11'i^i,y 4! APP 0 12fl^3 APP CO URT SUPR EME C O U RT OF O HIO. ^k d^^ ^ AL CLERK OF COURT SUPREME COURT OF OHIO CASE NO.

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1 11'i^i,y 4! IN THE SUPREME COURT OF OHIO STATE ex rel. ANTHONY CIOFFI, Jr Relator, -vs- TRUMBULL COUNTY COMMON PLEAS JUDGE RONALD J. RICE Respondent. CASE NO Original Action in Procedendo MOTION TO DISMISS OF RESPONDENT TRUMBULL COUNTY COMMON PLEAS JUDGE RONALD J. RICE DENNIS WATKINS (# Prosecuting Attorney, by LuWAYNE ANNOS (# Assistant Prosecuting Attorney Trumbull County Prosecutor's Office 160 High Street, N.W. 4th Floor, Administration Building Warren, Ohio Telephone No. ( Fax: ( psannos(cr^co trumbull.oh.us COUNSEL FOR RESPONDENT JUDGE RONALD J. RICE APP 0 12fl^3 CLERK OF COURT SUPREME COURT OF OHIO ANTHONY CIOFFI, Jr. Inmate #A Grafton Correctional Institution 2500 S. Avon Belden Rd. Grafton, Ohio A.,. PRO SE RELATOR R APP CO URT SUPR EME C O U RT OF O HIO I ^k d^^ ^ AL

2 IN THE SUPREME COURT OF OHIO STATE ex rel. ANTHONY CIOFFI, Jr. Relator, TRUMBULL COUNTY COMMON PLEAS JUDGE RONALD J. RICE Respondent. CASE NO Original Action in Procedendo MOTION TO DISMISS OF RESPONDENT TRUMBULL COUNTY COMMON PLEAS JUDGE RONALD J. RICE Pursuant to S.Ct.Prac. R and Civ. R. 12(B(6, Respondent Trumbull County Common Pleas Judge Ronald J. Rice ("Judge Rice", by and through the undersigned counsel, moves this Court to dismiss Relator's petition for a writ of procedendo for his failure to state a claim upon which relief can be granted. A memorandum in support is attached. Respectfully submitted, DENNIS WATKINS (# Prosecuting Attorney, by uwayn ANNOS (# Assistant Prosecuting Attorney Trumbull County Prosecutor's Office 160 High Street, N.W. 4th Floor, Administration Building Warren, Ohio Telephone No. ( Fax: ( psannos(cr^co trumbull.oh.us -vs- -1-

3 MEMORANDUM IN SUPPORT I. INTRODUCTION AND STATEMENT OF FACTS Relator Anthony Cioffi, Jr., ("Relator" is a convicted sex offender presently serving an aggregate 10 to 25 year prison term for multiple offenses involving no fewer than four victims, three of them children. On November 17, 1995, the Trumbull County Grand Jury indicted Relator on two counts of Gross Sexual Imposition ("GSI", felonies of the third degree, in violation of R.C (A(4, and one count of Kidnapping, an aggravated felony of the second degree, in violation of R.C (A(2. The GSI against Relator stemmed from an allegation that he had fondled the genitalia of his girlfriend's nine-year old daughter, M.M. The victim of the kidnapping was an adult, Shelia Schreckengost. Relator omitted information about the adult victim in his Statement of Case. The case was assigned to the docket of Judge John Stuard under Trumbull County Common Pleas No. 95-CR-696. While that case was pending, Relator was indicted for a second time on September 27, In that indictment, he was charged with three counts of Rape, aggravated felonies of the first degree (with life specifications, in violation of the former R.C (A(1(b(2, and three counts of GSI, in violation of R.C (A(4. The charges contained in the second indictment stemmed from allegations that Relator had engaged in sexual activity with two of his biological children three years prior to the allegations contained in the first indictment. This case was assigned to the docket of Judge Mitchell Shaker under Case No. 96-CR-599. On December 3, 1996, as parties were preparing to proceed with a jury trial on the first indictment, Relator elected to enter into a plea agreement covering both indictments. At the request of Relator's trial counsel, the second case was transferred to Judge Stuard prior to Relator entering his plea. In exchange for State's motion to dismiss the life sentencing -2-

