State v. Battle , 2013 Ohio 1759 ( 2013 )

[Cite as State v. Battle, 2013-Ohio-1759.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.
-vs-
BILLY J. BATTLE Case No. 12AP008
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Morgan County Common
Pleas Court, Case No. 07CR0064
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 26, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK J. HOWDYSHELL BILLY J. BATTLE, PRO SE
Prosecuting Attorney S.C.I. Inmate #A617-868
19 East Main Street 5900 B.I.S. Road
McConnelsville, Ohio 43756 Lancaster, Ohio 43130
Morgan County, Case No. 12AP008 2
Hoffman, P.J.
{¶1} Defendant-appellant Billy J. Battle appeals the August 9, 2012 Journal
Entry entered by the Morgan County Court of Common Pleas. Plaintiff-appellee is the
state of Ohio.
STATEMENT OF THE CASE1
{¶2} On appeal from his original conviction, this Court affirmed Appellant’s
conviction in State v. Battle, Morgan No. 09 AP 001, 2010-Ohio-4327. Appellant filed
an application for delayed appeal on April 11, 2012, submitting in conjunction therewith
a transcript of a motions hearing conducted on August 28, 2008. Subsequently, on May
18, 2012, Appellant filed an application for reopening. This Court denied delayed
appeal on April 19, 2012, and denied the application for reopening via Judgment Entry
of June 12, 2012.
{¶3} On July 13, 2012, Appellant filed a motion in the trial court to certify the
previously omitted record of the August 26, 2008 hearing, pursuant to R.C. 2301.23,
with the trial court herein. On July 23, 2012, the State filed a motion contra.
{¶4} Via Journal Entry of August 9, 2012, the trial court denied Appellant's
motion.
{¶5} Appellant now appeals, assigning as error:
{¶6} “I. THE TRIAL COURT DIRECTLY VIOLATED O.R.C. §2301.23 WHEN IT
STATED TO APPELLANT’S COUNSEL THAT NO HEARING TOOK PLACE ON
AUGUST 26, 2008. NO RECORD OF A HEARING EXISISTED [SIC] FOR AUGUST
1
A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Morgan County, Case No. 12AP008 3
26, 2008. THUS, NO TRANSCRIPT COULD BE MADE FOR A HEARING FOR
AUGUST 26, 2008.
{¶7} “II. THE TRIAL COURT DIRECTLY VIOLATED O.R.C. §149.43 WHEN IT
REFUSED TO TURN OVER PUBLIC RECORDS THAT WERE REQUESTED, IN
WRITING, FOR A HEARING THAT TOOK PLACE ON AUGUST 26, 2008.
{¶8} “III. A WRIT OF MANDAMUS IS THE SOLE APPROPRIATE REMEDY
FOR RECORDS VIOLATIONS MADE BY THE TRIAL COURT.
{¶9} “IV. THE RECORD OF THE AUGUST 26, 2008 HEARING THAT
SUPPORTS AND CONFERMS [SIC] TWO (2) ASSIGNMENTS OF ERRORS [SIC]
FROM MY APPELLANT’S BRIEF FOR CASE NO. 09AP0001, MY INITIAL APPEAL AS
OF RIGHT, ALSO BRINGS ONE (1) NEW ERROR MADE AT TRIAL LEVEL TO
LIGHT.”
I, II, III, & IV.
{¶10} Initially, we note, Appellant's merit brief is entitled "Mandamus Complaint;
Merit Brief of Relator." Appellant filed with this Court a Pro Se Motion of Billy J. Battle,
Relator, Appellant, for Leave to Amend His Mandamus Complaint/Appeal. This Court
via Judgment Entry of February 4, 2013, denied Appellant's motion finding Appellant
was attempting to combine two actions: an appeal and a complaint for a writ of
mandamus. This Court directed Appellant to comply with the local and civil rules for
filing a complaint with appropriate instructions to the clerk, should Appellant desire to
initiate an original action separate from the within appeal. Accordingly, this Court will
address only those arguments relative to the appeal properly before this Court.
Morgan County, Case No. 12AP008 4
{¶11} Appellant asserts the trial court erred in failing to provide the recording or
now certify a transcription of the recording of the August 26, 2008 hearing for his
appeal.
{¶12} Appellant's only conceivable purpose in filing the motion with the trial court
is for use in reopening his direct appeal. As set forth in the Statement of the Case
above, this Court denied delayed appeal on April 19, 2012 and denied Appellant's
motion for reopening via Judgment Entry of June 12, 2012. Accordingly, we find no
error in the trial court's denial of Appellant's motion.
{¶13} Appellant's assigned errors are overruled.
{¶14} The August 9, 2012 Journal Entry of the Morgan County Court of Common
Pleas is affirmed.
By: Hoffman, P.J.
Farmer, J. and
Delaney, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
Morgan County, Case No. 12AP008 5
IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BILLY J. BATTLE :
:
Defendant-Appellant : Case No. 12AP008
For the reason stated in our accompanying Opinion, the August 9, 2012 Journal
Entry of the Morgan County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY