State v. Taylor , 2016 Ohio 1100 ( 2016 )

[Cite as State v. Taylor, 2016-Ohio-1100.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26327
:
v. : Trial Court Case No. 2011-CR-4317
:
DARREN D. TAYLOR : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 18th day of March, 2016.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
DARREN D. TAYLOR, Inmate No. 685-345, Lebanon Correctional Institution, 3791 State
Route 63, P.O. Box 56, Lebanon, Ohio 45036
Defendant-Appellant-Pro Se
.............
WELBAUM, J.
{¶ 1} In this case, Defendant-Appellant, Darren Taylor, appeals pro se from a trial
court decision denying Taylor’s motion for a copy of his complete court file and transcript
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of proceedings. In support of his appeal, Taylor contends that the trial court abused its
discretion and unconstitutionally denied him access to the courts when it overruled his
motion.
{¶ 2} We conclude that the trial court did not err in denying Taylor’s request. A
free copy of the trial transcript was made available during Taylor’s direct appeal, and if
Taylor wanted an additional copy, he was required to pay for it. Furthermore, the
appropriate method of requesting public records is through a mandamus action. Even if
Appellant’s request could be construed as a mandamus action (which it was not), the trial
court properly denied his request, because a defendant may not seek information under
R.C. 149.43 to support a post-conviction petition. Accordingly, the judgment of the trial
court will be affirmed.
I. Facts and Course of Proceedings
{¶ 3} In May 2013, Taylor was convicted and sentenced on two counts of murder
and accompanying firearm specifications following a five-day jury trial. Taylor was then
sentenced to an aggregate prison term of thirty-six years to life. Taylor appealed from
his conviction and sentence, and we affirmed the judgment of the trial court on June 13,
2014. See State v. Taylor, 2d Dist. Montgomery No. 25764, 2014-Ohio-2550.
{¶ 4} On June 17, 2014, Taylor filed a motion with the trial court, seeking a
complete copy of his court file and transcripts of the proceedings, at State expense. On
July 2, 2014, the trial court denied the motion as moot, noting that the court had appointed
appellate counsel for Taylor on May 31, 2013, and that the transcript of the proceedings
had been filed with our court on September 19, 2013. Taylor filed a pro se notice of
appeal from this decision on July 25, 2014.
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{¶ 5} In September 2014, we issued a show cause order, asking Taylor to show
cause why the appeal should not be dismissed for lack of a final appealable order. After
Taylor responded, we dismissed the appeal on December 12, 2014, for lack of a final
appealable order. We subsequently granted Taylor’s motion for reconsideration, and
reinstated the appeal on July 1, 2015. Both the State and Taylor have now filed briefs
regarding this matter, and the case is ready for disposition.
II. The Trial Court’s Alleged Abuse of Discretion
{¶ 6} Taylor’s sole assignment of error states that:
[The] Trial Court Abused Its Discretion and Denied Pro Se Appellant
His Fundamental and Constitutionally Protected Rights of Access to the
Courts When It Denied Pro Se Appellant a Complete Copy of Court File and
Transcripts for Pro Se Appellant to Seek State and Federal Post-Conviction
Relief.
{¶ 7} Under this assignment of error, Taylor argues that his rights to due process
and equal protection were violated by the trial court’s failure to provide him, personally,
with a copy of the transcripts and court file. Taylor further contends that he has complied
with requirements for obtaining the transcripts, in that: (1) he alleged that he is seeking
the transcripts for use in a collateral proceeding; and (2) he made an effort to obtain the
materials from counsel who acted in his behalf. In order to establish these latter facts,
Taylor has attached various letters to his brief. In the letters, which were written during
the pendency of his direct appeal, Taylor asked his appellate attorney to provide him with
transcripts and the court record. We will not consider these letters, since they were not
part of the trial court record. See, e.g., State v. Bellamy, 181 Ohio App. 3d 210, 2009-
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Ohio-888, 908 N.E.2d 522, ¶ 21 (2d Dist.), citing State v. Ishmail, 54 Ohio St. 2d 402, 377
N.E.2d 500 (1978), paragraph one of the syllabus.
{¶ 8} Before addressing the merits of the case, we will briefly consider whether the
order in question is a final appealable order. Whether we have jurisdiction over an
appeal is a matter that we can raise on our motion. Care Risk Retention Group v. Martin,
191 Ohio App. 3d 797, 2010–Ohio–6091, 947 N.E.2d 1214, ¶ 97 (2d Dist.), citing State ex
rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St. 3d 543, 544, 684 N.E.2d 72 (1997).
{¶ 9} R.C. 2505.02(B) provides that orders are final and may be reviewed if they
fit within one of several categories, including “[a]n order that affects a substantial right in
an action that in effect determines the action and prevents a judgment”; or “[a]n order that
affects a substantial right made in a special proceeding or upon a summary application in
an action after judgment.” R.C. 2505.02(B)(1) and (2).
{¶ 10} In a recent decision, the Eleventh District Court of Appeals held that a trial
court order denying a defendant’s motion for production of his transcript was not a final
appealable order. State v. Miller, 11th Dist. Trumbull No. 2015-T-0022, 2015-Ohio-2986,
¶ 4-5. Although the discussion of this point in Miller is brief, the court appears to have
concluded that the order did not affect a substantial right because the defendant did not
have a pending case; instead, he was requesting the transcript “in anticipation of filing a
petition for post-conviction relief.” Id. at ¶ 5. The court also noted that the defendant
was not entitled to a transcript because a transcript had already been filed during his
direct appeal. Id. See also State v. Jones, 7th Dist. Mahoning No. 14-MA-46, 2015-
Ohio-1707 (holding that an order denying a request for trial transcripts was not a final
appealable order, because the defendant did not “have pending in the trial court any
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action to warrant review of the trial transcripts, and an indigent's right to a transcript is for
use in a direct appeal, not for the circumstances presented here.” Id. at ¶ 18.) However,
the court in Jones did go on to consider the defendant’s arguments. Id. at ¶ 49-50.
{¶ 11} Our court and others have taken a contrary position, i.e., have concluded
that orders denying a request for transcripts are final appealable orders. See, e.g., State
v. Clark, 2d Dist. Greene No. 97 CA 27, 1998 WL 321007, *5 (June 19, 1998); State v.
Hatfield, 10th Dist. Franklin No. 11AP-1045, 2012-Ohio-3473, ¶ 5, citing Clark; and State
v. Majid, 8th Dist. Cuyahoga No. 102154, 2015-Ohio-2406, ¶ 4, citing Clark.
{¶ 12} In other cases, appellate courts have simply ruled on appeals without
considering whether the trial court’s decision denying a request for a transcript was a final
appealable order. See State v. Buder, 6th Dist. Wood No. WD-11-036, 2012-Ohio-386,
¶ 4; State v. Bayles, 8th Dist. Cuyahoga No. 88094, 2007-Ohio-1008, ¶ 12; State v.
Walker, 4th Dist. Lawrence No. 04CA16, 2005-Ohio-1584, ¶ 6; and State v. McKinstry,
9th Dist. Summit No. 16540, 1994 WL 119370, *1 (Apr. 6, 1994).
{¶ 13} When we granted Taylor’s motion for reconsideration and reinstated his
appeal, we stated that “[w]hether Taylor has the right he asserts, the denial of an indigent
defendant’s request for a transcript does affect a substantial right.” State v. Taylor, 2d
Dist. Montgomery No. 26327 (July 1, 2015), p. 2, citing generally to State ex rel. Partee
v. McMahon, 175 Ohio St. 243, 245, 193 N.E.2d 266 (1963).
{¶ 14} A “substantial right” is defined as “a right that the United States Constitution,
the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person
to enforce or protect.” R.C. 2505.02(A)(1). As a general matter, orders affect
substantial rights where appropriate relief will be foreclosed in the future if the order is not
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immediately appealable. In re Adams, 115 Ohio St. 3d 86, 2007-Ohio-4840, 873 N.E.2d
886, ¶ 44. In the case before us, whether Taylor’s motion in the trial court should have
prevailed on the merits is not the point; absent an appeal, Taylor would be precluded from
appropriate relief in the future. Accordingly, we conclude that the denial of Taylor’s
motion is a final appealable order.1
{¶ 15} On the substantive issues, however, Taylor’s assignment of error is without
merit. In State, ex rel. Greene, v. Enright, 63 Ohio St. 3d 729, 590 N.E.2d 1257 (1992),
the Supreme Court of Ohio observed that:
The fundamental constitutional right of access to the courts requires
that prisoners have a meaningful opportunity to present claims to the courts.
Bounds v. Smith (1977), 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72.
Therefore, when a state grants persons convicted a direct appeal as of right,
equal protection and due process of law require that a state furnish
appellate courts with trial transcripts in cases involving indigent defendants
when transcripts are needed for a full and effective defense on appeal.
(Citations omitted.) Id. at 730. However, “the state is under a duty to file at state
expense only a single transcript with the court of appeals.” (Emphasis sic.) (Citation
omitted.) Id. at 731. Accord State ex rel. Franklin v. Greene Cty. Clerk of Courts, 2d
1 We do note that in State v. Pierce, 2d Dist. Montgomery No. 25199, 2013-Ohio-1372, we concluded that
an order denying a defendant’s post-trial request for grand jury transcripts was not a final appealable
order, either as an order denying a provisional remedy, or as an order affecting a substantive right. Id. at
¶ 16-17. We rejected the order as being ancillary to a court proceeding because no court proceeding
was currently in existence. Id. at ¶ 16. We also rejected the idea that the right to the transcript was a
substantial right, because the right to inspect grand jury transcripts is a discretionary right for use only
before or during trial. Id. at ¶ 14, citing State v. Greer, 66 Ohio St. 2d 139, 420 N.E.2d 982 (1981),
paragraph two of the syllabus. And, again, there was no pending action. Id. at ¶ 17. This right is
considerably more limited than the right to trial transcripts, and the circumstances are different. Pierce,
therefore, is distinguishable from the case before us.
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Dist. Greene No. 05-CA-125, 2005-Ohio-7087, ¶ 5 (stressing that “the clerk of courts is
not required to provide the indigent defendant with his own free, personal copy of the
transcript in addition to the copy filed with the court of appeals,” and that “[i]f the Relator
wishes to have his own personal copy of the transcript to review, he must pay for it.”) We
made the same observation again in Kenard v. Tucker, 2d Dist. Montgomery No. 21378,
2005-Ohio-6834, ¶ 8.
{¶ 16} The Supreme Court of Ohio has repeatedly adhered to the position that
defendants are not entitled to a transcript where the transcript has already been filed in
their direct appeal, and that only one copy of the transcript of criminal trials must be
provided to indigent criminal defendants. See State ex rel. Call v. Zimmers, 85 Ohio
St.3d 367, 368, 708 N.E.2d 711 (1999), citing State ex rel. Grove v. Nadel, 81 Ohio St. 3d
325, 326, 691 N.E.2d 275 (1998) and State ex rel. Murr v. Thierry, 34 Ohio St. 3d 45, 517
N.E.2d 226 (1987).
{¶ 17} Another limitation is that an “appeal or post-conviction action must be
pending at the time the transcript is sought.” Murr at 45, citing Partee, 175 Ohio St. at
243,193 N.E.2d 266. (Other citations omitted.)
