Summary
holding that an indigent prisoner is only entitled to a free transcript when an appeal or postconviction action is pending
Summary of this case from State v. DupontOpinion
No. 87-70
Decided December 16, 1987.
Criminal procedure — Indigent prisoners — Right to transcript of trial — Right limited to one copy of the transcript and only when an appeal or post-conviction action is pending at time of request.
APPEAL from the Court of Appeals for Ottawa County.
Appellant, Jeffery A. Murr, was convicted of vandalism and possessing criminal tools and sentenced by appellee judge to a term of imprisonment. He was incarcerated at the commencement of this action.
On October 20, 1986, appellant filed a complaint for a writ of mandamus in the Court of Appeals for Ottawa County seeking a partial transcript of his criminal trial. Appellant also filed an affidavit of indigency. Appellee moved to dismiss the complaint on grounds that appellant had already been furnished a transcript in connection with the appeal of his criminal conviction. The court of appeals granted the motion to dismiss.
The cause is now before this court on an appeal as of right.
Jeffrey A. Murr, pro se. Douglas O. Meyer, prosecuting attorney, for appellee James E. Thierry.
Appellant states that he wants to mount a collateral attack on his conviction, essentially by bringing perjury charges against a witness who testified against him and using the anticipated resulting conviction as a basis for seeking post-conviction relief under R.C. 2953.21 to 2953.23. He argues that the Due Process and Equal Protection Clauses of the Constitution of the United States require a transcript to be delivered to him.
This court has held that an indigent prisoner is entitled to relevant portions of a transcript upon, inter alia, appeal or in seeking post-conviction relief. State, ex rel. Partee, v. McMahon (1963), 175 Ohio St. 243, 24 O.O. 2d 386, 193 N.E.2d 266. However, the right is subject to certain limits. One limit previously established is that, inter alia, appeal or post-conviction action must be pending at the time the transcript is sought. State, ex rel. Partee, v. McMahon, supra; State, ex rel. Catlino, v. Clerk of Courts (1967), 9 Ohio St.2d 101, 38 O.O. 2d 255, 224 N.E.2d 130; State, ex rel. Clark, v. Marshall (1980), 63 Ohio St.2d 107, 17 O.O. 3d 65, 406 N.E.2d 1128. Another limit is that only one copy of a transcript need be provided. State, ex rel. Vitoratos, v. Walsh (1962), 173 Ohio St. 467, 20 O.O. 2d 84, 183 N.E.2d 917, appeal dismissed (1962), 371 U.S. 114.
Here, the record does not indicate appellant has a petition for post-conviction relief pending, but does indicate he has already been provided with one transcript. Accordingly, he has no clear legal right to the relief requested, nor does appellee have a clear duty to provide such relief.
The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.