 | Written and Edited by Joyce S. Anderson, Chief Counsel Appellate Division, Franklin County
TRANSCRIPTS: CLERK OF COURTS MUST PROVIDE PROSECUTOR A COPY OF A FILED TRANSCRIPT AT COST. State ex rel Slagle v. Rogers, No. 9-02-52, (3rd Dist. Ct. Apps., Marion Co., 8-7-03). Marion County Prosecutor Jim Slagle filed a petition for a writ of mandamus against Marion County Common Pleas Judge Richard Rogers and Marion County Clerk of Courts Julie Kagel. Relator sought an order pursuant to R.C. 149.43(C) to compel the clerk to provide photocopies of the "Saxton" transcript, or any other transcript filed as part of a court file, at the actual copying cost of five cents per page. Relator also sought an order compelling the clerk to provide a copy of the audiotape of the suppression hearing in the "Call" case. The Clerk refused, based upon the trial courts order of July 17, 2002, prohibiting the clerk from providing a copy of any transcript to a party. By separate order the trial court provided that the official court reporter is to be paid $2.50 per page, both for the official transcript and for a copy for the requesting party. The court of appeals granted the writ. "Relator," the court said "as well as any other person, has a legal right to a copy of a public record, such as transcripts filed in a court case and audiotapes of proceedings, prepared 'at cost.'" The court rejected the judge's argument, and an Attorney General's opinion, at 2002 OAG 014, that transcripts are excluded from R.C. 149.43 pursuant to R.C. 2301.24 and 2301.25. R.C. 2301.25 provides that a second copy of a transcript should cost half of what the first copy costs. The Marion County Court of Appeals held that R.C.2301.25 applies only when the party requests the court reporter to prepare a second copy of the transcript. It has no applicability when a party requests the clerk to copy official records. The court urged the General Assembly to amend the statutes regarding court reporters. Thirty or forty years ago, when the statutes were last amended, copying documents was a laborious process. Now, the court continued, a second copy requires pushing a single button on a computer. Finally the court said: "We find nothing in R.C. Chapter 2301 that confers ownership or a 'proprietary interest' in all transcripts, in perpetuity, to the official court reporter, an officer and employee of the court of common pleas. To the contrary, the shorthand notes and transcripts are the property of the court of common pleas." APPEALS: DENIAL OF JUDICIAL RELEASE NOT A FINAL APPEALABLE ORDER. State v. Fisk, No. 02-CA-008 (5th Dist. Ct. Apps., Holmes Co., 3-25-03). Having been charged with two counts of felonious assault, Joshua Fisk entered a guilty plea to one count. After serving six months of his four-year sentence, Fisk filed for judicial release. The trial court denied the motion, and Fisk appealed, arguing both that the court abused it's discretion and that his counsel had been ineffective. The appellate court, raising the issue of jurisdiction, sua sponte, dismissed the appeal. The Ohio Supreme Court in State v. Coffman (2001) 91 Ohio St 3d 125, the appellate court observed, held that a court's denying a defendant shock probation was not a final appealable order. Although judicial release has replaced shock probation, the appellate court continued, the reasoning of State v. Coffman applies to a trial court's denying judicial release. "Like the statute providing for shock probation, R.C. 2929.20, (the statute authorizing judicial release) confers substantial discretion to the trial court, but makes no provision for appellate review. Therefore, we find that a motion denying judicial release is not a final appealable order." DUE PROCESS: INCRIMINATING STATEMENTS MADE BY SOMEONE OTHER THAN DEFENDANT PROPERLY EXCLUDED, WHEN. State v. Waulk, No. 02CA2649 (4th Dist. Ct. Apps., Ross Co., 1-6-03). Jack Waulk, Bernie Rossiter, Margo Imler, and Keith Arthur described themselves as a "drinking crew." After a particularly successful job at Rossiter's house-trailer, all four passed out. Keith Arthur and Margo Imler shared a couch. Waking, Imler discovered blood on her arm and Arthur on the floor. Arthur was dead from "blunt force trauma" to the head. Waulk fled. When returned to Ohio, Waulk told police that he hit Arthur with a stick after Arthur tried to hit him with a vodka bottle. At trial, Waulk offered the testimony of Brian Pritchard, an inmate at SEPTA. (The opinion fails to identify the acronym). The court excluded the testimony. According to the proffer, Pritchard would have testified that he went to Rossiter's trailer (presumably before Pritchard became an inmate at SEPTA), and asked Rossiter about "Jack's case." According to Pritchard, Rossiter said that he, Rossiter, had hit the victim with a two by four and the victim's head had "split like a watermelon." Having been convicted of two counts of murder, Waulk appealed. He conceded that Pritchard's testimony was hearsay inadmissible under the rules of evidence, but argued that the Due Process Clause and the case of Chambers v. Mississippi (1973), 410 U.S. 284 required the court to admit the evidence. The Ross County Court of Appeals disagreed. Although, the Chambers case held that reliable incriminating statements of third parties must be admitted, the Ross County Court said, the court agreed with the trial court that Pritchard's proffered testimony was unreliable. Circumstances for judging reliability, the court of appeals continued, include whether the statement was spontaneous and made shortly after the crime, whether the statement is against the penal interest of the declarant, whether the statement is corroborated by other evidence, and whether the declarant was in the courtroom and available for cross-examination. As the victim's head did not "split like a watermelon," as Rossiter was absent from the courtroom, and as the statement was in response to a question, the Ross County Court of Appeals held the statement was unreliable and properly excluded. The court affirmed the conviction. CONFESSIONS: CUSTODY; ARREST MEANS ARRESTED OR OTHERWISE RESTRICTED OF ONE'S LIBERTY. State v. Boyd, No. 02CA744 (4th Dist. Ct. Apps., Adams Co., 3-3-03). The state appealed from the trial court's having granted the defendant's motion to suppress his statement. Adams County deputy sheriffs videotaped Monty Boyd, a graduate of the police academy and an auxiliary police officer, selling drugs to an undercover officer. Detective Jeff McCarty and an investigator for the Adams County Prosecutor's office, Kenneth Dick, went to Boyd's home. They told him they "had him on two trafficking in drug charges," and asked if he would talk to them. Boyd agreed and the officers talked to him in his home for an hour and a half. The officers did not arrest Boyd. Both officers returned three times to their cruiser, leaving Boyd alone inside. During the conversation, Boyd made and received phone calls and went to the bathroom without asking permission. After Boyd confessed, the officers read him his Miranda rights and asked him to repeat his confession on tape. At first, Boyd said he would because the officers would arrest him if he refused. The officers explained they would not arrest him for refusing to make a taped statement. After Boyd made the taped statement, the officers left without arresting Boyd. Later, the Adams County Grand Jury indicted Boyd on two counts of trafficking in drugs. Boyd filed a motion to suppress his statements. The trial court held that the officers' telling Boyd that "they had him" on drug charges rendered the questioning "custodial." The court granted the motion and the state appealed. The Adams County Court of Appeals reversed. Something more than questioning by police is required, the appellate court said, before that questioning is "custodial." Leaving a suspect in his home, alone, during the questioning, the court said, would cause a reasonable person to believe he was free from restraint. The court reversed and remanded for trial. PLEAS: NO CONTRACT PURSUANT TO PLEA AGREEMENT UNTIL COURT ACCEPTS GUILTY PLEA. State v. Darnell, No. 02CA15 (4th Dist. Ct. Apps., Gallia Co., 5-23-03) Jonathan Darnell was charged with two counts of aggravated murder, the victims being Jennifer Guzman and Elmer Young. The state and Darnell signed a written plea agreement that, among other things, required Darnell to provide a written statement detailing the crime; take a polygraph; and plead to burglary or involuntary manslaughter, depending upon the results of the polygraph; and testify against the other perpetrators. The state agreed to recommend a sentence of eight years. Darnell wrote the statement and testified at a preliminary hearing against a co-defendant. However, he refused to take a polygraph without his lawyer being present. The state announced it intended to prosecute Darnell for two counts of aggravated murder. Darnell filed a motion to enforce the plea bargain under contract law. The trial court held there was no contract as Darnell had entered no plea. His motion to enforce the plea agreement having been denied, Darnell entered no contest pleas to two counts of voluntary manslaughter, in exchange for a sentencing recommendation of seven years on one count, consecutive to eight years on the second count. The court accepted the plea and sentenced the defendant in accordance with the sentencing recommendation. On appeal, appellant argued that the contract was divisible and that he was entitled to specific performance because he fulfilled part of the contract. The appellate court agreed that contract law applies to a negotiated plea bargain. However, the court said, there is no contract until the court accepts a defendant's guilty plea. Otherwise, the court continued, a trial court's discretion to reject a negotiated plea would be meaningless. The court affirmed the conviction. SENTENCING: MANDATORY LICENSE SUSPENSION CANNOT BE RESCINDED. State v. McKinney, No. 19645 (2nd Dist. Ct. Apps., Montgomery Co., 7-18-03) The trial court in a bench trial convicted Brenda McKinney of vehicular homicide. The court granted probation and imposed a one-year license suspension. Two months later, the court terminated the suspension. Having been granted leave to appeal, the state argued that a one-year suspension was mandatory under R.C. 2903.06 (B)(2). That section provides for a license suspension of a definite time period, between one year and five years. As the trial court had a duty to impose a license suspension of at least one year, the court was without authority to terminate the suspension early. The appellate court reversed and remanded, ordering the trial court to reimpose the one-year suspension, with credit for the two months.
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