{¶ 18} In the case before us, no appeal or post-conviction action was pending
when Taylor sought the transcript. Taylor’s appeal had concluded, no post-conviction
petition was pending in the trial court, and Taylor’s motion for leave to file a delayed
appeal in the Supreme Court of Ohio had not yet been filed. See online docket at the
Supreme Court of Ohio for State v. Taylor, Sup.Ct. Case No. 2014-1406. However, even
if this were otherwise, Taylor was entitled to only one transcript, which had already been
filed with our court for purposes of his direct appeal. If he wished another copy for his
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personal use, he was required to pay for it.
{¶ 19} Taylor also contends that his request should have been granted pursuant
to Rush v. United States, 559 F.2d 455 (7th Cir.1977), and State ex rel. Lacovone v.
Kaminski, 81 Ohio St. 3d 189, 690 N.E.2d 4 (1998). In Rush, the Seventh Circuit Court
of Appeals discussed the public nature of court files, the statutory right of inspection in 28
U.S.C. 753(b), and the extent to which incarcerated persons should be able to access
these records for purposes of collaterally attacking their convictions when their
incarceration prevents personal visits to a clerk’s office. Id. at 458-459. Ultimately, the
court held that since the transcript in that case already existed, the trial court should enter
an order giving the defendant access to the record, as well as providing “appropriate
safeguards to maintain the record’s integrity * * *.” Id. at 459.
{¶ 20} In a subsequent decision applying Rush and the decision of the United
States Supreme Court in United States v. MacCollom, 426 U.S. 317, 96 S. Ct. 2086, 48
L. Ed. 2d 666 (1976), a federal district court imposed requirements for access, including
that:
1. The defendant must exhaust his private sources of access to
transcripts and records of the proceedings through and from his trial and
appellate counsel.
2. The defendant must set forth his efforts to exhaust his personal
sources, and the results thereof * * * .
3. The defendant must make some showing as to the purpose for
which the transcripts are sought from the court.
United States v. Davidson, 438 F. Supp. 1253, 1255 (N.D.Ind.1977).
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{¶ 21} In a subsequent, related decision involving the same inmate, the Seventh
Circuit Court of Appeals declined to rule on the correctness of the procedure that the
district court had established, because the inmate had been able to review the records at
the prison, and the current appeal involved only whether the restrictions imposed on the
inmate’s access (time constraints) complied with Rush. United States ex rel. Davidson
v. Wilkinson, 618 F.2d 1215, 1218 (7th Cir.1980). The Seventh Circuit Court of Appeals
concluded that the district court did not abuse its discretion by providing only a 30-day
review period and by refusing the inmate’s request for an extension. Id. at 1219.
{¶ 22} In Davidson, the Seventh Circuit Court of Appeals noted that the Eighth
Circuit Court of Appeals had refused to follow Rush, and that the law in the Eighth Circuit
“seems to be ‘that a prisoner has no absolute right to a transcript to assist him in the
preparation of a collateral attack on his conviction, and that constitutional requirements
are met by providing such materials only after judicial certification that they are required
to decide the issues presented by a non-frivolous pending case.’ ” Id. at 1217, fn.2,
quoting United States v. Losing, 601 F.2d 351, 353 (8th Cir. 1979). (Other citation
omitted.)
{¶ 23} Notably, “no other court of appeals has adopted the Seventh Circuit's
reasoning, and the Tenth, Eleventh, and Eighth Circuits have explicitly rejected such
reasoning.” United States v. Silva, 2009 WL 1449083, *1, fn. 1 (N.D. Cal., May 21,
2009), citing Sistrunk v. United States, 992 F.2d 258, 259-60 (10th Cir.1993); Hansen v.
United States, 956 F.2d 245, 248 (11th Cir.1992); and Losing, 601 F.2d at 353. Ohio
has also not adopted the view of the Seventh Circuit Court of Appeals, and we are not
required, in any event, to follow decisions of lower federal courts. See, e.g., State ex rel.
