IN THE OHIO SUPREME COURT

STA'T`^ OF OHIO,

Plaintiff-Appellee,

-vs_

Toseph McGrath,

Defendant-Appellant.

^ Supreme Court Case No.,

^ Eighth Judicial District Court of Appeals^ Case No., C.A. 93445

Cuyahoga County Court of Corrimon Pleas^ Case N®s., CR-516312^ CR-524159^

0000000

^PPELL4hLT, JOSEPH MCGRATH'S MEMO . . ^ ^^^ IN SUPPORTOF JURISDICTION

FOR THE PI,AIN'I'IF F-API^ELL,EECuyahoga County prosecutor's OfficeTimothy McCI1nty, Esq.1200 Ontario StreetCleveland, Ohio 44113

FOR THE -APPELLANT

A Avon Be1tien RoadOhio 44044

AU^104 201,4

CLERK OF COURTREME COURT CF aFil®

.,.; ;i.; ff,°'+ F%% a' f, 6 f y^''./'.j r t ^ . ::^'' 0

TABLE OF CONTENTS

^^

E XP f3.TION OF WHY THIS CASE .I.SA CASEt?F PIIBLIC OR GRE4T GENE IdV^°^°.ItESTAND INVOLT^',^A SUBSTANTIAL CONSTITUTIONAL

l1ESTION . . . . . . .. .. . . . . .. . . . . . . . . . . .. . . .... . . . . . . . . . . . . .. . ... . . . . . . .. . .. . .. . .. . . .. . . . . . . .. . .. . . . ... . . . . .1 d7

STATEMENT Ol~` THE l^'^4CT,5` . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . .7

^^GEME1V7" VVgKlJPPl?R7" ( '.^° P"^^^ `1^2^^ ^^LA4 Y3^ . . . . . . . . . . . . . . ...... . . . . . . . . . . . . . . .7® I 5

Proposition afLaw (lnea

en there is an outstanding issue in a direct criminal appea1, the conWctl®n isnotfinal and that appeal ^emainspendlng. State v0 Rzdajl&a9 I 35 C^^oSt.3d346, 995 N.E.2d 1172, at [**P.12-13].

The answer is ,yesl........................................................................................................... ...7-8

Proposltl^^ of Law Two:

Does a trial Court abuse its discretion and c® irPlain Error that is neverwaived, in violatlon of the Ohio and United States Constitution when the Courtunlawfully faals to merge allied o^"f `eyises of slmilar import, pursuant to R. C.294.Id2.5

The answer is yes!...................................... ........................................... ................ ............... 8®13

PMeasitron oLLaz^ Three;

en a trial Court imposes a sentence in Wolation ®f'the allkel offensestatute R.C. 2941.25 €t®es it render the sentence outside the statutory range,^^ntrraty to law, unauthorized by law and void.

The answer is yes!............................................................................................................13-15

COIYCLLSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15

SEI l VICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 5

See (Post Cards Attached, Appx., 1).See (Cover Page Attached,14ppx,, 2^See (July 1, 2014, Journal Enty, Attached, Appx., 3).See (Julyp 23"` 2014, Journal Entry, AttachetlAppx,, 4).

^ NA TItJN OF W Y TH^S CAS'.^ I,^ A CASE OF PIT^LIC ^^ GRFIT GENELN^ ESTAND T VES A S^^^^^^' ^'^:^STI3'UTIO1VAL OllESTION

The IJefendantmAppeiiant, Joseph McGrath, propria persona says this is a jurisdictional

appeal of a felony matter that arose out of Cuyahoga C®uiity, Ohio and its made pursuant to the

Ohio Supreme Court's inherent powers and Ohio Sm0 1L Pa°aco, 5.2, the Ohio and United States

Constitutions. Specif ca.ly, this felony matter arose out of the Cuyahoga County Court of

Common Pleas in State ve Mc^ra#h, CR-5 16312, CR-524159.

Because of the issues raised herein there a motion for the appointment of counsel

accompanying this brief, pursuant to_Qfio SXX R. Pac., 7.01 (D)(2), Ohi^ S.Q. R. P®^ac., 7.09,

the Ohio and United States Constitutions.

This jurasdxctisana;i appeal raises three distinct issues ripe for review:

fLaw One:^MMsition o

When there is an oufttanding issue in a direct criminal appeal, the cotivict€on isnotfinal and that appeal remains pending. State v: Dzelaili a, 136 Ohio St.3d346, 995 N.E.2d 1172, at [**P.I2-13].

The answer is yes!

