[Cite as State v. Rodriguez, 2014-Ohio-2583.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            PREBLE COUNTY




STATE OF OHIO,                                    :
                                                        CASE NO. CA2013-11-011
        Plaintiff-Appellee,                       :
                                                               OPINION
                                                  :             6/16/2014
    - vs -
                                                  :

MARIO A. RODRIGUEZ,                               :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                          Case No. 2009-CR-10255



Martin P. Votel, Preble County Prosecuting Attorney, Kathryn M. West, 101 East Main Street,
Courthouse, 1st Floor, Eaton, Ohio 45320, for plaintiff-appellee

Mario A. Rodriguez, A609766, London Correctional Institution, P.O. Box 69, London, Ohio
43140, defendant-appellant, pro se



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Mario A. Rodriguez, appeals pro se from the decision of

the Preble County Court of Common Pleas denying his most recent public records request

seeking to inspect and copy certain documents allegedly retained by plaintiff-appellee, the

state of Ohio, after he was found guilty of possession of heroin and possession of criminal
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tools. For the reasons outlined below, we affirm.1

       {¶ 2} On April 6, 2009, the Preble County grand jury returned an indictment charging

Rodriguez with possession of heroin in violation of R.C. 2925.11(A)(C)(6)(f), a first-degree

felony, and possession of criminal tools in violation of R.C. 2923.24(A), a fifth-degree felony.

The charges were brought after Rodriguez was pulled over for speeding and found to be

transporting heroin. Following a jury trial, Rodriguez was found guilty of both charges and

sentenced to serve a mandatory ten-year prison term.

       {¶ 3} On May 3, 2010, this court affirmed Rodriguez's conviction on direct appeal and

the Ohio Supreme Court subsequently declined review. State v. Rodriquez, 12th Dist. Preble

No. CA2009-09-024, 2010-Ohio-1944, appeal not accepted, 126 Ohio St.3d 1584, 2010-

Ohio-4542. The United States District Court for the Southern District of Ohio later denied

Rodriguez's petition for a writ of habeas corpus. Rodriguez v. Warden, Southern Ohio

Correctional Facility, 940 F.Supp.2d 704 (S.D.Ohio 2013). In denying his direct appeal and

his petition for a writ of habeas corpus, both this court and the United States District Court

overruled Rodriguez's claims alleging ineffective assistance of counsel.

       {¶ 4} On March 9, 2011, Rodriguez filed a public records request with the trial court

seeking an order requiring his trial counsel to "release and deliver all discovery, transcripts,

documents, and other paperwork" dealing with his case. The trial court never took any action

in regards to this request. Rather, on March 23, 2011, Rodriguez's former trial counsel filed a

notice of submission with the trial court that specifically stated "all discovery, transcripts, and

other materials specifically requested by the Defendant have been sent to him via mail on

March 22, 2011." Rodriguez did not take any further action in regards to this request.

       {¶ 5} Over two years later, on June 17, 2013, Rodriguez filed another public records



1. Pursuant to Loc.R. 6(A), we have sua sponte removed this case from the accelerated calendar.
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request with the trial court seeking access to all trial court and appellate court records

following his conviction, including, among a litany of other documents, the most recent

docketing statement, indictment and bill of particulars, any and all discovery materials,

witness statements, jury verdict forms, all briefs and motions filed by both parties, as well as

this court's final judgment entry. Despite the earlier notice of submission from his former trial

counsel, Rodriguez alleged that both his trial counsel and his appellate counsel refused to

allow him access to the requested documents. According to Rodriguez, the documents are

necessary for his preparation of a delayed application for reconsideration and reopening with

this court, an application for clemency pursuant to R.C. 2967.07, a renewed petition for a writ

of habeas corpus with the United States District Court, and many other unspecified

postconviction motions and administrative remedies.

       {¶ 6} On July 30, 2013, the trial court issued a decision granting Rodriguez's request.

In so holding, the trial court explicitly stated the following:

              After due consideration, the Court finds that, although it is not
              certain that [Rodriguez] has met the standards necessary, the
              Court chooses to err in favor of [Rodriguez].