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Painter v. Brunner, 128 Ohio St. 3d 17, 2011-Ohio-35, 941 N.E.2d 782, ¶ 46 (noting that
the Supreme Court of Ohio is “ ‘not bound by rulings on federal statutory or constitutional
law made by a federal court other than the United States Supreme Court.’ ”)
{¶ 24} In Greene v. Brigano, 123 F.3d 917 (6th Cir.1997), the Sixth Circuit Court
of Appeals affirmed an order granting a conditional writ of habeas corpus to a defendant
who had elected to proceed pro se on the direct appeal of his murder conviction, but who
had not been given access to the transcript that had been prepared at State expense.
Concluding that access to the record for the direct appeal was a necessity, the court held
that “the State was required to provide [the defendant] either a copy of that transcript or
an alternative that fulfilled the same functions.” Id. at 920-921, citing Britt v. North
Carolina, 404 U.S. 226, 227, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971). However, the ruling
in Greene involved a direct appeal of a conviction, not post-conviction proceedings.
{¶ 25} Subsequently, the Supreme Court of Ohio upheld the dismissal of an
inmate’s mandamus action which sought to compel the clerk of courts to send the inmate
copies of pleadings in his case, as well as the trial transcript. Lacovone, 81 Ohio St. 3d
at 189-190, 690 N.E.2d 4. The inmate had alleged in the mandamus action that “these
records were necessary for him to pursue ‘post appeal and postconviction remedies,’ that
he was constitutionally entitled to the records, and that because of his incarceration, he
was ‘unable to procure these documents by appearing in person at the Courthouse and
requesting them under the Ohio Public Records Act.’ ” Id.
{¶ 26} The Supreme Court of Ohio disagreed. The court first noted that the clerk
of courts did not have a clear legal duty to transmit copies of the public records to the
inmate in prison by mail. Id. at 190. The court also distinguished Greene, because the
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inmate (Lacovone), unlike the inmate in Greene, failed to allege that he had been denied
access to a free copy of his transcript for purposes of his direct appeal. Id.. In addition,
Lacovone failed to specifically allege that he was unable to have a designee inspect and
copy the records. Id. at 190-191.
{¶ 27} In the case before us, Taylor alleged in the trial court that he had no
designee to inspect and copy records because he [Taylor] was not a resident of the State
of Ohio. Whether or not this allegation would be sufficient, Taylor’s action was not a
mandamus action seeking inspection of public records. The Supreme Court of Ohio has
indicated that “mandamus is the appropriate remedy to force compliance with the open-
records statute.” State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 426, 639 N.E.2d
83 (1994) Accordingly, the procedures discussed in Lacovone do not apply to the case
before us. Taylor had access to a free transcript for use in his direct appeal, and no
more was required. Lacovone, 81 Ohio St. 3d at 190, 690 N.E.2d 4.
{¶ 28} Furthermore, the Supreme Court of Ohio has also held that “ ‘[a] defendant
in a criminal case who has exhausted the direct appeals of her or his conviction may not
avail herself or himself of R.C. 149.43 to support a petition for postconviction relief.’ ”
State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St. 3d
343, 2006-Ohio-4574, 853 N.E.2d 657, ¶ 11, quoting Steckman at paragraph six of the
syllabus. Accord State v. Bolling, 2d Dist. Montgomery No. 22880, 2009-Ohio-4400,
¶ 13 (holding that a defendant may not seek information under R.C. 149.43 to support a
post-conviction petition). Accordingly, even if Taylor’s motion could somehow have been
construed as a mandamus action seeking public records, it was properly denied.
{¶ 29} We did note in Bolling that we were taking no position concerning whether
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persons other than a defendant might be permitted to obtain information under R.C.
149.43. Id. at fn. 1. The same observation applies here.
{¶ 30} Based on the preceding discussion, Taylor’s sole assignment of error is
overruled.
III. Conclusion
{¶ 31} Taylor’s sole assignment of error having been overruled, the judgment of
the trial court is affirmed.
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DONOVAN, P.J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Kirsten A. Brandt
Darren D. Taylor
Hon. Dennis J. Adkins