[Cite as State v. Long, 2018-Ohio-4194.]

                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




STATE OF OHIO,                             :         APPEAL NO. C-170529
                                                     TRIAL NO. B-0402803
          Respondent-Appellee,             :

        vs.                                :            O P I N I O N.

JOHN LONG,                                 :

          Petitioner-Appellant.            :



Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: October 17, 2018




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John W. Long, pro se.
                    OHIO FIRST DISTRICT COURT OF APPEALS

Per Curiam.

       {¶1}   Petitioner-appellant John Long appeals the Hamilton County

Common Pleas Court’s judgment denying his “Request for Leave to Request Public

Records Pursuant to ORC 149.43(B)(8) and * * * State ex rel. Caster v. City of

Columbus.” We reverse the court’s judgment.

       {¶2}   Long was convicted in 2004 of murder. We affirmed his conviction on

direct appeal. State v. Long, 1st Dist. Hamilton No. C-040643 (Oct. 26, 2005),

appeal not accepted, 108 Ohio St.3d 1489, 2006-Ohio-962, 843 N.E.2d 794. And

after remanding for correction of his sentence in 2010, see State v. Long, 1st Dist.

Hamilton No. C-100285, 2010-Ohio-6115, we affirmed the denial of postconviction

petitions filed between 2012 and 2014. See State v. Long, 1st Dist. Hamilton No. C-

140420 (Mar. 20, 2015); State v. Long, 1st Dist. Hamilton Nos. C-130566 and C-

130605 (June 13, 2014), appeal not accepted, 140 Ohio St.3d 1466, 2014-Ohio-4629,

18 N.E.3d 446; State v. Long, 1st Dist. Hamilton No. C-120521 (Apr. 24, 2013),

appeal not accepted, 136 Ohio St.3d 1476, 2013-Ohio-3790, 993 N.E.2d 779.

       {¶3}   In 2015, Long again filed with the common pleas court a petition for

postconviction relief pursuant to R.C. 2953.21 et seq., seeking relief from his

conviction on grounds of prosecutorial misconduct and ineffective assistance of trial

counsel. In his 2015 postconviction petition, Long asserted that evidence outside the

trial record, in the form of a stranger’s unsolicited letter to him and a written report

submitted to his trial counsel by an investigator assigned to his case, revealed the

existence of statements made by eyewitnesses to law enforcement that exonerated

him in the murder.       He sought relief from his conviction on the grounds of

prosecutorial misconduct, in failing to disclose that exculpatory evidence in

discovery, and ineffective assistance of counsel, in failing to discover the evidence

and present it in his defense.




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                    OHIO FIRST DISTRICT COURT OF APPEALS

       {¶4}   Then, in 2016, in an effort to gain access to information contained in

public records to support his pending postconviction claims, he filed with the

common pleas court his “Request for Leave to Request Public Records.” The court

denied the request upon its determination that Long “failed to demonstrate under

R.C. 149.43(B)(8) that he is entitled to the records.”

       {¶5}   In this appeal, Long advances a single assignment of error contending

that the common pleas court erred in denying his “Request for Leave to Request

Public Records.” We agree.

                                    Jurisdiction
       {¶6}   We determine, as a preliminary matter, that the common pleas court’s

entry denying Long an R.C. 149.43(B)(8) justiciable-claim finding constituted a final

appealable order, because it was entered in a special proceeding and affects a

substantial right. See R.C. 2505.03(A); 2505.02(B)(2). Accord State v. Heid, 4th

Dist. Scioto No. 14CA3655, 2014-Ohio-4714, ¶ 4-6.

                    An Inmate’s Access to Public Records
       {¶7}   Ohio’s Public Records Act, R.C. 149.43 (“the Act”), mandates that

public records be made accessible and available upon request. R.C. 149.43(B)(1).

Courts are to construe the Act’s provisions liberally in favor of broad access,

resolving any doubt in favor of disclosure of public records. State ex rel. McCaffrey

v. Mahoning Cty. Prosecutor’s Office, 133 Ohio St.3d 139, 2012-Ohio-4246, 976

N.E.2d 877, ¶ 16.

       {¶8}   The Act’s grant of broad access to public records does not, however,

extend to a convicted inmate seeking public records pertaining to his prosecution or

the investigation leading to his prosecution. Under R.C. 149.43(B)(8),

       A public office or person responsible for public records is not required

       to permit a person who is incarcerated pursuant to a criminal

       conviction * * * to inspect or to obtain a copy of any public record


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                   OHIO FIRST DISTRICT COURT OF APPEALS

       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.

See State ex rel. Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5838, 856

N.E.2d 966, ¶ 14 (construing similarly-worded former R.C. 149.43(B)(4) to declare

that R.C. 149.43(B)(8) evinces the General Assembly’s “public-policy decision to

restrict a convicted inmate’s unlimited access to public records in order to conserve

law enforcement resources”).

