IN THE OH1O SUPREME COURT

TRIAL CASE NO. CR93-7496A

State cx rel. James D. Lawson,Ininate No. 296846Toledo Correctional Institution2001 East Central AvenueToledo, Ohio 43608

RELATOR,

V.

The Honorable Charles.I. Doneghy, Judge,Lueas County Court of Common Pleas,

3"`1 Floor, Courtroom 3700 Adams'I'oledo, Ohio 43604-5678

RESPONDENT.

PETITION FOR AWR1T O!' MANDAMUS

'I'O TTIF, C'LERK: 1'LT:ASE CAUSE THE PEITiON IIEREIN TO I3E SERVED UPONTHE RESPONDENT BY CER7CIFIF,D MAIL AT THE AI)I]RESSINDICA 1'EI) AI3OVF..

The Petition of James D. Lawson, together with the annexed attidavit, respectflilly

shows:

The Relator is now a resident of Lucas County, Ohio, being de.tained as an imnate

at the "Toledo Correctional Institution, in Toledo, Oliio. He also is the Defendant

in Lucas County Case No. CR93-7496A.

2. The Respondent is one of the duly elected Judges ol'the Lucas Counly Court of

Common Pleas and is assigned as the presiding jridge in Case No. CR93-7496A,

State of Ohio v. James D. Lawson, a felony case.

Mr. Lawson recently realized that a Judgtnent Entry of Sentencing filccl in this

case was not a final appealable order because said Judgment was not entered in

compliance with Criminal Rule 32(C).

4. As a result, Mr. Lawson through counsel filed a Motion on December 22, 2009,

seeking issuance of a new entry.

5. The State of Oliio, through the Lucas County Prosecutor, has typically responded

(o such motions within a tiinely period (sometimes after a request for extension)

but has not filed any response to this motion or any other action related to this

motion.

6. '1'he Lucas County Court of Cammon Pleas, Judge Charles J. Doneghy presiding,

lias taken no action with respect to this motion.

In all cases handled by the Lmdersigned counsel for Mr. Lawson, except one other,

judges of the Lucas County Court of Common Pleas have tinicly ruled on motions

of this type.

8. IIowever, in the one (]) similar case handled by the undersigned before Judge

Doneghy, namely State v_ Antonio Gonzalez, Lucas County Common Pleas Court

Case No. CR 2005 2306, Respondent has proven extremely delayed in responding

to Mr. Gonzalez' action.

9. In Mr. Gonzalez' action, Mr. Gonzalez moved the I,ucas County Court of

Cotntnon Pleas to correct a Criminal Rule 32(C) problem, with an additional

problenl of voidness because of errors as to advice and sentencing concei-riing

post-releasc control. That action (for Mr. Gonzalez) was initialed by Motion fiied

on August 31, 2009. The State requested an extension four (4) days later, on

September 4, 2009. T'en (10) days later, Judge Doneghy granted an extension, on

September 14, 2009. Onc (1) month later, on October 14, 2009, the State

requested a second extension, granted by Respondent on October 19, 2009. Ou

October 29, 2009, the State responded, largely agreeing that Mr. Gonz.alez was

entitled to the relief sought.

10. Since October 29, 2009, the case involving Antonio (ionzalez lias received no

response from the court. After over tliree (3) months had passed from the date of

the State's response in the Gonzalez case (agreeing with the defense), which was

over five (5) months after initiation of that pleading, the undersigned contacted

Respondent's courtroom seeking an update, being told to check back in two (2)

weeks, as the motion was before the judge.

11- 1'hree (3) weeks later, the undersigned again contacted Respondent's cotiftroom

and received strange coiriusion from the Criminal Bailiff about the motion,

ultimately with no assurances that anything would ever be done tintely. Over

seven (7) months have elapsed in the Gonzalez matter, with no action by the "l'rial

Com-t, despite an agreement by the prosecution that Mr. Gonzalez is entitled to

relief.

12. In this case, against Mr. Lawson, neither the Court nor the prosecution has taken

any action in the almost three (3) months since the date of the filing of Mr.

Lawson's motion. Mr. Lawson is not prepared to accept this sort of inexcusable

delay, in light of the clear fact that the prior entry is void for violation of Criminal

Rule 32(C).

13. As Mr. Lucas is entitled to a final appealable order in his case, and as Respondent

lias exliibited an apparent reluctance to timely rule on his motion, this action

seeking a writ of mandamus is behig herein pursued as the only available remedy.

