[Cite as State v. Jackson, 2013-Ohio-3650.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellee                            :            C.A. CASE NO.    25478

v.                                                    :            T.C. NO.   10CR1126

DENNIS D. JACKSON                                     :            (Criminal appeal from
                                                                   Common Pleas Court)
        Defendant-Appellant                           :

                                                      :

                                              ..........

                                              OPINION

                         Rendered on the       23rd       day of        August        , 2013.

                                              ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

DENNIS D. JACKSON, #645-759, Lebanon Correctional Institute, P. O. Box 56, Lebanon,
Ohio 45036
      Defendant-Appellant

                                              ..........

FROELICH, J.

                 {¶ 1} Dennis D. Jackson appeals from a judgment of the Montgomery
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County Court of Common Pleas, which denied his motion for the preparation, at the State’s

expense, of a transcript of the pre-trial video deposition of Christopher Monturo, one of the

State’s witnesses.

                            I. Factual and Procedural History

               {¶ 2} On the night of March 19, 2010, Antoine West was robbed and fatally

shot in an apartment. Thomas Horn and Kimberly Carl, who were also in the apartment,

were unharmed. An investigation by the police led the detectives to believe that Jackson

had been the assailant, that Jackson shot West with a gun Jackson had borrowed from an

acquaintance (Dion Sims), and that Jackson had taken a large sum of money from West.

Jackson was subsequently indicted on three counts of murder, two counts of aggravated

burglary, two counts of aggravated robbery, and two counts of felonious assault. All of the

charges included a firearm specification.

       {¶ 3}     The case was set for trial on August 30, 2010. On that date, however, the

State informed the court that it had been unable to locate Horn, who was a key witness. The

State requested a continuance and asked the court to issue a material witness warrant for

Horn. The trial court granted the State’s requests and reset the trial for September 20, 2010.

       {¶ 4}    On September 2, 2010, the State moved for permission to take a video

deposition of Christopher Monturo, firearm examiner for the Miami Valley Regional Crime

Laboratory, who conducted tests, examinations, and comparisons of the bullets, firearms,

and shell casings involved in Jackson’s case. The prosecutor indicated that Monturo would

be unavailable to testify during the week of September 20, because he would be an instructor

at a training seminar offered by the Bureau of Alcohol, Tobacco, and Firearms in Maryland.
                                                                                             3

The trial court granted the motion.

       {¶ 5}     Later the same day (September 2), the State filed a notice that Monturo’s

deposition was scheduled for 10:00 a.m. on September 7 in Courtroom 1 of the Montgomery

County Court of Common Pleas. A copy of the notice of deposition was sent to defense

counsel by facsimile and first-class mail, and the deposition proceeded as scheduled.

       {¶ 6}    Jackson’s trial began on September 20, 2010. However, the trial ended in a

mistrial after one of the State’s witnesses, Dion Sims, revealed during his testimony that he

had taken a lie detector test. Monturo’s video deposition was never played at the trial.

       {¶ 7}    In December 2010, a second jury trial was held, during which the State

presented 23 witnesses, including Monturo. The State did not play Monturo’s prior video

deposition because Monturo appeared and testified in person at the December 2010 trial.

       {¶ 8}     At the conclusion of the trial, the jury found Jackson guilty of all charges

and specifications. Jackson filed a motion for a new trial and/or acquittal, which the trial

court denied. At sentencing, several of the counts and all of the firearm specifications were

merged, and Jackson received an aggregate prison term of 28 years to life.              Jackson

subsequently filed a timely appeal from his conviction, raising numerous assignments of

error. In May 2012, we overruled each of the assignments of error and affirmed Jackson’s

conviction. State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335.

       {¶ 9}    On October 11, 2012, Jackson filed a motion for the preparation, at the

State’s expense, of a complete transcript of the video deposition of Christopher Monturo.

Jackson asserted that the deposition was necessary to demonstrate a violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and his actual innocence.
                                                                                            4

Relying on State v. Lofton, 2d Dist. Montgomery No. 20923, 2006-Ohio-4651, the trial court

denied Jackson’s motion, stating:

                The Second District Court of Appeals has ruled there is no duty to

         provide a criminal defendant with copies of court records when the judgment

         of conviction and sentence has become final, with no appeal or petition for

         post-conviction relief pending, and the defendant has not established that the

         records sought are necessary to support what appears to be a justiciable claim.

         {¶ 10} Jackson appeals from the trial court’s judgment, raising two assignments of

error.

                                         II. Analysis

         {¶ 11} Jackson’s assignments of error state:

                I. Appellant was denied a fair trial by the prosecutor’s failure to

         disclose “Brady material” in violation of his rights under the Sixth and

         Fourteenth Amendments to the United States Constitution, and Article I,

         Section 10 of the State of Ohio Constitution.

                II.   The trial court abused it’s [sic] discretion and erred to the

         prejudice of the Appellant and denied him redress in violation of his rights

         under the Sixth and Fourteenth Amendments to the United States

         Constitution, and Article I, Sections 10 and 16 of the State of Ohio

         Constitution.

         {¶ 12} In his first assignment of error, Jackson contends that he was denied a fair

trial because the State failed to disclose evidence favorable to him, in violation of Brady v.
                                                                                              5

Maryland.     His second assignment of error claims that the trial court violated his

constitutional rights by failing to provide him a copy of Monturo’s video deposition.

         {¶ 13} In his appellate brief, Jackson claims that Monturo’s video deposition

testimony was exculpatory and that the evidence was improperly withheld from him by the

State.   An appeal from the denial of a request for a transcript is not the appropriate

procedure for raising an alleged Brady violation by the State.             R.C. 2953.21, the

post-conviction relief statute, governs challenges to a defendant’s conviction based on

violations of the defendant’s constitutional rights. E.g., State v. Bellamy, 181 Ohio App.3d

210, 2009-Ohio-888, 908 N.E.2d 522, ¶ 8 (2d Dist.). The decision from which Jackson

appeals did not concern a petition for post-conviction relief. Accordingly, whether Jackson

was denied a fair trial by the State’s alleged failure to provide Brady material is not properly

before us. Jackson’s first assignment of error is overruled.

         {¶ 14} The issue properly before us is whether the trial court erred in denying

Jackson’s request for a transcript of Monturo’s video deposition, to be prepared at the State’s

expense. An indigent prisoner has a right to relevant portions of a transcript, at public

expense, upon direct appeal or in seeking post-conviction relief. State ex rel. Murr v.

Thierry, 4 Ohio St.3d 45, 517 N.E.2d 226 (1987).               However, a direct appeal or

post-conviction action must be pending at the time the transcript is sought, and only one

copy of a transcript need be provided. Id.

         {¶ 15} Jackson filed his motion for preparation of a complete transcript of

Monturo’s video deposition in October 2012, five months after we affirmed his conviction

on direct appeal. At that time, Jackson’s conviction was final, and no direct appeal or
                                                                                             6

post-conviction action (or any other motion) was pending. Accordingly, Jackson had no

right to a copy of Monturo’s deposition transcript when his motion seeking the transcript

was filed.

       {¶ 16}    R.C. 149.43(B)(8) (formerly R.C. 149.43(B)(4)) allows an incarcerated

defendant to have a free copy of trial records in certain circumstances. E.g., Lofton, 2d Dist.

Montgomery No. 20923, 2006-Ohio-4651. That provision reads:

       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 * * *, 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.

R.C. 149.43(B)(8).

       {¶ 17}    R.C. 149.43(B)(8) does not apply to Jackson, since the trial court did not

find that a copy of Monturo’s deposition transcript was necessary for Jackson to advance a

colorable claim for relief. See Lofton, supra; State v. Reynolds, 2d Dist. Montgomery No.

19964, 2004-Ohio-2954, ¶ 5.        Although Jackson asserted that Monturo’s deposition

testimony was exculpatory and was “necessary to effective pursuit of a prima facie showing
                                                                                           7

of” actual innocence and a Brady violation, Jackson’s motion provided no basis for the trial

court to conclude that Jackson had a justiciable claim.

       {¶ 18} Finally, Jackson’s counsel was notified of the date and time of Monturo’s

deposition, which was held in a courtroom at the Montgomery County Common Pleas Court,

and there is nothing in the record to suggest that Jackson was unaware of Monturo’s

deposition testimony at the time of his December 2010 trial. Indeed, the State indicates that

Jackson and his counsel were present for the video deposition, that it was conducted in the

courtroom with the trial court presiding, that defense counsel cross-examined Monturo, and

that defense counsel and the prosecutor each received a CD of the video deposition.

Jackson has not indicated why he cannot obtain a copy of the CD of Monturo’s video

deposition from his trial counsel.

       {¶ 19} Accordingly, the trial court did not err in denying Jackson’s motion for the

preparation, at public expense, of a transcript of Monturo’s deposition testimony. Jackson’s

second assignment of error is overruled.

                                              III.

       {¶ 20} The trial court’s judgment will be affirmed.

                                           ..........

FAIN, P.J. and DONOVAN, J., concur.

Copies mailed to:

Andrew T. French
Dennis D. Jackson
Hon. Michael L. Tucker
