of Defendant Appellant Memorandum in Support of Jurisdiction Mark B. Springer

Transcription

1 en The Supreme Court of Ohio S a"f ^ ^ ^ ^^3 ^ ^r.. ^ J f,,.,1t State of Ohio, Appellee, App.No. C Trial No. B Mark B. Springer, Appeliant, Vs. On appeal from the Hamilton County Court of Appeals first Appellate District of Defendant Appellant Memorandum in Support of Jurisdiction Mark B. Springer Mark B. Springer (prose) # St. Rt.63 P.O. Box 120 Lebanon, Ohio Scott M. Heenan p Assistant Prosecuting Attorney 230 East 9th Street, Suite 4000 Cincinnati, Ohio s,fst; s; C, 0's,i'5 s i,'l^<'- w_51:.,,^,5 f Iµ 3.i U- D... ^^^^ ^ 9 2,0t^ ^^^^^^ OF ^OURT

2 Table of Contents Table of Contents Explanation ii Statement of case, facts, and history iii Proposition of Law Number 1 1 Proposition of Law Number 2 2 Proposition of Law Number 3 3 Proposition of Law Number 4 4 Conclusion Certificate of service 5 6 Attachments Response to motion to re-address judgment A-1 And set aside sentence entered 1 Feb Entry over ruling motion to strike the appellant A-2 Brief 3 July 2013 Judgment Entry 22 November 2013 A-3-1 A-3-2 I

3 Explanation of why this case presents a substantial constitutional question and matters of public general interest. This court should accept Jurisdiction to address substantial questions and matters of public or great general interest that would warrant further review by this court because: The propositions of law will present questions regarding whether the appellant receive a proper capital trial, which includes two phases. Irregularity in proceeding concerning statutory requirements when imposing sentence, discharge of Jury by Trial Judge, Denial of a Public Trial by an impartial Jury and faulty indictment. Violating Defendant-Appellant V, VI, Vill, and XIV amendments of the Constitution of the United States of America. ii

4 Statement of the case facts and history. On or about November 18Yh, 1988 Mark B. Springer was arrested and later indicted by Grand Jury for aggravated murder R.C. with specifications of aggravated robbery R.C. and aggravated burglary R.C., when written out totaling 5 counts. Counts 1, 2, and 3 were all agg. Murders with specifications of both agg. Robbery and agg. Burglary; count 4 was the actual agg. Robbery and count 5 was the actual agg. Burglary. On September 6th, 1989, Mr. Springer was found not guilty of aggravated murder in count 1 of the indictment which contained the whole case against him with the specification attached, but found guilty of murder, the lesser offense, in violation of O.R.C in the first count of the indictment with no prior calculations in design by the jury who then found him guilty of counts 2, 3, 4, and 5. Because the jury was hopelessly deadlocked during the penalty phase of the capital trial, the judge discharged the jury and sentenced Mr. Springer himself to 15 years to life for murder, life with no parole for 30 years consecutive on each count of aggravated murder and 10 years (Actual) to 25 years consecutive on the agg. Robbery and agg. Burglary counts to be served after the time for the murder and agg. Murders which were ran concurrent with each other. January 22 d 2013 Defendant appellant filed a motion to re-address judgment and set aside sentence pursuant crim.r.33(a)(1) January 30th 2013 plaintiff filed response to motion to re-address judgment and set aside sentence February 15t 2013 Judge Kubicki enter response to motion to readdress judgment and set aside sentence, the proposed entry of the plaintiff. June 2013 defendant-appeltate filed brief (In 1st District Court of Appeals). June 13th 2013 plaintiff-appollate filed a motion to strike brief of defendant-appellate. July 3`d 2013 the appeals court makes entry over ruling motion to strike the appellants brief. July 10t" 2013 brief of plaintiff-appellate was filed. July 18th 2013 court of appeals set date of 9/25/2013 to hear case. November 22"d 2013 appeals court over rules the appeal of defendant-appellate. iii

5 Proposition of Law I Where the trial court and court of appeals fails make ruling on the merit of criminal rule 33(A)(1) irregularity in proceedings concerning statutory requirements when imposing sentence. The appellate has been deprived of his V and XIV amendments of the Constitution of the United States, due process and equal protection of the laws. Any attempt by a court to disregard statutory requirements when imposing sentence renders the attempted sentence a nullity and viod. St. V. Ex. Rel., Kudrick V. Meridith (1922), 24 Ohio N.P., (NS), 120, 124, 1922 WL 2015, 3. The defendant-appellate Mark B. Springer claims that the trial court, nor the court of appeals acted in accordance with the statutory requirements when imposing sentence, never once responding to the claim crim. R. 33 (A)(1) concerning statutory requirements when imposing sentence. The defendant-appellate abandoned St. V. Colon concerning the mens rea element in his appeal. And continued to pursue the sentencing issue. But the State chooses to continue pursuit of the mens rea element, and not respond to the required statutes concerning sentencing. 1

