[Cite as State v. Nicholson, 2017-Ohio-7312.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                         Hon. John W. Wise, J.
                                                   Hon. Earle E. Wise, J.
-vs-
                                                   Case No. 2017 CA 00082
DAMARCUS NICHOLSON

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 2016 CR 01465(A)


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         August 21, 2017



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

JOHN D. FERRERO                                 DAMARCUS NICHOLSON
PROSECUTING ATTORNEY                            BELMONT CORR. INSTITUTION
KRISTINE W. BEARD                               Post Office Box 540
ASSISTANT PROSECUTOR                            St. Clairsville, Ohio 43950
110 Central Plaza South, Suite 510
Canton, Ohio 44702-1413
Stark County, Case No. 2017 CA 00082                                                      2

Wise, John, J.

      {¶1}   Appellant Damarcus Nicholson appeals the decision of the Court of

Common Pleas, Stark County, which denied his request for a transcript at State expense

of certain criminal proceedings that had ended in a mistrial. Appellee is the State of Ohio.

The relevant facts leading to this appeal are as follows.

      {¶2}   In August 2016, Appellant Nicholson was indicted by the Stark County

Grand Jury on one count of trafficking in heroin, one count of aggravated trafficking in

drugs, one count of possession of heroin, and one count of aggravated possession of

drugs.

      {¶3}   On August 22, 2016, appellant filed a motion to suppress evidence of drugs

that had been seized from a rental vehicle he had been using. On September 9, 2016,

the trial court denied appellant's motion to suppress, concluding that appellant lacked

standing to seek suppression of the evidence seized from the rental vehicle.

      {¶4}   The matter proceeded to a jury trial on September 28, 2016. However, the

matter ended in a mistrial on the same day, based on an issue involving a motion in

limine.

      {¶5}   Following a second jury trial, commencing on September 29, 2016,

appellant was found guilty as charged in the indictment. The trial court sentenced him

on Count I, trafficking in heroin, to a prison term of eight years. For purposes of

sentencing only, Counts II and III were merged into Count I, and a twelve-month

sentence on Count IV was ordered to be served concurrently, for an aggregate sentence

of eight years.
Stark County, Case No. 2017 CA 00082                                                     3


      {¶6}   Appellant then appealed directly to this Court; however, we affirmed his

conviction on May 15, 2017. See State v. Nicholson, 5th Dist. Stark No. 2016CA00210,

2017-Ohio-2825.

      {¶7}   In the meantime, the trial court issued a written judgment entry on October

11, 2016, memorializing the mistrial that had occurred on September 28, 2016. In

addition, on April 28, 2017, shortly before the issuance of our decision in regard to

appellant’s direct appeal, appellant filed a pro se request with the trial court for a

transcript of the proceedings leading to the mistrial of September 28, 2016.

      {¶8}   On May 2, 2017, via judgment entry, the trial court denied appellant’s

request for said transcript.

      {¶9}   On May 18, 2017, appellant filed a pro se notice of appeal. He herein raises

the following sole Assignment of Error:

      {¶10} “I.    THE TRIAL COURT ERRED IN ITS DECISION TO DENY

APPELLANT’S MOTION FOR MISTRIAL TRANSCRIPTS.”

                                            I.

      {¶11} In his sole Assignment of Error, appellant contends the trial court erred in

denying his request for a transcript, at State Expense, of the mistrial proceedings of

September 28, 2016. We disagree.

      {¶12} “[I]n the criminal arena it is an established constitutional right that an

indigent defendant must be afforded a transcript of trial proceedings or its equivalent for

an effective appeal.” State v. Parker, 7th Dist. Mahoning No. 92 CA 135, 2002-Ohio-

1151, citing Britt v. North Carolina (1971), 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400.

The Ohio Supreme Court has similarly held that the State must provide an indigent
Stark County, Case No. 2017 CA 00082                                                            4


    criminal defendant with a transcript of prior proceedings when that transcript is needed

    for an effective defense or appeal. State v. Arrington (1975), 42 Ohio St.2d 114, 326

    N.E.2d 667, paragraph one of the syllabus. But the State bears the burden of showing

    that such a transcript is not necessary or that alternative devices that would fulfill the

    same function are available. See State v. Hoff, 5th Dist. Fairfield No. 02-CA-89, 2003-

    Ohio-3858, ¶ 14, citing Arrington, supra.

          {¶13} In the case sub judice, appellant’s “motion for mistrial transcripts” in the trial

    court made the general assertion that such transcripts “are needed for the furtherance

    of petitioners [sic] direct appeal.” However, at the time appellant filed his motion on April

    28, 2017, his direct appeal following the second trial, which raised suppression issues

    only, had already been briefed, heard at oral argument, and taken under advisement by

    this Court. Furthermore, there is no indication that any transcribed record of the mistrial

    testimony was requested for purposes of or utilized in the second trial.1 While it would

    have been the better practice for the trial court to have allowed more time for the State

    to formally respond to appellant’s mistrial transcript request in accordance with Arrington,

    under the circumstances presented we find no demonstration by appellant of prejudicial

    error warranting reversal.




1     In contrast, in State v. Thacker, 54 Ohio St.2d 43, 374 N.E.2d 642 (1978), the
defendant, Gary Thacker, had requested transcripts of the testimony of eleven witnesses
from his prior mistrial. However, in concluding the request for transcripts from the mistrial
had been improperly overruled, the Ohio Supreme Court noted Thacker had specifically
claimed that such transcripts were necessary in order to adequately prepare for a second
trial. Id. at 43, 44.
Stark County, Case No. 2017 CA 00082                                                 5


       {¶14} Accordingly, appellant's sole Assignment of Error is overruled.

       {¶15} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Stark County, Ohio, is affirmed.



By: Wise, John, J.

Gwin, P. J., and

Wise, Earle, J., concur.



JWW/d 0727
