State v. Wilson

[Cite as State v. Wilson, 2011-Ohio-4195.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 23734
vs. : T.C. CASE NO. 04CR2632
ANTHONY L. WILSON : (Criminal Appeal from
Common Pleas Court
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 19th day of August, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Timothy J. Cole, Asst. Pros.
Attorney, Atty. Reg. No. 0084117, P.O. Box 972, Dayton, OH 45422
Attorney for Plaintiff-Appellee
Anthony L. Wilson, #567-649, P.O. Box 69, London, OH 43140
Defendant-Appellant, Pro Se
. . . . . . . . .
GRADY, P.J.:
On October 7, 2009, the common pleas court denied Defendant
Anthony Wilson’s request made pursuant to the Ohio Public Records
Act for copies of certain documents related to Defendant’s
conviction in common pleas court case number 2004CR02632. Wilson
was then incarcerated pursuant to a criminal conviction in another
2
case. The court found that Wilson failed to demonstrate “that
the information sought in the public record is necessary to support
what appears to be a justiciable controversy.”
Wilson filed an application for reconsideration. Wilson
averred that the records he requested are needed “for exhausting
executive remedies (clemency),” adding:
“Those documents are required to be attached to such petition
to validate petitioner criminal history in seeking clemency relief.
Public records needed for this petition consist of; Police Report,
Indictment, and Judgment Entries, etc.”
The trial court denied Wilson’s application for again failing
to show “how his claim of a clemency application is justiciable.”
Wilson appeals.
ASSIGNMENT OF ERROR
“TRIAL COURT COMMITTED PREJUDICE ERROR BY DENYING DEFENDANT
ACCESS TO INSPECT AND COPY THE PUBLIC RECORDS IN VIOLATION OF OHIO
AND UNITED STATES CONSTITUTION AND PURSUANT TO O.R.C.
149.43(B)(8).”
R.C. 149.43(A)(1) defines a public record to include “records
kept by any public office.” R.C. 149.43(B)(1) provides that,
“subject to division (B)(8) of this section, upon request, a public
officer or person responsible for public records shall make copies
of the requested public record available at cost and within a
3
reasonable period of time.”
R.C. 149.43(B)(8) states:
“A public office or person responsible for public records
is not required to permit a person who is incarcerated pursuant
to a criminal conviction or a juvenile adjudication to inspect
or to obtain a copy of any public record concerning a criminal
investigation or prosecution or concerning what would be a criminal
investigation or prosecution if the subject of the investigation
or prosecution were an adult, unless the request to inspect or
to obtain a copy of the record is for the purpose of acquiring
information that is subject to release as a public record under
this section and the judge who imposed the sentence or made the
adjudication with respect to the person, or the judge’s successor
in office, finds that the information sought in the public record
is necessary to support what appears to be a justiciable claim
of the person.”
A “justiciable claim” is a claim properly brought before a
court of justice for relief. Clemency is the power to grant
reprieves, commutations, and pardons for crimes and offenses.
Section 11, Article II of the Ohio Constitution confers that power
on the governor. That grant of power is exclusive. The power
may not be exercised by a court of justice. Therefore, an
application for clemency is not “a justiciable claim” for purposes
4
of R.C. 149.43(B)(8). The trial court was not required to provide
copies of the records Wilson requested.1
We are troubled by the “justiciable claim” exception in R.C.
149.43(B)(8) we are required by the express terms of that section
to enforce. Section 11, Article II confers power on the governor
to grant reprieves, commutations, and pardons for all crimes and
offenses, “ . . .subject, however, to such regulations, as to the
manner of applying for pardons as may be prescribed by law.” R.C.
2967.07 provides that applications for clemency shall be presented
in writing to the adult parole authority. The parole board has
issued Instructions and Guidelines 2 that require applicants to
provide copies of indictments and judgments of conviction for each
crime for which clemency is requested, adding: “These documents
can be obtained from the sentencing county and may require payment
of a copying fee.” We urge the General Assembly to consider an
exception to the justiciable controversy requirement in R.C.
149.43(B)(8) to permit a convicted defendant who wishes to apply
for clemency to obtain the needed documents.
The assignment of error is overruled. The judgment from which
the appeal is taken will be affirmed.
1
To our knowledge, neither the court nor its clerk
maintains or is otherwise responsible to keep police reports.
2
See WWW.drc.ohio.gov/web/Forms/DRC3068
instructions.pdf
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FAIN, J. And HALL, J., concur.
Copies mailed to:
Timothy J. Cole, Esq.
Anthony L. Wilson
Hon. Connie S. Price