IN THE SUPREME COURT OF OHIO

Vincent M. Niepsuj

Appellant,

V.

State of Ohio

Appellee.

0'7 -0968On Appeal from theSummit County Courtof Appeals, NinthAppellate District

Court of AppealsCase No. C.A. 23593

MEMORANDUM IN SUPPORT OF JURISDICTION

OF APPELLANT VINCENT M. NIEPSUJ

Vincent M. Niepsuj (512-742) (COUNSEL OF RECORD)

Marion Honor Camp

P.O. Box 57

Marion, Ohio 43301-0057

SELF-REPRESENTING APPELLANT

Phil Bogdanoff, Esq.

Assistant Summit County Prosecutor

Summit County Safety Building

53 University Avenue

Akron, Ohio 44308

COUNSEL FOR APPELLEE

TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC INTERESTAND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ............ 1

STATEMENT OF THE CASE AND FACTS ............................... 2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW .................... 6

Propo^sition of Law No. I: An incarcerated citizen is denied due pro-cess or 1aw when precluded rrom reconsideration in appeal because two-waymail delays cartmon in prison.

Proposition of Law No. II: A promise to hear a judicial release motion(with relief subject to commmity control) is voided by a journal entry pro-vided soon thereafter which states offender is not amenable to caamLmity ccm-trol and therefore imnediately frocloses any relief via a R.C. 2929.20 hear-

CONCLUSION .... . "t thus preventing further due process measures. 8.. .... ......... ........

PROOF OF SERVICE .............................................. 8

APPENDIX Appx. Page

Journal Entry of the Summit County Court of Appeals

(May 7, 2007) ............................................. la

Journal Entry of the Summit County Court of Appeals

(May 4, 2007) ............................................. 2a

Journal Entry of the Summit County Court of Appeals

(April 10, 2007) .......................................... 3a

Motion to file AMENDED Rule 26 Application for Reconsideration of 4-10-07

Jouranal INSTANTER .................................................... 4,1

AMENDED Rule 26 Application for Reconsideration of 4-10-07 Journal

Entry ..................................................................5q

i

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC INTEREST

AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

While any decision as to the granting of judicial release is

very much in the hands of the presiding judge in Courts of Common

Pleas in Ohio, the due process question in this instant case aris-

es as to what safeguards against any of a myriad of errors or in-

sufficiences exist to insure that a departure from justice does not

occur. The instant case attempts to show how simple delays in

two-way legal correspondence, along with the forclosing nature

of R.C 2929.20 judicial release hearings (for F4 and F5 offenses)

can both serve to deny essential due process of law.

1

STATEMENT OF THE CASE AND FACTS

This case rises to this highest Court based originally on a

minor misdemeanor of disorderly conduct, disposed of as an M4 on

August 23, 2001. According to the running tape recording of cases

running that day, Mr. Tony Franks a municipal court employee was

peppering Judge Linda Teodosio with irrelevant, false, and highly

prejudicial statements that were not exactly glowing references

concerning the instant Appellant in that Cuyahoga Falls venue. Thus

the beginnings of an unfavorable regard for the Appellant that

seemed to attenuate with each professional in the court system with

whom he had interaction in Summit County (although some have simply

served to perpetuate the status quo). In any case somehow the disor-

derly conduct was used to leverage a civil protection order three

months later, followed by the filing for marital divorce three more

months, and although this Appellant was once the very devoted (and

often tired) full time stay-at-home parent to three great young fel-

ahs during most of 2001, since then he has interacted with these

children in their suseptible, ductile, developmental years an abso-

lutely abysmal average of only one hour every seventy five days per

youngster, for no compellingly good reason. In 2003 the Appellant

pled guilty to two misdemeanor violations of the Consent CPO he and

his former spouse originally entered. Then in September of 2006 the

Appellant pled to one count of violating the unapproved Consent CPO

and to one count.of menacing by stalking coinciding with the same

charge against him in 2004 involving the chief conservator of the

peace in Tallmadge, Ohio which charge was no-true-billed on or a-

round July 2, 2004. The September 2006 convictions involved no ex-

plicit finding of fact as to what factor made the menacing charge

2

a felony, what facts if any necessitated a sentence beyond the min-

imum of six months, and what facts if any necessitated that the two

convictions should be run concurrently. See State v. Comer 793 N.E.

2d 473. What occurred just before trial is that 21 months total

was recommended by the State's attorney, along with the promise of

not opposing judicial release, upon the filing of the appropriate

motion by the Appellant's appointed attorney after sixty days of

penal incarceration. In addition, the State would drop a number of

completely bogus charges (for example a burglary that NEVER occurred

and an unspecified violation of the Consent CPO on a day that NEVER

occurred - i.e. Feb. 29, 2006), if the Appellant would just utter

the word guilty to a violation of the unapproved CPO (which was

unapproved in front of both an unappointed and unsworn-in magis-.

trate in 2001 (this issue is currently being treated in a post con-

viction motion in Summit County case CR 2006-03-1036) ), and plead

guilty to somehow or other causing his former spouse reason to be-

lieve that he would cause her distress two times between May 23,

2004 and Feb. 27, 2006. In the end, the Appellant admitted guilt

to the'bther chargd' which the Grand Jury threw out in 2004, and

which Appellant's appointed attorney.made very clear did not in-

volve the town's Chief Conservator of the Peace, which was good

because all the Appellant had done is drop a letter off at his

front door, sharing the former's concern for his young children.

The day that that letter was hand-delivered in broad day light, the

Appellant tried to prudently arrange for the delivery of birthday

gifts and a birthday cake for his eldest child, when his mother

would not cooperate for a gift transfer, on this precious child's

actual (tenth) birthday. These acts of ordinarily civil behavior

3

led to four felony charges which all went away. However a fifth one,

the menacing by stalking - particularly commencing on the day of

those other dropped or no-billed charges - was not something that

the prosecutor would give up on. So again, since the Appellant

had also attempted to convey important information about his child-

ren on Feb 27, 2006 to the Chief Conservator of the Peace (the in-

formation was also on a civil case commencing that day involving

Richard Zurz Jr. and Dean Hoover, Esq. as the attorneys in the

controversy of CPO litigation as a form of malicious prosecution.

That case was to be in front of Judge Jim Murphy (rtd.) in Summit

County), and since the Appellant had left information about his

children an May 23, 2004 (which information also described Appel-

lant's input in the transformation of the docketing statement forms

in the Ninth District Court of Appeals in the 2002-2003 time period)

and since he was being offered the option of being freed "after go-

ing down for a little while" (i.e. after about 60 days), the Appel-

lant agreed to accept the plea bargain. Of course there were other

factors influencing his decision. Firstly subpoenas in his case -

were not being sent to known addresses of key witnesses who could

have helped exonerate the Appellant. Secondly it appeared that the

ju4ge was not being truthful with regard to magistrates in the Do-

mestic Relations Court comporting with OR.C. 3.22 and O.R.C. 3.22

and Ohio Constitution Art. 15 Section 7. Thirdly the Appellant had

a very pressing need to get out as soon as possible because his mo-

ther had died during the pendancy of the criminal case (CR 2006-03

-1036) and his elderly father needed special hospital care, and

his oldest son also was having serious difficulties. At the phase

II judicial release hearing on January 2, 2007 a number of lies

4

or misrepresentations were made. What the Appellant had expected to

be a formality of a hearing in support of his release (in "all like-

lihood" according to his attorney), turned out to be a perfunctory

exercise in simply sending the Appellant straight back to the Mar-

ion Correctional Institution (i.e. its "°Honor Camp") for another

16 months. At the phase II hearing the Appellant said nothing wrong.

He did not lie. He did not show anyone disrespect. He satisfied his

end of the bargain in terms of having good (meaning acceptable) be-

havior, and not contacting persons on the Consent Agreement CPO

(which was due to expire on Nov. 7, 2001, after 60 months of hell

enduring the utter stupidity of being separated from his dear sons

such that going to a school play is a felony, or even having a few

beers could get him up to two years in prison). Yet the Appellant

was shot down and sent back to Marion.

It seems that the Appellant's defense against the renewal of

the Consent CPO, was what was being held against him (unbelievably)_

Never mind that a motion for this renewal was served on him just

after the Sept. 7, 2006 plea bargain negotiations, in which it was

expressed to him via the state's attorney th8t his former wife was

in agreement with the parameters of a planned judicial release,

which agreement seemed suddenly to be in contradiction to the CPO

renewal efforts (i.e. it is not likely that Appellant would have

agreed to the plea negotiations had he known his former spouse was

probably not really in support of his judicial release). But then

to have Appellant's fair-handed defense of the CPO renewal effort

held against him was hard to take. Thus Appellant appealed the de-

nial of judicial release. That case was dismissed, and his App. R.

26 Application for Reconsideration was wrongly taken as late and

not even considered at all. Thus this appeal to this highest court.

5

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. I:. An incarcerated citizen is

denied due process of law when precluded from reconsideration

in appeal because of two-way mail delays common in prison.

In the instant case Appellant received notice on April 18, 2007,

at Marion Honor Camp, per Ohio App.R. 22, that his appeal (CA 23593)

was dismissed on April 10, 2007 (Exhibit 3r^.

As explained in his instanter motion (Exhibit 4q) he faced sub-

stantial hardships in trying to file an amended Application for Re-

consideration (Exhibit 5a, per Ohio App.R. 26, which provides a ten

day filing deadline, and based on receipt of dismissal notice Ap-

pellant only had two days to accomplish this extraordinary feat.

The Ninth District Court of Appeals issued a May 4, 2007 en-

try (Exhibit 2^, which denied the instanter motion, and a May 7,

2007 entry (Exhibit 10 striking the amended application as untimely.

This May 7th journal entry, however, did not explain or comment

upon the timeliness of the original Rule 26 application which was

mailed on April 25, 2007 from MArion Correctional Institution.

Even if Ohio App.R. 13(A) and App.R. 14(C) are considered as

being applicable here, Appellant had far too little time to provide

a decent response, and therefore he was denied due process of law.

Proposition of Law No. II: A promise to hear a judicial re-

lease motion (with relief subject to community control) is

voided by a journal entry provided soon thereafter which

states offender is not amenable to community control and

therefore immediately forcloses any relief via a R.C. 2929.20

hearing, thus preventing further due process measures.

Per R.C. 2929.20 an offender may only have one hearing to con-

sider a motion for judicial release. A denial of judicial release

6

is not appealable according to State v. Woods 752 N.E.2d 309. How-

ever this case was decided by the Ninth Appellate District Court

of Appeals based on this Court's ruling in State v. Coffman 742

N.E.2d 644 which only treats shock probation. That method of post

conviction relief is different from its replacement which is judicial

release under R.C. 2929.20 which does not allow multiple hearings

even for low level offenders. That is when an F4 or F5 offender is

denied judicial release following a hearing he is completely stopped

in his path. Ond denfQl P/'vcf rally occur/'eci % efore heer,n9 PEi q'M O6 en(ry (Ex5P 2

It seems that even if there were objectionable elements brought.^

up at a judicial release hearing these cannot be raised in appeal.

In the case of this Appellant, he would contend that several lies

were foisted by the state at his January 2, 2007 judicial release

hearing which nevertheless had seemcl like a method for being re-

leased with a high likelihood, when he entered a negotiated plea

deal on Sept. 7, 2006 in Summit County case CR 2006-03-1036.

Unfortunately on that same day a motion to try to continue a

Consent Agreement based Civil Protection Order was served on the

Appellant right after what he had thought were good faith plea

negotiations. The nature of these negotiations are set forth in

the Amended Application for Reconsideration (Exhibit 5). However

regardless of the Appellant's best attempts to explain how mani-

fest injustice had been done via the cursory, perfunctory mechan-

isms of judicial release, he was not heard by the Ninth District

Court initially because of the broadly sweeping Woods holding, but

finally because he could not get his Application for Reconsideration

in on time as per proposition I supra. The point is for any incar-

cerated citizen the barriers to judicial release can be prohibitive-

ly high and thus essential due process of law is quite sadly denied.

7

Conclusion

Wherefore, for the reasons discussed above, this case involves

the basic due process question concerning the finality of a denial

of relief under R.C. 2929.20 and is of great interest to thousands

of Ohio citizens touched by the effects of penal incarceration, and

who would seek, in good faith remedies that do not anticipate final

forclosure. The appellant requests that this court accept jurisdiction

in this case so that the simple, yet important issues presented will

be given just consideration.

Respectfully submitted,

Vincent M. Niepsuj

SELF-REPRESENTING APPELLANT

Certificate of Service

I certify that a copy of this Memorandum in Support of Juris-

diction was sent by ordinary U.S. mail, posted at Marion Correct=

ional Institution, to counsel for appellee, Phil Bogdanoff, Esq.,

Assistant Summit County Prosecutor, Summit County Safety Building,

53 Univers.:ty Avenue, Akron, Ohio 44308, on May 25, 2007.

pectfully Submitted,

^Vincent M. Niepsuj

SELF-REPRESENTING APPELLANT

I EKh,b,t tc(

STATE OF OHIO

COUNTY OF SUMMIT

) IN THE COURT OF APPEALS)ssa NINTH JUDICIAL DISTRICT

„Z^s^! ht;: - 7 s'i°i 1 2: i 4STATE OF OHIO C A N 23 9. . o. 5 3

Appellee

V.

VINCENT M. NIEPSUJ

Appellant

Iv

^I ^' J^ U- '^%'^_^i , i.^ „ J^RT B

JOURNAL ENTRY

Appellant has moved this Court to reconsider its April 10, 2007 order dismissing the

appeal for lack ofjurisdiction. App.R. 26(A), however, requires that an application for

reconsideration be made "in writing *** within ten days after the announcement of the

court's decision." The application in this case was filed more than ten days after this court's

order and therefore is untimely. Appellant's application for reconsideration is stricken as

amtimelv.

Judge

wt Time: 0e:00 AM Pass Date: 1I-MAY-07

c^

0 ame: NIEP9UJ Id: A512742Issued By

Z

^Ey z Lock: 6-MCC-H-E--0009 JOb. STUDENT Sgt. Ruggles

r^ a ^1ati0n: LEGAL MAIL

U') a

Dismissed By

Time

U N xJ 'ed By: MAILROOM - LEGAL MAIL Inmate Signature Time

tOpaelHol

U^^a'

I E,x/s bi^ Za

STATE OF OHIO ) '! IN THE COURT OF APPEALS)ss: NINTH JUDICIAL DISTRICT

COUNTY OF SUMMIT ^Lv J( :ri

STATE OF OHIO

Appellee

VINCENT M. NIEPSUJ

Appellant

tfi j:Lo

'vLLi Si\ (J^ LV^.J^

; ( C.A. No. 23593

3Ts

JOURNAL ENTRY

On May 1, 2007, appellant filed with this Court a "Motion to File Amended Rule 26

Application for Reconsideration," asking that it be accepted instanter as of April 20, 2007.

Annellant's motion is denied.

ix Time: 09:00 AM Pass Date: 11-MAY-07

,-j Name: NIEPSUJ Id: A512742 Issucd ByM^zN LOCIi: 6-MCC-H-E--0009 Job: s2vnsN-rSgt. Ruggles

FC oatlOll: LEGAL MAILDismissed By

^ a 1 ed By: MAILROOM - LEGAL MAIL Inmate Signature

olHuj

Time

'171Time

Time

Exhjb;t 3a

STATE OF OHIO

COUNTY OF SUMMIT

STATE OF OHIO

Appellee

V.

VINCENT M. NIEPSUJ

Appellant

COUR7 0^ ,,pprHi ^y IN THE COURT OF APPEALSILE,,= NINTH JUDICIAL DISTRICT

2601 AF'R 10 AM 10: ti

SUf^fiiitil i i;t UNTY C.A. No. 23593

UPITS

JOURNAL ENTRY

Appellant has appealed from the trial court's order denying his motion for judicial

release. This Court must raise jurisdictional issues involving final and appealable orders sua

sponte. See, In r (1990), 52 Ohio St. 3d 155, 159, fn. 2; and hitaker-Merrell v.

Geupel Co. (1972), 29 Ohio St.2d 184, 186. This Court has previously held that the denial

of a motion for judicial release is not a final and appealable order; therefore, this Court does

not have jurisdiction over the appeal.

The appeal is dismissed. Costs taxed to appellant.

The clerk of courts is ordered to mail a notice of entry of this judgment to the parties

and inake a notation of the mailing in the docket, pursuant to App.R. 30, and to provide a

certified copy of the order to the clerk of the trial court. The clerk of the trial court is

ordered to provide a copy of this order to the judge who presided over the trial court action.

Judge

Exh^bft ^f-u

In the Ninth District Court of Appeals

Summit County, Ohio

State of Ohio

Appellee,

V.

Vincent M. Niepsuj

Appellant.

Case No.: C.A. 23593

Motion to file AMENDEDRule 26 Applicationfor Reconsideration of4-10-07 Journal EntryINSTANTER

Motion

In consideratibn of the Appellant having not received this

honorable Court's April 10, 2007 journal entry dismissing this

appeal, until April 18, 2007 (Exhibit 1 in AMENDED application)

and great difficulty obtaining copies that he might serve on the

prosecutor in this case (for example.once again the Marion Libra-

ry was closed yesterday April 26, 2007 when the head librarian

did not come to work, thus preventing Appellant from making co-

pies - and only via a special variance from the Unit manager could

he obtain a single partial copy at the Marion Camp Thurs eve.),

and in consideration of the difficulty of culling essential re-

search in support of this appeal, and in light of the Appellant

having sent a partial unamended application for consideration to

this honorable Court on April 25, 2007, the Appellant respectfully

asks that this honorable Court treat the AMENDED Rule 26 Applica-

tion for Reconsideration of 4=_10-2007 Journal Entry as being filed

Instanter effective the April 20, 2007 due date in this matter.

Respectfully submitted,

Vincent M. Niepsuj J512-742;M;.C.C.: P:.O Box 57; Marion, Ohio 43301-0057

Certificate of Service

Appellant has mailed this motion to Phil Bogdanoff with his A-

MENDED application on April 28, 2007. Respectfully,`2/.^4a^^Vincent M Niepsuj

i 6h;b;t syJIn the Ninth District Court of Appeals

Summit County, Ohio

State of Ohio

Appellee, Case No.: C.A. 23593

V.AMENDED

Vincent M. Niepsuj Rule 26 Application

Appellant. for Reconsideration of

4-10-07 Journal Entry

Application for Reconsideration

Appellant received this honorable Court's April 10, 2007 jour-

nal entry here at Marion Correctional Institution at 8:04 a.m.

on April 18, 2007 ftom Sgt. Ruggles with the mailroom (exhibit 1).

Having Thursday afternoon (4-19-07 1-3 p.m.) and Saturday (8.-10 a..m.,

4-21-07) to research the subject matter in the Northeastern Report-

ers, etc. Appellant herewith attempts to properly argue for recon-

sideration of this Court's ruling that the instant appeal be dis-

missed for lack of a final appealable order.

Statement of the Legal Problem (g,see p. 23)

itr-i^t = 14 2006 ourtrsl Entzy '1n- Summrt x

case CR 2006-03-1036 the Court of Judge Hunter established two

difficulties or insufficiencies, namely that "the [Appellant] is

not amenable to community control", when only one week earlier the

criminal prosecutor expressed a conditional plea bargain judicial

release arrangement whereby "we would not be opposed to his release

at that time, and the remaining time be suspended while he is(Tr64-23)

placed on community control". Secondly the Hunter Court mis-cited

Ohio statute by referring to O.R.C. 2929.14(E)(3)concerning consec-

utive sentences. It should have cited the (E)(4) sub-section.More

importantly: "Pursuant to R.C. 2929.14(E)(4) and R.C. 2929.19(B)

1

(2)(c), when imposing consecutive sentences, a trial court is

required to make its statutorily enumerated findings and give

reasons supporting those findings at the sentencing hearing".

And this the Hunter Court has not done. State v. Comer 793 N.E.2d 473.

Partly towards the end of learning of such reasoning, the Ap-

pellant has recently filed a petition in the trial court. This is

mentioned because the State in its response has referred to this

Court's April 10, 2007 ruling in the instant case.

Appellant would submit these are especially important underly-

ing factors in the instant Application for Reconsideration as,in

the case sub judice, the Appellant had pled to criminal charges

pursuant to Ohio Criminal Rule 12(F) with an expressed option for

judicial release efforts (pursuant to O.R.C. 2929.20) to ensue af-

ter 60 days of penal incarceration. This was actually the last of

three offers made since April of 2006. The first offer expressed

through AppellanVs appointed counsel was straight probation, if

the Appellant pled to one count of violating an actually verbally

unapproved R.C. 3113.31 Consent Agreement,_and one count of some-

thing that made no sense to the Appellant: Menacing by Stalking

(R.C. 2903.211(A)), which was expressed in an indictment without

any singularly identified aggravating factor, and which is not

necessarily menacing as defined in law,nor stalking as is under-

stood by a lay person. The second offer came on September 7, 2006

in open court, but was not put on the record. The only indication

of that second offer (of 6 plus 15 months for the two charges) is

the following interchanges(Ms. Woodall first referring to last offer):

Ms. Shelby Woodall: "I explained to you they have a start date.If she was going to prove what happened dur-

ing that time it would be the February INCIDENT [singular'used]She has amended to those dates, okay? Amended to those dates. Sheis not going to amend it further. Either you are pleading guilty

2

-- to commiting.an offense during that time period which in-cludes February, and we're focusing on the February date, oryou go to trial on all those counts."

Vince: "Because we discussed --"

Ms. Woodall: "We go to trial on all those counts. It's eitherguilty or not guilty'."

Ms. Angela Poth-Wypasek: "I would note, Your Honor, the State hastried to accommodate Mr. Niepsuj and

met him more than half way and substantially come off myoriginal plea offer, substantially"

(Tr 54-6 thru Tr 55-7)

'Ii3et`"original plea"offer was 15 months for the Menacing by Stalk-

ing Charge, plus 6 months for the Consent CPO violation charge, to

be run consecu-tively, as a 21 month prison sentence, when previous-

ly the Appellant had served 30 days in 2001 and 2002 for m4 misde-

meanors. Such long prison time would mean a cumulative total of

some 32 months without any contact with his dear sons, while in the

Domestic Relations Court.,Appellant's attorney had motioned that

Court for normal visitation, specifically: "the same privileges

that any other father gets." (April 13, 2006 transcript 8-4 thru 8-5)

Towards resolution in that court Magistrate Matz ordered in-camera

interviews of all three sons, with the caveat that such fact-find-

ing would take place "after the criminal proceedings" (6-20-06 or-

der in case D.R. 2002-02-0687, in conjunction with case DR 2001-10-

03960 with respect to which the Appellant was being prosecuted, and

with respect to which the Summit County Prosecutor was defending the

Domestic Relations Court in the Supreme Court of Ohio in case 06-1329.

John Manley, with the Prosecutor's office also was employed to quash

a subpoena for Magistrate Matz to be present as a witness in said

criminal proceeding). When Attorney Woodall expressed that she had

not obtained a certified January 8, 2004 order which sealed the Do-

3

mestic Relations cases, expressed Appellant's interest in develop-

ing a shared parenting plan (first motioned for April 23, 2003), and

most importantly reflected the sort of Court-ordered communication

permission between the Appellant and his former spouse, which was

quite obviously a mitigating, if not exculpatory, factor in Appel-

lant's prosecution for simply trying to convey Valentine's gifts

via the professional assistance of Dr. Robin:Tener, Ms. Marie Mil-

ler, LISW (rtd), and/or the Tallmadge Ohio Police Department, in

light of the subject matter of said sealed order, and in consider-

ation of serious matters Appellant's eldest was enduring -- well it

was at this time that a meaningful plea aQreement to avoid any sur-

prizes attendant with a trial, and which plea agreement would absol-made the most sense.

utely minimize or obviate any prison time., (The Court is asked to

note that Appellant's mother had passed away while he awaited trial

and his father (at 86) became immediately hospitalized, so that Ap-

pellant's continued assistance - as a sole surviving child - was

a pressing concern). Here now is a copy of the transcribed plea

offer,^_whichwas initially supported by the victim in the matter,

but which Appellant strongly feels was essentially reneged when ^^n 2)

he reasonably defended himself against a Civil Protection Order re-

newal motion served on him just after the plea negotiations which

he had assumed were being made on good faith. Such a reversal of

both the victim and the State of Ohio, leaves Appellant with no op-of that

tion other than to seek a variance,,which this Court has expressed

in Ohio v. Woods (752 N.E.2d 309), keeping in mind that finding was

based inter alia on State v Coffman (91 Ohio St.3d 131) which is

based on old shock probation law, and which assumes the procedural

safeguard of a "trial judge's sworn obligation to uphold the law and

apply it with impartiality. See R.C. 3.23. We are confident that,

4

in reviewing motions for shock probation, the trial courts have car-

ried out their duties under the law with a"conscientious, fairmind-

ed and humane viewpoint" Varner (166 Ohio St. at 344), and will con-

tinue to do so with respect to:any future motions brought under form-

er R.C. 2947.061(B)".

This honorable Court is asked to consider Varner with respect

the following plea offer, other transcribed material that follows

concerning both a phase I and a phase II hearing (neither of which

Appellant was qutified of per R.C. 2929.20(D)), the initial diffi-

culties or insufficiciences indicated at the beginning of this

Statement of the Legal Problem section, the actual contents and

meaning of Appellant's October 13, 2006 post-hearing motion in case

D.R. 2001-10-03960 (which seeks to stop an unneeded so-called pro-

testion order from creating further damage to Appellant's substan-

tial parenting interests and rights), and selected case law which

indicates that one's conduct while -tncarcerated should not have the

kind of weight in judicial release consideration which the prosecu-

tor in the case sub_j_udice (i.e. CR 2Q06-03-1036) had dictated.

The Negotiated Plea Offer

I

Prosecutor Poth-Wypasek: "Your Honor, the offer is that Mr. Niepsujplead to Count 3 of the indictment, men-

acing by stalking, a felony of the fourth degree, and he wouldget his choice of pleading guilty to either Counts 4, 5, or 6,one of those three. I don't care which one." (Tr 27-14 thru 27-19)

"We would be recommending on the F-4 menacing by stalking, a pri-son term of 15 months.

We would be recommending on the F-5 vio-lation of a protection order, the minimum time, which is sixmonths, and for those to run consecutive for a 21-month totalprison sentence.

We would anticipate Mr. Niepsuj would be incar-cerated at this point and in 60 days he would file a motion forearly release.

We are not going to commit to what our recommend-ation would be at that time or any agreement; however, what Iwill commit to is this:"

5

"If Mr. Niepsuj's behavior in the insti-tution is appropriate, he does not cause any problems, he has a goodconduct report in the instituion, and he does not further make orattempt to contact the persons protected by the protection order ordo any kind of circumventing the order, or have other people deliv-er things to Barbara and the kids or contact them, then WE WILL NOTOPPOSE HIS RELEASE.

But his history of this type of behavior requiresme to, at least, hinge whether Mr. Niepsuj OETS OUT EARLY on whetherhe can comply with the protection order and these -- this Court'sorders." (Tr 28-11 thru 29-16)

Court: "So that is the offer. Now --"

prosecutor: "And Barbara is in agreement with that. I've thorough-ly discussed it with her in the hallway. She is inagreement with that proposed resolution"

Court: "All right. Ms. Woodall, you've reviewed that offer withyou're client?"

Ms. Woodall: "I have gone over that^bffer.with Mr. Niepsuj, YourHonor, the 60 days. I even°told him that the Court,

and I'm assuming you do as I do, Judge, checks with the insti-tution to make sure he is on good behavior while he is there,that the motion for judicial release, and I told him it was ashock motion, would be filed, and I assured him I would filethat.

(Tr 29-17 thru 30-11)

Court: "You understand the charges against you?"

Vince: "I believe I do Your Honor."

Court: "You've read and reviewed them?"

Vince: "Yes."

Court: "I need you to answer that."

Vince: "Yes. I'm a little uncertain about.menacing by stalkingbecause we talked about degress, even the F-5, so I haveone doubt in my mind about that."

Court: "You've read this indictment?"

Vince: •"Yss, and it talks about an approved consent agreement. Itwas never approved "

Court: "Have you had adequate time to talk to your attorney about it?"

Vince: "I've had a good long time. I'm still uncertain about themenacing by stalking.

Court: "Has she answered the questions you had for her?"

Vince: "Yes, she has except for one or two."

(Tr 33-1 thru Tr 34-3)

6

In the Phase I Judicial Release hearing for the Appellant held

on December 5, 2006, his attorney stated:

"Judge, I believe the best person to hear from in this casewould be Mr. Niepsu) so the court can hear firsthand from himthese things that I m telling you and to make a determinationas to any future release, your Honor, and I would ask you toset it for a Phase Two" (Tr 3-22 thru 4-3)

The prosecutor responded to the Court:

"..Miss Niepsuj . .. is opposed to the motion. I will tell youin the interim there has been something filed in the domesticrelations case. I did receive a copy of it.It's a handwrittenfiling by Mr. Niepsuj.

I was conferring with the victim advocatethis morning on her note reference this case and it does_jog mymemory that in that filing he does seem to have some unrealisticexpectations in that when he comes home he thinks he's going tobe moved back in with the victim and take care of her and thechildren, which is the furthest thing from the truth. t tbinkwe all know that.

I was trying to locate that filing because Idid skim it, did not read it word for word because the way Mr.Niepsuj's writing is, I can hardly read everything word forword, but I will as soon as I locate a copy of that let MissWoodall read that.

I was forwarded that from Miss Niepsuj's vic-tim advocate from Victim Assistance who she's had a long-termrelationship with due to this situation. I think that's fineif Mr. Niepsuj -- if you're inclined to take the motion -- tohear from him because at that point at least I will havebeenable to share with Miss Woodall the specifics of that letterantL.with thP cour-t_artnally, and then_we can follow ur w1_th Mr.Niepsuj and question him about any items that may be containedtherein and just'- get a statement from him about why he shouldbe released at this point.

I think Mr. Niepsuj's statement willbe the most telling thing as to whether he will be released,and I have a lot of confidence in him that his own statementmay not allow him to be released." (Tr 4-7 thru 6-1)

The Court stated, with VERY SEVERE prejudice:

"Yes. This is a man with$persistent mental health problem, notreal severe, but certainly causing problems in this family sit-uation. I speak in relative terms when I say this. I'm sure thefamily thinks it's very severe." (Tr 6-2 thru 6-7)

Quite frankly the Court made such statement without any known

f-.aetual basis, The last time Appellant was with his children, he

was giving them all "horsey-back" rides around the Tallmadge H.igh

School tennis courts, and helping his eldest sons play the game

7

of tennis. On a more positive note the Court then said:

"Certainly this is a man who had no other criminal record;am I correct on that?" (Tr 6-8 thru 6-10)

prosecutor: "He had misdemeanors"

Court: "Except for the prior."

prosecutor: "Misdemeanor relating to this"

Court: "That made domestic violence here a felony, right?"

(Tr 6-11 thru 6-17)

The Court was actually entertaining the false idea that there

was some now habitual pattern of domestic violence, when there nev-

er was ANY domestic violence, or mental illness for that matter. As

Appellant states in his April 9, 2007 filing in case CR 2006-03-1036

the only diagnosed pattern of mental difficulties repeatedly pointed

out by a variety of mental health professionals from 2001 through

part of 2005 was "adjustment disorder", which naturally enough

might be a likely result of being kicked out of one's paid for

suburban home based on a bogus protection order system that seems

to shoot first and possibly ask questions later after the real soul-

wrenching damage transpires. The Appellant's outlook is through a

veil of sadness born of grief from being separated from his dear

sons during their crucial, susceptible developmental years. He al-

so experiences deep regret over how this has led to difficulties

of an emotional nature with his eldest now. Boys need their father.

The appellant isa good one, and it would have been nice if the

vaunted Victim Assistance clan appreciated this when the Appellant

tried to have mediation geared meetings with them in the summer of

2001, months BEFORE THERE WAS ANY PROTECTION ORDER, which evident-

ly Ms. Amy Anderson (a former Victim Assistance Program employee)

was a contributing instigator of. LI:.er shared parenting plan was

8

included in a compilation of comparative legal information given

to two police chaplains, the Appellant's former parents-in-law at

a Monroe Falls Church, and inter alia to the Scout leader at the

Northwest Church of God on Feb 7,(i.e. such was dropped off in

the late evening for the front office personnel of such church,

with some hopes that the pastor would also look over that compil-

ation and the application which the Appellant had filed with the

Ohio Supreme Court on December 23, 2005 at about 5 p.m. The Appel-

lant had had one particularly long conversation with that pastor

concerning the Appellant's perception of a highly skewed, and un-

fair protection order system operating in the Domestic Relations

Eourt,.:.The Appellant was also fortunate enough to have almost a

three hour audience with the pastor of the church which used the

Tallmadge High School for its Sunday services. Obviously the Ap-

pellant was trying to engage many persons and operate at least in the

periphery of his children's lives. Indeed the non-approved Consent

CPO of November 7, 2001 (which was just an agreement" according toLET the Appellant

the once unappointed Janea_ . ne ^3_y 600_ inches away from

any of his sons at ANY time. So watching a ball game at 110 yards

was supposed to be a privlege he could enjoy, not an arrestable

offense by an overly gung-ho (but at times compassionate) local

police force) 2006. That Northwest Church delivery - although its

objectIve was to lay the groundwork for the continuation of parent-

ing time sessions with his sons- was what the Cuyahoga Falls Muni

Court decided to bind over as a felony violation of the Appellant's

and his former spouse's "just an agreement" CPO, even thoUgh her

parents already had the compilation and she received the Supreme

Court filing via the Tallmadge Police on Christmas eve of 2005.

9

prosecutor: "No it was the violation of the protection order"

Appellant's attorney: "And that involved leaving videos anddocumentsto be transferred to Barbara

"It's not the most serious form of the offense, but it's still--"

Actually the videos were meant for the children, provided the

children's counsel©r - Dr. Robin Tener (with respect to whom the

Appellant enjoyed two Domestic Re3ations Court orders of January

2003 and January 8, 2004) - could gain the assistance of Ms. Marie

Miller (who oversaw the Appellant's parenting time with his child-

ren for 26 months) or the Tallmadge Police (whose retired Sgt. Kev-

in Ryan suggested could assist with gift transfers via neutral

plaees/parties),The documents (Sol Click's 1-31-06 Domestic Rela-

tions Court filings -- which he refused to provide the Appellant)

were exclusively for Dr Tener, to help give her a perspective into

the current state of affairs in the rights-determining divorce AND

CONSENT CPO cases. It was not until 12 days later (when it was

somewhat certain that Mr. Glick had created the wrong house number

for the Appellant's spouse's Tallmadge home) that a 4-part package

--:rac ,.-::t to the fcrmer- Av, 'T^ r°i «-_teacher f rt, , ...lw_-(Ex--/j^)

was asked in a separate letter to give one of the packages to ano-

ther former neighbor who helped with visitatioa:(parenting time)

logistics a few times earlier. This neighbor was to deeide on his

own to either contact the Tallmadge Law Director (who was a member

of his parish - O.L.V.), Tallmadge police officers Mark Wilson or

Frank Dimenna (who served a persona non grata to the Appellant at

his son's 6th birthday party the previous August, which document

was stated to be from "the management" on behalf of Dr. Dorman or

Markovna ( or Norman - her name was uncertain within the context of

then active case CV 2005-05-42920, When Appellant called her answer-

10

ing service on February 13, 2006 to determine her exact identity

for the hearing that was scheduled in Judge Unruh's court the fol-

lowing day, a sergeant with the Tallmadge Police contacted the Ap-

pellant in Buffalo, and quite misguidedly s.tatedinformation about

Dr. Dorman being the beneficiary of a Civil Protection Order. The

day after the Court hearing the Appellant went to Family Solutions

to see if he could arrange for transfer of Valentine`s gifts (the

age-appropriate video tapes that.Officer Ken with Tallmadge finally

came into possession of) but instead attempted to rely on Dr. Tener

after which he road back to Buffalo for a 2 P.M. appointment at the

Dental School to fill about as many cavities as his youngest proud-

ly announced he had to the Appellant when they last saw each other

in mid October of 2005 in the presence of Ms. Marie Miller, LISW (rtd.).)

or if he wished (as he had helped before) to simply drop off the

package so that the Appellant's former spouse might have actual no-

tice of the March 2, 2006 Domestic Relations court haaring, where

the Appellant was instead arrested per the events exp'ained in the

Mnrch 7 ___200b-_&tatement --of.-the_C.aseaect.ion__.of hiG Apr; 1.-9,.._.2007 __

petition filed in CR 2006-03-1036. The letter to this neighbor was(10 attached)

included as an exhibit„in the Appellant's August 17, 2006 Memoran-

dum in opposition in Ohio Supreme Court case 06-1329. The letter

and packages were sent in the presence of a former Erie County

law enforcement officer and a Williamsville, NY police officer, the

former having been a fathers' rights sort of advocate for a number

of years in the Buffalo, NY area, where the Appellant's oldest sons

visited in 2001, 9 months before Appellant's former w#.fe informed

the former coordinator of Family Court Services that the Appellant's

then healthy parents did not want to see their grandchildren. She

lied that time, and many more times.

11

Court: "No violence here?"

prosecutor: "RIGHT. JUST nagging and --"

Court: " Well, he's managed to conform himself apparently inthe institution. Let's see what he has to say. I'llmove to Phase Two".

(Tr 7-1 thru 7-7)

The following transcription considers the Appellant at the

Jan.,uary 2, 2007 Phase Two judicial release hearing pursuant to

O.R.C. 2929.20 (C) ( "the court shall hold only one hearing for the

offender"):

prosecutor: " And certainly his behavior has been acceptableat the institution." (Tr 4-8 thru 4-9) (1EX4)

" But what's more concerning to me is that I didreceive a copy of a post-hearing motion to dis-miss that he filed in the Domestic Relations case"(Tr 4-18 thru 4-21)

" but a couple of things he talks about in that filing inhis Domestic Relations case...he says 'witness has recentprosecution for, quote, matters that arguably should havebeen handled by contempt proceedings, if at all'

He was talkingabout his prosecution for violating a protection order andstalking.

Certainly this shows that Mr. Niepsuj, himself --this is written in his own pen -- thinks that he only should

_ have been cited for contemtfor his behavior that ledto thecriminal case." (Tr.5-2 thru 5-19)

Referring to the attached typed version of a portion of the

October 13, 2006 Domestic Relations post-hearing motion in case

D.R. 2001-10-03960 (Summit County), it would be incumbent on a

thorough considerer of fact to simply note^(see exhibit 2) :

1) Appellant never thought he should be cited for contempt, but ra-

there was no good reason why certain "matters" should not be

first screened through the Domestic Relations court, to learn

if there are more parenting-centric, vs. criminal issues at hand

2) Appellant in his Oct. 13, 2006 motion was actually making an allu-t

sion to what Magistrate Deborah Matz staed then 6 months earlier at

an April 13, 2006 hearing:

12

Mag. Matz: "'Co the extent that the visitation provisions inthe divorce get modified --

-- any modification ne-cessary to the Civil Protection Order in order to make it sothat you can have visitation is going to be a matter of cour[se].

Okay? Simply because if we leave the Civil Protec-tion Order on as to the children, but give you unsupervised vis-itation, we put you in a>fairly perilous_position."

3) Appellant makes a vital reference to previous documents he had

submitted in the Domestic Relations case when he explicitly sta-

ted, for the benefit of any reader (and prosecutor who chose to

explore that sealed document ) in his Oct. 13, 2006 filing:

"Note Reasons "I" and "J" and pages 15-18 ofMemoran um II explain "matters . (^sPe oNati)Pd .f^bo^s)

Such information fairly explains Appellant's fathering oriented

behavior which ex Domestic Relations magistrate Susan Ragsdale/

Manofsky chose to zealously prosecute, instead of perhaps check-

with her former Medina colleague Janet L. Kleckner. Was it that

sending a birthday wish for a precious child is neither consid-

ered for contempt proceeding in Medina either, such that felonies

trump fathers ?

-4) n ee ppe an s purposes r even m ing t^ie eomp ith

a perhaps more humane contempt alternative was to try to reas-

sure the trier of fact in the Domestic Relations Court (Magis-

trate S. Bennett Collins) that "matters' were in no way so ser-

ious as to create a default presumption that the 2001 Consent

CPO be continued.

5) Each alleged violation was certainly to favor one or more sons.

For example May 23, 2004: Scott, Feb 7, 2006: Adam, Feb 15, 2006:

Tommy; while Feb 27, 2006 was desigua:d to be a heads-up for ex-

neighbors three days before a hearing he had waited 1S months for

yet which his own attorney said.he decided NOT to attend,

13

6) Quite importantly, it seems the other former neighbor who was

to recsive a single package, communicated to the Appellant in

late May of 2006 (before he became a subpoenaed witness) that

he never received it. Evidently Professor J.D. conveyed the items

to law enforcement officials, and certainly then no contact was

made with regard to alerting Appellant's former spouse even via

neutral parties of a hearing S. Mark Glick created false serv-as to

ice addresses for„both the Appellant, and his former spouse.

As well, the children neve-t received the videos via Dr. Tener

or court-approved Marie Miller in the mid-February 2006 time

frame. Further, unless a Scout leader went out of his way, it

is not likely that Appellant's spouse even knew about any attempts

by the Appellant to try to lay some ground work to establish a

place for;seeing/parenting his dear sons under the oversight of

Ms. Marie Miller, LISW (rtd), until a week after Appellant drop-

ped off Court information (the next Tuesday there would be anoth-

er Scouting meeting). Beyond this, only another former neighbor

would-hv,. U=-.o^ wn-vhat-became--of---a-decor-ated--b4-rthday-ca-ke--€r-om

Gennesaret for Scott's (belated) birthday acknowledgement, along

with the tooth_brushes and stuffed animals (which oddly were ne-

ver mentioned by the rather vicious, cut-throat prosecutors)

when his mom could not find a way to work with court-approved

Ms. Marie Miller, LISW (rtd.) to convey a gift to Scott on his

special actual birthday about two weeks earlier. All the Appel-

lant knew was that apparently "Lucky" (dog) ate the cake, ac-

cording to what his sons gleefully told him upon the occasion

of a party he threw for his youngest, and finally for his dear

eldest in early August of 2005. There certainly was no burftla

14

The attached exhibit 2 also makes it clear that Appellant was

referring to a CPO initiated 5 years ago (10-12-2001) and the pro-

secutor's rendering that he expected to come home (to his formal

marital residence) within the last 6 months was completely off base

on the part of the prosecutor, and served no other purpose than to

cast the Appellant as misguided at best. Even in the Phase Two hear-

the prosecutor (A. P-W) continues with her prejudicial mistaken pre-

sumption when she states:"I'm reading this in the context of Mr.

Niepsuj thinking he's going to return home in 18 days and they'regoing to resume their relationship..." (Tr 6-20 thru 6-23)

I.e. she is referring to just this past Fall of 2006.

Here now is the interchange with the Appellant at the Phase

Two hearing, presented pursuant to Judge Hunter's expressed inter-

est at the Phase One hearing: "Let's see what he has to say".

Court: " And ^+es, I would like to hear from Mr. Niepsuj at thispoint ' .

Vince: "Good morning, you Honor. How are you today?Your Honor, I

respectfully address the Court that I'm -- I am very, very,very, very sorry about all of this that's happened you know.

--Tt-'Ftruetha ve been ,7us ry n^g'-t-6 maint-ain cctwith my children, and --"

Court: "Say that sentence again."

Vince: "I've been trying to maintain contact with my children, youknow, through the proper channels over the past, and as At-torney Woodall sai ,d^t"s^tunately what led to allthis, you know. That led to all of this over a year ago.

I take full responsibilit^ for everything I've done, andI've done it only or t.e best reasons and for the welfareof the children. You know, I'm 100 percent for them.

I have nothn^ a^ainst Barbara. I don't -- I would nevercharacterizTiwhat I ve done as any harassment of Barbara.

Barbara happens to be the children's.mother and, inevitably,she's going to hear about something on the side. I've nev-er focused on her or against her or whatever.

I've had to defend myself for them renewing the CPO. Your

15

Honor, I'm not sure what the prosecutor has in her handthere, but there are about four or five submissions to theDomestic Relations Court in attempt to e en myse f andgive an even-handed fair story of so many, many things.And so that s what I really tried to do.

I have those things here and that's too much to read.That's that court. And I have not blamed any attorneys.I've tried to work out stuff with the attorneys. I'vetried to send many letters to help explain stuff, andthey're too busy. They're on to other cases.

Your Honor, we're still in the Domestic Relations Court,and --"

Court: "Right now we're in the criminal court --"

Vince: "Well what I'm saying is --"

Court: "-- so let's focus on that."

Vince: " Well, Your Honor, I learned really there's -- my attorn-ey's asked me to focus here. I've obviously learned, youknow, that you obviously have to submit to the, you know,to all the courts in the best possible way.

You have to, you know, submit to your lawyers, really. Imean I-- I've never understood what I was in because I'venever been involved in the legal process, and I'm shockedto be out of my house five years ago, and I'm still insemi-shock.

But I've gotten good counselin and I've completed counsel-ing at Portage Path over two, three years time. I've con-tacted lawyexs whiie I was on signature bond_,..__One_ of themwas Thomas Parker, for example."

Court: "Mr. Niepsuj, I'm going to interrplpt. I've heard enough fromyou to reach the conclusion that it would not be wise torelease you at this time.

The comments you made here today show that you do not yethave insight into the issues that brought you here. The an-noyances that were mentioned raised to the level of crimi-nal miscounduct, and that's why you 're here.

These are not minor issues. You've broken the law."

Vince: "Yes ma'am."

Court: "And your statements today indicate that this conduct won'tchange on your release."

Vince: "It certainly will change"

16

Court: "What brought you here are repeated, much of what you repeat-ed in you correspondence to me."

Vince: "Your Honor, I --"

Court: "I do not think you have sufficient insight for your releaseat this point".

Vince: "YourHonor, I didn't send a letter.to you."

Court: "Your comnent that you nscmruxlerstood these thinps tells me thatyou're not ready for release at this point.

Vince: "Your Honor, I didn'^t send you a letter, did I?"

Court: "I think it's against all good judgment to grant the motionso I'm not going to do that.

So you will serve the balance of your term. It was a totalof 21 months on two different counts, and so the order forjudicial release is denied."

Vince: "Your Honor, I didn't send you a letter that I recall."

Court: "That will be all".

It would seem that the Appellant was brought up for a second

hearing only to be shot down -- with no statutorily supported op-

tion for any further motions-that:might be heard -- because he:

1) did not understand legal processes some 5 years ago

conveyed some unspecif-i.e corr spondence, w r3ed ----unsucessfully to identify;.&-which repeats something unfav-orable either in terms of his conduct or sufficiency ofinsight to gain release.

3) contacted lawyers (to gain good counseling),the mention ofthe name of one (who Appellant met at a Tallmadge churchduring his campaign efforts) triggerd the Court to say:

"Mr. Niepsuj, I'm going to interruptI've heard enough from you to reach the conclusion

that it would not be wise to release you at this time."

It is indicated in OAG No. 70-089 (1970) that hearings pur-

suant to former R.C. 2947.061 may be conducted "in any manner

which the court determines will enable the court to reach a sound

decision". Appellant was.transported to court, said nothing wrong,

could not finish speaking, did not violate terms of the negotiated

plea agreement re-capped next; yet was rejected and returned to prison.

17

Prosecutor: "We would also, pursuant to the plea negotiated agree-ment." (Tr 63-12 thru 63-13)

Court: "You were talking about--" (Tr 64-2)

Prosecutor: "We understood Mr. Niepsuj would, thrugh his counsel,file a motion for judicial release, that, in fact,

he would at;least serve 60 days in the institution. And thatthen a report would be forwarded to this Court for consideration.

We have also committed that if, in fact, there is a good conductreport regarding Mr. Niepsuj from the institution, meaning hehas not caused problems in the institution , or something thatreflects badly on him per the institution, and he has not vio-lated the protection order in that he has not contacted MissNiepsuj, the children, or contacted anyone else to contact them,then we would not be opposed to his release at that time, andthat the remaining time be suspen e w e he s-f placed on com-munity control."

Court: "All right..."

(Tr 64-4 thru 64-25)

Now according to the official transcript of the Phase Two hear-

ing ...

Prosecutor: "And certainly his behavior has been acceptable at theinstitution.' (Tr 4-8 thru 4-9)

"But what's more concerning to me is that I didreceive a copy of a post-hearing motion to dis-miss that he filed in the Domestic Relations case."

(Tr 4-18 thru 4-21)

So, according to the summary re-cap of the prosecutor at thehearin'g

September 7, 2006 Negotiated Plea Offer ^there were two pivotal

dimensions: 1) institution conduct, and 2) not violating the

November 7, 2001 Consent Agreement CPO (issued by the Domestic

Relations Court on November 28, 2001 -- without the MULTI-laterally

signed Consent paperwork, and which agreement was NOT APPROVED per

Domestic Relations Court Local Rule 7.04(B). See 9-7-06 Tr 33-19)

In addition, the Appellant reminded the Court on 9-7-06 that

"I understand the CPO is over in two months, the consent agree-

ment." (Tr 42-15 thru 42-16). I.e. fathering would not be felonious.

Now as to Plea offer dimension #1, the prosecutor said:

18

"certainly his behavior has been acceptable", so the second dimen-

sion ramained for consideration: comporting with the Consent CPO.

Now there were no violations of this DR 2001-10-03960 document,

however, as is expressed in this filing supra (pg. 4) the Appel-

lant had been suddenly thrust into the position of defending him-

self against the renewal of such EXTREMELY LIFE RESTRICTIVE pro-

duct of not the criminal branch of the Summit-County Court of Com-

mon Pleas , but rather the Domestic Relations division in which,as

of September 7, 2006, there were ALREADY THREE ( 3) MOTIONS PENDING

for disposition: the January 31, 2006 motion (filed silmultaneosuly

in DR 2001-10-03960 and D.R. 2002-02-0687), the March 23, 2006 -

'Motion for Declaratory Relief tts to Instant Consent Agreement (in

D.R. 2001-10-03960), and the Motiop to continue the in-camera inter-

views of the Appellant's minor children until "after the criminal

proceedings". In early.- October of 2006, Mr. Sol Mark Glick (who

took so very long to file the January 31, 2006 motions, would not

provide the Appellant copies of them , and created fictitious ad-

dresses as to where to serve such motions to_both the Ap^eilant and

his former -6pouse) informed the Appellant via mail to him at Lorain

Correctional Institute, that he was no longer the Appellant's law-

yer in the Domestic Relations matters (even though Appellant empha-

sized the vital importance of following up with that Court's June

20, 2006 Order to Continue the in-camera interviews until after

the criminal proceedings, which Mr Glick was certainly aware of).

Therefore, the Appellant was in the position of having to im-

mediately defend himself against the continuance of such an ex-

tremely HARSH and DEEPLY RIGHTS SUPPRESSING vehiz-le of quite ev-

idently minimally due process justice. In so defending himself as

19

per the four attached and clerk-stamped filings, he was then subse-

quently grossly misinterpretted by the Summit County Assistant Pro-

secutor Poth-Wypasek, as per what has been described supra in this

document (pages 7, 12,13). Per State v. Viegel, 213 N.E.2d 751(CP

1965) :"a court should not suspend further execution of sentenceand place defendant on-probation on such motion unlessit can be shown that a court acted under a misapprehensionof the facts or was not in possession of all t e materiafacts at the time the sentence was pronounced."

Likewise: "by reason of mistake, fraud or other material omis-sions, then the opportunity to ^exercise sound iudi-cial discretion may have been denied and a court inthe exercise of sound discretion and the furtheranceof justice, may suspend further execution of the sen-tence after incarceration and place a defendant onprobation under provisions of R.C. 2947.061."

(underlining added by Appellant). Sound reasoning would lead

anyone of normal intelligence and insight to conclude that surely

the criminal case sub judice revolves around issues in the Summit

County Domestic Relations Court:Aprotection order, when no one

has ever been harmed or threatened by the Appellant, whatsoever.

Magistrates who arguably lacked jurisdictional status; A Consent

_. AgrPPmPnt__in_Novemberof-20D1, _made--in_gaod-faith-,-but_alen Qome-

what in a state of shock after what Appellant learned at St. Thom-

as Hospital on November 6, 2001 in preparation for his Domestic

Relations Court hearing, which information led to CV 2005-05-2920

and up unitl October 23, 2006, potentially beyond that case. A ju-

dicial recusal relative to said case which was shared with a church

with whom Appellant had had prior interactions, including taking

his sons there for services. An expectation that the Consent CPO

could be eliminated before the Spring of 2006 based on motions

filed by Sol Mark Glick, Esq. in both DR 2001-10-03960 and DR 2002-

02-0687. Instead an arrest at the time of the hearing on such mo-

20

tions which have never been resolved. A June 20, 2006 Domestic Re-

lations Order (based on a HIGHLY PIVOTAL letter sent by the categor-

ical victim in the criminal case CR 2006-03-1036, which letter was

treated as a motion, but not served upon the Appellant or Mr. Glick

so far as it was learned from Mr. Glick in June of 2006) which post-

poned three young lads'in-camera interviews, UNTIL AFTER THE CRIMI-

NAL PROCEEDINGS. A filing in the Ohio Supreme Court on July 12, 2006

seeking to: 1) Locate the iiov. 7, 2001 Consent Agreement papers

which he and his then wife both signed.

2) A request to distiguish the Consent Agreement con-

joined as it was with a Domestic Violence Civil

Protection Order, when no such violence occurred.

3) A request to nullify the Consent Agreement as it

was never approved via the local Domestic Relations'

Court's local rule 7.04(B)

4) A request to nullify the Civil Protection Order as

it was not administered by properly appointed mag-

; cira-tes-.--I-._e-rx-hey--we=e m,agi$-tra-tes-z:,-=Payeheek--only-.---

5) A request to have several of the magistrates sworn

in per Ohio Constitution Article 15, section 7, as

Judge Quinn considered his experience as part-time,

full-time, and chief magistrate to be experience.in

PUBLIC OFFICE.

6) A request to actually put the Consent-Agreement

forms in the CPO petition packets, per the Ohio Rules

of Superintendence, so that unfamiliar parties can

better judge what's truly at stake, and perhaps opt

for mediation, or other avenues via the Ohio Rules

of Civil Procedure.

21

7) A request to supply parenting proceeding affida-

vits which indicate the contolling authority to be

R.C. 3127.23 ( Facts to be Pled), not R.C. 3109.27

Most of these requests were well known to the criminal court by

June 6, 2006 (or thereabouts), when the Appellant first submitted

them to the Ohio Supreme Court, and the former Court knew that they

were not resolved at the time of going to trial on September 7, 2006.

Yet sound reasoning and intelligence would make it crystal clear

that unless such Domestic Relations issues were forced into resolu-

tion by the Ohio Supreme Court, then there could be no manifest jus-

tice in the criminal Court. Indeed the court sub judice aeknowledged

the matters in both of the other courts when it stated on Sept. 7,

2006: "There's a case pending in the Supreme Court, as I under-stand it, and there may be a motion in the Domestic Rela-tions Court that's being held in abeyance" (Tr 9-5 thru 9-9)

It would even seem, then that the Court of Judith Hunter was

also aware of the MOTION FOR DECLARATORY JUDGMENT AS TO INSTANT

CONSTANT AGREEMENT which was filed on March 27, 2006, 4 days after the

end date in some alleged 5-year pattern of stalking indicated in

the April 4, 2006 indictment against the instant Appellant. Onend

that very same,tidate, as weli, the Summit County Common Pleas Court

had received from the Cuyahoga Falls Affidavit of Defendant, which

was re-notarized during the time Appellant was bound up at the Ak-

ron R.I.P.P. facility as he waited trial, and such affidavit was

attached to the MOTION FOR DECLARATORY JUDGMENT AS TO INSTANT CON-

STANT AGREEMENT, filed with the Domestic Relations Court and with

the Ohio Supreme Court pursuant to the second request for a peremp-

tory Writ of Mandamus. I.e. the criminal court sub judice knew of

the 8) Request for the Consent Agreement related Declaratory

Judgment, as to the Appellant's Domestic Relations rights

22

Law and Argument as to

Appealability of Judicial Release Denial

Appeals certainly require a final appealable order; although

the Appellant has not found an explicit Ohio or Ninth district rule

which requires this. However it is clear from In Re Murray(1990),52

Ohio St.3d 155 at the Syllabus , that "finality" is codified in R.C.

2505.02, and "appealability" is specified in R.C. 2501.2. The

latter relies on Art. IV, Sec. 3 of the Ohio Constitutin which it-

self treats "judgments or final orders". The question then seems

to be initially whether the Journal Entry issued on January 3, 2007

in CR 2006-03-1036 is an order. As such'Entry1'incorporates "IT IS

HEREBY ORDERED" langriage Appellant assumes axiomatically that it is

to be synonymous with "order".

The key issue, then is whether the Jan. 3, 2007 Entry/Order is

"final". If it is, then it is a "final appealable order". If.it is

not, then the Appellant would ask this honorable Court to remand

this case back to the lower court for the simple purpose of mandat-

xng that Court ta issue an_amendedJourpal Entry secifying

that it is a "Final Appealable Order", and as may be necessary,

the Civ. R54language "no just cause for delay".

According to this honorable Court,denials of motions for judi-

cial release are not final appealable orders. (State of Ohio v. Woods

752 N.E.2d 309). In the instant appeal, Appellant would ask that

this Court take judicial notice of some clearly exceptionaT-issues

that must certainly necessitate the "variance" which Appellant first

expressed on page 4, supra. The last half of that page captures 3

of the 4 issues that will be treated: 1) the existence of a negoti-

ated plea bargain focusing on judicial release relief, 2) the tant-

23

amont-r.eneging on that agreement (in a manner that seemed to be

lost upon the lower Court),-3)a simple but compelling fact that

shock probation (until 7-1-1996) did not provide the "finality"

and forclosure that the replacement of judicial release does, at

least as it did in the particulars of the Appellant's adjudica-

tion.

/*)In addition, the inextricable link between the criminal mat-

ters sub judice and the ongoing Domestic Relations Court litigation,

especially in light of the postponement of the latter until after

the former,raises-a prima facie subtantial right issue: that of

a parent to secure meaningful access to his own children, which

the arguably wrong denial of judicial release has determined in3 19 & 21 supra

the criminal action. Such "after the criminal proceedings'/Is on pp,,

A fifth(personaD issue, is that the Appellant had an extremely

pressing interest in looking after his father after his wife (and

Appellant's mother) passed away during the pendancy of the crimin-

al case. Appellant attempted to make it clear to his counsel that

rh;awas--a-maj:pr-concer-n-af-h-is -I-t-was i^ f^^r_one._of--three_pri-

mary reasons why he acceded to a plea agreement of guilt to a tech-

nical (third party communication) violation of his 11-28-01 3113.31

Consent Agreement (unapproved as it was), and no more than two in-

cidents within a two year span of leading his ex-spouse to believe

his legal involvements would result in some degree of distress to

her psyche (i.e. a violation of R.C. 2903.211(A) which Appellant

believes never had an authentic aggravating factor associated with

it at all). The other two concerns were: 2) being available for

his eldest child, after he received information on September 4,

2006 substantiating what he claimed in his CV 2005-05-2920 complaint

and 3) not exposing his former spouse to the stresses of a trial.

24

In reconsidering the finality and appealability of the Jan. 3,'

2007 Journal Entry/Order in the case sub judice, which denied Ap-

pellant's motion for Judicial Release, and making such reconsider-

ation in light of the 5 compelling issues just raised on pages 23

and 24 supra, it would be instructive for this Court to consider

the following excerpt from In Re Murray (1990) 52 Ohio St.3d 155.

which was referred to in State of Ohio v. Woods 752 N.E.2d 309:

"Generally, the question of whether an order is final andappealable turns on the effect which the order has on thepending action rather than the name attached to it".

If this honorable Court will especially reflect on the tie-

backs to the Domestic Relations Court and the pending matters

therein, as well as the contingencies related to that Court's

DR 2001-10-03960 Consent Protective Order, required for Judicial

Release (referred,to on pages 6, 12, & 18 supra), then it will

be far easier to ascertain how the deemed lack of finality of

the Jan. 3, 2007 Journal Entry/Order has a very great effect on

closely allied Common Pleas Court actions.

It is hoped that the lengthy explanations make it quite clear

that : 1) the motion for judicial release was not made out of the

blue but was the very core of a negotiated plea settlement made on

September 7, 2006 in the court room of Hon.Judge Hunter, and that

2) per pages 4 thru 20 supra there was far less than a good faith

effort to respect the plea agreement and release the Appellant sub-

ject to community control measures.

