Ogle v. Hocking Cty. Sheriff

[Cite as Ogle v. Hocking Cty. Sheriff, 2012-Ohio-1768.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HOCKING COUNTY
MELANIE A. OGLE, :
:
Petitioner-Appellant, : Case No: 11AP13
:
v. :
: DECISION AND
HOCKING COUNTY SHERIFF AND : JUDGMENT ENTRY
HOCKING COUNTY PROSECUTING :
ATTORNEY, :
:
Respondents-Appellees. : Filed: April 17, 2012
APPEARANCES:
Melanie A. Ogle, Rockbridge, Ohio, pro se Appellant.
Laina Fetherolf, Hocking County Prosecutor, and William L. Archer, Jr., Hocking County
Assistant Prosecutor, Logan, Ohio, for Appellees.
Kline, J.:
{¶1} Melanie A. Ogle (hereinafter “Ogle”) appeals the judgment of the Hocking
County Court of Common Pleas, which dismissed her petition for a writ of mandamus.
On appeal, Ogle contends that the trial court erred for various reasons. Because Ogle’s
petition does not meet the requirements for mandamus relief, we disagree. As a result,
we find that the trial court did not abuse its discretion by dismissing Ogle’s petition, and
we affirm the judgment of the trial court.
I.
{¶2} Ogle was charged with several crimes before she filed her petition for a writ of
mandamus. In one Hocking County Municipal Court case, Ogle was charged with
Hocking App. No. 11AP13 2
resisting arrest, a first-degree misdemeanor. In another Hocking County Municipal
Court case, Ogle was charged with obstructing official business, a second-degree
misdemeanor. And finally, in a Hocking County Common Pleas Court case, Ogle was
charged with assault, a fourth-degree felony under R.C. 2903.12(A)&(C)(3). (Ogle’s two
misdemeanor cases were dismissed without prejudice. According to the Hocking
County Municipal Court’s website, both misdemeanor charges were to be handled with
Ogle’s felony case in the common pleas court. See Hart v. Hudson, Pickaway App. No.
10CA19, 2010-Ohio-5954, at ¶26 (stating that “a court of appeals may take judicial
notice of findings and judgments as rendered in other Ohio cases”) (internal quotation
omitted).)
{¶3} On October 22 and 25, 2010, Ogle requested several documents related to
her various criminal cases. Ogle made these requests under R.C. 149.43, Ohio’s Public
Records Act. Specifically, Ogle requested the following documents from the Hocking
County Sheriff’s Department: (1) the Investigator Notes of Sergeant Kevin Groves for
incident number 09-2855 00 (we will refer to this request as the “Investigator’s Notes”);
(2) the voluntary statement of Randale G. Thompson that was filed with Ohio Uniform
Incident Report number 09-2203 00 (we will refer to this request as the “Thompson
Statement”); and (3) Ohio Uniform Incident Report Number 09-2203 00 (we will refer to
this request as the “Incident Report”).
{¶4} Neither the Hocking County Sheriff nor the Hocking County Prosecuting
Attorney provided Ogle with the requested documents. And in an October 26, 2010
letter to Ogle’s attorney, Hocking County Assistant Prosecuting Attorney William L.
Archer (hereinafter “Archer”) explained why Ogle’s requests were denied. In part, the
Hocking App. No. 11AP13 3
letter states the following: “Your client has sent the Hocking County Sheriff’s Office two
(2) new public records requests. These requests cover documents in the criminal case.
* * * You were provided with these documents in discovery. If your client desires these
documents, then you need to provide them to her. But more importantly, you need to
advise your client that any future requests for documents must be made through
discovery requests in her pending cases.”
{¶5} On November 2, 2010, Ogle filed a petition for a writ of mandamus in the
Hocking County Court of Common Pleas. In her petition, Ogle requested “a Writ of
Mandamus, pursuant to Ohio Revised Code 149.43 C(1) [sic], to the Hocking County
Sheriff and Hocking County Prosecuting Attorney, to make available to Melanie A. Ogle
two certified copies each of the specific public records previously requested by her on
October 22 and 25, 2010[.]”
