THE SUPREME COURT OF OHIO WILLIAM D. BOYLES, 439-192 Case No. 12i '= v STEVEN E. MARTIN 1000 Main Street ILU NOV 21 0 Z012 CLERK O^ COURT REME COURT OF OHIO WRIT OF PROCEDENDO 2. I, William D. Boyles was convicted in the Hamilton County Court of Common Pleas Court of: One count of Involuntary Manslaughter, with a gun specification, a felony of the first degree, a violation of Section 2903.01; 2923.03, and one count of Weapons Under Disability, a violation of Section 2923.13, of the Ohio Revised Code, a felony of the third degree. On December 2, 2002, I plead guilty to the charges and was sentenced to thirteen years of incarceration, ten years; manslaughter, three years; gun specification (consecutive), and one year; weapon under disability (concurrent). 4. On October 16, 2002, through counsel, I filed a Motion to Dismiss Indictment. State v.boyles, Hamilton County Common Pleas Case No. B 0207743. 5. The state filed a response to my Motion to Dismiss Indictment on October 21, 2002. 6. My counsel, Hamilton County Assistant Public Defender, made claim that the Court overruled my Motion to Dismiss, and did not have to file a judgment on his ruling because I had a "dry" indictment. The Court never recorded or filed his decision on the Motion to Dismiss with his
findings. 7. I was never given a copy of my discovery, however, I plead guilty to the above charges upon the advice of my counsel. Once incarcerated, I found out that my Motion to Dismiss Indictment was never properly ruled upon and the gun specification was improperly attached to the underlying offense; Involuntary Manslaughter. I also later found out that many facts in the case were inaccurate, along with the fact that there was no grand jury present at indictment proceedings, thus, constituting what the court referred to as a "dry" indictment. Moreover, there was no Bill of Information that may warrant an indictment lacking the presence of a grand jury. 8. As early as December 6, 2005, I began to file Motion(s) for the discovery because I never received a copy of discovery. Again, I filed for discovery on February 9, 2007. Judge Martin has yet to rule on either motion. 9. On June 4, 2012, I filed a Motion to Set Aside Void Sentence and Impose a Valid Sentence. I argued that the gun specification was improperly attached to the manslaughter charge. I was originally indicted on a Complicity to Murder charge. A firearm specification may be applied to enhance the penalty of a defendant convicted of conspiracy to commit a felony where the defendant provided the firearm to his or her co-conspirator. State v. Dapice 57 Ohio Aup. 3D 99. 566 N E 2D 1261(9' dist. Summit County 1989). However, once the State elected to eliminate my complicity charge, the gun specification should have been eliminated as well. The trial court has failed to rule on that motion. I filed two Judicial Notices, and those too have never been addressed. Judge Martin is very quick to respond to my Motion(s) for Judicial Release, which clearly indicates that my pro se filings are being recognized by the court. 10. Procedendo is an extraordinary remedy, issued by the court of superior jurisdiction, ordering a lower court to proceed to judgment in a case. State ex rel. Ratliff v. Marshall (1972), 30 Ohio
St. 2d 101, 102; State ex rel. Sava v. Riley (1973), 36 Ohio St. 2d 171, 174. A writ of procedendo "is proper where a court has either refused to render a judgment or has unnecessarily delayed proceeding to judgment." State ex rel. Doe v. Tracy (1988), 51 Ohio App. 3D 198, 200; State ex rel Wallace v. Tvack (1984), 13 Ohio St. 3d 4; State ex rel. Jacobs v. Municiual Court of Franklin County (1971), 26 Ohio App. 2D 113, 114, affirmed, 30 Ohio St. 2d 239. An "inferior courts refusal or failure to timely dispose of a pending action is the ill a writ of procedendo is designed to remedy." State ex rel. Thomas v Hoga. No. 09AP-804, (Ohio 10 Dist, 2010, Ohio 1386). 11. In the instant case, procedendo is proper because the trial court has unnecessarily delayed proceeding to judgment on my Motion to Dismiss Indictment, Motion(s) for Discovery, and Motions to Impose a Valid Sentence. Copies of Motions are attached hereto. A Motion to Dismiss Indictment is a pre-trial motion and should have been addressed prior to proceeding to trial or negotiating a plea agreement. If a trial court, over the objection of the defendant, refuses to dismiss an indictment, information, or complaint upon the motion of the defendant therefore, it must state, on the record, its findings of fact and reasons for the refusal so that a reviewing court can determine the propriety thereof: State v. Messenger. 