IN THE SUPREME COURT OF OHIO

JOHN LEONE,

RELATOR,

-vs-

CUYAHOGA COUNTY COURTOF COMMON PLEAS,

Case No. 2012-1328

Original Action InMandamus and Prohibition

RESPONDENT.

RESPONDENT'S MOTION TO DISMISS

COUNSEL FOR RELATOR, COUNSEL FOR RESPONDENT

DAVID B. WAXMAN (#0034590)MICHAEL R: BLUMENTHAL (#0041200)Waxman Blumenthal LLC28601 Chagrin BoulevardSuit 500Cleveland, Ohio 44122(216) 514-9400

WILLIAM D. MASONCuyahoga County ProsecutorBY: James E. Moss (#0061958)Assistant Prosecuting AttorneyThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113(216) 443-7800

AUG : 2 4 2012

CL€RK OF COURTAPR€M€ COURT OF OHIO

IN THE SUPREME COURT OF OHIO

JOHN LEONE,

RELATOR,

-vs-

CUYAHOGA COUNTY COURTOF COMMON PLEAS,

RESPONDENT.

Case No. 2012-1328

Original Action InMandamus and Prohibition

Now comes Respondent, Cuyahoga County Court of Common Pleas, by and through the

undersigned counsel, and respectfully requests that this court grant Respondent's motion to

dismiss Relator's complaint for writ of mandamus and prohibition for the reasons stated in the

attached memorandum in support, incorporated herein.

Respectfully submitted,

By:

WILLIAM D. MASONCuyahoga CountyaProsecutor

Ivlo'ss 10061958Cuy oga County Prdsecutor

J sti e Center, 8^` Floor1VOntario StreetCleveland, OH 44113(216) 443-7800

MEMORANDUM IN SUPPORT

1. PROCEDURAL HISTORY OF THE CASE

On November 17, 1998, the State of Ohio and relator John Leone entered into a plea

agreement in which Leone would plead guilty to twenty-four counts with an agreed total

sentence of eighteen to twenty-five years in case numbers CR-96-335682, CR-98-365723, and

CR-95-325657-A. On November 17, 1998, Leone pled guilty to nineteen counts in Cuyahoga

County Court of Common Pleas case number CR-96-335682 of various offenses including

corrupting another with drugs in violation of R.C. 2925.02 (Counts 1 through 5), drug trafficking

in violation of R.C. 2925.03 (Counts 6 through 13), drug abuse in violation of R.C. 2925.11

(Counts 14 through 18), and engaging in a pattem of corrupt activity in violation of R.C. 2923.32

(Count 21). Counts 19 and 20 were nolled.

On November 17, 1998 Leone also pled guilty in Cuyahoga County Court of Common

Pleas case number CR-98-365723 to two counts of corrupting another with drugs in violation of

R.C. 2925.02 (Counts 1 and 3), and two counts of drug trafficking in violation of R.C. 2925.03

(Counts 2 and 4). In addition, November 17, 1998 Leone also pled guilty in Cuyahoga County

Court of Common Pleas case number CR-95-325657-A to one count of felonious assault in

violation of R.C. 2903.11 (Count 2). Count 1 was nolled.

However, on December 15, 1998, Leone, after retaining new counsel, submitted an oral

motion to the trial court to withdraw his plea. The trial court held hearing on Leone's motion to

withdraw his plea that same day and subsequently denied Leone's motion to withdraw his plea.

At the sentencing hearing held on January 11, 1999, the trial court sentenced Leone to a

total of eighteen (18) to twenty-five (25) years in case numbers CR-96-335682, CR-98-365723,

and CR-95-325657-A. However, on that same day the trial court issued sentencing journal

entries in case numbers CR-96-335682, CR-98-365723, and CR-95-325657-A in which Leone

was sentenced to six (6) to fifteen (15) years in case number CR-95-325657-A, twelve (12) to

twenty-five (25) years in case number CR-96-335682, and to four (4) to twenty-five (25) years in

case number CR-98-365723. The trial court ordered that the six (6) to fifteen (15) year sentence

in case number CR-95-325657-A be served consecutively to the twelve (12) to twenty-five (25)

year sentence in case number CR-96-335682 for a total of 18 (eighteen) to forty (40) years. The

four (4) to twenty-five (25) year sentence in case number CR-98-365723 was ordered to be

served concurrently with the sentences in case numbers CR-95-325657-A and CR-96-335682. I

