ORIGINAL JUL CLERK OF COURT SUPREME COURT OF OHIO. IN THE SUPREME COURT OF OHIO No OF OHIO, STATE

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1 ORIGINAL STATE OF OHIO, IN THE SUPREME COURT OF OHIO No Plaintiff-Appellee, On Appeal from Stark County Court of Appeals, -vs- Fifth Judicial District $1885 IN U.S. CURRENCY, C.A. No CA (Crim. Case No. 2009CRO437) Defendant-Appellant. MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLAW LEISHA SHERRELL-SIMS Leisha Sherrell-Sims, pro se. 919 Sandal Place, N.E. Canton, OHio (330) APPEARING FOR DEFENDANT-APPELLANT. ATTY. JOHN D. FERRERO Stark County Prosecutor BY: ATTY. GERALD T. YOST Assistant Prosecuting Atty. 110 Central Plaza, South Canton, Ohio (330) COUNSEL FOR PLAINTIFF-APPELLEE. JUL CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... 1 STATEMENT OF CASE & FACTS ARGUMENT IN SUPPORT OF PROPOSITION OF LAW... 3 Proposition of Law No. I: A trial court abuses its discretion where it acts without authority and contrary to law in applying monies voluntarily returned to outstanding court costs and fine CONCLUSION...4 CERTIFICATE OF SERVICE... 4 APPENDIX Opinion & Judgment of the Fifth District Court of Appeals (June 20, 2011) A-1 Nunc Pro Tunc Judgment Entry of the Stark County Court of Common Pleas (Jan. 27, 2011) A-5 Judgment Entry of the Stark County Court of Common Pleas (Dec. 7, 2010) A-6

3 1 EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION This case arises from the court of appeals' reluctancy to belay constitutional abuse. While the court of appeals relied upon Gold Touch, Inc. v. TJS Lab, Inc. (1998), 130 Ohio Ap3d 106, 109 for proposition that the nunc pro tunc entry, at issue, made no substantive change(s) to final order, Sherrell-Sims begs the differ. The involved. The matter, because nunc pro tunc entry changed the captioned of a civil case amount of U.S. Currency is a very substantive instead of being noticed of the nature of $1885 it has been amended to $1865. This $1885 confiscated (as merits brief) to Police Department. evinced by now defending evidence State's application to correct this amounted to substantially more changed matter from defending inventory sheet attached to than a mere provided by the Canton discrepancy in evidence "scrivener's error". This is because State sought forfeiture based upon evidence presented in criminal case, not what was eventually turned over to it. Therefore, jurisdiction should be accepted and case remanded for a decision on the merits of appeal. Alternatively, Sherrell-Sims would proffer that the court of appeals' conclusion that it lacked jurisdiction rests upon adjudication of State v. Lester, O.Sup.Ct. No and State v. Lampkin, should be O.Sup.Ct. No Therefore, matter stayed pending aforementioned cases.

4 2 STATEMENT OF CASE & FACTS This case initiated from the confiscation of miscellaneous belongings of Appellant Leisha Sherrell-Sims during a search of her residence on March 12, On March 26, 2009, State sought formal civil forfeiture of $1885 in U.S. Currency that was found in Sherrell-Sims' bedroom. After requesting return of monies and other property, the trial court set matter for an oral hearing on December 17, Before hearing could be held, State voluntarily dismissed cause pursuant to disclosure that it could not sustain burden of proof on December 2, On December 7, 2010, the trial court granted return of monies at bar, but further ordered that they be applied to outstanding balances in criminal cases of Johnny V. Brack (criminal defendant to underlying prosecution). Appx. Pg. A-6. When the monies transferred to thee Clerk of Courts on January 13, 2011 there existed a discrepancy in the amoutn seize/ confiscated and amount currently available. Thereafter, State applied for correction of civil case's caption, which the trial court granted on January 27, Appx. Pg. A-5. Sherrell-Sims sought a timely appeal of the nunc pro tunc entry, but the court of appeals dismissed based upon its belief of a lack of jurisdiction. Appx. Pg. A-1. It is from such judgment that Sherrell-Sims is currently before this Honorable Court.

5 STANDARD OF REVIEW: 3 PROPOSITION OF LAW NO. I A TRIAL COURT ABUSES ITS DISCRETION WHERE IT ACTS WITHOUT AUTHORITY AND CONTRARY TO LAW IN APPLYING MONIES VOLUNTARILY RETURNED TO OUTSTANDING COURT COSTS AND FINE. To establish an abuse of discretion, Sherrell-Sims must demonstrate a "perversity of will, passion, prejudice, partiality or moral delinquency". Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621. ARGUMENT: Sherrell-Sms asserts that it was prejudicial and partial for the trial court to apply her monies to court costs and/or fines in criminal cases she could not have been party to. State v. Cruise (2009), 185 Ohio App.3d 230. The trial court's lawless actions were "virtually [so] standardless" that they can only be concluded as truly opprobrious. Nestor Colom_Medina_& -Sucesores, Inc. v. Custodio (lst Cir. 1992), 964 F.2d 32, 45. The trial court's actions not only affronted substantive components of due process, Daniels v. Williams, 474 U.S. 327, 331 (1986), but proceeded without any authority. A reviewing court must examine the authority of lower court even though parties may have conceded it. Mitchell v. Maurer, 293 U.S.237, 244 (1934). Since State unequivocally submitted to the existence of a valid dispute, the trial court had no other recourse but to announce a lack of authority to forfeit monies, directly or indirectly, and dismiss case. Ex parte McCradle, 74 U.S. 506, 514 (1868). Consequently, judgment applying monies to Mr. Brack's court costs and fines must be reversed and monies, along with other property, ordered returned to Sherrell-Sims. U.S. Currency (2009), 181 Ohio App.3d 162. State v. $765 in

6 Wherefore, 4 CONCLUSION Sherrell-Sims prays upon redress these pleadings so entitle her. May it be so ordered. Respectfully submitted, LESHA-SHERRELL-SIMS, pro se. 919 Sandal Place, N.E. Canton, Ohio CERTIFICATE OF SERVICE I certify that a true and accurate copy of this in Support of Jurisdiction Memorandum has been sent by regular U.S. Mail to counsel of record for Appellee: Atty. Gerald T. Yost, Asst. Pros. Atty. at 110 Central Plaza, South; Canton, Ohio on

7 COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Hon. Julie A. Edwards, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. -vs- $ IN U.S. CURRENCY (Criminal Case No CR-0437 Johnny Brack) Defendant-Appellant Case No CA OPINION CHARACTER JUDGMENT: OF PROCEEDING: Civil appeal from the Stark County Court of Common Pleas, Case No. 09-MI-0131 Dismissed DATE OF JUDGMENT ENTRY: APPEARANCES: For Plaintiff-Appellee JOHN D. FERRERO STARK COUNTY PROSECUTOR BY: GERALD T. YOST 110 Central Plaza S., Ste 510 Canton, OH For Defendant-Appellant LEISHA SHERRELL-SIMS, PRO SE 919 Sandal Place N.E. Canton, OH 44704

8 Stark County, Case No CA A-- 2 Gwin, P.J. {11} Leisha Sherrell-Sims appeals a judgment of the Court of Common Pleas of Stark County, Ohio, which found money seized by the North Canton police was the property of Johnny V. Brack, and ordered the money sent to the clerk of court to apply to amounts Brack owed on prior cases. Appellant shared a home with Brack. Brack was arrested on drug charges but acquitted; appellant was never charged with a crime. { 2} The court journalized its judgment on December 7, On January 27, 2011, the court issued a nunc pro tunc entry to correct a scrivener's error. On February 10, 2011, appellant filed her notice of appeal. {13} App. R. 4 (A) provides a notice of appeal must be filed within 30 days from the entry of the judgment being appealed. The time requirement is jurisdictional, and this court has no jurisdiction to review an untimely appeal. Runu!Q v. Rundle (1997), 123 Ohio App. 3d 304, 305, 704 N.E. 2d 56, citations deleted. { 4} A nunc pro tunc order speaks as of the. date of the original judgment, and does not extend the 30-day filing period for an appeal. Gold Touch, Inc. v. TJS Lab, Inc. (1998), 130 Ohio App. 3d 106, 719 N.E. 2d 629.