49 Ohio App. 2d 341, 361 N E 2d 465. 3 Ohio Op. 3d 416, 1976 Ohio App. LEXIS 5829 (1976). The trial court abused its discretion when it failed to state its findings, on the record, as to why my Motion to Dismiss Indictment was overruled, if it were even addressed at all. It has been ten years since my October 16, 2002, Motion to Dismiss Indictment has been ruled upon. Therefore, the trial court must proceed to judgment. 12. For all tdze foregoiaag reasons, I seek the following relief from this court: (1) issue a Writ of Procedendo, compelling Judge Steven Martin, to either immediately set an evidentiary hearing
as to why my Motion to Dismiss Indictment was not ruled on, or to issue his findings supporting the dismissal of that Motion, (2) issue an order compelling Respondent to show cause as to why a writ of procedendo shall not be granted in this matter, (3) remand this matter to the Hamilton County Court of Common Pleas for further proceedings in accordance with the requested relief and under an order for a sitting judge, or (4) any further action deemed appropriate by the Court. Respectfully submitted, William D. Boyles, pro se #439-192 CETIFIFICATE OF SERVICE This is to certify that a copy of the foregoing WRIT OF PROCEDENDO was forwarded by regular U.S. Mail to JUDGE STEVEN MARTIN, 1000 Main Street, on this -/-& day of November, 2012
IN THE SUPREME COURT OF OHIO WILLAIM D. BOYLES Case No. v JUDGE STEVEN MARTIN 1000 Main High Street PRAECIPE TO THE SUPREME'COURT OF OHIO: Please serve the WRIT OF PROCEDENDO upon Judge Steven Martin, at the Hamilton County Common Pleas Court, 1000 Main Street, Cincinnati, Ohio, 45202. Respectfully submitted, "- ^-Aa, William D. Boyles, pro s #439-192
IN THE SUPREME COURT OF OHIO WILLAIM D. BOYLES Case No. V. JUDGE STEVEN MARTIN 1000 Main High Street AFFII)AVIT OF VERITY State of Ohio ) ):SS Ross County ) I, William D. Boyles, to solemnly swear and hereby verify and affirm the following statements, and the claims made in the foregoing action of PROCEDENDO are true and accurate to the best of my knowledge. 1. I have personal knowledge of the facts contained in the foregoing action and this affidavit. 2. I am currently incarcerated at, Chillicothe, Ohio. 3. I am the Relator in the foregoing WRIT OF PROCEDENDO. 4. I have made every attempt to obtain the discovery in my case, obtain a valid sentence, and have my Motion to Dismiss Indictment ruled upon. 5. 1 filed several motions requesting the court for relief, and the trail court has not responded.
6. A WRIT OF PROCEDENDO is the the proper remedy. FURTHER AFFIANT SAYETH NAUGHT William D. Boyles Sworn to and subscribed in my presence on this day of November, 2012. Notary Public NOTARY PURLIC MY COMMISSI N EXPIRES MOa J` DAY YEAR T^6Z^
IN THE SUPREME COURT OF OHIO WILLAIM D. BOYLES j Case No. v JUDGE STEVEN MARTIN 1000 Main High Street AFFIDAVIT OF RELATORS CIVIL ACTION FILED WITHIN THE LAST FIVE YEARS PUSUANT TO R.C. 2969.25 I, Willaim D. Boyles hereby declare I have filed no civil complaints in the lase five years, therefore, I am compliant with R.C. 2969.25list the following civil actions filed within the last five years pursuant to R.C. 2929.25. AFFIANT FURTHER SAYETH NAUGHT. William D. Boyles Sworn and subscribed to in my presence on this ^^ day of November, 2012 Notary Public ^ } ^^^^' PUBLIC ^'^^^ ^r; rr '^t a ''+.^,^t.p ;',^^1t^ISS1 EXPIRES.^^^^ DAY^YEAR C90/
IN THE SUPREME COURT OF OHIO WILLAIM D. BOYLES Case No. V. JUDGE STEVEN MARTIN 1000 Main High Street AFFIDAVIT OF RELATORS INDIGENCY PURSUANT TO 2969.25, MOTION FOR WAVIOR OF PREPAYMENT OF FEES AND COURT COST, AND SIX MONTH CERTIFIED CASHIER STATEMENT OF INMATES ACCOUNT. I, Willaim D. Boyles, do hereby swear and affirm that I am without the necessary funds and assets of any kind to support the fees, filing and cost cost in this WRIT OF PROCEDENDO. I hereby request to waiver of prepayment of this action. I have enclosed a certified six month statement of my inmate account, pursuant to R.C. 2969.25. William D. Boyles Noy. Sworn to and subscribed in my presence on this ^ day of Qete2012. Notary Public NOTARY PURLIC ^ MY COMMISSION EXPIRES M0. _j7- DAYo^ YEAR c^