State v. Vasquez , 2021 Ohio 3453 ( 2021 )

[Cite as State v. Vasquez, 2021-Ohio-3453.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29858
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
FRANCISCO VASQUEZ COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 18 03 0989
DECISION AND JOURNAL ENTRY
Dated: September 30, 2021
CARR, Judge.
{¶1} Defendant-Appellant Francisco Vasquez appeals from the judgment of the
Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} Following the sexual assault of his biological daughter, Vasquez “was indicted on
seven counts of rape, seven counts of sexual battery, and seven counts of gross sexual
imposition. He eventually pled guilty to five counts of sexual battery, all amended down to
felonies of the third degree, and the remaining counts were dismissed. The trial court ordered a
pre-sentence investigation report (“PSI”), victim impact statement, and psychosexual evaluation
to be prepared. The court later sentenced [] Vasquez to five years in prison for each of the five
counts and ordered those sentences to be served consecutively to each other, for a grand total of
twenty-five years in prison.” State v. Vasquez, 9th Dist. Summit No. 29422, 2019-Ohio-5406, ¶
3.
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{¶3} Vasquez appealed, raising two assignments of error related to his sentence. Id. at
¶ 4. Upon noting that several documents, including the PSI, were not part of the appellate
record, this Court presumed regularity in the proceedings and affirmed Vasquez’s convictions.
Id. at ¶ 7-10.
{¶4} In August 2020, Vasquez filed a motion to disclose the PSI. Vasquez argued that
he would be pursuing post-conviction relief pursuant to R.C. 2953.21 and Crim.R. 35 once all
the evidence and documents were obtained and reviewed. In so doing, he noted that this Court
affirmed his convictions based in part on the lack of the PSI in the appellate record, thereby
demonstrating appellate counsel’s ineffective representation. Vasquez asserted that R.C.
2951.03 authorized the review of the PSI. The State opposed the motion maintaining that
nothing in the Revised Code authorized the requested relief and that Vasquez’s claim of
ineffective assistance of appellate counsel would not be properly raised in a post-conviction
relief petition. On September 17, 2020, the trial court denied Vasquez’s motion concluding that
claims of ineffectiveness of appellate counsel were not cognizable in post-conviction relief
proceedings. Additionally, the trial court stated that Vasquez failed to point to any provision of
the Revised Code that authorized the trial court to release the PSI.
{¶5} Vasquez has appealed, raising a single assignment of error for our review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT DENIED MR. VASQUEZ’S MOTION
TO DISCLOSE THE PRESENTENCING INVESTIGATION REPORT TO HIS
NEW COUNSEL FOR PURPOSES OF POST-CONVICTION RELIEF.
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{¶6} Vasquez argues in his sole assignment of error that the trial court erred in denying
his motion to disclose the PSI. Vasquez maintains he intends to use the PSI in a future petition
for post-conviction relief.
{¶7} As noted by the Supreme Court, R.C. 2951.03 permits access to the PSI in certain
circumstances. State v. Johnson, 138 Ohio St.3d 282, 2014-Ohio-770, ¶ 9. “Specifically, R.C.
2951.03(B)(1) provides that ‘the court, at a reasonable time before imposing sentence, shall
permit the defendant or the defendant’s counsel to read the report,’ with some exceptions.
Moreover, pursuant to R.C. 2951.03(B)(2), ‘[p]rior to sentencing, the court shall permit the
defendant and the defendant’s counsel to comment on the presentence investigation report and,
in its discretion, may permit the defendant and the defendant’s counsel to introduce testimony or
other information that relates to any alleged factual inaccuracy contained in the report.’”
Johnson at ¶ 9.
{¶8} “R.C. 2951.03(D)(1) provides that the contents of a presentence investigation
report ‘are confidential information and are not a public record.’ But the defendant and the
defendant’s counsel may seek access to the report pursuant to R.C. 2951.03(D)(1) * * *.”
Johnson at ¶ 10.
{¶9} R.C. 2951.03(D)(1) states in relevant part that:
The court, an appellate court, authorized probation officers, investigators, and
court personnel, the defendant, the defendant’s counsel, the prosecutor who is
handling the prosecution of the case against the defendant, and authorized
personnel of an institution to which the defendant is committed may inspect,
receive copies of, retain copies of, and use a presentence investigation report or a
written or oral summary of a presentence investigation only for the purposes of or
only as authorized by Criminal Rule 32.2 or this section, division (F)(1) of section
2953.08, section 2947.06, or another section of the Revised Code.
