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IN THE SUPREME COURT OF OHIO
STATE OF OHIO, EX REL.DENNIS P. WILL, LORAIN COUNTYPROSECUTING ATTORNEY,225 Court Street, 3Td FloorElyria, Ohio 44035
Relator,
vs.
THE HONORABLE JUDGECHRISTOPHER R. ROTHGERY, LORAINCOUNTY COURT OF COMMON PLEASCourtroom 602225 Court Street, 6th FloorElyria, Ohio 44035
Respondent.
®RIGINAL
Case No. 2010-1068
ORIGINAL ACTION INPROHIBITION
(CAPITAL CASE)
AMENDED PETITION AND COMPLAINT FOR ORIGINAL WRIT OF PROHIBITIONAND SUPPORTING AFFIDAVIT
DENNIS P. WILLLorain Couxity Prosecuf g Attorne
Billie Jo Belcher (#0072337)Assistant Prosecuting Attorney225 Court Street, 3`d FloorElyria, Ohio 44035(440) 329-5393(440) 328-2183 [email protected] email
Counsel for Relator
YEZU
JUN 9 0 ZU1U
CLER^ OF Ct)i.lRTSUPREME COUR"t iDF OHIO
JUIN :^^ U' 2 01 oCLERK OF CUUR"
SUPREME COUR'f Lyr iIFC!t?
IN THE SUPREME COURT OF OHIO
STATE OF OHIO, EX REL.DENNIS P. WILL, LORAIN COUNTYPROSECUTING ATTORNEY,225 Court Street, 3d FloorElyria, Ohio 44035
Relator,
vs.
THE HONORABLE JUDGECHRISTOPHER R. ROTHGERY, LORAINCOUNTY COURT OF COMMON PLEASCourtroom 602225 Court Street, 6th FloorElyria, Ohio 44035
Respondent.
Case No. 2010-1068
ORIGINAL ACTION INPROHIBITION
(CAPITAL CASE)
AMENDED PETITION AND COMPLAINT FOR ORIGINAL WRIT OF PROHIBITION
JURISDICTION
I. This is an original action for a writ of prohibition and a request for an alternative writ,
seeking an order prohibiting the respondent Judge Chrisopher R. Rothgery from issuing a
ruling on a "Motion for Resentencing and to Issue a Final Appealable Order" filed on May
19, 2010 in State of Ohio v. Stanley Jalowiec, Lorain County Court of Common Pleas Case
No. 95CR046840, a death penalty case in which the defendant has exhausted his direct
appeals. Respondent is about to exercise jurisdiction to rule on the motion where he patently
and unambiguously lacks jurisdiction and where relator has no adequate remedy at law. This
Honorable Court has original jurisdiction to hear this action under Article IV, § 2(B)(1)(d) of
the Constitution of the State of Ohio.
1
•t
PARTIES
2. Relator Will is the duly elected prosecuting attorney for Lorain County, Ohio. The
prosecuting attorney is an official within the executive branch of State Govemment. State v.
Hall (February 4, 2000), 2"d Dist. No. 99 CA 94, Gosney v. Board of Elections (March 30,
1989), 7`h Dist. No. 88-C-54.
3. Respondent Rothgery is a duly elected Judge of the Court of Common pleas for Lorain
County, Ohio, whose independent office falls within the judicial branch of State
Government. See e.g., Hall, supra. Respondent Rothgery presides over the case of State of
Ohio v. Stanley Jalowiec, Lorain County Court of Common Pleas Case No. 95CR046840, a
death penalty case in which the defendant has exhausted his direct appeals.
FACTS
4. In Lorain County Court of Common Pleas Case No. 95CR046840, defendant Stanley
Jalowiec was convicted and sentenced to death in connection with the 1994 homicide of a
police informant Ronald Lally. Lally was to testify against Raymond and Danny Smith,
friends of Jalowiec, regarding narcotics related charges on January 19, 1994. Lally was
murdered January 18-19, 1994. The case was tried to a jury and heard by the Honorable
Judge Kosma J. Glavas, the now deceased predecessor Judge whose docket Respondent
Rothgery inherited upon taking the bench.
5. The jury returned a verdict of guilty against Jalowiec of one count of aggravated murder,
with firearm and capital specifications, the sole count and specifications arising from the
death of police informant Ronald Lally. On April 11, 1996, Judge Glavas imposed the death
sentence upon Jalowiec.
2
6. On direct appeal, the Ninth District Court of Appeals exercised its jurisdiction and affirmed
Jalowiec's convictions and death sentence in State v. Jalowiec (April 15, 1998), 9th Dist. No.
96CA006445.
7. This Honorable Court subsequently exercised its jurisdiction and affirmed Jalowiec's
conviction and death sentence on appeal from the Ninth District. State v. Jalowiec, 91 Ohio
St.3d 220, 2001 Ohio 26.
8. On March 17, 1997, Jalowiec filed his Petition for Post-Conviction Relief with the Lorain
County Court of Common Pleas. Multiple amendments were filed with the trial court over
the span of next three (3) years before the petition was considered., On April 12, 2001, the
trial court dismissed Jalowiec's Petition and amendments as being untimely, barred by res
judicata, and/or rebutted by trial testimony.
9. Jalowiec appealed the dismissal of the Petition for Post Conviction Relief to the Ninth
District Court of Appeals. The Ninth District Court of Appeals affirmed the decision of the
trial court as to the dismissal of the Petition. State v. Jalowiec, 9`h Dist. No. 01CA007844,
01CA007847, 2002 Ohio 949.
10. Jalowiec appealed the decision of the Ninth District Court of Appeals to affirm the denial of
his Petition for Post Conviction Relief to this Honorable Court. This Court declined to
exercise jurisdiction. State v. Jalowiec, 96 Ohio St. 3d 1439, 2002 Ohio 3344.
11. On July 17, 2002 Jalowiec filed a second Petition for Post Conviction Relief with the trial
court. This petition was denied on August 15, 2002.
