State v. Curtis , 2023 Ohio 953 ( 2023 )

[Cite as State v. Curtis, 2023-Ohio-953.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2022-0071
RODNEY A. CURTIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2015-
0117
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 23, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RON WELCH RODNEY A. CURTIS
Prosecuting Attorney Inmate No. A721-152
Muskingum County, Ohio Noble Correctional Institute
15708 McConnelsville Road
JOHN CONNOR DEVER Caldwell, Ohio 43724
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth Street
P.O. Box 189
Zanesville, Ohio 43702
Muskingum County, Case No. CT2022-0071 2
Hoffman, J.
{¶1} Defendant-appellant Rodney A. Curtis appeals the judgment entered by the
Muskingum County Common Pleas Court overruling his motion to inspect the
presentence investigation report (hereinafter “PSI”) filed in his case. Plaintiff-appellee is
the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 20, 2014, Detective Welker of the Muskingum County Sheriff's
Office filed an affidavit to receive a search warrant allowing the Sheriff's Office to seize
Appellant’s cell phone. The affidavit cites to allegations from a minor female resident at
Avondale Youth Center, where Appellant worked as a Child Care worker. The victim
alleged she had sexual contact with Appellant in numerous locations, and she had taken
nude pictures of herself on Appellant’s cell phone. Detective Welker talked to Appellant
about these allegations and asked to see the cell phone. Appellant declined to show
Detective Welker his cell phone, but admitted the victim sometimes took his cell phone
and took pictures of herself with the phone.
{¶3} After retrieving the phone, Detective Welker filed for another search warrant
on August 21, 2014, to be able to search the phone's data for evidence of the criminal
allegations. The Sheriff's Office searched the phone on August 22, 2014, but was unable
to download the data because their cable was not compatible with the newer phone. The
Sheriff's Office continued and completed downloading the data on September 8, 2014.
{¶4} Appellant was indicted on March 18, 2015, on 63 counts of Illegal Use of
Minor in Nudity Oriented Material or Performance, each a felony of the second degree,
and 11 counts of Sexual Battery, each a felony of the third degree. He retained counsel
to represent him.
Muskingum County, Case No. CT2022-0071 3
{¶5} Appellant filed a motion to suppress the evidence. A hearing was held, and
the trial court denied the motion to suppress. Appellant then entered a negotiated plea
of guilty to counts 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 64, 68, and 74. In exchange for his plea,
the State dismissed the remaining counts. Appellant was sentenced to an aggregate
prison sentence of eleven years. Appellant did not file a timely direct appeal, but he
attempted to file a delayed appeal on November 23, 2016. This Court denied Appellant’s
motion to file a delayed appeal by Judgment Entry filed January 3, 2017.
{¶6} On November 23, 2016, Appellant also filed a petition for post-conviction
relief in the trial court. On February 13, 2018, the trial court denied the petition. This Court
affirmed. State v. Curtis, 5th Dist. Muskingum No. CT2018-0014, 2018-Ohio-2822.
Appellant filed a second petition for post-conviction relief on November 8, 2018. The
petition was denied by the trial court, and this Court once again affirmed. State v. Curtis,
5th Dist. Muskingum No. CT2019-0001, 2019-Ohio-2587.
{¶7} On July 5, 2022, Appellant filed a motion to inspect the PSI filed in his case.
Appellant argued he did not receive a copy prior to sentencing, and was therefore unable
to object to any potential inaccuracies in the report which might have affected his
sentence. The trial court denied the request on July 18, 2022.
{¶8} Appellant filed an untimely notice of appeal from the July 18, 2022
judgment, and a motion for delayed appeal. The State failed to respond to the motion,
and on October 25, 2022, this Court granted the motion for delayed appeal. It is from the
July 18, 2022 judgment of the trial court Appellant prosecutes his appeal, assigning as
error:
Muskingum County, Case No. CT2022-0071 4
I. APPELLANT’S SENTENCES SHOULD HAVE BEEN RUN
CONCURRENTLY RATHER THAN CONSECUTIVELY.
II. COUNSEL WAS INEFFECTIVE FOR FAILING TO CONSULT
WITH CURTIS CONCERNING HIS RIGHT AND/OR DESIRE TO FILE A
NOTICE OF DIRECT APPEAL. COUNSEL WAS FURTHER
INEFFECTIVE FOR FAILING TO FILE A NOTICE OF DIRECT APPEAL.
III. COUNSEL WAS INEFFECTIVE FOR FAILING TO INFORM
APPELLANT OF THE STATE’S OFFER OF A SEVEN-YEAR JOINT
RECOMMENDATION.
IV. APPELLANT WAS NEVER PROVIDED THE OPPORTUNITY
TO REVIEW AND THEN CHALLENGE THE PRE-SENTENCE
INVESTIGATION REPORT.
V. DISPARITY IN SENTENCING IN SIMILAR CASES
DEMONSTRATES RACIAL AND GENDER BIAS EXHIBITED BY THE
TRIAL JUDGE AND PROSECUTOR AGAINST APPELLANT AT HIS
SENTENCING.
VI. THE WARRANTLESS SEARCH OF APPELLANT’S CELL
PHONE AFTER THE INITIAL WARRANT EXPIRED, AND NO
EXTENSIONS WERE REQUESTED, GRANTED, OR ISSUED, WAS
ILLEGAL. THUS, THE TRIAL COURT ABUSED ITS DISCRETION BY
DENYING APPELLANT’S MOTION TO SUPPRESS.
VII. THE STATE RELIED ON IMPLAUSIBLE OR IMPOSSIBLE
EVIDENCE TO JUSTIFY FORTY-EIGHT (48) COUNTS OF ILLEGAL USE
Muskingum County, Case No. CT2022-0071 5
OF A MINOR IN NUDITY-ORIENTED MATERIAL OR PERFORMANCE
(O.R.C. 2907.323).
VIII. THE STATE WITHHELD FAVORABLE EXCULPATORY
INFORMATION FROM THE DEFENSE.
I., II., III., V., VI., VII., VIII.
{¶9} This Court granted delayed appeal only of the trial court’s entry filed July
18, 2022, which overruled Appellant’s motion to inspect the PSI. Appellant’s first, second,
third, fifth, sixth, seventh, and eighth assignments of error all address issues pertinent to
the original judgment of conviction and sentencing, and do not claim error in the order
appealed from in this case. We find the issues raised by these assignments of error are
not properly before this Court at this time.
{¶10} Appellant’s first, second, third, fifth, sixth, seventh, and eighth assignments
of error are overruled.
IV.
{¶11} In his fourth assignment of error, Appellant argues the trial court erred in
denying his request to inspect his PSI.
{¶12} Appellant’s motion to review the report was filed on July 5, 2022, more than
six years after he was sentenced on November 23, 2015.
{¶13} R.C. 2953.03 provides in pertinent part:
(B)(1) If a presentence investigation report is prepared pursuant to
this section, section 2947.06 of the Revised Code, or Criminal Rule 32.2,
Muskingum County, Case No. CT2022-0071 6
the court, at a reasonable time before imposing sentence, shall permit the
defendant or the defendant's counsel to read the report, except that the
court shall not permit the defendant or the defendant's counsel to read any
of the following:
(a) Any recommendation as to sentence;
(b) Any diagnostic opinions that, if disclosed, the court believes might
seriously disrupt a program of rehabilitation for the defendant;
(c) Any sources of information obtained upon a promise of
confidentiality;
(d) Any other information that, if disclosed, the court believes might
result in physical harm or some other type of harm to the defendant or to
any other person.
(2) Prior to sentencing, the court shall permit the defendant and the
defendant's counsel to comment on the presentence investigation report
and, in its discretion, may permit the defendant and the defendant's counsel
to introduce testimony or other information that relates to any alleged factual
inaccuracy contained in the report.
(C) A court's decision as to the content of a summary under division
(B)(3) of this section or as to the withholding of information under division
(B)(1)(a), (b), (c), or (d) of this section shall be considered to be within the
discretion of the court. No appeal can be taken from either of those
decisions, and neither of those decisions shall be the basis for a reversal of
the sentence imposed.
Muskingum County, Case No. CT2022-0071 7
(D)(1) The contents of a presentence investigation report prepared
pursuant to this section, section 2947.06 of the Revised Code, or Criminal
Rule 32.2 and the contents of any written or oral summary of a presentence
investigation report or of a part of a presentence investigation report
described in division (B)(3) of this section are confidential information and
are not a public record. The court, an appellate court, authorized probation
officers, investigators, and court personnel, the defendant, the defendant's
counsel, the prosecutor who is handling the prosecution of the case against
the defendant, and authorized personnel of an institution to which the
defendant is committed may inspect, receive copies of, retain copies of, and
use a presentence investigation report or a written or oral summary of a
presentence investigation only for the purposes of or only as authorized by
Criminal Rule 32.2 or this section, division (F)(1) of section 2953.08, section
2947.06, or another section of the Revised Code.
{¶14} Pursuant to R.C. 2951.03(D)(1), there are three instances in which the
contents of a presentence investigation report can be disclosed: (1) pursuant to R.C.
2951.03(B), to the defendant or his counsel prior to the imposition of his sentence; (2)
pursuant to R.C. 2947.06, to the trial court when it is making its sentencing determination;
and (3) pursuant to R.C. 2953.08(F), to the appellate court when it is reviewing the
sentencing determination on appeal. State ex rel. Sharpless v. Gierke, 137 Ohio App.3d
821, 825, 739 N.E.2d 1231, 1233 (11th Dist. 2000). If each of these three instances have
already occurred in a criminal case, the general rule concerning the confidentiality of the
Muskingum County, Case No. CT2022-0071 8
report prohibits the disclosure of the report. Id. A criminal defendant therefore has no
legal right to obtain and review a copy of his presentence investigation report after he has
been sentenced in a criminal action. Id. at 1233-34.
{¶15} Because Appellant filed his motion to review the report after he had been
sentenced, Appellant had no legal right to review the report, and we find the trial court
did not err in denying his request. The fourth assignment of error is overruled.
{¶16} The judgment of the Muskingum County Common Pleas Court is affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur