The parties are to brief the issue as stated on the fifth page of the court of appeals’ May 15, 2023 entry: "Is a trial court’s decision on a motion for appointment of experts in a capital postconviction proceeding a provisional remedy pursuant to R.C. 2505.02(B)(4) and therefore a final order?" The conflict case is State v. Powell, 2019-Ohio-4286, 148 N.E.3d 51 (6th Disk.). Sua sponte, cause consolidated with 2023-0838, State v. Myers, and briefing in case Nos. 2023-0751 and 2023-0838 consolidated.
"Under Crim.R. 42(E), the trial court has the discretion to appoint experts for indigent defendants in postconviction reviews of capital cases." State v. Powell, 2019-Ohio-4286, 148 N.E.3d 51, ¶ 48 (6th Dist.). We review a trial court's order denying a request to appoint experts for indigent defendants in postconviction reviews of capital cases for abuse of discretion.
It is important to remember that the term "provisional remedy" applies to a proceeding, not an individual order. See id. at 447-448; State v. Powell, 2019-Ohio-4286, 148 N.E.3d 51, ¶ 35 (6th Dist); Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-4115, at ¶ 18.
As the court explained, "postconviction relief issues arise after a criminal defendant's substantial rights have been addressed, and are often not final appealable orders, absent statutory language designating them as such." State v. Powell, 2019-Ohio-4286, 148 N.E.3d 51 (6th Dist), ¶ 28, citing State v. Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-4115, ¶ 14. See also State v. Cunningham, 8th Dist. Cuyahoga No. 85342, 2005-Ohio-3840, ¶ 10.