12. Jalowiec appealed the dismissal of his spcond Petition to the Ninth District Court of
Appeals. The Ninth District Court of Appeals affirmed the denial of Jalowiec's second
Petition. State v. Jalowiec, 9`h Dist. No. 02CA008130, 2003 Ohio 3152.
3
13. Jalowiec appealed the decision of the Ninth District Court of Appeals to affirm the denial of
his second Petition for Post Conviction Relief to this Honorable Court. This Court declined
to exercise jurisdiction. State v. Jalowiec, 100 Ohio St. 3d 1431, 2003 Ohio 5396.
14. Jalowiec also lobbied the Ninth District Court of Appeals to reopen his direct appeal
pursuant to App.R. 26(B) and State v. Murnahan (1992), 63 Ohio St. 3d 60. The Ninth
District Court of Appeals denied the application to reopen on August 18, 1999. State v.
Jalowiec (April 15, 1998), 9th Dist. No. 96CA006445, journal entry dated August 18, 1999.
15. Jalowiec appealed the denial of his application to reopen to this Honorable Court. This
Court affirmed the decision of the Ninth District Court of Appeals. State v. Jalowiec, 92
Ohio St. 3d 421, 2001 Ohio 164.
16. On April 9, 2003, Jalowiec filed his petition for a writ of habeas corpus with the United
States District Court for the Northern District of Ohio. On January 31, 2008, the District
Court denied Jalowiec's petition for a writ of habeas corpus. Jalowiec v. Bradshaw (N.D.
Ohio, 2008), case number 1:03 CV 0645. The District Court decline to issue a certificate of
appealability.
17. On February 28, 2008, Jalowiec filed his appeal from the denial of his writ of habeas
corpus with the Sixth Circuit United States Court of Appeals. The appeal is currently
pending with the matter being scheduled for oral argument on June 9, 2010.
18. During the pendency of the appeal, Jalowiec filed a Fed. Civ.R. 60(B) motion with United
States District Court for the Northern District of Ohio. This motion related to compliance
with the District Court's discovery order in connection with Jalowiec's writ of habeas
corpus. The District Court denied this motion on April 20, 2009.
4
19. On July 9, 2008, this Honorable Court decided State v. Baker, 119 Ohio St.3d 197, 2008-
Ohio-3330, holding that a judgment of conviction was a final appealable order only upon the
issuance of a single document sentencing entry that complied with Ohio Crim. R. 32(C).
Specifically, this Honorable Court explained that "we now hold that a judgment of conviction
is a final appealable order under R.C. 2905.02 when it sets forth (1) the guilty plea, the jury
verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3)
the signature of the judge; and (4) the time stamp showing journalization by the clerk of
court." Id., at ¶ 18. This Honorable Court also held that in Baker that without a final
appealable order, the court of appeals has no "jurisdiction" to consider an appeal under Ohio
Constitution Section 3(B)(2), Article IV. Id.
20. On May 19, 2010, defendant Jalowiec filed a "Motion for Resentencing and to Issue a Final
Appealable Order" before Respondent Rothgery, seeking a remedy "to resentence Jalowiec
and issue a new, final entry." A copy of defendant Jalowiec's May 19, 2010 Motion is
attached hereto as Relator's Exhibit 1.
21. As of the date of this filing, 16 years, 4 months, and 28 days have elapsed since January 18-
19, 1994, the day that Jalowiec and the Smiths killed Ronald Lally. 14 years, 2 months, and
6 days, have elapsed since April 11, 1996, the day that Jalowiec received his death sentence.
22. At no point prior to May 19, 2010, the date that Jalowiec filed his "Motion for Resentencing
and to Issue a Final Appealable Order," did Jalowiec ever specifically complain that his
judgment of conviction was improper pursuant to Crim. R. 32(C), nor did Jalowiec ever
complain that his due process rights or any other constitutional rights were violated because
his sentencing entry did not strictly comply with Crim. R. 32(C).
5
RESPONDENT IS ABOUT TO EXERCISE JUDICIAL POWER
23. As stated above, Jalowiec filed his "Motion for Resentencing and to Issue a Final
Appealable Order" on May 19, 2010 before Respondent Rothgery, seeking as a remedy "to
resentence Jalowiec and issue a new, final entry." Respondent has not yet ruled on the
motion.
RESPONDENT PATENTLY AND UNAMBIGUOUSLY LACKS JURISDICTION
24. As stated above, Jalowiec's "Motion for Resentencing and to Issue a Final Appealable
Order" asks Respondent to resentence him (ipso facto entering a new judgment of
conviction), despite the prior affirmance of his conviction by the Ninth District Court of
Appeals and this Honorable Court.
25. Courts following Baker have interpreted its holding to mean that a criminal defendant who
receives a new sentencing entry pursuant to Crim. R. 32(C) may also file a second direct
appeal of his new judgment of conviction, or a "re-appeal," despite the fact that the defendant
has already had a prior direct appeal from the original judgment of conviction. See State v.
Mitchell, 6te Dist. No. L-10-1047, 2010-Ohio-1766, State v. Lampkin, 6te Dist. No. L-09-
1270, 2010-Ohio-1971. t Specifically, in Lampkin, the Sixth District explained:
It is clear that the December 6, 2006 judgment sentencing Lampkin was not afinal appealable order. "[T]he purported judgment did not comply with Crim. R.32(C) and * * * did not constitute a final appealable order." [State ex rel. Culgan
v. Medina Cty. Court of Common Pleas, 119 Ohio St.3d 535, 2008-Ohio-4609] at¶ 1. Without a final appealable order, this court is without jurisdiction to hear anappeal. State Auto Mut. Ins. Co. v. Titanium Metals Corp., 108 Ohio St.3d 540,2006-Ohio-1713, ¶ 8. It follows that we were without jurisdiction to hearLampkin's appeal in case No. L-07-1005.
