State v. McCain , 2018 Ohio 2425 ( 2018 )

[Cite as State v. McCain, 2018-Ohio-2425.]
COURT OF APPEALS
MONTGOMERY COUNTY, OHIO
SECOND 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- : (Visiting Judges Sitting by
: Supreme Court Assignment)
:
MICHAEL D. MCCAIN : Case No. 27533
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Montgomery County
Court of Common Pleas, case no. 04-
CR-1865
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 22, 2018
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MATHIAS H. HECK, JR. MICHAEL D. MCCAIN, PRO SE
PROSECUTING ATTORNEY #A479429
ANDREW T. FRENCH Mansfield Correctional Inst.
P.O. Box 972 P.O. Box 788
301 West Third Street Mansfield, OH 44901
Dayton, OH 45422
Montgomery County, Case No. 27533 2
Delaney, J.
{¶1} Appellant Michael D. McCain appeals from the March 15, 2017 “Decision,
Order and Entry Overruling Request for Records” of the Montgomery 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 is not
necessary for our resolution of this appeal. This matter has a lengthy procedural history.
{¶3} This case arose in 2004 when appellant entered pleas of guilty to felony
murder and aggravated robbery, and was sentenced to an aggregate prison term of 15
years to life. Appellant did not appeal directly from his convictions and sentence.
{¶4} In 2013, appellant began filing a number of post-conviction motions, all of
which were overruled, and the decisions of the trial court were affirmed in subsequent
appeals. See, State v. McCain, 2nd Dist. Montgomery No. 26020, 2014-Ohio-2819
[McCain I, untimely petition for post conviction relief]; State v. McCain, 2nd Dist.
Montgomery No. 26356, 2015-Ohio-449, motion for delayed appeal denied, 143 Ohio
St.3d 1415, 2015-Ohio-2911, 34 N.E.3d 929 [McCain II, withdrawal of guilty pleas on
basis of alleged “judicial bias” and improper warning re post release control]; State v.
McCain, 2nd Dist. Montgomery No.27195, 2017-Ohio-7518, appeal not allowed, 151 Ohio
St.3d 1514, 2018-Ohio-365, 90 N.E.3d 952 [McCain III, 2016 motions to withdraw pleas
and petition for post conviction relief].
{¶5} On February 27, 2017, appellant filed an “Official request from Michael D.
McCain Sr., for the Public Records and Court Documents in the archives or records
specialist office for good reason given” (sic throughout). Appellant argued, e.g., he
Montgomery County, Case No. 27533 3
needed the records for the pending appeal in McCain III. The trial court overruled
appellant’s request on March 15, 2017, finding:
* * * *.
It appears from the record that Defendant seeks certain
records for purposes of his pending appeal in [McCain III]. The
record in [McCain III] was certified by the Clerk of Courts on
November 9, 2016. As such, the court finds that matters relating to
the record are the subject of the Appellate Court’s jurisdiction, and
as such, the court OVERRULES the pending Motion filed by
Defendant.
* * * *.
{¶6} Appellant then filed a motion before this Court on April 10, 2017, during the
pendency of McCain III, requesting the same records, and we granted appellant’s motion,
directing that he “must make his request [for records] to the clerk of courts and must remit
to the clerk any costs for those copies.”
{¶7} Appellant then filed another motion in McCain III requesting an order to
compel the trial court to provide copies of the records, which we denied.
{¶8} He also appealed from the trial court’s decision of March 15, 2017, the
instant appeal.
{¶9} In the meantime, in 2016 appellant commenced an action for a writ of
mandamus in this Court against 1) the judge of the Montgomery Court of Common Pleas
before whom he was arraigned, and 2) the judge of the Montgomery County Court of
Common pleas before whom he entered his guilty pleas. Both judges filed separate
Montgomery County, Case No. 27533 4
motions to dismiss; we dismissed the case in its entirety, and appellant appealed to the
Ohio Supreme Court.
{¶10} In McCain v. Huffman, 151 Ohio St. 3d 611, 2017-Ohio-9241, 91 N.E.3d
749, the Court overruled a number of appellant’s arguments and stated the following
regarding his requests for records of his arraignment:
Regarding [appellant’s] request for records of his arraignment,
R.C. 149.43(B)(8) provides that there is no duty to provide public
records requested by an inmate unless “the judge who imposed the
sentence * * *, 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.” [Appellant] seeks the
requested records in order to prove that he tried to plead guilty at his
arraignment and to disprove Judge Froelich's finding that [appellant]
failed to state a plea. But the outcome of this dispute is of no legal
consequence: even if he proved his version of events, [appellant]
would not be entitled to mandamus relief against Judge Huffman.
Therefore, [appellant’s] request for records of his arraignment was
correctly denied.
McCain v. Huffman, 151 Ohio St. 3d 611, 2017-Ohio-9241, 91
N.E.3d 749, ¶ 12.
{¶11} We turn now to the instant appeal from the trial court’s decision of March
15, 2017.
{¶12} Appellant raises one assignment of error:
Montgomery County, Case No. 27533 5
ASSIGNMENT OF ERROR
{¶13} “THE TRIAL COURT AND SPECIAL PANEL HAS DENIED, HINDERED,
AND PREVENTED ACCESS TO THE COURT RECORDS, AS PUBLIC RECORDS, AND
EVIDENCE TO PROVE HIS CLAIM, THAT HE NOT ONLY PLEAD GUILTY AT HIS
ARRAIGNMENT, BUT WAS WITHOUT HIS ALREADY APPOINTED COUNSEL.
VIOLATING HIS STATUTORY, AND CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND EQUAL PROTECTION OF THE LAW, OF BOTH THE FEDERAL AND STATE OF
OHIO. PURSUANT TO O.R.C. 149.43, AND OHIO SUPERINTENDENCE RULE
47(A)(1) [sic throughout].”
ANALYSIS
{¶14} Appellant argues, again, that he is entitled to the records of his arraignment.
We disagree.
{¶15} First, as we have already advised appellant, he must request records from
the clerk of court and “must remit to the clerk any costs for those copies.” Ohio Sup.
R. 45(B) states:
(1) A court or clerk of court shall make a court record available
by direct access, promptly acknowledge any person's request for
direct access, and respond to the request within a reasonable
amount of time.
(2) Except for a request for bulk distribution pursuant to Sup.
R. 46, a court or clerk of court shall permit a requestor to have a court
record duplicated upon paper, upon the same medium upon which
the court or clerk keeps it, or upon any other medium the court or
Montgomery County, Case No. 27533 6
clerk determines it can be reasonably duplicated as an integral part
of its normal operations.
(3) A court or clerk of court shall mail, transmit, or deliver
copies of a requested court record to the requestor within a
reasonable time from the request, provided the court or clerk may
adopt a policy allowing it to limit the number of court records it will
mail, transmit, or deliver per month, unless the requestor certifies in
writing that the requestor does not intend to use or forward the
records, or the information contained in them, for commercial
purposes. For purposes of this division, “commercial” shall be
narrowly construed and does not include news reporting, the
gathering of information to assist citizens in the understanding of
court activities, or nonprofit educational research.
(4) A court or clerk of court may charge its actual costs
incurred in responding to a request for direct access to a court
record. The court or clerk may require a deposit of the estimated
actual costs.
{¶16} Pursuant to the Rules of Superintendence, therefore, appellant may request
the records but he must pay the clerk’s actual costs of preparing them.
{¶17} Appellant also argues, though, that he is entitled to the records pursuant to
the Public Records Act, R.C. 149.43. The pertinent portion of that Act, section (B)(8),
provides:
Montgomery County, Case No. 27533 7
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.
{¶18} Appellant has failed to present any justiciable claims for which the
requested records would provide support. Moreover, the Ohio Supreme Court has
already reviewed appellant’s claims and determined that the request for records was
properly denied. McCain v. Huffman, supra, 2017-Ohio-9241 at ¶ 12. Finally, any
purported claim related to the underlying criminal case has been raised and rejected in
appellant’s series of appeals listed supra.
{¶19} We conclude appellant’s request for records dated February 27, 2017 was
properly overruled.
{¶20} Appellant’s sole assignment of error is denied.
Montgomery County, Case No. 27533 8
CONCLUSION
{¶21} Appellant’s sole assignment of error is overruled and the judgment of the
Montgomery County Court of Common Pleas is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. CRAIG R. BALDWIN