14. "1'here appears to be no other plain and adequate remedy in the ordinary coui-se of

law for the refusal of Respondent to file a new sentencing entry or to even grant a

heariuzg on this tnotion, to which relief Mr. Lawson is clearly entitled.

Wherefore, the Relator prays that this IIonorable Court issue a writ of mandatnas

directing Respondent to issue and file a proper and new .Iudgment Hntay of Sentencing that

3

Wherefore, the Relator prays that this IIonorable Court issue a writ of mandanius

directing Respondent to issue and file a proper and new Judgment Entry of Senteneing that

coniplies with Criminal Rule 32(C), or to at a mininium grant a timely hearing and/or ruling on

Mr. I awson's motion requesting the same, as more fiilly set forth in the accompanying

Memorandum of l,aw.

Respectfully submitted,

Kenneth T. Rexforrl & Co., L.L.C.

By:

NETH .J. RERD (40064599)Kenneth J. Resfor & Co., L.L.C.112 North West StreetLinia, Ohio 45801(419) 227-0048 [office](866) 611-7448 [fax]kenrexfi rdia?hotmail.coninfo(a.^rexfordlaw.org

Attorney for Relator fames D. Lawson

4

AFFIDAVIT

1, KLNNETII J. REXFORD, attorney at Law, as an officer of the coiut and Counsel for

the Relator herein, James D. Lawson, after being first duly sworn, attest that I havo read fully the

petition contained hereni and do swear to the facts as contained therein under the pains of

perjury, as I verily believe them to be after afiill and complete investigation.

On this 17 day of :2ZIGi,4C4, 2010, personally appeared before me,

_^,^- .

^^ _ ^ Notary Public, one Kenneth J. Rexford, Attorney at Law, who aher

being drdy cautioned and swonl aflixed his signature according to the Laws oi'Ohio.

otary PublicMy commission expires

5

M>rMORANDUM IN SUPPORT

It has come to the attention of the defense that the sentencing entry filed by the Lucas

County Court of Connnon Pleas in the 1993 case against James D. 1_,awson is and was errantly

drafted, so as to be void. As a result, no final appealable order has issued in this case. "1'o assure

that Mr. Lawson does have his right to a meaningful appeal, and because Mr. Lawson is

cut-rently incarcerated with the Department of Rehabilitation and Correction without a valid and

enforccable order, this matter was brought to the attention of'thc'1'rial Court.

'The error is that the etttty does not comply with Ohio law as to the requisite elemcnts of a

i inal, appealable order in a criminal case, insofar as it does not indicate the plea or the verdict.

The language in the entry is "The Defendant having been convicted oP Rape as charged in

count one," and then sentence is pronounced.

The Ohio Supreme Court, in State v. Baker (2008), 119 Ohio St.3d 197, 2008-Ohio-

3330, ruled that the sentencing entry in a crnnina) case is only a "final appealable order" iP tlie

same is a single document that includes "the plea, the verdict or findings, and 11ae sentence."

Baker, at 197 and 199, 111 atrd 10; see also Crim. R. 32(C) and R.C. 2505.02, cited in Baker.

The single document rule liom Bnker tneans that any other document filed at a different time,

such as a"Judgnnent Entry of Conviction," is ineffective to incorporate these requirements into

the record and to create a final, appealable ordcr. The eleinents of a final appealable order must

all be in that one tinal document. Baker, at 201, ¶17.

In this case, the matter resolved by way of an Alford plea. Hence, the final entry sllould

have included the plea upon which the conviction is based. Baker, at 201, T! 18. Instead, in Mr.

Lawson' enlry, the language only recounted the nature of the conviction but not the plca upon

which the conclusion ot'that conviction derived.

6

The prosecution may counter that the phrasing is suPficient language to meet the Baker

requiretnent that the plea be indicated. However, that argument has been rejected by many

courts. For example, the Fifth District rejected that claim, as to that precise language, in State v.

Mantis (March 11, 2009), Richland County App. No. 07-CA-96, 2009-Ohio-1108) and in other

cases on appeal. Also, the Sixth District rejcetcd that claini, as to that precise language, in State

v. Austin (Feb. 12, 2009), Lucas County App. No. L-09-1011, 2009-Ohio-659 and in other cases

on appeal.

Even the Olrio Suprenie Court has made such rulings, rejecting very similar language.

See, e.g., State ev rel. Culgan v. Medina Cty. Court of Common Pleas (2008), 119 Ohio St3d

535, 2008-Ohio-4609, citing State v. Culgan (2003), 100 Ohio St.3d 1470, 2003-Ohio-5772, 798

N.E.2d 406. In State ex rel. Culgan, the Ohio Supreme Court ruled that mandamus and/or

procedendo is available to compel the Trial Court to issue an order that conlplies with Criminal

Rule 32(C), to enable the accused to actually appeal his case. That case involved a four-yeai-

delay.

Furthermore, this sentencing entry fails to include the findings upon which the conviction

is based. As an Alf'ord plea requires a finding as to the strength of the prosecution evidence, and

as to the plca being to a lesser oflense, this failnre is more than simply as to form.

Thus, it appears that this case lacks a linal, appealable order, which must be remedied by

way of the Trial Court correcting the entry. Hence, Mr. Lawson filed a motion requesting the

same, which has not been addressed in any way for nearly threc (3) montlis.

'I'he defense had also requested a conferenee to discuss this case. 'Ihis is requested

because it appears that the plea was inlproperly accepted in the first place. Mr. Lawson tendered

a plea of Guilty pursuant to Nortli Carolina v. Alfnrd (1970), 400 U.S. 25. 91 S.Ct. 160.

7

However, for an Aljord plea to be accepted, the procedure approved by tbe United States

Supreme Court must be followed.

Consider, for example, a plea of No Contest. If and when such a plea is t.endered, there is

a procedural requir•emetit that the prosecution then state the allegations. At'ler this statement of

the cla.iins, the Trial Court then renders a verdict. That verdict is often Guilty. However, it is the

case that, on occasion, the plea of No Contest results in a verdict of Not Guilty, if tlie prosecution

5tatement of allegation is incomplete or if the statement of allegations does not aniomit to a

violation of the charged offense. Nonethetess, in the event of a No Contest plea, the procedure

niust be followed.

So also, the Alford decision does not stand for the simple idea that a person can enter a

plea of Guilty even though they maintain iruiocence. Rather, Alford considered the Due Process

implications of a person who tenders a plea of Guilty while maintaining iimocence and

specifically allowed this to happen in one situation, and only if a specified procedure is followed

when that situation develops. InAtford, the United States Suprenie Court allowed a change o1'

plea to Guilty despite protestations of innoeencc because there was a "strong factual basis" for

the plea and because the ititerests of the accused "require[d] entry oPa guilty plea," in the context

of a reduction of degree.

In the vast jurisprudencc that has followed, these two principles remain firmly part of thc

"Atford plea." First, there must be some benefit to the accused, typically a reduction of degree.

(See, e.g., State v. Hettry (6`t' Dist., Oct. 30, 2009), Wood County App. No. WD-08-057, 2009-

Ohio-5729.) Second, there must he at least a cursory review of the strength of the State's case.

(See, e.g., State v. Dnnnier ('2"d Dist., Sept. 21, 2007), Montgomery County App. No. 21762,

2007-Ohio-4891.

8

In reviewing the procedures taken in this case, it appears that the plea was not properly

accepted as an "Alford plea." First, the degree of the offense charged did not ehange. It may be

the case that, this first prong of a proper Alford plea was established by the reduction of the

niimber qf counts. However, as every single connt in the Indictment reads verbatim identical,

this argumcnt would be illusory. The original indictment was, itself, fatally delective. (See, e.g.,

Valentine v. Kontelz (6" Cir. 2005), 395 F.3d 626, 03-4027.) It siniply did not provide any due

process notice of what was charged. Ilowever, as each aaid every count was identical, word-for-

word, the AIJ'ord reduction factor seems to be absent.

Second, and perhaps stronger, is the absolute absence of any review by the "I'rial Court of'

the s[rengtb of' the State's case. The actual plea form advice acknowledgenient signed by Mr.

Lawson inakes no concession as to the strength of any evidence, nor does it indicate anything as

to the State's case. In faet, this fornl does not even mention the charge or charges to which Mr.

Lawson was tendering this Alford plea. "t'he actual plea form, wliile actually metitioning the

offense to which Mr. Lawson tendered the Alford plea, mentions nothing as to the strength oI'ttie

State case. The "finding" in the "entry" by the Court inakes no finding as to the strength of the

State's case. 1'here is no way to decipher whether the Trial Court considei-ed the strength of the

"tactual basis" for the Alford plea. '1'he Judgment Entry of Sentencing, likewise is missing any

such findings.

'Therefore, it appears that this Alford plea was irnproperly accepted in the first instance.

