Opinion
Case No. 16 CAA 07 0032
12-16-2016
STATE OF OHIO Plaintiff-Appellee v. JAMES F. MORRISON Defendant-Appellant
APPEARANCES: For Plaintiff-Appellee DOUGLAS N. DUMOLT 140 North Sandusky Street Third Floor Delaware, OH 43015 For Defendant-Appellant JAMES F. MORRISON, Pro Se Inmate No. A667172 Richland Correctional Institution 1001 Olivesburg Road P.O. Box 8107 Mansfield, OH 44901-8107
JUDGES: Hon. Sheila G. Farmer, P.J. Hon. W. Scott Gwin, J. Hon. Patricia A. Delaney, J.
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 11CRI060302 JUDGMENT: Affirmed APPEARANCES: For Plaintiff-Appellee DOUGLAS N. DUMOLT
140 North Sandusky Street
Third Floor
Delaware, OH 43015 For Defendant-Appellant JAMES F. MORRISON, Pro Se
Inmate No. A667172
Richland Correctional Institution
1001 Olivesburg Road
P.O. Box 8107
Mansfield, OH 44901-8107 Per Curiam.
{¶1} On May 7, 2012, appellant, James Morrison, entered Alford pleas in the Delaware County Common Pleas Court to four counts of attempted pandering sexually oriented matter involving a minor in violation of R.C. 2907.322. By judgment entry filed July 31, 2012, the trial court sentenced appellant to an aggregate term of ten years in prison.
{¶2} Appellant appealed his sentence and this court affirmed the sentence. State v. Morrison, 5th Dist. Delaware No. 12 CAA 08 0053, 2013-Ohio-2182. See also State v. Morrison, 5th Dist. Delaware No. 15CAA070059, 2016-Ohio-1271; State ex rel. Morrison v. Gormley, 5th Dist. Delaware No. 15 CAD 11 0093, 2016-Ohio-7512.
{¶3} On July 7, 2016, appellant filed a motion in the same trial court for permission to obtain public records pursuant to O.R.C. 149.43(B)(8). Appellant alleged that on August 5, 2013, while he was confined at the Richland Correctional Institution, he was feloniously assaulted with a deadly weapon by another inmate at the behest of a correction officer. The incident was reported to the Ohio State Highway Patrol. Beginning on or about February 2, 2014, appellant sought public records from the Ohio State Highway Patrol and the Richland County Prosecutor's Office. The requests were denied pursuant to R.C. 149.43(B)(8). Appellant argued to the trial court that he needed the requested public records to gather information to support justiciable claims in two active cases he was pursuing, Ohio Court of Claims No. 2015-00653 and Richland County Court of Common Pleas No. 16-CV-165. By judgment entry filed July 7, 2016, the trial court denied the motion, finding the appropriate avenue to challenge the denial was an action in mandamus against the subject offices in either "the court of common pleas in the county where the alleged violation occurred, the court of appeals for the appellate district where the alleged violation occurred, or the Supreme Court of Ohio."
{¶4} Appellant filed an appeal, naming the state of Ohio as appellee. This matter is now before this court for consideration. Assignment of error is as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED DEFENDANT-APPELLANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS WHEN IT FAILED TO ABIDE BY OHIO LAW AND DENIED TO GRANT HIM PERMISSION TO OBTAIN PUBLIC RECORDS PURSUANT TO O.R.C. 149.43(B)(8). THUS VIOLATING HIS RIGHT TO THE FIRST, FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTIONS 1, 2, 3, 10, 11 AND 16; RC 149.43 AND OTHER STATUTORY LAWS."
I
{¶6} Appellant claims the trial court abused its discretion in denying his public records request. We disagree.
{¶7} In his July 7, 2016 public records request filed with the Delaware County Common Pleas Court, appellant sought public records pursuant to R.C. 149.43 unrelated to his underlying criminal case. Appellant sought public records from the Ohio State Highway Patrol and the Richland County Prosecutor's Office related to an incident which had occurred while he was incarcerated at the Richland Correctional Institution. Both offices denied appellant's request under R.C. 149.43(B)(8) which states the following:
A public office or person responsible for public records is not required to permit a person who is incarcerated pursuant to a criminal conviction or a juvenile adjudication to inspect or to obtain a copy of any public record concerning a criminal investigation or prosecution or concerning what would be a criminal investigation or prosecution if the subject of the investigation or prosecution were an adult, 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.
{¶8} In the event the public records request is denied, R.C. 149.43(C)(1) provides the following:
If a person allegedly is aggrieved by the failure of a public office or the person responsible for public records to promptly prepare a public record and to make it available to the person for inspection in accordance with division (B) of this section or by any other failure of a public office or the person responsible for public records to comply with an obligation in accordance with division (B) of this section, the person allegedly aggrieved may do only one of the following, and not both:
(a) File a complaint with the clerk of the court of claims or the clerk of the court of common pleas under section 2743.75 of the Revised Code;
(b) Commence a mandamus action to obtain a judgment that orders the public office or the person responsible for the public record to comply with division (B) of this section, that awards court costs and reasonable attorney's fees to the person that instituted the mandamus action, and, if applicable, that includes an order fixing statutory damages under division (C)(2) of this section. The mandamus action may be commenced in the court of common pleas of the county in which division (B) of this section allegedly was not complied with, in the supreme court pursuant to its original jurisdiction under Section 2 of Article IV, Ohio Constitution, or in the court of appeals for the appellate district in which division (B) of this section allegedly was not complied with pursuant to its original jurisdiction under Section 3 of Article IV, Ohio Constitution.
{¶9} After being denied public records by the Ohio State Highway Patrol and the Richland County Prosecutor's Office, appellant filed his records request with the Delaware County Common Pleas Court. Appellant failed to follow the mandates of R.C. 149.43(C)(1). In addition, as set forth in a reply to receipt of appellant's merit brief filed with this court on September 16, 2016, the Delaware County Prosecutor is correct in believing it is not a party in interest in the case sub judice. The Delaware County Prosecutor does not have any authority over the Ohio State Highway Patrol and the Richland County Prosecutor's Office relative to their public records.
{¶10} Upon review, we find the trial court correctly denied appellant's public records request. Appellant is to follow the mandates of R.C. 149.43(C)(1).
{¶11} The sole assignment of error is denied.
{¶12} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby affirmed. By Farmer, P.J. Gwin, J. and Delaney, J. concur. SGF/sg 1121