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IN THE SUPREME COURT OF OHIO

IN THE MATTER OF THECOMPLAINT FOR A WRITOF HABEAS CORPUS

Case No. 10 2 24

COMPLAINT FOR WRIT OFHABEAS CORPUS

ARTIE E. GRISSOMInmate No.A368-337Richland Cor. Inst.1001 Olivesburg Rd.P.O. Box 8107Mansfield, Ohio 44901

Petitioner,

VS.

MARGARET BRADSHAW, WARDENRichland Cor. Inst.1001 Olivesburg Rd.P.O. Box 8107Mansfield, Ohio 44901

Respondent,

W/ AFFIDAVIT OF VERITYAFFIDAVIT OF INDIGENCYCERTIFICATION OF INMATE ACCOUNTAFFIDAVIT OF PRIOR CIVIL ACTIONS

CLERK OF COURTSUPREME COURT OF OHIO

COUNSEL FOR PETITIONERARTIE E. GRISSOM #368-337Pro SeRichland Cor. Inst.1001 Olivesburg Rd.P.O. Box 8107Mansfield, Ohio 44901

IN THE SUPREME COURT OF OHIO

IN THE MATTER OF Case No.

ARTIE E. GRISSOM COMPLAINT FOR AInmate No.A368-337 WRIT OF HABEAS CORPUS

Petitioner,PURSUANT TO RC2725.01

To the Honorable Justices of the Supreme Court of Ohio

1. Petitioner respectfully asserts that he is unlawfully re-

strained of his liberty by the warden of the Richland Cor---

rectional Institution, without any legal authority, but under

the color of a pretended commitment, a true copy of which is

attached.

2. Petitioner's robbery conviction (count #3 of the indictment)

is void ab initio; petitioner's felonious assault and assault

on a police officer (counts I & 5) both sentences has been

completed.

3. On March 30, 2010 the trial court resentence petitioner be-

cause trial court in the year of 1999 failed to impose/in-

corporate postrelease control inside of judgment entry.

4. On the said date mentioned above petitioner was sentence to

serve seven (7) years for Count #1 (Felonious Assault); seven

(7) years for Count #3 (Robbery) and seventeen (17) months for

Count #5 (Assault On A Police Officer), all inwhich were to

run consecutive, while Count #4 (Drug Possession) was ordered

by the court to run concurrent. Counts #2 & #6, petitioner was

found not guilty by the jury at his trial. (See attached copy

of indictment and Attached copy of jury entry).

5. Trial court's March 30th 2010 judgment imposed a seven year

prison sentence upon petitioner for Count #3 (Robbery) but

failed to impose/incorporate an mandatory 3 years PRC in-

side sentencing entry in violation of R.C.2967.28(B), thereby,

causing the judgment to be void.

6. Note: Trial court imposed postrelease control upon petitioner

for Count #2 (Burglary) inwhich petitioner was found not guilty

by a jury on that offense.

7. This Court has held that „"any attempt by a court to disregard

statutory requirements when imposing a sentence renders the

attempted sentence a nullity or void. State v. Beasley(1984),

14 Ohio St.3d 74, OBR 511, 471 N.E.2d 774.

8. This Honorable Court has also held that, "when sentencing a

felony offender to a term of imprisonment, a trial court is

required to notify the offender at sentencing hearing about

PRC and is further required to incorporate that notice into

its journal entry imposing sentence." State v. Jordan, 104

Ohio St.3d 21, 2004-Ohio-60, 817 N.E.2d 864.

9. Because sentencing entry is void for failing to impose PRC

on count #3, robbery, the judgment of the court is therefore

considered by the holdings of this Honorable Court to be an

non-final appealable order. State ea rel. Carnail v. McCormick

2010 WL 2430963,id.at ¶36.

10. Because the trial court's judgment is not a final appealable

order, pursuant to R.C.2505.02 and Ohio Const. Art. IV,§3(B)

(2), the Court of Appeals lacks jurisdiction to review an

appeal in the case.

11. Furthermore, according to Crim.R32(C), the trial court was

required to render the two acquittals (counts 2 & 6) inside

of its judgment.

12. The entire concept of final orders is based upon the rationale

that the court making an order which is not final is thereby

retaining jurisdiction for further proceedings. A final order,

therefore, is one disposing of the whole case. Noble Y. Cole-

well (1989), 44 Ohio St.3d 92, 94, 540 N.E.2d 1381.

13. This Court has held that, "sentencing entry that does not

comply with Crim.R32(C) renders the entry nonappealable. State

ex rel. Culgan v. Medina County Court, 119 Ohio St.3d 535, 895

N.E.2d 805, 2008-Ohio-4609,id.at ¶9.

14. An action is pending from its inception until the rendition of

final judgment. Maynard v. Eaton Corp., 119 Ohio St.3d 443,

895 N.E.2d 145, 2008-Ohio-4542.id.at ¶13.

15. A cause is pending while still open to appeal, and until final

judgment is rendered. Ea parte Ceraig (C.A.2,1921,I),274 F.177,187.

16. The inception of petitioner's case occured on August 24, 1998,

and has been pending every since due to the court's original

void judgment and most recent void judgment.

17. By the criminal case still pending since 1998 up until the pre-

sent, petitioner relies on the holdings inside State v.Colon I,

118 ohio st.3d 26, 885 N.E.2d 917, 2008-Ohio-1624,id.at ¶42,

where it is stated that, "an indictment charging an offense

solely in the language of a statute is insufficient when a spe-

cific intent element has been judicialy interpreted for that

offense."

18. When the section neither specifies culpabilty nor plainly in-

dicates a purpose to impose liability, recklessness is suf-

ficient culpability to commit the offense. Colon I,id.at ¶12.

As demonstrated from the attached copy of the indictment,

the indictment does not charge an offense by the omission of

the mens rea element, recklessness.

19. It is well settled in the state of Ohio, a void indictment

makes the judgment of the trial court equally void for lack of

jurisdiction of the subject matter. State v. Cimpritz (1953),

158 Ohio St. 490, 110 N;:E.2d 416,id.at syllabus by the Court,

paragraph six.

20. The rule permitting a collateral attack upon a judgment because

of the absence of jurisdiction prevails where the want of

jurisdiction appears upon the face of the record, or where the

record affirmatively shows absence of conditions necessary to

give the court jurisdiction. Wainscott v. Young, $g N.E.2d 609, 74 Ohio App.

463, 30 0.0. 73, 43 Ohio Law Abs 149.

21: The rule has been laid down by this Court and is well settled law. There can

be no trial, conviction, or punishment for a crime without a formal and suf-

ficient accusation. In the absence thereof the court acquires no jurisdiction,

a trial and conviction is a nullity. 31 Corpus Juris, 559.

22. It is as much a violation of due process to send an accused to prison follow-

ing conviction of a charge on which he was never tried as it would be to con-

vict him upon a charge that was never made. De Jonge v. State of Oregon, 299

U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed.278.

23. Thercou3L from the inception of petitioner's criminal case never had jurisdic-

tion to adjudicate the merits on robbery allegation, but yet petioner was

convicted by the court and sentence to serve seven years though the court

lacked subject matter jurisdiction.

24. Petitioner has been under imprisonment going on twelve (12) years behind the

trial court's void judgment in this case, he was sentenceto serve an aggre-

gated sentence of fifteen (15) years and five (5) months.

25. Once this Honorable Court has relieved petitionerfrom the bondage of the void

robbery conviction it will have reduced the amount of time down to 8 years and

5 months because of counts 1& 5. However, This Court has held that, "once a

defendant has completed his prison sentence, there can be no further correc-

tions or changes to the sentencing entry. Hernandez v. Kelly, 108 Ohio St.3d

395, 2006-Ohio-126, 844 N.E.2d 301,id.at ¶30.

