IN THE COURT OF COMMON PLEAS| 151! 601 HAMILTON COUNTY, OHIO CUNMON Pl STATE OF OHIO, ) 19 61S yd ) Case No, 61400110 Plain ) m1) ry facet b v ) Judge Patrick Dirikeladker= 6 ) ‘TRACIE M. HUNTER, ) PLAINTIFF'S MEMORANDUM IN ) OPPOSITION TO DEFENDANT” Defendant. ) MOTION FOR LEAVE TO FILE ) DELAYED POSTCONVICTION aceasSaes ) PETITION AND/OR MOTION FOR ) RELIEF FROM JUDGMENT Ws DI26324414 Buy 1. INTRODUCTION (On October 14, 2014, defendant Tracie M. Hunter was convicted of having an unlawful interest in a public contract, in violation of R.C. § 2921.42(A)(1). The deadline for her to file a petition for post-conviction relief passed on January 21, 2016. See R.C. § 2953.21(A)(2)." ‘More than three years after this deadline, Hunter seeks leave to file a delayed petition on the grounds that the State's decision not to prosecute Ohio Supreme Court Justice Patrick DeWine for having an unlawful interest in a public contract, based on his alleged request that Hamilton County Prosecutor Joseph Deters consider his son for an internship, demonstrates that her conviction was unconstitutional. This, however, is not a recent event and has, in fact, been publically known for at least approximately two years. See media reports cited in notes 3-4, 6, infra, Thus, Hunter was required to file her post-convietion petition by the normal one-year " Hunter correctly states in the instant motion that a petition for post-conviction relief in cases such as this ‘one must ordinarily be filed no later than 365 days after the date on wich the trial transcript is filed inthe court of appeals in the direct appeal of the challenged conviction. Motion for Leave to File Delayed Postconviction Petition and/or Motion for Relief from Judgment (“Motion”), at 12. On information and belief, Hunter's trial transcript was filed in the Court of Appeals no later than January 21, 2015, See First District Accelerated Calendar Scheduling Order, entered December 8, 2014 1deadli vor Further other than conclusory assertions, Hunter offers no justification forthe dslay,_tboeause «There is none, and —Ffor this reason, Hunter's motion should be denied Hunter's motion also fails for lack ofa constitutional eror as required for untimely post- conviction relief under R.C. § 2953.23(A)(1)(). ‘The majority of Hunter's motion simply rehashes old arguments that were raised — and rejected — on appeal. These arguments ~ essentially copied and pasted from Hunter's appellate brief — were rejected by the First District and are therefore barred by the law-of-the-case doctrine Finally, Hunter argues in the alternative that she is entitled to relief under Rule 60(B) of the Ohio Rules of Civil Procedure, But because the Ohio Rules of Criminal Procedure and R.C. § 2953.23 afford Hunter th-a mechanism for post-conviction relief — albeit one upon which she cannot succeed —Givit- Rule 60(B) does not apply. For these reasons, and for the additional reasons cited below, the State respectfully urges this Court to deny Hunter's motion both as untimely and on the merit, II, STATEMENT OF FACTS ‘On October 10, 2014, 2 Hamilton County, Ohio jury retumed a verdict of guilty on Count Six of an Indictment charging Hunter with having an unlawful interest in @ public contract, in violation of R.C. § 2921.42(A)(1). Transcript, Vol. 34 at 3993; Vol. 34 at 4007, The gist of the offense was that Hunter had used her position as a judge to interfere with the firing of her brother. See Motion at 2. Hunter subsequently filed a motion for judgment of acquittal claiming that the evidence was insufficient to prove that she “secured the authorization” of her brother’s contract within the meaning of R.C. § 2921.42(A)(1). This Court denied her motion on November 20, 2014 and Hunter filed a notice of appeal on November 26, 2014.On appeal, Hunter's first assignment of cmor was that “(the trial court erred in overruling Judge Hunter's motion for judgment of acquittal” Amended Appellate Brief of Defendant-Appellant Tracie Hunter (“Hunter's Appellate Brief”) at 10. Hunter argued, among other things, that RLC. § 2921.42(A) did not apply to her conduct because under @ “clear interpretation” of the statute, the phrase “secure authorization” means only “to get” a public contract, and not to protect the authorization of a public contract. {d. at 11-14, Hunter further argued that the phrase “secure authorization of any public contract” in R.C. § 2921.42(A) is sufficiently ambiguous to trigger the rule of lenty, thus requiring the court to construe the statute inher favor. 