6 Proposition of Law 11 Where defendant-appellate received a faulty indictment deprived of his V, VI,1fIIf, and XIV Amendments cruel and unusual punishments where inflicted. Counts 1, 2, and 3 of indictment are all assigned the same statutory provision R.C count 7 R.C , count 5 R.C , agg. Rob and agg. Bur when apart of the same scheme violating a statutory provision an indictment charging a single offense in different counts is multiplictious. U.S. V. Hanadakas, 286F. 3d 92, 98, 100 (2"d cir. 2002) The Supreme Court in State V. Moss (1982), 69 Ohio St. 2d 515, 433, N.E. 2d 181 held that: where as here, it is asserted that the state, by levying in one criminal proceeding multiple punishments against a defendant for criminal activities emanating from one transaction (as in this case) has transgressed the defendant-appellate constitutional rights. 2

7 Proposition of Law III Where defendant-appeljate was deprived public trial by an impartial jury violating his V, Vi, and XIV amendments the Ohio legislature intended that the same Trier of facts in a capital case make determination of both guilt and punishment. R.C (D)(2) explicit requires the trial jury to find "unanimously" by proof beyond a reasonable doubt that the aggravating circumstances out weight the mitigating factors." In the absence of such findings, caused a partial trial. Because the jury deadlocked in the penalty phase of the trial prevented the rendition of a complete verdict by the same jury as required by R.C and State V. Penix (1987), 32 Ohio St. 3d 369, 513 N.E. 2d 744 in a jury trail R.C contemplates a bifurcated trail procedure before the same jury. When recognized by the trial court and the court of appeals that federal law was violated deny Mr. Spinger his constitution right of due process and equal protection and of a impartial jury, a mistrial should have been granted pursuant Crim. R. 33 (A) (1) irregularity in proceeding, not conforming to legality, in opposition to accept order, abuse of authority by the courts. 3

8 Proposition of Law IV Where discharge of Jury by trial Judge who then proceeded in sentencing himself, in violation of V and XIV amendments. Having discharged the Jury, the trial judge lacked authority to proceed to sentence. The only alternative available was declaration of a mistrial on the grounds of "manifest necessity" Illinois Vs. Somerville (1973), 410 U.S. 458, 9.3 S. Ct. 1066; city of Columbus Vs. Voyles (1972), 32 Ohio app. 2d 309, 291 N.E. 2d 536. Where there is no statutory authority the trial court judge cannot create such a procedure out of whole cloth, State V. Penix (1987) 32 Ohio st. 3d 373, 513, N.E. 2d at 748 In the absence of a specific provision to be applied to these circumstances, the penalty provision of the Ohio Revised Code must be constructed against the State and in favor of defendant-appellate pursuant to of the Ohio Revised Code. 4

9 Conclusson In conclusion defendant-appepfate preserves all claims in his motion to re-address judgment and set aside sentence pursuant crim. R 33 (A)O. And every assignment of errors and issues presented for review in his brief to the ISt district court of appeals. And further challengers the over ruling of his appeal on the grounds that his federal rights have been violated. And the court of appeal as well as the trial court has turned a blind eye to the justice system, and the rules governing the United States of America. Mark B. Springer % --N 5

10 Certificate of Service I herby certify that I have sent a copy of the foregoing memorandum in support of Jurisdiction to the supreme Court of Ohio to assistant prosecuting attorney Scott M. Heenam P 230 East ninth street suite 4000 Cincinnati, Ohio on the 210 day of Mark B. Springer Prose

11 THE STATE OF O14IO,1-1AMILTON COUNTY COURT OF COMMON PLEAS CRIMINAL DIVISION ENTER FEPD 2013 charte,^/4{ualcfc1, JUDGE STATE OF OHIO Plaintiff. Case No. B Judge Charles J. Kubicki, Jr. vs. ^ RESPONSE TO MOTION TO RE- R^tARK SPRINGER ADDRESS JUDGMENT AND SET ASIDE SENTENCE vefendant This matter coanes before the Court on Mark Springer's motion to readdress j udgment and to set aside his sentence based off of the retroactive application of State v. Colon 1, 119 Ohio St. 3d 26, 2008-Ohio-1624, 885 N.E.2d The Ohio Supreme Court ruled in State v. Colon II, 119 Ohio St. 3d 204, 2008-Ohio-3749, 893 N.E.2d 169, V 3, that Colon I is not retroactive. Springer's motion is, therefore, denied. Charles J. Kubicki Jr., Judge Court of Common Pleas To the Clerk: Issue a copy of this decision to: Mark Springer, A Warren Correctional P.O. Box 120 Lebanon, Ohio A,) ap