{¶6} On November 4, 2010, the Hocking County Sheriff’s Office and the Hocking
County Prosecutor’s Office filed a motion to dismiss Ogle’s petition for a writ of
mandamus.
{¶7} On December 7, 2010, Ogle filed the first amendment to her petition for a writ
of mandamus. In this amendment, Ogle requested “[c]opies of any and all
correspondence or record of correspondence with the Ohio Attorney General Bureau of
Criminal Identification and Investigation, solely in regard to referring my September 26,
2010 request for investigation of [four individuals] for perjury to the BCI as stated [in the
October 26, 2010 letter from Archer to Ogle’s attorney]:
Hocking App. No. 11AP13 4
{¶8} ‘Mrs. Ogle’s request for an investigation into alleged perjury claims was
referred to the Bureau of Criminal Investigation (BCI) Office of the Ohio Attorney
General’s Office several weeks ago.’” (Emphasis sic.)
{¶9} Hocking County Officials did not file a response to the first amendment to
Ogle’s mandamus petition.
{¶10} On December 13, 2010, Ogle filed a second amendment to her mandamus
petition. Claiming to be a victim of alleged perjury, Ogle requested “a Victim’s Rights
Pamphlet, pursuant to The Ohio Constitution [section] 1.10a, Ohio Revised Code
chapter 2930 and Ohio Revised Code 109.42.” Hocking County Officials did not file a
response to this amendment, either.
{¶11} The trial court did not hold a hearing on Ogle’s petition for a writ of
mandamus. Instead, the trial court dismissed her petition in an April 21, 2011 entry.
{¶12} Ogle appeals and asserts the following thirteen assignments of error: I. “THE
TRIAL COURT ERRED IN DISMISSING APPELLANT’S PETITION FOR WRIT OF
MANDAMUS AND AMENDMENTS TO APPELLANT’S PETITION FOR WRIT OF
MANDAMUS, TO THE APPELLANTS’ [sic] PREJUDICE.” II. “THE TRIAL COURT
ERRED IN DISREGARDING THE FACTS STATED IN APPELLANT’S PLEADINGS OF
RECORD, TO THE APPELLANTS’ [sic] PREJUDICE.” III. “THE TRIAL COURT
ERRED IN ITS DISMISSAL ENTRY, MISSTATING THAT ‘THE DOCUMENTS
SOUGHT INVOLVED A CRIMINAL INVESTIGATION WHICH LED TO AN
INDICTMENT FOR AN ALLEGED ASSAULT ON A POLICE OFFICER BEING FILED
AGAINST THE PLAINTIFF-PETITIONER’ AND ‘THE PROSECUTOR ARGUES THAT
SINCE THE CRIMINAL CASE INVOLVING THESE DOCUMENTS IS STILL PENDING’,
Hocking App. No. 11AP13 5
ACCEPTING APPELLEES’ UNSUPPORTED PLEADINGS AS FACT, AND
DISREGARDING APPELLANT’S SUPPORTING REFERENCES PRESENTED IN
PLAINTIFF’S MEMORANDUM CONTRA RESPONDENTS’ MOTION TO DISMISS
PETITION FOR WRIT OF MANDAMUS, TO THE APPELLANT’S PREJUDICE.” IV.
“THE TRIAL COURT ERRED IN FINDING THAT ‘THE PROSECUTOR FURTHER
ARGUES THAT SINCE THE CRIMINAL CASE INVOLVING THESE DOCUMENTS IS
STILL PENDING THAT IT WOULD BE UNETHICAL FOR THE PROSECUTOR TO
HAVE DIRECT CONTACT WITH THE PETITIONER’, EVEN THOUGH THE TRIAL
COURT WAS AWARE THAT PETITIONER’S PUBLIC RECORDS REQUESTED IN
HER ORIGINAL PETITION FOR WRIT OF MANDAMUS WERE NOT TO THE
PROSECUTING ATTORNEY’S OFFICE, TO THE APPELLANT’S PREJUDICE.” V.