I In a similar vein, this Court is currently considering whether a criminal defendant is entitled to a second round ofdirect appeals when the original round of direct appeals was premised upon a void sentence due to post-release
control errors. See State v. Londen Fishcer, Ohio Supreme Court case number 2009-0897 (during the oral argument,Justice Lanzinger commented that it appeared that any error with a sentencing entry not raised on appeal was
waived) and State v. Jimmy Harmon, Ohio Supreme Court case number 2009-1866.
6
Larnpkin, supra, at ¶ 12.
Asking a court of common pleas to invalidate and re-enter an affirmed conviction violatesOhio's constitutional hierarchy of courts.
26. The Lampkin holding necessarily rests upon the proposition that an appellate court that
affirms a criminal conviction without a Baker-compliant journal entry lacked jurisdiction to
hear the appeal because there was no final appealable order, and therefore the appellate court
lacked the authority to act. A void judgment is one rendered by a court lacking subject-
matter jurisdiction or the authority to act. Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-
1980, at ¶ 12; State v. Beasley (1984), 14 Ohio St.3d 74, 75.
27. However, courts may determine their own jurisdiction. See generally, State ex rel.
Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 466, 1992 Ohio 79. By affirming both
Jalowiec's convictions and sentence, both the court of appeals and this Honorable Court have
necessarily determined they had jurisdiction to do so.
28. Any subsequent request made to a constitutionally inferior court to invalidate and re-enter a
previously affirmed convictions and sentence would require the inferior court to conduct a
form of "review" of the superior courts to determine if the court of appeals and this
Honorable Court erred. This action violates Ohio's constitutional hierarchy of courts. 2
29. In State v. Hashmall (1955), 164 Ohio St. 170, 164 N.E.2d 1, this Honorable Court
explained the hierarchy of Ohio Courts and the jurisdictional confines in which Ohio Courts
must operate:
We have already stated that the judicial process is one fixed by the Constitutionand statutes of the state. The judges of our courts are required to state thejudgment and law of a case being tried by or appealed to them, in a manner that
Z This request also violates the law of the case doctrine. (a decision of a reviewing court in a case remains the law ofthat case on the legal questions involved for all subsequent proceedings in the case at both the trial and reviewing
levels. Nolan v. Nolan (1984), 11 Ohio St.3d 1, 3. The doctrine functions to compel trial judges to follow the
mandates of reviewing courts.) Id.
7
will legally determine the rights of the litigants. This is the way in which thejudicial process must operate from courts of inferior jurisdiction to the court oflast resort, and when a case reaches the Supreme Court, the decision and the wordstructure of the opinion are within the sole and complete discretion of themembers of that court. What is said in entering judgment or in a supportingopinion is privileged and not subject to direct or collateral attack by anyone. Thisproposition applies with equal force to the judge who presided at the trial of thecase in the court of inferior jurisdiction from which an appeal has been taken.
Id., at 172-73. 3
30. Likewise, a trial court generally loses jurisdiction to take action in a cause after an appeal is
taken and decided. State ex rel. Special Prosecutors v. Judges (1978), 55 Ohio St.2d 94, 378
N.E.2d 162. Following Special Prosecutors, the judgment of the Ninth District Court of
Appeals and this Honorable Court on direct appeal of Jalowiec's convictions and sentence is
controlling upon Respondent with respect to all matters within the scope of that judgment.
Id. That necessarily includes Jalowiec's convictions and sentence. Therefore, granting
Jalowiec's requested relief would be inconsistent with the prior judgment of the Ninth
District and this Honorable Court which have affirmed Jalowiec's convictions and sentences.
Id.
31. Clearly, then, the court of common pleas may not invalidate a conviction that the court of
appeals and the Supreme Court have already affirmed.4 To hold otherwise would fail to
"preserve the structure of the judiciary as set forth in the Constitution of Ohio." State ex rel.
Potain v. Mathews (1979), 59 Ohio St.2d 29, 32, 391 N.E.2d 343. "Article IV of the Ohio
Constitution designates a system of `superior' and `inferior' courts, each possessing a distinct
' It must be noted that Ninth District Court of Appeals as well as this Honorable Court has already acceptedJalowiec's original sentencing entry as a final order as contemplated by then Ohio Criminal Rule of Procedure 32(B)that was in effect at the time Jalowiec was sentenced and/or R.C. 2505.02.
4 In State ex rel. Cordray v. Marshall,123 Ohio St. 3d 229, 2009 Ohio 4986, this Court granted a writ of prohibition
when a trial judge attempted to alter a judgment in a criminal matter on the same basis that had been presented to a
court of appeals and rejected.
8
function." Id. Consequently, "[t]he Constitution does not grant to a court of common pleas
jurisdiction to review a prior mandate of a court of appeals." Id.
32. Based on the foregoing, Respondent has no authority under the Ohio Constitution to
adjudicate Jalowiec's "Motion for Resentencing and to Issue a Final Appealable Order"
because doing so would necessarily require Respondent to determine that both the court of
appeals and this Honorable Court erred by reviewing and affirming Jalowiec's convictions
and sentence.
Interpreting Baker and Crim. R. 32(C) to allow "re-appeals" violates Crim. R. I(B) and R. C.
2901.04(B).
33. As explained above, Jalowiec freely acknowledges that he asks for a new sentencing so he
can obtain a new conviction and a new appeal, or a "re-appeal."
34. Jalowiec's sweeping construction of Crim. R. 32(C) and Baker plainly contravenes of Crim.
R. 1(B), which provides:
(B) Purpose and constructionThese rules are intended to provide for the just determination of every criminalproceeding. They shall be construed and applied to secure the fair, impartial,
speedy, and sure administration of justice, simplicity in procedure, and the
elimination of unjustifiable expense and delay.
(Emphasis added). Similarly, R.C. 2901.04(B) provides:
(B) Rules of criminal procedure and sections of the Revised Code providing for
criminal procedure shall be construed so as to effect the fair, impartial,speedy, and sure administration of justice.
(Emphasis added). An interpretation of Crim. R. 32(C) and Baker that requires the court and
litigants to re-sentence, re-convict, and re-appeal a case in which the defendant was
previously convicted and exhausted his direct appeals violates both the letter and the spirit of
Crim. R. 1(B) and R.C. 2901.04(B).
9
35. Jalowiec's argument hinges on an interpretation of Baker, supra, and Crim. R. 32(C) that
will cause utter chaos and turmoil within Ohio's criminal justice system. It will require
prosecutors, defense attorneys, and courts to reopen and re-litigate all contested cases in
which a Baker non-compliant journal entry served as the basis for a conviction. 5
36. By holding that Crim. R. 32(C) is "jurisdictional," and concluding that prior appeals from
Baker non-compliant journal entries were therefore conducted without a "final appealable
order," it necessarily follows that those previous appeals were nullities because these prior
appellate decisions were rendered by courts without the authority to act. See Mitchell, supra,
and Lampkin, supra. This sweeping proposition would not just apply to Jalowiec and his
capital case. Nor would this proposition be limited to criminal cases where defendants
remain incarcerated. It would necessarily apply to all Ohio criminal cases without Baker-
compliant joumal entries since July 1, 1973, the date of the enactment of Ohio's Criminal
Rules.
37. Relator cannot predict the number of pre-Baker criminal cases in which it could be held that
the judgment entry did not comply with the Crim. R. 32(C), as construed by Baker.
However, relator has good reason to anticipate that construing Baker to confer jurisdiction
upon a trial court to entertain the type of post-judgment motion filed by Jalowiec will open
5 In fact such cases exist. In Ninth District Court of Appeals case numbers 09CA009634 and 09CA009635 as well
as 09CA009636, State v. Smith and State v. Allen, respectively, the Lorain County Prosecutor's Office is litigating
whether the remedy for a sentencing entry that does not comply with Crim.R. 32(C) is a de novo sentencing hearing
or a corrected sentencing entry. Due to the deficient sentencing entry, Judge James Burge of the Lorain CountyCourt of Common Pleas determined that he could revisit any trial issues, including evidentiary rulings, prior to re-imposing sentence. Judge Burge reversed all prior evidentiary rulings made by his predecessor trial judge, excluded
the State's evidence, and then sua sponte granted Crim.R. 29(C) motions acquitting both defendants of the charges,fifteen (15) years post jury verdict. Both defendants had served fifteen (15) years of their lengthy prison sentences.The matters have been argued in Apri12010, and March 2010, respectively and have been submitted pending ruling.It must be noted that the Ninth District Court of Appeals granted leave to appeal the underlying substantive legal
issues in both cases but not the final verdicts.
10
the floodgate to thousands of similar post-judgment motions and subsequent appeals. 6 This
flood of litigation will impose a heavy burden on the Ohio courts and the various
governmental agencies who must litigate these cases.
38. Moreover, recognizing this type of post-judgment action could have drastic and unintended
effects on petitions for federal habeas corpus relief filed by thousands of Ohio prisoners. The
statute of limitations for the filing of federal habeas petitions begins to run when the
prisoner's conviction or sentence is final on direct appeal. Prisoners whose statute of
limitations has expired, or who have previously and unsuccessfully sought federal habeas
corpus relief, would have great incentive to file post-judgment motions under Baker in the
hope of reviving their opportunities for federal habeas relief. And, indeed, if the prisoners'
arguments are accepted, and the previously "final judgment" is of no effect, the prisoners
could conceivably convince a federal court that they are entitled to file a new federal habeas
corpus petition.
39. This view is underscored by the June 24, 2010 judgment of the Supreme Court of the
United States' in Magwood v. Patterson (2010), 561 U. S. ---- (Slip. Op.), available for
download at http://www.supremecourt.gov/opinions/09pdf/09-158.pdf (last viewed June 29,
2010), which held that when a criminal defendant has an original sentence overttnned, a later
habeas petition challenging his new sentence should be treated as a first petition, not as a
"second or successive" petition, even when it raises grounds that could have been, but were
not, made against the original sentence. The Court in Magwood reasoned that a habeas
corpus petition is directed at attacking the State Court's judgment, and "the existence of a
new judgment is dispositive." Id., at 17. Therefore, when a new sentencing judgment is
6 It must be noted in State v. Loyer, 5" Dist. No. 2009 CA 00312, 2010 Ohio 1181, the appellate court has
determined that this Court's decision in Baker does not apply retroactively to a case in which the direct appeal
became final before Baker was decided. By adopting this holding, this Court could avoid such described scenario.
11
issued, the petitioner is free to file a new petition for writ of habeas corpus challenging that
judgment. Four justices in dissent noted that the majority's decision was problematic
because, under Fed. Rule Crim. Proc. 32(k)(1), ajudgment of conviction typically includes
both the findings of guilt and the sentence. Id., at 9 (Kennedy, J., dissenting). Therefore, the
dissenting justices explained, "the Court's holding today would allow a challenger in
Magwood's position to raise any challenge to the guilt phase of the criminal judgment
against him in his second application, since a "new" judgment-consisting of both the
conviction and sentence-has now been reentered and all of the errors have (apparently)
occurred anew." Id., at 10 (Kennedy, J., dissenting). The Magwood majority declined to
address that critical question, apart from suggesting in a footnote that the dissent's concern
was "hyperbolic," because "[i]t will not take a court long to dispose of such claims where the
court has already analyzed the legal issues." Id., at 20, fn 15.
40. It is unclear what the Magwood majority believes would constitute a "long" time to dispose
of a new habeas petition from a new judgment of conviction.
Jalowiec's motion is actually an untimely petition for postconviction relief that is barred by res
judicata.
41. Jalowiec's May 19, 2010 "Motion for Resentencing and to Issue a Final Appealable Order"
is actually an untimely postconviction petition that collaterally attacks his conviction and
sentence based on alleged error contained in the record, which also precludes Respondent
from considering the motion under the doctrine of resjudicata.
42. This Honorable Court has explained that "[w]here a criminal defendant, subsequent to his or
her direct appeal, files a motion seeking vacation or correction of his or her sentence on the
basis that his or her constitutional rights have been violated, such a motion is a petition for
postconviction relief as defined in R.C. 2953.21." State v. Reynolds, 79 Ohio St. 3d 158,
12
160, 1997 Ohio 304 (emphasis added) (analyzing a motion captioned as a "Motion to Correct
or Vacate Sentence"); see also State v. Schlee, 117 Ohio St. 3d 153, 2008-Ohio-545, ¶ 12
(however styled, a motion meets the definition of a postconviction relief petition under R.C.
2953.21(A)(1) if it is (1) filed after a defendant's direct appeal, (2) claims a denial of
constitutional rights, (3) seeks to render a judgment void, and (4) asks the court to vacate a
judgment and sentence). Regardless of how a defendant labels his motion, courts must
categorize "irregular `no-name motions ... in order for the court to know the criteria by
which the motion should be judged." State v. Bush, 96 Ohio St. 3d 235, 2002-Ohio-3993,
¶ 10; see Schlee, 2008-Ohio-545 at ¶ 6 (affirming trial court's decision to recast a Rule 60(B)
motion as a postconviction relief petition); but see Bush, 2002-Ohio-3993 at ¶ 14
(distinguishing postconviction relief petitions and Criminal Rule 32.1 post-sentence motions
to withdraw a plea).
43. Jalowiec has not complied with the statutory requirements for filing a successive petition
for postconviction relief under Ohio law. R.C. 2953.21(A)(2) sets forth the statutory time
limits for the filing of a petition for post conviction relief, requiring that a criminal defendant
file the petition within 180 days after the filing of the trial transcript in the direct of appeal
from conviction. There is no question that Jalowiec failed to raise his Crim. R. 32(C)
argument, which was based on alleged error contained in the record, within the statutory time
limits. Consequently, defendant's post conviction petition did not comply with the time
limits of R.C. 2953.21.
44. Since defendant filed his petition outside of the time limits contained in R.C. 2953.21, R.C.
2953.23 governs the time for filing a petition for post conviction relief outside of the
statutory time period. It states in relevant part:
13
(A) Whether a hearing is or is not held on a petition filed pursuant to section2953.21 of the Revised Code, a court may not entertain a petition filed after theexpiration of the period prescribed in division (A) of that section or a secondpetition or successive petitions for similar relief on behalf of a petitioner unlessdivision (A)(1) or (2)7 of this section applies:(1) Both of the following apply:(a) Either the petitioner shows that the petitioner was unavoidably prevented fromdiscovery of the facts upon which the petitioner must rely to present the claim forrelief, or, subsequent to the period prescribed in division (A)(2) of section2953.21 of the Revised Code or to the filing of an earlier petition, the UnitedStates Supreme Court recognized a new federal or state right that appliesretroactively to persons in the petitioner's situation, and the petition asserts a
claim based on that right.(b) The petitioner shows by clear and convincing evidence that, but forconstitutional error at trial, no reasonable factfinder would have found thepetitioner guilty of the offense of which the petitioner was convicted or, if theclaim challenges a sentence of death that, but for constitutional error at thesentencing hearing, no reasonable factfinder would have found the petitioner
eligible for the death sentence.
45. "Unless the exceptions in R.C. 2953.23 apply, a judge lacks jurisdiction to consider a
petition for post conviction relief." State v. Short, 8"' Dist. No. 83492, 2004 Ohio 2695, at ¶
4.
46. There is absolutely no good excuse for Jalowiec to have waited 14 years to raise an alleged
error based on information that was contained in the record. The language of Crim. R. 32(C)
has existed unchanged since the date of Jalowiec's conviction. Raising the issue now, to
stave the conclusion of the appellate process and the scheduling of an execution date, is
exactly the sort of delay for delay's sake that R.C. 2953.23 was designed to prevent.
47. The principles of res judicata may be applied to bar the further litigation in a criminal case
of issues which were raised or could have been raised previously in an appeal. See, generally,
State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104. Here, Jalowiec could have raised
an allegation of error under Crim. R. 32(C) upon in his first direct appeal to the Ninth
7 R.C. 2953.23(A)(2), which pertains to post conviction petitions based on statutory applications for DNA testing,
does not apply here.
14
District, but failed to do so. The arguments he now presents to Respondent are therefore
precluded by resjudicata.
Limiting Baker's holding to its particular facts and circumstances is a fair and just
application of Ohio law.
48. Careful analysis of the facts and circumstances of Baker demonstrates why Jalowiec's
argument extends Baker far beyond this Honorable Court's intent. Baker was a certified
conflict case in which the Ninth District Court of Appeals had dismissed a defendant's direct
appeal from his conviction and sentence because the sentencing entry did not include a
statement regarding the type of plea the defendant entered at arraignment.Baker, supra, at ¶
2.
49. This Honorable Court rejected the Ninth District's interpretation of Crim. R. 32(C), and
held:
By erroneously dismissing appeals of this nature, the Ninth District has
unnecessarily complicated cases of those seeking appellate review of their
convictions and sentences. Crim. R. 32(C) does not require what the court of
appeals mandates for a final appealable order. We answer the certified questionby holding that the judgment of conviction is a single document that need notnecessarily include the plea entered at arraignment, but that it must include thesentence and the means of conviction, whether by plea, verdict, or finding by thecourt, to be a final appealable order under R.C. 2505.02. We therefore reverse thejudgment of the Court of Appeals for Summit County and remand the appeal ofJermaine Balcer to the court of appeals for further proceedings.
Id., at ¶ 19 (emphasis added). It is clear that this Honorable Court decided Baker to prevent
lower courts from frustrating a criminal defendant's attempt to seek appellate review of his
conviction and sentence by imposing an overly rigid and unworkable interpretation of Crim.