26. Also in State ex rel. Cruzado v. Zelaski, 111 Ohio St.3d 353, 856 N.E.2d 263,

id.at ¶23, this Court has held that, "the trial court's noncompliance with

the truth-in-sentencing provisions can not be cured by resen-

tencing after the journalized prison term had expired." As the

record will reflect, after vacating the seven years for the

void robbery conviction, and by petitioner already having near-

ly twelve (12) years in under imprisonment, the sentences for

counts 1; 4 and 5 have been completed and the journalized prison

terms have by far expired.

27. NOTE: As there are two documents attached to this complaint show-

ing that, after petitioner had filed two motions with the trial

court in notifying it of the March 30th 2010 void judgment and

requesting to be immediately discharged (also see attached copy

of the motion for discharge), the state and trial court illegal-

ly nunc pro tunc a new journal entry attempting to correct the

error that was made involving the noncompliance with mandatory

sentencing requirement(s).

28. the nunc pro tunc is illegal for the reason of three aspects:

( A ). "Assumming" that the error was indeed an clerical mis-

take, it was a mistake that involved a legal decision and a

court's judgment in which neither of the two can be corrected

by or through a nunc pro tunc. State ex rel. Cruzado v. Zaleski,

111 Ohio St.3d 353, 856 N.E.2d 263, 2006-Ohio-5795,id.at ¶19 & 20.

Also see, Dentsply Intern., Inc. v. Kostas (Cuyahoga 1985),26

Ohio App.3d 116, 498 N.E.2d 1079,26 O.B.R. 327. See, also,

McKay v. McKay (Geauga 1985),24 Ohio App.3d 74,493 N.E.2d 317,

24 O.B.R. 129.

( B ). In its most recent rulings in addressing the trial

courts' improperly imposing postrelease control this Honorable

Court had held that, "the de novo sentencing procedure detailed

in the decisions of the Ohio Supreme Court is the appropriate

method to correct a criminal sentence imposed prior to July 11,

2006, that lacks proper notification and imposition of PRC."

State v. Singleton, 2009 WL 4932715 (Ohio),2009-0hio-6434,id.

at paragraph one of the syllabus of the Court and in the con-

clusion of the Court.

And finally ( C ). This Honorable Court had also ruled inside

Singleton, supra, ¶23, that, "for a sentence that fails to

properly impose/incorporate PRC and the original judgment oc-

curred after July 11, 2006, R.C.2929.191 provides that trial

courts may, after conducting a hearing with notice to the of-

fender, correct the judgment by placing on the journal of the

court a nunc pro tunc entry."

29. As the record do reflect, neither of the two requirements

cited in State v. Singleton had occurred before the trial court

had nunc pro tunc its journal entry in attempt to correct its

fatal error.

RELIEF

WHEREFORE, petitioner prays this Court issue a writ of

habeas corpus, compelling Respondent to immediately release him

from custody of the Ohio Department of Rehabilitation and Cor.,

as he has demonstrated through this complaint (1) trial court's

March 30th 2010 judgment entry is void from the court failing

to impose PRC for count #3, robbery, (2) there is not an final

appealable order in the case, (3) Appeal Court lack jurisdiction

to hear an appeal, (4) by the lack of jurisdiction of the Appeal

Court there is no other alternative legal remedy for relief, (5)

trial court lacked jurisdiction to convict and sentence petitioner

to an robbery conviction (count 3) that the grand jury omitted

the mens rea element, recklessness and (6) petitioner has complet-

ed the other two consecutive sentences, counts 1 & 5, (count 4

was ordered by the court to run concurrent to counts 1; 3 & 5).

Respectfully submitted,

STATE OF OHIO

RICHLAND COUNTYS.S. AFFIDAVIT OF VERITY

I, ARTIE E. GRISSOM, Affiant herein, being competent totestify duly sworn, and advised of the penalty of perjury, do here-by deposed that the facts set forth in the foregoing complaint forwrit of habeas corpus are true and correct to the best of my know-ledge and recollection, and are incorporated hereafter as follows:

1. Affiant states that on March30th,.2010 trial court with-out subject matter jurisdiction resentence him to 15 yearsand 5 months, (seven years for felonious assault, count 1;seven years for robbery, count 3; and fifteen months forassault on police officer, count 5), all in which were tobe served consecutive. ( count 4 was to be served concur-rent to counts 1; 3 & 5).

2. Affiant states that robbery conviction was void ab initiothrough the grand jury never charging the offense forrobbery by the omission of the mens rea element, reckless-ness. State v. Crimpritz ( 1953),158 Ohio St. 490,110 N.E.2d 416. See, also, State v. Colon 1,118 Ohio St.3d 26,885N.E.2d 917,2008-Ohio-1624.

3. Affiant further states that the trial court's sentencingentry is void through the court failing to impose insidethe entry a mandatory 3 year postrelease control term oncount #3, in violation of the holdings inside of State v.Singleton,2009 WL 4932715 ( Ohio), 2009-Ohio-6434.

4. Affiant states that there has not been any final apppeal-able order through the court's void sentencing entry.State ex rel. Carnail v. McCormick,2010 WL 2430963,id.at ¶36.

5. Affiant states that because of the non-final appealableorder the Court of Appeals, pursuant to R.C.2505.02 andOhio Const. Art. IV,§3(B)(2),lacks jurisdiction hear anappeal in the matter.

6. Affiant states that because Appeal Court lacks jurisdictionto hear an appeal there is no other alternative remedy forrelief.

7. Affiant states that State v. Colon I supra is applicablefor his defense because his case is still pending throughthe court's void judgment and non-final order. Maynard v.Eaton Corp, 119 Ohio St.3d 443, 895 N.E.2d 145.

RELIEF

Wherefore Affiant prays that this writ be granted because

he is unlawfully restraned inside prison under a void fobbery con-

viction (count 3) and under two expired journalized consecutive

sentences, (count 1 and count 5), wherefore trial court did not

have authrity to resentence. See, Hernanddez v. Ke11,108 Ohio St.

3d 395, 2006-0hio-126, 844 N.E.2d 301, id.at ¶30 and also,see,

State ex rel. Cruzado v. Zelaski, 111 Ohio St.3d 353, 856 N.E.2d

263, id.at ¶23.

FURTHER, I THE AFFIANT SAYETH NAUGHT.

SignlturL-rof AffiantARTIE E. GRISSOM

Sworn to and subscribed before me a Notary Public this oo day of

Julv, 2010.

Rebecca WilliamsNotary Public

State Of OhioMy ommission Expires

trti "Zo +'3

IN THE COMMON PLEAS COURT OF ERIE COUNTY, OHIO

State of Ohio Case No. 98-CR-421

-vs- Judge BeverlyK. McGookey

oArtie Grissom JUDGMENT ENTRY ^ ^0

-11RESENTENCING

Defendant' ys ^ ^,'.T"tc4. , ^

cn^

---000---

On the 30th day of March, 2010, this matter came before the

Court pursuantto defendant's Motion to Vacate and Correct Void

Sentence; uponl! consideration of the briefs submitted, the Court

finds that defendant's Motion to Vacate and Correct Void Sentence

is hereby GRANTED; present were the Assistant Prosecutor on

behalf of the State of Ohio, the defendant in person and

represented bycounsel, Richard Garand.

The Courtjvacated its judgment entry filed February 16, 1999

and this matter proceeded to resentencing; and the defendant was

afforded all rights pursuant to Crim.R. 32.

