[Cite as State v. Cope,
2015-Ohio-3935.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
CASE NO. CA2015-02-017
Plaintiff-Appellee, :
OPINION
: 9/28/2015
- vs -
:
DOUGLAS A. COPE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2008-10-1862
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Douglas A. Cope, #A617328, Ross Correctional Institution, P.O. Box 7010, Chillicothe, Ohio
45601, defendant-appellant, pro se
S. POWELL, J.
{¶ 1} Defendant-appellant, Douglas A. Cope, appeals pro se from the decision of the
Butler County Court of Common Pleas denying his motion for a finding of a justiciable claim
as required by R.C. 149.43(B)(8) in order for him to obtain various alleged public records
supposedly retained by plaintiff-appellee, the state of Ohio, as well as his trial and appellate
counsel, after a jury found him guilty of two counts of kidnapping and one count of
obstructing official business. For the reasons outlined below, we affirm.
Butler CA2015-02-017
{¶ 2} On November 26, 2008, the Butler County Grand Jury returned an indictment
charging Cope with one count of rape, two counts of kidnapping, and one count of
obstructing official business. According to the bill of particulars, the charges stemmed from
allegations Cope kidnapped, beat and raped his former girlfriend, R.H., over a two-day period
between October 7, 2008 and October 10, 2008, while the couple were located within Butler
County. Cope was eventually arrested following a brief standoff with police. Thereafter,
following a jury trial, Cope was acquitted of the rape charge, but found guilty of both
kidnapping charges and obstructing official business. The trial court then sentenced Cope to
serve a total of nine years in prison and ordered him to pay a fine of $5,000. The trial court
also classified Cope as a Tier II sex offender.
{¶ 3} On December 29, 2010, this court issued a decision affirming Cope's conviction
and sentence on direct appeal, a decision which the Ohio Supreme Court subsequently
declined to review on May 4, 2011. State v. Cope, 12th Dist. Butler No. CA2009-11-285,
2010-Ohio-6430, appeal not accepted,
128 Ohio St.3d 1483,
2011-Ohio-2055.
Approximately four years later, on January 9, 2015, Cope filed a motion with the trial court
requesting it to issue a finding of a justiciable claim as required by R.C. 149.43(B)(8) in order
for him to obtain various alleged public records supposedly retained by the state and his trial
and appellate counsel.
{¶ 4} Specifically, Cope requested: (1) all witness statements presented to his trial
counsel, "as well are available to the prosecution;" (2) pictures of exhibits of R.H., the victim,
C.H., the mother of one of his two children, and "other unidentified women;" (3) phone call
recordings and other unknown items pertaining to his case; (4) any and all documents in the
possession of the state regarding his "entire case and appeal;" and (5) any and all
"informations (sic) and documents" in his trial and appellate counsel's possession. It is
undisputed that Cope had yet to file any petition for postconviction relief prior to filing his
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Butler CA2015-02-017
motion with the trial court.
{¶ 5} On January 12, 2015, the trial court issued a decision denying Cope's request
for a finding of a justiciable claim. In so holding, the trial court concluded the various
discovery materials Cope requested were actually "trial preparation records" as defined by
R.C. 149.43(A)(1)(g) that were not subject to disclosure as public records. The trial court
also determined that issuing a decision finding a justiciable claim was not appropriate since
Cope "makes it clear that the purpose of his obtaining the requested materials is for him to
have information which might be useful to him in filing a petition for postconviction relief
under O.R.C. 2953.21 and 2953.23."
{¶ 6} Cope now appeals from the trial court's decision, raising three assignments of
error for review. For ease of discussion, Cope's three assignments of error will be addressed
together.
{¶ 7} Assignment of Error No. 1:
{¶ 8} TRIAL COURT ERRED IN DESIGNATING APPELLANT'S REQUESTS AS
"TRIAL PREPARATION RECORDS."
{¶ 9} Assignment of Error No. 2:
{¶ 10} TRIAL COURT ERRED IN FINDING THAT APPELLANT HAS NOT MET THE
GROUNDS FOR [DELAY] TO FILE A PETITION UNDER O.R.C. 2953.12,
§2953.23(A)(1)(A), (B), WHEN APPELLANT HAD NOT YET FILED THE PETITION AND HE
SHOWED SPECIFICALLY HOW HE MEETS CAUSE FOR DELAY. (Brackets sic.)
{¶ 11} Assignment of Error No. 3:
{¶ 12} TRIAL COURT ERRED IN DETERMINING EXISTANCE (sic) OF GROUNDS
FOR [DELAY], BECAUSE A MOTION FOR FINDING OF JUSTICIABLE CLAIM IS TO
DETERMINE THE [EXISTANCE (sic) OF A JUSTICIABLE CLAIM], AND NOT THE
[RESOLUTION] OF SUCH CLAIM. (Brackets sic.)
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Butler CA2015-02-017
{¶ 13} In his three assignments of error, Cope argues the trial court erred and abused
its discretion by denying his motion requesting it to issue a finding of a justiciable claim under
R.C. 149.43(B)(8). We disagree.
{¶ 14} Through the passage of R.C. 149.43(B)(8), "[t]he General Assembly clearly
evidenced a public-policy decision to restrict a convicted inmate's unlimited access to public
records in order to conserve law enforcement resources." State ex rel. Russell v. Thornton,
111 Ohio St.3d 409,
2006-Ohio-5858, ¶ 14. To that end, "R.C. 149.43(B)(8) requires an
incarcerated criminal offender who seeks records relating to an inmate's criminal prosecution
to obtain a finding by the sentencing judge or the judge's successor that the requested
information is necessary to support what appears to be a justiciable claim." State ex rel.
Fernbach v. Brush,
133 Ohio St.3d 151,
2012-Ohio-4214, ¶ 2, citing State ex rel. Chatfield v.
Flautt,
131 Ohio St.3d 383,
2012-Ohio-1294. Specifically, R.C. 149.43(B)(8) provides:
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.
{¶ 15} "A 'justiciable claim' is a claim properly brought before a court of justice for
relief." State v. Wilson, 2d Dist. Montgomery No. 23734, 2011-Ohio-4195, ¶ 9. "Establishing
a justiciable claim ordinarily involves identifying a 'pending proceeding with respect to which
the requested documents would be material.'" State v. Rodriguez, 12th Dist. Preble No.
CA2013-11-011,
2014-Ohio-2583, ¶ 14, quoting State v. Rodriguez, 6th Dist. Woods Nos.
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Butler CA2015-02-017
WD-13-026, WD-13-053, and WD-13071, 2014-Ohio-1313, ¶ 5. Therefore, merely "[a]lluding
to possible future proceedings that could result from access to the records is insufficient to
satisfy this burden." State v. Heid, 4th Dist. Scioto Nos. 14CA3668 and 14CA3669, 2015-
Ohio-1502, ¶ 15, citing Rodriquez,
2014-Ohio-1313 at ¶ 6.
{¶ 16} A trial court's decision with respect to whether an inmate has established a
justiciable claim is reviewed under an abuse of discretion standard. Rodriquez, 2014-Ohio-
2583 at ¶ 14, citing State v. Atakpu, 2d Dist. Montgomery No. 25232, 2013-Ohio-4392, ¶ 7.
"The term 'abuse of discretion' connotes more than an error of law or of judgment; it implies
that the court's attitude is unreasonable, arbitrary or unconscionable." State v. Thornton,
12th Dist. Clermont No. CA2012-09-063,
2013-Ohio-2394, ¶ 34. A decision is unreasonable
when it is "unsupported by a sound reasoning process." State v. Abdullah, 10th Dist.
Franklin No. 07AP-427,
2007-Ohio-7010, ¶ 16, citing AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp.,
50 Ohio St.3d 157, 161 (1990).
{¶ 17} After a thorough review of the record, we find Cope has failed to establish any
justiciable claim now pending for which the various discovery materials he requested would
be material. Rather, Cope merely alludes to the fact that he intends to file a petition for
postconviction relief, a petition he explicitly notes as part of his appellate brief "has not even
yet been filed." As noted above, this is an insufficient basis upon which Cope may satisfy his
burden. Heid, 2015-Ohio-1502 at ¶ 15, citing Rodriquez,
2014-Ohio-1313 at ¶ 6; see, e.g.,
State v. Dowell, 8th Dist. Cuyahoga No. 102408,
2015-Ohio-3237, ¶ 8 (finding trial court's
decision denying an inmate's public records request was proper where he "did not identify
any pending proceeding for which the requested records would be material"); State v. Seal,
4th Dist. Highland No. 13CA10,
2014-Ohio-4168, ¶ 10 (finding trial court's decision denying
an inmate's public records request was proper where he "failed to identify any pending
justiciable proceeding for which the requested item would be material"); Atakpu, 2013-Ohio-
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Butler CA2015-02-017
4392 at ¶ 10 (finding trial court's decision denying an inmate's public records request was
proper where he "identified no pending judicial proceedings that would suffice under the
heightened requirements for incarcerated inmates seeking public records under the statute").
{¶ 18} Moreover, as this court recently noted, "'a defendant in a criminal case who has
exhausted the direct appeals of his conviction may not avail himself of R.C. 149.43 to support
a post-conviction relief petition.'" Rodriquez, 2014-Ohio-2583 at ¶17, quoting Bowman v. City
of Trotwood Police Dept., 2d Dist. Montgomery No. 20799,
2005-Ohio-4734, ¶ 10. In this
case, the Ohio Supreme Court has already declined to review Cope's conviction and
sentence after this court affirmed the same on direct appeal. Furthermore, just as the trial
court found, the record is clear that any petition for postconviction relief that Cope may file
would fall well outside the timeframe permitted by Ohio's postconviction relief statute as
found in R.C. 2953.21(A)(2).1 See State v. Heid, 4th Dist. Scioto No. 14CA3655, 2015-Ohio-
1467, ¶ 18. As a result, because it does not appear that Cope has requested any newly
discovered evidence, any claim Cope might present as part of a petition for postconviction
relief would likely be barred by the doctrine of res judicata. "Claims barred by res judicata are
not justiciable." State v. Reid, 2d Dist. Montgomery No. 24672,
2012-Ohio-1659, ¶ 10.
{¶ 19} In light of the foregoing, we find Cope has failed to show how the various
discovery materials he requested would aid in his defense or support a justiciable claim in
any way. Therefore, under these circumstances, the trial court did not err or abuse its
discretion by denying Cope's motion. In reaching this decision, we offer no opinion as it
relates to the trial court's decision finding the various discovery materials Cope requested
were actually "trial preparation records" as defined by R.C. 149.43(A)(1)(g) that were not
1. As applicable here, pursuant to former R.C. 2953.21(A)(2), a petitioner was required to file a petition for
postconviction relief "no later than one hundred eighty days after the date on which the trial transcript is filed in
the court of appeals in the direct appeal of the judgment of conviction or adjudication[.]" However, R.C.
2953.21(A)(2) has since been amended effective March 23, 2015 to allow a petitioner 365 days to file a timely
postconviction relief petition.
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Butler CA2015-02-017
subject to disclosure as public records. See generally State ex re. Cincinnati Enquirer v.
Sage, 142 Ohio St.3d 392,
2015-Ohio-974. Accordingly, Cope's three assignments of error
lack merit and are overruled.
{¶ 20} Judgment affirmed.
M. POWELL, P.J., and RINGLAND, J., concur.
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