EMpgsition JLaosp Twoe

Does a trial Court abuse its discretion and commit Plain Error that is neverwaived, in violation of the Ohio and United States Constitution when the Courtunlawfully fails to merge allied offenses of similar import, pursuant to R. C.

.Z94Ia:25.

T"he answer is,yesl

ftr^gosition ®i Law Three:

07ten a trial Court in ^^^s a sentence in violation of the allied offensestatate R.C. 2941.25 does it render the sentence outside the statutory range,contrary to law, unauthorized by law and vraid.

The answer is yes!

I

Based on the evolution of Ohio law this jwisdictional appeal should be accepted for all three

propositions of law. Moreover, in light of the other matters pending before this court for judicial

1255,economy this case should be held pendirig the outcome in ,Stat^ ^^ ^ggeas, Case 2013-

pursuant to Oh^o Sm0o R. Pracd, 7.08 (B)(1)(2)(3), apid/or (5), the Ohio and United States

Constitutions.

This Court is cutrently holding State V. B1ack, 138 Ohio St.3d 1447, and State v. 5cit

138 Ohio St.3d 1432, both pending the outcome of R, supra. This case herein is another

perfect candidate to hold pending the resolution of Raers, supra along with the others

b^cause .....[7"jhis issue is capable ofrepetition and keeps evading review.

In this case, after a trial by jury in State L. _McGrath, CR-516312, CR-524159, a direct

criminal appeal was perfected in the Eighth Judicial Court of Appeals as Case C.A. 93445.

Htially, Mr. McGrath raised 17-Assignments of Errors within his appellate brief, however

after his appellate brief and assignments of effors was filed, he stibsequently discovered that

there was a Jury Verdict Form error based on the law at the tame. As a result of this discovery,

Mr. McGrath filed a inotion in the Eighth Judicial District Court of Appeals with an

accompanying memorand-um ". . ..;^br leave to raise an issue of .Plain Error, lQrim R. 52, (B)9

based on ir^^offeel ^erdictforma, instanter. . <.."

[T]his became the 1 80"' Assignment of Effrsr.

On 6a7a2010, the Eighth Judicial District Court of Appeals ".....Granted Mrm McGrath's

moti^^ and Granted the State leave to respond by June 23, 2010....." See (Post Cards

Attacked, Appx., 1).

On September 23Fj' 2010, the Eighth Judicial District Court of Appeals without juris°dicta®n to

do so unlawfully affirrned Mr. McGrath's direct cra m` . l appeal Case C.A. 93445, without ever

2

addressing all 1 8mA,s;^ignments of Era°ar. St^e %McGrath, 2010pohiom4477, 2010 Ohio App.

LEXIS 3779 (Fk Dist).

The Court of Appeals [O]nly addressed 17 af the 18-Assi ents of error in violation of

^I^l^ A a R. 12 (A), Cr^^ v. &rin ield, (1989), 43 Ohio St.3d 83, 538 N.E.2d 406, &gt^ ^.

&MUin s(1982), 69 Ohio St.2d 3$9, 433 NX.2d 157, the Ohio and United States Constitutions.

Mr. McGrath has a due process liberty interest and equal protection guarantee of having all

assignments of error raised in a direct criminal appeal decided before the appellate court f° i^a1izes

that appeal. The entire appellate process is meaningless if the courts of appeals are only going to

decide the assi .ents of errors they feel like.

lnmediately after the September 23, 2410, Court of Appeals affirmance without deciding all

1$AAssi^ents of errors, Mr. McGrath filed a timely motion for reconsideration, pursuant to

Ohao Aga R. 26 (A), "°....^fi'®r cotirt to render decision on appellant's supplemental 1$'h,

Assignment of Error.. . , "

[O]n October 19* 2010, the Court of Appeal's defliied the motion and refused to decide the

outstanding 1 8'h° Assignment of error in Mr. McGrath's direct criminal appeal. The Court of

Appeals actions are contrary to the Administration of Justice. See (Post Cards Attached, Appx.,

1).

It should be noted that all attempts by Mr. McGrath to compel the Eighth District Court of

Appeals to decide this outstanding Assignment of error has failed.

Subsequently, in another Eighth Judicial District Court of Appeals case that the Court failed

to decide a1l issues in was Sta^^ v. D z^l^l^, 136 Ohio St.3d 346, 995 N.E.2d 1172, at [**P.12m

13], (Reversed and Cause Remanded), wherein the Ohio Supreme Court holds when an

outstanding issue remains on appeal the conviction isn't final and that appeal remains pending.

3

The Ohio Supreme Court remanded the case back to the appellate court to decide the

outstanding issue.

"[W]hen a conviction isn't f^ala1ized through a direct crirrdnal appeal and: that appeal

remains pending because of an outstanding issue, equitable tolling applies." Dzel^r^li^a, 136 Ohio

St.3d 346, 995 N.E.2d 1172, at [**1'.12m13], supra. See also 28 U.S.C. § 2244 (d)(1)(A).

For arguendo, in State a s ftuitt, 2012AOhio91535, 2012 Ohio App.1,EXIS 13 50 (8gh, Dist.), at

[*p.5], the Court held the trial court's failure to dispose of all counts against a defendant in a

single joumal entry is not a final appealable order. R.C. § 250S>02. This same logic applies to the

situation at bar.

Moreover, the Court of Appeals not only failed and/or refused to address all 18 Assi ents

of errors raised; they misconstrued the record and laws in other assi ents of errors.

Specifically in Assignment of Error XV:

The trial Court abused its d^cre&nn committed reversible error and violated

the aappellant's Okio and Tlniteil States Constitutional rights when the Court

unlawfully sentenced appellantfor allied offenses of similar import.

See State v. McGrath, Case C.A. 93445, 201 OmOhia®4477, 2010 Olsio App. LEXIS 3779, (8th'

Dtst.) at [* *P0112].

Based on the intervening Ohio Supreme Court authority ®f,State.va Dzelailila, 136 Ohio St.3d

346, 995 N.E.2d 1172, at [**P.I2mI3], and circumstances surrounding this case, on Febnaarry

27"'' 2014, Mr. ^cGrath filed a motion in the Eighth Judicial District Court of Appeals captioned

"motion for leave to proceed and for the court to r^cA the 9-2362010 mandate andlear for an

enlargement of time and delayed reconsideration based on intervening Ohio Supreme Court

authority of State va &CLa°ll a 136 Ohio St.3d 346, 995 N.E.2d 1172, at [**P.12-131, holds this

4

direct criminal appeal "...is still pending and not final because this court only decided 17 of the

18 assi ents of errors before unlaNvffilly aff ° g the trial court judgment.." See (Cover

Page Attached, Appx-, 2^

Courts have an inherent power to recall their mandates. Calderon v» T7tompson, 118 S.Ct.

1489, 1498 (1998), !Scott va Sinzktarp4 38 F.3d 1547, 1551 (11'h' Cir. 1994), S1mmon.s vo

.l,ock,^grt, 856 F.2d 1144, 1145 (8"'1 Cit. 1988). Or grant delayed reconsideration Deratsche Bank

Nat., Trust C®o v. Kna 2011-Ohio-421 (7"' Dist.). Ohio d4 a R. 14, Q&kIM. R. 26 (A).

Within said motion to recall the mandate, Mr. McGrath raised the issues about the obvious

allied offenses of similar import violations in connection with Cases CR-516312 & CIt.-524159s

pursuant to R.C. § 2941.25, the Ohio and United States ^onstitutions. The trial Court committed

Plain Erraar ^tinL R. 52 (B), by failing to merge the Violafton of '1'emlsGrary Protection Order

with Menacing by Stalking that occurred by the same conduct, against the same alleged victim,

sarne time, with the same animus during the same dates in the indictments and jury verdict forms

in Case CR-516312.

The indictments and jury verdict forns corfirining his obvious claim are attached to the recall

mandate motion.

Moreover, the 2ca^unts of Menacing by Stalking in Case CR-524159 also ^^curred at the

same time, by the same conduct, against the same alleged victim, with the s^e animus during

the same dates in the indictments and jury verdict fargns.

The indictinerats mid jury verdict forms confirming his obvious claim are attached to the recall

mandate motion. An allied offense claim renders a sentence contrary to law, unauthoriZed by laW

and ". . . voicl. ° °°g when a trial court orders a sentence concurrent andfor consecutive in violation

of R.C. § 2929.01 (EE), R.C. § 2929.01 (FF), R.C. § 2929.14, R.C. § 2929.19 (B)(2)(b), R.C. §

5

2941.25, the Ohio and Ir.Tnated States Constitutions.