The Courti has considered the record, oral statements, any

victim impact statement and presentence report prepared, as well

as the principles and purposes of sentencing under Ohio Revised

Code §2929.11,,and has balanced the seriousness and recidivism

factors of Ohio Revised Code §2929.12.

The Court finds that defendant is not a candidate for

community sanctions. Defendant was advised at the time of

Y60/181y

entering his piea of his right to appeal within thirty (30) days

of his sentence

After prison release, if post-release control is imposed,

for violating post-release control conditions, the Adult Parole

Authority or Parole Board may impose a more restrictive or longer

control sanction, return defendant to prison for up to nine

months for each violation, up to a maximum of 50% of the stated

terms. If theviolation is a new felony, defendant may receive a

new prison term of the greater of one year or the time remaining

on post-releasp control.

Defendant,, as to Count No. 1, heretofore was found "guilty"

by a jury of his peers of the offense of Felonious Assault [F-2;

O.R.C. §2903.11(A) (1)] subject to a penalty of 2, 3,.4, 5, 6, 7

or 8 years; defendant, as to Count No. 3, heretofore was found

"guilty" by a jury of his peers of the offense of Robbery [F-2;

O.R.C. §2911.02 (A) (2) ] subject to a penalty of 2, 3, 4, 5, 6, 7

or 8 years; defendant, as to Count No. 4, heretofore was found

"guilty" by a jury of his peers of the offense of Possession of;

Crack Cocaine CF-5; O.R.C., §2925. 11 (A) and (C)(4))a)] subject toI

a penalty of 61, 7, 8, 9, 10, 11 or 12 months; defendant, as to

Count No. 5, heretofore was found "guilty" by a jury of his peers

of the offense of Assault of a Police Officer [F-4; O.R.C.

§2903.13(A)] subject to a penalty of 6, 7, 8, 9, 10, 11, 12, 13,

14, 15, 16, 17or 18 months; the Court inquired of the defendant

if he had anything to say why judgment should not be pronounced

against him and the defendant made a statement.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by this Court

that the defendant having been found guilty as to Count No. 1,

for the offense of FELONIOUS ASSAULT, a second degree felony in

violation of §2903.11(A) (1) of the Ohio Revised Code, shall be

sentenced to the Department of Rehabilitation and Correction and

conveyed to the Lorain Correctional Institution at Grafton, Ohio

to be imprisoned and confined for a definite sentence for the

term of seven (7) years; defendant having been found guilty as to

Count No. 3, for the offense of ROBBERY, a second degree felony

in violation of §2911.02(A)(2) of the Ohio Revised Code, shall be


conveyed to the Lorain Correctional Institution at Grafton, Ohio


term of seven (7) years; defendant having been found guilty as to

Count No. 4, for the offense of POSSESSION OF CRACK COCAINE, a

fifth degree felony in violation of §2925.11(A) and (C)(4)(a) of

the Ohio Revised Code, shall be sentenced to the Department of

Rehabilitationl and Correction and conveyed to the Lorain

Correctional Institution at Grafton, Ohio to be imprisoned and

confined for a definite sentence for the term of eleven (11)

months; defendant having been found guilty as to Count No. 5,

for the offense of ASSAULT OF A POLICE OFFICER, a fourth degree

felony in violation of §2903.13(A) of the Ohio Revised Code, be


conveyed to thp Lorain Correctional Institution at Grafton, Ohio


term of seventeen (17) months.

The sentences imposed in Count Nos. 1, 3 and 5 shall be

served consecutively; further, the sentence imposed in Count No.

4 shall run concurrent with the sentences imposed in Count Nos.

1, 3, and 5 for a total of fifteen (15) years, five (5) months.

Defendantshall receive 4,237 days credit for time served as

of March 30, 2010; as to Count 4, defendant's Ohio drivers

license shall be suspended for a period of eleven (11) months

from February 11, 1999 - however, this is moot in that the time

has passed; and defendant shall pay the costs of this prosecution

for which execution is awarded.

IT IS FURTHER ORDERED that upon serving his sentence,

defendant shall be supervised after leaving prison for a

mandatory peripd of 3 years of post release control on Counts 1

and 2 to run concurrent.

IT IS FURTHER ORDERED that upon serving his sentence,

defendant may be supervised after leaving prison for a period of

up to 3 years of post release control on Counts 4 and 5 to run

concurrent.

IT IS FURTHER ORDERED that the transfer of defendant intoA

Transitional Control

Court/ will not

IT IS FURTHER^^ ON

ntw

Program(s): X will be Denied by this

be Denied by this Court.

ORDERED that the defendant shall

be/-,X- shall not be recommended for placement into the

intensive program prison [IPP].

Defendant' is hereby notified that, under Federal law,

persons convicted of felonies can never lawfully possess a

firearm. Defendant was further notified that if he is ever found

with a firearm, even one belonging to someone else, he could be

subject to prosecution by federal authorities and subject to

imprisonment for several years. This restriction applies even if

his Civil Rights have successfully been restored.

IT IS FURTHER ORDERED that the institution shall credit

defendant fortime served from the date of sentencing until

reception at said facility.

IT IS FURTHER ORDERED that the Erie County Sheriff's Office

shall transport defendant to the appropriate institution for

service of prison sentence.

IT IS FURTHER ORDERED that the Erie County Sheriff's Office

shall withdrawlany warrants which may have been placed in LEADS

and/or NCIC.

IT IS FURTHER ORDERED that the defendant shall submit to the

collection of DNA specimen as required by law.

IT IS FURTHER ORDERED that the Erie County Clerk of Courts

shall enter, without delay, this Judgment Entry on its journal

pursuant to Crim.R. 32(C).

^'I^c^ e.vG. ^ Yh ^^^JUDGE BEVERL K. MCGOOKEY \Jt

Approved:kaRawwAJ.e0Wws€1KeLEMgr' -

! MEREBYCERTfFY'TNtS7'086A TRUE COPY OF`fHEC3MMAL.FiLED 4 N '6F9l.s OFFtM

THE STATE OF OHIO

Erie County, ss.

COURT OF COMMON PLEAS

Of the Term Jan/Oct. Session in the^ar one thqknd and nine hundred ninety-eight

THE JURORS OF THEL GRAND JURY of of Ohio, within and for the body of the

County aforesaid, on their oaths, in the name and by the authority of the State of Ohio,

do find and present that on or about the 23rd day of Aucust , 1998 , at Erie County,

Ohio Artie Grissom

did knowingly cause serious physical harm to Ricky Brown, in violation of O.R.C.

§2903.11(A)(1) and against the peace and dignity of the State of Ohio. (F-2)

COUNT TWO

That on or about thQ 23rd day of August, 1998, at Erie County, Ohio, Artie

Grissom did, by force stealth, or deception, trespass in 736 Hancock St, Upper,

Sandusky, Ohio, an oc'cupied structure, on in a separately secured or separately

occupied portion of' an occupied structure, when a person, other than an

accomplice of the offender, is present, with purpose to commit therein a criminal

offense, in violation'of O.R.C. §2911.12 (A) (1) and against the peace and dignity

of the State of Ohio.'i (F-2)

COUNT THREE

That on or about the 24th day of August, 1998, at Erie County, Ohio, Artie

Grissom did, in attempting or committing a theft offense, to wit: with purpose

to deprive the owner of certain property, to wit: money and drugs belonging to

Quinton Fisher, knowingly obtain or exert control over such property beyond the

scope of the expressed or implied consent of the owner or person authorized to

give consent, or in fleeing immediately after the attempt or offense, and did

inflict, attempt to inflict, or threaten to inflict physical harm on Quinton

Fisher, in violation of O.R.C. §2911.02(A)(2) and against the peace and dignity

of the State of Ohio. (F-2)

BE xh^b)

COUNT FOUR


Grissom did knowingly,possess, obtain, or use, a Schedule II controlled substance

in an amount betweenone gram and five grams of Crack Cocaine, in violation of

O.R.C. 92925.11(A) and §2925. 11 (C) (4) (b) and against the peace and dignity of the

State of Ohio. (F-4)

COUNT FIVE


Grissom did knowingly cause, or attempt to cause, physical harm to Lt. Hamilton,

a peace officer, while in the performance of his official duties, in violation

of O.R.C. §2903.13(A) and against the peace and dignity of the State of Ohio.

