IN THE SUPREME COURT OF OHIO
JOHN LEONE,
RELATOR,
-vs-
CUYAHOGA COUNTY COURTOF COMMON PLEAS,
Case No. 2012-1328
Original Action InMandamus and Prohibition
RESPONDENT.
RESPONDENT'S MOTION TO DISMISS
COUNSEL FOR RELATOR, COUNSEL FOR RESPONDENT
DAVID B. WAXMAN (#0034590)MICHAEL R: BLUMENTHAL (#0041200)Waxman Blumenthal LLC28601 Chagrin BoulevardSuit 500Cleveland, Ohio 44122(216) 514-9400
WILLIAM D. MASONCuyahoga County ProsecutorBY: James E. Moss (#0061958)Assistant Prosecuting AttorneyThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113(216) 443-7800
AUG : 2 4 2012
CL€RK OF COURTAPR€M€ COURT OF OHIO
IN THE SUPREME COURT OF OHIO
JOHN LEONE,
RELATOR,
-vs-
CUYAHOGA COUNTY COURTOF COMMON PLEAS,
RESPONDENT.
Case No. 2012-1328
Original Action InMandamus and Prohibition
Now comes Respondent, Cuyahoga County Court of Common Pleas, by and through the
undersigned counsel, and respectfully requests that this court grant Respondent's motion to
dismiss Relator's complaint for writ of mandamus and prohibition for the reasons stated in the
attached memorandum in support, incorporated herein.
Respectfully submitted,
By:
WILLIAM D. MASONCuyahoga CountyaProsecutor
Ivlo'ss 10061958Cuy oga County Prdsecutor
J sti e Center, 8^` Floor1VOntario StreetCleveland, OH 44113(216) 443-7800
MEMORANDUM IN SUPPORT
1. PROCEDURAL HISTORY OF THE CASE
On November 17, 1998, the State of Ohio and relator John Leone entered into a plea
agreement in which Leone would plead guilty to twenty-four counts with an agreed total
sentence of eighteen to twenty-five years in case numbers CR-96-335682, CR-98-365723, and
CR-95-325657-A. On November 17, 1998, Leone pled guilty to nineteen counts in Cuyahoga
County Court of Common Pleas case number CR-96-335682 of various offenses including
corrupting another with drugs in violation of R.C. 2925.02 (Counts 1 through 5), drug trafficking
in violation of R.C. 2925.03 (Counts 6 through 13), drug abuse in violation of R.C. 2925.11
(Counts 14 through 18), and engaging in a pattem of corrupt activity in violation of R.C. 2923.32
(Count 21). Counts 19 and 20 were nolled.
On November 17, 1998 Leone also pled guilty in Cuyahoga County Court of Common
Pleas case number CR-98-365723 to two counts of corrupting another with drugs in violation of
R.C. 2925.02 (Counts 1 and 3), and two counts of drug trafficking in violation of R.C. 2925.03
(Counts 2 and 4). In addition, November 17, 1998 Leone also pled guilty in Cuyahoga County
Court of Common Pleas case number CR-95-325657-A to one count of felonious assault in
violation of R.C. 2903.11 (Count 2). Count 1 was nolled.
However, on December 15, 1998, Leone, after retaining new counsel, submitted an oral
motion to the trial court to withdraw his plea. The trial court held hearing on Leone's motion to
withdraw his plea that same day and subsequently denied Leone's motion to withdraw his plea.