R. 32(C) and R.C. 2505.02. 8
e As this Honorable Court is fully aware, individuals such as Jermaine Baker were precluded from seeking anyec was
tp among that class of persons and should not be able ol twist Baker to producetan appellate windfall.o
15
50. There is nothing in the facts or holding of Baker, however, suggesting that this Honorable
Court intended to allow criminal defendants who have already obtained appellate review to
ask for new sentences (and new judgments of conviction) in order to obtain second appeals. 9
51. An interpretation of Baker that would allow criminal defendants such as Jalowiec to obtain
a second round of appeals would run afoul of this Honorable Court's well-established rules
governing finality in criminal litigation.
52. In State v. Saxon, 109 Ohio St.3d 176, 2006 Ohio 1245, this Honorable Court explained that
"the doctrine [of res judicata] serves to preclude a defendant who has had his day in court
from seeking a second on that same issue. In so doing, res judicata promotes the principles
of finality and judicial economy by preventing endless relitigation of an issue on which a
defendant has already received a full and fair opportunity to be heard." Id., at ¶ 18, citing
State ex rel. Willys-Overland Co. v. Clark (1925), 112 Ohio St. 263, 268, 147 N.E. 33.
53. As stated above, there has never been any question that the technical form of Jalowiec's
conviction and sentence were insufficient for him to obtain meaningful appellate review.
The alleged error he now asks Respondent to correct has openly existed in the record for the
previous 14 years. Jalowiec has also never complained that the technical form of his
sentencing entry under Crim. R. 32(C) deprived him of any fundamental constitutional right,
nor has he complained of an inability to discern what charges resulted in convictions.
Extending Baker in the manner proposed by Jalowiec simply does not comport with the facts
and circumstances unique to the Baker decision, nor does it comport with Ohio's long-
established rules governing the finality of criminal convictions.
9 See State v. Loyer, 5`n Dist. No. 2009 CA 00312, 2010 Ohio 1181.
16
REFUSAL OF THE WRIT WILL RESULT IN INJURY FOR WHICH THERE IS NOADEQUATE REMEDY AT LAW.
54. As explained above, Jalowiec freely acknowledges that he asks for a new sentencing so he
can obtain a new conviction and a new appeal, or a "re-appeal."
55. In State v. Steffen, 70 Ohio St.3d 399, 1994 Ohio 111, this Honorable Court held that once a
capital defendant has exhausted his direct appeal, post conviction review and delayed
reconsideration review, any further filings are likely to be interposed for purposes of delay,
and that a capital defendant would have to petition this Court for a stay to allow such further
litigation. Specifically, this Honorable Court explained:
"A procedural system which permits an endless repetition of inquiry into facts andlaw in a vain search for ultimate certitude implies a lack of confidence about thepossibilities of justice that cannot but war with the effectiveness of underlyingsubstantive commands. * * * There comes a point where a procedural systemwhich leaves matters perpetually open no longer reflects humane concern but
merely anxiety and a desire for immobility." Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners (1963), 76 Harv.L.Rev. 441, at 452-
453.
The Supreme Court acknowledged a state's inherent power to impose finality onits judgments. "Our federal system recognizes the independent power of a State toarticulate societal norms through criminal law; but the power of a State to passlaws means little if the State cannot enforce them." [McCleskey v. Zant (1991),
499 U.S. 467, 491, 111 S.Ct. 1454, 1468].
Steffen, supra, at 411-412. Just as in Steffen, allowing Jalowiec to obtain a new sentence,
new conviction, and "re-appeal" would "permit an endless repetition of inquiry into facts and
law in a vain search for ultimate certitude." Id.
56. If an alternative remedy is available but inadequate, the Court may still grant an
extraordinary writ. State ex rel. Fenske v. McGovern (1984), 11 Ohio St. 3d 129, 131; State
ex rel. Dollison v. Reddy(1978), 55 Ohio St.2d 59, 60. "In order for an alternate remedy to
be considered adequate, the remedy must be complete, beneficial and speedy." State ex rel.
17
Minor v. Eschen, 74 Ohio St.3d 134, 136, 1995 Ohio 264, citing State ex rel. Chavis v.
Sycamore City School Dist. Bd. of Edn. (1994), 71 Ohio St.3d 26, 33.
57. A remedy at law in this case would be illusory and ineffective because it stands to add years
of delay to the underlying criminal proceedings, which is anathema under Steffen. At the
very least, Jalowiec's "Motion for Resentencing and to Issue a Final Appealable Order"
would re-start the clock for direct appellate review, a post-conviction petition under R.C.
2953.21, motions for new trial under Crim. R. 33, and petitions for a writ of habeas corpus
under 28 U.S.C. § 2254.
58. Relator also submits that interpreting Crim. R. 32(C) and Baker in the manner proposed by
Jalowiec violates the spirit, if not the letter of § 10a, Article I of the Ohio Constitution, which
provides in relevant part:
Victims of criminal offenses shall be accorded fairness, dignity, and respect in thecriminal justice process, and, as the general assembly shall define and provide by law,shall be accorded rights to reasonable and appropriate notice, information, access, andprotection and to a meaningful role in the criminal justice process.
Jalowiec's proposal guts the criminal justice system in the State of Ohio and results in a
system of criminal justice that would cast aside a conviction and death sentence (along with
numerous years of direct appeals, post conviction review, and federal habeas review) because
of an overly rigid and anomalous interpretation of Crim. R. 32(C) is simply unfair to victims
of crime. Particularly for victims of violent crime, reopening criminal convictions and
appeals within the scope and magnitude proposed by Jalowiec would cause unnecessary pain,
anxiety and uncertainty, rather than give victims the "fairness, dignity, and respect" required
by Ohio's Constitution.
18
PRAYER FOR RELIEF
59. The above paragraphs are realleged and incorporated herein.
60. Respondent Rothgery is about to exercise judicial power that is clearly unauthorized by law,
and which will cause Relator immediate and irreparable harm from which there is no
adequate legal remedy.
WHEREFORE, Relator requests that this Court issue an alternative writ immediately
staying the Respondent from adjudicating the May 21, 2010 "Motion for Resentencing and to
Issue a Final Appealable Order." Relator further requests that this Honorable Court issue a
permanent writ of prohibition that bars Respondent from adjudicating the May 19, 2010 "Motion
for Resentencing and to Issue a Final Appealable Order."