4 specifications, Relator pled guilty to one count of GSI and one count of Kidnapping on the first indictment. (95-CR-696. Relator also pled guilty to three counts of Rape (without life specifications and three counts of GSI on the second indictment. (96-CR-599. Judge Stuard sentenced Relator on December 6, 1996, to an aggregate term of 10 to 25 years imprisonment. (95-CR-696 & 96-CR-599. Relator was sentenced separately on all eight counts, but the court ordered that they run concurrent to one another. On March 16, 2001, almost four and a half years after his sentencing, Relator filed a "Motion to Set Aside Judgment of Conviction and to Withdraw Pleas of Guilty." Following an evidentiary hearing, Judge Stuard denied Relator's motion in a judgment entry dated March 11, After some procedural missteps, Relator perfected an appeal of that decision with the Eleventh District Court of Appeals. On May 12, 2003, the Eleventh District Court affirmed Judge Stuard's denial of Relator's motion to withdraw guilty plea. State v. Cioffi, 11th Dist. No T-0037, 2002-T-0039, Ohio This Court declined jurisdiction in State v. Cioffi, 99 Ohio St. 3d. 1546, 2003-Ohio Since the release of Cioffi, supra, Relator has acted as his own attorney, and filed a variety of cumulative, repetitive and vexatious motions with the Trumbull County Common Pleas Court and assorted appeals with the Eleventh District and this Court. The pro se filings began in 2005, and became so overwhelming that Trumbull County Prosecutor Dennis Watkins filed a complaint to have Relator declared a vexatious litigator pursuant to R.C Trumbull County Common Pleas Judge W. Wyatt McKay declared Relator a vexatious litigator on Nov. 13, 2011, in Trumbull County Common Pleas Court No CV The judgment entry labeling Relator as a vexatious litigator appears on this Court's website. -3-

5 Relator makes absolutely no mention in his Petition for Writ of Procedendo that he is a vexatious litigator. Nevertheless, it was because he was declared a vexatious litigator that the current complaint was filed. Before Judge Stuard retired and Judge Rice took over his court, Relator filed a "Motion for Leave to File Motion to Rescind Invalid Plea Agreement" on October 31, Judge Stuard left the bench Dec. 31, 2012, without ruling on Relator's motion. Judge Rice denied the motion for leave March 20, 2013, six days after the filing of the instant action. (See Respondent's Ex. 1 & 2 Relator filed his Petition for Writ of Procedendo in this Court March 14, Relator does not argue that this Court should force Judge Rice to rule on his motions for leave, but instead argues the merits of the "motion to rescind" filed in the Trumbull County Common Pleas Court. For the reasons set forth below, Relator states no claim upon which relief can be granted and Judge Rice is entitled to a dismissal of the writ of procedendo. LAW AND ARGUMENT To be entitled to the requested writ of procedendo, Relator must establish (1 a clear legal right to have Judge Rice grant a vexatious litigator leave to file additional motions, (2 a clear legal duty on the part of the judge to grant such leave, and (3 the lack of an adequate remedy in the ordinary course of the law. State ex rel. Weiss v. Hoover, 84 Ohio St.3d 530, , 705 N.E.2d 1227 ( 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 Fin. Corp. v. Nadel, 111 Ohio St.3d 149, 2006-Ohio-5344, 855 N.E.2d 473, 20, quoting Weiss, 84 Ohio St.3d at 532, 705 N.E.2d While Relator may construe a four-and-a-half month delay from the filing of his motion to Judge Rice's ruling an "unnecessary delay," there is no evidence Judge Rice willfiz_ly delayed -4-

