[Cite as State v. Johnson,
2019-Ohio-1186.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. John W. Wise, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 18CAA110088
:
BRIAN A. JOHNSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court
of Common Pleas, Case No.
13CRI040169
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: March 29, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
CAROL HAMILTON O’BRIEN BRIAN A. JOHNSON, PRO SE
DELAWARE CO. PROSECUTOR Inmate No. 707-245
HAWKEN FLANAGAN P.O. Box 5500
117 N. Union St., 3rd Floor Chillicothe, OH 45601
Delaware, OH 43015
Delaware County, Case No. 18CAA110088 2
Delaney, J.
{¶1} Appellant Brian A. Johnson appeals from the October 15, 2018 judgment
entries of the Delaware County Court of Common Pleas denying his motion to prohibit
disposal of exhibits and to find the Clerk of Court in contempt for purported violation of a
court order. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal conviction is not
necessary to our resolution of this appeal. This case has a lengthy procedural history
and the following relates to the instant appeal only.
{¶3} On January 17, 2014, the Delaware County Grand Jury indicted Appellant,
Brian Johnson, on four counts of rape in violation of R.C. 2907.02 and four counts of
sexual battery in violation of R.C. 2907.03. A jury trial commenced on May 20, 2014.
Four of the counts were amended to attempted offenses and Appellant was found guilty
as charged. By judgment entry filed July 8, 2014, the trial court merged some of the
offenses and sentenced Appellant to an aggregate term of fourteen years in prison.
{¶4} Appellant filed a direct appeal and this Court affirmed his convictions and
sentence. State v. Johnson, 5th Dist. Delaware No. 14CAA070039, 2015–Ohio–1676,
appeal not accepted, 43 Ohio St .3d 1501, 2015–Ohio–4468. Appellant applied to reopen
his appeal which the Supreme Court of Ohio declined to review on March 23, 2016. State
v. Johnson, 145 Ohio St.3d 1425, 2016–Ohio–1173.
{¶5} Appellant filed numerous subsequent petitions for post-conviction relief and
motions for resentencing.
Delaware County, Case No. 18CAA110088 3
{¶6} Relevant here, on August 16, 2018, the trial court journalized a “Notice of
Intent to Dispose of Exhibits” which notified the parties they had 60 days from the date of
filing to retrieve exhibits, or the exhibits would be discarded by the court.
{¶7} On October 9, 2018, appellant filed a “Defendant’s Motion to Prohibit Court
Administrator [ ] from Disposing of Any Exhibits, Depositions, or Transcripts Pursuant to
Sup.R. 26(F)” and a “Defendant’s Motion Charging Clerk of Court Deputy Agents with
Contempt Pursuant to R.C. 2701.02, .03, & .04.” In the first motion, appellant argued he
needed certain exhibits for his post-conviction proceedings, to wit, a “psychological
report” of the victim and a transcript of the grand jury proceedings. In the latter motion,
appellant argued the Clerk violated a prior court order in failing to transfer the record to
the case underlying the instant appeal. The order appellant refers to is noted in our
opinion on direct appeal at State v. Johnson, 5th Dist. Delaware No. 14CAA070039,
2015-Ohio-1676, n.1: “An earlier indictment upon four counts of rape under case number
13 CR I 04 0169 was dismissed on February 26, 2014. All pleadings and bond in the 2013
case transferred to the subsequent indictment under case number 14 CR I 01 0019.” The
first indictment was dismissed and the trial court ordered the contents of the record
transferred to the second case file.
{¶8} On October 15, 2018, the trial court overruled both motions in separate
judgment entries, noting that the Clerk of Court complied with the original order to transfer
the record to the second case. The trial court found no act in disregard of judicial
authority. The case and subsequent appeals were resolved, therefore pursuant to the
Rules of Superintendence, it was appropriate to dispose of the exhibits.
Delaware County, Case No. 18CAA110088 4
{¶9} Moreover, neither of the exhibits were tendered by appellant, therefore he
had no standing to claim to exhibits or to protest their destruction. Appellant sought to
preserve grand jury testimony and an exhibit describing the victim’s mental health. The
trial court found appellant was not entitled to retrieve either of those items or to protest
their destruction and overruled the motion.
{¶10} Appellant now appeals from the trial court’s entries of October 15, 2018.
{¶11} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶12} “I. APPELLANT’S FUNDAMENTAL AND SUBSTANTIAL RIGHT TO
PROCEDURAL & SUBSTANTIVE DUE PROCESS, GUARANTEED BY THE 14TH
AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 16
OF THE OHIO CONSTITUTION, WAS VIOLATED; WHEN THE TRIAL COURT FAILED
TO COMPLY WITH STATUTORY MANDATES PURSUANT TO R.C. 2705.05(A), ALSO
VIOLATING THE SEPARATION OF POWERS DOCTRINE; THUS, LACKING THE
JURISDICTION TO MAKE THE ATTEMPTED ORDER, RESULTING IN MANIFEST
ERROR, RENDERING THE ORDER NULL & VOID, WITH PREJUDICE SUFFERED.”
(Sic throughout.)
{¶13} “II. APPELLANT’S FUNDAMENTAL AND SUBSTANTIAL RIGHT TO
PROCEDURAL & SUBSTANTIVE DUE PROCESS, GUARANTEED BY THE 14TH
AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 16
OF THE OHIO CONSTITUTION, WAS VIOLATED; WHEN THE TRIAL COURT
COMMITTED REVERSIBLE, MANIFEST ERROR BY MISAPPLYING SUP.R. 26(F) AND
MISCONSTRUING THE FACTS ADVANCED TO PROHIBIT DESTRUCTION OF FILES
Delaware County, Case No. 18CAA110088 5
RELATED TO THE CONTEMPT PROCEEDING; RENDERING THE ORDER NULL &
VOID WITH PREJUDICE SUFFERED.” (Sic throughout.)