(F-4)

COUNT SIX

That on or about the 24th day of October, 1998, at Erie County,

Grissom did knowingly cause,

Ohio, Artie

or attempt to cause, physical harm to Det. Frost,

a peace officer, while in the performance of his

of O.R.C. §2903.13(A)', and against the peace and

(F-4)

official duties, in violation

dignityof the State of Ohio.

^^ ^Z IPros cuting Attorney

COMMO,< PLEAS COURT OF ERIE COUNT.. OHIO

October Session/January Term, 1998

THE STATE OF OHIOvs. Artie Grissom

CASE NO. 98-CR-421

INDICTMENT FOR:

Felonious Assault• Assault - 2 cts.• Bur lar • Robbe • Drug Abuse

PR, ECIITING ATTORNEY

FOREPERSON OF THE GRAND JURY

A TRUE BILL

THIS BILL OF -INDCTMENT FOUND UPON TESTIMONY SWORN AND SENT BEFORE THE GRAND JURY AT THE REQUEST OF THE

PROSECUTINGATTORNEY.

FOREP R ON O THE GRAND JURY

't£££££££££££££££££££t£t£t££L£t.£L£Lt£L£££LL££££EL£L£L£L£L£££££££££££££££

The State of Ohio, Erie County.

I, the undersigned, the Clerk of Common Pleas in and for saidCounty, do hereby certify that the foregoing is a full, true and correctcopy of the original indictment, with the endorsements thereon, now onfile in my office.

WITNESS my hand and the seal of said Court at Sandusky,

Ohio,this day of

^R!^ qY'^ ^Clerk

byDeputy

IN TIIIB CfIMMON P'LPsA.^, COIJRT 0f' ERIE COUNTY, OHTO

/v:^tdl.u td' r)ti.i.t).

D^: f end^.au:

Cane No. 90-C'R-42].

Judge Beverly K. McGookey

.nJDDGMI3NT 1;NT•RY

.r',T, ^.." ....

---000---G^C?

t7n the 25th day of January, 1999, came the Prosecuting

At•tc..riey on behalf of the State of Ohio and also came the

defcndant in pernon and represented by eounael, Timothy Dempsey,

and came the following nained persons as jurors, to wit:

1. . ^enora ISelbig. 7. Christy S. Gircns:'.. Nan.nearl Greenman 8. Leonard Disalvio3.. Lisa Kay Ball 9. Ruth DeJ.lc4. Sue W. CJ.oak 10. Christine M. G:iardinaS. Anielia A. Dav].in 11. Char.les P. Barnum6. Ainarylics Br.ownell 12. Robert Craig

whc, were cluly sR,rorn according to law.

Thir cause thereupon proceeded to trial on January 26, 1^99,

and (.he jury havi.ng heard the opening statements of counsel and

the testimony adduced by the parties, thei final arguments of

counsel and the charge )f the Court on January 27, 1999; the jury

retired to the jury r.oom in. charge of the Bailiff for

del.iheration; whereupon, they deliberat:ed on January 28, 3.999 and

January 29, 1.999,pind they returrted the following verdict; to wit:

(1) "We the jury- in, this case, find . thedefendant, Artie . Grissom, guilty ofFel.onioies Aonault as to CoitnF No. 1 of theindictmeiit. "

DA+TTD: January 29, 1.999

douRNA

FFB 111999

Exh) b^^ C

la! sandra 11e1bigHanr.ear.t Gr.•eenmanr,.i:ui Kay nalaSu4 W. Cloak

/s! Amelia A.. DavlinI;t! Amarylic:s tarownell

31

!s/ (.4hriaty S. EironsLeonard DisalvicRuth )jel.k

/`C / Cltristine M, Gi.ardina/s/ Charles E. Bar.num/s/ Robert Craig

"Wu the jury irt this case, Eind thedcl;endant . Art:ie Gr.issom, not guilty off)urg;Lar.y as t;o Counl.

• No. 2 of theind9.ctntent:. -1

DATED: January 29, 1999

!sl/s/

Scllldr 1 HelbigNannearl GreenmanLisa ?:ay Bal].St.te A: CloakAmelia A. DavlinAmaryliss F3rowne.ll

/s/

Is/

"Wc. the ^ury in this case, find thedef.endant., A,rtie Gx.•issom, guilty of Robbery

as to Count No. 3 of the ind'zctment."

DATEDt - ,7anttary 29, 1999

/s!/s/

Sandra Ne].bi.gN

!s/ Christy S. Eirons/s/

annearl Greeninani

js/ Leonard DisalvioL sa Kay Ball . /s/ Ruth Delk/s/I9/

Sue W. CloakA eli

/s/Christine M. Giardina

//m a A. Davlin /s/

.Charles E: Barnums Amaryliss Brownell /s/. Robert Craig

(4) "We the jtn,y in this r,zse, find theOEfet.darrt, Artie Grissom, guilty of DrugAbuse as to

Count No. 4 of Ehe indictment."

DATED: January 29, 1999

/s// /

Sandra Nelibi:g Isl Christy S. Eironsn/ /

Nanrtea, Greenmam /s/ Leonaru DisalJios Lisa Kay BallSue W. CloakAmelia A. Davi9.tiAmaryliss Brownell

/s//s/

Ruth DelkChristine M. Giardina'Charles E. BarnumRobert Craig

t^) "We the jury in this case, find thedefendant, Artie Grissom, guilty'of Assaultas to Count No, 5 of the indictment."

DATED: Jantiary 29, 1999

Christy S. Eirons.Leonard Disal.vioRul:li DelltChristine M. GiardinaCharles E. BarnumRobert Craig

.r/

Santlra' tCelb:i.gNanneau.l Greenman

Kxy laal.l.Sue W. Cioalc

/+.t//a//s;/s/

Christy S. EironsLeonard DisalvioRuth DelkChristine M. Giar.dina

/s/ Amelia A. Davlin /s/ Charles E. Barnum

/s/ Amaryli.ss Brownal.l Isl Robert Craig

lot "Wu che jury in thie case, Li.nd that U.tL:+mi.? ton was actirtg wi thi n the scope of. ._i0duties as a Peace Officer on or abottt August24, 1999.1 n'ies".

DATEI): Jantiary 29, 1999

Sandra klt:lbigNannearl GreenmanLisa Kay BallStre W. CloalcAmelia A. DavlinAntaryliss Brownell

Isl Christy S. Eirons/s/ :,aor:ard Disalvio/s/ ttuth Delk/s/ Christine M. Giardina/s/ Charles E. Barnum/s/ Robert Craig

(7) "r1e the jury in this case, find thedefendant, Artie Grissom, not guilty of

Arsatrlt as to Count *To. 6 of theindicttnent:. "

DATi:'D: January 29, 1999

/s/ Sandra ilelbig Christy.S. Eixons/s/ Nannear.l Greenman /s! Leonard Disalvio/e;/ Li.sa Kay Ball IF! Ruth Delk/ s/ Sue W. Cloalc /s! Christirre M. Giardina/s! Amelia A. Davlin Charles E. Barnum/s/ Amaryliss Brownell /s/ Robert Craig

(8) "We the jury in tbis case, find thatDetective Brost was acting within the scopeof his duties as a Peace Officer on or aboutAugust 24, 1998.""Yes".