6 ruling on Relator's motion for leave. Instead, the mere changing of the guard from one common pleas judge to his duly-elected replacement may have been at the root of the delay. Moreover, the sheer size by weight, bulk, and volume of pro se filings in both of Relator's criminal files requires an inordinate of time for a new judge to digest. Judge Rice submits that there was no "unnecessary delay" in the time it took him to rule on these two motions for leave. Moreover, a respondent is entitled to dismissal when it appears beyond doubt from the complaint that relator can prove no set of facts entitling him to recovery. O'Brien v. University Community Tenants Union, 42 Ohio St.2d 242, 327 N.E.2d 753 (1975. Delay aside, Relator fails to argue, much less demonstrate, that Relator, who has engaged in a shameful pattern of abuse of process, has a legal right to further bloat his criminal case files with additional pleadings. Likewise, Relator fails to argue or demonstrate that Judge Rice has a duty to grant Relator leave to file another frivolous, repetitive, and res-judicata-barred Crim R motion masquerading as a "motion to rescind." The legal soundness of Relator's guilty plea was resolved over a decade ago by Judge Stuard and the Eleventh District Court of Appeals. State v. Cioffi, 11 th Dist. No T-0037, 2002-T-0039, 2003-Ohio-2374, appeal disallowed 99 Ohio St. 3d. 1546, Ohio Not only does Relator have an adequate remedy at law to challenge Judge Stuard's denial, Relator exercised that right. Id. Thus, Relator fails to articulate the requirements for a writ of procedendo as required by this Court in Hoover, supra. Judge Rice is therefore entitled to a dismissal of this action. Further, this Court has held neither procedendo nor mandamus will compel the performance of a duty that has already been performed. State ex rel. Fontanella v. Kontos,

7 Ohio St.3d 514, 885 N.E.2d 220, 2008-Ohio Notably, while determining actions involving extraordinary writs, a court is not limited to considering the facts and circumstances at the time that the writ was requested but can consider the facts and conditions at the time that entitlement to the writ is considered. State ex rel. Howard v. Skow, 102 Ohio St.3d 423, 811 N.E.2d 1128, 2004-Ohio-3652, 9. While the instant action was pending, Judge Rice issued his rulings denying leave to file in both of Relator's cases. Those rulings are attached. (Respondent's Ex. 1 & 2. Again, Judge Rice is entitled to a dismissal because the basis for the writ of procedendo has been rendered moot by Judge Rice's March 20, 2013, rulings. As a procedural matter, this Court has held a motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of the complaint. Assn. for the Defense of the Washington Local School Dist v. Kiger, 42 Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989. Generally speaking, a party seeking a Civ. R. 12(B(6 dismissal may not rely on allegations or evidence outside the complaint; such matters must be excluded, or the motion must be treated as a motion for summary judgment. Civ.R. 12(B; State ex rel. Natalina Food Co. v. Ohio Civ. Rights Comm. 55 Ohio St.3d 98, 99, 562 N.E.2d 1383 (1990. However, this Court has carved out an exception to this rule and held that it is appropriate for a court to take judicial notice of the relevant rulings when deciding whether dismissal of a prohibition claim is warranted. State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 874 N.E.2d 516, 2007-Ohio-4798, at 10. An event that causes a case to become moot may be proved by extrinsic evidence outside the record. State ex rel. Cincinnati Enquirer, Div. of Gannett Satellite Info. Network, Inc. v. Dupuis, 98 Ohio St.3d 126, 781 N.E.2d 163, 2002-Ohio-7041, at 8. Judge Rice asks this Court to take judicial notice of Respondent's Ex. 1& 2 and find that he is entitled to dismissal of the pending -6-

8 petition for writ of prohibition because Judge Rice's rulings have rendered the action instant moot. PROCEDURAL DEFICIENCIES Lastly, in addition to reasons already stated, Relator's petition as filed with this Court is procedurally deficient by failing to comply with R.C First, while at first blush he appears to comply with R.C (A, he submits patently false information to this Court in so doing. R.C (A reads as follows: "(A At the time that an inmate commences a civil action or appeal against a government entity or employee, the inmate shall file with the court an affidavit that contains a description of each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court. The affidavit shall include all of the following for each of those civil actions or appeals: (1 A brief description of the nature of the civil action or appeal; (2 The case name, case number, and the court in which the civil action or appeal was brought; (3 The name of each party to the civil action or appeal; (4 The outcome of the civil action or appeal, including whether the court dismissed the civil action or appeal as frivolous or malicious under state or federal law or rule of court, whether the court made an award against the inmate or the inmate's counsel of record for frivolous conduct under section of the Revised Code, another statute, or a rule of court, and, if the court so dismissed the action or appeal or made an award of that nature, the date of the final order affirming the dismissal or award." Relator is an inmate presently incarcerated at The Grafton Correction Institution which he incorrectly designates as a "camp." Along with his writ, he provides a document entitled "Inmates [sic] Affidavit of Prior Actions." In that document he states that he has not filed any civil actions in the state or federal courts over the past five years. This is incorrect. He -7-

9 conveniently omits mention of a mandamus action he filed against Judge Stuard in the Eleventh District Court of Appeals on August 26, 2011, alleging that Judge Stuard failed "to carry out his legal duty and obligation to Relator by JOURNALIZING the circumstances [o]f a May 31st[,] 2001 evidentiary hearing * * * and [ofj November 29th[,] 2001 ***[o]n a MOTION TO SET ASIDE JUDGMENT OF CONVICTION AND WITHDRAW GUILTY PLEA." State ex rel. Cioffi v. Stuard, 11th Dist. No T-0083, 2011-Ohio-5707, 12. That action was dismissed by the Eleventh District on November 7, Id. at 22. Prior to that action, on June 17, 2009, Relator filed.a mandamus action against Judge Stuard, his court reporter, and the Trumbull County Clerk of Courts in an effort to force the production of non-existent pre-trial hearing transcripts. State ex. rel. Cioffi v. Stuard, 11th Dist. No T-0057, 2010-Ohio-829. That action was likewise dismissed by the Eleventh District on March 5, Id. Thus, in less than four years Relator has filed two civil actions against a sitting common pleas judge and other government employees, and failed to list those lawsuits as required by R.C (A. At least one Ohio court has held that such deception merits dismissal of a lawsuit filed against a public official. In Hattie v. Andrews, 10th Dist. No. 97 APE , 1998 WL (May 14, 1998, the appellant filed no fewer than twenty civil appeals, original actions, and other miscellaneous trial court actions, several of which were omitted from his R.C (A affidavit. The Tenth Appellate District found as follows: "R.C (A provides that an inmate pursuing a civil action or appeal shall file an affidavit describing `each civil action or appeal of a civil action that the inmate has filed in the previous five years in any state or federal court.' The provisions of R.C (A are mandatory. State ex rel. Alford v. (1997, 80 Ohio St.3d 285, 685 N.E.2d i242. Failure to comply with R.C (A is Winters -8-

10 grounds for dismissal. Id. We find that appellant has materially misstated the number of civil actions in his affidavit filed pursuant to R.C , and that appellees' motion to dismiss the present appeal is well-taken and shall be granted." Id. at * 1. Like Hattie, Relator has misstated the number of civil actions in his R.C (A affidavit by at least two. Like the Franklin County Common Pleas Court, this Court should dismiss the instant action for such falsification. Additionally, Relator fails to comply with R.C (C which mandates: "If an inmate who files a civil action or appeal against a government entity or employee seeks a waiver of the prepayment of the full filing fees assessed by the court in which the action or appeal is filed, the inmate shall file with the complaint or notice of appeal an affidavit that the inmate is seeking a waiver of the prepayment of the court's full filing fees and an affidavit of indigency. The affidavit of waiver and the affidavit of indigency shall contain all of the following: (1 A statement that sets forth the balance in the inmate account of the inmate for each of the preceding six months, as certified by the institutional cashier; (2 A statement that sets forth all other cash and things of value owned by the inmate at that time." Relator is seeking a waiver of payment in this action. Judge Rice is a government employee. Relator filed an "Affidavit of Indigency" and asks to be relieved of his duty to pay a filing fee and security deposit as permitted by the former S.Ct. Prac. R. 15.3, now S.Ct. Prac. R However, Relator failed to attach a certified statement setting forth the balance in his inmate account for the past six months. His Affidavit of Indigency doesn't even say how much is in his inmate account, just that the prison is paying him $20 a month to sit in a GED class. His self-serving affidavit does not qualify as a certified statement by an institutional cashier. This Court has held such an omission is not just fatal to the waiver, but cause for dismissal of the complaint. State v. ex rel. Pamer v. Collier, 108 Ohio St. 3d 492, 2006-Ghio-1507, 5, citing -9-