12 IN THE COURT OF.APPEAI.S FIRST APP1C.'.tLLAd 1:, DISTRICT OF OHIQ HAMILTON COUNTY, 011I0 STATE OF OHIO, APPEAL NO. C-13o147 Appellee, vs ENTRY OVERRULING MOTION TO STRIKE THE APPELLANT'S BRIEF MARK SPRINGER, Appellant. This cause came on to be considered upon the motion of the appellee to strike the appellant's brief. The Court overrules the motion at this time. To the clerk: Enter upo the journal of the court on JUL per order of the court. By= (Copies sent to all counsel) Presiding Judge A-7-

13 IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO STATE OF OHIO, vs. Plaintiff-Appellee, APPEAL NO. C TRiAL NO. B-88o5912 JIIDGMENT E1V L"RY. MARK B. SPRINGER, Defendant-Appellant. We consider this appeal on the accelerated calendar, and this judgment entry is not an opinion of the court. See S.Ct.R.Rep.Op. 2; App.R. x1,1(e); xst Dist. Loc.R. Yx.i.1. Defendant-appellant Mark B. Springer appeals from the Hamilton County Common Pleas Court's judgment denying his "Motion to Re-Address Judgment and Set Aside Sentence * **." We affirm the court's judgment as modified. Springer was convicted in 1989 upon jury verdicts finding him guilty of aggravated murder, murder, aggravated robbery, and aggravated burglary. He unsuccessfully challenged his convictions on direct appeal, State v. Springer, 1st Dist. :riarnilton No. i-$90ju3, f99o Ohio App. i.exis 5854 'Oct. 22, 2ooz"s), reversed, 63 Ohio St.3d 167, 586 N.E.2d 96 (1992), and in postconviction motions filed in 2005, 2oog, and In this appeal from the overruling of his 2013 "Motion to Re-Address Judgment and Set Aside Sentence ***," he advances four assignments of error. We address first, and overrule, Springer's fourth assignment of error, which essentially challenges the overruling of his motion. In his motion, Springer sought a new trial under Crim.R. 33(A)(1), on the ground that his aggravated-robbery conviction was void because the indictment had omitted the offense's mens rea element. A Crim.R. 33(A)(i) motion for a new trial on the ground of an irregularity in the proceedings must A-3--1

14 E)fflo FtRST DrS'rRiCT C [112T OF APPEALS be filed either within 14 days of the return of the verdict or within seven days after leave, to file a new-trial motion has been granted. And leave may be granted only upon "clear and convincing [evidence]" that the movant had been "unavoidably prevented" from timely filing his new-trial motion. See Crim.R. 33(B). The common pleas court cannot be said to have erred in denyzng Springer the relief sought, when he did not move for leave to file his new-trial motion out of time, and the record is devoid of evidence demonstrating unavoidable prevention.. See State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (Zggo). Accord State v. Hawkins, 1st Dist. Hamilton No. C-11o291, \` ihic, J'-t:l ^y^ ^P ^y R f ^^ -^^-t We also overrule the balance of Springer's assignments of error. This court has jurisdiction to review only the judgment from which Springer appeals. In that judgment, the common pleas court overruled Springer's Crim.R. 33 motion. In doing so, the court did not rule upon, because Springer had not asserted in his motion, the challenges to his convictions advanced in his first, second, and third assignments of error. Therefore, we are without jurisdiction to review those challenges in this appeal from the judgment denying Springer's motion. See State v. Gipson,lst Dist. Nos. C-96o867 and C-96o881, 1997 Ohio App. LEXIS 4404 (Sept. 26, 1997). Finally, a court has jurisdiction to correct a void judgment. See State ex rel. Cruzado v. Zaleski, xii Ohio St.3d 353, 2oo6-Ohio-5795, 856 N.E.2d 263, ',l But none of the errors alleged here or before the common pleas court would have rendered Springer's convictions void. Accordingly, we affirm the court's judgment. A certified copy of this judgment entry is the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24. DINxE, JACKER, P.J., FisCxER and DEWrnTE, JJ. To the clerk: Enter upon the journal,oft e c rt on Nove ber 22, 2013 per order of the court Presiding Judge A '3-2