Moreover, this allied offense violation has unlawfully expanded Mr. McGrath's sentence

beyond what the law allows after merger. A 5-ye^ maximum sentence is now 7-yearst

After the motion to recall mandate remained pending for 5mmonths (without any decis°ionftom

the best of Mr. McGrath's knowledge and belief and/or if tlaere was a decision without service of

any journal eniry or post card notiing anyone of such decisions), Mr. McGrath filed a motion

with the Eighth Judicial District Court of Appeals to proceed with judgment. On July 1s" 2014,

the Eighth Judicial District Court of Appeals denied the motion to proceed with judgment as

moot. Moreover, they never rendered a decision on the outstanding 18''° Assignment of Error,

nor the actual motion to recall the rnandate, nor provided any written reasons for that decision,

pursuant to Ohio Apoa R. 12 (A).

They are evading it. Why? See (July 1, 2014, Journal Erahy9 Attaclaed, Appx., 3).

Because the Eighth Judicial District Court of Appeals refused to render a decision on the

outstanding 18ph, Assi^ent of Error in the direct criininal appeal and render a written decision

as Ohio A mR0 12 (A) requires, and refusal to render any decision for the actual motion to recall

the mandate, Mr. McGrath filed another motion specifically asking the court to render a decision

on the pending motion to recall the mandate that's been pending since February 2013, to no

avail. On July 23'd' 2014, the Eighth Judicial District Court of Appeals denied the motion.

The Court ofAppeals actions are contrary to the Administration of Justice, and a violation of

the Ohio Appellate Rule odf'Fractice and syllabus of the Ohio Supreme Court on these issues. See

(.Tuly 23, 2014, Journal Entry, Att^^^^d Appxa 4)a

Based on the evolution of Ohio law this jurisdictional appeal should be accepted with counsel

appointed, pursuant to Ohira S.Q. R. Prac.a 7.09. Moreover, Mr. McGrath asks that an order for

6

further briefing issue if the need arises, pursuant to Ok1o S.Q. .^ ^ac., 7.08 (B)(1), andlor that

the matter be held pending the outcome of lZ^„ers, supra, pursuant to Ohio S.Q. R. Prac<, 7.08

(B)(2), and/or to enter judgment summarily, pursumit to Ohio S.0. R. Nae. 7>08 (B)(3), anthe

interest ofjustice, equity, and fairrgess, with costs taxed to the Appellees.

llI//ll//llIIIIII!l

STA TEME1^^ 2EI^^ ^IM

In this case, after a trial by jury in State v. ALeGa°ath, Cl:Zm516312, CR®524159, a direct

criminal appeal was perfected in the Eighth Judicial Court of Appeals as Case C.A. 93445. 1 8-

Assigmnents of errors were raised and the Eight Judicial District Court of Appeals unlawfWly

affirmed the trial court judgtnent after ``... . [O]nly deciding 17 of l 8-.Asigmuents of Errors,...

See (Post Cards Attached, Appx., 1).

I'he Court of Appeals actiorz,s are contrary to the Administration of Justice, and a violation of

the Ohio Appellate Rule ofPractice czncl syllabus of the Ohio Supreme Court on these issues.

A. motion to recall the mandate was filed in the court of appeals bringing the outstanding i8d,

Assignment of Error to their attention along with the obvious allied offense claim they

misconstrued in the unlawful affirmance. See (Cover Page Attached, Appx.Q 2)s

Other motions to compel an answer were filed in the Eighth Judicial District Court of Appeals

to render a decision on the recall the :^aiidate motion to no avail. See (Attac3tedj^^rnal Entries,

AppxF3,4)m

A timey appeal to the Ohio Supreme Court followed.

lllf f IIIfIII llI lIIII

AR GI1 .71^'.,^NT IN RSiIPPOR T OF PRQPOSITIONS OF .L^ ^^

Eroya^^^^^^ oLLaw One:

7

When the^e is an outstanding issue in a direct criminal appeal, the conviction isn€atfinal and that appeal remains pending. State va .T3zelailila9 136 Ohio St.3d346, 995 N.E.2d 1172, at [#*P.12-13].

The answer is yes!

Mr.McCarath incorporates pages 1 through 7 herein as if re-written.

On September 23" 2010, the Eighth Juda`cial District Court of Appeals withoutjtar°.isdictiern to

do so unlawfully affirna.cd Mr. McGrath's direct criminal appeal Case C.A. 93445, without ever

addressing all 18-Assignments of Error. S'tate v. McGrath 201 a¢OhYCa-4477, 2010 Ohio App.

