Opinion
No. 37855
Decided May 15, 1963.
Mandamus — Action by prisoner after conviction — To require court to furnish record and transcript of testimony — Plea of guilty to indictment — Writ denied.
IN MANDAMUS.
This is an action in mandamus originating in this court. By this action relator seeks to compel the respondent to furnish to him without charge copies of the records pertaining to relator's prosecution.
On October 10, 1961, the Grand Jury of Cuyahoga County returned an indictment charging relator, Joseph Baines, on two counts of armed robbery. Relator was arraigned October 13, 1961, at which time he pleaded not guilty and an attorney was appointed to represent him. During the trial the relator withdrew his plea of not guilty and entered a plea of guilty to unarmed robbery included in the first count in his indictment, and a plea of guilty to the second count in his indictment. He was sentenced November 17, 1961, to the Ohio Penitentiary, the sentences to run concurrently.
On February 8, 1962, relator filed a motion for a new trial, which motion was overruled February 14, 1962. A motion to secure a transcript was filed February 19, 1962. This motion was overruled February 27, 1962, on the basis that he had no appeal pending.
Subsequently relator filed a motion for leave to appeal in the Court of Appeals for Cuyahoga County. This motion was dismissed October 23, 1962.
The present action in mandamus was instituted October 15, 1962. Respondent filed a demurrer to the petition.
Mr. Joseph Baines, in propria persona. Mr. John T. Corrigan, prosecuting attorney, and Mrs. Gertrude Bauer Mahon, for respondent.
Relator in this action is seeking to compel the respondent to furnish him without charge the records pertaining to relator's prosecution, including a transcript of testimony. The right of an indigent defendant to free copies of the record of his criminal prosecution arises primarily from the provisions of Section 2953.03, Revised Code, which reads in part as follows:
"The judge of the trial court in a felony case may, because of the poverty of the defendant, in the interest of justice, order the bill of exceptions and transcript, or either, paid from the county treasury in the manner provided in Section 2301.24 of the Revised Code, and order the amount in money so paid charged as costs in the case. In cases where the court grants a motion to prepare a bill of exceptions for the defendant at the expense of the state, as herein provided, and there is not sufficient time to file it, as provided by Section 2945.65 of the Revised Code, the court shall extend such time, not exceeding 30 days from granting such motion."
It is clear that the purpose of this section is not to furnish reading matter for an accused but to ensure him an equal right of appeal with more fortunate persons who have the means to pay for such records. This is the purpose of this section and nothing more.
Thus it may be seen that the right of an indigent defendant to be furnished free copies of the records of his prosecution is not absolute but is dependent upon whether such records are necessary for the prosecution of a pending appeal. To enforce such right by mandamus, the defendant must have a clear present right to such records.
It is axiomatic that a clear legal right must be established before a writ of mandamus will issue. 35 Ohio Jurisprudence (2d), 254, Mandamus, Section 13. This right to a writ of mandamus must be a present right, that is, one to which the relator would be entitled at the time the writ would issue.
Here, the relator entered a plea of guilty to the indictment. In view of such fact it is difficult to see how a transcript would be necessary for him to perfect an appeal. In order to prevail in an action in mandamus, relator must allege and prove that the transcript is necessary for him to perfect an appeal. An examination of the petition and briefs in support thereof show no such necessity.
No present clear legal right to such records having been shown, the writ must be denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.