[Cite as State v. Taylor, 2016-Ohio-1100.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 26327
                                                   :
 v.                                                :   Trial Court Case No. 2011-CR-4317
                                                   :
 DARREN D. TAYLOR                                  :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                             Rendered on the 18th day of March, 2016.

                                              ...........

MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

DARREN D. TAYLOR, Inmate No. 685-345, Lebanon Correctional Institution, 3791 State
Route 63, P.O. Box 56, Lebanon, Ohio 45036
      Defendant-Appellant-Pro Se

                                             .............

WELBAUM, J.

        {¶ 1} In this case, Defendant-Appellant, Darren Taylor, appeals pro se from a trial

court decision denying Taylor’s motion for a copy of his complete court file and transcript
                                                                                         -2-


of proceedings. In support of his appeal, Taylor contends that the trial court abused its

discretion and unconstitutionally denied him access to the courts when it overruled his

motion.

       {¶ 2} We conclude that the trial court did not err in denying Taylor’s request. A

free copy of the trial transcript was made available during Taylor’s direct appeal, and if

Taylor wanted an additional copy, he was required to pay for it.         Furthermore, the

appropriate method of requesting public records is through a mandamus action. Even if

Appellant’s request could be construed as a mandamus action (which it was not), the trial

court properly denied his request, because a defendant may not seek information under

R.C. 149.43 to support a post-conviction petition. Accordingly, the judgment of the trial

court will be affirmed.

                              I. Facts and Course of Proceedings

       {¶ 3} In May 2013, Taylor was convicted and sentenced on two counts of murder

and accompanying firearm specifications following a five-day jury trial. Taylor was then

sentenced to an aggregate prison term of thirty-six years to life. Taylor appealed from

his conviction and sentence, and we affirmed the judgment of the trial court on June 13,

2014. See State v. Taylor, 2d Dist. Montgomery No. 25764, 2014-Ohio-2550.

       {¶ 4} On June 17, 2014, Taylor filed a motion with the trial court, seeking a

complete copy of his court file and transcripts of the proceedings, at State expense. On

July 2, 2014, the trial court denied the motion as moot, noting that the court had appointed

appellate counsel for Taylor on May 31, 2013, and that the transcript of the proceedings

had been filed with our court on September 19, 2013. Taylor filed a pro se notice of

appeal from this decision on July 25, 2014.
                                                                                        -3-


       {¶ 5} In September 2014, we issued a show cause order, asking Taylor to show

cause why the appeal should not be dismissed for lack of a final appealable order. After

Taylor responded, we dismissed the appeal on December 12, 2014, for lack of a final

appealable order. We subsequently granted Taylor’s motion for reconsideration, and

reinstated the appeal on July 1, 2015. Both the State and Taylor have now filed briefs

regarding this matter, and the case is ready for disposition.

                          II. The Trial Court’s Alleged Abuse of Discretion

       {¶ 6} Taylor’s sole assignment of error states that:

                 [The] Trial Court Abused Its Discretion and Denied Pro Se Appellant

       His Fundamental and Constitutionally Protected Rights of Access to the

       Courts When It Denied Pro Se Appellant a Complete Copy of Court File and

       Transcripts for Pro Se Appellant to Seek State and Federal Post-Conviction

       Relief.

       {¶ 7} Under this assignment of error, Taylor argues that his rights to due process

and equal protection were violated by the trial court’s failure to provide him, personally,

with a copy of the transcripts and court file. Taylor further contends that he has complied

with requirements for obtaining the transcripts, in that: (1) he alleged that he is seeking

the transcripts for use in a collateral proceeding; and (2) he made an effort to obtain the

materials from counsel who acted in his behalf. In order to establish these latter facts,

Taylor has attached various letters to his brief. In the letters, which were written during

the pendency of his direct appeal, Taylor asked his appellate attorney to provide him with

transcripts and the court record. We will not consider these letters, since they were not

part of the trial court record. See, e.g., State v. Bellamy, 181 Ohio App.3d 210, 2009-
                                                                                            -4-

Ohio-888, 908 N.E.2d 522, ¶ 21 (2d Dist.), citing State v. Ishmail, 54 Ohio St.2d 402, 377

N.E.2d 500 (1978), paragraph one of the syllabus.

       {¶ 8} Before addressing the merits of the case, we will briefly consider whether the

order in question is a final appealable order. Whether we have jurisdiction over an

appeal is a matter that we can raise on our motion. Care Risk Retention Group v. Martin,

191 Ohio App.3d 797, 2010–Ohio–6091, 947 N.E.2d 1214, ¶ 97 (2d Dist.), citing State ex

rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 544, 684 N.E.2d 72 (1997).

       {¶ 9} R.C. 2505.02(B) provides that orders are final and may be reviewed if they

fit within one of several categories, including “[a]n order that affects a substantial right in

an action that in effect determines the action and prevents a judgment”; or “[a]n order that

affects a substantial right made in a special proceeding or upon a summary application in

an action after judgment.” R.C. 2505.02(B)(1) and (2).

       {¶ 10} In a recent decision, the Eleventh District Court of Appeals held that a trial

court order denying a defendant’s motion for production of his transcript was not a final

appealable order. State v. Miller, 11th Dist. Trumbull No. 2015-T-0022, 2015-Ohio-2986,

¶ 4-5. Although the discussion of this point in Miller is brief, the court appears to have

concluded that the order did not affect a substantial right because the defendant did not

have a pending case; instead, he was requesting the transcript “in anticipation of filing a

petition for post-conviction relief.” Id. at ¶ 5. The court also noted that the defendant

was not entitled to a transcript because a transcript had already been filed during his

direct appeal. Id. See also State v. Jones, 7th Dist. Mahoning No. 14-MA-46, 2015-

Ohio-1707 (holding that an order denying a request for trial transcripts was not a final

appealable order, because the defendant did not “have pending in the trial court any
                                                                                              -5-


action to warrant review of the trial transcripts, and an indigent's right to a transcript is for

use in a direct appeal, not for the circumstances presented here.” Id. at ¶ 18.) However,

the court in Jones did go on to consider the defendant’s arguments. Id. at ¶ 49-50.

       {¶ 11} Our court and others have taken a contrary position, i.e., have concluded

that orders denying a request for transcripts are final appealable orders. See, e.g., State

v. Clark, 2d Dist. Greene No. 97 CA 27, 1998 WL 321007, *5 (June 19, 1998); State v.

Hatfield, 10th Dist. Franklin No. 11AP-1045, 2012-Ohio-3473, ¶ 5, citing Clark; and State

v. Majid, 8th Dist. Cuyahoga No. 102154, 2015-Ohio-2406, ¶ 4, citing Clark.

       {¶ 12} In other cases, appellate courts have simply ruled on appeals without

considering whether the trial court’s decision denying a request for a transcript was a final

appealable order. See State v. Buder, 6th Dist. Wood No. WD-11-036, 2012-Ohio-386,

¶ 4; State v. Bayles, 8th Dist. Cuyahoga No. 88094, 2007-Ohio-1008, ¶ 12; State v.

Walker, 4th Dist. Lawrence No. 04CA16, 2005-Ohio-1584, ¶ 6; and State v. McKinstry,

9th Dist. Summit No. 16540, 1994 WL 119370, *1 (Apr. 6, 1994).

       {¶ 13} When we granted Taylor’s motion for reconsideration and reinstated his

appeal, we stated that “[w]hether Taylor has the right he asserts, the denial of an indigent

defendant’s request for a transcript does affect a substantial right.” State v. Taylor, 2d

Dist. Montgomery No. 26327 (July 1, 2015), p. 2, citing generally to State ex rel. Partee

v. McMahon, 175 Ohio St. 243, 245, 193 N.E.2d 266 (1963).

       {¶ 14} A “substantial right” is defined as “a right that the United States Constitution,

the Ohio Constitution, a statute, the common law, or a rule of procedure entitles a person

to enforce or protect.”      R.C. 2505.02(A)(1).       As a general matter, orders affect

substantial rights where appropriate relief will be foreclosed in the future if the order is not
                                                                                                         -6-

immediately appealable. In re Adams, 115 Ohio St.3d 86, 2007-Ohio-4840, 873 N.E.2d

886, ¶ 44. In the case before us, whether Taylor’s motion in the trial court should have

prevailed on the merits is not the point; absent an appeal, Taylor would be precluded from

appropriate relief in the future. Accordingly, we conclude that the denial of Taylor’s

motion is a final appealable order.1

        {¶ 15} On the substantive issues, however, Taylor’s assignment of error is without

merit. In State, ex rel. Greene, v. Enright, 63 Ohio St.3d 729, 590 N.E.2d 1257 (1992),

the Supreme Court of Ohio observed that:

                The fundamental constitutional right of access to the courts requires

        that prisoners have a meaningful opportunity to present claims to the courts.

        Bounds v. Smith (1977), 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72.

        Therefore, when a state grants persons convicted a direct appeal as of right,

        equal protection and due process of law require that a state furnish

        appellate courts with trial transcripts in cases involving indigent defendants

        when transcripts are needed for a full and effective defense on appeal.

(Citations omitted.) Id. at 730. However, “the state is under a duty to file at state

expense only a single transcript with the court of appeals.” (Emphasis sic.) (Citation

omitted.) Id. at 731. Accord State ex rel. Franklin v. Greene Cty. Clerk of Courts, 2d



1 We do note that in State v. Pierce, 2d Dist. Montgomery No. 25199, 2013-Ohio-1372, we concluded that
an order denying a defendant’s post-trial request for grand jury transcripts was not a final appealable
order, either as an order denying a provisional remedy, or as an order affecting a substantive right. Id. at
¶ 16-17. We rejected the order as being ancillary to a court proceeding because no court proceeding
was currently in existence. Id. at ¶ 16. We also rejected the idea that the right to the transcript was a
substantial right, because the right to inspect grand jury transcripts is a discretionary right for use only
before or during trial. Id. at ¶ 14, citing State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981),
paragraph two of the syllabus. And, again, there was no pending action. Id. at ¶ 17. This right is
considerably more limited than the right to trial transcripts, and the circumstances are different. Pierce,
therefore, is distinguishable from the case before us.
                                                                                            -7-


Dist. Greene No. 05-CA-125, 2005-Ohio-7087, ¶ 5 (stressing that “the clerk of courts is

not required to provide the indigent defendant with his own free, personal copy of the

transcript in addition to the copy filed with the court of appeals,” and that “[i]f the Relator

wishes to have his own personal copy of the transcript to review, he must pay for it.”) We

made the same observation again in Kenard v. Tucker, 2d Dist. Montgomery No. 21378,

2005-Ohio-6834, ¶ 8.

       {¶ 16} The Supreme Court of Ohio has repeatedly adhered to the position that

defendants are not entitled to a transcript where the transcript has already been filed in

their direct appeal, and that only one copy of the transcript of criminal trials must be

provided to indigent criminal defendants. See State ex rel. Call v. Zimmers, 85 Ohio

St.3d 367, 368, 708 N.E.2d 711 (1999), citing State ex rel. Grove v. Nadel, 81 Ohio St.3d

325, 326, 691 N.E.2d 275 (1998) and State ex rel. Murr v. Thierry, 34 Ohio St.3d 45, 517

N.E.2d 226 (1987).

       {¶ 17} Another limitation is that an “appeal or post-conviction action must be

pending at the time the transcript is sought.” Murr at 45, citing Partee, 175 Ohio St. at

243,193 N.E.2d 266. (Other citations omitted.)

       {¶ 18} In the case before us, no appeal or post-conviction action was pending

when Taylor sought the transcript. Taylor’s appeal had concluded, no post-conviction

petition was pending in the trial court, and Taylor’s motion for leave to file a delayed

appeal in the Supreme Court of Ohio had not yet been filed. See online docket at the

Supreme Court of Ohio for State v. Taylor, Sup.Ct. Case No. 2014-1406. However, even

if this were otherwise, Taylor was entitled to only one transcript, which had already been

filed with our court for purposes of his direct appeal. If he wished another copy for his
                                                                                            -8-


personal use, he was required to pay for it.

        {¶ 19} Taylor also contends that his request should have been granted pursuant

to Rush v. United States, 559 F.2d 455 (7th Cir.1977), and State ex rel. Lacovone v.

Kaminski, 81 Ohio St.3d 189, 690 N.E.2d 4 (1998). In Rush, the Seventh Circuit Court

of Appeals discussed the public nature of court files, the statutory right of inspection in 28

U.S.C. 753(b), and the extent to which incarcerated persons should be able to access

these records for purposes of collaterally attacking their convictions when their

incarceration prevents personal visits to a clerk’s office. Id. at 458-459. Ultimately, the

court held that since the transcript in that case already existed, the trial court should enter

an order giving the defendant access to the record, as well as providing “appropriate

safeguards to maintain the record’s integrity * * *.” Id. at 459.

        {¶ 20} In a subsequent decision applying Rush and the decision of the United

States Supreme Court in United States v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48

L.Ed.2d 666 (1976), a federal district court imposed requirements for access, including

that:

               1. The defendant must exhaust his private sources of access to

        transcripts and records of the proceedings through and from his trial and

        appellate counsel.

               2. The defendant must set forth his efforts to exhaust his personal

        sources, and the results thereof * * * .

               3. The defendant must make some showing as to the purpose for

        which the transcripts are sought from the court.

United States v. Davidson, 438 F.Supp. 1253, 1255 (N.D.Ind.1977).
                                                                                          -9-


       {¶ 21} In a subsequent, related decision involving the same inmate, the Seventh

Circuit Court of Appeals declined to rule on the correctness of the procedure that the

district court had established, because the inmate had been able to review the records at

the prison, and the current appeal involved only whether the restrictions imposed on the

inmate’s access (time constraints) complied with Rush. United States ex rel. Davidson

v. Wilkinson, 618 F.2d 1215, 1218 (7th Cir.1980). The Seventh Circuit Court of Appeals

concluded that the district court did not abuse its discretion by providing only a 30-day

review period and by refusing the inmate’s request for an extension. Id. at 1219.

       {¶ 22} In Davidson, the Seventh Circuit Court of Appeals noted that the Eighth

Circuit Court of Appeals had refused to follow Rush, and that the law in the Eighth Circuit

“seems to be ‘that a prisoner has no absolute right to a transcript to assist him in the

preparation of a collateral attack on his conviction, and that constitutional requirements

are met by providing such materials only after judicial certification that they are required

to decide the issues presented by a non-frivolous pending case.’ ” Id. at 1217, fn.2,

quoting United States v. Losing, 601 F.2d 351, 353 (8th Cir. 1979). (Other citation

omitted.)

       {¶ 23} Notably, “no other court of appeals has adopted the Seventh Circuit's

reasoning, and the Tenth, Eleventh, and Eighth Circuits have explicitly rejected such

reasoning.” United States v. Silva, 2009 WL 1449083, *1, fn. 1 (N.D. Cal., May 21,

2009), citing Sistrunk v. United States, 992 F.2d 258, 259-60 (10th Cir.1993); Hansen v.

United States, 956 F.2d 245, 248 (11th Cir.1992); and Losing, 601 F.2d at 353. Ohio

has also not adopted the view of the Seventh Circuit Court of Appeals, and we are not

required, in any event, to follow decisions of lower federal courts. See, e.g., State ex rel.
                                                                                        -10-

Painter v. Brunner, 128 Ohio St.3d 17, 2011-Ohio-35, 941 N.E.2d 782, ¶ 46 (noting that

the Supreme Court of Ohio is “ ‘not bound by rulings on federal statutory or constitutional

law made by a federal court other than the United States Supreme Court.’ ”)

      {¶ 24} In Greene v. Brigano, 123 F.3d 917 (6th Cir.1997), the Sixth Circuit Court

of Appeals affirmed an order granting a conditional writ of habeas corpus to a defendant

who had elected to proceed pro se on the direct appeal of his murder conviction, but who

had not been given access to the transcript that had been prepared at State expense.

Concluding that access to the record for the direct appeal was a necessity, the court held

that “the State was required to provide [the defendant] either a copy of that transcript or

an alternative that fulfilled the same functions.”   Id. at 920-921, citing Britt v. North

Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). However, the ruling

in Greene involved a direct appeal of a conviction, not post-conviction proceedings.

      {¶ 25} Subsequently, the Supreme Court of Ohio upheld the dismissal of an

inmate’s mandamus action which sought to compel the clerk of courts to send the inmate

copies of pleadings in his case, as well as the trial transcript. Lacovone, 81 Ohio St.3d

at 189-190, 690 N.E.2d 4. The inmate had alleged in the mandamus action that “these

records were necessary for him to pursue ‘post appeal and postconviction remedies,’ that

he was constitutionally entitled to the records, and that because of his incarceration, he

was ‘unable to procure these documents by appearing in person at the Courthouse and

requesting them under the Ohio Public Records Act.’ ” Id.

      {¶ 26} The Supreme Court of Ohio disagreed. The court first noted that the clerk

of courts did not have a clear legal duty to transmit copies of the public records to the

inmate in prison by mail. Id. at 190. The court also distinguished Greene, because the
                                                                                         -11-

inmate (Lacovone), unlike the inmate in Greene, failed to allege that he had been denied

access to a free copy of his transcript for purposes of his direct appeal. Id.. In addition,

Lacovone failed to specifically allege that he was unable to have a designee inspect and

copy the records. Id. at 190-191.

       {¶ 27} In the case before us, Taylor alleged in the trial court that he had no

designee to inspect and copy records because he [Taylor] was not a resident of the State

of Ohio. Whether or not this allegation would be sufficient, Taylor’s action was not a

mandamus action seeking inspection of public records. The Supreme Court of Ohio has

indicated that “mandamus is the appropriate remedy to force compliance with the open-

records statute.” State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 426, 639 N.E.2d

83 (1994) Accordingly, the procedures discussed in Lacovone do not apply to the case

before us. Taylor had access to a free transcript for use in his direct appeal, and no

more was required. Lacovone, 81 Ohio St.3d at 190, 690 N.E.2d 4.

       {¶ 28} Furthermore, the Supreme Court of Ohio has also held that “ ‘[a] defendant

in a criminal case who has exhausted the direct appeals of her or his conviction may not

avail herself or himself of R.C. 149.43 to support a petition for postconviction relief.’ ”

State ex rel. Sawyer v. Cuyahoga Cty. Dept. of Children & Family Servs., 110 Ohio St.3d

343, 2006-Ohio-4574, 853 N.E.2d 657, ¶ 11, quoting Steckman at paragraph six of the

syllabus. Accord State v. Bolling, 2d Dist. Montgomery No. 22880, 2009-Ohio-4400,

¶ 13 (holding that a defendant may not seek information under R.C. 149.43 to support a

post-conviction petition). Accordingly, even if Taylor’s motion could somehow have been

construed as a mandamus action seeking public records, it was properly denied.

       {¶ 29} We did note in Bolling that we were taking no position concerning whether
                                                                                   -12-


persons other than a defendant might be permitted to obtain information under R.C.

149.43. Id. at fn. 1. The same observation applies here.

       {¶ 30} Based on the preceding discussion, Taylor’s sole assignment of error is

overruled.

                                    III. Conclusion

       {¶ 31} Taylor’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.



                                   .............



DONOVAN, P.J. and HALL, J., concur.




Copies mailed to:

Mathias H. Heck, Jr.
Kirsten A. Brandt
Darren D. Taylor
Hon. Dennis J. Adkins