“THE TRIAL COURT ERRED IN RELYING ON APPELLEES’ UNSUPPORTED
STATEMENTS, STATING THAT ‘THESE DOCUMENTS SOUGHT BY PETITIONER
HAVE ALREADY BEEN PROVIDED TO DEFENDANT’S RETAINED ATTORNEY
THROUGH DISCOVERY UNDER CRIMINAL RULE 16.’, [sic] TO THE APPELLANTS’
[sic] PREJUDICE.” VI. “THE TRIAL COURT ERRED IN REJECTING THE FACT THAT
EVEN IF APPELLEES COULD PROVE THAT THE DOCUMENTS REQUESTED BY
APPELLANT HAD ALREADY BEEN PROVIDED TO DEFENDANT’S RETAINED
ATTORNEY THROUGH DISCOVERY UNDER CRIMINAL RULE 16, APPELLANT
COULD NOT PERSONALLY USE ANY SUCH UNREDACTED COPIES FOR ANY
OTHER PURPOSE, TO THE APPELLANTS’ [sic] PREJUDICE.” VII. “THE TRIAL
COURT ERRED IN FINDING THAT THE DOCUMENTS SOUGHT BY THE
APPELLANT ARE EXCEPTED FROM THE PUBLIC RECORDS REQUEST UNDER
Hocking App. No. 11AP13 6
OHIO REVISED CODE 149.43(a)(i)(g) [sic], TO THE APPELLANTS’ [sic] PREJUDICE.”
VIII. “THE TRIAL COURT ERRED IN FINDING THAT ‘THE REQUESTED RECORDS
ARE TRIAL PREPARATION RECORDS, OR CONFIDENTIAL LAW ENFORCEMENT
RECORDS INVOLVING A PENDING CRIMINAL PROCEEDING’, TO THE
APPELLANTS’ [sic] PREJUDICE.” IX. “THE TRIAL COURT ERRED IN APPLYING
STATE EX REL. STECKMAN VS. JACKSON (1994) 70 OH ST 3RD, 420, 639 N.E. 2ND
83 TO APPELLANT’S PUBLIC RECORDS REQUEST TO DISMISS PETITIONER’S
PETITION FOR WRIT OF MANDAMUS, TO THE APPELLANTS’ [sic] PREJUDICE.” X.
“THE TRIAL COURT ERRED IN STATING THAT PETITIONER ‘IS NOT THE VICTIM
OF ANY CRIMINAL CHARGES PENDING AGAINST ANY OTHER PERSON’, EVEN
THOUGH JUDGE LUSE PERSONALLY WAS AWARE OF AFFIDAVITS OF CRIMINAL
CHARGES, PURSUANT TO ORC 2935.09, FILED BY APPELLANT AGAINST JASON
STACY AND KEVIN T. GROVES IN THE HOCKING COUNTY COMMON PLEAS
COURT UNDER INVESTIGATION BY SPECIAL PROSECUTOR APPOINTED BY
JUDGE THOMAS H. GERKEN, AND THAT SUCH CHARGES WERE SCHEDULED
BEFORE THE GRAND JURY FOR MAY 12, 2011, (RESCHEDULED TO AUGUST 17,
2011), TO THE APPELLANTS’ [sic] PREJUDICE.” XI. “THE TRIAL COURT ERRED
WHEN IT DID NOT HOLD AN EVIDENTIARY HEARING ON APPELLEES’ MOTION
TO DISMISS AND APPELLANT’S MEMORANDUM CONTRA TO APPELLEES’
MOTION TO DISMISS, TO APPELLANT’S PREJUDICE.” XII. “THE TRIAL COURT
ERRED WHEN IT DID NOT HEAR THE APPELLANTS’ [sic] MOTION FOR SUMMARY
JUDGMENT, TO APPELLANT’S PREJUDICE.” And, XIII. “THE TRIAL COURT
ERRED WHEN IT DID NOT HEAR THE APPELLANT’S MOTION TO VACATE
Hocking App. No. 11AP13 7
JOURNAL ENTRY (DISMISSING PETITION FOR WRIT OF MANDAMUS) AND FOR
ORAL HEARING ON PLAINTIFF’S MOTION TO VACATE AND PLAINTIFF’S
PETITION FOR WRIT OF MANDAMUS, TO APPELLANT’S PREJUDICE.”
II.
{¶13} We will address Ogle’s thirteen assignments of error together. For various
reasons, Ogle contends that the trial court should have granted her petition for a writ of
mandamus. But here, we find that Ogle’s petition does not meet the requirements for
mandamus relief.
{¶14} “‘Mandamus is the appropriate remedy to compel compliance with R.C.
149.43, Ohio’s Public Records Act.’” State ex rel. Toledo Blade Co. v. Seneca Cty. Bd.
of Commrs., 120 Ohio St.3d 372, 2008-Ohio-6253, at ¶17, quoting State ex rel.
Physicians Commt. for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108
Ohio St.3d 288, 2006-Ohio-903, at ¶6; R.C. 149.43(C). “We review a trial court’s denial
of a writ of mandamus under the abuse of discretion standard.” Athens Cty. Commrs. v.
Ohio Patrolmen’s Benevolent Association, Athens App. No. 06CA49, 2007-Ohio-6895 at
¶45, citing Truman v. Village of Clay Center, 160 Ohio App.3d 78, 83, 2005-Ohio-1385.
An abuse of discretion connotes more than a mere error of judgment; it implies that the
court’s attitude is arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219.
{¶15} “In order to be entitled to a writ for mandamus, appellant must establish (1) a
clear legal right to the requested relief, (2) a clear legal duty to perform these acts on
the part of [the appellees], and (3) the lack of a plain and adequate remedy in the
ordinary course of law.” State ex rel. Neff v. Corrigan, 75 Ohio St.3d 12, 16, 1996-Ohio-
Hocking App. No. 11AP13 8
231, citing State ex rel. Carter v. Wilkinson, 70 Ohio St.3d 65, 1994-Ohio-245.
However, “the requirement of the lack of an adequate legal remedy does not apply to
public-records cases.” State ex rel. Gaydosh v. Twinsburg, 93 Ohio St.3d 576, 580,
2001-Ohio-1613, citing State ex rel. Dist. 1199, Health Care & Soc. Serv. Union, SEIU,
AFL-CIO v. Lawrence Cty. Gen. Hosp., 83 Ohio St.3d 351, 354, 1998-Ohio-49.
Furthermore,“[w]e construe R.C. 149.43 liberally in favor of broad access and resolve
any doubt in favor of public records.” State ex rel. Toledo Blade Company at ¶17, citing
State ex rel. Carr v. Akron, 112 Ohio St.3d 351, 2006-Ohio-6714, at ¶29.
i. The Investigator’s Notes, Thompson’s Statement, and the Incident Report
{¶16} As it relates to (1) the Investigator’s Notes, (2) Thompson’s Statement, and
(3) the Incident Report, we find that Ogle does not have a clear legal right to the
requested relief. The Supreme Court of Ohio has held that “a defendant may use only
Crim.R. 16 to obtain discovery.” State ex rel. Steckman v. Jackson (1994), 70 Ohio
St.3d 420, 429. And here, (1) the Investigator’s Notes, (2) Thompson’s Statement, and
(3) the Incident Report are all part of criminal prosecutions against Ogle. Therefore,
because Ogle could have obtained these items only under Crim.R. 16, she does not
have a clear legal right to relief.