LEXIS 3779 (8th° Dist.). The Ohio Supreme Court authority of &ate V. D elaZi:^, 136 Ohio

St.3d 346, 995 N.E.2d 1172, at j**P.12-13], holds this direct criminal appeal "...is still pending

and not fmal because this court only decided 17 of the 18 assignments of errors before

tmflawfully a.ffirining the trial court judgment.." See (Appx., 1,2,3,4, Attached).

ftegsition gtLawa Twoo

Does a tfial Court abuse its discretion and ca . .it Plain Error that is neverwaived, in violation of the Ohio and United States Constitution when the Courtunlawfully fails to merge allied offenses of similar import, pursuant to R. C2941a25^,

Tke answer is yesl

Mr. McGrath incorporates pages l through 8 herein as if re-written.

First, the Ohio Supreme Court in State vt Willlam 2012-C3hflom5699, 2012 0hio LEXIS

3106, holds a reviewing court should review the trial court's R.C. § 2941.25, dctcrmiraation "..cle

, 124 Ohio St.3d 365, 922novo.." Moreover, the Ohio Supreme Court in State v. Unrlerwood

N.E.2d 923, syllabus 11, holds it is Plain Error by the trial court's failure to merge all counts.

Crint It 52 (B). The Sixth District Court of Appeals in State v. 2013-Ohflom5184, 2013

Ohi® App. LEXIS 5395 (e° Dist.) at {116), holds that the court of appeals holds plain cffors or

defects affecting substantial rights may be noticed although they were not brought to the

8

attention of the court. "Plaia^ Effor is the only exception to the res judicata bar as plain errors

are not wa8vable." (.1ratemal citations omitted). The Ohio Supreme Court in State va Wilson,

2011-®hiom2669, 2011 WL 2274628, at (114), holds ",..a sentence that contains an allied

glgro^e v. Burns,offense error is contrary to law..." The tenn contrary to law as stated in C

(1964), 175 Ohio St.3d 437, 195 N.E.2d 8 11, means s`....,^^1^....e ' The Second District Court of

Appeals in State v ?'av1or, 2013-OhioW1074, 2013 Ohio App. LEXIS 952 (2"`" Dist), at {171,

holds if a trial court imposes a sentence that is unauthorized by law, the sentence is void, citing

,5tate v. Allliter, 143 Ohio St.3d 103, 980 N.E.2d 960, at{1l0). See also, State v. Beaslev, 14

Ohio St.3d 74, 471 N,E.2d 774 ("a court has no power to substitute a different sentence for that

provided for by law'")(Sam.e) State v. Earretson, 140 Ohio App.3d 344, 748 N.E.2d 560 (12th,

Dist., at {TS). At the time of sentencing the trial court was required to read R.C. § 2929.01 (EE),

R.C. § 2929.01 (FF), R.C. § 2929.14, R.C. § 2929.19 (13)(2)(b), in pari materia with R.C. §

2941.25. State ex rel !Eaters v. S aetb 131 Ohio St3d 55, 960 N.E.2d 452 at {*P.11 ](statastes

that relate to the same subject matter must be construed in laara materia so as to gave,full effect to

theprvvisaons)e

Accord, State v< Amos, 2014tlOhioR3150, 2014 Ohio LEXIS 1935 (Decided 7-24®2014), at

[*1'.12](felony sentencing statutes must be read as a whole).

A. In Case CR-516312, Counts 1 & 4, is the convictions for Count 1

Menacing by Sta1 '^ g in violation of R.C. § 2903.211 (A)(1) and Coun14, for

the Violation of a Temporary Protection Order, R.C. § 2919.27 (:A)(2)w

See (Case ^'.^ 51 6312, Indictments, Counts 1 & 4, Attached to Recall Mandate Motion,

Appy-, 2).

State L. McGrath, 2010mC3hiod4477 ($^h' Dist.) at [*P.2].

9

The attached indictments for count 1& 4, on the recall the mandate motion alleged that these

2 offenses occurred between March 12d' 2007 thru December 28, 2007. See McGrath, supra at

fh2.

"..... There are no other dates at1eized in the atta,ched indictrnents far Coiants 1& 4. as both

Menacin b St and Vialation of the Temvorar Protection C3rder were co °tted b th^

same cgnductg s^e animus, atzd were reguired to be merged, pursuant t®R.C. § 2941.25.,..."

State v® johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061, syllabus 3, (followed) Stat^ ^

koodson, 130 Ohio St.3d 82, 955 N.E.2d 982.

For arguendo, a concurrent sentenced is not the equivalent of merger. State v< Damrang 129

Ohio St.3d 86, 950 N<E.2d 512, at II17}. Subsequent to a trial by jury, that jury found within

the jury verdict forns attached to the recall the mandate motion, that Count 1 in Case CRa

516312, and Cauiit 4 were both committed at the same time by the same conduct. See (Case ^'.^m

SI b3129 Counts I & 4, J^^ Verdict Fo $ Attackerl to recall the mandate motion, Appx, 3).

