[Cite as State v. Battle, 2013-Ohio-1759.]


                                         COURT OF APPEALS
                                       MORGAN COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         Hon. Sheila G. Farmer, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-

BILLY J. BATTLE                                    Case No. 12AP008

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Morgan County Common
                                                Pleas Court, Case No. 07CR0064


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         April 26, 2013


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


MARK J. HOWDYSHELL                              BILLY J. BATTLE, PRO SE
Prosecuting Attorney                            S.C.I. Inmate #A617-868
19 East Main Street                             5900 B.I.S. Road
McConnelsville, Ohio 43756                      Lancaster, Ohio 43130
Morgan County, Case No. 12AP008                                                             2

Hoffman, P.J.


         {¶1}    Defendant-appellant Billy J. Battle appeals the August 9, 2012 Journal

Entry entered by the Morgan County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                                    STATEMENT OF THE CASE1

         {¶2}    On appeal from his original conviction, this Court affirmed Appellant’s

conviction in State v. Battle, Morgan No. 09 AP 001, 2010-Ohio-4327. Appellant filed

an application for delayed appeal on April 11, 2012, submitting in conjunction therewith

a transcript of a motions hearing conducted on August 28, 2008. Subsequently, on May

18, 2012, Appellant filed an application for reopening.         This Court denied delayed

appeal on April 19, 2012, and denied the application for reopening via Judgment Entry

of June 12, 2012.

         {¶3}    On July 13, 2012, Appellant filed a motion in the trial court to certify the

previously omitted record of the August 26, 2008 hearing, pursuant to R.C. 2301.23,

with the trial court herein. On July 23, 2012, the State filed a motion contra.

         {¶4}    Via Journal Entry of August 9, 2012, the trial court denied Appellant's

motion.

         {¶5}    Appellant now appeals, assigning as error:

         {¶6}    “I. THE TRIAL COURT DIRECTLY VIOLATED O.R.C. §2301.23 WHEN IT

STATED TO APPELLANT’S COUNSEL THAT NO HEARING TOOK PLACE ON

AUGUST 26, 2008. NO RECORD OF A HEARING EXISISTED [SIC] FOR AUGUST




1
    A rendition of the underlying facts is unnecessary for our resolution of this appeal.
Morgan County, Case No. 12AP008                                                           3


26, 2008.     THUS, NO TRANSCRIPT COULD BE MADE FOR A HEARING FOR

AUGUST 26, 2008.

       {¶7}   “II. THE TRIAL COURT DIRECTLY VIOLATED O.R.C. §149.43 WHEN IT

REFUSED TO TURN OVER PUBLIC RECORDS THAT WERE REQUESTED, IN

WRITING, FOR A HEARING THAT TOOK PLACE ON AUGUST 26, 2008.

       {¶8}   “III. A WRIT OF MANDAMUS IS THE SOLE APPROPRIATE REMEDY

FOR RECORDS VIOLATIONS MADE BY THE TRIAL COURT.

       {¶9}   “IV. THE RECORD OF THE AUGUST 26, 2008 HEARING THAT

SUPPORTS AND CONFERMS [SIC] TWO (2) ASSIGNMENTS OF ERRORS [SIC]

FROM MY APPELLANT’S BRIEF FOR CASE NO. 09AP0001, MY INITIAL APPEAL AS

OF RIGHT, ALSO BRINGS ONE (1) NEW ERROR MADE AT TRIAL LEVEL TO

LIGHT.”

                                           I, II, III, & IV.

       {¶10} Initially, we note, Appellant's merit brief is entitled "Mandamus Complaint;

Merit Brief of Relator." Appellant filed with this Court a Pro Se Motion of Billy J. Battle,

Relator, Appellant, for Leave to Amend His Mandamus Complaint/Appeal. This Court

via Judgment Entry of February 4, 2013, denied Appellant's motion finding Appellant

was attempting to combine two actions: an appeal and a complaint for a writ of

mandamus. This Court directed Appellant to comply with the local and civil rules for

filing a complaint with appropriate instructions to the clerk, should Appellant desire to

initiate an original action separate from the within appeal. Accordingly, this Court will

address only those arguments relative to the appeal properly before this Court.
Morgan County, Case No. 12AP008                                                          4


       {¶11} Appellant asserts the trial court erred in failing to provide the recording or

now certify a transcription of the recording of the August 26, 2008 hearing for his

appeal.

       {¶12} Appellant's only conceivable purpose in filing the motion with the trial court

is for use in reopening his direct appeal. As set forth in the Statement of the Case

above, this Court denied delayed appeal on April 19, 2012 and denied Appellant's

motion for reopening via Judgment Entry of June 12, 2012. Accordingly, we find no

error in the trial court's denial of Appellant's motion.

       {¶13} Appellant's assigned errors are overruled.

       {¶14} The August 9, 2012 Journal Entry of the Morgan County Court of Common

Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Delaney, J. concur

                                                s/ William B. Hoffman _________________
                                                HON. WILLIAM B. HOFFMAN


                                                s/ Sheila G. Farmer __________________
                                                HON. SHEILA G. FARMER


                                                s/ Patricia A. Delaney _________________
                                                HON. PATRICIA A. DELANEY
Morgan County, Case No. 12AP008                                                     5


            IN THE COURT OF APPEALS FOR MORGAN COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
BILLY J. BATTLE                           :
                                          :
       Defendant-Appellant                :         Case No. 12AP008


       For the reason stated in our accompanying Opinion, the August 9, 2012 Journal

Entry of the Morgan County Court of Common Pleas is affirmed. Costs to Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ Patricia A. Delaney _________________
                                          HON. PATRICIA A. DELANEY