Leone did not file a direct appeal of his convictions. However, Leone did file an appeal

of the trial court's denial of his motion to withdraw his plea with the Eighth District Court of

Appeals. State v. Leone, 8`h Dist. No. 75871, 75872, 75873, 75874, 2001 WL 217761 (Feb. 24,

2000) ("Leone I"). The Eighth District Court affirmed the judgment of the trial court denying

Leone's motion to withdraw his plea on the basis that Leone was given a full Crim.R. 11 hearing

prior to entering his pleas, was informed and aware of the consequences of his pleas, and was

given a full and impartial hearing on his motion to withdraw his pleas. Id., appeal not allowed by

State v. Leone, 89 Ohio St.3d 1426, 729 N.E.2d 1197 (2000).

Leone subsequently filed an application for reopening, pursuant to App.R. 26(B), to

reopen the appellate judgment that was rendered in Leone L State v. Leone, 8th Dist. No. 75871,

75872, 75873, 75874, 2001 WL 1268635 (Oct. 12, 2001) ("Leone II'). In Leone II the Eighth

District Court found no merit to Leone's claim that he received ineffective assistance of appellate

counsel for counsel's failure to argue that the trial court misinformed him about the sentence he

1 Respondent is filing a "Notice of Judicial Action" contemporaneously with this motionthat appends the sentencing journal entries issued by the trial court on January 11, 1999 in case

numbers CR-95-325657-A (Ex. A), CR-96-335682 (Ex. B), and CR-98-365723(Ex. C).

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was subject to under the plea agreement. Id. Additionally, the court in Leone II determined that

the doctrine of res judicata precluded further review of the issue of whether Leone entered a

voluntary and knowing plea of guilty since this issue was previously raised in his appeal of the

trial court's denial of his motion to withdraw his plea with the Eighth District Court of Appeals

in Leone I Leone II, supra, appeal not allowed State v. Leone, 94 Ohio St.3d 1454, 762 N.E.2d

371 (2002).

On November 14, 2007, Leone filed a motion to correct sentence in which he claimed

that the Ohio Department of Rehabilitation and Correction ("ODRC") unlawfully modified his

sentence from the agreed sentence of eighteen (18) to twenty-five (25) years to 18 (eighteen) to

forty (40) years.2 On September 10, 2009, the State of Ohio filed a brief in opposition to

Leone's motion to correct sentence.

On October 23, 2009 the trial court 3 issued a nuncpro tunc journal entry in case number

CR-95-325657-A in an attempt to correct the journal entries issued by the trial court on January

11, 1999. In the trial court's nunc pro tunc entry issued on October 23, 2009, Leone was

sentenced to six (6) to fifteen ( 15) years in case number CR-95-325657-A and sentenced to

twelve ( 12) to twenty-five (25) years in case number CR-96-335682 with the minimum terms to

be served consecutively and the maximum terms to be served concurrently for a total sentence of

eighteen ( 18) to twenty-five (25) years.

2 Leone claims in his motion to correct sentence that the ODRC unlawfully modified hissentence from the agreed sentence of eighteen (18) to twenty-five (25) years to 18 (eighteen) toforty (40) years even though the trial court's sentencing journal entries issued by the trial courton January 11, 1999 indicate Leone was sentenced to 18 (eighteen) to forty (40) years in casenumbers CR-96-335682, CR-98-365723, and CR-95-325657-A. See fnt. 1.

3 The trial judge who originally sentenced Leone on January 11, 1999 was succeeded by adifferent judge who ruled on Leone's motion to correct sentence filed on November 14, 2007.

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Leone subsequently appealed the nunc pro tune entry issued by the trial court on October

23, 2009 to the Eighth District Court of Appeals. State v. Leone, 8th Dist. No. 94275, 2010-Ohio-

5358 ("Leone IIP'). In Leone III Leone argued that the nunc pro tunc entry was void because the

trial court lacked jurisdiction to modify his sentence and because the trial court improperly

resentenced him without his presence. Id. at ¶ 4. In addition, Leone argued in Leone III that the

sentence imposed by the trial court in 1999 is void due to an error in calculating the maximum

indefinite sentence and that the trial court's error necessitates his guilty plea being vacated. Id.

The Eighth District Court in Leone III found that the sentencing journal entry issued by

the trial court January 11, 1999 in case number CR-95-325657-A, in which Leone was sentenced

to 18 (eighteen) to forty (40) years, was a valid sentence for the versions of the statutes in effect

a t t h a t time. I d at ¶ 6.

In addition, in Leone III the Eighth District Court held that the nunc pro tunc entry issued

by the trial court on October 23, 2009 does not correct any clerical error or make the record

speak the truth since the sentence of eighteen (18) to twenty-five (25) year sentence imposed by

the trial court in the nunc pro tune entry for case numbers CR-95-325657-A and CR-96-335682

misstates the law since the maximum sentence of forty (40) years to which Leone was properly

sentenced in 1999 was determined by statute and the trial court was without authority to change

it. Id. at ¶ 7-8.

Moreover, the Eighth District Court in Leone III determined that Leone's contention that

his plea must be vacated in case number CR-95-325657-A was barred by res judicata since

Leone had previously appealed the validity of his guilty pleas. Id. at ¶ 9. As a result, the Eighth

District Court remanded the matter back to the trial court to vacate the October 23, 2009 nunc

pro tunc entry and reinstate the January 11, 1999 judgment. Id. at ¶ 11. Leone did not file an

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appeal of the judgment of the Eighth District Court in Leone I77. On February 1, 2011, the trial

court vacated the October 23, 2009 nunc pro tunc entry and reinstated the January 11, 1999

judgment as mandated by the Eighth District Court in Leone Ili.

On August 6, 2012, Leone filed a complaint in prohibition or, in the alternative, for writ

of mandamus ("Complaint") asking this Court to direct the trial court to hold a new sentencing

hearing and fashion a sentence that is in compliance with statutory law in effect at the time of

Leone's criminal acts and as agreed to in the plea agreement between the State of Ohio and

Leone.

II. RELATOR'S PETITION IS DEFECTIVE

Under R.C. 2731.04 a party filing an action for a writ of mandamus must be in the name

of the state on relation of the person applying. The caption in Leone's Complaint indicates "John

Leone v. Court of Common Pleas of Cuyahoga County". The failure of Leone to properly file

his writ of mandamus in the name of the state as mandated by R.C. 2731.04 warrants dismissal

of his Complaint. Rust v. Lucas Cty. Board of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, at

¶ 16. Therefore, Respondent respectfully requests that this Court dismiss Leone's complaint for

writ of mandamus.

III. RELATOR IS NOT ENTILED TO REMEDY BY WAY OF MANDAMUS ORPROHIBITION

The requisites for mandamus are well established: (1) the relator must have a clear legal

right to the requested relief, (2) the respondent must have a clear legal duty to perform the

requested relief, and (3) there must be no adequate remedy at law. In addition, to be entitled to a

writ of prohibition, relator must establish that the respondent is about to exercise judicial or

quasi-judicial power, that the exercise of such power is unauthorized by law, and that the denial

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of the writ will cause injury to relator for which no other adequate remedy in the ordinary course

of law exists. State ex rel. YVhite v. Junkin, 80 Ohio St.3d 335, 336, 1997-Ohio-0202.

In his Complaint Leone is asking this Court to direct the trial court to hold a new

sentencing hearing and fashion a sentence that is in compliance with statutory law in effect at the

time of Leone's criminal acts and as agreed to in the plea agreement between the State of Ohio

and Leone. Leone's Complaint is without merit.