1d. at 14-152 ‘The First District rejected these arguments and found that Hunter's suggested limitation ‘would “inappropriately and drastically constrain the statute's scope and would fail to curtail a rajority of the abuse the General Assembly intended to prevent” State v. Hunter, Ist Dist Hamilton Nos. C-140684, C-140704, C-140717, 2016-Ohio-123, 4 20. Relying on an Ohio Ethics Commission opinion finding that R.C. § 2921.42 extended beyond the initial hiring of family members, the Court ultimately concluded that “R.C.2921.42(A)(1) includes not only interference with the initial decision to employ a family member, but also extends to other areas ‘of employment, including termination proceedings.” 1d. at $4 20-21 IILLAW AND ARGUMENT unter Fails to Qualify for Delayed Post-Conviction Relief ‘On appeal, Hunter treats her argument that the record does not support her conviction separately Hunter's Appellate Brief at 15-16, However, because that argument is intertwined with Hunter’s argument concerning the meaning of the statute, we treat them as one. In any case, the Fist District ‘jected the assignment of error in which Hunter treated the issue separately. Hunter, 2016-Ohio-123, 49 24, 38.Ohio Revised Code Chapter 2953 governs appeals and other post-conviction remedies. RC. § 2953.21 mandates that a petition for post-conviction relief “shall be filed no later than three hundred sixty-five days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of convietion or adjudication.” RC. § 2953.21(A)(2). A court may not entertain an untimely petition unless the petitioner satisfies the requirements of an exception contained in RC. § 2953.23, on which Hunter relies, and which requires that (2) “the petitioner shows that the petitioner was unavoidably prevented from discovery of the facts upon which the petitioner must rely to present the claim for relief..." and (b) “{t)he petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted...” R.C. § 2953.23(A)(1) Hunter's motion should be denied as untimely because it was not filed for more than a year after public disclosure of the underlying facts. It must also be denied because it fils to demonstrate clear and convincing evidence of a constitutional error at tral 1. Hunter's Motion Should be Denied as Untimely ‘The time limit contained in R.C. § 2953.21 is jurisdictional. State v. Tagi, 9th Dist. Lorain No, 14CA-010672, 2015-Ohio-5319, 4 7 (quoting State v. Taylor, Sth Dist, Lorain No. 14CA010S49, 2014-Ohio-S738, 4 9) (“A defendant's failure to either timely file a petition for post-conviction relief or meet his burden under R.C. 2953.23(A)(1) deprives a trial court of jurisdiction to entertain the petition”), “[IJf the petition has been untimely filed, the trial court cannot consider the substantive merits of the petition and must summarily dismiss it without addressing the merits of the petition.” State v. Unsworth, 6th Dist. Lucas No. L-I4-1238, 2015-Ohio-3197, | 16. See also, State v. Gilliam, 4th Dist. Lawrence No, 04CA13,2005-Ohio-2470, 4] 12 ("{O}nce a court has determined that a petition is untimely, no further inguiry into the merits of the ease is necessary”), For purposes of the instant motion, R.C. § 2953.23(A) requires Hunter first to show that she was unavoidably prevented from discovering the facts upon which she relies until past January 21, 2016, the deadline for her post-conviction petition. See, e.g., State v. MeDougald, 4th Dist. Scioto No. 16CA3736, 2016-Ohio-S080, 23. “A defendant is ‘unavoidably prevented’ from the discovery of facts if [she] had no knowledge of the existence of those facts and could not have, in the exercise of reasonable diligence, learned of their existence within the time specified for filing [her] petition for postconviction relief.” State v. Cunningham, 3d Dist. Allen No, 1-15-61, 2016-Ohio-3106, | 19 (citing State v. Holnapy, 11th Dist. Lake No.2013-L.