At the sentencing hearing held on January 11, 1999, the trial court sentenced Leone to a
total of eighteen (18) to twenty-five (25) years in case numbers CR-96-335682, CR-98-365723,
and CR-95-325657-A. However, on that same day the trial court issued sentencing journal
entries in case numbers CR-96-335682, CR-98-365723, and CR-95-325657-A in which Leone
was sentenced to six (6) to fifteen (15) years in case number CR-95-325657-A, twelve (12) to
twenty-five (25) years in case number CR-96-335682, and to four (4) to twenty-five (25) years in
case number CR-98-365723. The trial court ordered that the six (6) to fifteen (15) year sentence
in case number CR-95-325657-A be served consecutively to the twelve (12) to twenty-five (25)
year sentence in case number CR-96-335682 for a total of 18 (eighteen) to forty (40) years. The
four (4) to twenty-five (25) year sentence in case number CR-98-365723 was ordered to be
served concurrently with the sentences in case numbers CR-95-325657-A and CR-96-335682. I
Leone did not file a direct appeal of his convictions. However, Leone did file an appeal
of the trial court's denial of his motion to withdraw his plea with the Eighth District Court of
Appeals. State v. Leone, 8`h Dist. No. 75871, 75872, 75873, 75874, 2001 WL 217761 (Feb. 24,
2000) ("Leone I"). The Eighth District Court affirmed the judgment of the trial court denying
Leone's motion to withdraw his plea on the basis that Leone was given a full Crim.R. 11 hearing
prior to entering his pleas, was informed and aware of the consequences of his pleas, and was
given a full and impartial hearing on his motion to withdraw his pleas. Id., appeal not allowed by
State v. Leone, 89 Ohio St.3d 1426, 729 N.E.2d 1197 (2000).
Leone subsequently filed an application for reopening, pursuant to App.R. 26(B), to
reopen the appellate judgment that was rendered in Leone L State v. Leone, 8th Dist. No. 75871,
75872, 75873, 75874, 2001 WL 1268635 (Oct. 12, 2001) ("Leone II'). In Leone II the Eighth
District Court found no merit to Leone's claim that he received ineffective assistance of appellate
counsel for counsel's failure to argue that the trial court misinformed him about the sentence he
1 Respondent is filing a "Notice of Judicial Action" contemporaneously with this motionthat appends the sentencing journal entries issued by the trial court on January 11, 1999 in case
numbers CR-95-325657-A (Ex. A), CR-96-335682 (Ex. B), and CR-98-365723(Ex. C).
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was subject to under the plea agreement. Id. Additionally, the court in Leone II determined that
the doctrine of res judicata precluded further review of the issue of whether Leone entered a
voluntary and knowing plea of guilty since this issue was previously raised in his appeal of the
trial court's denial of his motion to withdraw his plea with the Eighth District Court of Appeals
in Leone I Leone II, supra, appeal not allowed State v. Leone, 94 Ohio St.3d 1454, 762 N.E.2d
371 (2002).
On November 14, 2007, Leone filed a motion to correct sentence in which he claimed
that the Ohio Department of Rehabilitation and Correction ("ODRC") unlawfully modified his
sentence from the agreed sentence of eighteen (18) to twenty-five (25) years to 18 (eighteen) to
forty (40) years.2 On September 10, 2009, the State of Ohio filed a brief in opposition to
Leone's motion to correct sentence.
On October 23, 2009 the trial court 3 issued a nuncpro tunc journal entry in case number
CR-95-325657-A in an attempt to correct the journal entries issued by the trial court on January
11, 1999. In the trial court's nunc pro tunc entry issued on October 23, 2009, Leone was
sentenced to six (6) to fifteen ( 15) years in case number CR-95-325657-A and sentenced to
twelve ( 12) to twenty-five (25) years in case number CR-96-335682 with the minimum terms to
be served consecutively and the maximum terms to be served concurrently for a total sentence of
eighteen ( 18) to twenty-five (25) years.
2 Leone claims in his motion to correct sentence that the ODRC unlawfully modified hissentence from the agreed sentence of eighteen (18) to twenty-five (25) years to 18 (eighteen) toforty (40) years even though the trial court's sentencing journal entries issued by the trial courton January 11, 1999 indicate Leone was sentenced to 18 (eighteen) to forty (40) years in casenumbers CR-96-335682, CR-98-365723, and CR-95-325657-A. See fnt. 1.
3 The trial judge who originally sentenced Leone on January 11, 1999 was succeeded by adifferent judge who ruled on Leone's motion to correct sentence filed on November 14, 2007.
5
Leone subsequently appealed the nunc pro tune entry issued by the trial court on October
23, 2009 to the Eighth District Court of Appeals. State v. Leone, 8th Dist. No. 94275, 2010-Ohio-
5358 ("Leone IIP'). In Leone III Leone argued that the nunc pro tunc entry was void because the
trial court lacked jurisdiction to modify his sentence and because the trial court improperly
resentenced him without his presence. Id. at ¶ 4. In addition, Leone argued in Leone III that the
sentence imposed by the trial court in 1999 is void due to an error in calculating the maximum
indefinite sentence and that the trial court's error necessitates his guilty plea being vacated. Id.