RespJactfully, Amitted,

enneth J. R . ford (OOg4599)Attoiney for r. L wson

1dVT 1) UPd3NT()1'IIE CI.F.RK: PI.EASE CAIJSE TIIE PETTI4N III;REIN T{) I3F: SF1' .T1FIE KESP(DN(DEN"d

9

IN THE COIJRT OF COMMON PLEASLUCAS COUNTY, OHIO

STATE OF OHIO,

PLAINTIFF

CASE NO. CR93-7496A

.IUDGE CHARLES J. DONEGHY

V.

JAMES D. LAWSON,

DEFENDANT.

MOTION OF 7'HE DliFFNSF.TO CORRECT STATUS OF VOFD SENTFNCING ENTRY

AND REQl1FST FOR CONFERENCE

Motion as to Sentencing Entry NotFi^

Now cornes the Defendant, by and through the undersigned counsel, and

respectfully moves this Honorable Court to issue a corrected judgment entry of

sentencing.

Tt has conieto the attention of the defense that the sentencing entry filed by this

Honorable Court in this case, on .luiy13, 1994, is and was errantly drafted, so as to be

void. (See attached copy ol' audgment Entry of Sentence.) As a result, no final

appealable order has issued in this case. To assure that Mr. Lawson does have his right to

a meaningftil appeal, and because Mr. Lawson is currently incarcerated with tlie

Department of Rehabilitation and Correction without a valid and enforceable order, this

matter is being brouglit to the attention of this Court.

'I'he error is that the enhy does not comply with Ohio law as to the requisite

elements of a fina1, appealable order in a criminal case, insofar as it does not indicate the

plea or the verdict.

Kenneth T. Rexford Co., L.L.C. 1

The language in the entry is "The Defendant having been convicted of Rape as

charged in count one," and then sentence is pronounced.

The Ohio Supreme Court, in State v. Baker (2008), 119 Ohio St.3d 197, 2008-

Ohio-3330, ruled that the scntencing entry in a criminal case is only a "final appealable

order" if the same is a single document that includes "the plea, the verdict or findings,

and the setttence." Baker, at 197 and 199, ¶1 and 10; see also Crirn. R. 32(C) and R.C.

2505.02, cited in Baker. The single document rulefrom Baker tneans that any other

document filed at a different time, such as a "Judgment Entry of Conviction," is

ineffective to incorporate these requiretnents iatto the record aiidto create a final,

appealable order. The elenients of a final appealableorder must all he inthat one final

document. Baker, at 201, ¶17.

In this case, the matter resolved byway of anAtforrd plea. (See attached copy of

plca paperwork and Indictment) Hence, the final entryshould have included the plea

upon wliich the conviction isbased. Baker, at 201, 1[18. Instead, in Mr. Lawson' entry,

the language only recotwted the natrre of the conviction but tiot the plea upon which the

conclusionAfthat conviction derived.

'1'he prosecution may counter that the phrasing is stifticient language to meet the

Baker requirement that the plea be indicated. IIowever, that argument has been rejectcd

by many courts. For exaniple, the Fit'th District rejected that claim, as to that precise

language, in State v. Manns (March 11, 2009), Richland County App. No. 07-CA-96,

2009-Ohio-1108) and in other cases on appeal. Also, the Sixth District rejected that

claim, as to that precise language, in State v. Austin (Feb. 12, 2009). Lucas County App.

No. L-09-1011, 2009-Ohio-659 and in other cases on appeal.

Kenneth J. Rexford Co. , L. L. C. 2

Even the Ohio Supreme Court has made such rulings, rejecting very siinilar

language. See, e.g., State e.x rel. Culgau v. Medina Cty. Court of C'onlmou Pleas

(2008), 119 Ohio St.3d 535, 2008-Ohio-4609, citing State v. Culgan (2003), 100 Ohio

St.3d 1470, 2003-Ohio-5772, 798 N.E.2d 406. In State ex ret Culgan, the Ohio

Supreine Court ruled that mandamus and/or procedendo is available to compel the Trial

C'ourt to issue an order that complies with Crirninal Rule 32(C), to enable the accused to

actually appeal his case. '1'hat case involved a four-yeaa- delay.

Furthermore, this sentencing entry fails to inelude the flYtdirag.r upon which the

conviction is based. As an Al,ford plea requires a finding as to the strength of the

prosecution evidetice, and as to the pleabeing to a lesser offense, this failure is more than

simply as to forni.

"I'hus, it appears that this case ilacks a final, appealable order, wliiclr must be

remedied by way ot'this Honorable Court correcting the entry.

Motion as to Request for Conference:

Tl1e defense has also requested a cctnference to discuss this case. This is

requested because it appears that the plea was improperly accepted in the first place.

