OHIO SUPREME COURT

STATE OF OHIO

STATE OF OHIO EX. REL.

LA'MON R. AKEMONDayton Correctional Institution

4104 Germantown PikeDayton, Ohio 45417

RELATOR

V.

Jody M. Luebbers,et.al (Judge)

COMMON PLEAS COURT

HAMILTON, COUNTY, OHIO

485 Courthouse 1000 Main St

Cinati, Ohio 45202

CASE NO.

^Q,

11-1149ORIGINAL ACTION FORWRIT OF MANDAMUS

TRIAL CASE NO. 0309830COMMON PLEAS COURT

HAMILTON, COUNTY

PETITION FOR WRIT OF MANDAMUS

Now comes Relator's, La'Mon R. Akemon, acting pro se, who having no other remedy at law,

respectfully request that this Honorable Court pursuant to Article IV, Section 3(B)(1)(b) of the Ohio

Constitution, and O.R.C. 2731.02 invoke its original jurisdiction and issue herein the Great Writ of

Mandamus upon Honorable Judge Jody M. Luebbers, Common Pleas Judge, located in Hamilton

County, Ohio, herein the responsible party; and command the same to carry out its legal duties and

obligation to Relator's under MOTION TO STAY ENTRY OF ANY JUDGMENT FROM THE

HEARING HELD ON JUNE 15, 2010 AND RECALL THE DEFENDANT FOR A HEARING

THAT COMPORTS WITH DUE PROCESS AND CRIM.R. 32.1. To treat Relator's Motion To

Withdraw his Guilty Plea from a Void Judgment as a pre-sentence motion, and a hearing should be

"freely and liberally granted." Pursuant to the command, charge, ordered and Injunction by the

Ohio Supreme Court in State v. Xie (1992), 62 Ohio St. 3d 52, State v. Boswell (2009) 121 Ohio St.

3d 575, Simpkins (2008) 117 Ohio St. 3d 420 and Bezak (2007) 114 Ohio St 3d 94.

The Court may, pursuant to O.R.C.2731.02, issue any Writ not specifically provided for or

prohibited by statute, necessary to enforce the administration of justice.

For reason more fully explained in the accompanying memorandum in support. Relator's prays

his is granted as law and justice are required.

Respectfully Submitted,^

CLERK 01' COURTUPPEIV1IE COURT OF OHIO

dLA'MON R. AKEMON pro ,0

MEMORANDUM IN SUPPORT

On March 8, 2004 the Relator's entered into a plea of guilty to trafficking in cocaine, (2) two

counts, felonies of first degree.

On April 30`n, 2004 the Relator's was sentence by the trial court to (2) two concurrent ten (10)

years terms of imprisonment.

The Relator's challenge the conviction several time's into the FIRST DSTRICT COURT OF

APPEALS case No. C-040284, C-060998, C-070829. C-080443.

On October2l, 2009 Realtor filed a Notice Of Appeal into the FIRST DISTRICT COURT OF

APPEALS case no. C-090749.

On Apri16, 2010, the FIRST DISTRICT COURT OF APPEALS remanded Relator's back for

re-sentence pursuant to Relator's original sentence was Deemed Null and Void.

Relator's filed on April 19, 2010 a Crim.R. 32.1 Motion To Withdraw Guilty Plea.

Relator's sent by U.S. Mail on June 9, 2010 from Dayton Correctional Institution an Motion ToVacate The Plea Enter on On March 8, 2004 for Lack Of Jurisdiction filed on June 15, 2010.

(See. Ex. A)

Relator's was transported on June 9, 2010 at 12noon by Hamilton Co. Sheriff Deputy to the

Hanulton Co. Justice. (See Ex. B)

On June 15, 2010 the Relator appeared before the Court for what Relator's believe was granted,

to Withdraw Relator guilty plea enter on March 8, 2004.

Relator's attempted to Inform the court of said Motion To Vacate but, the court muzzled

Relator's . Claiming no such Motion had been filed, and Threated Relator's with sanction of contempt.

(See Ex. C)

The Court denied Relator's Motion To Withdraw his plea, and re-sentence Relator's.

STATEMENT OF FACTS I

Relator's did not know Prosecutor had deliberately and maliciously filed an Motion Of

Opposition on June 14, 2010, to Relator's Crim.R. 32.1. Exactly (21 hrs.) before the schedule hearing to

held on June 15, 2010. Relator's did not receive the motion until he was transported back to D.C.

Institution and received proof of service on June 18, 2010. (See Ex. B)

Relator's represents to this Honorable Court. That Relator was house at the Hamilton Co.Justice Center, only a(100yards) away. When Prosecutor deviously and deceptively filed his Motion of

Opposition to Relator Crim.R. 32.1, and sent proof of service to Dayton Correctional Institution.

I

Both the Court and Prosecutor were fully aware of the schedule hearing on June 15, 2010.

(See Ex. D)

Relator's represents to this Honorable Court. That Relator's Crim.R. 32.1 was filed on April 19,

2010 with qo reply from the prosecutor. (See Ex. E)

The Court nor the Prosecutor never tried to Inform Relator of Motion Opposing his Crim.R.

32.1 at the hearing on June 15, 2010. Thus, under govern Ohio Rules of Practice and Procedure of the

Court: Rule 14 Motions, memorandum and procedure thereon

Any motion and memorandum which is not promptly served on opposing counselafter the

filing thereof shall be subject to being stricken from the files.

Thus the court violated a well Inveterate Code of Judicial Conduct by not apprising Relator of

late filing, and show Impartiality, Bias and prejudice. Canon 1 andRule 2.3.

Relator's represents to this Honorable Court. That Relator 6' Amend. To the U.S. Const. To

have effective assistance of counsel were violated, as well as Ohio Rules of Professional Conduct by

Public Defender, whom Relator's meant only (5min) before the hearing, and did not apprise Relator's of

prosecutor filing on June 14, 2010. Nor, did the court are prosecutor try to apprise Relator's of said

Motion file on June 14, 2010 opposing Relatot's Crim.R. 32.1 on June 15, 2010.

Ohio Rules of Professional Conduct Client-Lawyer Relationsh

Rule 1.4 Communication

p

(a) A lawyer shall do all of the following:

(1) promptly inform the client of any decision or circumstance with respect to which the client's

informed consent is required by these rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be

accomplished;

(3) keep the client reasonably informed about the status of the matter.

(This the Attorney did not do)

According to the Code of Judicial Conduct: Canon 3 A judge shall perform the duties of

judicial office impartially and diligently-Superseded ( This the Court Did Not Do)

Canon 4 A judge shall avoid impropriety and the appearance of impropriety in all of the

judge's activities-Superseded ( This the Court Did NotDo)Canon 2. a Judge Shall Perform the Duties of Judicial Office Impartially, Competently, and

Diligently.Rule 2.2 Impartiality and fairness: To ensure self-represented litigants the opportunity to have

their matters fairly heard, a judge may make reasonable accommodations to a self-

2-

represented litigant consistent with the law. (This the Court Did Not Do)

This was not the first time that Relator had experience such Malfeasance from the court and

prosecutor. Point and Case: 173 Ohio App.3d 709, 880 N.E.2d 143, 2007-Ohio-6217

L The Court Erred in Failing to Permit a Reply under Loc.R. 14(B)

Loc.R. 14(B) of the Court of Common Pleas of Hamilton County provides in relevant portion

that a"memorandum contra to [a] motion shall be served * * * within ten days from the date thememorandum in support of the motion * * * was served," and that "[a] reply memorandum may

be served and filed within seven days of the service of the memorandum contra." The state filed

its memorandum in opposition to (Relator's) Akemon's October 2006 motion on October 25,

2006. Loc.R. 14(B) afforded (Relator's) Akemon seven days to file a reply to the state's

opposing memorandum. But the trial court overruled ( Relator's) Akemon's motion on October

26, thus precluding him from filing a reply. We, therefore, conclude that the trial court erred

when it overruled (Relator's) Akemon's motion before he could reply to the state's opposing

memorandum. (Prosecutor was procedurally Time Bar to reply to Relator Motion under

this rule) (The court failrd to allow Relator to reply)

This Honorable Court must recognize on it own Sup.R.5 that clearly state:

(A) Adoption of Local Rules

(1) Nothing in these rules prevents the adoption of any local rule of practice that promotes the

use of any device or procedure to facilitate the expeditious disposition of cases. Local rules of

practice shall not be inconsistent with rules promulgated by the Supreme Court.(2) A local rule of practice shall be adopted only after the court or division provides appropriate

notice and an opportunity to comment on the proposed rule. If the court or division determines

that there is an immediate need for the rule, the court or division may adopt the rule withoutprior notice and opportunity for comment, but promptly shall afford notice and opportunity for

comment.(3) Upon adoption, the court or division shall file a local rule of practice with its clerk and the

clerk of the Sunreme Court. On or before the first day of February of each year, each court or

division of a court shall do one of the following:(a) File with the clerk of the Supreme Court a complete copy of all local rules of the court or

division in effect on the immediately preceding first day of January;(b) Certify to the clerk of the Supreme Court that there were no changes in the immediately

preceding calendar year to the local rules of the court or division.(B) In addition to local rules of practice adopted pursuant to division (A)(1) of this rule and anyother Rule of Superintendence, each court or division, as applicable, shall adopt the following

by local rule:

The first sentence of division (A)(3) incorporates and modifies the former requirement that a

court or division file local rules upon adoption with the clerk of the Supreme Court. Theremainder of division (A)(3) contains a new requirement that each court and division annually

file a complete set of its local rules with the clerk of the Supreme Court or certify that therewere no changes to the local rules in the prior calendar year. Together with the requirement that

local rules be filed with the Supreme Court upon adoption, this provision will ensure thai the

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Supreme Court has a current, comprehensive set of local rules adopted by each court or

division.

The rule specifically states that courts may adopt local rules restricting the volume of casescounsel may undertake. This provision should be read in light of Rule 16 relating to conflicts in

trial court assignment dates, continuances and engaged counsel.Local rules of practice should not be inconsistent with rules promulgated by the Supreme Court

and should be filed with the Clerk of the SuuremeCourt. See Civ. R. 83 and Crim. R. 57.

