ORIGINALIN THE SUPREME COURT OF OHIO

FRED BILLITER ) Supreme Court Case No: 12-1153)

Relator )) Tuscarawas County Common

vs. ) Pleas Court Case No: 1999-CR-o8 0159)

JUDGE EDWARD E. O'FARRELL ))

Respondent. )

RESPONDENT'S ANSWER

ROBERT R. STEPHENSON II, Reg. 0034616Tuscarawas County AssistantProsecuting Attorney125 East High Ave.New Philadelphia, OH 44663PH: 330.365.3332/ FX: 330.364•4135e-mail: stephensonb@co.tuscarawas.oh.us

Counsel for RespondentJudge Edward E. O'Farrell, TuscarawasCounty Common Pleas Court

RT^^^V-EDJUE 3 0 201z

GLERK ®F COURTSUPREME COURT OF OHIO

RELATORFRED BILLITER, Pro Se, #383177N.C.I.157o8 McConnelsville RoadCaldwell, OH 43724

JUL 3G2®12

CLERK OF COURTSUPREME COURT OF OHIO

Respondent Edward E. O'Farrell, Judge of the Tuscarawas County Common Pleas

Court answers Relator's Complaint seeking a writ of prohibition:

1. Denies the allegations that the Respondent trial court lacked jurisdiction to

declare Relator to be a sexual predator under R.C. 2950.09; the trial court was not

required to hold a full evidentiary hearing and to consider the factors under R.C.

2950.09, given the defendant's negotiated plea, to include his admissions/acceptance of

"sexual predator" status as a component of the sentence.

2. Denies the allegation that the trial court's orders issued as a result of the

November 1, 1999 sentencing conducted by Respondent constitutes a "void judgment".

3. Admits that Exhibit "A" attached to Relator's Complaint is a complete

transcript of the November 1, 1999 sentencing proceeding, (excepting minor redactions,

apparently made by Relator).

AFFIRMATIVE DEFENSES

4. Respondent adopts paragraphs 1, through 3 of this answer and alleges the

following separate affirmative defenses:

FIRST AFFIRMATIVE DEFENSE

5. Relator's Complaint fails to state a claim upon which relief can be granted in

mandamus or prohibition.

SECOND AFFIRMATIVE DEFENSE

6. The trial court had full jurisdiction to accept Relator's guilty plea to the

Amended Indictment and determine his "sexual predator" status under R.C. 2950.09,

based upon the change of plea and admissions of Relator, as reflected in the transcript

of the November 1, i999 sentencing and embodied within the trial court's November 1,

1999 Judgment Entry, a certified copy of which is attached as "Exhibit B".

1

THIRD AFFIRMATIVE DEFENSE

7. Relator failed to raise the issue of the propriety of the sentencing proceeding

determining his "sexual predator" status on his direct, delayed appeal and as a

consequence, has waived the right to further challenge the sentencing.

FOURTH AFFIRMATIVE DEFENSE

8. Relator `s negotiated plea of "guilty" to the Amended Indictment included a

waiver of appellate rights, further constituting a waiver of the right to challenge the

propriety sentencing in this proceeding.

FIFTH AFFIRMATIVE DEFENSE

Relator's Complaint fails to comply with S.Ct. Prac.R. 10.4(B) requiring the

Complaint to be supported by affidavit specifying the details of the claim.

DEMANDFORJUDGMENT

Respondent demands the following relief:

I. A dismissal of Relator's Complaint;

II. An award of Respondent's court c s, including reasonable attorney's fees^

and any other relief which the Court con '; ers^ust and equitable.

R. S phenson II, 0034616stant P osecuting Attorney

` County, OhioTuscarawCounselfo, Respondent125 East ^'gh Ave.New Phila elphia, OH 44663PH: 33a•3 5•3332/^: 330•364•4135e-mail: ste ` ensonbC&co.tuscarawas.oh.us

2

I certify that a copy of the foregoing of Respondent was mailed this^( s.°^-day of July, 2012; to Relator, Fred er, #383177, N.C.I., 157o8

McConnelsville Road, Caldwell, OH 437,

Ste enson IIant Pros cuting Attorney

Counsel for spondent, Judge Edward E. O'Farrell,Tuscarawas unty Common Pleas Court

3

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STATE OF OffiO,

IN THE COURT OF COMMON PLEAS

TUSCARAWAS COUNTY, OHIO

GENERAL TRIAL DIVISION

CASE NO. 1999 CR 08 0159

PLAINTIFF JUDGEEDWARD EMMETT O'FARRELL

JUDGMENT ENTRY

RANTED-INDICTMENT

CONDUCTED ON 11/1/99-IIIRY TRIALSCI-?Enrtt.ED TO COMMENCE ON

vs.

FRO

FRED L. BILLITER, JR.,S.S-D.O.B. 10/10/46HEIGHT-60"WEIGHT-140 LBS.EYE COLOR-BLUEHAIR COLOR-BROWNSEX-MALERACE-CAUCASIAN

11/1/99 CANCELLED-STATE'S 0MOTION TO AMEND INDICTMENT

DEFENDANT

G

N2907 02fA-1f11fbl O R C) (F-1) (WITHFORCF)TI-IREE COUNTS GROSSSEXUAL IMPOSITIOZ(SECTION2907 05fA1f41 O R.Cj (E-3-2TW0COUNTS PANDERING OBSCENITYINVOLVING A MINOR (SECTION2907 32], O RC^(F-2) TO TWOCOUNTS RAPE (SECTION 2907.02tA1f111b1 O R.C )(F-I) (WITHOUTFORCE)-ONE COUNT PANDERINGOBSCENITY INVOLVING A MINOR(SECTION 2907 321 O R C)(F-2)AND ONE COT nvT GROSS SEXUAL

IMPOSITION (SECTION 2907.05r s i ldi O R.C 1(F-3)-PLEAS OFGT'TT TY ENTERED TO AMENDEDINDICTMENT-FINDINGS OFGUILTY-IMPOSITION OFSENTENCE-DEFENDANT DECLARETO BE A SEXUAL PREDATOR(SECTION 2950.09, O.R.C.I-

Page I of 12

EXPLANATION OF DUTIES TOREGISTER AS SEX OFFENDERFORM EXPLAINED TO DEFENDANTAND EXECUTED BY DEFENDANTON 11/1/99-LOCAL JAIL CREDIT OF73 DAYS ASSESSED AS OF 11/1/99-ORDER TO CLERK TO PREPARE ANDISSUE WARRANT TO CONVEYfTRANSPORT DEFENDANT TOPRISON-ORDER TO TUSCARAWAS

COUNTY. OHIO. SHERIFF/AGENT TOCONVEY/TRANSPORT DEFENDANTTO PRISON-ORDER TO CLERK TOCLOSE CASE FILE AND REMOVEFROM PENDING CASE DOCKET-ORDERSENTERED

This matterwas cansideredby Edward Emmett O'Farrell, Judge, Court of Common

Pleas, Tuscarawas County, Ohio, General Trial Division, on 1 1 /1 /99 relative to the felony criminal

charges set forth in the Indictment issued in the May 1999 Term of the Grand Jury of Tuscarawas

County, Ohio, and filed at the Clerk's Office on 8/25/99 charging Fred L. Billiter, Jr., Social

Security No. 278-44-3276, d.o.b. 10/10/46, with twenty-nine (29) counts Rape (With Force) in

violation of Section 2907.02(A)(1)(b),Ohio Revised Code, felonies of the first degree, three (3)

counts Gross Sexual Imposition in violation of Section 2907.05, Ohio Revised Code, felonies

of the third degree, and two (2) counts Pandering Obscenity Involving a Minor in violation of

Section 2907.321, Ohio Revised Code, felonies of the second degree.

Page 2 of 12

The Defendant was present in the Courtroom and represented by Jeffrey Jakmides,

Attomey at Law, Alliance, Ohio. The State of Ohio was represented by David C. Hipp, Assistant

Tuscarawas County, Ohio, Prosecuting Attomey.

The Court

FINDS that the Prosecuting Attorney moved the Court orally to amend the Indictment from

twenty-nine (29) counts Rape (With Force) in violation of Section 2907.02(A)(1)(b), Ohio

Revised Code, felonies of the first degree, three (3) counts Gross Sexual Imposition in violation

of Section 2907.05, Ohio Revised Code, felonies of the third degree, and two (2) counts

Pandering Obscenity Involving a Minor in violation of Section 2907.321, Ohio Revised Code,

felonies of the second degree, to two (2) counts Rape (Without Force) in violation of Section

2907.02(A)(1)(b), Ohio Revised Code, felonies of the first degree, one (1) count Pandering

Obscenity Involving a Minor in violation of Section 2907.321, Obio Revised Code, a felony of

the second degree, and one (1) count Gross Sexual Imposition in violation of Section

2907.05(A)(4), Ohio Revised Code, a felony of the third degree. The Defendant did not oppose

the Motion, it was made with approval of the victim and her family, is in the interests of justice

and should be Granted. The Motion to amend the Indictment was made by the Prosecuting

Attorney in exchange for the Defendant entering pleas of Guilty to the Amended Indictment,

waiving all rights of appeal relative to the imposition of consecutive sentences, and upon the

agreement of the Defendant that he would consent to being declared a Sexual Predator pursuant

to the provisions of Section 2950.09, Ohio Revised Code.

Page 3 of 12

FINDS that the Defendant, in open Court and on the record, petitionedthe Court for leave to enter

pleas of Guilty to the felony criminal charges set forth in the Amended Indictment. He did so

after the Court reviewed with him the nature of the felony criminal charges set forth in the

Amended Indictment, the penalties which could be imposed if the Defendant was found Guilty

of same; his constitutional and statutory rights and privileges, including his right to be represented

by retained counsel, or pursuant to Rule 44, Ohio Rules of Criminal Procedure, by appointed

counsel; his right to a Trial by Jury, his right to confront witnesses against him, his right to have

compulsory process for obtaining witnesses in his favor, and his right to require the State of Ohio

to prove his guilt relating to the felony criminal charges set forth in the Amended Indictment,

beyond a reasonable doubt, at a Trial at which he could not be compelled to testify against himself

but at which he would have an unqualified right to testify. Additionally, the Court explained to the

Defendant that the prison terms which the Court would select from the range of available sentences

would be as follows:

♦ Count One-Rape (Section 2907.02[AJ[1][b], Ohio

Revised Code) (Without Force) (F-1)

♦ A ten (10) year term of imprisonment in theappropriate state penal institution of theOhio Department of Rehabilitation andCorrection.

♦ Count Two-Rape (Section 2907.02[A][1][b], OhioRevised Code) (Without Force) (F-1)

♦ A ten (10) year term of imprisonment in theappropriate state penal institution of theOhio Department of Rehabilitation and

Page 4 of 12

Correction to be served consecutively to theten (10) year imposed upon Count One.

♦ Count Thirty-Three-Pandering Obscenity Iavolving a

Minor (Section 2907.321, Ohio Revised Code) (F-2)

♦ An eight (8) year term of imprisonment inthe appropriate state penal institution of theOhio Department of Rehabilitation andCorrectionto be served consecutively to theterms of imprisonment imposed uponCounts One and Two above.

♦ Count Thirty-Gross Sexual Imposition (Section

2907.05[A] [4], Ohio Revised Code) (F-3)

♦ A three (3) year term of imprisonment in theappropriate state penal institution in theappropriate state penal institution of theOhio Department of Rehabilitation andCorrection to be served consecutively to theterms of imprisonment imposed upon

Counts One, Two and Thirty-Three

above.