A. Leone had an adequate remedy at law to raise his claim that he is entitled to anew sentencing hearing due to the trial court's breach of a plea agreementbetween the State of Ohio and Leone

In his Complaint Leone claims he is entitled to a new sentencing due to the trial court's

breach of a plea agreement between the State of Ohio and Leone. However, Leone had or has an

adequate remedy at law to raise his claim that the trial court breached the plea agreement

between the State of Ohio and Leone. Leone did not file a direct appeal of his conviction on

January 11, 1999. In addition, when Leone filed an appeal of the trial court's denial of his oral

motion to withdraw his plea with the Eighth District Court of Appeals, Leone claimed that his

defense counsel failed to explain his constitutional right to waive a jury and incorrectly told him

he would only receive nine years in prison, but never alleged that the trial court breached the

plea agreement between the State of Ohio and Leone. State v. Leone, 8th Dist. No. 75871,

75872, 75873, 75874, 2001 WL 217761 (Feb. 24, 2000) ("Leone I"). In fact, Leone never

expressly claimed that the trial court breached the plea agreement between the State of Ohio and

Leone until he filed his Complaint in the instant case.

Leone had an adequate remedy at law by way of direct appeal to raise his claim that the

trial court breached the plea agreement between the State of Ohio and Leone, but failed to raise

this claim. As a result, Leone is not entitled to a remedy by way of mandamus or prohibition to

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raise his claim that the trial court breached the plea agreement between the State of Ohio and

Leone. State ex rel. Rowe v. McGown, 108 Ohio St.3d 183, 2006-Ohio-548, ¶ 5 (dismissal of

relator's petition for writ of mandamus was warranted since relator had an adequate legal

remedy to rectify any alleged breach of plea agreement); State ex rel. Seikbert v. Wilkinson, 69

Ohio St.3d 489, 491, 1994-Ohio-39 (court affirmed dismissal of relator's petition for writ of

mandamus since relator possessed an adequate legal remedy to rectify any alleged breach of the

plea agreement).

B. Leone had an adequate remedy at law to raise any claims that the trial courterred when it sentenced him

In his Complaint Leone claims that the trial court erred when it sentenced him to 18

(eighteen) to forty (40) years on January 11, 1999 and reinstated this sentence on February 1,

2011, as mandated by the Eighth District Court of Appeals in Leone M. As a result, Leone is

asking this Court to "fashion a sentence that is compliance with statutory law at the time of

Plaintiff s-Respondent's [sic] criminal acts and sentencing as agreed in the Plea Agreement."

(Leone's Complaint at p. 4).

However, the Eighth District Court of Appeals in Leone III found that the sentencing

journal entry issued by the trial court January 11, 1999 in case number CR-95-325657-A, in

which Leone was sentenced to 18 (eighteen) to forty (40) years, was a valid sentence for the

versions of the statutes in effect at that time. Id. at ¶ 6. Leone is asking this Court to "fashion a

sentence" that is compliance with the plea agreement of between the State of Ohio and Leone.

However, the sentence that Leone is impliedly asking this Court to impose, (18) to twenty-five

(25) years, has previously been found by the Eighth District Court of Appeals in Leone III to be a

misstatement of the law. Id. at ¶ 7-8.

9

Moreover, Leone had had an adequate remedy at law by way of direct appeal to raise his

claim that the trial court erred when it sentenced him on January 11, 1999, but did not file a

direct appeal of his original conviction. Leone did, however, challenge various aspects of the

trial court's sentence imposed upon him in case numbers CR-96-335682, CR-98-365723, and/or

CR-95-325657-A in his appeal of the trial court's denial of his motion to withdraw his plea in

Leone I, his application for reopening of the prior appellate judgment in Leone 11, and his appeal

of the nunc pro tunc entry issued by the trial court on October 23, 2009 in Leone III.

Since Leone had an adequate remedy at law to challenge the 18 (eighteen) to forty (40)

year sentence imposed upon him by the trial court on January 11, 1999 in case numbers CR-96-

335682, CR-98-365723, and/or CR-95-325657-A, he is not entitled to a remedy by way of writ

of mandamus or prohibition. State ex rel. Culgan v. Kimbler, _ Ohio St.3d _, 2012-Ohio-33 10

(slip opinion) (court affirmed dismissal of petition for writ of mandamus and procedendo since

appellant had adequate remedy by appeal to raise his claim of sentencing error); State ex rel.

Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, ¶ 2 (court denied relator's petition for

writ of mandamus and prohibition since an error in sentencing does not patently and

unambiguously divest the court or its judges of jurisdiction to enter judgment and a party

contesting that jurisdiction has an adequate remedy by appeal); State ex rel. Plant v. Cosgrove,

119 Ohio St.3d 264, 2008-Ohio-3838 (mandamus and prohibition are not appropriate actions to

vacate amended sentence because trial judge did not patently and unambiguously lack

jurisdiction and relator had an adequate remedy by appeal from sentencing entry).

C. Leone's claims are barred by res judicata

In his Complaint Leone claims he is entitled to a new sentencing in case number CR-95-

325657-A due to the trial court's breach of a plea agreement between the State of Ohio and

10

Leone. However, the Eighth District Court has previously held Leone's plea and sentence in

case number CR-95-325657-A was valid. State v. Leone, 8tb Dist. No. 94275, 2010-Ohio-5358.

("Leone IIT'). As a result, the doctrine of res judicata precludes Leone from challenging the

validity of his plea and sentencing in case number CR-95-325657-A.

In addition, Leone's claim that his sentence of 18 (eighteen) to forty (40) years most

recently imposed upon him in 2011 by the trial court is manifestly unjust and must be corrected

to comport with the plea agreement is also barred by res judicata. The 18 (eighteen) to forty (40)

year sentence imposed upon Leone by the trial in its journal entry issued on February 2, 2011

was expressly ordered by the Eighth District Court of Appeals in Leone M. Id. at ¶ 11.

In Leone III the Eighth District Court of Appeals found that the sentencing journal entry

issued by the trial court January 11, 1999 in case number CR-95-325657-A, in which Leone was

sentenced to 18 (eighteen) to forty (40) years, was a valid sentence for the versions of the

statutes in effect at that time. Id. at ¶ 6. The 18 (eighteen) to forty (40) year sentence imposed

upon Leone by the trial court in its journal entry issued on February 2, 2011 was expressly

ordered by the Eighth District Court in Leone IIL Id. at ¶ 11.

Leone's plea and sentence in case number CR-95-325657-A has already been litigated in

the Eighth District Court of Appeals. Leone elected not to file an appeal of the Eighth District

Court's judgment in Leone III with this Court. Leone's attempt to reverse the Eighth District

Court's judgment in Leone III by filing an extraordinary writ in the instant case is not warranted

under Ohio law and is precluded by doctrine of res judicata.

Res judicata bars the litigation of all claims that either were or might have been litigated

in a first lawsuit. State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 36;

State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, at ¶ 14. Because the validity of Leone's

11

plea and sentence in case number CR-95-325657-A has already been litigated by the Eighth

District Court in Leone I, Leone II and Leone III, supra, Leone' claim that he is entitled to a new

sentencing due to the trial court's breach of a plea agreement between the State of Ohio and

Leone is barred by res judicata.

IV. CONCLUSION

Leone has failed to establish that he has a clear legal right to the requested relief, that

Respondent has a clear legal duty to perform the requested relief, and that Leone has no other

adequate remedy at law. As a result, he is not entitled to relief by way of mandamus.

Similarly, Leone has failed to establish that Respondent is about to exercise judicial

power unauthorized by law, and that the denial of the writ will cause injury to Leone for which

no other adequate remedy in the ordinary course of law exists. As a result, Leone is not entitled

to relief by way of writ of prohibition.

For the foregoing reasons, respondent Cuyahoga County Court of Common Pleas

respectfully requests that this court grant its motion to dismiss Leone's complaint for writ of

mandamus and alternative writ of prohibition.

Respectfully submitted,

WILLIAM D. MASONahoga Coutiy Prose

1200 Ontario StreetCleveland, OH 44113(216) 443-7800

ustice Center, 8th Flooristant Cu ahoga County Prosecutor

s E9 Moils (0061958)

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CERTIFICATE OF SERVICE

A copy of the foregoing Respondent's motion to dismiss was mailed this 23`a day of

August, 2012, by regular U.S. Mail to David B. Waxman and Michael R. Blumenthal, counsel

for relator John Leone, at Waxman Blumenthal LLC, Attorneys at Law, 28601 Chagrin

Boulevard, Suite 500, Cleveland, Ohio 44122.

By:S (00619$8

ant Pfosecuting Att

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