IN THE COURT OF COMMON PLEAS LAKE COUNTY, OHIO STATE OF OHIO Plaintiff vs.

RONALD DUDAS Defendant Introduction {1} Defendant Ronald Dudas, by and through counsel, Michael A. Partlow, Esq., filed, on March 26, 2013, a motion to withdraw guilty pleas or, alternatively, to vacate guilty pleas. Defendant asserts the motion is legally premised upon Crim.R. 32.1, governing withdrawal of criminal pleas, and R.C. 2953.21, governing petitions for post-conviction relief. {2} For reasons set forth in the following findings of fact and conclusions of law, the motion is overruled, denied, and dismissed without oral hearing as being barred by the doctrine of res judicata, being untimely filed, and without any substantive grounds for relief. Matters Considered {3} As required by law, the court has considered the defendants motion to withdraw guilty pleas or, alternatively, to vacate guilty pleas, filed March 26, 2013, the supporting affidavits and the documentary evidence, the record in this case, including the indictment, the courts journal entries, the records of the clerk of the court, the appellate history (described in more detail, below), the transcript of proceedings of the competency hearing, jury trial, plea hearing, and sentencing hearing, and all filings of the defendant in these cases, the memoranda in support, and all of his documentary attachments, including but not limited to the following relevant motions filed, on the dates indicated, by the defendant: 12/1/2006 Motion to withdraw guilty plea (orally withdrawn on December 1, 2006 at the sentencing hearing)
1

) ) ) ) ) ) ) ) )

CASE NO.

06CR000560 06CR000700

JUDGE EUGENE A. LUCCI ORDER DENYING DEFENDANTS MOTION TO WITHDRAW GUILTY PLEAS OR, ALTERNATIVELY, TO VACATE GUILTY PLEAS

12/5/2006 12/5/2006 12/7/2006

Motion to withdraw all pleas, plead a new and request for a new trial Request for recusal of Judge Lucci and new trial Motion to set aside judgment

12/21/2006 Affidavit of disqualification of Judge Lucci 12/27/2006 Motion to return stolen lap top computer from State of Ohio and stolen files 1/24/2007 4/19/2007 5/17/2007 5/23/2007 5/25/2007 6/29/2007 6/29/2007 6/29/2007 8/31/2007 8/31/2007 9/13/2007 10/4/2007 10/4/2007 Affidavit of disqualification of Judge Lucci Motion for certification of conflict (in regards to the 12/27/2006 motion) Affidavit in support of request for recusal, from the Ohio Supreme Court Defendant's Motion for findings of facts and conclusions of law (in regards to the 12/27/2006 motion) Copy of judgment entry received from Supreme Court Case 07-AP-46, filed, denying disqualification of Judge Lucci Petition for post-conviction relief Motion for appointment of counsel to assist in petition for post-conviction relief Motion for expert assistance, counsel, to assist in petition for postconviction relief Motion for reconsideration of courts denial of post-conviction relief Amended Petition for post-conviction relief Motion for relief from judgment pursuant to Civ.R. 60(B) Petition to return all seized contraband from the seizing law enforcement agency, including attachment Motion to compel court for findings of facts and conclusions of law (in regards to the motion to return stolen property)

10/26/2007 Civil Rule 34 request for production of documents, discovery upon the state 3/17/2008 3/17/2008 Civil investigative demand against State, seeking investigation against the state for conspiracy Civil Rule 34 request for production of documents, discovery upon the state (similar or identical to that filed on 10/26/2007)
2

4/15/2008 5/27/2008 6/5/2008 7/21/2008 8/6/2008 8/18/2008 9/2/2008 9/12/2008 9/26/2008 1/20/2009 4/6/2009 5/5/2009

Motion to withdraw guilty plea Crim.R. 32.1, including exhibits Motion to quash indictments Motion for reconsideration to motion denying motion to withdraw guilty plea Request for production of documents (similar or identical to that filed on 10/26/2007 and 3/17/2008) Motion to void judgment of sentencing Motion to recuse Judge Lucci Copy of request for recusal of Judge Lucci received from Supreme Court case 08AP086 Copy of Judgment Entry from the Supreme Court of Ohio, denying disqualification of Judge Lucci Motion to vacate payment of court costs and/or fines Motion to void judgment due to fraud & perjury Request for production of documents (similar or identical to that filed on 10/26/2007, 3/17/2008, and 7/21/2008) Motion to void judgment and dismiss indictment

10/28/2009 Motion to withdraw guilty plea Crim.R. 32.1 due to actual innocence 11/30/2009 Motion to invalidate plea agreement as unconstitutional 12/10/2009 Defendant's response to states brief in opposition 12/28/2009 Motion for reconsideration of order denying guilty plea (withdrawal) 5/27/2010 6/16/2010 Petition for relief after judgment pursuant to R.C. 5145.01 Motion to compel state and trial court to honor legal contract

11/23/2010 Motion to take judicial notice of illegal sentence imposed by the Lake County Court of Common Pleas as void 11/23/2010 In camera inspection of witness grand jury testimony 12/29/2010 Request for in camera Inspection of witness grand jury testimony pursuant to Crim.R. 16(b)(1)(g) and 16(c)(1)(d) 12/29/2010 Motion for sentencing to impose mandatory post-release control for five years rather than up to five years

4/26/2011 5/19/2011 5/19/2011 6/15/2011 7/13/2011 7/13/2011

Motion for Court to answer prior filings (of 11/23/2010 and 12/23/2011 [sic]) Motion to allow defendant to be present in court and proceed pro se at June 30, 2011 hearing (imposing the five years of post-release control) Brief in opposition to courts ruling denying motions Motion for immediate reconsideration of this Courts ruling granting motion in part filed June 7, 2011 Request/order for transcript of proceedings Motion for transcripts at states costs

11/15/2011 Motion for appointment of counsel outside of public defenders office at states expense 3/29/2012 11/7/2012 Motion to remove intimidation from conviction Motion to void judgment on Case No. 06CR000700

11/15/2012 Amended motion to void judgment in Case No. 06CR000700. {4} Included in the prior filings of the defendant are: five requests to withdraw his

guilty pleas, or reconsideration of its denial; one petition for post-conviction relief, and its amendment; one motion to set aside the judgment of conviction, two motions for relief from judgment of conviction; five requests to void the judgment of conviction; two requests to invalidate the plea agreement; two requests to quash the indictment or remove the intimidation counts from the indictment, six requests for Judge Lucci to recuse himself or be disqualified by the Supreme Court, and seven requests for discovery from, or investigation of, the state. The within motion to withdraw/vacate guilty pleas and/or for post-conviction relief is the 19th time that essentially the same request has been made regardless of what the motion is called and determined by this court to have no merit, and further litigated and upheld on appeal. For the reasons stated in this judgment, including the findings of facts and conclusions of law, the motion is again denied. Procedural History {5} On October 19, 2006, the defendant pled guilty in two cases that were

consolidated in this court. After two days of jury trial in Case No. 06CR000560 (the murder conspiracy case), the defendant pled guilty to four counts of intimidation of
4

Detective Simon Cesareo of the North Olmsted Police Department and Cuyahoga County Common Pleas Judge David T. Matia, and one count of retaliation against Judge Matia. In Case No. 06CR000700 (the corrupt activity case), appellant pled guilty to engaging in a pattern of corrupt activity, tampering with records, forgery, felony theft, uttering, securing writings by deception, and telecommunications fraud. {6} In the murder conspiracy case, the defendant hired a hit man to murder Judge

Matia and to break Detective Cesareos legs in retaliation for their roles in investigating and sentencing him in a prior felony theft case. {7} In the corrupt activity case, the defendant formed and carried on an enterprise for

the ostensible purpose of providing loans to individuals in desperate financial straits, but with the true purpose of stealing their funds and real estate. He set up and operated mortgage companies to accomplish this purpose. Many of the defendants victims were near foreclosure, and he took advantage of their plight by stealing the last of their assets. Defendant created false loan applications and mortgages, using the name and credit of his victims to obtain loans from lenders. He then stole the proceeds from these loans. He also stole money and real estate from his victims. He stole in excess of one million dollars from multiple victims, driving many of them into financial ruin and/or bankruptcy. The indictment listed 35 victims. apiece from 14 separate victims. {8} Following a sentencing hearing on December 1, 2006, in the murder conspiracy Defendant stole more than $100,000

case, this court sentenced Defendant on each of four counts of intimidation to five years, each term to run concurrently to the others. The court also sentenced him to five years on the retaliation count, to be served consecutively with the intimidation counts, for a total of ten years. {9} In the corrupt activity case, the court sentenced Defendant to ten years for

engaging in a pattern of corrupt activity, five years for tampering with records, 18 months for forgery, one year for theft, 18 months for uttering, five years for securing writings by deception, and 18 months for telecommunications fraud. The prison terms imposed for forgery, theft, uttering, and telecommunications fraud were to be served concurrently to each other and concurrently to the terms imposed for engaging in a pattern of corrupt activity, tampering with records, and securing writings by deception.
5

The terms for engaging in a pattern of corrupt activity, tampering with records, and securing writings by deception were to be served consecutively to each other, for a total of 20 years in prison, and consecutively to the prison term in the murder conspiracy case, for a total of 30 years in prison. {10} The defendant, post-sentencing, has filed approximately 60 motions in the trial court, seeking to have his plea withdrawn, vacated, or voided. Included in these filings were multiple requests to withdraw his pleas of guilty and petitions for post-conviction relief. The court carefully considered and ruled upon each motion. The defendant appealed 26 times to the Eleventh District Court of Appeals, which disposed of each of his appeals, overruling all of them and every claimed assignment of error therein, in 18 separate opinions. The defendant filed two affidavits in the Ohio Supreme Court

seeking this judges disqualification and removal from his cases; he attempted two appeals to the Supreme Court from decisions of the court of appeals; and he filed one action in habeas corpus against the warden of the state penal institution where he was held seeking his release from an allegedly unconstitutional imprisonment. All of the appeals and/or requests were denied by the Supreme Court. The Colloquy and Guilty Plea {11} The court painstakingly conducted a colloquy with the defendant when he decided to forego his jury trial on the second day of trial and plead guilty to 12 of his many charges. Some excerpts are relevant to the consideration of Defendants motion. JUDGE LUCCI: I need the plea form. This covers the known cases, Lake County Common Pleas Court cases 06CR000560, 06CR000699, 06CR000556, 06CR000558, 06CR000622, 06CR000557, 06CR000559 and 06CR000700. And it is my understanding, Mr. Dudas, that you wish to plead guilty to 12 offenses out of the numerous offenses comprised in these indictments. Probably couple hundred or so counts. My understanding youre gonna plead to 12 counts specifically in case number 560 and 699, which is the trial that is currently under way. That youre proposing to plead guilty to count 1, which is intimidation, felony 3; count 15, intimidation, felony 3; count 16, retaliation, felony 3; count 24, intimidation, felony 3; and count 29, intimidation, felony 3; and that all of the victims that are mentioned in those cases to the extent that they are listed under any intimidation or retaliation count would be considered as victims in all of these counts, these 5 counts in this case. Have I stated that correctly, Mr. Kasaris?
6

DANIEL KASARIS: Thats correct, Your Honor. [Tr.P.159-160] . JUDGE LUCCI: . .

Okay. Alright. So so far on the case that is under way, Mr. Dudas, you understand that the proposal by your attorneys would be that you plead to counts 1, 15, 24 and 29, which would be intimidations, and count 16, retaliation.

RONALD DUDAS: I do, Your Honor. [Tr.P.161] . JUDGE LUCCI: . .

Okay. And you know all of those are felonies of the 3rd degree, and felony 3's have maximum potential imprisonment of up to 5 years each. You understand that?

RONALD DUDAS: Yes I do, Your Honor. JUDGE LUCCI: Alright. And then in the 700 case, the proposal is that you are pleading guilty to count 1, which is engaging in a pattern of corrupt activity, aka RICO. Thats a felony of the 1st degree. Felony 1's carry a potential penalty of up to 10 years in prison. You understand that?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: Its also proposed that you plead guilty to count 5, tampering with records; count 43, forgery; count 50, theft; count 56, uttering; count 78, securing writings by deception; and count 125, telecommunications fraud. And all of those are F3's except for forgerys an F4, utterings an F4 and telecommunications fraud is an F4. And are those the counts youre proposing to plead guilty to on the 700 case? Yes.

MICHAEL PETERSON:

RONALD DUDAS: Yes, Your Honor. JUDGE LUCCI: Alright. And its my understanding that as to the 700 case, all of the victims are merged into those counts to the extent theyve been victimized by that type of crime.

DANIEL KASARIS: For example, Your Honor, we would ask that Frank Fetchet(sp) be merged into Count 5, which is tampering with records - JUDGE LUCCI: Even though hes not mentioned in count 5 - 7

DANIEL KASARIS: Even though hes not mentioned - JUDGE LUCCI: in the indictment.

DANIEL KASARIS: in count 5, right. Wed, Id like to put that on the record if I can. JUDGE LUCCI: Yes.

DANIEL KASARIS: With regards to Count 43, Gerald Markovich, JD Goddard and Daniel Mullen will be merged into count 43. With regards to the theft, which is count 50, Denice Bates, Deborah Dell, Randy Vecchio, Cynthia Woide, Dan Mullen, Linda Williams, William Cummings, Accredited Home Lenders, Daniel Emrisko, Mark Fowler - - E M R I S K O is Emrisko, Mark Fowler, Steve Ruben, Bruce Limmer, Lenders Diversified, JD Goddard and Cree C R E E Couer C O U E R Lending. And those would be the victims that would be merged into count 50. JUDGE LUCCI: And are there merges as to 56, 78 and 125?

DANIEL KASARIS: There is one merge as to 50, as to 78. That would be Cynthia Woide. JUDGE LUCCI: Okay. And none as to the uttering, 56?

DANIEL KASARIS: None as to the uttering or the - JUDGE LUCCI: Or the 125 - -

DANIEL KASARIS: telecommunications count. JUDGE LUCCI: telecommunications.

DANIEL KASARIS: Thats correct, Your Honor. JUDGE LUCCI: And so, Mr. Dudas, so far is that your understanding, whatsever been stated here?

RONALD DUDAS: Yes it is, Your Honor. [Tr.P.161-163] . . .

{12} [The court inquired of the defendants mental state and medications.] JUDGE LUCCI: And do any of these medications adversely affect your ability to think clearly?

RONALD DUDAS: No, Your Honor. JUDGE LUCCI: Are you thinking clearly now?
8

RONALD DUDAS: Yes I am. JUDGE LUCCI: No difficulty understanding what Im talking about

RONALD DUDAS: No, sir. JUDGE LUCCI: No difficulty understanding what you and your attorneys have talked about?

RONALD DUDAS: No, sir. JUDGE LUCCI: And certainly, since we are at the end of a full day of trial, no difficulty understanding what was going on in detail today. Correct?

RONALD DUDAS: Correct. JUDGE LUCCI: Now its my understanding that some of the medication youre taking is for some mental illness and as has been mentioned here during the opening statement by Mr. Drucker, you are diagnosed as bipolar?

RONALD DUDAS: Thats correct, sir. JUDGE LUCCI: And whats the secondary diagnosis?

RONALD DUDAS: Obsessive compulsive - JUDGE LUCCI: Okay - -

RONALD DUDAS: disorder. JUDGE LUCCI: OCD. Alright. And obviously the medication is working because you are very well behaved - -

RONALD DUDAS: Thank you, sir. JUDGE LUCCI: and youre right down the middle of the road. And do you feel like, that these mental illnesses that you have are not impacting your ability to think clearly here?

RONALD DUDAS: Thats correct. [Tr.P.167-168] . . .

{13} [The court inquired of the defendants knowledge of the charges and his willingness to plead guilty to certain counts and the maximum possible penalties associated with those charges.]

JUDGE LUCCI:

Okay. Now youve received copies of the indictments in all of these cases, correct?

RONALD DUDAS: I have, Your Honor. JUDGE LUCCI: And youve read them all?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And have you discussed them at length with your attorneys?

RONALD DUDAS: I did. JUDGE LUCCI: They answered all your questions to your satisfaction?

RONALD DUDAS: Yes they have. JUDGE LUCCI: And as to the charges that you wish to plead guilty to, the 12, do you agree that those charges accurately and adequately reflect your conduct over these period of time covered by the indictment?

RONALD DUDAS: I believe my culpabilitys present on those, yes, sir. JUDGE LUCCI: And do you want to plead guilty to the charges that I outlined at the beginning of this session?

RONALD DUDAS: I do, Your Honor. JUDGE LUCCI: Ive, I also have this written plea of guilty, 5 page document, which outlines your rights and lists specifically the charges and the potential penalties. Have you read this document?

RONALD DUDAS: Yes, I have, Your Honor. JUDGE LUCCI: And it is not written in at the bottom here, but I will do the quick calculations as to what the maximum exposure to you in prison is. On the felony 3's its 5 years; on felony 1 its 10; and felony 4's its 18 months; and on the - - there are no felony 5's? Or are there. No.

MICHAEL PETERSON:

DANIEL KASARIS: There are no 5's. JUDGE LUCCI: No felony 5's. Okay. So 54 . Is that what you have as a maximum exposure?

DANIEL KASARIS: Yes, Your Honor. JUDGE LUCCI: And then as far as fines go, $120,000.00?

DANIEL KASARIS: Yes, Your Honor.

10

JUDGE LUCCI:

Alright. You have read this document?

RONALD DUDAS: Yes I have, Your Honor. JUDGE LUCCI: Have you discussed it with your attorneys?

RONALD DUDAS: Yes I have. JUDGE LUCCI: Have they answered all your questions to your satisfaction?

RONALD DUDAS: Yes they have. JUDGE LUCCI: Do you agree with what this document says?

RONALD DUDAS: Yes I do. JUDGE LUCCI: And is this a document that you wish to sign?

RONALD DUDAS: Yes it is. [Tr.P.168-171] (Emphasis added.) . JUDGE LUCCI: . .

Okay. Well, Ill let you know when I need some information on that. But as to the case under trial right now, the 560 and 699 case, Count 1 says that you committed intimidation in violation of Revised Code Section 2921.03 on October 19th, 2005 when in Cuyahoga County, Lake - - or Cuyahoga County, Ohio you knowingly and by force or by unlawful threat upon to any person or property attempted to influence, intimidate or hinder a public servant or witness, namely Simon Cesareo, a North Olmstead Police Officer in the discharge of his duty. Do you understand that charge?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And is that one you want to plead guilty to?

RONALD DUDAS: It is. JUDGE LUCCI: Count 15 says that on October 23, 2005, you committed the crime of intimidation, in violation of Revised Code 2921.03 when you knowingly and by force or by unlawful threat of harm to any person or property did attempt to influence, intimidate or hinder a public servant, namely Judge David Matia, in the discharge of his duty. Do you understand that charge?

RONALD DUDAS: I do. JUDGE LUCCI: And is that one you want to plead guilty to?

RONALD DUDAS: Yes it is.

11

JUDGE LUCCI:

Count 16 says that on October 23, 2005 in Cuyahoga County, Ohio, that you committed the crime of retaliation in violation of Revised Code Section 2921.05 when you purposely and by force or by unlawful threat of harm to any person or property retaliated against a public servant, namely Judge David Matia, who was involved in a criminal action or proceeding because the public servant discharged the duties of the public servant. Do you understand that charge?

RONALD DUDAS: Yes, sir, I do. JUDGE LUCCI: Is that one you want to plead guilty to?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: Count 24 says that you committed the crime of intimidation in violation of Revised Code Section 2921.03 when on November 27th, 2005 you did knowingly and by force or by unlawful threat of harm to any person or property attempt to influence, intimidate or hinder a public servant, namely Judge David Matia, in the discharge of his duty. Do you understand that charge?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And is that one you want to plead guilty to?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And Count 29, the last charge on the 560, 699 case, that you committed the crime of intimidation in violation of Revised Code Section 2923.03 between October 19th and November 29th, 2005 when you knowingly and by force or by unlawful threat of harm to any person or property attempted to influence, intimidate or hinder a public servant, namely Judge David Matia, in the discharge of his duty. Do you understand that charge?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And is that a charge to which you wish to plead?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: You understand that all of these charges are felonies of the 3rd degree, all carry penalties of imprisonment between 1 and 5 years?

RONALD DUDAS: I do, Your Honor. [Tr.P.171-174] . .

12

JUDGE LUCCI:

Do you understand that if you plead guilty to these charges youre admitting you committed the crimes?

RONALD DUDAS: Yes, Your Honor. JUDGE LUCCI: Do you understand that if you had any defenses to the charges youre giving them up by pleading guilty?

RONALD DUDAS: Yes, Your Honor. JUDGE LUCCI: And do you understand by pleading guilty youre giving the Court the power to sentence you immediately?

RONALD DUDAS: Yes, Your Honor. [Tr.P.184] . . .

{14} The court described in detail the right and function of a trial and the jury trial. [Tr.P.184-185]. The court described in detail the state's requirement of proof beyond a reasonable doubt. [Tr.P.186]. The court described in detail the right to confront the witnesses against the defendant in court. [Tr.P.186-187]. The court described in detail the compulsory process available to the defendant to get witnesses to court on his behalf. [Tr.P.187]. The court described in detail the defendant's right against selfincrimination. [Tr.P.187-188]. . . .

{15} The court explained that this plea is a "global" settlement of all cases filed and all investigations underway, known or unknown to the defendant, in any way connected with the mortgage business. [Tr.P.188-189] . JUDGE LUCCI: . .

Okay. You understand that? And secondly, I want to make sure you understand by my going in to this detail Im not trying to talk you out of it.

RONALD DUDAS: Youre scaring the hell out of me. JUDGE LUCCI: Okay. I am not trying to talk you out of it. However, I explain your rights in detail to you because this is it. And I want to make sure. This is a voluntary process. And if you dont want to go forward
13

with it you just tell me, and well be back tomorrow morning and continue with the jury trial. Thats why the jury does not know what were doing. Theyre a little irritated that I gave them a 20 minute break and now its 2 hours. But the bailiff was instructed to tell them when they rang the buzzer wondering did everybody go home, why theyre still here. All he told them was that we are working. And so - RONALD DUDAS: So if I wanted to say I dont want to do the plea right now, it drops everything. JUDGE LUCCI: Doesnt drop the trial. We continue with the trial tomorrow.

RONALD DUDAS: No, I understand that. [Tr.P.189-190] (Emphasis added.) . . .

{16} [The court continued the colloquy with the plea agreement and potential prison sentences.] JUDGE LUCCI: Do you understand that I can run the sentences on each of these counts consecutive with each other?

RONALD DUDAS: Even though theres a - MICHAEL PETERSON: Wild. Wild.

RONALD DUDAS: Even though we have a plea between 5 and 10? JUDGE LUCCI: Well, let me explain that. First off, you understand that the agreement between you, your attorneys and the prosecutor are between you, your attorneys and the prosecutor. You understand that?

RONALD DUDAS: I do. JUDGE LUCCI: You understand Im not a party to the agreement.

RONALD DUDAS: So you dont have to accept either or. JUDGE LUCCI: Thats correct. And Im gonna get to that in about 35 seconds.

RONALD DUDAS: Ill wait til you get to that. [Tr.P.195] (Emphasis added.) . JUDGE LUCCI: . .

And do you understand what consecutive means?

14

RONALD DUDAS: Following one another through. JUDGE LUCCI: Right. You serve one prison term on one count in its entirety before you start the second one. And serve that time in its entirety before you start the third one. So you understand that the consecutive maximum on these counts comes up to 54.5 years?

RONALD DUDAS: I can get that much? JUDGE LUCCI: You can. And you can get far more than that if you were found guilty of all of the charges. For instance, the 33 counts in this case that we are in trial, there are felony 1's- -

DANIEL KASARIS: Theres 30 felonies of the 3rd degree. JUDGE LUCCI: Thirty felonies of the 3rd degree. And how many felony 1's?

DANIEL KASARIS: Two. And theres one felony of the second degree. JUDGE LUCCI: Okay. But the 2, the felony 1's merge.

DANIEL KASARIS: Right. JUDGE LUCCI: So you are, you are facing, just in the trial that is under way, you are facing over 100 years in prison. Just on this trial alone. It doesnt include the mortgage trial, the big one. The 700 case.

MICHAEL PETERSON: The Court, Your Honor, is making no commitment at this time until the day of sentencing. So the Defendant understands, youre just explaining to him the maximum and minimum penalties he could face. I dont want the Defendant to think that youre gonna send him to 54.5 years. I mean, thats not what youre saying to the Defendant. Now maybe hes taking it wrong. JUDGE LUCCI: Well - - and I understand his apprehension. But I want to make it clear. Do you understand that what youre pleading to, it can result - - Im not saying it will, but it can result in a prison term of 54 years?

RONALD DUDAS: Could be dead before then. JUDGE LUCCI: Pardon me?

RONALD DUDAS: Ill be dead before then. MICHAEL PETERSON: JUDGE LUCCI: No, do - -

Okay. But do you understand - -?

15

MICHAEL PETERSON: JUDGE LUCCI: that?

you understand?

RONALD DUDAS: Yes I do. JUDGE LUCCI: Okay. And do you understand that the fines can be run consecutive, for a total of $120,000.00?

RONALD DUDAS: I do. [Tr.P.196-198] (Emphasis added.) . JUDGE LUCCI: . .

Okay. Now to the part that we just talked about. Do you understand no promises have been made by the Court, your attorneys, the prosecutor or anyone as to what I would do when it comes time for sentencing?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And do you under-stand I dont know what I would do right now. I have no idea what I will do in this case until the time of sentencing, because I will hold a hearing. And the victims have a constitutional right to be heard before any sentencing. And you have a right under the constitution to say what you want me to know before I sentence you. And the prosecutor and your attorneys will say what they need to say. And I would take all of that into consideration. I will apply the principles and purposes of sentencing law under Ohio, and then, and only then, will I come up with the disposition. The punishment in this case. You understand that I will not come up with that until that time?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: So that no one can commit for me. Your attorneys cant tell you what Ill do, the prosecutor cant, and certainly I cant at this point. You understand that?

RONALD DUDAS: I do. JUDGE LUCCI: And you understand I am not bound by, and do not have to accept the recommendations by your attorney, the prosecutor, or any joint recommendation in this case?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: Has anyone made any promises or threats to you in order to get you to plead guilty?
16

RONALD DUDAS: No, sir. JUDGE LUCCI: And are you entering this plea freely and voluntarily?

RONALD DUDAS: Yes I am. [Tr.P.199-200] (Emphasis added.) . JUDGE LUCCI: . .

And do you understand that despite your performance of everything that would fulfill your obligation with the prosecutor, that Im not bound by that agreement.

RONALD DUDAS: I understand. JUDGE LUCCI: So this can turn out - - Im tell you it can turn out - - Im not saying it will, but Im telling you it can turn out that the prosecutor asks me to sentence you to no more than 10 years in prison. It can turn out that I sentence you to 54.5 years in prison. Do you understand that?

RONALD DUDAS: Yes. JUDGE LUCCI: Do you still wish to plead guilty?

RONALD DUDAS: Yes. [Tr.P.200-201] (Emphasis added.) . . .

{17} [The court inquired of the defendants volition in entering the guilty pleas and his satisfaction with his attorneys.] JUDGE LUCCI: Okay. Is this your own decision and voluntary act to plead guilty to these 3 charges, even though your attorneys are recommending that you do so?

RONALD DUDAS: Yes. JUDGE LUCCI: Have your attorneys done everything youve asked them to do for you in this case? In these cases.

RONALD DUDAS: Yes they have. Theyve fulfilled their obligations that way. JUDGE LUCCI: And are you completely satisfied with the representation provided by your attorneys, Mr. Peterson, Mr. Drucker and Mr. Bartell?

RONALD DUDAS: I think that I got what I paid for.

17

JUDGE LUCCI:

And do you believe that they have performed adequate and competent legal services for you?

RONALD DUDAS: I think they gave me the best advice they felt was sufficient for me at this point in time. [Tr.P.202] (Emphasis added.) . . .

{18} [The prosecutor outlined what the state would prove if the case continued on with the jury trial, including incorporating his opening statement.] [Tr.P.203-205] . . .

{19} [The defendant pled guilty to the 12 charges.] JUDGE LUCCI: Mr. Dudas, you heard and understand everything the prosecutor just said?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And is what he said true?

RONALD DUDAS: It is. JUDGE LUCCI: What is your plea then to, in case number 560 and 699, to Count 1, intimidation, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: What is your plea to Count 15, intimidation, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: What is your plea to Count 16, retaliation, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: What is your plea to Count 24, intimidation, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: What is your plea to Count 29, intimidation, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: In case number 700, what is your plea to Count 1, engaging in a pattern of corrupt activity, felony 1?

RONALD DUDAS: Guilty.

18

JUDGE LUCCI:

Plea as to Count 5, tampering with records, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: Count 43, forgery, felony 4?

RONALD DUDAS: Guilty. JUDGE LUCCI: Count 50, theft, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: Count 56, uttering, felony 4?

RONALD DUDAS: Guilty. JUDGE LUCCI: Count 78, securing writings by deception, felony 3?

RONALD DUDAS: Guilty. JUDGE LUCCI: Count 125, telecommunications fraud, felony 4?

RONALD DUDAS: Guilty. [Tr.P.205-207] (Emphasis added.) . JUDGE LUCCI: . .

The Court will also sign this document and make it part of the record. Let the record reflect that Defendant, Ronald A. Dudas, was here with attorneys Michael Peterson, Richard Drucker and John Bartell in open court. The Defendant was informed of all of his constitutional rights. Hes made a knowing, intelligent and voluntary waiver of those rights. The Court also finds that the Defendant understands the nature of the charges, the effect of the pleas, as well as the maximum penalty which can be imposed. Finding it to be knowing, intelligent and voluntary, the Court accepts the pleas and finds the Defendant guilty of in case numbers 560 and 699, Count 1, intimidation, felony 3, Revised Code Section 2921.03; Count 15, the same; Count 24, the same; Count 29, the same; and Count 16, retaliation, felony 3, in violation of Revised Code Section 2921.05. And in case number 700, Count 1, engaging in a pattern of corrupt activity, felony 1 in violation of Revised Code Section 2923.32; Count 5, tampering with records, felony 3 in violation of 2913.42; Count 43, forgery, felony 4 in violation of Revised Code Section 2913.31; Count 50, theft, felony 3 in violation of Revised Code Section 2913.02; Count 56, uttering, felony 4 in violation of Revised Code Section 2913.31; Count 78, securing writings by deception, felony 3 in violation of Revised Code Section 2913.43; and Count 125, telecommunications fraud,
19

felony 4 in violation of Revised Code Section 2913.05. All of the other counts and all of the other cases are dismissed. The Court will have a pre-sentence report done and victim impact statements. Sentencing will be held on December 14, 2006 at 9 a.m. in this Court. [Tr.P.207-209] Appellate History {20} Defendant Dudas filed a direct appeal on December 15, 2006, and the court of appeals affirmed his conviction on December 14, 2007 in State v. Dudas, 11th Dist. Nos. 2006L267 and 2006L268, 2007Ohio6739, discretionary appeal not allowed on May 21, 2008 by the Supreme Court at 118 Ohio St.3d 1409, 2008Ohio2340 (Dudas I). Dudas appealed the sentence of the Lake County Court of Common Pleas following his guilty plea to intimidation of a judge of the Cuyahoga County Common Pleas Court and engaging in a pattern of corrupt activity involving the thefts of money and real estate from numerous victims. At issue in this appeal was whether the state breached the negotiated plea bargain. For the reasons stated in its opinion, the court of appeals affirmed the trial court. In addition, by judgment entry dated June 3, 2008, the court of appeals denied Dudas motion for reconsideration of the court of appeals affirmance of his conviction in Dudas I. {21} Following his conviction, Dudas filed multiple pro se motions and appealed the trial courts denial of the requested relief. On December 14, 2007, in State v. Dudas, 11th Dist. No. 2007L074, 2007Ohio6731 (Dudas II), the court of appeals affirmed the trial courts denial of appellants motion to require the state to return his laptop computer and his personal and business files, which he argued the state had seized in an unlawful search. {22} On June 27, 2008, in State v. Dudas, 11th Dist. Nos. 2007L140 and 2007L 141, 2008Ohio3262 (Dudas III), the court of appeals affirmed the trial courts dismissal of Dudas petition for postconviction relief. In his petition, Dudas alleged that he had been set up, that his trial counsel was ineffective, and that the state seized evidence from him in violation of his Fourth Amendment rights. The court of appeals noted that the trial court set the matter for sentencing on December 1, 2006 at 9:00 a.m., but that earlier that morning, although represented by counsel, appellant filed a
20

pro se motion to withdraw his guilty plea. When the trial court brought this motion to defense counsels attention, counsel stated, were gonna withdraw that motion. Im gonna withdraw it on behalf of the Defendant. So we dont have to have a hearing on it and be heard. Well withdraw the motion to withdraw the plea. When asked by the trial court if he agreed with these remarks, Dudas said he did. {23} The court of appeals held that the record demonstrates that Dudas was aware of his set up and unlawful search claims long before he pled guilty on October 19, 2006. As a result, on the face of his petition, these issues were barred by res judicata. {24} Further, as to Dudas argument that he was set up, on November 23, 2005, he told his girlfriend he had done the reverse with respect to a note. This was a reference to the fact that in the past Dudas had gotten in trouble by a note he had written. This time, Dudas wrote a note, dated November 23, 2005, which bears the forged signature of Harmon the states informant -- stating Harmon had attempted to set up Dudas. In his petition, Dudas submitted a list of defense witnesses he had prepared for his attorney prior to September 26, 2006. Dudas included Ronald Wamsley on his list, who, Dudas noted to his attorney at that time, can prove [Dudas victim, Tom] Platzer set me up. Dudas also included Nate Bozeman as a potential witness. Dudas noted at that time that this witness would testify that Harmon had said he set up Dudas while they were in the medical holding cell. Finally, Dudas included as an exhibit to his petition a letter to him from a fellow inmate Joe (LNU), dated July 13, 2006. In the letter Joe agrees to testify for Dudas and to tell them just how [Dudas] got set up. Dudas wrote a note to the trial court on this letter attached to his petition, stating that it is proof of set up [sic]. {25} The court of appeals held, at 72: Thus, based on the record and the petition, Dudas was aware of his claims based on set up and illegal search long before he entered his guilty plea. He failed to assert either issue in trial or on the direct appeal of his conviction. As a result, these issues are barred by res judicata. {26} The court will quote liberally from the court of appeals opinion to show that the defendant did not recently learn of or discover he was allegedly set up, or that he was not unavoidably prevented from discovery of these facts before the expiration of 180

21

days after the transcript was filed in the court of appeals in his direct appeal, and, in any event, that these matters are barred by the doctrine of res judicata: On November 23, 2005, appellant told Ms. Bost he had gotten in trouble in the past with a note he had written and this time he had done the reverse. He had gone to Harmons cell and found a prescription for his medication. Appellant took the prescription and wrote a note on the back stating, I, Robert Harmon, hereby state that I falsely tried to set up Ronald Dudas to enhance myself. I have told several lies to detectives about Ron Dudas. I sign this note because I was wrong for what I did. The note was dated November 23, 2005, and bore the purported signature of Harmon. Appellant said this was his protection in the event Harmon turned out to be an informant. Appellant mailed this note to Ms. Bost, and told her with this he had the upper hand. Detectives turned the note over to the Lake County Crime Lab, which determined that appellant himself had written the note and that Harmons signature on the note was a forgery. At 9; see also 69. Under appellants second assignment of error, he argues the trial court erred in failing to acknowledge the state knew that perjury and fraud had been committed and that the Lake County Crime Lab had erred in its conclusion that Harmons purported signature on the November 23, 2005 note had been forged. However, appellant points to no evidence in the record that the state had such knowledge or that the Crime Lab erred in its conclusion. An appellate court in determining the existence of error is limited to a review of the record. State v. Sheldon (Dec. 31, 1986), 11th Dist. No. 3695, 1986 Ohio App. LEXIS 9608, *2, 1986 WL 14939; Schick v. Cincinnati (1927), 116 Ohio St. 16, 155 N.E. 555, at paragraph three of the syllabus. Without any evidence in support of appellants argument, there is nothing for us to consider. On appeal it is the appellants responsibility to support his argument by evidence in the record that supports his or her assigned errors. City of Columbus v. Hodge (1987), 37 Ohio App.3d 68, 523 N.E.2d 515. At 52. The record demonstrates that appellant was aware of his set up and unlawful search claims long before he plead guilty on October 19, 2006. As a result, on the face of his petition, these issues were barred by res judicata. At 67. Appellants claim that he was set up was based on facts that were known to him prior to the time he entered his guilty plea. He did not present any competent, relevant, and material evidence outside the record that did not exist or was unavailable for use at the time of trial. The letter appellant submitted in support of his petition, allegedly written by Harmon on January 27, 2007, stating detectives wanted to set up appellant, does not save his claim of set up because appellant was aware of the alleged
22

set up long before he plead guilty. This is demonstrated by the fact that appellant actually wrote the Harmon note, dated November 23, 2005, in which Harmon purports to apologize for attempting to set up appellant. In fact, appellant was aware of every challenge referenced in his petition before he entered his guilty plea. By entering that plea and by failing to litigate these issues in trial or to raise them in his direct appeal, he was barred by res judicata from asserting them in his petition. At 79. The Supreme Court in Lefkowitz v. Newsome (1975), 420 U.S. 283 * * *, further held: * * * Once the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained. * * * It is in this sense, therefore, that ordinarily a guilty plea represents a break in the chain of events which has preceded it in the criminal process. Id. at 289, quoting Tollett, supra, at 267. (Citations omitted.) At 83-84. By entering his guilty plea, appellants constitutional claims, each of which occurred before the entry of his guilty plea, are irrelevant to appellants factual guilt and cannot provide a basis for postconviction relief. At 88. In his third and fourth assignments of error, appellant argues his attorney provided ineffective assistance. The standard of review for ineffective assistance of counsel is whether the representation of trial counsel fell below an objective standard of reasonableness and whether the defendant was prejudiced as a result of the deficient performance. The defendant must show that counsels performance was deficient and that the deficient performance prejudiced the defendant so as to deprive him of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. In the context of a guilty plea, the defendant must demonstrate that there is a reasonable probability that, but for his counsels error, he would not have plead guilty and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203. At 89. In any event, as discussed supra, appellants claim of ineffective assistance of counsel is irrelevant since counsels alleged deficiencies occurred prior to the entry of appellants guilty plea. Haring, supra. By failing to assert ineffective assistance of counsel either at trial or on direct appeal of his conviction, appellant was barred by res judicata from asserting it in his petition. Szefcyk, supra. At 95.

23

{27} On June 27, 2008, in State v. Dudas, 11th Dist. No. 2007L169, 2008Ohio 3261 (Dudas IV), the court of appeals affirmed the trial courts denial of Dudas motion to compel two victims of his theft scheme to return his property. In the courts opinion, at 23, the judges noted that [t]he newly discovered evidence to which appellant refers is: (1) a letter allegedly written by Robert Harmon in January, 2007, one month after appellants sentence, and (2) the search and seizure of appellants property. Harmon was appellants fellow inmate who had informed police that appellant had solicited him to kill Judge Matia and to injure Detective Cesareo. The Harmon letter suggests appellant was set up. However, appellant was aware of the substance of this letter on November 23, 2005, because on that date, appellant wrote a note purporting to be from Harmon, which bears Harmons forged signature, in which Harmon purports to state he falsely attempted to set up appellant. In addition, the alleged search and seizure could not be newly discovered evidence because, according to appellant, the search occurred during the states investigation and the state used the evidence allegedly seized against him in the murder conspiracy case and in the corrupt activity case. {28} Further: Thus, by entering his guilty plea in this case, appellant admitted his factual guilt and removed the issue of his factual guilt from the case. Because appellant plead guilty, Harmons letter and the alleged search of appellants residence are irrelevant. At 31. Under his fourth assigned error, appellant argues the state used a note signed by Harmon knowing the document was not a forgery. While appellant did not include this note in the record of this appeal, this appears to be a reference to the note purportedly written by Harmon, but actually written by appellant, on November 23, 2005, in which Harmon purports to state that he attempted to set up appellant. The Lake County Crime Lab concluded appellant wrote this note and Harmons signature on the note had been forged. Appellant sent this note to his girlfriend Jennifer Bost at that time, and referred to it as his insurance policy in the event Harmon turned out to be an informant. Appellant argues the state knew Harmons signature on the note was not forged, and that in advancing the position that it was forged, the state committed a fraud on the court, entitling him to relief from judgment. There is no evidence in the record to support these allegations, and the argument is therefore without merit. In any event, because appellant plead guilty, this argument is irrelevant. At 34. {29} On June 27, 2008, in State v. Dudas, 11th Dist. Nos. 2007L170 and 2007L 171, 2008Ohio3260 (Dudas V), the court of appeals affirmed the trial courts denial
24

of Dudas Civ.R. 60 motion for relief from judgment. Dudas argued that, pursuant to an unlawful search of his various businesses, the state seized his laptop computer, files, and other items of property in violation of his Fourth Amendment rights and used them against him in the murder conspiracy case and in the corrupt activity case. {30} On December 31, 2008, in State v. Dudas, 11th Dist. Nos. 2008L081 and 2008L082, 2008Ohio7043 (Dudas VI), the court of appeals affirmed the trial courts denial of Dudas first motion to withdraw his guilty plea. The court of appeals held that: The mere fact that, if not for the alleged ineffective assistance of counsel, the defendant would not have entered a guilty plea is not sufficient to establish the requisite connection between the guilty plea and the ineffective assistance. (Emphasis sic.) Id., citing State v. Sopjack (Dec. 15, 1995), 11th Dist. No. 93-G-1826, 1995 Ohio App. LEXIS 5572, *11, citing State v. Haynes (Mar. 3, 1995), 11th Dist. No. 93-T-4911, 1995 Ohio App. LEXIS 780, *4 -*5. Rather, ineffective assistance of trial counsel is found to have affected the validity of a guilty plea when it precluded a defendant from entering his plea knowingly and voluntarily. Madeline, supra. Generally, a guilty plea is deemed voluntary if the record demonstrates the trial court advised the defendant of (1) the nature of the charge and the maximum penalty involved, (2) the effect of entering a guilty plea, and (3) that the defendant will be waiving his constitutional rights by entering the plea. Id., citing Sopjack, supra, at *27-*28. {31} The court of appeals further held that the record amply demonstrates that appellants guilty plea was knowingly, intelligently, and voluntarily made. {32} On December 31, 2008, in State v. Dudas, 11th Dist. Nos. 2007L189 and 2007L190, 2008Ohio6983 (Dudas VII), the court of appeals affirmed the trial courts denial of Dudas petition to return all seized contraband from law enforcement officials. The court held that: [A] defendant, who pleaded guilty, could not raise on appeal the issue of whether the state exceeded its authority under a search warrant. When defendant entered a guilty plea he admitted his factual guilt and removed the issue of factual guilt from the case. The court of appeals quoted the U.S. Supreme Court: * * * [A] counseled plea of guilty is an admission of factual guilt [ ] so reliable that * * * it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the States imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not

25

logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. {33} On March 6, 2009, in State v. Dudas, 11th Dist. Nos. 2008L078 and 2008L 079, 2009Ohio1003 (Dudas VIII), the court of appeals affirmed the trial courts denial of Dudas post-sentence request for production of documents pursuant to Civ.R. 34 and his investigative demand against state. The court of appeals held that the issue was never before the trial court and not preserved for appeal, when Dudas could have called but did not call it to the trial courts attention at a time when such error could have been avoided or corrected by the trial court. The court held that Dudas was not entitled to discovery under the civil rules in his criminal case, and he offered no authority and no argument in support of his demand for an investigation against the state. In any event, such demand is not legally cognizable. However, even if the issue was properly before the court of appeals, the claimed errors would lack merit, as Dudas ineffectiveassistance claim is premised on his attorneys failure to assert the alleged unlawful search and seizure of his property. By pleading guilty, Dudas waived the right to assert a Fourth Amendment violation that allegedly occurred before the entry of his plea. * * * [A]n allegation of a coerced guilty plea involves actions over which the State has no control. Therefore, the defendant must bear the initial burden of submitting affidavits or other supporting materials to indicate that he is entitled to relief. Defendants own self-serving declarations or affidavits alleging a coerced guilty plea are insufficient to rebut the record on review which shows that his plea was voluntary. A letter or affidavit from the court, prosecutors or defense counsel alleging a defect in the plea process may be sufficient to rebut the record on review and require an evidentiary hearing. Id. at 38, 448 N.E.2d 823, quoting State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819. At 44. {34} The court of appeals said, We further note that these appeals are based on the same search-and-seizure argument we have determined to be without merit in six prior appeals. Including his motion for reconsideration, appellant has now asked us to

consider the same issue eight times. (Emphasis added.) At 48. {35} On March 6, 2009, in State v. Dudas, 11th Dist. Nos. 2008L109 and 2008L 110, 2009Ohio1001 (Dudas IX), the court of appeals affirmed the trial courts denial of Dudas motion to quash the indictment. On May 27, 2008, one and one-half years after appellant was sentenced, he filed a motion to quash the indictment, which the trial
26

court denied.

The court of appeals ruled that even if the issue was not waived,

appellants argument would lack merit. Dudas argued that the trial court should have quashed the indictment due to prosecutorial misconduct because the prosecutor was aware the states witnesses committed perjury and set him up. The court of appeals stated, at 26: Generally, prosecutorial misconduct is not a basis for overturning a criminal conviction, unless, on the record as a whole, the misconduct can be said to have deprived the defendant of a fair trial. State v. Hillman, 10th Dist. Nos. 06AP-1230 and 07AP-728, 2008-Ohio-2341, at 26. The focus of that inquiry is on the fairness of the trial, not the culpability of the prosecutor. State v. Bey (1999), 85 Ohio St.3d 487, 495, 709 N.E.2d 484, 1999-Ohio-283. By pleading guilty, appellant waived his right to a trial. He thus waived the right to challenge the indictment on the ground of prosecutorial misconduct. The United States Supreme Court has held: When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235. The Supreme Court in Lefkowitz v. Newsome (1975), 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196, further held: [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. Id. at 289, quoting Tollett at 267. In Haring v. Prosise (1983), 462 U.S. 306, 103 S.Ct. 2368, 76 L.Ed.2d 595, the Supreme Court held: [A] counseled plea of guilty is an admission of factual guilt so reliable that * * * it quite validly removes the issue of factual guilt from the case. * * * A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is validly established. (Emphasis sic.) Id. at 321, quoting Menna v. New York (1975), 423 U.S. 61, 62-63, n. 2, 96 S.Ct. 241, 46 L.Ed.2d 195. Appellants claim of prosecutorial misconduct, which allegedly occurred before the entry of his guilty plea, is not logically inconsistent with appellants factual guilt. Therefore, his guilty plea rendered his claim of prosecutorial misconduct irrelevant. . . . Further, appellants argument is barred by res judicata. As we held in Dudas III: Thus, based on the record and the petition, appellant was aware of his claim[ ] based on set up * * * long before he entered his guilty plea. He failed to assert [this] issue in trial or on the direct appeal of his conviction. As a result, [this issue is] barred by res judicata. Id. at 72, 523 N.E.2d 515.

27

{36} On July 9, 2010, in State v. Dudas, 11th Dist. Nos. 2009L072 and 2009L 073, 2010Ohio3253 (Dudas X), the court of appeals affirmed the trial courts denial of Dudas motion to void judgment and dismiss indictment, in which he argued his conviction violated double jeopardy. On May 5, 2009, two and one-half years after Dudas was sentenced, he filed a motion to void judgment and dismiss indictment, which the trial court denied. Dudas asserted six assignments of error. The court of appeals stated, Virtually each assigned error was barred by res judicata and his guilty plea. {37} On December 23, 2010, in State v. Dudas, 11th Dist. No. 2010L002, 2010 Ohio6442 (Dudas XI), the court of appeals affirmed the trial courts denial of Dudas second motion to withdraw his guilty plea. Dudas argued the trial court abused its discretion by denying his second motion to withdraw his guilty plea because, he claimed, he has new evidence of tampering with evidence, theft of files, fraud on the court, entrapment and prosecutorial misconduct. He did not reference the evidence on which he relied, but in any event, the court of appeals noted that in Dudas VI, Dudas appeal of the trial courts denial of his first motion to withdraw his guilty plea, appellant made virtually the same argument. The court of appeals stated in that case: * * * [A]ppellant argues the trial court abused its discretion in denying his motion to withdraw his guilty plea because he has established manifest injustice in that [t]here is fraud on the Court, false testimony, entrapment by State officials, perjury, and because the court erred in failing to conduct an evidentiary hearing. We do not agree. Id. at 35. Further, based on our review of the record, appellant was aware of the evidence filed in support of his present motion to withdraw at the time he pled guilty. By failing to raise this argument in the trial court or on direct appeal, it is also barred by res judicata. {38} Quoting further from the opinion: Appellant argues, once again, that the note of Robert Harmon, his fellow inmate at the Cuyahoga County Jail, is new evidence entitling him to withdraw his guilty plea. While Harmon and appellant were fellow inmates at the Cuyahoga County Jail, appellant went into Harmons cell and found a prescription for Harmons medication. On the back of the prescription, appellant wrote a note stating that he, referring to himself as Harmon, had set up appellant, and signed it forging Harmons signature. The Lake County Crime Lab concluded that appellant had actually written this note and forged Harmons signature. Appellant argues that, in light of Harmons note, the trial court should have allowed him to withdraw his
28

guilty plea. However, appellant was aware of the Harmon note and the Lake County Crime Labs report prior to entering his guilty plea. Further, he raised this same argument in Dudas III, his appeal of the trial courts denial of his motion for post conviction relief. The following holding in Dudas III is pertinent here: * * * [B]ased on the record * * *, appellant was aware of his claim[ ] based on set up * * * long before he entered his guilty plea. He failed to assert [it] in trial or on the direct appeal of his conviction. As a result, these issues are barred by res judicata. Id. at 72. At 23. {39} On December 30, 2010, in State v. Dudas, 11th Dist. No. 2010L003, 2010 Ohio6576, discretionary appeal not allowed on May 4, 2011 by the Supreme Court at 128 Ohio St.3d 1482, 2011Ohio2055 (Dudas XII), the court of appeals affirmed the trial courts denial of Dudas motion to invalidate plea agreement as unconstitutional. The court of appeals noted that, [i]n effect, this is appellants third motion to withdraw his guilty plea. Further, this is the twelfth appeal appellant has filed following the denial of his successive post-conviction motions by the trial court. At issue is whether appellants present motion is barred by res judicata. For the reasons that follow, we affirm. The court of appeals determined that this issue has already been judicially decided and settled. The court of appeals stated at 23, Further, in Dudas VI,

appellants appeal of the trial courts denial of his first motion to withdraw his guilty plea, this court held: Based on our thorough and complete review of the record, the trial court scrupulously complied with Crim.R. 11(C), and the record demonstrates appellants guilty plea was entered voluntarily. Id. at 58, 671 N.E.2d 233. Consequently, appellants present challenge to the voluntary nature of his guilty plea is also barred by res judicata. (Emphasis added.) {40} On September 23, 2011, in State v. Dudas, 11th Dist. No. 2010L092, 2011 Ohio4883 (Dudas XIII), the court of appeals affirmed the trial courts denial of Dudas motion to compel state and trial court to honor legal contract. In effect, this was Dudas fourth motion to withdraw his guilty plea. Further, this was the thirteenth appeal Dudas has filed following the denial of his successive postconviction motions by the trial court. At issue was whether Dudas present motion was barred by the legal doctrine of res judicata. The court ruled that it was meaning this issue had been already judicially decided and acted upon by the court.

29

{41} In addition to the foregoing cases of Dudas I through Dudas XIII, the court of appeals heard five more appeals, disposing of them in three opinions: {42} On April 20, 2007, in State v. Dudas, 11th Dist. No. 2007-L-019, 2007-Ohio-1918, and 2007-L-020, 2007-Ohio-1919, the court of appeals dismissed, as untimely filed, Dudas appeal of the trial court order of January 3, 2007 denying Dudas motion to withdraw all pleas, plead anew, request for new trial, motion to set aside judgment, and request for recusal of Judge Lucci. {43} On September 30, 2011, in State v. Dudas, 11th Dist. No. 2010L093, 2011Ohio-5102, the court of appeals affirmed the trial courts denial on July 14, 2010, on grounds of res judicata, of Dudas motion to compel state and trial court to honor legal contract, which was, in effect, his fourth motion to withdraw his guilty plea (and fourteenth appeal Dudas has filed following the denial of his successive postconviction motions by the trial court). {44} On June 16, 2010, three and one-half years after Dudas was sentenced, Dudas filed his motion to compel state and trial court to honor legal contract, which essentially duplicated his first assignment of error in Dudas I, which the court of appeals overruled. {45} On May 14, 2012, in State v. Dudas, 11th Dist. No. 2011-L-093, 2012-Ohio-2121, and 2011-L-094, 2012-Ohio-2122, the court of appeals affirmed the trial courts resentencing to correctly impose postrelease control. In that appeal, Dudas argued he should have been permitted to withdraw his guilty plea because his counsel was ineffective in not asserting his original sentence was void due to the improper imposition of postrelease control. In addition to stating that Dudas could have but failed to make this argument on direct appeal or in any of his prior motions to withdraw his guilty plea, the court stated that it has held that Dudas counsel was not ineffective. State v. Dudas, 11th Dist. Nos.2009L072 and 2009L073, 2010Ohio3253, 42. This was Dudas most recent filing in the court of appeals. {46} In addition to the foregoing, on June 25, 2012, in Dudas v. Warden Kelly, Dudas petitioned the Ohio Supreme Court, in Case No. 2012-1086, 2012-Ohio-4381, for habeas corpus, seeking his immediate release from prison, on the grounds that his imprisonment and detention was without legal authority in that the plea arrangement which resulted in his convictions and sentences was not within the subject matter
30

jurisdiction of the Lake County Court of Common Pleas and, therefore, his imprisonment and detention was in violation of his constitutional rights. On September 26, 2012, the Supreme Court dismissed the petition sua sponte and without a hearing. {47} Further, the defendant filed twice in the Ohio Supreme Court seeking to disqualify the trial judge from acting further in his cases. Both affidavits of

disqualification were denied by the chief justice. See Supreme Court Case Nos. 07-AP046 and 08-AP-086. Chief Justice Moyer, in the second filing, cautioned Dudas about filing frivolous, unsubstantiated, or repeated affidavits of disqualification. In the latter case, filed on September 2, 2008, Dudas alleged that: [H]e has obtained exculpatory evidence, such as written statements from a person that was used by the State to fabricate a case against him, in which he has plead guilty, and sentenced to serve out a thirty-year prison term. Shortly after entering a plea of guilty before Judge Lucci, the petitioner discovered evidence proving that he was set up by the Cuyahoga County prosecutor, Judges McGinty and Matia, who influenced one Robert Harmon to wear a wire and entrap/and snare him into a false conviction. {48} This was not newly discovered evidence that Defendant and counsel claim it is in their March 26, 2013 filing in this court. Defendant knew about it September 2, 2008. The Motion to Withdraw or Vacate Guilty Pleas {49} In the defendants motion to withdraw guilty pleas or, alternatively, to vacate guilty pleas, filed March 26, 2013, through counsel, Mr. Partlow, the defendant makes assertions that are false, unsubstantiated in fact or law, and have been presented on numerous occasions in this court, the court of appeals, and the Supreme Court. Defendant contends the following: {50} A. His guilty pleas were not made on a knowing and voluntary basis and were based entirely upon testimony that the state intended to produce which has recently been recanted and establishes Defendants actual innocence (Emphasis added). Memorandum at 1. {51} There is nothing recent about Harmons testimony. Dudas knew, since 2005 (before his trial), about Harmon and what Harmon might say at trial before Dudas entered his pleas of guilty. Moreover, Harmons alleged recantation of his version of events has been the subject of motions made by the defendant ever since his pleas of
31

guilty. See, State v. Dudas, 2008-Ohio-3262 (Dudas III). The record is replete with this same allegation and was mentioned in many motions filed by the defendant and in the opinions and journal entries by this court and the court of appeals. {52} Specifically, on December 1, 2006 the day of sentencing the defendant filed, pro se, a motion to withdraw guilty plea. This motion was orally withdrawn by the defendant and counsel immediately before sentencing. In his motion, Defendant stated: Defendant has found out that several witnesses are ready to come forward in defense of defendant, have proof of defendant Dudas set up by the State witnesses namely Harmon, Whitehead and Platzer. Motion, at 2. {53} Further, on December 5, 2006, four days after his sentencing, the defendant filed another motion, pro se, to withdraw all pleas, plead anew and request for a new trial. In his motion, Defendant stated he had: [N]ewly discovered evidence. Proof of the States illegal involvement in the setting up of defendant Dudas, the stealing of files and unlawfully seized records. Defendant has recently been given uncontestable proof of the States involvement in the set up of the Judge Matia case. This newly discovered evidence is also being given to the news media by family members to help insure a fair trial and clear the false charges against Defendant. Furthermore, 2 people have come forward in the last week, to prove of the fact that Harmon and Whitehead (states witnesses) were bragging about setting up defendant Dudas. Also proof has been given in a letter verifying Harmons setting up of defendant prior to the exchange of money. As per the RICO Act and mortgage indictments, evidence is now available that will prove the State has stolen documents and records, tampered with evidence and has used these stolen documents to cause over 95 charges to be used illegally on the indictment, and proof that no overt act on corrupt activity took place. Motion at 1-3. {54} In addition, on June 5, 2008, the defendant, again pro se, filed a motion for reconsideration to motion denying motion to withdraw, in which he alleged: This defendant has proven via affidavits the set up by the state, prosecutor, 2 sitting Judges, and a witness that committed perjury. This court has failed to address the newly discovered evidence that proves the set up of the defendant by a signed notarized statement of the states star witness, Robert Harmon. The notarized document attesting to the set up of the defendant. The meeting between Judges Matia and McGinty. (Emphasis added.) Motion at 1-2.

32

{55} These allegations fly in the face of Defendants pleas of guilt and the evidence of the reverse note (i.e. insurance) implemented by Dudas, when he told his girlfriend about the note, dated November 23, 2005, which bears the forged signature of Harmon, stating Harmon had attempted to set up Dudas. {56} The allegations are not true. Even if they were true, they do not exonerate the defendant or merit withdrawal or vacation of the guilty pleas, and the allegations made in 2006, 2007, and 2008 prove that Harmon did not recently recant his testimony. {57} Further, his plea was based on the fact that he faced hundreds of charges in pending indictments and in further, ongoing investigations. He pled guilty to 12 charges out of potentially hundreds. The court reserved some eight weeks for Dudas trials, and he had three well qualified lawyers representing him. There may have been a financial aspect to his mental calculus. It cannot be stated that Dudas pled guilty only on the strength of Harmons testimony. Nonetheless, Harmons testimony was implicated only in the murder conspiracy case, and not the corrupt activity case. {58} B. The Ohio Supreme Court order was dated August 24, 2006. This order did not include Lake County Case No. 06 CR 000700, one of the cases now in question. In fact, the Ohio Supreme Court never assigned Judge Lucci to that case and, therefore, this Court lacked subject matter jurisdiction over that case at the time of the guilty pleas. Memorandum at 1. (Emphasis in the original.) {59} This allegation was the subject of a motion filed by the defendant on November 7, 2012, and, as amended, on November 15, 2012. The court ruled on November 26, 2012, and, surprisingly, the defendant did not appeal this decision the issue is now res judicata. The existence of jurisdiction in this court is not a fairly debatable point.

Ignoring for the moment that the defendant requested that all of his cases be transferred to Lake County, thereby expressly waiving this objection, the Ohio constitution, statutes, and cases permit the Lake County trial judge to exercise jurisdiction over all of Dudas cases from Cuyahoga County. {60} O. Const. IV Sec. 4, states: (A) There shall be a court of common pleas serving each county of the state. Any judge of a court of common pleas may temporarily hold court in any county. (B) The courts of common pleas shall have such
33

original jurisdiction over all justiciable matters and such powers of review of proceedings of administrative officers and agencies as may be provided by law. The court of common pleas is a court of general jurisdiction which possesses the authority to determine its own jurisdiction over both the person and the subject matter in an action before it and, generally, prohibition will not lie to prevent an anticipated erroneous judgment;the unconstitutionality of a statute does not deprive a court of its initial jurisdiction to proceed. State ex rel. Heimann v. George (Ohio 1976) 45 Ohio St.2d 231, 344 N.E.2d 130, 74 O.O.2d 376. {61} A judge of the common pleas court may lawfully act in another county. State ex rel. Bartlett v. Baynes (Ohio 1969) 20 Ohio St.2d 129, 253 N.E.2d 748, 49 O.O.2d 447, certiorari denied 91 S.Ct. 77, 400 U.S. 838, 27 L.Ed.2d 72. [The] constitutional provision that any judge of Court of Common Pleas may temporarily preside and hold court in any county is self-executing, and under it a Common Pleas judge is vested with authority to preside in each and every county in state. Authority vested by constitution in each Common Pleas judge to preside in each and every county in the state is authority of which judge cannot be deprived by any legislative act, even assuming that General Assembly has authority to pass laws regulating exercise of such power. A Common Pleas judge presiding in a county other than the one in which he was elected or appointed acts in a de jure capacity, even though he has not been assigned thereto by the Chief Justice. R.C. 141.07, 2503.04; Const. art. 4, 3. State v. Powers, 57 O.O. 412, 129 N.E.2d 653 (Ohio Ct. App. 1954). {62} In addition, R.C. 141.07 provides: In addition to (receiving) the annual salary and expenses each judge of the common pleas court while holding court in a county in which the judge does not reside, by assignment of the chief justice of the supreme court under section 2701.03 of the Revised Code, or without any assignment, shall receive the actual and necessary expenses that the judge incurred while so holding court in that county, to be paid from the treasury of that county upon the warrant of the county auditor. (Emphasis added.) {63} C. With respect to his pleas of guilty, Defendant was primarily concerned about the testimony of Robert A. Harmon with regard to the intimidation case. Furthermore, Defendant was told that the State of Ohio would recommend that Defendant receive no more than an aggregate term of incarceration of 10 years and that this Court was likely to follow
34

that recommendation. Since Defendant had no witnesses to directly rebut Harmons testimony and the audio tape allegedly implicating Defendant made by Harmon, Defendant opted to take the plea offer Defendant had no other option in that regard. Memorandum at 2. {64} If the case continued with the trial, Dudas would have been confronted with his forgery of the reverse note in which he attempted to cover his tracks by having a document he could show, in court or elsewhere, that Harmon set him up. It is pure speculation as to how Harmon would testify at trial, as the defendant pled guilty before Harmon could take the stand and testify. Dudas knew what the risks would be, pro and con, when he changed his plea. This matter has been litigated, through appeals, and is now res judicata. Also litigated was the allegation of ineffective assistance, with the result being adverse to the defendant. The plea colloquy shows that Dudas knew

exactly what he was doing; he completely admitted his guilt to the 12 charges. He certainly would know whether he did what the prosecutor, in his opening statement, accused him of doing. {65} D. Almost immediately, Defendant began challenging his plea in the direct appeals, etc. Since his pleas, convictions, and sentencings, the Defendant has filed a variety of motions and one petition for postconviction relief which all sought to have his prior guilty pleas vacated on grounds unrelated to the present filing with this Court. These include, but are not limited to: (1) four motions to withdraw his pleas; (2) one petition for post-conviction relief pursuant to Ohio Revised Code 2953.21; (3) a Motion for Relief from Judgment pursuant to Ohio Civil Rule 60(B); and (4) a motion to void his sentence based upon double jeopardy grounds. Memorandum at 2. {66} In actuality, the defendant, post-sentencing, has filed approximately 60 motions in the trial court, seeking to have his plea withdrawn, vacated, or voided. Included in these filings were 18 or so requests to withdraw his pleas of guilty and petitions for postconviction relief. The court carefully considered and ruled upon each motion. The defendant appealed 26 times to the Eleventh District Court of Appeals, which disposed of each of his appeals, overruling all of them and every claimed assignment of error therein, in 18 separate opinions. The defendant filed two affidavits in the Ohio Supreme Court seeking this judges disqualification and removal from his cases; he attempted
35

two appeals to the Supreme Court from decisions of the court of appeals; and he filed one action in habeas corpus against the warden of the state penal institution where he was held seeking his release from an allegedly unconstitutional imprisonment. All of the appeals and/or requests were denied by the Supreme Court. {67} E. The Defendant respectfully submits that the Affidavits he has obtained through his investigator clearly show that the Defendant is actually innocent of the charges to which he entered guilty pleas and that his pleas in that regard were not made on a knowing and voluntary basis. Memorandum at 2. {68} Does the defendant contend he did not know he was actually innocent of all of his charges on October 19, 2006, when he pled guilty? If so, this contention is

incredible. It is pure speculation as to why Harmon, Whitehead, Oliver, Holbert, and/or Collins would make the statements they purportedly did or what their motivations may have been in 2006 or what their current motivations may be, or what their testimony may have been or would be. However, Dudas lawyer, Richard Drucker, in his opening statement at the jury trial, stated: But the conversations between Mr. White - - sorry. Mr. Whitehead, the heroine addict. Or Mr. Harmon, the thief. Or Mr. Oliver, the

perjurer. These are people that were attempting to make a deal to get themselves out of jail. The State of Ohio wanted to set up Mr. Dudas. [Tr.P.74]. Those statements do not prove that Defendant is actually innocent of the 12 charges to which he pled guilty. Especially so, in light of this exchange, among others, in the change of plea colloquy: JUDGE LUCCI: And as to the charges that you wish to plead guilty to, the 12, do you agree that those charges accurately and adequately reflect your conduct over these period of time covered by the indictment?

RONALD DUDAS: I believe my culpabilitys present on those, yes, sir. {69} F. Mr. Harmon admitted to (licensed private investigator) Mr. Phillips that it was not the Defendant on the tape and that all of his anticipated testimony against the Defendant was fabricated. Although Mr. Phillips indicates at the end of his Affidavit that he lost contact with Mr. Harmon, he was able to obtain an Affidavit from Mr. Harmon on March 28, 2012 specifically describing his involvement in fabricating the case against the
36

Defendant and describing at least one meeting which occurred concerning this fabrication which involved [by names, two judges and an assistant prosecuting attorney]. Memorandum at 3. {70} Defendant Dudas had statements and/or affidavits from Harmon and others before Mr. Phillips attempted to interview and obtain a statement or affidavit from Harmon. Dudas claimed at the trial, in the defense opening statement, that he was set up. The attempt to cast this as new evidence, first obtained on March 28, 2012, is disingenuous, at best. {71} G. The Defendant did and does deny guilt to any of these charges. Obviously, Mr. Harmons Affidavit did not exist at the time of the Defendants plea and was unavailable to Defendant at that time. Memorandum at 4. {72} This is patently false; the defendant admitted his guilt in open court to each of the 12 crimes, after a recitation of what the state said it would prove at trial. Not once during the plea colloquy or the prosecutors statement did the defendant deny his guilt: JUDGE LUCCI: Mr. Dudas, you heard and understand everything the prosecutor just said?

RONALD DUDAS: Yes, sir. JUDGE LUCCI: And is what he said true?

RONALD DUDAS: It is. {73} H. Defendant asserts that a full and complete adversary hearing is required when a motion to withdraw a guilty plea is based upon recantation of testimony by a states witness. In fact, the need for adversarial proceedings is especially important in situations involving recantation of testimony, where the testimony resulted in a guilty plea, due to the fact that the witness recanting his prior statement has never been subject to adversarial cross-examination by Defendant in the case, due to the Defendants guilty plea relying upon the witnesses initial statements. Memorandum at 5-6. {74} The defendants counseled guilty plea was an admission of factual guilt and broke the chain of events which preceded it in the criminal process. Accordingly, the
37

issue of factual guilt was thereby removed from the case and it rendered irrelevant any real or perceived constitutional violations. {75} I. The request to withdraw a guilty plea is not motivated by a mere change of heart on the part of a defendant but rather by a significant change in his mental calculus concerning his chances of acquittal, rendering the prior guilty plea less than knowing and voluntary. Memorandum at 6. {76} The defendants mental calculus considered the information he already knew, which was that he contended he was set up by Harmon and the state and had a reverse note to attempt to meet the states evidence, on which the state was prepared to introduce expert testimony of Dudas forgery, when Dudas decided to abort the trial and plead guilty to some of the charges. His self-serving statement notwithstanding, the defendant has been clearly upset about his 30-year prison sentence. {77} J. (S)ince the Affidavits now in question clearly indicate that the Defendants guilty pleas were not made on a knowing and voluntary basis and include proof of knowledge on the part of the prosecution of potential perjury, constitutional rights of the Defendant are implicated. Memorandum at 6. {78} The plea colloquy clearly indicates that the defendant knowingly, voluntarily, and intelligently waived his constitutional and statutory trial rights and entered his plea of guilty to the 12 counts. The defendant has made these same allegations many times, and they are now barred by res judicata. {79} K. Gary L. Phillips affidavit was purportedly executed on March 12, 2012. Phillips said he spoke with Harmon on January 4, 2011 inside an office at the Cleveland Police Department. Robert A. Harmons affidavit was purportedly executed on March 28, 2012. Thomas Holberts affidavit was purportedly executed on February 23, 2011 in front of Mr. Phillips, as notary public. Lorenzo Collins affidavit was purportedly executed on April 28, 2011, in front of Mr. Phillips, as notary public. Linda Justices affidavit was purportedly executed on April 16, 2009.

38

{80} It has been a year or years certainly more than 180 days -- since these affidavits have been executed. Even if meritorious, they would be untimely under any analysis. {81} Moreover, Linda Justices affidavit was submitted to the court previously, as Exhibit H to the defendants motion to withdraw guilty plea Crim.R. 32.1 due to actual innocence, filed on October 28, 2009. This was filed almost four years ago. Ms. Justice also raises the issue, once again, of the defendants mental state of bipolar disorder and his related medications, along with the allegations of promised sentences. {82} The court ordered competency examinations at the defendants requests to be done while Defendant was in jail. The defendant was examined by two psychiatrists, Dr. Aranoff and Dr. James Pallas, both of whom opined Defendant was competent to stand trial. The court held a competency hearing on September 12, 2006. Defendant stipulated to the reports. The court found him to be competent. The court, later at his plea hearing, inquired of his mental condition and medications in the colloquy. The defendant had no difficulties whatsoever in understanding everything that was happening at the time or was being said in his pending cases and his pleas of guilty. {83} The plea hearing shows the fallacy in the allegations of what prison sentence the judge would likely impose and further, that the defendant was well-satisfied with the legal performance of his attorneys. references. JUDGE LUCCI: So that no one can commit for me. Your attorneys cant tell you what Ill do, the prosecutor cant, and certainly I cant at this point. You understand that? These were quoted earlier, with the page

RONALD DUDAS: I do. JUDGE LUCCI: And you understand I am not bound by, and do not have to accept the recommendations by your attorney, the prosecutor, or any joint recommendation in this case?

RONALD DUDAS: Yes, sir. . . .

39

JUDGE LUCCI:

So this can turn out - - Im tell you it can turn out - Im not saying it will, but Im telling you it can turn out that the prosecutor asks me to sentence you to no more than 10 years in prison. It can turn out that I sentence you to 54.5 years in prison. Do you understand that?

RONALD DUDAS: Yes. JUDGE LUCCI: Do you still wish to plead guilty?

RONALD DUDAS: Yes. . JUDGE LUCCI: . .

Have your attorneys done everything youve asked them to do for you in this case? In these cases.

RONALD DUDAS: Yes they have. Theyve fulfilled their obligations that way. JUDGE LUCCI: And are you completely satisfied with the representation provided by your attorneys, Mr. Peterson, Mr. Drucker and Mr. Bartell?

RONALD DUDAS: I think that I got what I paid for. JUDGE LUCCI: And do you believe that they have performed adequate and competent legal services for you?

RONALD DUDAS: I think they gave me the best advice they felt was sufficient for me at this point in time. {84} L. Lastly, Ronald Dudas affidavit was purportedly executed on March 22, 2013, in front of his attorney, as notary public. Dudas claimed he is motivated in his request to withdraw or vacate his guilty pleas by a feeling that his trial attorneys were not prepared to present a defense to the intimidation line of cases because of the anticipated testimony of Harmon and Whitehead. Dudas said that although he was at all times aware that he had never discussed the matter with Harmon, he was never allowed to hear the tape prior to pleading guilty. He claimed his attorneys never listened to the taped conversation and never interviewed Harmon or Whitehead. Dudas claimed his attorney did no investigation whatsoever concerning the financial misconduct line of cases. Dudas claimed that he did not commit any of the crimes for which he was charged or to which he entered a guilty plea.

40

{85} The claim of ineffective assistance of counsel contention was litigated, ruled upon, appealed, and settled and the contention was not substantiated. Dudas

lawyers were not ineffective. Dudas admitted guilt quite clearly. Dudas motivation after sentencing is and has been singularly the number of years to which he was sentenced. Law The defendants motion is untimely. {86} Defendant contends that Crim.R. 32.1, entitled, Withdrawal of guilty plea, and R.C. 2953.21, entitled, Petition for postconviction relief, form the legal basis for the defendants motion. {87} Crim.R. 32.1 provides: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea. {88} Sentence has been imposed. There is no manifest injustice to correct. The motion to withdraw guilty plea has been ruled upon many times, appealed many times, and affirmed every time. The motion to withdraw guilty plea is, once again, denied. {89} R.C. 2953.21 provides, in pertinent part: (A)(1)(a) Any person who has been convicted of a criminal offense and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States may file a petition in the court that imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file a supporting affidavit and other documentary evidence in support of the claim for relief. (2) Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication . (4) A petitioner shall state in the original or amended petition filed under division (A) of this section all grounds for relief claimed by the petitioner. Except as provided in section 2953.23 of the Revised Code, any ground for relief that is not so stated in the petition is waived.
41

(C) The court shall consider a petition that is timely filed under division (A)(2) of this section even if a direct appeal of the judgment is pending. Before granting a hearing on a petition filed under division (A) of this section, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition, the supporting affidavits, and the documentary evidence, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. The court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. (E) Unless the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the issues even if a direct appeal of the case is pending. If the court notifies the parties that it has found grounds for granting relief, either party may request an appellate court in which a direct appeal of the judgment is pending to remand the pending case to the court. (G) If the court does not find grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter judgment denying relief on the petition. If no direct appeal of the case is pending and the court finds grounds for relief or if a pending direct appeal of the case has been remanded to the court pursuant to a request made pursuant to division (E) of this section and the court finds grounds for granting relief, it shall make and file findings of fact and conclusions of law and shall enter a judgment that vacates and sets aside the judgment in question, and, in the case of a petitioner who is a prisoner in custody, shall discharge or resentence the petitioner or grant a new trial as the court determines appropriate. The court also may make supplementary orders to the relief granted, concerning such matters as rearraignment, retrial, custody, and bail. If the trial court's order granting the petition is reversed on appeal and if the direct appeal of the case has been remanded from an appellate court pursuant to a request under division (E) of this section, the appellate court reversing the order granting the petition shall notify the appellate court in which the direct appeal of the case was pending at the time of the remand of the reversal and remand of the trial court's order. Upon the reversal and remand of the trial court's order granting the petition, regardless of whether notice is sent or received, the direct appeal of the case that was remanded is reinstated. (J) Subject to the appeal of a sentence for a felony that is authorized by section 2953.08 of the Revised Code, the remedy set forth in this section is the exclusive remedy by which a person may bring a collateral
42

challenge to the validity of a conviction or sentence in a criminal case . (Emphasis added.) {90} The defendant filed his direct appeal on December 15, 2006. The trial transcript was filed in the court of appeals on February 23, 2007. One hundred eighty days thereafter was August 22, 2007. That was the expiration date for a petition for

postconviction relief. The defendants motion is untimely filed. Further, the court finds no denial or infringement of defendants rights so as to render his judgment of conviction void or voidable under the U.S. and Ohio constitutions. {91} R.C. 2953.23, entitled, Second or successive petitions; order; appeal, provides, in pertinent part: (A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21 of the Revised Code, a court may not entertain a petition filed after the expiration of the period prescribed in division (A) of that section or a second petition or successive petitions for similar relief on behalf of a petitioner unless division (A)(1) applies: (1) Both of the following apply: (a) Either 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, or, subsequent to the period prescribed in division (A)(2) of section 2953.21 of the Revised Code or to the filing of an earlier petition, the United States Supreme Court recognized a new federal or state right that applies retroactively 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 for constitutional error at trial, no reasonable factfinder would have found the petitioner guilty of the offense of which the petitioner was convicted (B) An order awarding or denying relief sought in a petition filed pursuant to section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to Chapter 2953. of the Revised Code. {92} The defendant could not have been unavoidably prevented from discovery of the facts upon which he relies in presenting his claim for relief on March 26, 2013, when he knew of these alleged facts on November 23, 2005, and mentioned them in opening statement on October 19, 2006, and set them forth in many filings in this court in 2006, 2007, and 2008 and thereafter.
43

{93} Even if the defendants petition or request filed on March 26, 2013 was meritorious, it is untimely and must be denied and dismissed. The defendants motion is barred by the doctrine of res judicata. {94} The defendant cites State v. Hudach, 2004-Ohio-6949 (Ohio Ct. App. Dec. 17, 2004), for the proposition that this court cannot rely on the doctrine of res judicata in barring the within motion. His reliance on that case is misplaced. {95} In Hudach, the appellant filed a petition for postconviction relief with the trial court. He alleged that his pleas were not made knowingly, intelligently, and voluntarily because he was deprived of effective assistance of counsel. Appellant alleged that he agreed to plead guilty only because his counsel coerced him into entering the pleas on the basis of false misrepresentations about the strength of the state's case. In the alternative, appellant contended that his counsel was deficient in failing to investigate whether the state actually intended to call a particular person as a witness. {96} The appellant moved to withdraw his plea and requested an evidentiary hearing on the motion. Appellant argued that changed testimony of three witnesses created a manifest injustice necessitating withdrawal of his plea. The trial court issued a judgment entry denying appellant's motion without a hearing. The trial court explained its

rationale in great detail. The appeal claimed the trial court abused its discretion by denying the motion to withdraw the guilty pleas. {97} The appellant argued that the trial court erred by denying his motion to withdraw his plea without a hearing. According to appellant, there existed a manifest injustice necessitating withdrawal of his plea because he relied heavily on his belief that the three witnesses, who would now testify in his favor, would have testified against him at trial. The appellant also argued that the trial court erred by finding his argument

regarding one witness testimony without merit. In his motion, appellant argued that he made his plea in reliance that that witness, a co-conspirator, would testify against him. Appellant contended that, because that witness has now totally recanted his testimony, the trial court erred by overruling his motion to withdraw his plea. The court of appeals disagreed, and found appellant's arguments were not well-taken. {98} The appellate courts review, in Hudach, of the transcript of the plea hearing revealed that the trial court engaged in a lengthy dialogue with appellant and complied
44

with the dictates of Crim.R. 11 when accepting appellant's pleas. The trial court asked appellant whether he discussed the matter with his attorneys, whether he understood both of his attorneys were highly qualified to represent him, and whether he was satisfied with his representation and advice. Appellant answered affirmatively. {99} Next, the trial court informed appellant that, after it accepted his plea, it would proceed to sentence him and that his sentence involved life imprisonment on one count and could involve life imprisonment with a possibility of parole in twenty years on the remaining counts. The trial court explained appellant's constitutional rights, and

appellant verified that he was waiving those rights. Appellant also indicated that he signed a written waiver after reviewing it with his counsel. The written plea is contained within the record. The written plea indicated that appellant was making a plea

voluntarily and with the understanding of the nature of the charges and the consequences, including the penalty, of the plea * * *. {100} The trial court denied the petition without a hearing. Appellant appealed,

and the court of appeals affirmed the trial court's decision. State v. Hudach (Sept. 24, 1999), 11th Dist. No. 98-T-0071, 1999 Ohio App. LEXIS 4476. Supreme Court of Ohio declined to accept jurisdiction in the matter. {101} The court of appeals stated that, at no point did it appear that appellant Subsequently, the

did not enter his plea knowingly, voluntarily, and intelligently. As such, the appellate court could not conclude that there existed a manifest injustice necessitating withdrawal of his plea. {102} The facts in Hudach are remarkably similar to the facts in State v. Dudas

and his allegations. However, although State v. Hudach did not involve a matter of res judicata, Dudas certainly does. Res judicata prevents consideration of any claim that was raised or could have been raised in an earlier appeal. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, 1996-Ohio-337, syllabus. {103} The defendants allegations have been litigated or could have been raised

and litigated in the trial or in an earlier appeal, and they are now barred by res judicata. The court of appeals held, in Dudas III at 72: Thus, based on the record and the petition, Dudas was aware of his claims based on set up and illegal search long before

45

he entered his guilty plea. He failed to assert either issue in trial or on the direct appeal of his conviction. As a result, these issues are barred by res judicata. The defendants motion lacks any substantive grounds for relief. {104} In Hudach, the court of appeals stated at 36, [T]he equivocation of a prosecuting witness, in itself, is insufficient to mandate that [a] defendant be allowed to withdraw his guilty plea. State v. Crum (Mar. 30, 1993), 10th Dist. No. 92AP-1175, 1993 Ohio App. LEXIS 1869, at 5. See, also, State v. Harris (Mar. 23, 1989), 8th Dist. No. 55147, 1989 Ohio App. LEXIS 1004. In Harris, the reviewing court held that a motion to withdraw a plea, based upon recantation of testimony by a state's witness, does not meet the liberal presentence standard to withdraw a plea. Id. at 8. Appellant's motion was postsentence. {105} Further, pursuant to Crum, a change in potential testimony of a state's Even under the liberal

witness is insufficient to withdraw a plea post-sentence.

presentence standard, such an equivocation is insufficient to withdraw a plea. See, e.g., Harris. The court found appellant's argument was not well-taken. {106} Newly discovered evidence which purportedly recants testimony or prior

statements is looked upon with utmost suspicion. State v. Wilburn (Dec. 22, 1999), 4th Dist. No. 98CA47, 1999 Ohio App. LEXIS 6325, at 8, quoting State v. Isham (Jan. 24, 1997), 2d Dist. No. 15976, 1997 Ohio App. LEXIS 207. See, also, State v. Germany (Sept. 30, 1993), 8th Dist. No. 63568, 1993 Ohio App. LEXIS 46, citing United States v. Lewis (C.A.6, 1964), 338 F.2d 137, 139. As such, any contradictions between the potential testimony of witnesses at the time of appellant's plea and their current version of events may suggest a lack of credibility. Issues of credibility are left primarily to the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 231, 227 N.E.2d 212. Appellants claim of prosecutorial misconduct, which allegedly occurred before the entry of his guilty plea, is not logically inconsistent with appellants factual guilt. Therefore, his guilty plea rendered his claim of prosecutorial misconduct irrelevant. Further, appellants argument is barred by res judicata. As we held in Dudas III: Thus, based on the record and the petition, appellant was aware of his claim[ ] based on set up * * * long before he entered his guilty plea. He failed to assert [this] issue in trial or on the direct appeal of his conviction. As a result, [this issue is] barred by res judicata. (Citation omitted.) Dudas IX, at 32, 35, and 36.

46

{107}

Even if the defendants petition or request was timely and was not barred

by res judicata, it is unsubstantiated, incredible, and filed in bad faith. No Hearing Is Required {108} Although a trial court must conduct a hearing to determine whether there

is a reasonable and legitimate basis for the withdrawal of a guilty plea if the request is made before sentencing, the same is not true if the request is made after the trial court has already sentenced the defendant. State v. Whiteman, 11th Dist. No.2001-P-0096, 2003-Ohio-2229, at 19, citing State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715, paragraph one of the syllabus. In those situations where the trial court must consider a post-sentence motion to withdraw a guilty plea, a hearing is only required if the facts alleged by the defendant, and accepted as true, would require withdrawal of the plea. Id., citing Xie. See State v. Hudach, 2004-Ohio-6949 (Ohio Ct. App. Dec. 17, 2004). { 109} A trial court is vested with sound discretion to grant or deny a post-sentence motion for withdrawal of a plea. State v. Pearson, 11th Dist. Nos.2002-G-2413 and 2002-G-2414, 2003-Ohio-6962, at 7. In reaching its decision, a trial court has the discretion to determine the good faith, credibility and weight of the movant's assertions * * *. Smith at paragraph two of the syllabus. See, also, State v. Caraballo (1985), 17 Ohio St.3d 66, 67, 477 N.E.2d 627. Importantly, an undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor adversely affecting the credibility of the movant and militating against the granting of the motion. State v. Bush, 96 Ohio St.3d 235, 2002Ohio-3393, at 14, quoting Smith at paragraph three of the syllabus. See State v. Hudach, 2004-Ohio-6949 (Ohio Ct. App. Dec. 17, 2004). {110} The court finds there are no substantive grounds for relief. Therefore,

Defendant is not entitled to an oral hearing on the motion filed under R.C. 2953.21, nor is he entitled to any relief, as the court finds, again, no grounds to support the granting of relief. Warning to Defendant/Counsel {111} The defendant pro se and/or with counsel, since his sentencing on

December 1, 2006, has filed numerous unsubstantiated, unmeritorious, bad faith, repetitious, and voluminous requests, including 19 requests to withdraw, void, vacate, or
47

otherwise collaterally attack his convictions, six requests to remove the trial judge, and seven requests to order the state to produce further discovery or be investigated. He has filed more than 60 motions. He has appealed 26 times to the court of appeals. He has sought relief in the Supreme Court on five occasions. Not one of his requests or appeals was found to be justified or granted. The court estimates that the amount of time devoted by the trial judge and staff attorneys, three court of appeals judges and their staff attorneys, the Supreme Court and its chief justice, the prosecuting attorney and staff, and the clerks of the various courts, to be many hundreds of, if not closer to a thousand, hours all of this after the defendant pled guilty to 12 out of hundreds of criminal charges and potential charges and admitted his complete culpability in open court, assisted and represented by three competent attorneys of his own choosing. {112} The defendant is hereby placed on notice and warned that he shall not file

any further pro se requests to withdraw his guilty pleas, petitions for post-conviction relief, motions to set aside the judgment of conviction, motions for relief from judgment of conviction, requests to void the judgment of conviction, requests to invalidate the plea agreement, requests to quash the indictment, requests to remove the intimidation or any other counts from the indictment, or any similar requests by any other name, or requests for reconsideration of the denial of any such motions, or any further requests for this judge to recuse himself or be disqualified in these cases, or any further requests for discovery from the state or that the state be investigated, or any other bad faith, frivolous, unsubstantiated, and/or repetitious motion or action. sponte, strike such filing(s) from the record. {113} Should the defendant retain counsel to file anything further of this sort, or The court will, sua

any other motion or action, the defendant shall disclose this order and inform and require counsel to familiarize himself or herself with the entire record and the files, at the common pleas, appellate, and supreme court levels, and counsel is hereby placed on notice and cautioned that the filing of bad faith, frivolous, unsubstantiated, and/or repetitious motions or actions will incur disciplinary and/or contempt sanctions, including financial sanctions.

48

Conclusion {114} For the reasons stated herein, the within motion to withdraw guilty pleas

or, alternatively, to vacate guilty pleas is hereby overruled, denied, and dismissed. {115} IT IS SO ORDERED.

________________________________ EUGENE A. LUCCI, JUDGE c: Timothy J. McGinty, Esq., Cuyahoga County Prosecuting Attorney Daniel J. Kasaris, Esq., Assistant Prosecuting Attorney Justice Center, 1200 Ontario Street, Cleveland, OH 44113 Michael A. Partlow, Esq., Attorney for Defendant 112 S. Water Street, Suite C, Kent, OH 44240 Ronald Dudas, Defendant, #520-261 Trumbull Correctional Institution, P.O. Box 901, Leavittsburg, Ohio 44430

FINAL APPEALABLE ORDER Clerk to serve pursuant to Civ.R. 58(B)

49