IN THE SUPREME COURT OF OHIO MEMORANDUM IN RESPONSE

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO Appellant V. ANCY SMITH Appellee. ) SUPREME COURT CASE NO. ) ) ) ON APPEAL FROM THE COURT ) OF APPEALS, NINTH APPELLATE ) DISTRICT 09-CA ) ) LORAIN COUNTY COMMON PLEAS ) COURT CASE NOS. 93-CR , ) 94-CR MEMORANDUM IN RESPONSE JACK BRADLEY (# ) MICHAEL STEPANIK (# ) 520 Broadway Ave., 3`d Floor Lorain, OH P: F: Counsel for Nancy Smith DENNIS WILL (# ) Lorain County Prosecutor 225 Court Street, 3`a Floor Elyria, OH P: Counsel for Appellant, State of Ohio

2 TABLE OF CONTENTS age able of Contents...ii able of Authorities iii-iv n ^xplanation of Why This Case is Not a Case of Public or General Interest and Does Not volve a Substantial Constitutional Question...1 Statement of the Case and Facts... 5 rgument and Law... 8 Conclusion...: Certificate of Service... 13

3 TABLE OF AUTHORITIES Arizona v. Rumsy, (1984) 467 U.S I unn v. Smith, 119 Ohio St. 3d Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d In re Hunt (1976), 46 Ohio St. 2d In re Piazza (1966), 7 Ohio St. 2d Mitchell v. Smith, (2008) 120 Ohio St. 3d Romito v. Maxwell (1967), 10 Ohio St.2d Sanabria v. United States (1978) 437 U.S :...1 State ex rel. Alicea v. Krichbaum, - Ohio St. 3d -, 2010 Ohio State ex rel Culgan v. Medina County Court of Common Pleas (2008) 119 Ohio St. 3d State ex rel. Hansen v. Reed (1992), 63 Ohio St. 3d State ex rel. Leis v. Kraft (1984), 10 Ohio St.3d State ex rel. White v. Junkin (1997), 80 Ohio St. 3d State ex rel, Wilson v. McGee, 123 Ohio St. 3d :...10 State ex rel. Yates v. Court of Appeals (1987), 32 Ohio St.3d State ex. rel. Keither v. McMonagle (2004) 103 Ohio St.3d State v. Baker (2008), 119 OhioSt.3d passim State v. Bey (1999) 85 Ohio St.3d State v. Comely (1978) 56 OhioSt.2d State v. Kollar (1915) 93 OhioSt State v. Simpkins (2008) 117 OhioSt.3d State v. Wilson (1995) 73 OhioSt.3d ill

4 nited States v. McMartin Linen Su 1 et al. (1970) 430 U.S nited States v.defrancesco (1980) 449 U.S Wireman v. Keneco Distributors Inc. (1996) 75 Ohio St. 3d ules and Statutes Crim.R , 8; 11 Crim.R passim Crim.R Revised Code Other Ohio Constitution Article IV, Section iv

5 x lanation of Why This Case is Not a Case of Pub&c or General Interest and Does ot Involve a Substantial Constitutional Question 4bility to Appeal The State may not "prosecute error in a criminal matter" unless the right to appeal is provided by statute. State ex rel. Leis v. Kraft (1984), 10 Ohio St.3d 34, 35. This Court has concluded that final verdicts, including judgments of acquittal subsequent to a defendant's Crim. R. 29 motion, are not appealable by the state. State ex rel. Yates v. Courtof Appeals (1987), 32 Ohio St.3d 30, syllabus. Thus, the State cannot directly appeal the trial court's ruling in favor of Ms. Smith's motion for acquittal. The State's current challenge to the trial court's reconsideration of Ms. Smith's properly and timely filed motion for judgment of acquittal is an attempt to accomplish indirectly that which could not be done through a direct appellate attack on the trial court's final ruling. Because the trial court had jurisdiction to reconsider its own non-final judgment, this Court should not exercise jurisdiction. Most importantly, a verdict of acquittal is irreversible, Sanabria v. United States 437 U.S. 54, even if the legal rulings underlying the acquittal were erroneous; even if based upon an egregiously erroneous foundation, United States v. McMartin Linen Supply, et al., 43 U.S. 564; or involved a severe abuse of discretion, United States v.defrancesco 449 U.S. 117; or an error of law, Arizona v. Rumsy 467 U.S The State of Ohio Invited the Alleged Error Now Complained Of Under the invited-error doctrine, "[a] party will not be permitted to take advantage of an error which he himself invited or induced." State v. Bey (1999) 85 Ohio St.3d 487 at p.8, quoting Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, paragraph one of the syllabus. See also State v. Kollar (1915) 93 OhioSt. 1

6 89. ("The law imposes upon every litigant the duty of vigilance in the trial of a case, and even where the trial court commits an error to his prejudice, he is required then and there to challenge the attention of the court to that error, by excepting thereto, and upon his failure of the court to correct the same to cause his exceptions to be noted. It follows, therefore, that, for much graver reasons, a litigant cannot be permitted, either intentionally or unintentionally, to induce or mislead a court into the commission of an error and then procure a reversal of the judgment for an error for which he was actively responsible." ) The State of Ohio is attempting to benefit from a judgment it pursued and supported at the trial level. It is asking this Court's assistance in doing so. Now, after repeated decisions from both the trial and appellate courts rejecting the State's legal arguments, the State has revamped its propositions of law, asking this Court to disregard its prior positions taken in the trial court and, further, to ignore the error invited upon this matter by the State. The general rule is that the Supreme Court will consider only questions previously raised and considered by the Court of Appeals. See, e.g. Wireman v. Keneco Distributors, Inc. (1996) 75 Ohio St. 3d 103; State v. Cornely (1978) 56 OhioSt.2d 1. On appeal from the trial court, the State litigated but a single assignment of error, that the trial court lacked jurisdiction to vacate appellee's conviction. Ostensibly believing that the third time is the charm, the State has invented new arguments heretofore not argued in lower proceedings. First, the State argues that this Court's decision in State v. Baker (2008), 119 OhioSt.3d 197, should either not be applied retroactively or should not be applied to cases which are "final" on appeal. Prior 2

7 to August 2, 2010, when the State filed its memorandum in support of jurisdiction, the State had never before presented this argument. The second proposition of law, only now being introduced by the state is that if an entry does not comply with State v. Baker, then the sole remedy is a nunc pro tunc amended entry from which no new appellate rights arise. Again, the State did not advocate this position in the trial court and admitted and argued that appellee would be permitted to litigate her appeal. In lower court proceedings, the State of Ohio repeatedly agreed with the following: 1) Ms. Smith lacked a final, appealable order; 2) Ms. Smith is entitled to a new sentencing entry which would constitute a final, appealable order; 3) Once Ms. Smith receives a final, appealable order she will be able to continue to appeal her case. The State of Ohio is demanding that this Court correct mistakes of the State of Ohio's own creation, both the original non-final sentencing entry drafted by an assistant Lorain County Prosecutor as well as the State's arguments in the trial court, agreeing in large part with appellee. In the Ninth District Court of Appeals Case No. 09-CA , the State of Ohio set forth a single assignment of error, that the trial court lacked jurisdiction to vacate Appellee Smith's conviction. The State of Ohio never previously argued that no new appellate rights arise from a violation of Crim.R.32(C). The State of Ohio never before argued that the application of Baker should not be retroactive. In fact, the State of Ohio repeatedly took the position that Ms. Smith's entry was not a final, appealable order and, further, recognized that Ms. Smith would be able to move along in the appellate process 3

8 once the trial court gave her a final, appealable order. Only after the trial court reconsidered and granted Ms. Smith's motion for acquittal did the State change its position. In fact, throughout the proceedings in the trial court, the State repeatedly conceded that Ms. Smith lacked a final, appealable order and that the trial court was properly exercising jurisdiction: "First of all, I will stipulate that there was not a final, appealable order." 11/26/08 Tr. at 16. "What is the purpose of the remedy here when a court fails to comply with Rule 32(C)? The purpose of it is, if they don't, then you can't take your case on appeal." Id. at 16. "[T]he purpose of the remedy is to provide the defendant an ability to appeal his or her case." Id. at 17. "[R]evised sentencing order that complies with Rule 32(C), therefore enabling the defendant to go on and appeal her case if she so chooses. And I imagine that will be allowed here." Id. at 17. "[A]t least [a final, appealable order] givers her the opportunity to...appeal her case." Id. at 17. "[T]he intent of Rule 32(C) [is] to correct [entries] so that they can further - further themselves on in the appeal process." Id. at 18. "[T]he State is requesting that you...file a revised sentencing entry that comports with Crim.R. 32(C), and then the defendant...can pursue her appeal from there." Id. at 18. "[W]ithout that final appealable order, I can't take my case beyond this Court." Id. at 20. "[T]he remedy is to - is to allow her to continue on appealing the issues she feels she can appeal because right now she's in limbo in regards to appealing anything." Id. at 21. "What is the purpose of the remedy? To give the defendant a means of appeal, since an appeal that goes up that's not a final appealable order is thrown back out. This will give her her right to appeal." Id. at 28. 4

9 "Well that's exactly what the purpose, the State believes, the purpose of 32(C) is, to create a position for the defendant that they have an adequate remedy at law, be it vis-a- vis, appeal; in other words, a final appealable order." 2/4/09 Tr. at 10. "[W] e concede that it was not a final appealable order." Id. at 10. "What are we trying to obtain here? A final appealable order." Id. at 10. "The Court: `Now, here... the judgment entry of conviction and sentence are not a final appealable order, and there they would appear to be voidable. What would you think, Attorney Cahill? Mr. Cahill: `Yes, your Honor."' Id. at 14. While by no means exhaustive, the foregoing list consists of commentary from the State of Ohio at hearings that culminated in the trial court's acquittal of Ms. Smith. On numerous occasions the State agreed with appellee that Ms. Smith's sentencing entry was not in compliance with Crim.R. 32(C) and that she did not have a final appealable order. Best said by the State, "[W]ithout that final appealable order, I can't take my case beyond this Court." 11/26/08 Tr. at 20. Currently, the State is asking this Court to hold that State v. Baker does not apply retroactively and that upon correction Smith would have no further recourse. It is troubling that this was not argued in the trial court and, further, it was conceded by the State of Ohio that the court should correct appellee's entry. Even more troubling is that it was conceded that, upon correction, appellee would be able to appeal her case. August 2, 2010, was the first time that the State of Ohio made its current challenges to the trial court's action. STATEMENT OF THE CASE AND FACTS On November 10, 1993, Smith was indicted by the Lorain County Grand Jury on one (1) count of Gross Sexual Imposition, a violation of R.C , a felony of the 5

10 third degree; one (1) count of Attempted Rape, a violation of R.C / , an aggravated felony of the second degree; one (1) count of Rape, a violation of R.C , an aggravated felony of the first degree; and two (2) counts of Complicity to Rape, violations of R.C / , aggravated felonies of the first degree in Lorain County Court of Common Pleas case number 93CR On May 11, 1994, Smith was indicted by the Lorain County Grand Jury on one (1) count of Gross Sexual Imposition, a violation of R.C , a felony of the third degree in Lorain County Court of Common Pleas case number 94CR On July 25, 1994, a jury trial commenced before the Honorable Lynett McGough of the Lorain County Court of Common Pleas. On August 4, 1994, the jury returned a guilty verdict on all counts in the indictments. On August 4, 1994, Smith was sentenced. Smith received an aggregate sentence of thirty (30) to ninety (90) years incarceration. On August 18, 1994, Smith timely filed a Motion for New Trial/Motion for Acquittal with the trial court. On December 13, 1995, the trial court denied the motion. On March 7, 1995, Smith filed notice of appeal with the Ninth District Court of Appeals. On January 2, 1996, the appellate court affirmed Smith's conviction and sentence. See State v. Smith (January 24, 1996), 9m Dist. No. 95CA006070, appeal denied by State v. Smith (1996), 76 Ohio St. 3d Smith also moved to reopen her direct appeal on June 4, The appellate court denied the request on July 16, On September 20, 1996, Smith filed a Petition for Post Conviction Relief. The trial court denied the petition on March 13, On April 11, 1997, Smith filed notice of appeal with this Honorable Court. On January 28, 1998, this Court affirmed the trial 6

11 court's denial of the Petition for Post Conviction Relie State v. Smith (January 28, 1998), 9th Dist. No. 97CA006739, appeal denied by State v. Smith (1998), 82 Ohio St. 3d On October 1, 2008, Smith filed a Motion for Re-Sentencing due to the trial court's failure to comply with Crim.R. 32(C) in preparing her sentencing entry. This motion was heard by Judge James Burge. The parties submitted written briefs and argument was held on the record on November 26, 2008 and February 4, 2009 as to the nature of the remedy to which Smith was entitled, at which time the State conceded that Ms. Smith would be able to appeal her case once a 32(C) compliant entry was issued. On February 4, 2009, the trial court held a hearing to determine whether it would re-sentence Smith or simply provide Smith with a corrected sentencing entry. The trial court then stated that because Smith had requested to be re-sentenced that was the remedy she would receive. The trial court then determined, with concession from the State, that Smith's sentence was voidable because it did not comply with Crim.R. 32(C). The trial court vacated the sentence, ordered a pre-sentence investigation and released Smith on a one hundred thousand dolla.r ($100,000.00) bond. In February 2009, the State sought leave to file an appeal of the trial court' s decision of February 4, 2009, as well as filing an appeal as of right. On May 11, 2009, the appellate court denied the State leave to appeal and detennined that the State did not appeal from a final, appealable order. The trial court set the matter for sentencing on July 8, On June 22, 2009, the trial court, sua sponte, scheduled a status conference for June 24, A status conference was held that date, during which the trial court 7

12 granted Ms. Smith's still pending Crim. R. 29(C) motion for acquittal. The trial court never held a re-sentencing hearing. The State sought leave to file an appeal of the trial court's decision of June 24, The appellate court granted the State the ability to appeal except to the extent that the State challenged the fmal verdict on October 6, On June 30, 2010, the appellate court affirmed the decision of the trial court based upon the court's action in State ex rel. Cordray, et at. v. Burge, 9`h Dist. Nos. 09CA009723, 09CA , 2010 Ohio State v. Smith, 9th Dist. No. 09CA009634, 09CA009635, 2010 Ohio On December 8, 2009, co-relators Richard Cordray, Ohio Attorney General, and Dennis Will, Lorain County Prosecuting Attorney, filed a writ of prohibition against Judge Burge in connection with the trial court's action of June 24, State ex rel., Cordray, et al. v. Burge, 9th Dist. Nos. 09CA009723, 09CA , 2010 Ohio The appellate court denied the writ of prohibition and indicated that because the original sentencing entry was non-final, this gave the trial court the ability to reconsider motions and/or rulings prior to finality. Thus, the trial court reviewed the timely filed Crim.R. 29(C) motion. The State now seeks discretionary review of the instant matter. 1. THIS COURT'S DECISION IN STATE v. BAKER (2008) 119 OhioSt.3d 197, DOES NOT APPLY RETROACTIVELY OR TO CASES FINAL ON APPEAL WHETHER OR NOT THOSE SENTENCING ENTRIES ACTUALLY COMPLY WITH BAKER. The State of Ohio is suggesting, again for the first time, that Smith's sentencing entry, on account of previously attempted appeals, should not be considered a non-final and non-appealable order. However, the State already conceded the error now complained o In the words of the Lorain County Prosecutor's Office: 8

13 "First of all, I will stipulate that there was not a final, appealable order." 11/26/08 Tr. at 16. "[W] e concede that it was not a final appealable order." 2/04/09 Tr. at 10. The State cannot disagree with itself from one side of its mouth and seek relief with the other. The Lorain County Prosecutor's office agreed with the trial court judge that, on account of the existence of a non-final, non-appealable order, appellee's sentence and conviction was voidable: "The Court: `Now, here... the judgment entry of conviction and sentence are not a final appealable order, and there they would appear to be voidable. What would you think, Attorney Cahill? Mr. Cahill: `Yes, your Honor."' Id. at 14. So, the Lorain County Prosecutor took no issue with Smith's lack of a final, appealable order or the fact that the conviction and sentence was voidable until appeal. No litigant should be permitted to create error and complain of it later to his advantage. This is what the Lorain County Prosecutor is doing in the instant matter. II. THE REMEDY FOR A NON-BAKER COMPLIANT SENTENCING ENTRY IS A NUNC PRO TUNC AMENDED SENTENCING ENTRY PURSUANT TO CRIM.R. 36 FROM WHICH NO NEW APPELLATE RIGHTS ARISE. Again, the memorandum in support of jurisdiction filed August 2, 2010 is the first time that the State of Ohio has alleged the foregoing proposition of law. Previously, the State conceded in the trial court that Smith would be able to prosecute an appeal from a new sentencing entry which complied with Crim.R.32(C). 9

14 The State of Ohio makes much of this Court's line of cases concerning the remedy for a violation of Crim.R.32(C), suggesting that since habeas relief was not granted, then Smith is not entitled to any remedy. I First, to declare that a litigant is not entitled to habeas relief is not the equivalent of denying any relief. The State argues that the denial of habeas relief is a clear sign that there was nothing unlawful about the litigants' incarceration. Neither the trial court nor appellee have ever argued that Smith's incarceration was unlawful such that it would be cognizable in habeas. This red herring offered by the State avoids the issues in this case. The trial court recognized that Smith lacked a final, appealable order. The State agreed. The trial court simply took action on a case which, due to the lack of such an order, was still, as a matter of law, "pending." It is axiomatic that to be entitled to habeas relief a litigant must have exhausted all other remedies. A writ of habeas corpus is an extraordinary remedy and will not ordinarily be granted when there is another adequate remedy at law. In re Hunt (1976), 46 Ohio St. 2d 378; In re Piazza (1966), 7 Ohio St. 2d 102. This court's denial of habeas relief, then, on the basis that an alternate remedy exists, namely the revision and correction of the sentencing entry which will comply with Crim.R.32(C). As previously stated, the State conceded that Smith lacked such an order. Secondly, the State's argument avoids discussion of the effect of a non-final and non-appealable order. After repeatedly conceding in the trial court that Smith would be 1 Mitchell v. Smith, (2008) 120 Ohio St. 3d 278, 2008 Ohio 6108; McAllister v. Smith, (2008) 119 Ohio St. 3d 163, 2008 Ohio 3881; State ex rel Culgan v. Medina County Court of Common Pleas, (2008) 119 Ohio St. 3d 535, 2008 Ohio 4609; Dunn v. Smith, 119 Ohio St. 3d 364, 2008 Ohio 4565; State ex rel. Wilson v. McGee, 123 Ohio St. 3d 341, 2009 Ohio 5261; and State ex rel. Alicea v. Krichbaum, - Ohio St. 3d -, 2010 Ohio

15 able to prosecute an appeal upon the trial court giving her a new entry, the State has now changed its position, arguing that Smith would be entitled to no further appeal or action in her case. In response to the State's change of position, Smith has demonstrated that her previously attempted appeals were taken without jurisdiction. Article IV, Section 3(B)(2) of the Ohio Constitution limits an appellate court's jurisdiction to the review of final orders. O.R.C (B) enumerates orders that are final and, therefore, appealable. An order that leaves issues unresolved and contemplates further action is not a final, appealable order. State ex. rel. Keither v. McMonagle (2004) 103 Ohio St.3d 430. If an order is not final, then the appellate court has no jurisdiction to act, limited as it is by the Ohio Constitution. If a court acts without subject matter jurisdiction, then its actions are void. State v. Wilson (1995) 73 OhioSt.3d 40. "The effect of determining that a judgment is void is well established. It is as though such proceedings had never occurred; the judgment is a mere nullity and the parties are in the same position as if there had been no judgment." State v. Simpkins (2008) 117 OhioSt.3d 420, quoting Romito v. Maxwell (1967), 10 Ohio St.2d 266, Again, the State conceded in the trial court that Smith lacked a final, appealable order. A litigant cannot appeal from a non-final and non-appealable order. Any attempt to do so would be an act in excess ofjurisdiction. The trial court's initial decision to deny Smith's acquittal motion was in fact a mere interlocutory order, subject to reconsideration, and nothing in Crim. R. 29(C) or Crim. R. 45(B) bars a trial court from reconsidering a denial of a timely motion to acquit so long as the matter is not final. While this Court established in State ex rel. Hansen v. Reed (1992), 63 Ohio St. 3d 597, 599, that a trial court cannot reconsider its own final 11

16 judgment in a criminal ease, when there is no final judgment a court "possesse[s] authority to review and reverse its previous decision." State ex rel. White v. Junkin (1997), 80 Ohio St. 3d 335, 338. Conclusion Appellee requests that this Court deny jurisdiction as this case is not properly before the Court as the State has never before raised the arguments that it now uses in support of jurisdiction, the State should not be permitted to benefit from error that it invited, and a verdict of acquittal is irreversible. Respectfully Submitted, JACK W. BRAIYI.EIY MICHAEL E. STEPANIK Counsel for Nancy Smith 520 Broadway, 3rd Floor Lorain, OH P: F:

17 CERTIFICATE OF SERVICE A copy of the foregoing Memorandum Opposing Jurisdiction was hand-delivered to Lorain County Prosecuting Attomey Dennis Will or his representative at 225 Court Street, 3`a Floor Elyria, OH this ^ḏay of August,