Local court rules must be consistentlv enforcedwhere no reasonable allowance is made for

construction of therule. (Annotation from former C P Sup R 9.) State v Turner (Clarlc 1983)

10 Ohio Anp 3d 328

Ordinarily, local rules are designed to facilitate and expedite the disposition of cases, andpossibly the local rule upon which the Defendant's rely should be amended to afford the trial

court wider discretionary authority, but in its present form, the rule makes no reasonable

allowance for construction. For obvious reasons,this court cannot sanction the "selective

enforcement" of local rules. Onthe contrary, the enforcement of a rule established by the court

must becharacterized with consistency if the rule is to retain its integrity, because the only

fair and reasonable alternative to consistent enforcement is complete abandonment.

The trial court once again illustrate it disregard for Ohio Rules and Code of JudicialConduct: Canon 2. A Judge Shall Perform the Duties of Judicial Office Impartially,

Competently, and Diligently.

Rule 2.2 Impartiality and fairnessA judge shall uphold and apply the law, and shall perform

all duties of judicial office fairly and impartially.

Relator's Must represent to this Honorable Court. That Relator never had a opportunity to reply

to said Motion filed on June 14, 2010 according to (Loc.R. 14 (B). The court mustconsistently

enforced this rule with no reasonableallowance at All.

The Court and Prosecutor distinctively demonstrate that they are completely exempt from all

Ohio Rules of Practice and Procedure of the Courts, and have no Intention to comply to the

govern rules of the courts.

Relator's received his time stamp copy of Motion To Vacate Plea filed on June 15, 2010 at

10:09p.m. in which Relator mail on June 9, 2010. (See Ex. A)

The court claim there was no proof of filing when they check. (See Transcripts from June 15,

2010 (See Ex. C)

Relator's must confide to this Honorable Court. That Relator Motion To Vacate, was Indeed

filed mysteriously appearing on the appearance docket as (Filing). (See Ex. E)

^

Thus, let the record reflect. That all Relator's Motion/Petition over the last (7yrs.), have always

appear on Appearance Docket in the Correct Caption/Title of each said Motion/Petition was filed. (See

Ex. E)

Relator's contacted the Clerk of Court Office to have Motion To Vacate, properly reflect the

caption/title in which Motion was submitted. Clerk Inform Relator , that the Motion to Vacate was order

by the Court and Prosecutor to be filed that way as (Filing). (See Ex. E)

Relator's filed on June 25, 2010 a Motion To Stay Entry Of Anviud^ment from The

Hearing Held on June 15 2010 And Recall The Defendant For A Hearing That Comport With

Due Process And CrimR. 32.1. (See Ex. F)

Relator's filed on August 6, 2010 Motion To Proceed And To Expedite Judgment Pursuant

To Crim.R. 47 (See Ex. G)

Relator's filed on October 15, 2010 Motion To Take Judicial Notice Of Sup.R. 40 And To

Proceed To Judgment. (See Ex. H)

Sup R 40 state: (A) Review; dismissal; rulings.

(A) Review; dismissal; rulings.

Each trial judge shall review, or cause to be reviewed, all cases assigned to the judge. Cases

that have been on the docket for six months without any proceedings taken in the case.

All motions shall be ruled upon within one hundred twenty days from the date the motion

was filed, except as otherwise noted on the report forms.

Reporting.Each judge shall report to the administrative iudEe decisions that have not been ruled uponwithin the applicable time period. The administrative judge shall confer with the judge who has

motions pending beyond the applicable time period and shall determine the reasons for the delay

on the rulings. If the administrative judge determines that there is no just cause for the delay, the

administrative judge shall seek to rectify the delay within sixty days. If the delay is not rectified

within sixty days, the administrative judge shall report the delay to the Case Management

Section of the Supreme Court. ( The administrative judge never reported this Delay to the

Case Management Section of the Supreme Court as stated by Sup. R.40.)

Relator's filed on October 15, 2010 into the First District Court of Appeals a Motion To Remove

The Instanter Appeal From The Accelerated Calender And Stay Adjudication Pending Disposition Of

Trial Court Motion. (See Ex. I)

The Administrative Judge did nothing to adjudicate case of Relator's Motion that was on the

Docket for over (11 months) (See Ex. E)

Both the trial judge and administrative judge were in strict violation of Ohio Codeof Judicial

s

Conduct that state:, Canon 2. a Judge Shall Perform the Duties of Judicial Office Impartially,

Competently, and Diligently.Rule 2.5 Competence, diligence, and cooperation

A judge shall perform judicial and administrative duties competently and diligently and shall

comply with guidelines set forth in the Rules of Superintendence for the Courts of Ohio.

(This They Did Not Do)

A judge shall cooperate with other judges and court officials in the administration of court.

A judge should seek the necessary docket time, court staff, expertise, and resources to

discharge all adjudicative and administrative responsibilities. (This They Did Not Do)

In disposing of matters promptly and efficiently, a judge must demonstrate due regard for the

rights of parties to be heard and to have issues resolved without unnecessary cost or delay. A

judge should mor itor and supervise casesin ways that reduce or eliminate dilatory practices,

avoidable delays, and unnecessary costs. (This They Did Not Do)

The Relator must confide to this Honorable Court. That the trial court has demonstrate. It will

not rule on Pro-Se Litigant Motion. Unless Order by the Appellate court. In which again is a Violationof Ohio Code of Judicial Conduct. In disposing of matter promptly, efficiently and avoid delays and

unnecessary costs.

Relator's through his own Due Diligency tried to advise both the trial court and Appeals court of

the Malfeasance that occurred and all pending Motion. ( To No Avail)

Furthermore, let the record reflect that the trial court did not loose Jurisdiction to Rule on All

pending Motion from Relator. Until PRAECIPEwas filed into the First Dist. Court of Appeals by

prosecutor on November 4, 2010. Well beyond the (120days) requirement of Sup. R. 40. (See Ex. J)

Plaintiff finally file his brief on November 12, 2010. Only (46 days) short of a entire year.

Relator's was denied a opportunity to reply to plaintiff brief. Claiming Appeal was on the

accelerated calender. (See Ex. K)

Relator's represents , the Plaintiff received considerable preferential treatment from the court.

Allowing numerous extension of filing time. Over a (11 month ) period. The purpose of App.R. 11.1, is

to eliminate delay and unnecessary expense in effecting just decision on appeal because some cases don

not require as extensive time.

Relator's appeal was Dismiss on December 22, 2010.

Relator's represents to this Honorable Court. That Relator apprise the Appeals Court on January

10, 2011 in his Motion For Reconsideration PursuantTo App. R. 26(A). That under Loc. R. 14(B)

that Relator should be brought back and allow to reply to the erroneous, malicious late filing by

(0

prosecutor Opposition Opposing Relator's Crim. R. 32.1. (See Ex. L)

Relator's filed a Notice Apprising The Court of Timely Filing Motion For Reconsiderationbecause on hindsight It would appear. That Relator Reconsideration filed on January 10, 2011, would be

procedurally time bar from said Dismissal of Relator appeal on December 22, 2010.

Relator's must admit to this Honorable Court. That Relator had anticipated once again such

malfeasance and deception from the court and prosecutor and sent the Motion For Reconsideration

(Certified Mail). (See Ex. M) To avoid what hannen to Relator Motion To Vacate filed under filing.

Motion For Reconsideration was overruled as not well taken.

UNEQUIVOCAL AND UNDISPUTABLE FAg.TS ON THE RECORD

STATEMENT OF FACTS II

Original Transcripts Are Filed In The Ohio Supreme Court under (SC. 05-0165)

Jan 8, 2004 Allege drug transaction with C.I, there is no substantiation (Proof), of an

transaction and nor was any drugs remove from Relator person or property.

Fact: March 8, 2004 plea hearing! Judge state that as long asRelator appears for sentence, the

State of Ohiowould seek for Relator to withdraw the plea with the MDO spec, and re enter a

plea to F-1, carrying a three to ten range, so defendant would only receive an eight year sentence

maximum (trs.p. 24, 25,26)

Claim:Ineffective assistance of counsel occurred when

Relator's was advised, at the plea hearing

that maximum sentence would be (40yrs). By Court,Prosecutor and both defense counsel.

Clearly the Law states under: 2941.25Multiple counts Where the same conduct by

defendant can be construed to constitute two or moreallied offenses of similar import,

the indictment or information may containcounts for all such offenses. The prosecutor

must elect which offense to pursue before trialbecause, the defendant may be

convictedof only one. Obvious their advise was erroneous and does not comport with

rules govern acceptance of guilty plea in accordance to Crim.R.11 state : That

defendant is making the plea voluntarily, with understanding of the nature of he charges

and of the (maximum nenaltv involved,)and, if applicable, that the defendant is not

eligible for probation or for the irrm.position of dommunity control sanctions at the

sentencing hearing.

Fact: Relator's counsel Bennett testified and explain how, both him and co-counsel force, coerced

and pressure Relator into taking the plea. When defendant was very adamant about his innocent.Relator counsel's felt the evident was overwhelming, and that's why counsel coerced and pressure

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Relator into plea deal. (trs.p. 54-58)

ClaimBoth defense counsel admitted In court. They (Jbrce, Coerced) Relator into pleading guilty

inorder to avoid a(40yrs.) maximum sentence. Thus, due to counsel's Undue Influence

and Coercion. The basictenets of due process require that a guilty plea be made

"knowing, Intelligently and voluntarily. " State v. Engle (1996)74 Ohio St 3d 525 527

Failure on any of these point "renders enforcement of the plea unconstitutional underboth the United States Constitution and the Ohio Constitution. To ensure that a plea is

made knowingly and Intelligently, a trialcourt must engage in oral dailogue with the

defendant in accordance with Crim R. 11(C)(2). State v Sherrard, 9" Dist. No.02ca008065, 2003-Ohio-365,at 116, citing Engle, 74 Ohio St.3d at 527. Crim R. (C)(2)

require that a trial court determine from conversation with the defendant's plea was

voluntarily; 2) whether the understood the effects of the plea at the timehe entered the

plea it; and 3) whether the defendant, at the time he entered his guilty plea, understood

that by entered the plea he was waiving constitutionalrights. Appellant argues that his

plea was not voluntarily because the trial court Coerced him into pleading guilty byonAnQine plea neeotiations. (This (all)

providing him faulty advice and by imnronerlvoccurred to the Relator at the plea hearing. That Relator maximum sentence was

4oyrs.)

Fact: Judge overrules motion to withdraw plea. (trs.p. 165)

Fact: The court: I know there is an extraordinary situationas far as the plea. The plea that I had

before me does not allow me to give him the eight years because, and I will tell you and the

RE1VU representative here, right here, as well as the State, I will not again participate in a plea

situation where it's count on the defendant to plea again in order to get a lesser sentence from the

court. So you can tell both your bosses as well, because we'er in a situation now, where for me to

give defendant eight years that the deal was made for, he's going to have to enter a plea after we

just went through a couple hours of him attempting to withdraw his plea. (trs.p. 165, 166)

Court Seek Help To Correct Manifest Injustice From Defense Counsel and

Prosecutor because, the plea Relator entered on March 8, 2004. Does not allow

Relator to receive the (8yrs.) as promise by the court.

Fact: The court suggest to both prosecutor and defense counsel to think about this, seeking help to

correct miscarriage of manifest injustice. (trs.p. 166)

Fact: The court trying to avert the outcome of unfairness to everybody. (trs.p. 171)

Fact: On that faithful day of April 29, 2004 for sentencing both prosecutor and defense counsels

agree that it's in the best interest for Relator to plea No-Contest. Allowing defendant to receive,

the eight years as Dromise in plea agreement.Thus restricting Relator plea to No-Contest. Only to

help correct manifest injustice (trs.p. 175)

8

Fact: On that faithful day of April 30, 2004 for re-sentencing again. The court say it's still willing

to give Relator eieht vearsand the prosecutor agrees (trs.p. 195, 196)

Fact: On April 30, 2004, and the prosecutor Stated: If the Relator comes back in a week and says

I want to re-enter that plea, I want my eight, I'm still going to do that because I think I'm bound

by that and I think that's whats fair. (tr.p. 207)

Claim:'s did return on June 15, 2010, and was

in the same position as though Relator hadRelator'snever been sentence. Thus, on that faithful day Relator could h exerted his original

position and re-enter his plea. To receive the (8yrs) as guaranteein March 8, 2004. (See

trs.p 25,26,27)

Fact: It is undisputed that Boswell sentence is a Void Judgment and It failed to include mandatory

postrelease control, violating R.C. 2967.28.As a result, we place him in the same position that

he would be in if he had never been sentenced and treat his motion to withdraw his guilty

plea as presentencemotion. As explained in Xie 62 Ohio St. 3d at 527 584 N.E.2d 715 such a

motion should be "freely and liberally granted." This does not mean, however, that Boswell has

an absolute right to withdraw his plea. Id.

Claim:On that faithful day of June 15, 2010. Relator was In the same position, as order by

The Ohio Supreme Court."(T]he trial court fail to comply to the order. Whereas Relator

stood handcuff in front of the Courtfor sentencing, and not given a hearing as order bythe Supreme Court. That an hearing must be conduct to determine whether there is a

reasonable and legitimate basisfor the withdrawal of the plea. " (This They Did Not Do)

(See June 15, 2010 hearing Trs.p 2) (Exhibit C)

Fact : On that faithful day of June 15, 2010 at Relator remand/De novo sentencing hearing.

Judgment is void is well established. It is s though such proceedings had never occurred; the

judgment is mere nullity and the parties are in the same position as if there had been no

judgment"(Citations omitted.) Romito v. Maxwell (1967), 10 Ohio St. 2d 266, 267-268. 39

0.O.2d 414, 227 N.E.2d 223. Treatinghis motion to withdraw his guilty plea as a presentence

motion. Wheres the trial court must conduct a hearing to determine whether there is as

reasonable and legitimate basis for the withdrawal of the plea."Relator's was in the same

position as though he was being sentence on Apri129, 30, 2004. Where the court, prosecutor and

Relator attorney's wanted Relator to enter an No-Contest plea, inorder to receive the eight years

sentence as promise. Therefore, the court abused it's discretion, by denying Relator a evidentiary

hearing should have been freely allow, so Relatckcould have weigh all his option and could have

enter an No-Contest plea to receive the eight years! (Trs.p. 175)

Fact: The court further abused it's discretion and show Bias and prejudice when it denied thedefendant a opportunity to be heard on Relator Motion to Vacate plea for Lack of Jurisdiction.

When clearly the motion was filed on that faithful day of June 15, 2010. Against the claim in

which the court say, no motion was on filed! (Relator's Motion was hidden under Filing)

q

Claim:The Ohio Supreme Court has recognize that under a void sentence this case illustrates the

danger that results from holdings that a sentencing error is not just a mistake in the

exercise of the court's jurisdiction, but is rather considered a lack of jurisdiction

altogether. A defendant is able to attack his conviction five years lateron a motion to

vacate his guilty plea. But this is only the beginning. Defendants whose sentences failed to

include postrelease control and whose sentences are "void" are arguably entitled to a writ

of habeas corpus. See Davis v. Wolfe (2001). 92 Ohio St. 3d 549 552 751 N.E.2d 1051.(when a court's judgment is void, habeas corpus is generally and appropriate remedy

despite the availability of appeal).

The Relator place the court on notice, that the State lack jurisdiction at the re-

sentencing. Thus making the court dutiful bound and has a obligation of it's own to inquire into

jurisdiction!

Harris v. U.S. 149 F.3d 1304 ("Subject-matter jurisdiction can never be waived orconferred by the consent of the parties."); Ea erton v. Valuations Inc. 698 F.2d 1115 1118

(11' Cir. 1983) ("[I]t is well established that subject matter jurisdiction cannot be waivedor conferred on a court by consent of the parties.") Furthermore, we are bound to assure

ourselves of jurisdiction even if the parties fail to raise the issue. SeeInsuranc ^

Ir. Ltd. 456 U.S. At 702 ("[A] court... will raise lack of subject-matter jurisdiction on its

own motion.");

Fact: The court show prejudicial bias and fraudulent practice when allowing the prosecutor to file

a memorandum in opposition a day before the June 15, 2010 hearing.

Claim:Thus, denying Relator Motion To Vacate to be enter upon the record. The court clearlywas prejudicial against Relator by not apprising Relator of opposition Motion filing.The court explain because it did not have Relator motion before the court. Thus, refusing

to allow Motion To Vacate to be enter on the record. For all purpose of Judicial Fairness

and Courtesy. Clearly, If the court refuse to hear Relator motion on the pretense that no

motion wasfiled and served upon the court. Would not the same apply to Relator, who

was blindsided bythe late filing and No Proof of Service was never made by prosecutor

in a timely matter to Relator. Furthermore, prosecutor was procedurally time bar fromfiling in accordance to Loc. R. 14(B) that [a] fnotion shall be served within ten days fromthe date the memorandum in support of the motion was served," Furthermore, If Relator

would have been apprise of prosecutor motion. Relator's could have exercise his position

under Loc.R 14 (B) for a continuance to reply within (7days). Whereas Relator Motion To

Vacate clearly would have appear before the court.

Point and Case:On that faithful day of April 27, 2004. Hearing for Relator Crim. R. 32.1

the original trial judge on it's own recognize the late notice of filing by defense counsel.

Prosecutor: [I] would also like to note for the record, that I had not received a

copy of the defendant's reply to my motion until a few minute ago.

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The Court : Okay. Do you want to go ahead and proceed then.(trs.p. 48,49)

On June 15, 2010 no one apprise Relator of prosecutor the late filing.

Furthermore, let the record reflect that all claims Relator has raised. This Honorable Court

has already Solidified, validated and Substantiatedevery Legitimate claims

Appeal C-040284 (g 5) Relator's plea was not knowingly, Intelligently and voluntarily

enter because attorney's pressure and coerced Relator. Relator's was afforded a complete Crim. R.

11 hearing before entering plea.

Appeal C-060998 (pg.3-6) Appellatesay: The court erred in failing to permit a reply

under Loc.R. 14(B). Relator's had again been afforded a complete Crim.R 11. Court claim Relator

also purported in his motion to offer, but did not actually provide,his own affidavit stating that

he would not have agreed to the pleas if his trial counsel had advised him concerning forfeiture

and judicial release. (Court fail to acknowledge Affidavit See Ex. N)

Appeal C-09079 Appellatecourt deemed Relator sentence Null and Void.

Counsel was Incompetent, Inadequate and and unprofessional errors. Counsel defient

proformance prejudice Relator by failing to inform Relator about (Mandatory 5yrs. Post-ReleaseControl) That under O.R.C. 2941.25 Multiple Count Indictment Relator could only be convicted

of one and Relator's was not Ineligible for judicial release and Federal Forfeiture.

DISCIPLINARY COUNSEL v. BENNETT.124 Ohio St.3d 314, 921 N.E.2d 1064, 2010 -Ohio- 313

Attorney Clyde Bennett was already committing crinunal activities. While representing Relator,

from October 10, 2003 until September of 2005. Whereas this Honorable Court deemed Bennettactivities and conduct was in violation of rules prohibiting conduct involving dishonesty, fraud, deceit,

or misrepresentation and prohibiting conduct adverselyreflecting on attorney's fitness to uractice

law. Clearly attorney Bennett was unfit to practice law. When given Relator erroneous advice that his

maximum sentence was (40yrs.)

State v. Sarkozy 117 Ohio St.3d 86, 881 N.E.2d 1224, 2008-Ohio-509If the trial court fails during the plea colloquy to advise a defendant that the sentence willinclude a mandatory term of postrelease control, the court fails to comply with Crim.R.

11, and the reviewing court must vacate the plea and remand the cause.

The Court : Upon your your release from prison you couldbe placed on what is call post-

release control, (trs.p. 33)

The Court: If you wereto be placed on post-release control . (trs.p.33)

1}

Relator's was never Informed during Plea Colloquy That sentence will include a

(Mandatory Term of Post-Re-lease-Control. Thus Relator Plea Must Be Vacated. (State v.

Sarkory) 117-Ohio-St.3d 86 881 N.E.2d 1224 2008-Ohio-509.Furthermore, Let the record reflect that the trial court failed to Inform Relator of

(Mandatory 5yrs. Term of Post-Release- Control), during the the Plea colloquy on March 8, 2004

and at sentencing on April 30 2004.

Thus, Failure on any of those points renders enforcement of the plea unconstitutional

und"er both the United States Constitution and the Ohio Constitution."State v Fnele (1996), 74

Ohio St id 525 , 527. 660 N.E.2d450. (State v. Sarkory) 117-Ohio-St 3d 86 881 N.E.2d 1224.

2008-Ohio-509.

Thus, the court has violated Relator 1411 Amend to U.S. Cont. of Equal protection, andDue Process under the course of the law, and Ohio Const. Article 1 § 10 and well inveterate Ohio

Rules of Practice and Procedure of the court.

Relator's represents, That he has endure Egregious behavior, Abuse of Discretion and

encounter Manifest injustice from certain Individual in the the judicial system . These Individual

have displayed, that they are exempt from govern Ohio Rules of Practice and Procedure of the

court and contempt for Ohio Code of Judicial Conduct and Professional Conduct.

Relator's must confide to this Honorable Court. These changes of events and occurrence

of pass favorable decision for Relator. Which have now miraculously been swayed and tainted, are

due to the fact. That Relator (Original trial judge) is now in the First District Court of Appeals.

Furthermore, Relator represents that the original trial judge, who is now in the appeals

court and the prosecutor that filed the opposition motion (1) day before the June 15, 11 hearing. Were

indeed the same judge and prosecutor, whoErred in Failing to Permit a Reply under Loc.R.

14(B) 173 Ohio App.3d 709, 880 N.E.2d 143, 2007-Ohio-6217and the same prosecutor. That filed

opposition motion (1) day before the hearing date.

Thus, Ironically thist abuse and perversity of Miscarriage of Injustice has only Increase

over the years. Clearly trying to thwart Relator chances for justice. By making Relator go through

unnecessary obstacle and hurdle to Vacate Relator Plea.

Relator's has presented overwhelming evidence. That Impropriety have occurred and the

out-come clearly would have been different at each junction. If not for the mischievousness from

these Individual.

Relator's trust a thorough investigation will be done and those participant. Who are in

strict violation of Ohio Rules of Practice and Procedure of the Court and None compliance ofOhio Rules Code of Judicial Conduct and of Professional conduct should be sanction by this

Honorable Court.

Furthermore, Relator's confide that he has filed on April 25, 11, a Crim. R. 321, claiming

manifest in justice because, court failed during plea colloquy. To inform Relator that his sentence

12.

included a (mandatory 5yrs. Terms of P.R.C.) State v. Sarkory 117-Ohio-St.3d 86, 881 N.E.2d

1224, 2008-Ohio-509. (See Ex. 0)Relator's, has already stated that the trial court refusal to rule on Pro-se Litigant motion.

Unless by means of Procedendo or MamilgMv'ill the trial rule. . It has taken the trial court over

(llmo.) to rule on Relator stay and (lyear) to rule on Relator Motion To Vacate.

More then likely trial court will try and hold Relator Crim.R32.1 filed on Apri125, 2011

for a year. Whereas The Supreme Court has ruled on said decision in State v. Sarkory 117-Ohio-

St.3d 86, 881 N.E.2d 1224, 2008-Ohio-509.

Clearly this in contrary and indicative to Code of Judicial Conduct Rule 2.5 Competence,

diligence, and cooperation A judge should seek the necessary docket time, court staff, expertise,

and resourcesto discharge all adjudicative and administrative responsibilities. In disposing

of matters promptly and efficiently, a judge must demonstrate due regard for the rights of

parties to be heard and tohave issues resolved without unnecessary cost or delay. A judge

should monitor and supervise cases in ways thatreduce or eliminate dilatory practices,

avoidable delays, and unnecessary costs.

The principle concern of Relator is not punishment of society for misdeeds of theCourt and prosecutor but, avoidance of unfairness to the accused. Society wins not onlywhen the guilty are convicted but, when criminal trials are fair; our system of the

administration of justice suffer when any accused is treated unfairly.

Therefore, a Dead Bang Winner isdefined: When the court did not recognize and

adjudicating all these claims, the trial court failed to determine that these claims wasDead bang

Winners. Dead Bang Winnersis of the type that is obvious upon the trial court record; tends to

Leap Out even upon a casual reading of thePlea on March 8, 2004, sentencing on April 29, 30,

2004 and the entire transcripts.All claims and error necessarily would have resulted in reversal.

(Matire v. Wainwright, 811 R2d 1430, 1438 (11". Circuit., 1987)

CONCLUSIONRelief sough, Is that Relator be Immediately remanded back and allow Relator to reply to

prosecutor opposition Motion under Loc.R. 14(B). Furthermore, command the court to treat

Relator's Motion To Withdraw his Guilty Pleafrom a J^ nt as a pre-sentence

motion, and a hearing should be "freelyand liberally granted." Pursuant to the command,

charge, ordered and Injunction by theOhio Supreme Court in State v. Xie (1992), 62 Ohio

St. 3d 52, State v. Boswell (2009) 121 Ohio St. 3d 575, Simpkins(2008) 117 Ohio St. 3d 420

and Bezak (2007) 114 Ohio St 3d 94.Whereas, Relator can weigh all his option and position.

ThatRelator Plea should be clearly Vacated. In accordance with The Ohio Supreme Court ruling.That say: If the trial court fails during the plea colloquy to advise a defendant that the sentencewill include a mandatory term of postrelease control, the court fails to comply with Crim.R. 11,

and the reviewingcourt must vacate the lea and remand the cause.

State v. Sarkozy (117

Ohio St.3d 86, 881 N.E.2d 1224, 2008-Ohio-509) Furthermore, Relator seeks a Certificate of

Assignment from the Chief Justice. To promote public confidence and fairness in regard to any

appeals that may ensue on behalf of Relator in the First District Appeals Court.

^3

The Realtor has no other adequate remedy in the ordinary course of the law.

For the above reason, Realtor prays that this WRIT OF MANDAMUS is granted by this

Court.

Respectfully submitted,

LA'MON R. AKEMON #468-818

DAYTON CORRECTIONAL INST.

1404 Germantown PikeDayton, Ohio. 45417

CERIFICATE OF SERVICE

I hereby certify that a copy of the foregoing RELATOR FOR WRIT OF MANDAMUS was

forward to Judge Jody M. Luebbers, at the Common Pleas Court, of Hamilton County, Ohio, 485

Courthouse, 1000 Main St, Cincinnati, Ohio 45202, this o'ZO day of ^2011.

A'MON R. AKEMON JR. #468-818

LATOR-PETITIONER, PRO SE

M

AFFIDAVIT QF -VERLTY_

The undersigned Realtor, La'Mon R. Akemon, preceding in pro se, first being duly sworn under the

penalty of perjury, under oath deposes and states as truth the following:

1. 1 have prepared and read the petition for Writ of Mandamus attached hereto, am familiar withthe content thereof and averment therein, and find it to be true and current, in substance and

form, to the best of my knowledge and ability.2. I have prepared and filed the attached petition for Writ of Mandamus in good faith as it is my

understanding upon information and belief that I have a just cause of action and am entitled to

the relief requested therein.

WHEREFORE I, La'Mon R. Akemon, attest to and attest to and affirm the truth of the foregoing

statements by affixing my signature by own hand below.

mon R. Akemon, Relator pro se

#468-8184104 Germantown PikeDayton, Ohio 45417

)STATE OF OI3IOCOUNTY OF MONTGOMERY ) SS

Be it hereby know and acknowledged before all men by these presentsthat on the date below subscribed, LaMon R. Akemon appeared personallybefore me Montgomery County; Ohio and first being duly sworn upon his oath,depose and executed the foregoing Afidavit of Verity by his own hand in my presence

under the penalty of perjury.

NOTARYPULIC : 1

DATED:

MY Commission Expires: ^ ,2,/5-

AFFIDAVIT OF PRIOR CIVIL FILINGS11pursuantto R.C. Sec.2969.25(A)

STATE OF OHIO SWORN STATEMENTCOUNTY OF MONTGOMERY

I, LaMon R. Akemon, Relator in the forgoing civil action, do herebyvcand that civil dction iswith R.C.2969.25(A) that I have filed ^(2) civil action within the last (5) ye^

identified as:

PETITION FOR WRIT OF HABEAS CORPUS OF LA'MON R. AKEMON

CASE NO.1;06-cv-166FILED

IN: THE UNITED STATE SIXTH CIRCUIT COURT, CINATI, OHIO

DATEFILED: January 29,2007STATUS: DENIEDPETITION FOR FORMA PAUPERIS CERTIFICATE OF APPEALABILITYFILED IN: THE UNITED STATE SIXTH CIRCUIT COURT, CINATI, OHIO

CASE NO. 07-4374DATE PILED: September 4, 2008APPLICATION FOR A COA DENIED

I, La'Mon R. Akemon; also verify that I have not been found to be a frivolous lawsuit litigant in

the last five (5) years. This is my declaration made under the penalties of perjury after having been duly

sworn.

Affiant further sayeth uaught.

NOTARY

a'Mon R. Akemon, Ralator pro-se

4104 Germantown PikeDayton, Ohio 45417

468-818

L,;, ' jo,^,,j ^ ^dy,, APPEARED BEFORE ME AND PERSONALLY SWORN TO

THE FOREGOING UNDER THE PENALTTY OF PERIURY AND SUB CRIBED TO THESAME PERSONALLY IN MY PRESENCE ON THE I&AY OF MARCH, 2011.

/ NOTARY PUBLIC

MY COMMISSION EXPIRE ON / •P/ / 5

IN THE COMMON PLEAS COURT

FOR HAMILTON COtTNTY,OHIO

CRIMINAL DIVISION

STATE OF OHIO,

plaintiff,

v

I,A°M®N AREMON,

Defea!dant.

. GLANLYv = '-f7iJR75

^C z GwU NTY,GH

2Wo JUN i SA ID 91

CASE N0^^309830

FEDMOTION TO VACATE THE PLEA

EPTERED ON MARCH 8,2004 FOR

LACK OF .TURISDICTIOId

Now comes La'Mon Akemon,Defendant,and hereby moves this Court to VACATE the

plea entered on March 8,2004 for lack of jurisdiction. Reasons for the instant

motion are more fully articulated in the Memorandum that follows.

PffiMORAN13i1M

The Defendant,La'Mon Akemon (hereinafter "Defendant"),represents to this Court

that on March 8,2004 the Defendant was induced to enter a plea of guilty,under duress,

that was placed upon the Defendant by the.March 8,2004 trial court/judge,the govern-

ment prosecutor,and the Defendant's attorney's that were representing him.on that

fateful day,working in concert to induce said plea. The participation,on the part

of the trial court/judge,alone,clearly demonstrates that the trial court/judge was

not acting as an °'equal and unbiased arbitrator",by actively participating in the

inducement of the guilty plea of the Defendant. Also,by the trial court/judge

actively participating in the inducement of the plea of guilty,severely negates

the voluntariness of the Defendant in entering said plea.