Respectfully submitted,
DENNIS P. WILLorain County Prosecuting 4ttomey
Billie Jo Belcher (#0072337)Assistant Prosecuting Attorney225 Court Street, 3`d FloorElyria, Ohio 44035(440) 329-5393(440) 328-2183 [email protected] email
19
CERTIFICATE OF SERVICE
A copy of the foregoing Amended Petition and Complaint for Original Writ ofProhibition and Supporting Affidavit was sent by regular U.S. Mail this 30'h day of June, 2010to the Honorable Judge Christopher R. Rothgery, 225 Court Street, 6`h Floor, Elyria, Ohio44035; Matthew Meyer, Esq., Counsel for Relator Mason, The Justice Center, 8`h Floor, 1200Ontario Street, Cleveland, Ohio 44113; counsel for the Honorable Timothy McConnick, KellyJ. Bamett, Esq., Frantz Ward, 2500 Key Center, 127 Public Square, Cleveland, Ohio 44113;counsel for Intervenors Bonnell and Jalowiec, Kimberly S. Rigby, Esq. and Andrew King,Esq., Office of the Ohio Public Defender, 250 E. Broad Street, Suite 1400, Columbus, Ohio43215 and Laurence E. Komp, Esq., P.O. Box 1785, Manchestor, MO, 63011.
BILLIE JO BELCHER (0072337)Assistant Prosecuting Attorney
20
IN THE COURT OF COMMON PLEASLORAIN COUNTY, OHIO
CRIMINAL DIVISION
State of Ohio,
Plaintiff,
vs.
Stanley Jalowiec,
Defendant.
Case No. 95CR046840
Judge Rothgery
MOTION FOR RESENTENCING AND TO ISSUE A FINAL APPEALABLE ORDER
Stanley Jalowiec moves this Court to file a final appealable order. Jalowiec's entry was
deficient under Crim. R. 32(C), thereby leaving the order interlocutory. SeeState v. Baker,
2008-Ohio-3330, at ¶17. As a result, Jalowiec is entitled to receive an entry fully disposing of
the case. The reasons supporting this motion are set forth in the attached memorandum in
support.
Respectfully submitted,
The Office of the Ohio Public Defender
By:
Office of the Ohio Public Defender250 East Broad St., Suite 1400Columbus, Ohio 43215
p,n g - 0080206Assistant State Public Defe
By:
Kimberly S. Rigby - 0078245AssistantAtate Public Def^nder
EXHIBIT 11
MEMORANDUM IN SUPPORT
I. Introduction
The sentencing entry deviates from Crim.R. 32(C) in two critical respects. First, the
entry fails to state the manner of conviction. State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-
3330, at ¶16; see also,Crim.R. 32(C). Second, the entry fails to state for what charges Jalowiec
received the death penalty or even that he was found guilty of any crime.Id. These deficiencies
render the entry neither fmal nor appealable. Id., at ¶17. Therefore, a Baker compliant entry
needs to be filed.
U. Statement of the Case
On March 8, 1995, a Lorain County Grand Jury indicted Jalowiec on one count of
Aggravated Murder in violation of O.R.C. § 2903.01(A)(1). Two specifications were included in
the indictment. The first specification alleged that Jalowiec had a firearm on or about his person
or under his conttol while committing the murder. The second alleged that the decedent of the
aggravated, murder was a witness to an offense and that the decedent was purposely killed to
prevent his testifying in any criminal proceeding. Jalowiec pleaded not guilty at his arraignment
on March 14, 1995.
Following a jury trial, Jalowiec was found guilty of all counts on March 20, 1996 and on
April 9, 1996 the mitigation hearing was held. On April 10, 1996 the jury recommended the
death penalty, and on April 11, 1996, the court journalized an entry, accepting the jury's
recommendation and imposing a sentence of death upon Jalowiec. See Entry, attached as
Exhibit A.
3
IIl. Argument: Jalowiec's Judgment Entry is not a final appealable order.
1. Crim.R. 32(C) requires certain information be recorded in the entry.
Crim.R. 32(C) states the following:
A judgment of conviction shall set forth the plea, the verdict, orfindings, upon which each conviction is based, and the sentence.Multiple judgments of conviction may be addressed in one judgmententry. If the defendant is found not guilty or for any other reason isentitled to be discharged, the court shall render judgment accordingly.The judge shall sign the judgment and the clerk shall enter it on thejournal. A judgment is effective only when entered on the journal by
the clerk.
In State v. Baker, the supreme court construed this rule and stated the elements of a proper
judgment of conviction as follows: "(1) the guilty plea, the jury verdict, or the finding of the
court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4)
entry on the joumal by the clerk of court." State v. Baker, 119 Ohio St3d 197, 2008-Ohio-3330,
syllabus. And with regard to the first element, the court noted that the entry must contain which
of the four methods of conviction applies to the case but not necessarily the initial plea of not
guilty. Id., at ¶12, 16. The absence of any of these elements leaves the entry as non-final and
non-appealable under R.C. 2505.02. Id., at ¶10.
2. The entry fails to journalize the method of conviction.
In a proper entry, the trial court must memorialize which one of the four ways the
defendant was convicted. Id., at ¶12. These four ways include: "A defendant may plead guilty
either at the arraignment or after withdrawing an initial plea of not guilty or not guilty by reason
of insanity. A defendant may enter a plea of no contest and be convicted upon a finding of guilt
by the court. A defendant may be found guilty based upon a jury verdict. A defendant also may
be found guilty by the court after a bench trial." Id.
4
Here, the entry omits the method of conviction. Id., at ¶13-14. While it could be inferred
from the entry that a jury recommended the death penalty, the entry does not state whether that
same jury found Jalowiec guilty, if he was convicted by the judge or panel of judges, or if he
pleaded guilty to one or more offenses. Although the entry may imply the manner of conviction,
it does not properly memorialize the manner of conviction, as Crim.R. 32(C) mandates. Thus,
this entry is deficient under Crim.R. 32(C) and non-final. Id., at ¶19. This failure alone warrants
a new entry, however additional reasons for granting the motion will be discussed below.
3. The entry fails to journalize the fmdings of guilt.
Second, the entry fails to affirmatively state that Jalowiec was guilty of any crime.
Moreover, absent from the entry is any mention of the crime Jalowiec was accused of and, later,
sentenced for. Because anyone reading this entry could not be certain what Jalowiec did or why
he was sentenced to death, the entry cannot be a fmal appealable order.
Simply put, Crirn.R. 32(C) demands a level of precision not found in this entry. And the
failure to include all of the formalities of Crim.R. 32(C) renders the entry a non-final order. Id.,
at ¶19. Again, absent from the entry is the charge as to the aggravated murder and attendant
- -- - - --specifications, who was the fmder of guilt (i.e. whether it was a jury, a judge, a panel of judges,
etc.), and (surprisingly) that he was found guilty of a crime-three fundamental pieces of
information that require memorialization. In particular, the finding of gailt (or lack thereof) is
the culmination and resolution of the entire criminal proceeding. The prosecution and the
defense alike have fought for this determination. And the determination of guilt is one of the key
functions of the judicial branch. See State ex rel. Bray v. Russell (2000), 89 Ohio St. 3d 132,
136. So, the failure to memorialize this central event significantly deviates from the required
5
formalities of Crim.R. 32(C), and it is in the interest of all parties, the court, and the entire
judicial branch to joumalize that resolution.
Plus, failing to memorialize the finding of guilt calls into questioin whether the sentence is
authorized because a sentence can only follow a finding of guilt. Baker, 2008-Ohio-3330, ¶12.
And, as in this case, a death sentence is appropriate only if a defendant is found guilty of a
certain offenses plus certain specifications. R.C. 2929.04. See also R.C. 2903.01. Here, the
entry also omits the finding of guilt regarding the attendant specification. In a death penalty
case, a specific finding as to the attendant specification to the charge of aggravated murder is
necessary for the entry to be a final, appealable order.
Further, as to the gun specification, the Ninth District has specifically found that a
judgment entry is not a fmal appealable order when that entry "does not contain any indication
that [the defendant] was charged with any firearm specifications [and] does [not] contain a guilty
plea, jury verdict, or finding of the court on which the firearm specification sentence is based."
State v. Carrasquillo, 9h Dist. No. 08CA009424, 2009-Ohio-3140, at ¶5. Jalowiec's entry is
deficient in all of these areas. In sum, the entry is noncompliant with Crim.R. 32(C) and not a
final, appealable order.
4. Resentencing is the proper remedy.
The Supreme Court of Ohio recently detennined that when an entry is noncompliant with
Crim.R 32(C), the remedy is to move the trial court for resentencing. McAllister v. Smith, 119
Ohio St.3d 163, 2008-Ohio-3881, at ¶9; see also State v. Clutter, 3`d Dist. No. 03-08-27, 2008-
Ohio-6576, at ¶13; State v. Culgan, 9^' Dist. No. 08CA0080-M, 2009-Ohio-2783, at ¶6. Thus,
Jalowiec respectfully requests that this Court enter a judgment that complies with Crim. R.
32(C). Any other result would be a violation of Jalowiec's rights under. the Fourteenth
6
Amendment to the United States Constitution. Because Ohio created a right to have a final,
appealable order under Crim. R. 32 and as stated in Baker, 2008-Ohio-3330, Jalowiec had a
liberty interest in this right as protected by the Due Process Clause of the Fourteenth
Amendment. Evitts v. Lucey, (1985) 469 U.S. 387. Jalowiec's constitutional right to due
process would be violated if this Court fails to enter a Baker compliant entry. See Hicks v.
Oklahoma, (1980) 447 U.S. 343, 346 ("such an arbitrary disregard of the petitioner's right [] is a
denial of due process of law."). Further, the right to a final, appealable order cannot "be granted
to some litigants and capriciously or arbitrarily denied to others without violating the Equal
Protection Clause." M.L.B. v. S.L.J., (1996) 519 U.S. 102, 114 (citing Lindsey v. Normet, 405
U.S. 56, 77 (1972)). As stated in Woodson v. North Carolina, (1976) 428 U.S. 280 (plurality
opinion), more process is due in death penalty cases, not less, because of the severity of the
punishment involved.
IV. Conclusion
The April 11, 1996 entry is improper under Crim. R. 32(C). The entry omits the manner
of conviction for aggravated murder charge. And the entry fails to state the crime he was
charged with and that he was found guilty of any crime. The lack of these formalities leaves the
entry a non-final order. The proper remedy is to resentence Jalowiec and issue a new, fmal
entry.
Respectfally submitted,
The Office of the Ohio Public Defender
By: Y:f,^sKimberly S. 'gby- 0078245Assistant State Public Defender
7
By:Andrew`King - 0080206Assistant State Public Defende
Office of the Ohio Public Defender250 East Broad St., Suite 1400Columbus, Ohio 43215614-466-5394614-2-0708 (Fax)[email protected]@opd.ohio.gov
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing MOTION FOR RESENTENCING AND
TO ISSUE A FINAL APPEALABLE ORDER has been served by regular U.S. Mail upon
Dennis Will, Lorain County Prosecutor, 225 Court St., 3rd Floor, Elyria, Ohio 44035, on this
18th day of May, 2010.
1L-^^ SKimberly S. Rigby - 0078245Assistant Public Defender
8
11-DR;%N^e ^U^rf
JOULL ENTRY
p^EIiK OF n; COURT-OF COMMON PLEAS
CDNALp J2 iHgFgYAs Lorain County, Ohio
DoncldJ. Rothgery, Clerk
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plaintiff ^ Attorney for Plainfi(f^Defend
Date
L Attomey for Defendant
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