DATED: Jant.taiy 29, 1999

/s/ Sandra flelbil Isl Cliristy S. Eirons/s/ Nannearl Greennian

% ILeonard Disalvio

/s/ 'Lisa Kay Ball E Ruth Delk/s/ Sue W. Cloalc Cliristine M. Giardina/s/ Ameli.a A. Davlin !s/ Charles E. DarnumIs/ Amaryliss BrovineLl /sJ Robert Craig

jI 7'IL-CC!111)lill.dc!{'Cndant was remanded to t17e cuYStody of the

ol' hl:i.r. County, (ihi.cl; and this cause was continue-d

Pi:nbat i un 1]3partnlent.

pu.>uding a presc.uti_nee invest3.gation by the Erie County Adult

^^hc unK ^1,. >^le.n kJWGE BEVLR Y K. MCGOOKEY

>v5'n J. f3axt+^i.Pr:ssecu^ng AttornEy'

{ tiERES?f CEflTiF`f 1'H63 TO OEA TRUE CQf'Y OF TME OPNt3il3AL.FLED IN THiS OFFICE

t J.W€h„"6N, CkERK 0FCObf Cf$

Date: 06/08/2010 08:23:48 Docket Sheet Page: 6

CRTR5925 Detail

1998 CR 0421 Grissom, Artie

No. Date of Pleadi

Journa

ngs Filed, Orders and Decrees

l Book-Page-Nbr Ref Nbr

Amount Owed/

Amount Dismissed

Balance Due

57 05/03/10 J. E. filed. Transcript fees approved and 6.00 6.00to be

5/4/10paid by audi tor as set forth (3)

617-14 32-617

58 05/06/10 Transc ript filed (One Vol. from recording 0.00 0.00on March 30, 2010 - pgs. 1- to - 19)

59 05/19/10 Motion for court to notify appellant 0.00 0.00counse l that the court's judgmentregarding sentencing entry is not an final

appealable order filed.

Attorney: Pro Se ()

60 05/19/10 Motion to vacate void judgment and 0.00 0.00

immediately discharge defendant from

imprisonment on the grounds that the courthas no jurisdicition to convict and punishaccused who has not been charged with anoffense of robbery by the grand jury, andcourt has no authority to resentence anoffender who has completed bothjournalized sentencesm counts 1& 5 filed.

Attorney: Pro Se ()

61 05/27/10 NUNC PRO TUNC J.E. filed -Typographical 12.00 12.00

error in Judgment Entry filed on March 30,

2010 in that the "defendant shall be

supervised after leaving prison for a

mandatory period of 3 years of post

release control on Counts 1 and 3 to run

concurrent" as set forth. (6) 05-27-2010

619-1213-619

Totals By: Cost 379.76 379.76

Information 0.00 0.00

*** End of Report ***

r^^'b i^ D

RICI [BOSC - UPDATE & CORRECTION]

INMATE # . A368337

NAME . GRISSOM, ARTIE

INST . RICHLAND CORRECTIONAL INSTITUTION

ENTERED . 06/0212010

AGGREGATE SENTENCE: 15.42 TERM

REMARKS: RETAWL/OTC

DATES:È`

2/3 ACTUAL<ÎNO@ÊXFEXPIRATION DEF SENT

e'.,STATED TERM EXP DATEC; l^hf:^ÊEP^STiOî, F3A CiEXP OF MANDATORY TERM

Ohio Department of Rehabilftati. G

e.a^se n^..sA'

BY:BARNETT

ADMISSION DATE: 02/18/1999 FBI#: "BCI#:

Wednesday, June 02, 2010 9:51 AM

COMMENTS: NUNC PRO TUNC CORRECTING COUNTS AS TOPRC RESENTENCING LANGUAGE - NO CHANGE

SSN#:

##=WNACTIVE"- OFFENSE INFORMATION: Att. =1; Con: = 2; Com = 3

98CR421

03/30/2010 IFEL ASSAULT

0 17.00 10 10

0 0

ASSA'ULT

0 ^12 ^ IO © 10

03/30/2010ffij " OS OF DRUGS

0 [4,82 PIO = IO

1 C 12

0 /0 10 /0

1 C

0 /0 10 /0

1 C

2903.114 JERIE I98CR421

0 /0 10/0 IB. MCGOOKEY BAXTER

2911.02 4 ERIE 198CR421

5 12925.11 4 ERIE 98CR421

0/0 10 /0 IB. MCGOOKEY BAXTER 4236

a- .

.^:... a. n..a,^,

^

. .,..... .te i ..e

a.n^ F

AGG STATED TERM SENT YRSR^C Nf]N7^(^^^1J^,'keFYl^..AGG Al SENT YEARS

AGG MAX SENT YEARS1Wft11^-,.e.. .; e e,e e

AGG RVO YEARS

IN THE COMMON PLEAS COURT OF ERIE COUNTY, OHIO

State of Ohio

vs

IP3

CASE NO 491gqg-CR_ LA°^ I ^ I ^^.

Judge Beverly K. McGookeyhr^

Defendant . JUDGMENT ENTRY

&-C3n,,ft Gta^n 1 'p ^'17l +^ ^ â c ctî a Y ^ ^hx t^ ê^ c2 ^n ^2., ce

Lc.4:kgi hRa.ae-n,a a c t aean tf ,^ .tFa dza Te e ^ wn a ^^d e a.^ e^

a.wcf.

L4?m.d,ReP._ MA.I<,a

Ph c¢ ( u w^ ut,-t

9,t,^ 2 / -7^ 2.oU9 @ /0:3 0 a •y,1,

IT IS SO ORDERED.

Prosecuting Attomey

Defense Attomey

(other) -E^,hl b

IN THE COURT OF COMMON PLEAS; ERIE COUNTY,:OHIO

State of Ohio,Respondant

V.

Artie Grissom,Defendant

Case No. 98-CR-421tA ^^^w -

Judge Beverley McGook e 7 ^

MOTION FOR COURT TO NOTIFY^fXPEMANT^COUNSEL THAT THE COURT'S JtY#0Ea, RE-GARDING SENTENCING ENTRY IS N'^T ANFINAL APPEALABLE ORDER:

0000000

Now comes the defendant in this.-.eause,by and through pro se, re-

spectfully request that this court notify appellant counsel in above

case and inform him that judgment.renderedon_March-3Q,;2010isrriot an_

final appealable order for reason(s) stated inside attached Memorandum

incorporated herein.


ARTIE GRISSOM No.368-337 pro seP.O. BOX 8107Mansfield, Ohio,

44901

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent to the

office of the Erie County Prosecutor, at 247 Columbus Avenue in Sandusky,

Ohio, 44870 on the day of ,2010.

Artie Grissom pro se

^

On or about April 14, 2010, defendant in case above received a let-:^!

ter from attorney Richard E. Garrand #0072334 informing him that an no-

tice of appeal and motion for appointment of appellate counsel was filed

in this case. Since I, the defendant in said case, do not know who the

court has appointed counsel for appeal, I am requesting that the court

notify the assign counsel and inform him/her-.that there has not been a

final judgment or final order in the case due to the fact(s) of the court's

judgment is not in compliance of R.C.2505.02 and Ohio Constitution Article

IV, Section 3(B)(2).