According to the attached documents, Mr. l.awson tendered a plea of Guilty

pursuant to Nortla Carolina vtllford (1970), 400 U.S. 25, 91 S.Ct. 160. IIo ,^eve for an

Alford plea to be accepted, the procedure approved by the United States Supremc Court

must be followed.

Consider, for example, a plea of No Contest. If and whcn such a plea is tendered,

there is a procedural requirement that the prosecution then state the allegations. After

this statement of the claims, the Trial Court then renders a verdict. That verdict is often

lCenneth J. Rexford Co. , L. L. C.

Guilty. Howevei-, it is the case that, on occasion, the plea of No Contest results in a

verdict of Not Guilty, if the prosecution statement of all.egation is incomplete or if the

statenient of allegations does not amount to a violation of the chai-ged offense.

Nonetheless, in the event of a No Contest plea, the procedure must be followed.

So also, the A ford decision does not stand for the sirnple idea that a person can

entei- a plea of Guilty even though they niaintain innocence. Rather, Atford considered

the Due Process implications of a person who tenders a plea of Guilty while maintaining

iimocence and specifically allowed this to happeii in one situation, and only if a specified

procedure is iollowed when that situation develops. In Alforil, the tJnited States

Supreme Court allowed a change of plea to Guilty despite protestationsof innocence

because tllere was a"strong factual basis" forthe]ilea and because lhe intcrests of the

accused "require[d] entry of a guilty plea," in the eontext of a reduction of degree.

In the vast jurisprudence that has followed, these two principles remain firmly

part oC the "Alforrlplea." First, there must he soniebenelit to thc accused, typically a

reductionof degree. (See, e.g., ^State v. flenry(6t1' Dist., Oct. 30, 2009), Wood Cornlty

App. No. WD-08-057, 2009-Ohio-5729.) Second, there must be at least a cutsory review

of the strength of the State's case.(See, e.g., State v. Dnnnier (2°`1 Dist., Sept. 21, 2007),

Montgomery County App, Nii.21762, 2007-Ohio-4891.

In reviewing the procedures taken in this case, it appears that the plea was not

properly accepted as an "Alf'ord plea." First, the degree of the offense charged did not

change. It may be the case that this first prong of a proper Alford plea was established by

thc reduction of the nzonber of counts. However, as every single count in the (attached)

Indictment reads verbatim identical, this argument would be illusory. "I'he original

Kenneth J. Rexford Co., L. L. C.

indictment was, itself, fatally defective. (See, e.g., Valentitte v. Kontelx (6°i Cir. 2405),

395 F.3d 626, 03-4027.) It simply did not provide any due process notice of what was

charged. However, as each and every count was identical, word-for-word, the Alford

reduction factor seems to be absent.

Second, and perhaps stronger, is the absolute absence of any review by this

Honorable Court of the strength of the State's case. The actual plea form advice

acknowledgement sit,nied by Mr. Lawson makes no concessionas to the strength of any

evidence, nor does it indicate anything as to theState's c4se. In fact, this form (attaehed)

does not even mention the charge or charges to which Mr. Lawson was tendering this

Alford plea. The actual plea form, wliileaetually mcntioning the offense to which Mr.

Lawson tendered the Alford plea, mentions nothing as to the strength o1'thc State case.

"1'he "[inding" in the "entry" by the Court makes no finding as to the strength of the

State's case. 'I'here is noway to decipher whether this Honorable Court considered the

strength of the "factual basis" for the Alford plea. The Judgment Entry of Sentencing

likewise i4missing any such Iindings:

'I'h.etefore, it appears that this Alford plea was improperly accepted in the first

instance. As thismay well have additional ramifications, it seoms pn.ident to schedule a

conference as to the entry eztiors,that all of this might be discussed.

Respectfully submitted,

Kenneth J. Rexford (0064599)Kenneth J. Rexford & Co LLC112 North West StreetLima, Ohio 45801(419) 227-0048 (office)(866) 611-7448 (fax)Attorney for Janaes Lrnvson

Kenneth J. Rexford Co. , L. L. C.

CERTIFICATE OF SERVICF,

A copy of the foregoing was sent via regular, U.S. mail this 14"' day of December,2009, to the prosecutor, Julia R. Bates, Esq., Prosecuting Attorney for Lucas County,Lucas County Courthouse, Adams and Erie Streets, Toledo, Ohio 43604; cc: James

Lawson.

KENNETH.I.REXFORD

Kenneth J. Rexford Co., L. L. C. 6