After the highly questionable voluntariness of the Defendant in entering said

plea of guilty,the trial court/judge failed to further comply with Criffi.R.11(C)(2)(a)

by failing to advise the Defendant that the sentence would includea mandatory term

of post-release control. This non-compliance of Crim.R.11(C`)(2)(a) demonstrates

that the plea mustbe vacated as this Court must follow the mandates directed by

1

the Ohio Supreme Court as held in State v. Sarkozy,117 Ohio St.3d 86,at paragraph

two of the syllabus and,State v. Clark,119 Ohio St.3d 239;See also O.R.C. §2967.28.

Moreover,by the non'=compliance of Crim.R.11(C)(2)(a) and the trial court/judge

finding the Defendant guilty and entering a conviction upon the Defendant,as

evidenced in the record,then further sentencing the Defendant to (10) ten years

in the Ohio Department of Corrections without including the mandatory term of

post-release control,further establishes exactly where the trial court/judge lost

jurisdiction and exceeded its authority and entered a void judgrnent against the

Defendant. O.R.C. §2967.28;State v. Simkins,117 Ohio St.3d 420. In Simkins,the

Ohio Supreme Court reasoned that this stems from "the fundamental understanding

that no court has the authority to substitute a different senterice for that which

is required by law." Simkins,supra,at ¶20 citing Colegrovev. Burns(1964),175 Ohio

St. 437,438. A sentence that does not comport *578 with statutory requirements is

contrary to law,and the trial judge is acting without authority in imposing it.

Id. at ¶21.

The Defendant has established the void judgment and the state government2'

prosecutor has conceded to same. This void judgment brings the Defendant back

before this Court and places him in the position he would have been in had there

been no sentence. See State v..La'Mon Akemon,caseno.C-090749,F:Lrst-District Court

of Appeals,HamiltonCounty -0hio;State v. Bezak;314 Ohio St,3d 94. The Defendant

being in the position that he would have been in had there been no sentence entered,

the Defendant is hereby moving this Court to VACATE the plea entered by Defendant

for the non-compliance of Crim.R.11(C)(2)(a) to wit: the trial court's failure to

notify the Defendant of the mandatory termof (5) five years post-release control

which is the maximum statutory mandate under O.R.C. §2967.28.

Wherefore,for the reasons stated herein,the Defendant moves this Court to

VACATE the unlawful plea entered on March 8,2004 for the non-compliance of Cri.R.

2

11(C)(2)(a) which has negated the voluntariness of Defendant's plea and invalidated

the conviction entered by the trial court on March 8,2004.

Ia`Mon Akemon,I.D.#468-6t'Dayton,Correctional Inst.

4104 GermantOwn StreetDayton, Ohio 45417Defendant-Pro-Se.

CERTIFICATE OF SERVICE

I,the undersigned hereby certify that a true copy of the foregoing was served

^day of ,2010upon the Hamilton County Prosecutor this 7A

by way of personal servicez

3

Ohio Department of Rehabilitation and Correction

Dayton Correctional Institution4104 Germantown Pike

Dayton, OH 45418

Ted Strickland, Governor www.dre.ohio.govTerry Collins, Director

Date: June 21, 2010Ref: Legal Mail for Inmate LaMon Akemon 468-818

To Whom It May Concern:

Please be advised that Inmate Akemon 468-818 requested verification of his legal mail received here at theDayton Correctional Institution during the month of June 2010 to date. Therefore, according to the MailroomOfficer, she verified that Inmate Akemon received only one piece of legal mail from the Hamilton CountyProsecuting Attorney, Joeseph Deters on 6-18-10. No other legal mail from Hamilton County Clerk wasreceived according to the Legal Mail Log maintained in the Mailroom Office.

Also, please be advised that Imnate LaMon Akemon was out to court from June 9, 2010 until his return on 6-

17-10.

If you have any further questions regarding this matter, please contact me at 937-263-0060 Ext. 5021.

Sincerely,

`ayfingly, In

THE STATE OF OHIO, HAMILTON COUNTY

COURT OF COMMON PLEAS

CRIMINAL DIVISION

STATE OF OHIO . Case No. B-0309830

Plaintiff Judge Jody M. Luebbers

vs.

LA'MON AKEMON

Defendant

STATE'S SENTENCINGMEMORANDUM ANDMEMORANDUM INOPPOSITION TO MOTION TOWITHDRAW PLEA

On April 6, 2010, the Court of Appeals remanded the case to this Court for a re-

sentencing hearing so that this Court could properly notify Akemon that he is subject to

five years mandatory post-release control.'

The State requests that this Court sentence Akemon to his original ten year

aggregate sentence in the Department of Corrections for the two counts of trafficking to

which he plead guilty in 2004. (See sentencing entry attached.) This time, however, the

trial court must also notify Akemon that he is subject to a five year mandatory term of

post-release control.2

The State also requests that this Court deny defendant's April 19, 2010 Motion to

Withdraw Plea. Akemon again seeks to withdraw his plea and asks this Court to employ

the more liberal pre-sentence standard. His motion should be denied.

Crim.R. 32.1 states that a "motion to withdraw a plea of guilty or no contest may

be made only before sentence is imposed; but to correct manifest injustice the court after

sentence may set aside the judgment of conviction and permit the defendant to withdraw

State v. Akemon, C-090749 (April 6,2010) (attached)z See R.C. 2929.19(B)(3)(c), R.C. 2967.28(Bx1)

I

2

1 MORNING SESSION, JUNE 15, 2010

2 THE COURT: We have State of ohio

3 versus Lamon Akemon, B0309830. it's here

4 for two things. Actually, Mr. Akemon has

5 filed a motion to withdraw his plea. i'd

6 like to address that first. That's been

7 filed by Mr. Akemon himself, pro se.

8 Mr. Akemon, i'll hear you on that.

9 is there anything you wanted to add?

10 i've read your motion.

11 THE DEFENDANT: No. i'd like -- I

12 got my notes over here and i'm handcuffed

13 so i can't go through my notes of what I

14 have to say before i'm here to speak

15 about my motion to withdraw. And there

16 is another plea.

17 There's also another motion that's

18 been filed. And i asked my father

19 because i had it sent down here because I

20 was incarcerated up at DCI. so i'm going

21 to get copies on the other motion that

22 has been filed that's before you and i'd

23 like to discuss that, argue that motion,

24 too.

25 THE COURT: okay. well, that's not

3

5

6

24

25

Mb LLS -.C- I

set today, so I haven't received a copy

of it. Has it been filed?

THE DEFENDANT: Yes, it has.

THE COURT: DO y0U have a

time-stamped copy?

THE DEFENDANT: Yeah, that's what

I'm trying -- my father went to go get

now.

THE COURT: Mr. Donnellon, will you

check and see if there's another motion

that's been filed?

okay. i'11 hear you on the motion

to withdraw your plea.

THE DEFENDANT: Can I have my

notes, please?

THE COURT: Yeah.

THE DEFENDANT: My motion to

withdraw my plea is based upon Boise,

state versus Boise. And the defendant

moves --

THE COURT: state versus Boise?

THE DEFENDANT: That's correct.

And that is --

THE COURT: spell Boise.

THE DEFENDANT: B-0-5-w-1-1.

3

COURT OF APPEALS

FIRST APPELLATE DISTRICT

HAMILTON COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee

vs.

LA'MON AKEMON

Defendant-AP

HACh Li OtV C(}UN-j^/

NO. C-090749

Trial Court Case No. B-0309830

NGPW, SGp" -This Court remanded thi casc^dc^^ ng by entry dated April 6, 2010. The trial

court has scheduled the re-sentencing for June 15, 2010 at 9:00 a.m.

Respectfully,

Joseph T. Deters, 0012084PProsecuting Attorney

=

Philip R mings, 0041497PAssistant Prosecuting Attorney230 East Ninth Street, Suite 4000Cincinnati, Ohio 45202Phone: 946-3012Attorneys for Plaintiff-Appellee

CERTIFICATE OF SERVICE

I hereby certify that I have sent a copy of the foregoing Status Memorandum, by UnitedStates mail, addressed to La'mon Akemon, Pro se, Inst. #468-818, Dayton Correctional Inst.,

this 27th da of5418 ,4104 Germantown Pike, Dayton, Ohio 4^

Philip R. Cummings, 0 041497P

Assistant Prosecuting Attorney

Case Number:

Municipal Case Number

Case Caption:

Judge:

Filed Date:

CaseType:

Race:

Sex:

Age:

Date of Birtb:

Bond Amount:

Band Amount:

Count 1:

Dispositlon:

Count 2:

Disposition:

Count3:

Dispositlon:

Count4:

Dispasition:

Case Summary

B 0309830

C/031CRAI38812

STATE OF OHIO vs. LAMON AKEMON

JODY M LUEBBERS

10/n/2003

4- SUMMONS ON INDICTMENT

BLACK - AFRICAN AMERICAN

M

48

511211963

$1000005TRAIGHT

$ RELEASED ON OWN RECOGNIZANCE

TRAFFICKING IN COCAINE W/SPEC 2925-03A1 ORCN

752010 DOCC DEPARTMENT OF CORRECTIONS

TRAFFICKING IN COCAINE WITH SPECIFICATION 2925-03A2ORCN

413020043DDISMISSAL

POSSESSION OF COCAINE WITH SPECIFICATION 2925-11A ORCN

4I902004 3D DISMISSAL

TRAFFICKING IN COCAINE WISPEC 2925-03A1 ORCN

7I92010 DOCC DEPARTMENT OF CORRECTIONS

Case History

DescriptlonDoc Image# Date

513112011 NOTICEOFAPPEALFILEDOFWRITOFPROCENDENSONO.C1100308COPYSENTTOHAMILTONCOUNTYPROSECUTOR

PROSECUTOR5I202011 NOTICE OF APPEAL FILED NO. C1100296 COPY SENT TO HAMILTON COUNTY

5/18/2011 ENTRY DISMISSING PETITION FOR WRIT OF PROCEDENDO (C 1100190)

51182011 ENTRY DISMISSING PETITION FOR WRIT OF MANDAMUS (C 1100189)

8 5192011 MOTION FOR LEAVE TO SUPPLEMENT CRIM. R. 32.1 MOTION TO WITHDRAW QUILTY PLEA.