In terms of the difference between shock probation and judicial

release and how this determines finality in the instant matter, the

following from O.R.C. 2929.20 will be instructive in understanding

the controlling applicability of Morris v. Investment Life Ins Co.

217 N.E.2d 843. in terms of how the judicial release denial forecloses.

25

O.R.C. 2929.20 (C):

"The court may deny the motion without a hearing but shall

not grant the motion without a hearing. If a court denies a

motion without a hearing, the court may consider a subsequent

judicial release for that eligible offender on its own motion

or a subsequent motion filed by that eligible offender. If a

court denies a motion after a hearing, the court shall not

consider a subsequent motion for that eligible offender.

The court shall hold only one hearing for any eligible offender.

. '

O.R.C. 2929.20 (D):

"If a court schedules a hearing under division (C) of this sec-

tion, the court shall notify the eligible offender of the hearing.

I I

It is seen in division C above that a denial after a hearing

forcloses or precludes any further judicial relief remedy. Nowhere

in the former 2947.061 statute for Ohio shock probation does this

automatic and exceedingly final preciusion exist. Noting Morris

v. Investment Life: "In a special proceeding, where an order of thetrial court forcloses to a petitioner for in-tervention t efi remedy with which he speaks toprotect substanti-'T =i hts and accords himsome lesser a ternative, such order is appeal'able"

... Appellant has no further remedy (lesser or otherwise) via judi-

cial release, vs. what he may have enjoyed under shock probation.

The definitive State v. Coffman (2001)91 Ohio St.3d 125 is not con-

trolling here for matters of judicial release for which the Appel-

lant supplied 2 motions, had two hearings, testified ( i.e. spoke)

minimally at the second - highly perfunctory hearing, was ambushed

26

with a domestic relations court CPO extension motion directly fol-

lowing what he had thought was a good faith plea bargain negotia-

tion, was never notified of either of the hearings per 2929.20(D),

was led to believe that a future hearing would be held in the man-

ner or spirit of shock probation (re-codified then for 10 long years

as judicial release) ( Tr 30-9 thru 30-10, Sept. 7, 2006), and in-

deed for which the two hearings do not comport with R.C. 2929.20 (C).

Conclusion

It is respectfully requested that this Court take close con-

sideration of the instant application. It is submitted that there

is manifest injustice when the essential reneging of a plea bar-

gain. specifically introducing the unique relief of appropriate

judicial release is treated with the broadly sweeping exclusionary

brush stroke now dictated by State v. Woods. Woods relies on

State of Ohio v. Coffman which, while finally resolving controver-

sy in the inferior appellate courts, only treated shock probation

for prisoners incarcerated before July 1, 1996. This is 2007.

R.C. 2929.20 is involved - not R.C. 2947.061. Nevertheless, as

to either shock probation or judicial release being in the manner

of a special proceeding there is no controversy. That there is a

"substantial right" consideration in the instant case is self evi-

dent in the instant f3ling & in light of In Re Murray. Certainly

the subdivisions (1) and (.2) of R.C.2505.02 (B) likely apply in

this parenting-centric judicial release scenario. Note Coffman is

not fully definitive even as to the old shock probation method,

where Douglas in his dissenting opinion offered as to R.C. 2505.02(4):

"I believe that this language now makes thedenial of a motion for shock probation a final order "

27

It is requested that this honorable Court take especially

close consideration of the manner in which the Appellant's de-

fense of a CPO continuance in the Domestic Relations Court of Sum-

mit County was directly and highly prejudicially held against him

in the exercising of the judicial release remedy pre-agreed-upon

on September 7, 2006 in open Court. Currently Appellant does not

have the means to fully reproduce all three transcripts which he

has diligently quoted from, but he does supply the Domestic Rela-

tions filings of October 2006, which were held against him in the

criminal venue in December of 2006 and January 2007. It is very

significant that the Asst. prosecutor in the matter falsely told (TY 6-19)

the Court on January 2, 2007 that the CPO had been renewed when in

fact the Domestic Relations Court had then still not answered ob-

jections which the Appellant had filed in October against the ex•

parte CPO, and the full hearing in that matter was still 5 weeks

off. One of the other reasons that the Appellant so urgently re-

quired judicial release was indeed to defend himself in person

against such a rights-restrictive vehicle of law as a so-called

civil protection order, which the Appelant has maintained (not

so humorously any more) often just means "Civilian Projected Out-

doors", and still maintains (quite seriously) "functionsto fright-

en" not truly protact. Please refer to page 18 supra regarding the

dimension of the CPO within the context of judicial release.

Wherefore for the many reasons supplied throughout this appli-

cation Appellant respectfully requests that this appeal go foward,

or in the alternative that this matter be remanded to the trial

court with the specific request that it produce a final appealable

order with respect to the January 3, 2007 denial of judicial release.

Respectfully submitted^^aI ^^7 O"incent M. NiepsujC.C.: P.O. Box 57; Marion,OH 43301-0057

28

Certificate of Service

Appellant Niepsuj hereby certifies that he has sent a true

copy of the foregoing Application for Reconsideration to Phil

Bogdanoff, Summit County Safety Building, 53 University Ave.

Akron, Ohio 44308, by regular U.S. mail facilitated via the

institutional mail system at Marion following a April 28, 2007

deposit in the institution mail box. Becattse of the sealed nature

of the CPO filings, he is requesting that Mr. Bogdanoff obtain

copies from this Court, or wait until the Appellant has cleared

their transmission through the Domestic Relations Court.

Respectfully submitted,

Verification

incent M. Niepsuj

Appellant Vincent M. Niepsuj, having been duly warned, and

concurrently sworn or who did provide affirmation, states that all

of the information contained in his Application for Consideration

is true and accurate to the best of his knowledge, belief, memory

and understanding, and he swears or affirms the truth and accuracy

of the attached exhibits and Domestic Relations filings made in

October of 2006, under case DR 2001-10-03960, which case, in itself,

is currently in appeal.

Signed:

Vincent M. Niepsuj

Sworn or affirmed, and subscribed before me, and in my physi-

cal presence,on this " th day of April, 2007

Notary:

29

LesGe E. SmithNotary Publie, State of Ohio

IUIv ('.nmmiccinn FYnirne Cirtnhar i 1 91111a

INSIDE PASS ONLY

ReportTime: 08=oe F+M PassDate: 18-APR-07

Last Name: NIEPSUJ Id: A512742

Lock: 6-MCC-H-E--0009 Job: STUDENT

Destination: BACRMAIL ROOM

Issued By: MAILROOM - LHGALMr.IL

INSIDE PASS ONLY

ReportTime:

Last Name:

LOck:

DeStlnation'

Issued By:

MCI

Inmate Signature Time

MCI

08:00 AM PassDate: 18-APR-07

NIEPSUJ Id: A512742 Issued By Time

6-MCC-H-S--0009 Job:STVnsNT

BACIQdAIL ROOMDismissed By Time

MAILROOM - LEGAL MAIL Inmate Signature Time

E%HIBIT 2

Post Hearing Motion to Dismiss

- filed Oct. 13, 2006 in the Summit

County Domestic Relations Court

under case no. DR 2001-10-03960

Respondent renews his original motion to dismiss Petitioner's(9-7-06)

motion, based on more than two dozen compelling reasons in 3 separate

filings. Chief among these is the fact of Atty. Glick's DR 01-10-03960

and 02-02-0687 motions ... (concurrently filed 1-31-2006) which seek

to normalize Respondent's parenting time (and three sons' "dad time")

and remove restrictions which simply make changing a visit time, or

contacting neutral professionals=worrisome - if not• perilous - tothe

Respondent ( witness his recent prosecution for "matters" that ar-

guably should have been handled by no more than contempt proceedings -

if at all) ... yet need resolution. Note Reasons "I" and "J" and

pages 15-18 of Memorandum II explain "matters".

Respondent is truly perplexed as to why Petitioner is expressing

fear in her motion. With all due respect, it actually seems that she

is neither being mature, nor honest, nor rational. Respondent was

similarly buffaloed and fairly stunned when he obtained the ex parte

CPO 5 years ago (10-12-2001). Then he was anxiously waiting to re-

turn home (in 18 days) to help the boys with their daily lives, and

perhaps assist the Petitioner in obtaining a,Master's degree for

her work in Child Protective Services (Respondent has a degree in

Early Childhood Education), and then suddenly he sees she is asking

for court enforced protection for still unknown reasons.

The factor of Petitioner's employment has continually been a con-

cern to the Respondent (beginning with when he would inquire about

her safety on the job). At first Respondent was trying to respect Pe-

titioner's assumed expertise while consciously attempting to down-

play any possible portrayed shortcoming in the Petitioner which could

compromise her position or the viability of her sustained employment.

Indeed, not inconsistent with reason K" and reason " X", Peti-

tioner may feel terrible that the Consent CPO is unneeded; but it

would amonnt to a professional embarassment to admit such now. And

yet when he tries to explore this matter with (ex) in-laws: for ex-

Cioi3 :`r

^WVSEP 14 AM I1 •28

^r 1 TI^§1WOF OHIOff COURTS

V5.

IN THE COURT OF COMMON PLEASCOUNTY OF SUMMIT

MAY TERM 2006

Case No. CR 06 03 1036

AMENDED 3OURNAL ENTRYVINCENT M. NIEPSU3

EXHIBIT 3

THIS DAY, to-wit: The 7th day of September, A.D., 2006, now comes the Prosecuting

Attorney on behalf of the State of Ohio, the Defendant, VINCENT M. NIEPSUJ, being in Court

with counsel, SHELBY WOODALL, for trial herein. Thereafter, the Defendant expressed a desire

to change his plea and said Defendant was fulty advised of his Constitutional rights and his

rights as required under Rule 11 of the Ohio Rules of Criminal Procedure.

IT IS FURTHER ORDERED that for the reasons put forth upon the Court's official record,

DefendanYs Motion to dismiss is DENIED.

I'r IS FURTHER ORDERED that Attorney SHELBY WOODALL'S Motion to withdraw is

DENIED.

Upon Motion of the Prosecuting Attorney on behalf of the State of Ohio, the Court hereby

<amends Count 3 of the Indictment to MENACING BY STALI{ING, Ohio Revised Code Section

2903.211(A), a felony of the 4th degree which offense occurred on or about May 23, 2004 through

on or about Marcth 2, 2UUb. .... ' _'°• ,.

Thereupon, by plea agreement, said Defendant retracts his plea of Not Guilty heretofore

entered, and for glMto said Indictment, says he is GUILTY of MENACING BY STALIffNG, as

contained in the^ended,'Count 3 of the Indictment, which offense occurred on or about May 23,

2004 through on or about MaTch 2, 2006;; and GUILTY of VIOI.ATING A PROTECTION ORDER,. ._._as contained in Count 4 of the Indictment, which offense occurred on or about February 7, 2006,

which pleas, voluntarily made and with a full understanding of the consequences, are accepted

by the Court.

IT IS FURTHER ORDERED that the charges of BURGLARY, as contained in Count 1 of the

Indichnent; and'VIOI.ATING A PROTECI'ION ORDER, as contained in Counts 2, 5, 6, 7, and 8,

herein be DISMISSED, upon recommendation of the Prosecutor.

Said Defendant was affordedd all rights pursuant to Crim. R 11. The Court has considered

the record, statements of counsel, as well as the principtes and purposes of sentencing under

O.R.C. 2929.11, and theseriousnes§,and recidivism factors under O.R.C. 2929.12..^ __

The Court further finds the following pursuant to O.R.C. 2929.13:

(1) Anything less would demean the seriousness of the offense(s) and would not

adequately protect the publ_

ic.-` --

(2) justice requires a prison term; AND )' `

The Court further finds the Defendant is not amenable to community control and that

prison is consistent with the purposes of O.R.C. 2929.11.

--Ttxereupon, the Court-;inquired of the said Defendant if he had anything to say why

judgment should not be pronounced against him; and having nothing but what he had already

said and showing no good and sufficient cause why judgment should not be pronounced:

IT IS THEREFORE ORDERED AND AD,TUDGED BY THIS COURT that the Defendant,

VINCENT M. NIEPSUJ, be committed to the Ohio Department of Rehabilitation and Correction for

a definite term of Fifteen (15) months, which is not a mandatory term pursuant to O.R.C.

2929.13(F), 2929.14(D)(3), or 2925.01, for punishment of the crime of MENACING BY STALKING,

Ohio Revised Code Section 2903.211(A), a felony of the 4th degree; and for a defmite term of Six

(6) months, which is not a mandatory term pursuant to O.R.C. 2929.13(F), 2929.14(D)(3), or

2925.01, for punishment of the crime of VIOLATING A PROTECTION ORDER, Ohio Revised Code

Section 2919.27, a felony of the 5th degree, and that the said Defendant pay the costs of this

prosecution for which execution is hereby awarded; said monies to be paid to the Sununit County

Clerk of Courts, Courthouse, 205 S. High Street, Akron, Ohio 44308.

IT IS FURTHER OI2DERED, pursuant to the above sentence that the Defendant be

conveycd, to the Lorain Correctional Institution at Grafton, Ohio, to commence the prison intake

procedure.

The Court further finds, pursuant to O.R.Ct^2929.14(E)(3), that consecutive sentences are_.._..... ._ ._.,necessary to protect the public and punish the Offenders not disproportionate to the conduct and

to the, danger the offender poses, and the harm was so great or unusuat that single term does not

'adequately reflect the seriousness of the conduct.

IT IS FURTHER ORDERED that the sentences imposed in Counts 3 and 4 be served

CONSECUTIVELY and not concurrently with each other.

After release from prison, the Defendant is ordered subject to post-release control to the

extent the parole board may determine as provided by law. Defendant is ORDERED to pay all

prosecution costs, including any fees permitted pursuant to O.R.C. 2929.18(A)(4).

IT IS FURTHER ORDERED that the Defendant be given credit for 36 days served in the

Summit County Jail as of the date of sentencing, September 7, 2006, as agreed to by all parties.

APPROVED:September 13, 2006des

UNTER, JudgeCourt bf Common PleasSummit County, Ohio

cc; Prosecutor Angela Poth-Wypasek/Nick BrevettaCriminal AssignmentAttomey Shelby Woodall - 2BookingRegistrar's OfficeCourt Convey-Adult Probation Department - JAIL CREDITBureau of Computation - CERTIFIED

r

EXHIBIT 4

MARION CORRECTIONAL CAMPWEIGHTCAGE AGREEMENT FORM

THE OHIO LEGISLATURE HAS PASSED INTO LAW; O.R.C SECTION 5145.30, THAT INMATES INCARCERATED IN THESTATE OF OHIO SHALL IN THEIR ACCESS TO WEIGHT LIFTING EQUIPMENT AND/OR WEIGHT MACHINES. THISLIMITATION HAS BEEN SET AT THREE, (3) HOURS PER WEEK.

[N COMPLIANCE WITH OHIO REVISED CODE: THE DEPARTMENT OF REHABILITATION AND CORRECTIONS HASAUTHORIZED EACH MANAGINGOFFICER TO FORMULATE POLICY TO INSURE THAT ACCESS LIMITATIONS ARESTRICTLEY ENFORCED. MARION CORRECTIONAL INSTITUTION HAS CREATED THE FOLLOWING GUIDELINES FORTHE UTILIZATION OF THE WEIGHT LIFTING EQUIPMENT AND/OR WEIGHT MACHINES BY D.R.&C. INMATES.......................................................................................

ACCESS TO THE WEIGHT LIFTING RQUIPMENT AND/OR WEIGHT MACHINES BY INMATES WILL BE LIMITED TOTHREE (3) HOURS PER WEEK, PER INMATE. THE WEEK RUNS FROM SUNDAY THRU SATURDAY WITH WEDNESDAYBEING THE DAY FOR MAINTENANCE AND CLEANING..

INMATES RESIDING 1N THE IYSIR.TH DORM W1LL HAVE ACCESS TO THE CAGE ON SUNDAY, TUESDAY; AND FRIDAY.INMATES RESIDING IN TH(EAST DO WILL HAVE ACCESS TO THE CAGE ON MONDAY, THURSDAY, ANDSATURDAY. "`"""'^

INMATES MUST PLACE THEIR I.D. BADGE IN THE BOX LOCATED OUTSIDE OF THE WEIGHT CAGE ORDER TO GA1NACCESS TO THE WEIGHT CAGE. NO INMATE SHALL ATTEMPT TO UTILIZE ANOTHER INMATE"S I.D. BADGE.

INMATES WILL HAVE A T-SHIRT, TANK TOP OR SOME SORT OF SHIRT ON AT ALL TIMES WHILE IN THE WEIGHTCAGE FOR HEALTH CODE REASONS. FAILURE TO FOLLOW THESE RULES COULD RESULT 1N A CONDUCT REPORTAND SUSPENSION OF WEIGHTCAGE PRIVILEGES.

SLAMMING THE WEIGHT STACKS COULD RESULT IN SUSPENSION OF WEIGHTCAGE PRIVILEGES.

ANY VIOLATIONS IN THE POSTED RULES IN THEWEIGHT CAGE COULD RESULT IN A CONDUCT REPORT. ALL1[YMATES ARE RESPONSIBLE FOR READING THEESE RULES ABIDING BY THEM

ANY AND ALL VIOLATIONS COULD RESULT IN A CONDUCT REPORT. A GUILTY FINDING WILL RESULT IN THEFOLLOWING PENALTIES; FIRST TIME OFFENSE SHALL RESULT IN 30-DAY SUSPENSION OF ALL WEIGHT CAGEPRIVILEGES. A SECOND OFFENSE SHALL RESULT IN A 90-DAY SUSPENSION OF ALL WEIGHT CAGE PRIVILEGES. ATHIRD OFFENSE WILL BE REFERRED TO THE RULES INFRACTION BOARD WITH THE POSSIBILITY OF D.C. TIME,AND ADDITIONAL CHARGES OF THE RULES OF CONDUCT COULD BE ADDED. INMATES WHO HAVE BEEN ISSUED ACONDUCT REPORT WILL NOT BE WILL NOT BE ALLOWED TO USE THE WEIGHT CAGE UNTIL THEIR CONDUCTREPORT HAS BEEN HEARD.

By entering the weight cage; I have read and agree to these rules governing the weight cage for Marion CorrectionalCamp, and I agree to adhere to all the rules. I do understand that if I attempt to utilize another inmate's I.D. card to gainaccess to the weight cage, or attempt to utBize the weight cage more than three (3) hours per week I will be subject todisciplinary action as set forth in the last section of this form. Furthermore; by signing this agreement I understand andagree that the Department of Rehabilitation & Corrections and Marion Correctional Camp are not liable for any injury Imay sustain from lifting weights in the weight cage area.

PRINT NAME . SIGN NAME DATE

/ /

In the Ninth District Court of Appeals

Summit County, Ohio

State of Ohio

Appellee,

V.

Vincent M. Niepsuj

Appellant.

Case No.: C.A. 23593

Motion to file AMENDEDRule 26 Applicationfor Reconsideration of4-10-07 Journal EntryINSTANTER

Motion

In consideration of the Appellant having not received this

honorable Court's April 10, 2007 journal entry dismissing this

appeal, until April 18, 2007 (Exhibit 1 in AMENDED application)

and great difficulty obtaining copies that he might serve on the

prosecutor in this case (for example. once again the Marion Libra-

ry was closed yesterday April 26, 2007 when the head librarian

did not come to work, thus preventing Appellant from making co-

pies - and only via a special variance from the Unit manager could

he obtain a single partial copy at the Marion Camp Thurs eve.),

and in consideration of the difficulty of culling essential re-

search in support of this appeal, and in light of the Appellant

having sent a partial unamended application for consideration to

this honorable Court on April 25, 2007, the Appellant respectfully

asks that this honorable Cou-rt treat the AMENDED Rule 26 Applica-

tion for Reconsideration of 4=_10-2007 Journal Entry as being filed

Instanter effective the April 20, 2007 due date in this matter.

Respectfully submitted,

Vincent M. Niepsuj512-742;M:.C.C.: P..O Box 57; M.arion, Ohio 43301-0057

Certificate of Service

Appellant has mailed this motion to Phil Bogdanoff with his A-

MENDED application on April 28, 2007. Respectfully,Vincent M Niepsuj

/

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