-002, 2013-Ohio-4307, $ 32, and State v. Roark, 10th Dist. Franklin No. 1SAP-142, 2015-Ohio-3206, § 11). ‘Hunter claims that she was unavoidably prevented from discovering the facts related to “Justice DeWine’s solicitation of employment for his son from Joe Deters” because these facts “did not become publicly known until 2018.” Motion at 12. This is demonstrably untrue. The relevant email messages were published in articles including without limitation an August 14, 2017 article in CityBeat,’ and an August 15, 2017 article in the Cincinnati Enquirer in which ‘Hunter ~ who was present and spoke at a news conference prompted by the CityReat article ~ is quoted’ Moreover, the three-judge hearing panel appointed to hear a grievance against Justice “hups:/ww.citvbeat com/news/article/20972362/for-proseeutors-office-internships-political-and-family- ties-get-you-in-the-door, copy attached as Exhibit A. “hupsJvwry cincinnati.com/story/news/2017/08/ Sstate-senator-investigate-deters-justice- dewine/$71514001/, copy attached as Exhibit B The newspaper articles cited herein are self-authenticating pursuant to Ohio Evid. R. 902(6). 5DeWine concerning his request to Mr. Deters dismissed that grievance on April 16, 2018, which the Columbus Dispatch publicized in an article the following day.* For these reasons, Hunter is chargeable with awareness of the facts on which she bases this motion no later than mid-August, 2017. She thus has no excuse for not filing her motion for almost two years thereafter, Additionally, Hunter's failure to provide a credible explanation for the delay is further reason to deny this motion. See, e.g, State v. Leyman, 2016-Ohio-59, 13 (Oth Dist) (dismissing petition as untimely when, even if movant was unavoidably prevented from discovering facts, the movant failed to explain a seven month delay between the discovery of the facts and the filing of the motion). 2. Hunter's Motion Should Also be Denied for Failure to Demonstrate a Constitutional Error This motion should be denied for the independent reason thet Hunter has not demonstrated by clear and convincing evidence that no reasonable facfinder would have convicted her but for constitutional error at til Hunter identifies two alleged constitutional errors. Fist, she alleges that the States decision not to charge Justice DeWine constitutes clear and convincing evidence that R.C. § 2921.42 is “so vague and lacking in defiiteness” that she was prosecuted and convicted in violation of her due process rights, Motion at 10-11. Additionally, Hunter alleges that she was selectively prosecuted in violation of her right to equal protection under the aw. Both arguments are without merit a, ‘The law-of-the-case doctrine bars Hunter’s rule of lenity argument “huipsAvww. dispatch com/news/20 1804 I7/justice-pattck-dewine-faces-one-less-disciplinary-charge, attached as Exhibit C.Hunter dedicates almost half of her motion to repeating arguments already rejected by the First District, Hunter claims that (i) the State failed to prove a violation of R.C. § 2921.42(A)(I) as she construes the provision, (ii) the statute is at least ambiguous, and (iii) the rule of lenity should have protected her from prosecution for what, arguably (according to her), isnot a crime. Motion at 6-12. These recycled arguments are barred by the law-of:the-case doctrine. ‘The Ohio Supreme Court recognizes the law-of-the-case doctrine as a long-standing tenet of Ohio jurisprudence. Giancola v. Azem, 153 Ohio St. 34 594, 2018-Ohio-1694, 109 N.E.3d 1194, 14. “The law-ofthe-case doctrine provides that the decision of a reviewing court in a case remains the law of that case on the legal questions involved forall subsequent proceedings in the case at both the trial and reviewing levels.” State v. Davis, 139 Ohio St. 34 122, 2014- Ohio-1615, 9 N.E.34 1031, $127 (quoting Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 404, 659 N.E.2d 781 (1996)). Further, “[allthough the law-of-the-case doctrine generally is 3 rule of practice rather than a binding rule of substantive law, [the Ohio Supreme Court has] also explained that the Ohio Constitution does not grant to a court of common pleas jurisdiction to review a prior mandate of a court of appeals.” Giancola, 2018-Ohio-1694, 4 15 (quoting Nolan v, Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984) and State ex rel, Cordray v, Marshall, 123 Ohio $t.3d 229, 2009-Ohio-4986, 915 N-E.2d 633, 4 32) (internal quotation marks omitted). Consequently, the doctrine “functions to compel trial courts to follow the mandates of reviewing. courts, and [a]bsent extraordinary circumstances, such as an intervening decision by the Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case.” Id. (quoting Nolan, 11 Ohio St3d at 3 and the syllabus), “Accordingly, a trial court is without authority to extend or vary the mandate issued by a superior court.” Jd. § 16 (citing Nolan, 11 Ohio St.3d at 4).In rejecting these arguments, the First District found that RC. § 2921.42(AX(1) “encompasses not just the initial acquisition of employment, but also any subsequent conduct designed to protect the employee's position” and recognized that “limiting the applicability of RC, § 2921.42(A)(1) [as Hunter proposed] would inappropriately and drastically constrain the statue's scope and would fil to curtail a majority ofthe abuse the General Assembly intended to prevent.” Hunter, 2016-Ohio-123, #918, 20. For these reasons, among others, the appeals cout overruled Hunter's assignment of error conceming the denial of her motion for judgment of scquital In the absence of extraordinary circumstances, the Frst District's rejection of Hunter's rule of lenity argument established the law of the case, See Hubbard ex rel. Creed v. Sauline, 74 Ohio St. 3d 402, 405, 659 N.E.2d 781 (1996) (citing Transamerica Ins. Co. v. Nolan, 72 Ohio St3d 320, 649 N.E.2¢ 1229 (1995)) (“Where [the Ohio Supreme Cour) refuses jurisdiction following the issuance of an opinion by a court of appeals, the court of appeals opinion becomes the law ofthe case"), For this additional reason, the motion should be denied . Hunter fails to demonstrate intentional and purposeful discrimination The motion should be denied for the additional reason that Hunter fails to meet her “heavy” burden to demonstrate selective prosecution. See Stale v. Freeman, 20 Ohio S1.3d 5S, 58, 485 N.E2d 1043 (1985) (citing State v. Flynt, 63 Ohio St. 2d 132, 134, 407 N.E.24 15 (1980). » Although the Fiest District did not explicitly discuss Hunter's rule of lenty argument, rejection of her assignment of error constituted an implicit rejection of that argument. See State ex rel. Wright v. Ohio Adult Parole Auth., 75 Ohio St. 3d 82, 86, 661 N.E.2d 728 (1996) (“A thorough review of the relevant circumstances makes apparent that the court of appeals, in the way it resolved this case, implicitly rejected appellees first claim for relict”)[A] defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not gencraly been proceeded against because of conduct ofthe type forming the basis of the charge against him, he has been singled cout for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e, based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constittional rights. These two essential elements are sometimes refered to as, “intentional and purposeful discrimination.” Id. (quoting Flynt, 63 Ohio St2d at 134). “A mere showing that another person similarly situated was not prosecuted is not enough; a defendant must demonstrate actual discrimination due to invidious motives or bad faith. Intentional or purposeful discrimination will not be presumed from a showing of differing treatment.” 1d. (citing Snowden v. Hughes, 321 US. 1, 8 9 (1944) Here, Hunter offhandedly argues ina single paragraph that the State's failure to prosecute Justice DeWine ~ by itself ~ demonstrates that she was selectively prosecuted, Motion at 13. She fails evento suggest that this resulted from invidious discrimination, and even if she had, the motion would fail for lack of evidence. See Freeman, 20 Ohio St.3d at 58 (“The mere existence ‘of a potential discriminatory purpose is insufficient to show that such purpose motivated the selection of [a defendant] for prosecution”) For this same reason, Hunter is not entitled to an evidentiary hearing. State v. Clay, 108 NEE3d 642, 2018-Ohio-985, 4 10 (citing State v. Jackson, 64 Ohio St2d 107, 110-111, 413, NEE.2d 819 (1980)) (“Even when a timely petition is filed, a hearing cannot be granted where the petition fails to allege substantive grounds for relief as the petitioner bears the burden of submitting evidentiary documents containing sufficient operative facts to show [her] claim") See also, State v. Davenport, \Oth Dist. Franklin No. 18AP-228, 2018-Ohio-3949, {| 16 (citing State v, Sidibeh, \Oth Dist. No, 12AP-498, 2013-Ohio-2309, 413) (“To warrant an evidentiaryhearing, the petitioner bears the inital burden of providing evidence demonstrating @ cognizable claim of constitutional error”). Accordingly, Hunter has not supported and cannot support her selective prosecution argument. Therefore, Hunter fails to satisfy the “constitutional error” requirement of R.C. § 2953.23(A) and for this addtional reason, her motion must be denied B. Hunter Is Not Entitled to 60(B) Relief Hunter also moves inthe altemative for relief from judgment under Civil Rule 60(B\S) because the Ohio Rules of Criminal Procedure supposedly fail to provide her with a mechanism for relief. Motion at 13-15. Under Criminal Rule $7(B), a tral cout in a criminal case can look to the Civil Rules for guidance if no applicable criminal rule exists. But such a rule does in fact exist in relation to Hunter's motion, as Criminal Rule 35 directly provides for post-conviction petitions. In fact, Hunter concedes that a criminal rule for post-conviction relief exists on the first page of her motion when she states she is moving “{plursuant to Crim. 35 and R.C 2983.23..." Motion at 1 Moreover, the Supreme Court addressed this issue in State v.Sehlee, 117 Ohio St34 153, 2008-Ohio-545, 882 N.E.2d 431, cited by Hunter. There, the defendant moved for relief under Civil Rule 60(8)(3) and (5) and argued that the rules of criminal procedure failed to provide a procedure for relief. Id. 48. The Court ruled that 60(B) relief was unavailable because “Crim. 35, which sets forth the procedure by which criminal defendants can file petitions for postconviction relief, was available to [defendant] and serves the same purpose as the Civ.R {60(B) motion he filed.” d. 411. More specifically, the Court found that the Civil Rule 60(B) ‘motion did not exist “independently from a petition for postconviction relief pursuant to Crim.R. 35 and R.C. 2953.21." 1d. 413 (internal quotation marks omitted).Consistent with Schlee, Ohio courts have also recognized that Civil Rule 60(B) relief is, unavailable when a defendant, like Hunter, secks delayed post-conviction relief. See, eg., State ¥, Carter, Ist Dist. Hamilton No. C-170655, 2019-Ohio-1749, $f 6-7 (concluding that 60(B) relief was unavailable to the appellant who failed to satisfy the jurisdictional requirements of RG, § 2953.23); State v. Burns, Sth Dist. Licking No. 18 CA 88, 2019-Ohio-1130, $f 15-17 (ejecting appellant's 60(B) arguments because R.C. § 2953.23 controlled). See also, State v Fulk, 172 Ohio App.3d 635, 2007-Ohio3141, 876 N.E.2d 983, {| 12 (“Because [Crim.R. 35] exists, Crim R. 57(B) does not apply herein, and Fulk cannot use Civ.R, 60(B) to circumvent the applicable time limits under the posteonviction-relief statute, R.C. § 2653.21") Here, as in Fulk, Hunter cannot use Civil Rule 60(B) to circumvent the time limitations ‘of RC. § 2953.21 or the applicable exceptions in R.C. § 2953.23. Her motion indisputably seeks postconviction relief. In short, Criminal Rule 35 provides the mechanism for requested relief and 57(B) does not apply. Accordingly, Civil Rule 60(B) relief is unavailable. See generally Schlee, 117 Ohio St.34 153 IV.CONCLUSION For the foregoing reasons, Plaintiff State of Ohio respectfully urges the Court to deny the instant motion. (erlyn D. Shiverdecker (0008047) Carr & Shiverdecker 817 Main Street, Suite 200 Cincinnati, Ohio 45202 Telephone: 513-651-5651 Facsimile: 513-345-5565 Email: ccarrshiverdecker@yahoo.com R, Scott Croswell, III (0019726) a PSsroswell & Adams, Co,, LPA 1208 Sycamore Street Olde Sycamore Square Cincinnati, Ohio 45202 Telephone: 513-241-5670 Facsimile: $13-929-3473 Email sseroswell@gmaieom Special Prosecutors for Plaintiff State of Ohio CERTIFICATE OF SERVICE - This is to certify that on August LS", 2019, a true and accurate copy of the foregoing ‘was served by regular U.S. mail upon the following: David A. Singleton Ohio Justice & Policy Center 215 E, 9th Street, Suite 601 ‘Cincinnati, Ohio 45202 Jennifer L. Branch Gerhardstein & Branch Co. LPA 441 Vine Street, Suite 3400 Cincinnati, Ohio 45202 Attorneys for Defendant Tracie M. Hunter Carr & Shiverdecker R. Scott Croswell, I roswell & Adams, Co., LPA