{¶10} “Moreover, in accordance with R.C. 2951.03(D)(2), the defendant, the
defendant’s counsel, and the prosecutor may not make copies of the report and must return all
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copies of the report to the court ‘[i]mmediately following the imposition of sentence upon the
defendant,’ and, pursuant to R.C. 2951.03(D)(3), the ‘court or other authorized holder of the
report * * * shall retain the report * * * under seal,’ except when it is being used for specified
purposes.” Johnson at ¶ 11.
{¶11} “R.C. 2953.08(F)(1) provides that a presentence investigation report is part of the
record to be reviewed on an appeal of a sentence under that statute; it also provides that during
such an appeal, an appellate court must comply with R.C. 2951.03(D)(3) when not using the
report and that the appellate court’s use of the report does not affect the otherwise confidential
nature of its contents or make it a public record.” Johnson at ¶ 12.
{¶12} In Johnson, the Supreme Court concluded that “[c]onstruing R.C. 2951.03 and
2953.08(F)(1) to preclude appellate counsel from accessing the presentence investigation report
may implicate constitutional concerns of due process and/or the right to effective assistance of
appellate counsel on a first appeal as of right.” Johnson at ¶ 13. The Court stated that “barring
appellate counsel from accessing a presentence investigation report relied upon by the trial court
would deny an appellant a fair opportunity to obtain an adjudication on the merits of his appeal
because it would restrain counsel’s ability to fully investigate and determine potential issues for
appeal.” (Internal citation and quotations omitted.) Johnson at ¶ 13. Because of the foregoing
concerns, and “because the term ‘defendant’s counsel’ as used in R.C. 2951.03(D)(1) includes
both a defendant’s trial counsel and a defendant’s appellate counsel,” the Supreme Court
permitted “newly appointed appellate counsel to have access to a presentence investigation
report upon a proper showing therefor, subject to similar restrictions as contained in R.C.
2951.03 and 2953.08(F)(1) and any further directives of the appellate court.” Johnson at ¶ 14.
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{¶13} On appeal, Vasquez maintains that R.C. 2951.03 and Johnson should apply to him
to allow him access to the PSI for use in his future petition for post-conviction relief. However,
the concerns that were the focus of the Supreme Court’s analysis in Johnson are not at issue here.
Vasquez already had his direct appeal and is now seeking access to the PSI for use in a future
petition for post-conviction relief. “The United States Supreme Court and the Supreme Court of
Ohio have generally rejected arguments that constitutional protections such as due process apply
in post-conviction proceedings.” State v. Conway, 10th Dist. Franklin No. 17AP-504, 2019-
Ohio-2260, ¶ 36. Moreover, unlike in direct appeals, there is no federal constitutional right to
counsel in state post-conviction proceedings, and because of that, there is no federal
constitutional right to the effective assistance of counsel in such proceedings. See State v.
Waddy, 10th Dist. Franklin No. 15AP-397, 2016-Ohio-4911, ¶ 42, citing Pennsylvania v. Finley,
481 U.S. 551, 555 (1987) and Coleman v. Thompson, 501 U.S. 722, 752 (1991); see also State v.
Wesson, 9th Dist. Summit No. 28412, 2018-Ohio-834, ¶ 10; State v. Crowder, 60 Ohio St.3d
151, 152 (1991) (“[A]n indigent petitioner has neither a state nor a federal constitutional right to
be represented by an attorney in a postconviction proceeding.”). Finally, to the extent that
Vasquez sought the PSI to challenge the effective assistance of appellate counsel in a future
petition for post-conviction relief, the trial court was correct that those claims are properly
brought under App.R. 26(B), not R.C. 2953.21. See Morgan v. Eads, 104 Ohio St.3d 142, 2004-
Ohio-6110, ¶ 6-8. In summary, denying Vasquez access to the PSI under these circumstances
would not implicate the same concerns that the Supreme Court sought to address in Johnson.
{¶14} Vasquez has not pointed this Court to any statutory authority that would authorize
the trial court to release the PSI to Vasquez given the procedural posture of this case, nor has he
convinced us that Johnson applies to the facts of his case. See also State v. Taylor, 6th Dist.
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Lucas No. L-20-1045, 2021-Ohio-758, ¶ 3, 13 (“[A]ppellant’s application for a writ of
mandamus fails because the trial court has no legal duty to provide appellant with a copy of his
presentence investigation report.”) Accordingly, Vasquez has failed to demonstrate that the trial
court erred in denying his motion for the disclosure of the PSI.
{¶15} Vasquez’s assignment of error is overruled.
III.
{¶16} Vasquez’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
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HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
BRANDON J. HENDERSON and JUSTIN M. WEATHERLY, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee.