State v. Harris , 2023 Ohio 3705 ( 2023 )

[Cite as State v. Harris, 2023-Ohio-3705.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. CT2023-0040
:
TERRY HARRIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County
Court of Common Pleas, Case No.
CR2017-0183
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: October 6, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RONALD L. WELCH TERRY HARRIS, PRO SE
MUSKINGUM CO. PROSECUTOR Inmate No. A740-879
TAYLOR P. BENNINGTON 15708 McConnelsville Road
27 North 5th St., P.O. Box 189 Caldwell, OH 43724
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2023-0040 2
Delaney, J.
{¶1} Appellant Terry Harris appeals from the May 31, 2023 “Entry Regarding
Motion to Discover and Transcripts” of the Muskingum County Court of Common Pleas.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions and
sentence is not necessary to our resolution of this appeal.
{¶3} Appellant entered guilty pleas to multiple counts of possession and
trafficking of narcotics in 2017 and was sentenced to an aggregate prison term of 19
years. We affirmed appellant’s convictions and sentence upon direct appeal. State v.
Harris, 5th Dist. Muskingum No. CT2018-0005, 2018-Ohio-2257.
{¶4} On May 24, 2023, appellant filed a pro se “Motion for Discovery and
Transcripts” and the trial court overruled the motion by judgment entry dated May 31,
2023.
{¶5} Appellant now appeals from the trial court’s entry of May 31, 2023.
{¶6} Appellant raises one assignment of error:
ASSIGNMENT OF ERROR
{¶7} “THE TRIAL COURT ERRED WHEN IT DENIED HARRIS’ MOTION FOR
DISCOVERY AND TRANSCRIPTS. SUCH A DENIAL IS AN ABUSE OF DISCRETION
BECAUSE IT DENIES HARRIS A MEANINGFUL OPPORTUNITY TO REVIEW HIS
CASE FOR FUTURE LEGAL PROCEEDINGS.”
Muskingum County, Case No. CT2023-0040 3
ANALYSIS
{¶8} In his sole assignment of error, appellant argues the trial court erred in
overruling his motion for discovery and transcripts which he might use in postconviction
proceedings. We disagree.
{¶9} Appellant notes he suffers from significant medical issues in prison which
have required multiple hospitalizations. During these periods, case documents in his
possession have been lost or destroyed. His appellate brief includes communication from
defense trial counsel noting counsel’s trial file was destroyed after two years and no
longer exists, but advising appellant might be able to obtain discovery materials from
appellee. Appellant therefore moved the trial court for a discovery order and request for
transcripts.
{¶10} While we are sympathetic to appellant’s plight, the trial court is without
authority to order discovery in the instant case. Ohio law is clear that discovery is not
available in the initial stages of a postconviction proceeding. State v. Dean, 5th Dist. No.
01CA-A-10-055, 149 Ohio App.3d 93, 2002-Ohio-4203, 776 N.E.2d 116, ¶ 10, citing State
v. Mason, 5th Dist. Ashland No. 01COA01423, 2001 WL 1913877 (Oct. 03, 2001), internal
citation omitted. There is no provision for conducting discovery in the post-conviction
process. State v. Curtis, 5th Dist. Muskingum No. CT2018-0014, 2018-Ohio-2822, ¶ 42,
citing State ex Rel. Love v. Cuyahoga County Prosecutor's Office, 86 Ohio St.3d 279,
281, 714 N.E.2d 905, 1999-Ohio-102. The power to conduct and compel discovery in
post-conviction is not included within a trial court's statutorily-defined authority. Id.{¶11} The trial court also properly overruled appellant’s motion for a second
transcript of the proceedings. We note the trial court granted appellant's request for
Muskingum County, Case No. CT2023-0040 4
preparation of a transcript at state expense in his direct appeal. Judgment Entry, Feb. 2,
2018. “[T]he duty to provide a transcript at State expense extends only to providing one
transcript for the entire judicial system. It does not extend to sending the transcript to the
indigent person in prison.” State v. Hewitt, 5th Dist. Stark No. 2016CA00067, 2016-Ohio-
5762, ¶ 17, appeal not allowed, 148 Ohio St.3d 1412, 2017-Ohio-573, 69 N.E.3d 751,
citing State ex rel. Mramor v. Court of Common Pleas, 8th Dist. Cuyahoga No. 73406,
1997 WL 797796, *1 (Dec. 31, 1997).
{¶12} Appellant argues he needs the discovery materials and transcript to
possibly file an application for postconviction relief. Appellant has not yet filed an
application to reopen or petition for post-conviction relief, and has already been provided
with one transcript in his direct appeal. Accordingly, appellant has no right to a second
transcript. Hewitt, supra, 2016-Ohio-5762, ¶ 18, citing State ex rel. Murr v. Thierry, 34
Ohio St.3d 45, 45–46, 517 N.E.2d 226, 226–27 (1987). See, State v. Brown, 5th Dist.
Licking No. 01CA49, 2001 WL 1772934, *1–2 (June 21, 2001) [appellant entitled to one
copy of transcript which was provided in direct appeal]; State v. Kale, 5th Dist. Licking No.
98CA49, 1999 WL 3974, *1–2 (Dec. 7, 1998) [appellant not entitled to second copy of
transcript at public expense for preparation of appeal to Supreme Court, post-conviction
relief petition, or application to reopen because he was already afforded a transcript in
direct appeal].
{¶13} The trial court did not err in overruling appellant’s motion for transcripts and
discovery, and the sole assignment of error is overruled.
Muskingum County, Case No. CT2023-0040 5
CONCLUSION
{¶14} The sole assignment of error is overruled and the judgment of the
Muskingum County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, P.J. and
Baldwin, J., concur.