This case must be remanded back to the trial court to conduct an allied offense hearing and

for consideration of Jahnson supra in the first instance. Stat^ ^ Cr^el, 2011-Ohio®5893 (9'h£

Dist.) at {141.

In State vs Lawson, 2012-Qh.io-l0SOg 2012 Ohio App. LEXIS 939, at [HN®41, the court held

under R.C. § 2941.25, the court must determine prior to sentencing whether the offenses were

committed by the same conduct. Thus, the court need not perform any hypothetical or abstract

comparison of the offenses at issueiri order to conclude that the offenses are subject to merger.

At [HN-5], the court held in determining whether offenses are allied offenses of similar

import under R.C. § 2941.25, the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one without the

10

^ther. If the offenses correspond to such a degree that the conduct of the defendant eorastituting,

commission of one offense constitutes commission of the other, than the offenses are of sitnilar

import.

If multiple offenses can be committed by the same conduct, than the court must detennirae

whether the offenses were committed by the same conduct. i.e.p "a single act committed with

[** 151, a single state of rnirad."

If the answer to both questions is yes, then the offenses are allied offenses of similar import

and will be rnerged. (emphasis in original).

Again for elarity, the offenses for Count 1& 4 occurred between March 12, 2007 to

December 2007, per the attached Iradictinents and Jury Verdict F®rrns on the recall the mandate

motion on appeal herein.

Compare the exhibits that are a part of the trial eouit record on appeal herein. As held in

6S^ate v. Willzsa 2013-C?hio®2391 (12tF Dist.) at [*P.391. fi` Animus"' is defined for purposes of R.C.

§ 2941.25 (B) [*1'.1 8], as "purpose" more properly immediate motive." (Citations omitted). If

the defendant acted with the same purpose, intent, or motive in both instmees the animus is

identical for both. offenses.

The Jury verdict porraBs for Count 1 at Page 3 of the F®rm, ^onfinns that Mr. Me^'arath was

subject to a protection order at the time of the commission of that offense, in Case CRm516312,

Menacing by Stalking.

Next, is Count 4 at Page 2of t^^ Ju^ Verdict Form, wherein the jury found that the

Violation of the Temporary Protection order occurred during the commission of the offense in

Count 1, Menacing by Stalking, Case C:R-515312.

A pari materia reading of these attached documents on the recall mandate motion eonfmns

11

this material fact requiring reversal forthwith back to the trial caurt.

B. In Case CRn524159, at the convictions for Menacing by Sta ° g that

were both committed against the same person, at the same time at the same

residence and animus rectu1 ° ^ merger, as allied offenses° Count 1 had the

element of trespass and the Count 2 had the element of history of violence, as

part of the furthermores. This is why there were 2 counts for the 9®26-2O08

offenses (TR-946-947, 967)$ as confirmed by the trial court, attached to the

recall mandate motiaan.

Both Counts of Menacing by Stalking occurred by the saxne conduct, at the same ti^e and

place with the same aniinus against the same alleged person. See ('I`Rm946®947, 967).

The [O]nly reason that the State had two counts of Menacing by S °g on the 9-26m2008

date was because one count contained the history of violence and the other trespass in the

fin-thermcares. Animus was the same as defined in Wi, IZLs, supra. In fact the trial Court Judge

Deena R. Calabrese at ('TR®967) confmn.ed that Counts 1 & 2 in Case CFt®5241599 were allied

of'fenses and that Mr. McGrath, herein could not be sentenced separately on those 2ctsunts

because they are ",....Allied Offenses....." State s.&amrong 129 C3hioSt.3d 86, 950 N.E.2d 512,

at I¶17],(c®^cura°ent seratence is not the equivalent of merger). State v. $al1ard, 2013-C3hia-373,

2013 Ohio App. ^^^^^ ^]ja I j [HNa 10]. ^'^°ina, R. 53

However, at the time of sentencing for Case CR-5241593 the trial court Judge committed

Plain E rr®z° and ordered the 2^ounts, Count i& 2 to be served "concurrently" in violation of the

Ohio and United States Constitutions° R.C. § 2941.25, Lamrcan9 Ballcaa°d supra.

See St^^ v. MeGgratlsa 2010-Ohio®4477 (8t'° Dist.) at [HNA41]C`Iri CRa5241599 a 12®montla

concurrent prison term on Counts 1& 2").

Moreover, Case CR.-524159, is also required to be merged because both offenses were

allegedly committed at the saine time as illustrated by the attached documents on the motion to

12

recall the mandate. It was Plain Error by the trial court's failure to merge the convictions as

applicable to each set of facts herein. The sentence is unauthorized by law, contrary to law

andfor void and because all 18-Assignments of errors were not disposed of this obvious error can

be corrected hereira. Z)z^tcrlliia, supra, ^'^°trs^ R. 52 (B). It is very rare that afli appellate court will

afFm a direct criminal appeal and conviction without deciding all of the assi ents of errors

raised. Was the appellate court's actions intentional, inadvertence, bad faith, or other? For

whatever the reason, because of all 18-Assi ents of Errors not being decided coupled with the

intervening Ohio Supreme Court authority Dzelaalila, supra, this unjust situation can now be

corrected in the interest ofjustice, equity, and inherent powers and/or other.

With the mandatory and appropriate merger of the Violation of a Temporary Protection Order

and Menacing by StaWiffig in Case CR-0516312 the maximum sentence the trial court could

have imposed was 5-years. In Case CRd524153 after the mandatory and appropriate merger of

the 2Men.acing by Stalking charges the inaxirnum penalty the court could have imposed was 1-

year. If they were ordered served consecutive the maximum aggregate seratence authorized by

law was 6®years.

Because the trial court failed to properly merge these convictions, the maximum sentence

allawed by law of 6-years has now tumed into now 7-years. That is outside of the statutory

range, contrary to law, unauthorized by law and void.

Novosatlora of Law Three:

When a trial Court imposes a sentence in violation of t1je allied offensestatute R.C. 2941m239 does it render the sentence outside the statutoiy range,contrary to law, u^amtkorlzed by law and void.

The answer is yes!

Mr,1^cGm.th incorporates pages 1 through 13 herein as if fully re-written.

13

The Ohio Supreme Court in Sta^e v. Wilson, 2011-®hi.®m2669, 2011 Wi, 2274628, at 11141,

holds "...a sentence that contains an allied offense error is contrary to Iaw..." The tern contrary

to law as stated in Crove v. Burns (1964), 175 Ohio St.3d 437, 195 N.E.2d 811, means

ylor, 2013-0hio4 074, 2013"b.....void....." The Second District Court of Appeals in State v. Ta

Ohio App. LEXIS 952 (2nt Dist), at {17}, holds if a trial court imposes a sentence that is

unauthorized by law, the sentence is void, citing State v Bilditer 143 0hi® St,3d 103, 9$0

N.E.2d 960, at{114}. See also, St^e v. 14 Ohio St.3d 74,471 N.E.2d 774 ("a court has

no power to substitute a differetat sentence for that provided for by law")(Same) Ltate a.

gar,retson, 140 Ohio App.3d 344, 748 N.E.2d 560 (12t^° Dist., at 118 1. At the titne of sentencing

the trial court was required to read R.C. § 2929.01 (EE), R.C. § 2929.01 (FF), R.C. § 2929.14,

R.C. § 2929.19 (13)(2)(b), in p^^! ma^^eria wit1a R.C. § 2941.25. State ex rel s L.-Spaeth,

131 Ohio St.3d 55, 960 N.E.2d 452 at [*I',i1](statute,s that relate to the same subject matter

must be construed in paa°i materia so as to give full effect to the provisions).

Accord, State v. Anws 2014-Ohiop3160, 2014 Ohio LEXIS 1935 (Decided 7-24=2014), at

[*P.12](^'^Zony sentencing statutes must be read as a whole).

With the mandatcsry and appropriate merger of the Violation of a Teniporary Protection Order

and Menacing by Stalking in Case CR®0516312 the maximum sentence the trial court could

have imposed was 5-years. In Case CIta524159 after the mandatory and appropriate merger of

the 2 Menacing by S 'ng charges the maximum penalty the court could have irnpcssed was 1-

yeaa°. If they were ordered served consecutive the maximum aggregate sentence authorized by

law was 6-years. This allied Offense error has rendered the sentence void. See State v. L!Le,

2013-Ohio-1811, 2013 Ohio App. LEXIS 1692, (1"' I?ist.) in dissent, State v.

2€913-Ohio-4409, 2013 Ohio App.1i:,EXIS 4198(Is, Dist.) in dissent.

14

Because the trial court failed to properly merge these convictions, the maxi^num sentence

allowed by law of 6-years has now tumed into now 7-years.

That is outside of the statutory range, coratrary to law, unauthorized by law and void. Based on

the evolution of Ohio law this proposition of law must be sustained.

CONCLUSION

Wherefore, Mr. McGrath is asking the Ohio Supreme Court to accept jurisdiction over this

jurisdictional appeal, in the interest af justice, and equity, including, but not limited to all costs to

be taxed to the Appellees

8-11-2014-2500 South Avon Belden RoadGrafton, Ohio 44044

A true copy of the foregoing

Prosecutor's Office, Timothy

Street, Cleveland, Ohio 44113.

8-11-2014

sent out toda,y 8-11-2014, to the Cuyahoga County

, Esq., and/or a member of his staff, at 1200 Ontario

15

Case:- 1011-cv-02023-JG t^^e ft: 25-73 Filed: 07116112 9 of 31. PagelD #: 2148

Case No: 934^^

STATE OF OHIO VS. JOSEPHMCGRATH

MOTION BY APPEL.!_ANTp PROwE, F 0 R L '^O B& S E-A L4ISSt1E ^^ E.LAPIV Ef21REASEQ C)N !NCORRECT^R®1GTS EONIS,INSTANTER !S GR4NT'ED.THE S`TA`TELEAVE TO RESPOND BY JUNE23, 2010TO THEAPPELLA^-1-S -NEU1T ISSUE,

YLACtC(V!C)ht, P., J., CONCURMCMONAGLE, C., J., CONCUR5WEENEYf J., P.J.

Lf 81 ^, . .

Case No: 93445

STATE OF OHIO VS. JOSEPHMCGRA i-H

MOTION BY APPE^LANTr PROSE, FOR RECONSIDERATIONAt^^ QOU^^ TL^ #^DEGiS iON ON APPEL"NT^.R

:^ " f^

$.. 00^.2800:0'55zb1zAR Ji9N 08 2^)10

£)E 441 13i4t^^^6

^ ^. ^^rdC^t^QE^19 44113'.,

DateA 06I071260

TO

a^^^^PH ^^GRA1°H,#5743642,4LAKE ERiE CORRECTl^NAL ^NST.'zQ 1 THOMPSG)tl ROADPeO., BOY, 8000^^NN^ ^UT, OH 44030

145^Y^^BSiBffiRid8^I13$^^6'fR^^9g33^9a$Qt &6A311.11

AND Date: 10119/2070

IS DENlED:

BLACkMC3N, P., J., CONCURMC(4^ONA+CLE, C., J., CONCURSWEENEY, J., P.J.

70: 0

JOSEPH MCG "fH,#57C•^^4LAKE ERIE CORRECTIONAL INST.501 THOMPSON ROADP.O. BOX 8000CONNEAUT, OH 44030

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Court of Appeals of Ohio, Eighth District

STATE OF OHIO

-vs-

JOSEPH MCGRATH

County of CuyahogaAndrea Rocco, Clerk of Courts

Appeilee COA NO. LOWER COURT NO.93445 CP CR-516312

CP CR-524159

COMMON PLEAS COURT

Appeiiant

^^^•_

^.

F,

S>s ^Km

Date 07/01/14

;v^OTiOi! NO. 476100

Journal Entry

Motion by appellant, pro se, to proceed with judgment for pending motion to recall the mandate is denied

as moot. The appeal was journalized on September 23, 2010 and the Supreme Court declined jurisdiction

on December 27, 2011.

RELEIUED FOR FILfNG

JUL X 1 2014

CUl'A " NTY CLERKOF ^ U T OF APPFALS

gy Deputy

Administrative J

7lili^3

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00

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Court of Appeals of Ohio, Eighth DistrictCounty of Cuyahoga

Andrea Rocco, CIerk of Courts

STATE OF OHIO

Appellee

-vs-

JOSEPH MCGRATH

Appellant

Date 07/23/14

COA NO. LOWER COURT NO.93445 CP CR-516312

CP CR-524159

COMMON PLEAS COURT

MOTION NO. 476957

Journal En

Motion by appellant, pro se, to render a decision on the pending motion to recall the mandate that's been

pending since February 2013, because this court unlawfully failed to render a decision on all 18

assignments of error before affirming the direct criminal appeal, instanter is denied. There are no pending

motions.

RECEIVED FOR falL1NG

^fIi9T

CUYAHOuA COUNTY CLERK,Gf= TMZ-: I-10 URT QF ^PPE.ALS

P, Y Deputy

ATRICIAzl^ A. BL C NPresiding Judge

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