4202011 ENTRYDENVING:625/10MOTIONTOSTAVENTRYOFJUDGMENTANDFORHEARING

4272011 ENTRY DENYING: MOTION TO PROCEED AND TO EXPEDITE JUDGMENT

42712011 ENTRY DENYING: MOTION TO TAKE JUDICIAL NOTICE AND TO PROCEED TO JUDGMENT

^j. 4125I2011 MOTION TO WITHDRAW PLEA

4I6I2011 NOTICE OF APPEAL FILED NO. C1100190 COPY SENT TO HAMILTON COUNTY PROSECUTOR

41e2011 NOTICEOFAPPEALFILEON0.01100109COPYSENTTOHAMILTONCOUNTYPROSECUTOR

3I112011 COPYOFNOTICEOFAPPEALTOTHESUPREMECOURTOFOHIOFILED03I011115.C.N11-0389(C0900T497

3/9I2011 ENTRY OF DISMISSAL (C 1100092)

2I142011 NOTICEOFAPPEALFILEDNOA1100092COPYSENTTOHAMILTONCOUNTYPROSECUTOR

Lg. 12R22010 ENTRYOFDISMISSAL(C0900149)

11222010 TRANSCRIPT OF DOCKET AND JOURNAL ENTRIES FILED ^'SUPPLEMENTAL"°

10I152010 MOTION TO TAKE JUDICIAL NOTICE OF SUP R.40 AND TO PROCEED TO JUDGMENT.

8 8I62010 MOTION TO PROCEED AND TO EXPEDITE JUDGMENT PURSUANT TO CRIM. R. 47.ARECOUNTSSENTENECERATIONSENTENCETRYJUDGMENT E

NCURREN

EACH OTHERNTHE TOTAL AGGREGATE SENTENCEIIS TEN (10) YEARS IN THE DEPARTMENT OF CORRECTI/ONS COTHERE ARETNO WITHSENTENCES IMPOSED AS TO SPECIFICATIONS TO COUNTS 91 AND #4. THE DEFENDANT IS TO RECEIVE CREDIT FOR ALL TIME

8 7/92010 SERVED.THEDEFENDANTISTOPAY$2000000FINESASTOEACHCOUNTOFWMICN$10,00000ISMANDATORVFORATOTALFINEOF $40,000.00. THE DEFENDANT 15 TO PAV THE COURT COSTS. THE 9EFENDANT IS TO PAY PUBLIC DEFENDER ATTORNEY FEES. THEDEFENDANT IS TO MAKE RESTITUTION IN THE AMOUNT OF $84.00 FOR COSTS OF LAB FEE. "'RE-SENTENCE"°

i19120ID SENTENCEDCOUNT4:TRAFFICKINGINCOCAINEW/SPECCONFINEMENT:t0YR5DEPARTMENTOFCORRECTIONSDRIVER'S

LICENSE SUSPENSION:1 YRS1I92010 SENTENCEDCOUNTI:TRAFFICKINGINCOCAINEW/SPECCONFINEMENT'.10YRSDEPARTMENTOFCORRECTIONS-0RIVER'S

LICENSE SUSPENSION: 1 YRS

8 120010 CLERK'S TRANSCRIPT FILING FEE

6YL92010 TRANSCRIPT OF PROCEEDINGS 00309830 (C 0900749)

8 6I252010 HEARING OHAT COMPR 3FWITH DUE PROCESS

FRO M THE HEARINGHELDONJUNE15,2010ANDRECALLTHEDEFENDANTFORA

IOTION

8 . 611512010 ENTRY DENYING: MOTION TO WITHDRAW PLEA .

6I152010 FILING

6114ft010 STATE'S SENTENCING MEMORANDUM AND MEMORANDUM IN OPPOSITION TO MOTION TO WITHDRAW PLEA

8" . 51272(N0 ENTRY ORDERING RETU RN OF INMATE

4/192010 MOTION TO W ITHDRAW PLEA PURSUANT TO CRIM. R.321

115I3010 COURT OF APPEALS OF HAMILTON COUNTY CASE NO. C 0900749, TRANSCRIPT OF DOCKET AND JOURNAL ENTRIES FILED

10222009 NOTICEOFAPPEALFILEDNO.C09O]49COPYSENTTOHAMILTONCOUNTYPROSECUTOR

1312009 ENTRY OVERRULING MOTION FOR RESENTENCE

8/242009 MOTION TO RESENTENCE. PURSUANT TO CRIM. R. 47 STATE V. BEZAK(2007). _-

L302009 JUDGMENTENTRYANDDECISIONAFFIRMINGJUDGMENTOFTRIALCOURTASMODIFIED(B0309830)(C0000443)

9I112008 TRANSCRIPT OF PROCEEDINGS (C-080443)

,:TI^200BQrDURTOFAPPEAL56EHAMILTONCOIJNTYCASENOG000443_,_ _::'[ ^. --

6I1412000 JUDGE ASSIGNED CASE ASSIGNED TO LUEBBERS/JODY/M PRIMARY

Amount

6I141200B JUDGE REASSIGNED CASE TRANSFERRED FROM TRIANTAFILOU/ALEX PRIMARY

SI302008 PRAECIPE5/302008 MOTION FOR LEAVETO PROCEED IN FORMA PAUPERIS AND WAIVE PAYMENT OF FILING FEES & COURT COSTS

5129n006 NOTICE OF APPEAL FILED NO.C080443 COPY SENT TO HAMILTON COUNTY PROSECUTOR

5I122008 ENTRY OVERRULING MOTIONS TO WITHDRAW PLEA

4I30I2008 ENTRYORDERINGRETURNOFINMATE

4/15200B ENTRY OF CONTINUANCE UNTIL 4-30-2008

4I92006 SUPPLEMENT TO MOTIONS TO WITHDRAW PLEA.

3I20R008 JUDGE ASSIGNED CASE ASSIGNED TO TRIANTAFILOU/ALEX PRIMARY

8 228/2000 ENTRYORDERINGOFDEFENDANTFORCOURTHEARINGINHAMILTONCOUNTY

2I261400B ENTRY OF CONTINUANCE 3118108

2120/200B STATE'SSUPPLEMENTAL RESPONSE TO AKEMON'S REPLY MEMORANDUM OF JANUARY 11.2008

2119/2008 STATES RESPONSE TO AKEMON'S REPLY MEMORANDUM OF JANUARY 17. 2008

1/112008 RESPONSE TO MEMORANDUM IN OPPOSITIONRSR'°

121202007 ENTRY OF DISMISSAL C010829'^COPIES SENT TO DOC AND DEFENDANT ON 01102108,

12117I2007 ENTRY ORDERING RETURN OF INMATE

111262007 NOTICE OF APPEAL FILED NO. C-070829 COPY SENT TO HAMILTON COUNT4 PROSECUTOR

. 8- ENOOPIES SENT DISION

AN D

AFFIRMING ON 01 29lOBSIRSRNPARTANDREMANDINGCAUSEBACKTOTHETRIALCOURT

1121I2007 CO60999

1 V5/2001 AFFIDAVIT OF INDIGENCY

g. 1011612007 ENTRY OVERRULING MOTION FOR JUDGMENT

10/122007 DEFENDANT AKEMON'S MOTION FOR JUDGMENT PURSUANT TO OHIO REVISED CODE SECTION 2701.02 ET SEQ

9I24I2007 ENTRY OVERRULING MOTION TO VACATE COURT COSTS OUE TO INDIGENCY

912112007 ENTRY OVERRULING MOTION TO VACATE COURT COSTS

8 91182007 MOTION TO VACATE COURT COSTS DUE TO INDIGENGY FORTHWITH. . .

8, 1229/2006 COURT OF APPEALS OF HAMILTON COUNTY CASE N0. C060998

8 . 1212212006 MOTIONTOWITHDRAWGUILTYPLEA. .

8 1121I2000 NOTICE OF APPEAL FILEO NO. C060998 COPY SENT TO HAMILTON COUNTY PROSECUTDR

11122006 ADDENDUM TO OEFENDANT'S MOTION TO WITHDRAW PLEA. .-

8 10I8612006 ENTRY DENYING: MOTION TO WITHDRAW GUILTY PLEA

102512006 MEMORANDUMINOPPOSITIONTODEFENDANT'SMOTIONTOWITHDRAWGUILTYPLEAFILEDOCTOBER2.2006

102I2006 MOTION TO W ITHDRAW PLEA.

^, 101212006 MOTION TO SUPPLEMENT

8 101212006 NOTICE OF APPEARANCE

8 1162006 MOTIONTOSUPPLEMENTPOSTSENTENCEWITHDRAWALOFGUILTYPLEA.

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8 4rz42005 MEMORANDUM IN OPPOSITION TO D EFENDANT'S MOTION TO WITHDRAW GUILTY PLEA

8" 41181Y005 MOTIONFORPOST-SENTENCEWITHDRAWALOFGUILTYPLEA.2I12005 LAMONAKEMON,JR.,FILEDINTHESUPREMECOURTOFOHIOON

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT

8 0120/05.SC#054165115I2005 CERTIFICATEOFJUDGMENTFILEDINHAMILTONCOUNTYAGAINST LAMONAKEMONON01/052005CJ05000194

. 115/2005 (BILL UNDELIVERABLE) PRECIPE FOR CERTIFICATE OF JUDGMENT FILED FOR COURT COSTS AGAINST 68,32 LAMON AKEMON

12115I2004 JUDGMENT ENTRY AFFIRMING JUDGMENT OF TRIAL COURT (C04028412115104 #54) "'COPY SENT TO DOC AND DEFENDANT ON

8+ ' 1221106, RSR'"'

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520R004 CLERK'STRANSCRIPTFEEFORANINOIGENTDEFENDANT - FILED

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8. 334 58,2004 ENTRY DENYING: DEFT'S MOTION FOR EVIDENTIARY RULING

592004 CHARGE DISMISSED B 0309830-2

305 S72004 ENTRY OF DISMISSAL CT 2 & 3 & SPECS TO CTS 2 & 3

57/2004 CHARGE DISMISSED B 0309030-3

413012004 CHARGE DISMISSED B 0309030-3

EACH OTHER THEAGGREGATE TOTAL IS TEN (10) YEARS IN NHE DEPARTMENT OF CORRECTIONSAEFENOSERVED PNT GIVEN

CONCURR ENTLYCREO T FOR

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DRIVING SUSPENSION. DEFENDANT TO PAY COURT COSTS.

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41]012004 SENTENCED COUNT 4 TRAFFICKING IN COCAINE WISPEC CONFINEMENT'. ID YRS DEPARTMENT OF CORRECTIONS

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4130I2004 CHARGE DISMISSED B 0309830-2

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430-3182004 CONVICTED BY PLEA B 03099

318R004 CONVICTED BY PLEA B 0309830-1

3/62004 ENTRY ACCEPTING PLEA OF GUILTY APRIL 12.2004 AT 9:00 A M.

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OISCOVERY .211812004 STATE'S SUPPLEMENTAI RESPONSE TO DEFENOANT'S DEMAND FOR

21182004 STATE'S MOTION TO COMPEL DISCOVERY.REINEKE

2113R004 SUBPOENA FOR WITNESS RETURNED AND ENDORSED JEFFREYLANKENSHIP

y132004 SUBPOENA FOR WITNESS RETURNED AND ENDORSED CPT. GREG BSON LANEY

2/132004 SUBPOENA FOR WITNESS RETURNED AND ENDORSED DEPT. MANOWDEN

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P11312004 SUBPOENA FOR WITNESS RETURNED AND ENDORSED CONFIDENTIAL INFOR

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133 112012004

11142004

ENTRYOFCONTINUANCE316I04

SUPPLEMENTAL DISCOVERY REQUEST OF DEFENDANT.

22 111412004ENTRY SEALING MOTION FOR OONTIUANCE FILED ELECTRONICALLY ON 1113/04

PROVIDED BY CLERK TO PROSECUTOR"'

111312004

SERVICEMOTION FORCONTINUANCE. ELECTRONICALLY FILED.

FOR CONTINUANCE217 1I132004

iI13f2004

ENTRY OVERRULING MOTION

SUPPLEMENTAL DISCOVERY REQUEST OF DEFENDANT.

1/122004 SECOND SUPPLEMENTAL MOTION TO SUPPRESS

15I4004 SUBPOENA FOR WITNESS RETURNED AND ENDORSED CPT. GREG BLANKENSHIP

RETURNED AND ENDORSED DEPT. MANSON LANEY1I9I2004 SUBPOENA FOR WITNESS

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8 1I913004 SUBPOENAFORWITNESSRETURNEDANOENDORSEDGENTMIKEHACKNEY

8 1/9I2004 APPEARANCEOFCO-COUNSEL.

g 1I82004 SUBPOENAFORWITNESSRETURNEDANDENOORSEDJEFFREYREINEKE

8 ' 1I82004 SUBPOENAFORWITNESSRETURNEDANDENDORSED6RIANSCOWDEN

1I62004 SUPPLEMENTAL MOTION TO SUPPRESS AND SUPPORTING AFFIDAVIT.

1I82004 AFFIDAVIT OF LAMON AKEMON

1I62004 SUBPOENA FOR WITNESS ISSUED TO CONFIDENTIAL INFORMANT CIO AGENT JOSEPH LEE RENU

1I6I2004 SUBPOENAFORWITNESSISSUEDT06RIANSCOWOEN

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1I82004 SUBPOENA FOR W ITNESS ISSUED TO OPT GREG BLANKENSHIP

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1I8I2004 SUBPOENA FOR WITNESS ISSUED TO JEFFREYREINEKE

1/L2o04 STATE'S RESPONSE TO DEFENDANT'S DEMAND FORDISCOVERY.

1012004 ' BILL OF PARTICULARS

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511 111122003 ENTRY OF CONTINUANCE 11R6N3

413 11/3Y1003 ENTRY OF CONTINUANCE 11112103

g. 202 1012412003 ENTRY RETAINING COUNSEL CLYDE BENNETT11 -

AIRRATADEFENDANS

N9 _.._10242003-=WAIVEROFPRESENCEOF

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MMONS RETU10242003 SIMON L. LEIS JR., SHERIFF: SU

10122IP003 NOTICE OF INTENTION TO USE EVIDENCE

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1012212003 NOTICE OF APPEARANCE.

8 1012212003 REOUEST FOR BILL OF PARTICULARS8 1012212003 MOTION TO DISCLOSE THE INFORMATION REGARDING COOPERATING WITNESSESIINFORMANTS WITH SUPPORTING MEMORANDUM

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10R212003 MOTION FOR VIEW OF THE SCENE.

10I2112003 BONO TRANSFERRED FROM MUNICIPAL COURT. BOND POSTED ON 10-10-03

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I t \a •̂a--^---

STATE OF OHIO,

plaintiff,

V.

I,A`NY)N AKMON,

Defene3ant.

IN THE OO1*UN 7.'LFAS MM

FOR FRINIILTON ODiINPY, OHIO

(P,7MINAL DIVISIONM^_,) ,Lx,^

Case No. 0309830

Judge Jociy M. r nPtba*s

NUNON TD STAY EIS172Y OF ANY JUDC ME3Sr

FIM THE HEnR-W Hup ON JONE 15,2010

AND REML TlE uEFEWW FOR A HEARING

7Si8T CampolUS WTTx DDE PROCESS AIND

(1tIM.R. 32.1

Now comes La'Mon Akemon,Defendant (Pro-Se),and hereby moves this Court to

STAY entry of any judgment from the hearing that was held on June 15,2010 and

for this Court to RECALL the Defendant for a proper hearing that cantorts with

Due Process Rights of the Defendant and his right to an Evidentiary Hearing as

mandated by the Ohio Supreme court in State v. Xie (1992),62 Ohio St.3d 521 and

Ohio Crim.R.32.1. Reasons for the instant motion are more fully articulated in

the Memorandum that follows.

N>ENCRANDUM

The Defendant, La. ' Mon Akemon (hereinafter "Defendant"),represe.nts to this

Court that on April 6,2010 the First District Court of Appeals VACATED the Defe-

ndant's sentence and remanded the Defendant's case back to this Court due to the

initial sentence that was imposed by this Court being rendered a nullity and thus,

VOID.

The Defendant further represents to this Court that on April 19,2010,he filed

aPro-Se Motion To Withc"ii'aw his Guilty Plea" and thus, said motion must be cons-

idered a"Pre-Sentence Motion" and should be freely and liberally granted. State

v. goswell (2009),121 Ohio St3d 575.

1

The original Entry from the First District Court of Appeals dated April 6,

2010,ordered that the remand and any hearing be conducted and the record suppll-

emented by May 26,2010. In the event that the record was not supplemented "coun-

sel for Appelle,State of Ohio,was ordered to file a Memorandum regarding the sta-

tus of the remand by May 28,2010.

The Plaintiff's DID NOT comply with the order of the First District Court

of Appeals or the Plaintiff blatantly refused to serve any Memorandum upon the

Defendant despite the fact that he is a"PARTY" and entitled to NOTICE of ALL

filings. Moreover,the Defendant DID NOT receive or hear anything from April 6,

2010 until June 9,2010,the day the Iiamilton County Sheriff picked the Defendant

up from Dayton Correctional Institution and transported him to the Hamilton County

Jail to await the surprise scheduled hearing on June 15,2010.

During this Lapse of time between. April 19,2010-the filing of Defendant's

Crim. R.32.1 Motion and,transport to the Hamilton county Jail on June 9,2010,the

Defendant DID NOT receive any "opposition" from the Plaintiff,State of Ohio,purs-

uant to I.oc. R. 14(B) thus,the Defendant was planning on,at the very least,his

Due process Right to the evidentiary hearing as is mandated by the Ohio Supreme

Court in Xie & Boswell,supra. This basic fundamental Due Process right was comp-

letely thwarted by the in concert witchhunt tactics of the state government Pros-

ecutor,Philip CunMings,Timothy R. Cutcher,the completely ineffective attorney

appointed to the Defendant and,Judge Jody Luebbers,acting as trier of fact.

Furthermore,the Defendant filed on June 15,2010 a "Motion To Vacate the Plea

entered on March 8,2004 for Lack of Jurisdiction". The Defendant served the Plai-

ntiff on June 10,2010,actually the Defendant placed said Motion in the mailbox

at Dayton Correctional Institution the morning of June 9,2010. At the hearing on

June 15,2010,the Defendant attempted to address the court regarding said Motion,

however,the Court muzzled the Defendant and threatened the Defendant with sanc-

tions of contempt and additional time added to the original Ten year sentence,

2

when the Defendant was merely attempting to aprise the Court of this Motion

that contained the Jurisdictional defects that the Court SHOULD have recognized

on its own. On this fateful day,when the wheels of justice came to a grinding

tted to proceedhalt against the Defendant,the Plaintiff,State of Ohio,N1AS perml

on his motion in Opposition that was filed on june 14,2010,and the Certificate

of Service indicates that this Motion in opposition was deliberately sent to

Dayton Correctional Institution when the Hamilton County Prosecutor,Philip Cumm-

ings,was fully aware that the Defendant was being housed at the Hamilton County

Jail. Moreover,the court appointed attorney for the Defendant was NOT served with

this motion in opposition. These acts are plain and obvious and,ser've to thwart

any Due process Rights of Notice and an opportunitY for the Defendant to be heard

in "REPLY".

Furthermore,for this Court to entertain these fraudulant tactics,it is apparent

that justice fortheefendant is being obstructed. This is a crime in the State

of Ohio and negates any irmnw'iities that may be obsexved.

The Defendant has attempted to formally bring fundamental constitutional

rights that are guaranteed to the Defendant,directly to the attention of this

Court through his filings of April 19,2010 and june 15, 2010, regarding substantial

judicial compliance and fairness,to absolutely no avail. These fundamental const-

itutional deprivations have to be attributed as subjecting the Defendant to a

biased and hostile environment without due process of law. The Court,as trier

of fact,should have recognized,on its own accord,the lack of subject matter'jur'is-

diction regarding the imposition of Post-Release control and,at the very least,

should have permitted the Defendant an opportunity to be heard on his June 15,2010

filing as the Plaintiff was on their June 14,2010 filing.

Pursuant to Loc. R. 14(B) the Defendant MUST be Provided the opportunity

to "REPLY" to the Plaintiff's motion in Opposition filed on June 14,2010,that

was N(7F served and received by the Defendant until june 18,2010 after his return

3

to the Dayton Correctional Institution on June 17,2010.

In support of all of the contentions made herein by the Defandant,the Defe-

ndant offers the following as the "Defendant's Exhibits A,B_,& C".

1) "Defandant,s Echibit A,Department of Rehabilitation and Correction letter^^

signed by Alan Mattingly,Institution Inspector,dated june 21,2010;

2) "Defendant's E^hibit B",copy of "^4a1 Mail Log° from Dayton Correctional

bearing receipt of the Plaintiff's "Motion in opposition";Institution

3) °Defe^idant's Exhibit C",coPY of the Envelope that the Plaintiff'-s "Motion

In opposition" was sent in bearing a U.S. postal Service stamP date of June 15,

2010,again,displaying the fraudulant representations of service. The Fntry dated

June 15,2010 "Denying the Defendant to Withdraw Plea",is a clear fraudulant act

in concert with the State of Ohio,therebY violating the Defet1dant's Due Process

rights under Im• R. 14(B)- Moreover,the Entry does NOT contain the "findings

of fact and Conclusions of law"to support the denial that was speclfically moved

for by the Defendant's filing of April 19,2010.

Wherefore,for the reasons stated herein,the Defendant,ta'Mon Akemon,hereby

moves this Court to SrAY EntrY of any Judgment from the hearing that was held on

June 15,2010 and for this Court to RECALL the Defendant for a proper hearing that

comports with the Defendant's Due Process rights of an Evidentiary Hearing that

is in accordance to the mandate of the Ohio SuPreme Court under Xie= ^,

supra,and crim. R. 32.1. In addition QRA1T an Extension for the Defendant to "R.EPLY"

to the Plaintiff's Motion in opposition*

ly SUMLtLIV

®,o v^'Mn pJeron,L.#468-818Dayton Correctional Inst.

4104 Germa^novm StreetDayton, phio 45417

Defendant-Pro-Se.

4

CERT.CL'ICATE OF SERVICE

I,the undersigned hereby certify that a true copY of the foregoing was served

upon the Hamilton County Prosecutor,Philip R. Cturmings @ 230 East Ninth Street,

Suite 4000,Cincinnati, Ohio 45202 by way of ordtnarY U.S. Postal Service this

'^^day of June,2010.

^,Mon Ak.emon,I.D.#468-818Dayton Correctional Inst.

4104 GermantOwn StreetDayton, Ohio 45417Defendant-Pro-Se.

N ANb 0 Ohio Department of Rehabilitation and Correction

ml

Ted Strickland, Governorwww.dre.ohio.gov

Date: June 21, 2010Ref: Legal Mail for Inmate LaMon Akemon 468-818

Dayton Correctional Institution4104 Germantown Pike

Dayton, OH 45418

Terry Collins, Director

To Whom It May Concern:

Please be advised that Inmate Akemon 468-818 requested verification of his legal mail received here at theDayton Correctional Institution during the month of June 2010 to date. Therefore, according to the MailroornOfficer, slie verified that Inmate Akenion received only one piece of legal mail from the Hamilton CountyProsecuting Attorney, Joeseph Deters on 6-18-10. No other legal mail from Hamilton County Clerk was

received according to the Legal Mail Log maintained in the Mailroom Office.

Also, please be advised that Imnate LaMon Akemon was out to court from June 9, 2010 until his return on 6-

17-10.

If you have any further questions regarding this matter, please contact me at 937-263-0060 Ext. 5021.

Sincerely,

e^'^ I L'- ,^, UMEPRCan J. a mgly, Insp t r/

CA Manager DCAl

100(00

N(+J

N̂U2

0J

/W-At ,A1(:n" 1. \V te- .

UG - b! t^ 2^ , I'2(1!1 P,CRIMINAL DIVISION

5TATE OF OHIO7

Plaintiff,

IN THE COMMON PLEAS COURT l'^L^i,^ ^F CDURNTSYItArisL?'0"a COIJNTY. OH

FOR HAMILTON COUNTY,OHIO

CASE 1VO. B0309^ 30 E®

Judge Jody M. Luebbersv.

La'Mon Akemon,

Defendant. MOTION TO PROCEED AND TOEXPEDITE

JUDGNiENT PIiRSTJANT TO C1^^ITvi.Ia.4'T

Now comes La'Mon Akemon,Defendant (ProSe),and hereby moves th9s Court to Proceed To

And To Expedite Judgment Pursuant To Crim.R.47 on the Defendant's fitings(June 15,2010 & June

25,2010) that were filed and submitted to this Court prior to the entry of July 9,2010. A"Judgment

Entry" that has been entered upon the journal (July 9,2010 Judgment Entry),appears to be a sentencing

entry that the trial court did not have jurisdiction to enter or pass upon due to the trial court's Lack of

Jurisdiction as clearly demonstrated in the Defendant's filing Time Stamped and dated June 15,2010 by

the Clerk of Courts Hamilton County. Reasons for the instant motion are more fully articulated in the

Memorandum that follows.

MEMORANDUM

The Defendant,La'Mon Akemon (hereinafter "Defendant"),represents to this Court that on June

15,2010 the Defendant attempted to bring to this Court's attention through a Pro-Se filing and orally

('fr.,pgs.2,3,&17),the Lack of Jurisdiction over the Defendant regarding the original plea that was

entered into on March 8,2004. However,the trial court blatently refused to,at the very least,inquire into

the lack of Jurisdiction as is required by Crim.R.12(C)(2) on its own. Ohio's Crim.R.12(C)(2) states

in very pertinent part: ... " Defenses and objections based on defects in the indictment, inforniation, or

9AfIINl91

complaint (other than failure to show jurisdiction in the court or to charge an offense, which objections

shall be noticed by the court at any time during the pendency of the proceeding)". A reasonable

inference can be drawn that this Rule imparts an obligation on the trial court,or any court for that

matter,to inquire into the jurisdiction or lack thereof atanytime during the pendency of the proceedings.

.Moreover,the Defendant's assertions in his filing dated June 15,2010 clearly mandates this Court to

follow the Rules promulgated by the Ohio Supreme Court,specifically,Crim.R.12(I') which also states

in pertinent part: ... "The court may adjudicate a motion based upon briefs, affidavits, the proffer of

testimony and exhibits, a hearing, or other appropriate means. A motion made pursuant to divisions

(C)(1) to (C)(5) of this rule shall be determined before trial. Any other motion made pursuant to

division (C) of this rule shall be determined before trial whenever possible. `Where the court defers

ruling on any motion made by the prosecuting attomey before trial and makes a ruling adverse to the

prosecuting attomey after the commencement of trial, and the ruling is appealed pursuant to law with

the certification required by division (K) of this rule, the court shall stay the proceedings without

discharging the jury or dismissing the charges. A motion made pursuant to divisions (C)(1) to (C)(5) of

this rule shall be determined before trial".(emphasis added). The Defendant asserts and represents to

this Court that his filing dated June 15,2010 was titled and captioned "Motion To Vacate The Plea

Entered on March 8,2004 For Lack of Jurisdiction" which clearly implicates Crim.R.12(C)(2).

The Defendant represents to this Court that he attempted to bring ali of these relevant and

pertinent factors regarding this Court's lack of jurisdiction to the attention of this Court through his

filing on June 15,2010 and also orally on June 15,2010,despite the fact that this Court should have

recognized the lack of jurisdiction on its own accord,through his clear representations and objections at

the hearing conducted on June 15,2010. See "Exhibit A" attached (Transcripts of the June 15,2010

hearing pgs.2,3,14,17). This Court proceeded as if the representations and objections had absolutely no

bearing or meaning whatsoever. Then this Court proceeded to blatently deny the Defendant's

2

Crim.R.32.1 motion without a seperate,complete, and impartial hearing as is required under State v.

Xie (1992),62 Ohio St.3d 521 and State v. $oswell(2009),121 Ohio St.3d 575. Crim.R.32.1.

Moreover,this Court refused to enter itsfendings offact andconclusions of law to support its decision

as was also requested clearly by the Defendant in his Pro-Se filing on April 19,2010 when this Court

denied the Defendant's "Motion To Withdraw Plea Pursuant To Crim.R.32.1" filed for record on April

19,2010.gurthermore,on June 25,2010 the Defendant filed yet another Pro-Se filing titled and captioned

"Motion To Stay Entry ofAny Judgment From the Hearing Held on June 15,2010 and Recall the

Defendant For a Hearing that Comports With Due Process and Crim R.32.1 "in order to give this

Court the opportunity to rectify the due process deprivations being suffered by the Defendant and to

also preserve the Defendant's right to appeal and toll the time limit described in App.R.4(A). This pro-

se filing, as the pro-se filing of June 15,2010,has NOT been ruled upon by this Court to date.

The Defendant's Due Process rights are clearly being jeopardized by this Court's blatent refusal

to comply with Crim.R.12(T) and render a ruling with regards to the defendant's pro-se filings filed for

record on Jurie 15,2010 and June 25,2010.

Wherefore,the Defendant hereby moves this Court to Proceed To and Expedite Judgment

Pursuant To Crim.I2.47 on hz,gpro-sefilings filed for record on June 15,2010 and June 25,2010.

r ,^' " C1`.%loreover,the Defendant requests this Court to take Jrrdicial-llc, •:ee that he moves'Y`'

^.i^ ourt to record

findings offact and conclusions of lawto support the decision of this motion.

'Mon Akemon,I.D.4468-818 (Defendant-Pro-Se)Dayton Correctional Institution

4104 Germantown Street

3

Dayton, Ohio 45417

CERTIFICATE OF SERVICE

I,the undersigned hereby certify that a true copy of the foregoing Motion to Proceed to and Expedite

Judgment Pursuant To Crim.R.47 was served upon Philip R. Cummings Assistant Prosecuting Attorney

230 East Ninth Street,Suite 4000,Cincinnati,0hio 45202 by way of ordinary U.S. Postal Service this

29th day of July,2010.

La'Mon Akemon,I.D.46 S-818Defendant-Pro-Se.

as

4

6

24

25

MORNING SESSION, JUNE 15, 2010

THE COURT: We have State of ohio

versus Lamon Akemon, B0309830. It's here

for two things. Actually, Mr. Akemon has

filed a motion to withdraw his plea. i'd

like to address that first. -That's been

filed by Mr. Akemon himself, pro se.

Mr. Akemon, i'll hear you on that.

is there anything you wanted to add?

i've read your motion.

THE DEFENDANT: No. I'd like -- I

got my notes over here and i'rn handcuffed

so i can't go through my notes of what I

have to say before i'm here to speak

about my motion to withdraw. And there

is another plea.

There's also another motion that's

been filed. And I asked my father

because I had it sent down here because I

was incarcerated up at DCI. so i'm going

to get copies on the other motion that

has been filed that's before you and i'd

like to discuss that, argue that motion,

too.

THE COURT: okay. well, that's not

3

3

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set today, so i haven't received a copy

of it. Has it been filed?

THE DEFENDANT: Yes, it has.

THE COURT: Do you have a

time-stamped copy?

THE DEFENDANT: Yeah, that's what

I'm trying -- my father went to go get

now.

THE COURT: Mr. Donnellon, will you

check and see if there's another motion

that's been filed?

okay. I'll hear you on th