[Cite as State v. West, 2017-Ohio-643.]


                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                        ROSS COUNTY

STATE OF OHIO,                                        :

        Plaintiff-Appellee,                          :
                                                                     Case No. 16CA3549
        v.                                           :
                                                                     DECISION AND
DARRELL W. WEST,                                     :               JUDGMENT ENTRY

        Defendant-Appellant.                         :               RELEASED 02/17/2017


                                          APPEARANCES:

Darrell W. West, Orient, Ohio, pro se Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.



Hoover, J.


        {¶ 1} Defendant-appellant, Darrell W. West, appeals the judgment of the Ross County

Common Pleas Court denying his “Motion for Discovery of and/or to Compel Production of

Audio/Video Recordings (DVDs or a transcription thereof).” On appeal, West contends that the

trial court erred in denying his motion because he needs the evidence to prepare his petition for

post-conviction relief; the trial court denied the motion without giving him time to reply to the

State’s memorandum contra; the trial court failed to rule on his subsequent “Motion for

Discovery of and/or to Compel Production of Internal Police Documents”; and the Clerk of

Court failed to timely journalize his “Motion for Discovery of and/or to Compel Production of

Internal Police Documents.” However, because the challenged judgment is not a final appealable

order, we lack jurisdiction to address the merits of his appeal; and we must DISMISS it.
Ross App. No. 16CA3549                                                                            2


                                I. Facts and Procedural Posture


       {¶ 2} West was indicted by the Ross County Grand Jury on May 9, 2014, on one count of

trafficking in heroin in violation of R.C. 2925.03, a felony of the second degree. A few months

later, West pleaded guilty to the charge, was found guilty, and was sentenced to a four-year

mandatory prison sentence. West did not file a direct appeal.

       {¶ 3} On March 23, 2016, West filed two documents: (1) a “Motion for Discovery of

and/or to Compel Production of Audio/Video Recordings (DVDs or a Transcription Thereof)”,

and (2) a “Motion for Discovery of and/or to Compel Production of Internal Police Documents”.

In both motions, West indicated that the requested evidence was necessary to prepare his petition

for post-conviction relief.

       {¶ 4} The State filed a combined memorandum contra to West’s motions on March 31,

2016, arguing that West did not have a right to discovery.

       {¶ 5} The trial court denied West’s “Motion for Discovery of and/or to Compel

Production of Audio/Video Recordings (DVDs or a Transcription Thereof)”, on April 5, 2016. In

its judgment entry, the trial court makes no mention of West’s “Motion for Discovery of and/or

to Compel Production of Internal Police Documents”.

       {¶ 6} It is from this judgment that West timely appeals.

                                   II. Assignments of Error


       {¶ 7} West sets forth the following assignments of error for our review:

Assignment of Error I:

       The Court erred by denying Appellant’s MOTION FOR DISCOVERY OF
       AND/OR TO COMPEL PRODUCTION OF AUDIO/VIDEO
       RECORDINGS (DVDS OR A TRANSCRIPTION THEREOF).

Assignment of Error II:
Ross App. No. 16CA3549                                                                                 3


       The Court erred by prematurely filing its journal ENTRY denying Appellant’s
       MOTION FOR DISCOVERY OF AND/OR TO COMPEL PRODUCTION
       OF AUDIO/VIDEO RECORDINGS (DVDS OR A TRANSCRIPTION
       THEREOF).

Assignment of Error III:

       The Clerk of Courts erred by delaying the journalization of Appellant’s
       MOTION FOR DISCOVERY OF AND/OR TO COMPEL PRODUCTION
       OF INTERNAL POLICE DOCUMENTS for a period of two days after its
       filing date, because it is incorrectly listed on the Court’s docket as being on
       March 25, 2016, but the actual filing date was on March 23, 2016.

Assignment of Error IV:

       The Court erred by its failure to rule on Appellant’s MOTION FOR
       DISCOVERY OF AND/OR TO COMPEL PRODUCTION OF INTERNAL
       POLICE DOCUMENTS.

(Emphasis sic.)

                                      III. Law and Analysis


                                     Final, Appealable Order

       {¶ 8} As an initial matter, we sua sponte raise the issue of whether the judgment appealed

from is a final appealable order, thus granting us jurisdiction to decide this appeal. “[T]he

existence of a final appealable order is a jurisdictional question that this Court can, and must

when necessary, raise sua sponte.” Savage v. Cody–Ziegler, Inc., 4th Dist. Athens No. 06CA5,

2006-Ohio-2760, ¶ 31.

       {¶ 9} Appellate courts in Ohio have jurisdiction to review the final orders or judgments

of inferior courts within their district. Section 3(B)(2), Article IV of the Ohio Constitution; R.C.

2501.02. A final appealable order is one that affects a substantial right and, in effect determines

the action. R.C. 2505.02(B)(1). An order that grants or denies a provisional remedy is also a final

appealable order if: (1) the order in effect determines the action with respect to the provisional
Ross App. No. 16CA3549                                                                               4


remedy and prevents a judgment in the action in favor of the appealing party with respect to the

provisional remedy, and (2) the appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and parties in

the action. R.C. 2505.02(B)(4). If a judgment is not final and appealable, then an appellate court

has no jurisdiction to review the matter and must dismiss the appeal. Prod. Credit Assn. v.

Hedges, 87 Ohio App.3d 207, 210, 621 N.E.2d 1360 (4th Dist.1993), fn. 2; Kouns v. Pemberton,

84 Ohio App.3d 499, 501, 617 N.E.2d 701 (4th Dist.1992).

       {¶ 10} “ ‘Discovery orders have long been recognized as interlocutory,’ and are neither

final nor appealable.” State v. Colon, 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, ¶ 10,

quoting Klein v. Bendix–Westinghouse Automotive Air Brake Co., 13 Ohio St.2d 85, 87, 234

N.E.2d 587 (1968). In other words, because the trial court’s judgment is subject to revision, it did

not fully determine the proceedings. Id. We still must consider, however, whether West’s post-

conviction motion for discovery is a “provisional remedy,” and is, therefore, a final appealable

order under R.C. 2505.02(B)(4).

       {¶ 11} A provisional remedy “means a proceeding ancillary to an action, including, but

not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged

matter, [or] suppression of evidence * * *.” (Emphasis added.) R.C. 2505.02(A)(3).

       {¶ 12} In the case sub judice, West does not claim that any of the evidence sought in his

discovery motion is privileged. More importantly, however, West’s motion is not ancillary to any

action or court proceeding currently in existence. Although West claims that he plans to use the

evidence to prepare and file a petition for post-conviction relief, no petition has been filed.

Accordingly, West’s post-conviction motion for discovery is not a “provisional remedy” as

defined by R.C. 2505.02(A)(3). See Gehm v. Timberline Post & Frame, 112 Ohio St.3d 514,
Ross App. No. 16CA3549                                                                            5


2007-Ohio-607, 861 N.E.2d 519, ¶¶ 26-27 (holding that a motion to intervene for the purpose of

establishing a record in a separate action is not an ancillary proceeding to an action and does not

qualify as a provisional remedy for the purposes of R.C. 2505.02).


                                          IV. Conclusion


       {¶ 13} Upon review, we find that the trial court's denial of West's post-conviction motion

for discovery is interlocutory, as opposed to final, and does not affect a substantial right.

Furthermore, as previously discussed, West’s motion is not a “provisional remedy” as defined by

R.C. 2505.02(A)(3). Because the trial court's judgment denying the motion is not a final

appealable order, we do not have jurisdiction to consider this appeal. Therefore, we DISMISS

this appeal.

                                                                            APPEAL DISMISSED.
Ross App. No. 16CA3549                                                                                6


                                     JUDGMENT ENTRY


       It is ordered that the APPEAL IS DISMISSED. Appellant shall pay the costs.
       The Court finds that reasonable grounds existed for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in that court. If a stay is continued
by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the
failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-
five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration
of sixty days, the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.




                                                             For the Court

                                                             By:
                                                                   Marie Hoover, Judge


                                    NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