It would be unconscionable for us to make the same mistake that was

made in the year of 1999 when the Appellate Court reviewed and affirmed

a non- final appealable order. '

( Trial court's March 30,2010 Sentencing Entry fails to render defendant'sCounts 2 & 6,[burglary and assault], inside judgment in violation ofCrim.R.32(C), and Sentencing Entry does not incorporate mandatory PRCfor Count #3 where court had sentence defendant to serve seven(7) yearsfor count #3, instead trial court imposed PRC for count #2 where de-fendant was found not guilty for count #2 ) See copy of attached March30,2010 certified judgment 'resentencing' entry.



IN THE COURT OF COMMON PLEAS, ERIE COUNTY, 08I0

State of Ohio,Respondant Case No. 98-CR-421

Judge Beverly McGookey

Artie Grissom,Defendant

STAMP "FILED"A^^^^^

MOTION TO VACATE VOID JUDGMENTIMMEDIATELY DISCHARGE DEFENDANT FROMIMPRISONMENT ON THE GROUNDS THAT THECOURT HAS NO JURISDICTION TO CONVICTAND PUNISH ACCUSED WHO HAS NOT BEENCHARGED WITH AN OFFENSE OF ROBBERY BYTHE GRAND JURY, AND COURT HAS NO AU-THORITY TO RESENTENCE AN OFFENDER WHOHAS COMPLETED BOTH JOURNALIZED SENTENCES,COUNTS 1 & 5:

0000000

Now comes the defendant by and through pro se, respectfully moves

this court to vacate its void judgment and immediately release and dis-

charge him from imprisonment pursuant to Crim.R.12(C)(2) and R.C.2921.45.

Defendant in this cause object to both the defect inside of in-

dictment.and to the court having jurisdiction to convict and punish him

for robbery when the grand jury has not charged him of the said offense.

For this court to persist on keeping defendant under imprisonment

on a void conviction it will be in violation of Section 10, Article I of

the Ohio Constitution; R.C.2931.03; R.C.2901.21 and R.C.2901.11.and Crim.R

7(B). More information is given inside attached memorandum incorporatedherein..(copy of indictment attached on back).


CERTIFICATE OF SERVICE

This is to certifv that a copy of the foregoing was sent to trhe officof the Erire Countv Prosecutor, at 247 Columbus Ave. in Sandusky, Ohio,44870 on the day of ,2010.


P.O. Box 8107Mansfield,Ohio,44901

r_ k

#368-337

MEMORANDUM IN SUPPORT

Crim.R.32(C) provide in pertinent part:

A judgment of conviction shall set forththe plea, theverdict, or findings, uponwhich each conviction is based, and thesentence. Multiple judgments of convic-tion may be addressed in one judgmententry. "IF THE DEFENDANT IS FOUND NOTGUILTY...THE COURT SHALL RENDER JUDGMENTACCORDINGLY.... "

A court of record speaks only through its journal entry not by oral

pronouncement or mere written minute or memorandum. Schenley Y. Kauth,

160 Ohio St.109, paragraph 1 of the syllabus (1953). See,also, State ex

rel. Geaua Cty. Bd. of Commrs. v. Milligan,l00 Ohio St.3d 366,2003-Ohio-

6608, 800 N.E.2d 361, ¶20,and %ain v. Marion Prison Wardon(2000), 88 Ohio

St.3d 454,455, 727 N.E.2d 907.

In case at bar, defendant's sentencing entry does not contain the

two not guilty counts( 2 & 6 ) that jury acquited him on at his trial in

the year of 1999, in violation of Crim.R.32(C). State ex rel. Culgan v.

Medina County Court of Common Pleas, 119 Ohio St.3d 535, 895 N.E.2d 805,

2008-Ohio-4609. When a sentencing entry does not comply with Crim.R.32(C)

the entry is an non-final appealable order and any subsequent decision

made by the Appeals Court is a nullity. State v. Mitchell, 2010 WL

1615540,(Ohio App.6 Dist.), 2010- Ohio-1766, ¶9 and 29. Defendant's con-

viction is void because of the court's failure to comply with Crim.R.32(C),

(in both of its judgments, the 1999 which was eventually vacated and the

March 30,2010). Mitchell supra,1[23. See,also, Sta:te v. Sanchez,2009 WL

449120 (Ohio App.2 Dist.),2009-Ohio-813. And State v.Phillips,2009 WL

224961 (Ohio App.5 Dist.), and State v. Goodwin,2007 WL 1427473 (Ohio

App.9 Dist.),2007-Ohio-2343,1[7.

Notwithstanding this court's failure to comply with Crim.R.32(C),

the court is also in violation of mandatory sentencing requirement(s)

once again. The court (though it refused to take notice of timely objec-

tion to an defective indictment and to the court's lack of jurisdiction

at purported resentencing hearing) it resentence defendant to serve

seven(7) years for robbery, though the grand jury never properly indicted

defendant for robbery. Nontheless, senetncing provisions require all 2d

degree felonies be sentenced to a mandatory term of 3 years PRC, pursuant

to R.C.2967.28(B). Though defendant was not found guilty by the 1999

jury for count 2,Burglary, the trial court imposed a term of PRC in its

judgment for the said Burglary(count#2). But yet, after sentencing de-,

fendant to serve seven(7) years for robbery(count#3), the court did not

incorporate any mandatory PRC inside judgemnt for that count,(robbery).

Because the trial court made its mistake regarding this crucial and fatal

error in its judgment entry, defendant's sentence is once again void. A

court of record speaks only through its journal entry'not by oral pro-

nouncement or mere written minute or memorandum, Schenley v. Kauth supra.

Accordingly, not only is defendant's sentence void, it follows that the

judgment entry in which the court attempted to impose that sentence is

also void. State v. Bedford, 2009 WL 2448260 (Ohio App.9 Dist.),2009-

Ohio-3972,1[8. Failure to provide defendant notice of mandated PRC renders

the sentence and the judgment of conviction void. State v. Mitchell supra;

¶22. See,also, Colegrove v. Burns(1964), 175 Ohio St. 437, 438 (stating

that, "[a] court has no power to substitute a different sentence for that

provided for by statute"); see,also State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d306, at ¶29,fn.3 (noting that, "[i]t is axioma-

tic that imposing a sentence outside the statutory range, contrary to the

statute, is outside a court's jurisdiction, thereby rendering the sentence

void");see,also State v. Jordan, 104 Ohio St.3d 21, 2004=0hio-6085, 817

N.E.2d 864 (infering that [a] sentencing court must comply with and satisf}

sentencing provision(s) when it incorporates PRC into a sentencing entry,

[ and ] holding that, °[a] sentence is void when it does not contain a

statutorily mandated term").

An objection as to whether a complaint properly charges an offense

may be raised at any time during the pendency of the action. State v.

Sampson, 2d Dist. No.22214, 2008-Ohio-775, 2008 WL 501593,¶17. An action

is considered to be pending until a final judgment has been rendered.

Maynard v. Eaton Corp., 119 Ohio st.3d 443, 2008-Ohio-4542, 895 N.E.2d

145,1113. Furthermore, where a void order has been entered in a criminal

case, the effect is the same as if no order at all had been made, and the

case necessarily remains pending until la-wfully disposed of by a sentence.

Miller v. Aderhold,288 U.S. 206, 211, 53 S.Ct. 325, 326, 77 L.Ed. 702.

Clearly the court's judgment in this case is without question a

void judgment and the case is still pending until there is an final ap-

pealable order, though the Ohio Rules Criminal Procedure requirement does

state that, "any objection based on defects in the indictment must be

raised before trial", Crim.R.12(C)(2) also provide that there are two ex-

ceptions to the general rule. ( I). DEFECTS IN AN INDICTMENT THAT FAIL

EITHER "TO SHOW JURISDICTION IN THE COURT" OR ( 2 ). "TO CHARGE AN OFFENSE'

these two reasons do not need to be raised prior to trial and can be raisec

"any time during the pendency of the proceeding", and as the record do re-

flect this case is still pending through the court's judgment entrv being

void through the non compliance of Crim.R.32(C) and the noncompliance of

Mandatory Sentencing Requirements (R.C.2967.28(B)).

An indictment that omits the mens rea element of recklessness fails

to charge the offense of robbery & is therefore an exception to the rule

stated in Crim.R.12(C). State v. Colon, 118 Ohio St.3d 26, 885 N.E.2d 917,

2008 WL 1077553 (Ohio), 2008-Ohio-1624,1137.

In case sub judice, the grand jury in the year of 1998 indicted de-

fendant for robbery under R.C,§291I.02(A)(2), which the said statute do

not express the degree of culpability. In order to be found guilty of a

criminal offense, a person must have "the requisite degree of culpability

for each element as to which a culpable mental state is specified by the

section defining the offense. Colon supra,¶11. See,also R.C.§290I.21(A).

R C 2901 21(B) provide in pertinent part:

"When the section defining an offense doesnot specify any degree of culpability, andplainly indicates a purpose to imposestrict criminal liability for the conductdescribed in the section, then culpabilityis not required for a person to be guiltyof the offense. When the section neitherspecifies culpability nor plainly indicatesa purpose to impose strict liability, reck-lessness is sufficient culpability to com-mit the offense." See Colon supra,1[12.

R.C§2911.02(A)(2) does not specify a particular degree of culpabili-

ty for the act of inflicting, attempting to inflict, or threatening to in-

flict physical harm, nor does the statute plainly indicate that strict

liability is the mental standard, In this case, the indictment failed to

charge that the physical harm was recklessly inflicted. The Ohio Supreme

Court has consistently protected defendants' rights to, a proper indictment.

As early as 1855 Chief Justice Ranney stated the importance of including

all the essential elements in an indictment: "The nature and cause of the

accusation are not sufficiently stated to enable the accused to know what

he might expect to meet upon the trial; and it is neither consistent with

general principles nor constitutional safegurads, to allow a man to be

thus put to trial upon a criminal charge in the dark." Dillingham v.

State(1855), 5 Ohio St. 280, 285.

The Ohio Supreme Court follows the Constitution, which provides that,

"NO PERSON SHALL BE HELD TO ANSWER FOR A CAPITAL, OR OTHERWISE INFAMOUS,

CRIME, UNLESS ON PRESENTMENT OR INDICTMENT OF A GRAND JURY." Section 10,

Article I, Ohio Constitution. The material and essential facts constitu-

ting an offense are found by the presentment of the grand jury; and if the

vital and material elements identifying and characterizing the crime has

been omitted from the indictment such defective indictment is insufficient

to charge an offense, and cannot be cured by the court, as such a proce-

dure would not only violate the constitutional rights of the accused, but

would allow the court to convict him on an indictment essentially different

from that found by the grand jury. Harris v. State(1932),125 Ohio St.257,

264, 181 N.E.104. The Ohio Rules of Criminal Procedure, even it reflect

the principle that, "an indictment that fails to include all the essential

elements of an offense is a defective indictment."(Crim.R.7(B2.

R C 2921 45 reads in pertinent part:

(A) No public servent, under color of

his office,employment or authority,

shall knowingly deprive, or conspire

or attempt to deprive any person of

a constitutional or statutory,right.

An indictment must meet constitutional requirements, its`failure°to

do so violates and deprives a defendant of his constitutional right.

Colon supra. In order to be constitutionally sufficient, an indictment

must, first, contain "the elements of the offense charged and fairly in-

form a defendant of the charge against which he must defend-,and, second,

enable him to plead an acquittal or conviction in bar of future prosecu-

tions for the same offense." State Y. Childs(2000), 88 Ohio St.3d 558,

565, 728 N.E.2d 379, quoting Hamling v. United States(1974), 418 U.S.87,

117-118, 94 S.Ct. 2887, 41 L.Ed.2d 590. In the instant case, the indict-

ment did not meet constitutional requirements because it did not include

the essential element recklessness inorder to officially charge an offense

for robbery.

R C 2901 11(A)(1) reads in pertinent part:

A person is subject to criminal prosecutionand punishment in this state if [T]he personcommit an offense under the laws of thisstate, and any element of which takes place

in this state.

Crim.R.7(B) plainly states that an "indictment shall contain a

statement that the defendant has committed a public offense specified in

the indictment." Further, Crim.R.7(B) states, "The statement may be in the

words of the applicable section of the statute, provide the words of that

statute charge an offense, or in words sufficient to give the defendant

notice of all the elements of the offense with which the defendant is-

charged." (Emphasis added.) "[A]n indictment charging an offense solely in+

the language of the statute is insufficient when a specific intent has

been judicially interpreted for that offense." State v.0'Brien(1987),

30 Ohio St.3d 1222, 124, 30 OBR 436, 508 N.E.2d 144, citing State v.Adams

(1980), 62 Ohio St.2d 151, 16 0.0. 3d 169, 404 N.E.2d 144.(See attached

copy of indictment,EXHIBIT "A").

The defective indictment in this cause resulted in several viola-

tions and deprived defendant of a constitutional right to have due process

of law. First, as already mentioned, the indictment omitted the required

mens rea for the crime robbery, therefore the indictment was unconstitu-

tional. Second, there is no evidence in the record that the defendant had

notice that the state was required to prove that he had been reckless in

order to convict him of the offense robbery. Colon supra,1[29 & 30. Third,

As the record reflect through the state's discovery, victom's complaint

was, " Artie Grissom'stabbeV me and robbed me" (see copy of attached

police report,EXHIBIT "B"), from this complaint is where defendant pre-

pared his defense, but at trial and moment the state seen that it could

not successfully obtain an conviction from the particular complaint inside

of its discovery it sought an conviction and successfully obtain one

through nondisclosed evidence,testimony accusing the defendant of injuring

the victom's mouth used as evidence inflicting pysical harm, one of

the key elements of R.C.2911.02(A)(2)(see copy"of attached Appeals Court

judgment entry,EXHIBIT "C"). There is absolutely nothing in the record

that can show that the grand jury was ever aware of this "alledged",

"mysterious" mouth injury. Nontheless, by the essential element reckless-

ness being omitted from the indictment it allowed the court to convict de-

fendant on a allegation different from that was found by the grand jury.

Colon supra,1[38.

Applying Crim.R.7(B) to this case, since the language of R.C.2911.02

(A)(2) does not include the mental element required to commit the offense

robbery, the indictment was required to be in "words sufficient to give

the defendant notice of all the elements." Further, pursuant to State v.

O'Brien supra, the defendant's indictment was required to include the

term recklessly in order to properlv charge the offense. A defendant has

a constitutional right to grand jurv indictment and to notice of all the

essential elements of an offense with which he is charged. The state must

meet its dutv to properTv indict a defendant, when a defective indictment

so permeates a defendant's trial such that the trial court cannot reliablv

serve its function as a vehicle for determination of guilt or innocence,

the defective indictment will be held to be structural error. See State v.

Perr , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,at ¶17. See,also

State v. Colon supra, ¶42 to 44.

Because the mental state of the offender is part of everv criminal

offense in Ohio,(R.C.2901.21(A)(2),(B)), and the indictment in case sub

judice failed to charge an offense for robberv, it failed to invoke the

court's jurisdiction and defendant's incarceration and sentence for robberv

is by law void. State v. Hous, 2004 WL 259261 (ohio App.2 Dist.), 2004-

Ohio-666, 118. The rule permitting a collateral attack upon a judgment be-

cause of the absence of jurisdiction prevails where the want of jurisdictio

appears upon the face of the record, or where the record affirmativelv

shows absence of conditions necessarv to give the court jurisdiction.

Wainscott v. Young, 59 N.E.2d 609, 74 Ohio App. 463, 30 0.0. 73, 43 Ohio

Law Abs.149. "It is as much a violation of due process to send an accused

to prison following conviction of a charge on which he was never tried as

it would be to convict him upon a charge that was never made." De Jonge v.

State of Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed.278.

The rule laid down bv the Ohio Supreme Court is well settled law.

"There can be no trial, conviction, or punishment for a crime without a

formal and sufficient accusation. In the absence thereof the court acquireE

no jurisdiction.whatever, and if it assumes jurisdiction, a trial and con-

viction are a nufllitv. The accusation must charge an offense; it must,_

charge the particular offense for which accused is tried and convicted;

and it must be made in the particular form and mode required by law.

In most jurisdiction, if not in all, a formal accusation, or an accusation

in a particular mode or form, is expresslv required bv constitutional or

statutory provisions, or both, and these provisions must of course be fol-

lowed." 31 Corpus Juris, 559. See,also Stewart v. State(1932), 41 Ohio App.

351, 181 N.E. 111, 12 Ohio Law Abs.74. An indictment which does not allege

facts sufficient to constitute an offense is not just a nullitv but is

completelv void. State of Ohio v. Hayes,1983 WL 7178(Ohio App.3 Dist.).

In the instant case, the state never properlv indicted defendant in

violation of both Crim.R.7(B) and the Ohio Constitution, Article I, Section

s 10,_ and the state subjected defendant to a prosecution and punishment in

violation of R.C.2901.11(A)(1). Therefore, bv law, this court never acquire

jurisdiction over the issue of robberv and therebv is in violation of R.C.

2931.03. In the absence of a sufficient formal accusation, a court acquires

no jurisdiction whatever, and if it assumes jurisdiction, a trial and con-

viction are a nuTlitv. State v. Miller(1988), 47 Ohio App.3d 113, 114,547

N.E.2d 399, 400. .

'The trial court never had authority to receive the grand jury's

defective indictment regarding robbery allegation, because the allegation

did not charge an offense,(R.C.2931.03). Nontheless, the court compelled

defendant to face trial, convicted defendant of robbery through a jury

and then later punished defendant by compelling him to serve a consecutive

seven(7) year sentence imprisonment.

All together the defendant was sentence by the court to serve fif-

teen(15) years and five(5) months through the jury also finding him guil-

ty of felonious assault and a plain assault which carried one consecutive

seven(7) year sentence and the other a seventeen(17) month consecutive

sentence for a combine aggregated sentence of 8 years and 5 months.

However, defendant should not now still be serving prison time from

the year of 1998 when both the felonious assault and the plain assault, °

consecutive sentences, have expired far back as 2007.

Defendant continuing to serve prison time on a seven(7) year sen-

tence for robbery is in reality and by law unconstitutional through the

insufficiency of an defective indictment and the court's lack of jurisdic-

tion to have illegally tried and convicted him upon a charge that was

never made in accordance with law.

When properly vacating the void robbery conviction it will automati-

cally eliminate seven(7) years from an aggregated fifteen(15) yearssand

five(5) month sentence, immediately reducing the aggregated sentence down

to eight(8) years and five(5) months..

By defendant having close totwelve(12) years of incarceration in,

far passing 8 years and 5 months, the court is now without authority to

resentence defendant in attempt to correct or change the sentencing entry,

because after the fact of vacating the void robbery conviction the defen-

dant will have completed the eight years and five month aggregated jour-

;(felonious assault and plain assault running con-nalized sentencangzterm

secutive, while drug possession running concurent).

Although trial courts do retain the authority to correct void sen-

tences and void judgment orders, State v. Garretson(2000), 140 Ohio App.3d

554, 559, provided that the defendant has not served out the term of his

sentence. Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126,1[28,30,32.

In this case resentencing is no longer an option after this court has pro-

perly vacated the void robbery conviction. See State v. Ramey,136 Ohio Misc

2d 24,846 N.E.2d 111,Ohio Com.Pl.,2006, ¶14(where it is held that, "the

opportunity for multiple resentencing hearings has limitations. Hernandez

makes clear that once a defendant has completed his prison sentence, there

can be no further corrections or changes to the sentencing entry.")See,also

State ex rel. Cruzado v. Zaleski,111 Ohio st.3d 353,856 N.E.2d 263,Ohio,

2006, ¶23.(Where it is held that,"the trial court's noncompliance with the

truth-in-sentencing provisions could not be cured by resentencing after the

journalized prison term had expired.") and also,see State v. Simpkins,117

Ohio St.3d 420,884 N.E.2d 568 Ohio,2008, 16.(Where the the Supreme Court

held that, "in cases in which a defendant is convicted of , or plead guilt:

to, an offense for which postrelease control is required but not properly

included in the sentence, the sentence is void, and the state is entitled

to a new sentencing hearing to have postrelease control imposed on the

defendant unless the defendant has completed,his sentence."). As in case

sub judice, the defendant has already completed seven(7) years for felniou:

assault and seventeen(17) months for a plain assault, (the robbery con-

viction is void ab initio and thereby need to be vacated in accordance to

law). By defendant having close to twelve(12) years in under the same case

number, eight(8) years and five(5) months has far passed and expired, and

the trialcourt has no authority over the case nor the defendant, otherthai

to vacate the robbery conviction and immediately discharge defendant from

prison.

IN SUMMARY:

When legally considering the 172 days county jail time credit, de-

fendant in this cause had began serving a void consecutive fifteen(15)

years and five(5) months aggregated sentence far back as 1998.

Though the void sentence and the court's void judgment had been dis-

covered in the later part of the year of 2009, the record reflects the

court attempting to sentence defendant to serve seven(7) years for conse-

cutive sentence on felonious assault; seven(7) years consecutive sentence

for a void robbery conviction; and seventeen(17) month for consecutive sen-

tence for a plain assault; (and a concurrent sentence of eleven(11) months

for drug possession), for an combine total of fifteen(15) years and five(5.)'

months imprisonment.

Defendant has served near twelve(12) years in prison on this case,

and though the court had vacated it original void judgment and attempted tc

resentence defendant on March 30, 2010, its second judgment is now void

r

through the court's noncompliance of Criminal Rule 32(C) and the non-

compliance of Mandatory Sentencing Requirements, producing a non-final

appealable order.

By the court's judgment being void and there has never been a final

order in the case, the court has inherent power and authority to vacate

any void judgment or void conviction.

Defendant has demonstrated through this motion;and with attached

EXHIBITS on back, t;hat the indictment regarding robbery was unconstitutiona

and the court never had jurisdiction,to compell a trial, convict and punish

him on a defective indictment.

Because this case is still pending through the non-final appealable

order, defendant pursuant.to Crim.R.12(C)(2) object through this motion

to the court having jurisdiction over the defective in'dictment and object

to having a defective indictment.

Because defendant's objection is properly invoked and on the basis of

an underlying void robbery conviction and void judgment of conviction, Re-

lief is not a discretional matter, it is mandatory. Orner v. Shalala, 30

F.3d 1307,1310 ( 10th Cir.1994) quoting V.T.A., Inc. v. Airco. Inc., 597

F.2d 220,224 n.8(lOth Cir.1979).

orl gina l orf^^`at - ohio supreme court orl gina l orf^^`at in the supreme court of ohio in the...

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