9 Stark County, Case No CA (15) We find we lack jurisdiction to review this judgment, and accordingly the appeal is dismissed. By Gwin, P.J., Edwards, J., and Delaney, J., concur RN. W. SCOTT GWIN :7 JULIE A. EDWARDS PATRICIA A. DELANEY WSG:clw 0516

10 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vs- $ IN U.S. CURRENCY (Criminal Case No CR-0437 Johnny Brack) Defendant-Appellant JUDGMENT ENTRY CASE NO CA For the reasons stated in our accompanying Memorandum-Opinion, the appeal is dismissed for lack of jurisdiction. HON. W. SCOTT GWIN JULIE A. EDWARDS f.,r;^t:..l-,w PATRICIA A. DELANEY

11 IN TIiE COURT OF COMNION PL ^'^^^ ^A^ 27 AN ^^ 02 STARk COL^NTY, 01iI0 S'['A1'F; OF 01110, Plaintiff, CASE N0: 2009-riIt JUDGE BROWN V. NUNC PRO TCINC :b1,895.00iin U.S, CURRENCY, JUllGbIENT ENTRY (Criminal Case No CR-0437 Johnny Bracli) Defendant Upon application bv the Statc ol'ohio, by and thrnuph ttic Stark County Prosecutor and for good cause shown, the court hereby enters Jud-ment Nunc Pro l'unc in thc abovc-captions matter eci.cor recl a clericul er rar trs tolf a anrnciprd qj-u.3. L'urrency irvoh'ed. The Seized U. S. C.urrency was listed as $1, duc to clcric.xl error. The amount actaally suized by the C:.anton Ptllicc Department was $ (ty- )ographic:ii crrur in the pteadin'as however all sc:cur(: and evidenc:: paperwork listed the prvper amount). Wherefore it is ORUb'RED, ADJUDGED nnd DECREED the currency oji deposit shall be disposed of as rollows: The Court Orders the Stark County Clerk opc.ourts to apply said funds to ttte unpaici balances ol Court Costs and Fines as listed above beginning wittt the uldest case. 'llte Clcrk of Courts is furtlter ordered to send a statemcnt to h1r. Brack tta at ClC: RICI P.O. Box Mansfield, rjf showino the applioaliun c+p thestt funds and any remanting. balance duc and owing on these and i+ny other cases that remain unpaia. Court Costs are hcrcby waived in this action. IT IS SO ORT)F.I2h;J Qate:C.'_^f.;,9^' ^ G// JUDGE CIIAI2LES E. BROWN A- 5

12 STATE OF OHIO, V. IN THE COURT OF COMMON PLEAS STARK CO UNTY, OHIO Plaintiff, $1, N U.S. CURRk:NCY, (Criminal Case No CR-0437 Johnny Brack) Defendant CASE NO MI JUDGE BROWN JUDGMENT ENTRY S;^i^ r n' I^ G, GI njd `, i 3=3p Upon the Voluntary dismissal of the foregoing action by the State of Ohio pursuant to Ohio Civ. R. 41(A), the Court finds that the $1, in U.S. Currency should be returned to the owner, Johnny Brack The Court further finds that John Brack has outstanding fines and Court costs Cases 1993CR3772; 1993CR3725; and 2000CR0426A which amount to more that the seized U.S. currency involved in this matter and remain unpaid. The Court hereby Orders the Property officer of the Canton Police Department to deposit the said $1, in U.S. Currency with the Stark County Clerk of Courts forthwith. The Court further Orders the Stark County Clerk of Courts to apply said funds to the unpaid balances of Court Costs and Fines as listed above beginning with the oldest case. The Clerk of Courts is further ordered to send a statement to Mr. Brack #A at C/C RICI P.O. Box 8107 Mansfield, OH showing the application of these funds and any remaining balance due and owing on these and any other cases that remain unpaid. Court Costs are hereby waived in this action. IT IS SO ORDERED Date: JUDGE CHARLES E: BROWN