                               A Justiciable Claim
       {¶9}   Under the Act, a convicted inmate is entitled to access to information

pertaining to his investigation or prosecution only after he has secured from his

sentencing judge or the judge’s successor a “finding * * * that ‘the information sought

in the public record is necessary to support what appears to be a justiciable claim’.”

Thornton at ¶ 16. Long’s “Request for Leave to Request Public Records,” filed with

the common pleas court before which his postconviction petition is pending, can only

be read as a request, preliminary to a public-records request, for a justiciable-claim

finding. And the court, in denying that request, must be said to have determined

that Long failed to demonstrate that he was entitled to that finding. We disagree

with that conclusion.

       {¶10} While the Act itself does not define a “justiciable claim,” Ohio courts
have described a “justiciable claim” as one that is “properly brought before a court of

justice for relief.” See State v. Askew, 2017-Ohio-1512, 89 N.E.3d 55, ¶ 11 (11th


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                   OHIO FIRST DISTRICT COURT OF APPEALS

Dist.); State v. Seal, 4th Dist. Highland No. 13CA10, 2014-Ohio-4168, ¶ 8; State v.

Rodriguez, 12th Dist. Preble No. CA2013-11-011, 2014-Ohio-2583, ¶ 14; State v.

Wilson, 2d Dist. Montgomery No. 23734, 2011-Ohio-4195, ¶ 9; see also State v.

Dowell, 8th Dist. Cuyahoga No. 102408, 2015-Ohio-3237, ¶ 7 (holding that a

“justiciable” claim is a claim that is “capable of affording appropriate relief”). The

statute’s requirement may be satisfied by “identifying ‘a pending proceeding with

respect to which the requested documents would be material.’ ” Wilson at ¶ 5,

quoting State v. Gibson, 2d Dist. Champaign No. 06-CA-37, 2007-Ohio-7161, ¶ 14.

Accord Dowell at ¶ 7; Seal at ¶ 8; Rodriquez at ¶ 14; see also Askew at ¶ 11-12

(holding that a “justiciable claim” may be demonstrated by, but need not be, a

pending claim).

       {¶11} Long filed his “Request for Leave to Request Public Records” with the
common pleas court in connection with his pending 2015 postconviction petition. In

his request, he sought leave to request access to allegedly exculpatory eyewitness

statements to law enforcement that had not been disclosed in discovery or presented

at trial.   Those statements were material to the prosecutorial-misconduct and

ineffective-counsel claims advanced in his petition.

       {¶12} And his prosecutorial-misconduct and ineffective-counsel claims were
cognizable under R.C. 2953.21 et seq. The claims sought relief from his murder

conviction based on alleged constitutional violations during the proceedings leading

to that conviction. See R.C. 2953.21(A)(1). The claims were not subject to dismissal

under the doctrine of res judicata, because they depended for their resolution upon

evidence outside the trial record. See State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d

104 (1967), paragraph nine of the syllabus.

       {¶13} Further, R.C. 2953.23(A)(1) provides jurisdiction to entertain a late or
successive postconviction petition if the petitioner demonstrates that he had been

unavoidably prevented from discovering the facts upon which his postconviction


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claim depends, and that the alleged constitutional error was outcome-determinative.

In his petition, Long invoked the jurisdiction conferred under R.C. 2953.23 to

entertain a late and successive postconviction petition by alleging outcome-

determinative constitutional errors and by arguing that the R.C. 149.43(A)(2)(c)

exception to public-records access had precluded his access to necessary records

until 2016, when the Ohio Supreme Court held that the exception did not extend past

the completion of the criminal procedure for which the requested information had

been gathered. See State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-

8394, 89 N.E.3d 598, ¶ 47, overruling in part State ex rel. Steckman v. Jackson, 70

Ohio St.3d 420, 639 N.E.2d 83 (1994), and State ex rel. WLWT–TV5 v. Leis, 77 Ohio

St.3d 357, 673 N.E.2d 1365 (1997).

                                     We Reverse
       {¶14} We, therefore, hold that the common pleas court erred in denying
Long’s request for, because he had established an entitlement to, a finding for

purposes of R.C. 149.43(B)(8) that “the information sought in the public record is

necessary to support what appears to be a justiciable claim.” This is not a statement

on whether we believe that information exists, on whether it is in the possession of

any agency from which Long might seek it, or on the underlying merits of his

postconviction petition. We hold only that he is entitled to the finding required for

him to make a public-records request. Accordingly, we sustain the assignment of

error, reverse the court’s judgment denying that finding, and remand for an entry

conforming to the requirements of the statute.

                                              Judgment reversed and cause remanded.

MOCK, P.J., MYERS and DETERS, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.


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