{¶17} According to Hocking County Officials, Ogle received (1) the Investigator’s
Notes, (2) Thompson’s Statement, and (3) the Incident Report through the normal
discovery process. In the proceedings below, Ogle did not dispute receiving either
Thompson’s Statement or the Incident Report. But Ogle claimed that she did not
receive the Investigator’s Notes. Regardless of whether Ogle actually received the
Investigator’s Notes, we find that mandamus relief would be improper. Again, the
Hocking App. No. 11AP13 9
Investigator’s Notes are part of a criminal prosecution against Ogle. Therefore,
assuming that she received the Investigator’s Notes through discovery, Ogle does not
have a clear legal right to obtain them again in a mandamus action. See State ex rel.
Steckman at 429. Now, let us assume that Ogle never received the Investigator’s Notes
during the criminal proceedings. If the Investigator’s Notes are subject to discovery, she
may use only Crim.R. 16 to obtain them. And if the Investigator’s Notes are not subject
to discovery, they are “not subject to release as a public record pursuant to R.C. 149.43
and [are] specifically exempt from release as a trial preparation record in accordance
with R.C. 149.43(A)(4).” State ex rel. Steckman at paragraph three of the syllabus.
Therefore, regardless of whether Ogle actually received the Investigator’s Notes, she
does not have a clear legal right to the requested relief.
{¶18} Accordingly, as it relates to (1) the Investigator’s Notes, (2) Thompson’s
Statement, and (3) the Incident Report, we find that Ogle’s petition does not meet the
requirements for mandamus relief.
ii. Correspondence Related to the Perjury Investigation
{¶19} Regarding any correspondence related to the perjury investigation, we find
that Ogle does not have a clear legal right to the requested relief. Under R.C.
149.43(A)(1)(g), “‘Public record’ does not mean * * * [t]rial preparation records[.]” The
Revised Code defines a “trial preparation record” as “any record that contains
information that is specifically compiled in reasonable anticipation of, or in defense of, a
civil or criminal action or proceeding, including the independent thought processes and
personal trial preparation of an attorney.” R.C. 149.43(A)(4). In his October 26, 2010
letter to Ogle’s attorney, Archer stated that “Mrs. Ogle’s request for an investigation into
Hocking App. No. 11AP13 10
alleged perjury claims was referred to the Bureau of Criminal Investigation (BCI) Office
of the Ohio Attorney General’s Office several weeks ago.” (Emphasis removed.) As a
result, any correspondence between Hocking County Officials and BCI would
necessarily contain information that was specifically compiled in reasonable anticipation
of a perjury prosecution. Therefore, this correspondence is not subject to disclosure
under the Ohio Public Records Act.
{¶20} Accordingly, as it relates to the requested correspondence, we find that
Ogle’s petition does not meet the requirements for mandamus relief.
iii. The Victims’ Rights Pamphlet
{¶21} As it relates to the Victims’ Rights Pamphlet, we find that Ogle does not have
a clear legal right to the requested relief. Here, Ogle has not demonstrated that she is
the “victim” of any crime. Ogle claims to be the victim of perjury. But as far as we can
tell, perjury charges have not been filed against the individuals named in the first
amendment to Ogle’s mandamus petition. See R.C. 2930.01(H). Therefore, Ogle
cannot demonstrate that she has a clear legal right to the Victims’ Rights Pamphlet.
See R.C. 109.42(B).
{¶22} Accordingly, as it relates to the Victims’ Rights Pamphlet, we find that Ogle’s
petition does not meet the requirements for mandamus relief.
III.
{¶23} Because Ogle’s petition does not meet the requirements for mandamus relief,
we find that denying Ogle’s petition was not an abuse of the trial court’s discretion. As a
result, we need not address all of Ogle’s arguments on appeal. Our mandamus findings
have rendered these additional arguments moot. See App.R. 12(A)(1)(c).
Hocking App. No. 11AP13 11
{¶24} Accordingly, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
Hocking App. No. 11AP13 12
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED. Appellant shall pay the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Hocking County Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure. Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
McFarland, J: Concurs in Judgment Only as to Parts I and III.
Dissents as to Part II.
For the Court
BY:_____________________________
Roger L. Kline, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.