11 State ex rel. Foster v. Belmont County Court of Common Pleas, 107 Ohio St. 3d. 195, Ohio-6184, at 5. In addition to the reasons discussed previously, Judge Rice is entitled to a dismissal on these procedural deficiencies alone. CONCLUSION Relator has failed to demonstrate a right to leave to file a "motion to rescind" a 17-yearold plea agreement or a duty on Judge Rice's part to grant that leave. Relator has enjoyed the benefit of an adequate remedy at law to extricate himself from his plea, to wit, an unsuccessful appeal of Judge Stuard's 2002 denial of his motion to withdraw guilty plea. Judge Rice has already completed the task at hand; he has denied leave to file a motion barred several times over by the doctrine of res judicata. As an incarcerated inmate, Relator has failed to comply with the mandatory components of R.C (A & (C and his entire writ is subject to dismissal on these deficiencies alone. It appears beyond a doubt that Relator can prove no set of facts entitling him recovery. Judge Rice is entitled to dismissal for Relator's failure to state a claim upon which relief may be granted. Judge Rice submits a S.Ct. Prac. R waiver of costs is unwarranted because Relator neglected to properly verify his indigency as required by the Ohio Revised Code and Relator should be assessed the full costs of this action. -10-

12 Respectfully submitted, DENNIS WATKINS (# Prosecuting Attorney; by I-,,i^VAYNg/ANNOS (#' Assistant Prosecuting Attorney Trumbull County Prosecutor's Office 160 High Street, N.W. 4th Floor, Administration Building Warren, Ohio Telephone No. ( Fax: ( psannosgco.trumbull.oh.us COUNSEL FOR RESPONDENT JUDGE RONALD J. RICE PROOF OF SERVICE I do hereby certify that a copy of the foregoing motion was sent by ordinary U.S. Mail to Anthony Cioffi, Jr. (Inmate # A , Relator in Pro Se, Grafton Correctional Institution, 2500 S. Avon Beldon Rd., Grafton, Ohio, 44044, on this 28th Day of March, AYA ANNOS (# Prosecuting Attorney -11-

13 IN THE COURT OF COMMON PLEAS TRUMBULL COUNTY, OHIO STATE OF OHIO, CASE NO. 95-CR PLAINTIFF, JUDGE RONALD J. RICE -vs- 3UDGMENT ENTRY ANTHONY CIOFFI, JR., DEFENDANT. On or about October 31, 2012, the Defendant filed for leave to file a motion to rescind an invalid plea agreement. On or about November 7, 2012, the Defendant filed a supplement to defendants motion to rescind an invalid plea agreement. The Court has reviewed the motions and finds neither motion to be well made. The motions of the Defendant filed on October 31, and November 7 of 2012 are denied. Dated: March 18, 2013 ^^?k"' ^. ^ c.a F + J <. > Q' Q 2= cd.t -',^ W ^ C,^ 7C t^ ; T7lS!s ct ^'S' and c:.nd i3rrc ctcq'3ygyf th0&r ISlna1 C^^-CJ.I^ ^GA^E. ; ā --^^. G^d-.^^ ^,,.. By '"`i iiin"iii'iiiniii'imiiii'niiimniili 1o^y^sdent's Ex. 1 0

14 IN THE COURT OF COMMON PLEAS TRUMBULL COUNTY, OHIO. CASE NO. 96-CR JUDGE RONALD J. RICE UDGMENT ENTRY On or about October 31, 2012, the Defendant filed for leave to file a motion to rescind an invalid plea agreement. On or about November 7, 2012, the Defendant filed a supplement to defendants motion to rescind an invalid plea agreement. On or about December 12, 2012 Defendant files leave to submitted supplemental authority. The Court has reviewed the motions and finds neither motion to be well made. The motions of the Defendant filed on October 31, and November 7, and December 12 of 2012 are all denied. Dated: March 18, 2013 Judge Ronald. Ric F-^^[?.c' ^ ^... F STATE OF OHIO, PLAINTIFF, -v5- ANTHONY CIOFFI, JR., DEFENDANT. CL- N ^roe ^ ^ -rj ^ lo,2 c%_3_ This is ^ true nd correct aopy of the o^ iginal ^RE I ^^.L:^1, IIIi'lllliYliiiIi'iiiIiiiiillimIlNi ^ R3M Respondent's Ex. 2 0