The Eighth District Court in Leone III found that the sentencing journal entry issued by
the trial court January 11, 1999 in case number CR-95-325657-A, in which Leone was sentenced
to 18 (eighteen) to forty (40) years, was a valid sentence for the versions of the statutes in effect
a t t h a t time. I d at ¶ 6.
In addition, in Leone III the Eighth District Court held that the nunc pro tunc entry issued
by the trial court on October 23, 2009 does not correct any clerical error or make the record
speak the truth since the sentence of eighteen (18) to twenty-five (25) year sentence imposed by
the trial court in the nunc pro tune entry for case numbers CR-95-325657-A and CR-96-335682
misstates the law since the maximum sentence of forty (40) years to which Leone was properly
sentenced in 1999 was determined by statute and the trial court was without authority to change
it. Id. at ¶ 7-8.
Moreover, the Eighth District Court in Leone III determined that Leone's contention that
his plea must be vacated in case number CR-95-325657-A was barred by res judicata since
Leone had previously appealed the validity of his guilty pleas. Id. at ¶ 9. As a result, the Eighth
District Court remanded the matter back to the trial court to vacate the October 23, 2009 nunc
pro tunc entry and reinstate the January 11, 1999 judgment. Id. at ¶ 11. Leone did not file an
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appeal of the judgment of the Eighth District Court in Leone I77. On February 1, 2011, the trial
court vacated the October 23, 2009 nunc pro tunc entry and reinstated the January 11, 1999
judgment as mandated by the Eighth District Court in Leone Ili.
On August 6, 2012, Leone filed a complaint in prohibition or, in the alternative, for writ
of mandamus ("Complaint") asking this Court to direct the trial court to hold a new sentencing
hearing and fashion a sentence that is in compliance with statutory law in effect at the time of
Leone's criminal acts and as agreed to in the plea agreement between the State of Ohio and
Leone.
II. RELATOR'S PETITION IS DEFECTIVE
Under R.C. 2731.04 a party filing an action for a writ of mandamus must be in the name
of the state on relation of the person applying. The caption in Leone's Complaint indicates "John
Leone v. Court of Common Pleas of Cuyahoga County". The failure of Leone to properly file
his writ of mandamus in the name of the state as mandated by R.C. 2731.04 warrants dismissal
of his Complaint. Rust v. Lucas Cty. Board of Elections, 108 Ohio St.3d 139, 2005-Ohio-5795, at
¶ 16. Therefore, Respondent respectfully requests that this Court dismiss Leone's complaint for
writ of mandamus.
III. RELATOR IS NOT ENTILED TO REMEDY BY WAY OF MANDAMUS ORPROHIBITION
The requisites for mandamus are well established: (1) the relator must have a clear legal
right to the requested relief, (2) the respondent must have a clear legal duty to perform the
requested relief, and (3) there must be no adequate remedy at law. In addition, to be entitled to a
writ of prohibition, relator must establish that the respondent is about to exercise judicial or
quasi-judicial power, that the exercise of such power is unauthorized by law, and that the denial
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of the writ will cause injury to relator for which no other adequate remedy in the ordinary course
of law exists. State ex rel. YVhite v. Junkin, 80 Ohio St.3d 335, 336, 1997-Ohio-0202.
In his Complaint Leone is asking this Court to direct the trial court to hold a new
sentencing hearing and fashion a sentence that is in compliance with statutory law in effect at the
time of Leone's criminal acts and as agreed to in the plea agreement between the State of Ohio
and Leone. Leone's Complaint is without merit.
A. Leone had an adequate remedy at law to raise his claim that he is entitled to anew sentencing hearing due to the trial court's breach of a plea agreementbetween the State of Ohio and Leone
In his Complaint Leone claims he is entitled to a new sentencing due to the trial court's
breach of a plea agreement between the State of Ohio and Leone. However, Leone had or has an
adequate remedy at law to raise his claim that the trial court breached the plea agreement
between the State of Ohio and Leone. Leone did not file a direct appeal of his conviction on
January 11, 1999. In addition, when Leone filed an appeal of the trial court's denial of his oral
motion to withdraw his plea with the Eighth District Court of Appeals, Leone claimed that his
defense counsel failed to explain his constitutional right to waive a jury and incorrectly told him
he would only receive nine years in prison, but never alleged that the trial court breached the
plea agreement between the State of Ohio and Leone. State v. Leone, 8th Dist. No. 75871,
75872, 75873, 75874, 2001 WL 217761 (Feb. 24, 2000) ("Leone I"). In fact, Leone never
expressly claimed that the trial court breached the plea agreement between the State of Ohio and
Leone until he filed his Complaint in the instant case.
Leone had an adequate remedy at law by way of direct appeal to raise his claim that the
trial court breached the plea agreement between the State of Ohio and Leone, but failed to raise
this claim. As a result, Leone is not entitled to a remedy by way of mandamus or prohibition to
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raise his claim that the trial court breached the plea agreement between the State of Ohio and
Leone. State ex rel. Rowe v. McGown, 108 Ohio St.3d 183, 2006-Ohio-548, ¶ 5 (dismissal of
relator's petition for writ of mandamus was warranted since relator had an adequate legal
remedy to rectify any alleged breach of plea agreement); State ex rel. Seikbert v. Wilkinson, 69
Ohio St.3d 489, 491, 1994-Ohio-39 (court affirmed dismissal of relator's petition for writ of
mandamus since relator possessed an adequate legal remedy to rectify any alleged breach of the
plea agreement).
B. Leone had an adequate remedy at law to raise any claims that the trial courterred when it sentenced him
In his Complaint Leone claims that the trial court erred when it sentenced him to 18
(eighteen) to forty (40) years on January 11, 1999 and reinstated this sentence on February 1,
2011, as mandated by the Eighth District Court of Appeals in Leone M. As a result, Leone is
asking this Court to "fashion a sentence that is compliance with statutory law at the time of
Plaintiff s-Respondent's [sic] criminal acts and sentencing as agreed in the Plea Agreement."
(Leone's Complaint at p. 4).
However, the Eighth District Court of Appeals in Leone III found that the sentencing
journal entry issued by the trial court January 11, 1999 in case number CR-95-325657-A, in
which Leone was sentenced to 18 (eighteen) to forty (40) years, was a valid sentence for the
versions of the statutes in effect at that time. Id. at ¶ 6. Leone is asking this Court to "fashion a
sentence" that is compliance with the plea agreement of between the State of Ohio and Leone.
However, the sentence that Leone is impliedly asking this Court to impose, (18) to twenty-five
(25) years, has previously been found by the Eighth District Court of Appeals in Leone III to be a
misstatement of the law. Id. at ¶ 7-8.
9
Moreover, Leone had had an adequate remedy at law by way of direct appeal to raise his
claim that the trial court erred when it sentenced him on January 11, 1999, but did not file a
direct appeal of his original conviction. Leone did, however, challenge various aspects of the
trial court's sentence imposed upon him in case numbers CR-96-335682, CR-98-365723, and/or
CR-95-325657-A in his appeal of the trial court's denial of his motion to withdraw his plea in
Leone I, his application for reopening of the prior appellate judgment in Leone 11, and his appeal
of the nunc pro tunc entry issued by the trial court on October 23, 2009 in Leone III.
Since Leone had an adequate remedy at law to challenge the 18 (eighteen) to forty (40)
year sentence imposed upon him by the trial court on January 11, 1999 in case numbers CR-96-
335682, CR-98-365723, and/or CR-95-325657-A, he is not entitled to a remedy by way of writ
of mandamus or prohibition. State ex rel. Culgan v. Kimbler, _ Ohio St.3d _, 2012-Ohio-33 10
(slip opinion) (court affirmed dismissal of petition for writ of mandamus and procedendo since
appellant had adequate remedy by appeal to raise his claim of sentencing error); State ex rel.
Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, ¶ 2 (court denied relator's petition for
writ of mandamus and prohibition since an error in sentencing does not patently and
unambiguously divest the court or its judges of jurisdiction to enter judgment and a party
contesting that jurisdiction has an adequate remedy by appeal); State ex rel. Plant v. Cosgrove,
119 Ohio St.3d 264, 2008-Ohio-3838 (mandamus and prohibition are not appropriate actions to
vacate amended sentence because trial judge did not patently and unambiguously lack
jurisdiction and relator had an adequate remedy by appeal from sentencing entry).
C. Leone's claims are barred by res judicata
In his Complaint Leone claims he is entitled to a new sentencing in case number CR-95-
325657-A due to the trial court's breach of a plea agreement between the State of Ohio and
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Leone. However, the Eighth District Court has previously held Leone's plea and sentence in
case number CR-95-325657-A was valid. State v. Leone, 8tb Dist. No. 94275, 2010-Ohio-5358.
("Leone IIT'). As a result, the doctrine of res judicata precludes Leone from challenging the
validity of his plea and sentencing in case number CR-95-325657-A.
In addition, Leone's claim that his sentence of 18 (eighteen) to forty (40) years most
recently imposed upon him in 2011 by the trial court is manifestly unjust and must be corrected
to comport with the plea agreement is also barred by res judicata. The 18 (eighteen) to forty (40)
year sentence imposed upon Leone by the trial in its journal entry issued on February 2, 2011
was expressly ordered by the Eighth District Court of Appeals in Leone M. Id. at ¶ 11.
In Leone III the Eighth District Court of Appeals found that the sentencing journal entry
issued by the trial court January 11, 1999 in case number CR-95-325657-A, in which Leone was
sentenced to 18 (eighteen) to forty (40) years, was a valid sentence for the versions of the
statutes in effect at that time. Id. at ¶ 6. The 18 (eighteen) to forty (40) year sentence imposed
upon Leone by the trial court in its journal entry issued on February 2, 2011 was expressly
ordered by the Eighth District Court in Leone IIL Id. at ¶ 11.
Leone's plea and sentence in case number CR-95-325657-A has already been litigated in
the Eighth District Court of Appeals. Leone elected not to file an appeal of the Eighth District
Court's judgment in Leone III with this Court. Leone's attempt to reverse the Eighth District
Court's judgment in Leone III by filing an extraordinary writ in the instant case is not warranted
under Ohio law and is precluded by doctrine of res judicata.
Res judicata bars the litigation of all claims that either were or might have been litigated
in a first lawsuit. State ex rel. Coles v. Granville, 116 Ohio St.3d 231, 2007-Ohio-6057, ¶ 36;
State ex rel. Mora v. Wilkinson, 105 Ohio St.3d 272, at ¶ 14. Because the validity of Leone's
11
plea and sentence in case number CR-95-325657-A has already been litigated by the Eighth
District Court in Leone I, Leone II and Leone III, supra, Leone' claim that he is entitled to a new
sentencing due to the trial court's breach of a plea agreement between the State of Ohio and
Leone is barred by res judicata.
IV. CONCLUSION
Leone has failed to establish that he has a clear legal right to the requested relief, that
Respondent has a clear legal duty to perform the requested relief, and that Leone has no other
adequate remedy at law. As a result, he is not entitled to relief by way of mandamus.
Similarly, Leone has failed to establish that Respondent is about to exercise judicial
power unauthorized by law, and that the denial of the writ will cause injury to Leone for which
no other adequate remedy in the ordinary course of law exists. As a result, Leone is not entitled
to relief by way of writ of prohibition.
For the foregoing reasons, respondent Cuyahoga County Court of Common Pleas
respectfully requests that this court grant its motion to dismiss Leone's complaint for writ of
mandamus and alternative writ of prohibition.
Respectfully submitted,
WILLIAM D. MASONahoga Coutiy Prose
1200 Ontario StreetCleveland, OH 44113(216) 443-7800
ustice Center, 8th Flooristant Cu ahoga County Prosecutor
s E9 Moils (0061958)
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CERTIFICATE OF SERVICE
A copy of the foregoing Respondent's motion to dismiss was mailed this 23`a day of
August, 2012, by regular U.S. Mail to David B. Waxman and Michael R. Blumenthal, counsel
for relator John Leone, at Waxman Blumenthal LLC, Attorneys at Law, 28601 Chagrin
Boulevard, Suite 500, Cleveland, Ohio 44122.
By:S (00619$8
ant Pfosecuting Att
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