Additionally, the Court informed the Defendant that the prison tenns which would be imposed and

executed in this case would be served without "Good Time Credit"; that if the Defendant

committed a crime(s) in prison or violated rules and regulations of the institution, the Ohio Parole

Board could increase his prison sentences in fifteen (15), thirty (30), sixty (60) or ninety (90) day

increments up to a maximum of fifty percent (50%) of the originally imposed terms of

imprisonment. Further, the Court explained to the Defendant that a mandatory non-reducible five

(5) year period of Post-Release Controls would follow his release from prison after having

completed the terms of imprisorunent. The mandatory non-reducible five (5) year period of Post-

Page 5 of 12

Release Controls would be subject to conditions determined by the Ohio Parole Board. Further,

the Court explained to the Defendant that if he violated conditions of supervision while under the

mandatory non-reducible five (5) year period of Post-Release Controls, the Ohio Parole Board

could return him to prison for up to a maximum of a total of 50% of the original prison terms

imposed. If the violation(s)of Post-ReleaseControls is a new felony offense, the Defendant could

be returned to prison for the time remaining on Post-Release Controls plus serve an additional

prison term for the new crime(s) conttnitted.

FINDS that the Defendant agreed that in return for the Court granting the Prosecuting Attomey's

Motion to amend the Indictment, he would waive his right to appeal the consecutive sentences

imposed in the Orders of the Court below and that he would consent to being declared a Sexual

Predator pursuantto the provisions of Section 2950.09, Ohio Revised Code, which would subject

him to the registration requirements set forth in Section 2950.04, Ohio Revised Code, upon his

release from prison.

FINDS that prior to the entry of the pleas of Guilty to the felony criminal charges set forth in the

Amended Indictment, the Defendant knowingly, intelligently and voluntarily waived all of the

rights set forth above.

Page 6 of 12

the seriousness of the offender's conduct and to the danger the offender poses to the public and that

the harm caused by the multiple offenses in this case was so great or unusual that no single prison

term for any of the offenses committed as part of a single course of conduct adequately reflects the

seriousness of the offender's conduct. Additionally, the offender's history of criminal conduct

demonstrates that the consecutive sentences are necessary to protect the public from future crime

by the Defendant. Lastly, the Court concludes that the seriousness of the crimes committed by the

Defendant in this case would be demeaned by the imposition of Community Control Sanctions

and, consequently, the Court has chosen to impose prison terms upon each of the counts of the

Amended Indictment.

FINDS that a seventy-three (73) day local jail credit should be assessed as of 11/1/99 against the

terms of imprisonment imposed and contained in the Orders of the Court below.

FINDS that the undersigned explained to the Defendant in open Court and on the record, his

Duties to Register as a Sex Offender upon his release from prison and supphed him with a copy

of the Explanation of Duties to Register as Sex Offender form.

FINDS that the Clerk of Courts should prepare, issue and transmit to the Tuscarawas County,

Ohio, Sheriff/Agenta Warrant to Convey/Transport the Defendant, Fred L. Billiter, Jr., Social

Security No. d.o.b. 10/10/46, to prison. The Tuscarawas County, Ohio,

Page 8 of 12

Sheriff/Agent should, in turn, convey/transport the Defendant to prison pursuant to the Orders of

the Court below.

FINDS that all Court costs in this case should be assessed against the Defendant for payment.

FINDS that the Clerk of Courts should close this case file and remove it from the pending case

docket.

It is therefore

ORDERED, ADJUDGED AND DECREED that the State's oral Motion made 11 / 1/99 to amend

the Indictment is Granted. The indictment is amended to two (2) counts Rape (Without Force)

in violation of Section 2907.02(A)(1)(b), Ohio Revised Code, felonies of the first degree, one

(1) count Pandering Obscenity Involving a Minor in violation of Section 2907.321, Ohio

Revised Code, a felony of the second degree, and one (1) count Gross Sexual Imposition in

violation of Section 2907.05(A)(4), Ohio Revised Code, a felony of the third degree. All counts

of the Indictment are Dismissed with prejudice to refiling with the exception of Counts One,

Two, Thirty and Thirty-Three.

ORDERED, ADJUDGED AND DECREED that upon Count One of the Amended Indictment

Rape (Without Force) in violation of Section 2907.02(A)(1)(b), Ohio Revised Code, a felony

of the first degree, the Court sentences the Defendant, Fred L. Billiter, Jr., Social Security No.

Page 9 of 12

to a ten (10) year term of imprisonment in the appropriate state penal

institution of the Ohio Department of Rehabilitation and Correction and assesses all Court costs.

ORDERED, ADJUDGEDAND DECREED thatupon Count Two ofthe Amended Indictment,

Rape (Without Force) in violation of Section 2907.02(A)(1)(b), Ohio Revised Code, a felony

of the lirst degree, the Court sentences the Defendant, Fred L. Billiter, Jr., Social Security No.

to a ten (10) year term of imprisonment in the appropriate state penal

institutionofthe Ohio Departmentof Rehabilitation and Correction to be served consecutively to

the term of imprisonment imposed upon Count One of the Amended Indictment above.

ORDERED, ADJUDGED AND DECREED that upon Count Thirty of the Amended

Indictment, Gross Sexual Imposition in violation of Section 2907.05(A)(4), Ohio Revised

Code, a felony of the third degree, the Court sentences the Defendant, Fred L. Billiter, Jr., Social

Security No.- d.o.b. 10/10/46, to a three (3) year tenn of imprisonment in the

appropriate state penal institution of the Ohio Department of Rehabilitation and Correction to be

served consecutively to the terms of imprisonment imposed upon Counts One and Two of the

Amended Indictment, above.

ORDERED, ADJUDGED AND DECREED that upon Count Thirty-Three of the Amended

Indictment, Pandering Obscenity Involving a Minor in violation of Section 2907.321, Ohio

Page 10 of 12

Revised Code, a felony of the second degree, the Court sentences the Defendant, Fred L. Billiter,

Jr., Social Security No.^ d.o.b. 10/10/46, to an eight (8) year tenn of imprisonment

in the appropriate state penal institution of the Ohio Department of Rehabilitation and Correction

to be served consecutively to the terms of imprisonment imposed upon Counts One, Two and

Thirty of the Amended Indictment, above.

ORDERED, ADJ UDGED AND DECREED that the Defendant, Fred L. Billiter, Jr., Social

Security No.- d.o.b. 10/10/46, is declared to be a Sexual Predator pursuant to

Section 2950.09, Ohio Revised Code, with the registration requirements as set forth in Section

2907.04, Ohio Revised Code, when the Defendant is released from prison.

ORDERED, ADJUDGED AND DECREED that a seventy-three (73) day local jail credit is

assessed as of 11/1/99 against the consecutive terms of imprisonment imposed and contained in

the Orders of the Court above.

ORDERED, ADJUDGED AND DECREED that the Clerk of Courts shall prepare, issue and

transmit to the Tuscarawas County, Ohio Sheriff/Agent a Warrant to Convey/Transport the

Defendant, Fred L. Billiter, Jr., Social Security No. - d.o.b. 10/10/46, to the

appropriate state penal institution of the Ohio Deparkment of Rehabilitation and Correction. The

Tuscarawas County, Ohio, Sheriff/Agent shall, in turn, convey/transport the Defendant to the

Page 11 of 12

appropriate state penal institution of the Ohio Department of Rehabilitation and Correction and

shall deliver the person of the Defendant into the custody of the Warden of said institution for the

express purpose of executing the terms of imprisonment imposed and contained in the Orders of

the Court above.

ORDERED, ADJUDGED AND DECREED that the Explanationof Duties to Registeras a Sex

Offender form shall be distributed according to law.

ORDERED, ADJUDGED AND DECREED that the Clerk of Courts shall close this case file and

remove it from the pending case docket.

IT IS SO ORDERED.

Edward Emmett O'Farrell, Judge

Date:

cc: Court Administrator's OfficeAsst. Tusc. County, Ohio, Pros. Atty. David C. Hipp

Atty. Jeffrey JakmidesAdult Parole Authority OfficeTusoarawas County, Ohio, Jail Adm./Sheriff/Agent

Correction Reception CenterAttention: Records Custodian(NO PSI PREPARED)

EEO'F/pl1

Page 12 of 12

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