ANALYSIS
{¶14} Appellant’s two assignments of error are related and will be considered
together. Appellant argues the trial court erred in overruling his motion to hold the clerk
of court in contempt and in denying his request to stop destruction of the exhibits. We
disagree.
{¶15} As part of its jurisdiction to hear and decide cases, a court of common pleas
has the power to direct the disposition of exhibits. See State v. Wilson, 29 Ohio St. 2d
203, 213,
280 N.E.2d 915 (1972) [“the safe custody and control of exhibits, once admitted,
is a matter falling largely within the sound discretion of the trial court”].
{¶16} The event giving rise to this appeal was the trial court’s notice of pending
disposition of exhibits pursuant to Ohio Sup. R. 26(F), which states:
At the conclusion of litigation, including times for direct appeal, a
court or custodian of exhibits, depositions, or transcripts may destroy
exhibits, depositions, and transcripts if all of the following conditions are
satisfied:
(1) The court notifies the party that tendered the exhibits,
depositions, or transcripts in writing that the party may retrieve the exhibits,
depositions, or transcripts within sixty days from the date of the written
notification;
(2) The written notification required in division (F)(1) of this rule
informs the party that tendered the exhibits, depositions, or transcripts that
Delaware County, Case No. 18CAA110088 6
the exhibits, depositions, or transcripts will be destroyed if not retrieved
within sixty days of the notification;
(3) The written notification required in division (F)(1) of this rule
informs the party that tendered the exhibits, depositions, or transcripts of
the location for retrieval of the exhibits, depositions, or transcripts;
(4) The party that tendered the exhibits, depositions, or transcripts
does not retrieve the exhibits, depositions, or transcripts within sixty days
from the date of the written notification required in division (F)(1) of this rule.
{¶17} The trial court’s notice also cited Local Rule 61.06, which states:
Exhibits, depositions, and transcripts.
At the conclusion of litigation, including time for direct appeal,
a court or custodian of exhibits, depositions, or transcripts may
destroy exhibits, depositions, and transcripts if all of the following
conditions are satisfied:
(A) The court notifies the party in writing that exhibits,
depositions, or transcripts may be destroyed within 60 days from the
date of the written notification;
(B) The written notification required in division 61.06(A) of this
rule informs the party that the exhibits, depositions, or transcripts
may be destroyed if not retrieved within 60 days of the notification;
(C) The written notification required in division 61.06(A) of this
rule informs the party of the location for retrieval of the exhibits,
depositions, or transcripts;
Delaware County, Case No. 18CAA110088 7
(D) The party that tendered the exhibits, depositions, or
transcripts does not retrieve the exhibits, depositions, or transcripts
within 60days from the date of the written notification.
{¶18} The trial court complied with the applicable rules for disposition of the
exhibits. The underlying convictions are final. Moreover, appellant cannot establish
standing to challenge disposition of the exhibits because, as appellee points out, he is not
the party who tendered the exhibits.
{¶19} We note appellant’s arguments are premised upon the erroneous
assumption that he is entitled to access to appellee’s exhibits used to convict him in 2014,
or entitled to require the trial court to preserve the exhibits for purposes of further post-
conviction filings. An appellant is not entitled to the return of the exhibits used to support
his convictions. State v. Russell, 2nd Dist. No. 2017-CA-56, 2018-Ohio-518,
106 N.E.3d
248, ¶ 29. Moreover, the exhibits at issue were not tendered by appellant and he cites
no authority upon which he is entitled to access them.
{¶20} Appellant’s motion to have the Clerk of Court held in “indirect contempt”
alleges that the Clerk failed to comply with the trial court’s order to transfer all pleadings
and bond in the 2013 case to the subsequent indictment under case number 14 CR I 01
0019. The record does not support appellant’s allegation. As noted supra, our opinion in
appellant’s direct appeal notes that the record was transferred. Appellant’s motion before
the trial court argues the clerk is “guilty” of contempt pursuant to R.C. 2701.02(A) and (B),
nonexistent sections of the Ohio Revised Code.1 We cannot discern, and will not
1R.C. 2701.02 does not contain subsections, addresses court management, and states
courts must render decisions within a specified time limit.
Delaware County, Case No. 18CAA110088 8
speculate upon, appellant’s contentions that do not support any allegation of “contempt
of court.”
{¶21} Nor is appellant entitled to a hearing upon his unsupported allegations of
“contempt.” By express statutory provision and fundamental due process protection, it is
the accused contemnor who must be afforded a hearing. State v. Bozsik, 9th Dist. Medina
No. 03CA0141-M, 2004-Ohio-4947, ¶ 9, citing R.C. 2705.03 [“an opportunity [must be]
given to the accused to be heard”]; R.C. 2705.05(A) [stating that during a contempt
hearing, a trial court shall “hear any answer or testimony that the accused makes or
offers”]; In re Parker,
105 Ohio App.3d 31, 35,
663 N.E.2d 671 (4th Dist.1995) [stating
that a contemnor's right to Due Process includes the right to be heard].
{¶22} Appellant’s two assignments of error are overruled.
Delaware County, Case No. 18CAA110088 9
CONCLUSION
{¶23} Appellant’s two assignments of error are overruled and the judgments of
the Delaware County Court of Common Pleas are affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.
