because Respondent has performed the act prayed for in the petition for the issuance of a writ of mandamus, the petition should be dismissed. III. Conclusion For the foregoing reasons Relator's instant Complaint for Writ of Mandamus should be denied and this matter be dismissed. 3

5 Respectfully submitted, RON O'BRIEN PROSECUTING ATTORNEY FRA a Thies 641 Prosecuting Attorney pathies@franklincountyohio.gov 373 South High Street, 13`h Floor (614) Fax: (614) CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been forwarded by regular U.S. mail, postage prepaid, to Jenkins Smith, pro se, Inmate # , Ross Correctional Institute, P.O. Box 7010, State Rt. 104, Chillicothe, Ohio 45601, this 11th day of March,

6 U IN THE COURT OF COMMON PLEAS OF FRANKLIN COUNTY, 0.! STATE OF OHIO, Plaintiff, CASE NO. oi CR 6130 vs. JUDGE TIMOTHY S. HORTON JENKINS SMITH, Defendant. DECISION AND ENTRY ^-R-, C> P1 ^r DENYING DEFENDANT'S MOTION TO VACATE JUDGMENT ON THE BASIS OF NEW SUPREME COURT DECISION IN ACCORDANCE WTTH CIVIL RULE 6o(B)(4) (5) & (6) FILED MAY 15, 2007 Dated this A day of March, 2009 Defendant Jenkins Smith ("Smith") filed a second petition for post conviction relief on May 15, Smith contends that he should be resentenced or that his sentence should be modified. The State of Ohio filed a memorandum contra on May 23, On September 26, 20o6, this Court denied Smith's first Petition for Post- Conviction Relief. The second petition is considered submitted to the Court pursuant to Loc. R On March 26, 2002, Smith pled guilty to two counts of Robbery. On that same day, this Court issued a judgment entry that sentenced Smith to a total of fifteen years in prison. Smith now asks this Court to vacate his sentence because he argues that the sentence violates his constitutional rights. Essentially, Smith argues that his sentence violates the United Supreme Court's holdings in Blakely v. Washington (2004), 542 U.S. 296, United States v. Booker (2005), 543 U.S. 220, and State v. Foster, io9 Ohio St.3d 1. This Court rejects Smith petition on the basis that it is barred by the doctrine of res judicata. The Ohio Supreme Court has held that "[r]es judicata is applicable to all postconviction relief proceedings." State v. Szefcyk (1996), 77 Ohio St.3d 93, 96

7 o1 CR 6130 Page 2 (reaffirming State v. Perry (1967), 1o Ohio St.2d 175, 9 of syllabus.) In State v. Perry, the Ohio Supreme Court stated: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment. 1o Ohio St.2d at 9 of syllabus (emphasis added.) This Court finds that any issue regarding Smith's sentencing could have been raised on direct appeal. Additionally, Smith's petition is barred under R.C (A), which sets forth that a court may not entertain a second petition for similar relief. Accordingly, based on the foregoing reasons, it is hereby ORDERED that Defendant Jenkins Smith's Motion To Vacate Judgment On The Basis Of New Supreme Court Decision In Accordance With Civil Rule 6o(B)(4) (5), & (6) filed on May 15, 2007 is DENIED. IT IS SO ORDERED. COPIES TO: TIMOTHY S. HORTON, JUDGE Timothy Mitchell, Esq. Assistant Prosecuting Attorney 375 S. High St.,14t" Floor Counsel for Plaintiff State of Ohio Jenkins Smith #A Ross Correctional Institution PO Box 7010 Chillicothe, Ohio 456o1 Pro Se Defendant This Court directs the Clerk to serve this entry upon the parti &WfLi10'SK"uF"lCSL1; C!eA THE utate CF CH10^ CF THF COURT f.f CC?.Ii^eC:' FranklinComriy,s E JC''I?HYIAfiCFCR H[R73Y CV^r^TiF1 ' THATTE,c ASQVE AND FORE GOING IS RULt T,;I:-iJ 'D CGFIFD FROM THE DRIGiNAL....a;^ NOW ON FILE IN MY OFFICE IIiY HAND ANO SEALOF SAID COU^1^ THIS...t.,V..,,...,, OAY OF ^.'?^:^A.D MARYELIEN.jU'SHAU5yN^$SY Clerk pursu ^ 6y... : 1:.. ::...,^. o