              The Clerk shall provide to [Rodriguez] a copy of all of the records
              filed in this case and in the subsequently filed Court of Appeals'
              case, provided that [Rodriguez] pay to the Clerk the sum of $.05
              per copy produced. The Clerk shall submit to [Rodriguez] an
              estimate of the cost of producing a copy of every document filed
              in the two above mentioned cases.

              The Court cannot order any records sent to [Rodriguez] other
              than the records found in these two cases.

       {¶ 7} On August 9, 2013, the Preble County Clerk of Courts sent Rodriguez a letter

stating the total amount due for copying all trial court and appellate court documents in his

case was $46.86. Shortly thereafter, on August 12, 2013, Rodriguez responded by stating he

was:

              only interested in the discovery materials that was in my

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              discovery packet pursuant to criminal rule 16. I do not need
              transcripts of the pleadings, nor do I need every motion filed in
              the matter. I just need copies of the discovery materials the
              prosecutor office has dealing with the arrest and lab results of
              the drugs, and witnesses statements.

Rodriguez also stated as part of this letter:

              The discovery packet should contain the police reports, witness
              statements, lab results, video recording of the stop by the
              Highway State Trooper, and all other relative related (sic)
              documents that should be in a discovery packet supplemental
              and/or amended.

       {¶ 8} On August 16, 2013, the Clerk sent Rodriguez a copy of the discovery packet in

its entirety that was previously filed by the state. As part of this letter, the Clerk also stated

that "[a]ny other information must be obtained from the Prosecuting Attorney."

       {¶ 9} Approximately six weeks later, on October 2, 2013, Rodriguez filed yet another

public records request with the trial court seeking additional documents from the Preble

County prosecutor's office. Although not specific, as part of this motion, Rodriguez requested

access to a "Full Discovery Packet" and other "prosecuting attorney files." The trial court

ultimately denied Rodriguez's request in an entry filed November 5, 2013. In so holding, the

trial court found the "information sought by [Rodriguez] was delivered to him via his former

attorney a long time ago," and that "[Rodriguez's] claim that he has justiciable claims for relief

is nothing more than an attempt to re-litigate his ineffective assistance claims." The trial

court also noted that "[Rodriguez's] claim has been litigated, and there is no persuasive

argument that the results would be different if the claim were to be re-litigated."

       {¶ 10} Rodriguez now appeals from the trial court's decision, raising a single

assignment of error for review.

       {¶ 11} THE     TRIAL     COURT      ABUSED       ITS   DISCRETION        BY    DENYING

ACCESSIBILITY TO PUBLIC RECORDS CONTAIN [sic] WITHIN THE PROSECUTOR

FILES NOT CONSIDER OR [sic] TO HAVE AN EXEMPT STATUS UNDER THE
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STATUTORY MANDATE TO INSPECT AND COPY PUBLIC RECORDS.

       {¶ 12} In his single assignment of error, Rodriguez argues the trial court erred and

abused its discretion by denying his request for additional records from the prosecutor's

office. We disagree.

       {¶ 13} Through the passage of R.C. 149.43(B)(8), "[t]he General Assembly clearly

evidenced a public-policy decision to restrict a convicted inmate's unlimited access to public

records in order to conserve law enforcement resources." State ex rel. Russell v. Thornton,

111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 14. To that end, "R.C. 149.43(B)(8) requires an

incarcerated criminal offender who seeks records relating to an inmate's criminal prosecution

to obtain a finding by the sentencing judge or the judge's successor that the requested

information is necessary to support what appears to be a justiciable claim." State ex rel.

Fernbach v. Brush, 133 Ohio St.3d 151, 2012-Ohio-4214, ¶ 2.                  Specifically, R.C.

149.43(B)(8) provides:

              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 or concerning what would be a
              criminal investigation or prosecution if the subject of the
              investigation or prosecution were an adult, 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.

(Emphasis added.)

       {¶ 14} "A 'justiciable claim' is a claim properly brought before a court of justice for

relief." State v. Wilson, 2d Dist. Montgomery No. 23734, 2011-Ohio-4195, ¶ 9. Establishing

a justiciable claim ordinarily involves identifying a "pending proceeding with respect to which

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the requested documents would be material." State v. Rodriguez, 6th Dist. Wood Nos. WD-

13-026, WD-13-053 and WD-13-071, 2014-Ohio-1313, ¶ 5, quoting State v. Wilson, 2d Dist.

Montgomery No. 23247, 2009-Ohio-7035, ¶ 5 and State v. Gibson, 2d Dist. Champaign No.

06CA37, 2007-Ohio-7161, ¶ 14. The trial court's decision with respect to whether the inmate

established a justiciable claim is reviewed under an abuse of discretion standard. State v.

Atakpu, 2d Dist. Montgomery No. 25232, 2013-Ohio-4392, ¶ 7. "The term 'abuse of

discretion' connotes more than an error of law or of judgment; it implies that the court's

attitude is unreasonable, arbitrary or unconscionable." State v. Thornton, 12th Dist. Clermont

No. CA2012-09-063, 2013-Ohio-2394, ¶ 34.

       {¶ 15} Here, Rodriguez claims he is "only requesting the release of previous

information already disclosed in an earlier matter" and released to his trial and appellate

counsel, thereby making it improper for the prosecutor's office to withhold such information.

However, the requested documentation has already been provided to Rodriguez on at least

two occasions; first, by his former trial counsel on March 22, 2011 and again by the clerk over

two years later on August 16, 2013. There is nothing more that the prosecutor's office could

release that is subject to disclosure in response to Rodriguez's otherwise overly broad

request. Again, through the passage of R.C. 149.43(B)(8), "[t]he General Assembly clearly

evidenced a public-policy decision to restrict a convicted inmate's unlimited access to public

records in order to conserve law enforcement resources." Thornton, 2006-Ohio-5858 at ¶

14.

       {¶ 16} Moreover, after a thorough review of the record, we find Rodriguez has failed to

establish any justiciable claim for which the items he seeks would be material. Rather,

Rodriguez merely alludes to a number proceedings that he believes could benefit from the

inclusion of these documents, i.e., a delayed application for reconsideration and reopening

with this court, an application for clemency pursuant to R.C. 2967.07, a renewed petition for a
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writ of habeas corpus with the District Court, as well many other unspecified postconviction

motions and administrative remedies. The Ohio Supreme Court, however, has already

declined review of Rodriguez's conviction after this court affirmed the same on direct appeal.

The United States District Court also denied Rodriguez's application for a writ of habeas

corpus.

        {¶ 17} Simply stated, we fail to see how any additional documentation regarding his

arrest, conviction, or appeal, if any such documentation exists, would have any impact on

these matters going forward.2 This is particularly true given the fact that Rodriguez has

already twice received any and all documentation necessary for such filings, as well as the

strong evidence against him supporting his conviction. See Rodriguez, 940 F.Supp.2d at 714

(noting the "strong evidence" presented by the state to support Rodriguez's conviction). "[A]

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

avail himself of R.C. 149.43 to support a post-conviction relief petition." Bowman v. City of

Trotwood Police Dept., 2d Dist. Montgomery No. 20799, 2005-Ohio-4734, ¶ 10, quoting State

ex rel Arnold v. Dept. of Public Safety, Div. of Police, 8th Dist. Cuyahoga No. 78504, 2000

WL 1806986, *2 (Nov. 30, 2000). Therefore, as we find no error in the trial court's decision

denying Rodriguez's most recent public records request, Rodriguez's single assignment of

error is overruled.

        {¶ 18} Judgment affirmed.


        RINGLAND, P.J., and PIPER, J., concur.



2. Rodriguez directs our attention to State ex rel. Watson v. [Mohr], 10th Dist. Franklin No. 10AP-949, 2011-
Ohio-402, for the proposition that "the filing for executive clemency is a 'justiciable claim' to seek public record
access." However, the Tenth District Court of Appeals never addressed that issue within its written decision,
thereby rendering that decision inapplicable to the case at bar. Rather, the only case that our research has
uncovered addressing this exact issue was from the Second District Court of Appeals, which concluded that "an
application for clemency is not 'a justiciable claim' for purposes of R.C. 149.43(B)(8)." State v. Wilson, 2d Dist.
Montgomery No. 23734, 2011-Ohio-4195, ¶ 9.
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