[Cite as State v. McGlown,
2021-Ohio-334.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-20-1100
Appellee Trial Court No. CR0200503412
v.
Ennie Ray McGlown, Jr. DECISION AND JUDGMENT
Appellant Decided: February 5, 2021
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Ennie Ray McGlown, Jr., pro se.
…
ZMUDA, P.J.
{¶ 1} This matter is a pro se accelerated appeal of the judgment of the Lucas
County Court of Common Pleas, denying a motion for transcripts at the state’s expense.
Finding no abuse of discretion by the trial court, we affirm.
{¶ 2} Appellant, Ennie Ray McGlown, Jr. is currently serving an aggregate prison
term of 36 years. In 2007, a jury found appellant guilty of one count of gross sexual
imposition and six counts of rape. The trial court sentenced appellant to a three-year term
on the gross sexual imposition offense, and a six-year term on each of the rape offenses,
with the three-year term running concurrent to a rape term, and the six, six-year rape
terms running consecutively to each other. The trial court also classified appellant as a
sexually-oriented offender. The original sentencing entry stated that appellant “was
found guilty” and also indicated that appellant was “given notice of … post release
control notice under R.C. 2929.19(B)(3)1 and R.C. 2967.28.”
{¶ 3} Appellant challenged his conviction by direct appeal, raising error related to
expert and police testimony, and arguing prosecutorial misconduct in closing argument.
No sentencing error was asserted in the direct appeal, and although the record
demonstrated transcripts filed for all hearing dates but the sentencing hearing, no party
requested the sentencing hearing transcript to remedy the omission. We affirmed the
conviction in appellant’s direct appeal in State v. McGlown, 6th Dist. Lucas No.
L-07-1163, 2009-Ohio-2160.
{¶ 4} Appellant raised error regarding his conviction and sentence in numerous
other filings. While his direct appeal remained pending, appellant filed a motion
1
Under the current version of R.C. 2929.19, notice of postrelease control is referenced at
sections (B)(2)(e) and (f).
2.
seeking to set aside his conviction as void, pursuant to State v. Colon, 118 Ohio St.3d 26,
2008-Ohio-1624,
885 N.E.2d 917, arguing the indictment failed to charge “a mens rea
element upon the Defendant.” The trial court did not rule on the motion.
{¶ 5} Months later, on March 12, 2010, appellant filed a motion with the trial
court, requesting entry of a “final judgment,” pursuant to State v. Baker, 119 Ohio St.3d
197,
2008-Ohio-3330,
893 N.E.2d 163 and Crim.R. 32(C). Appellant argued that the
sentencing entry did not state the manner of conviction, and failed to include notification
of postrelease control terms. On September 16, 2010, the trial court entered a nunc pro
tunc judgment entry, specifying the manner of conviction as a guilty determination by a
jury.
{¶ 6} Appellant filed an appeal from the nunc pro tunc judgment entry. The state
asserted a cross-appeal, raising issues relative to the nunc pro tunc entry, and application
of the correct sexual offender classification law. After noting the issues raised, we
dismissed the appeal for lack of jurisdiction. As to the sentencing hearing, we noted the
lack of a transcript, as well as the failure of the parties to remedy the omission in the
direct appeal. State v. McGlown, 6th Dist. Lucas No. L-10-1298, 2012-Ohio-4493, ¶ 11,
fn. 1.
{¶ 7} On February 13, 2019, appellant filed a second motion for a final appealable
order, arguing the trial court failed to include notice regarding postrelease control. On
May 17, 2019, the trial court denied the motion, but noted the same issue raised by
appellant was also pending in State v. Harper, 160 Ohio St.3d 480,
2020-Ohio-2913,
3.
159 N.E.3d 248. The trial court granted appellant leave to renew his motion upon the
issuance of the decision in Harper. Appellant did not renew his motion.
{¶ 8} On April 27, 2020, appellant filed correspondence in the trial court case,
asserting a public record request pursuant to R.C. 149.43. Appellant specifically
requested transcripts of an in-camera inspection on September 11, 2006, the judgment
entry of the same in-camera inspection, a copy of his motion for new trial filed March 20,
2007, the sentencing hearing transcript of April 19, 2007, the trial court’s records
retention schedule, the trial court’s public records policy, and the trial court’s oath of
office. While there is no record of any response to this “request” in the trial court’s
docket, we noted in a subsequent mandamus action that the clerk had provided all
documents within his possession, and dismissed that action. See State ex rel. McGlown v.
Bernie Quilter, Clerk of Court, 6th Dist. Lucas No. L-20-1101, 2020-Ohio-6659.
{¶ 9} On April 30, 2020, appellant filed a motion for production of the sentencing
hearing transcript of April 19, 2007, at the state’s expense, prepared for the trial court for
the sentencing hearing.2 The state opposed the request for transcripts, arguing appellant
had no pending appeal or pending petition seeking postconviction relief, and as
transcripts were prepared and filed in his direct appeal, the state had no further obligation
to provide a second transcript. On May 21, 2020, the trial court denied the motion for
transcripts.
2
The motion also sought production a copy of a diagnostic report, prepared for the trial
court prior to sentencing. Appellant does not raise this issue on appeal.
4.
{¶ 10} On June 2, 2020, after the trial court had ruled, appellant filed a response to
the state’s opposition, indicating no transcript for the April 19, 2007 sentencing hearing
was prepared and filed with his direct appeal. He further argued that his appellate
counsel was ineffective in failing to ensure that transcripts of the sentencing hearing were
part of the record in his direct appeal. Appellant filed the present appeal, challenging the
trial court’s denial of his motion for sentencing transcripts.
{¶ 11} Appellant also filed a mandamus action against the trial court, seeking
production of the sentencing hearing transcript. Noting the present appeal, we dismissed
the mandamus action. State ex rel. McGlown v. Myron C. Duhart, 6th Dist. Lucas No.
L-20-1124 (Aug. 18, 2020).
{¶ 12} Appellant asserts a single assignment of error in this appeal:
The judge abused his/her discretion when he/she failed to grant
Appellant’s motion for production of transcripts at state’s expense.
{¶ 13} The appellee, the state of Ohio, argues the trial court’s denial of the motion
for transcripts does not constitute a final, appealable order, requiring dismissal of the
present appeal. In the alternative, the state argues the trial court did not abuse its
discretion in denying the request, filed 11 years after we affirmed in the direct appeal,
eight years after the trial court entered the nunc pro tunc entry, and more than a year after
the trial court denied the most recent motion for a final, appealable sentencing entry.
{¶ 14} There is disagreement whether a denial of a motion for transcripts at state
expense constitutes a final, appealable order. The Second District Court of Appeals
5.
addressed this conflict in State v. Taylor, 2d Dist. Montgomery No. 26327, 2016-Ohio-
1100, noting the Seventh and Eleventh District Courts of Appeal determined the denial of
a request was not final and appealable where no appeal or postconviction proceeding was
pending at the time of the request. Taylor at ¶ 10, citing State v. Jones, 7th Dist.
Mahoning No. 14-MA-46, 2015-Ohio-1707; State v. Miller, 11th Dist. Trumbull No.
2015-T-0022,
2015-Ohio-2986. The Second District concluded such denials did
constitute final, appealable orders, with the Eighth and Tenth District Courts of Appeal in
agreement. Taylor at ¶ 11, citing State v. Clark, 2d Dist. Greene No. 97 CA 27,
1998 WL 321007, *5 (June 19, 1998); State v. Hatfield, 10th Dist. Franklin No.
11AP-1045,
2012-Ohio-3473, ¶ 5, citing Clark; and State v. Majid, 8th Dist. Cuyahoga
No. 102154,
2015-Ohio-2406, ¶ 4, citing Clark.
{¶ 15} The Second District also noted a third line of authority, in which “appellate
courts have simply ruled on appeals without considering whether the trial court’s decision
denying a request for a transcript was a final appealable order.” Taylor at ¶ 12, citing
State v. Buder, 6th Dist. Wood No. WD-11-036, 2012-Ohio-386, State v. Bayles, 8th
Dist. Cuyahoga No. 88094,
2007-Ohio-1008; State v. Walker, 4th Dist. Lawrence
No. 04CA16,
2005-Ohio-1584; State v. McKinstry, 9th Dist. Summit No. 16540,
1994 WL 119370, *1 (Apr. 6, 1994).
{¶ 16} In State v. Buder, 6th Dist. Wood No. WD-11-036, 2012-Ohio-386, we
affirmed the trial court’s denial of transcripts, without considering whether such denial
constituted a final, appealable order. In that case, the appellant had never pursued a
6.
direct appeal, and no motion for delayed appeal was pending at the time he sought
transcripts at public expense. Buder at ¶ 4. We noted a right to a transcript at public
expense arises only if the defendant “has a right to a direct appeal, has been granted leave
to file a delayed appeal, or has sought postconviction relief.”
Id., citing State ex rel.
Partee v. McMahon,
175 Ohio St. 243, 248,
193 N.E.2d 266 (1963). These limited rights
are well-settled law. See State v. Hewitt, 5th Dist. Stark No. 2016CA000067, 2016-Ohio-
5762, ¶ 16, citing State ex rel. Partee at 248,
193 N.E.2d 266; State ex rel. Catlino v.
Clerk of Courts,
9 Ohio St.2d 101,
224 N.E.2d 130 (1967); State ex rel. Clark v.
Marshall,
63 Ohio St.2d 107,
406 N.E.2d 1128 (1980).
{¶ 17} Our appellate jurisdiction is limited to final appealable orders. State ex rel.
White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St.3d 543, 545,
684 N.E.2d 72 (1997),
citing R.C. 2505.03; State ex rel. Wright v. Ohio Adult Parole Auth.,
75 Ohio St.3d 82,
84,
661 N.E.2d 728 (1996). Pursuant to R.C. 2505.02(B), a final, appealable order
includes an order that affects a substantial right. A “substantial right” is defined as “a
right that the United States Constitution, the Ohio Constitution, a statute, the common
law, or a rule of procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1).
A postconviction relief petition, pursuant to R.C. 2953.21 or 2951.23, or application to
reopen, pursuant to App.R. 26(B), are possible because a statute or rule of procedure
creates a right to proceed.
{¶ 18} Therefore, although previously left unsaid in Buder, we agree with the
Second District Court of Appeals which held that, regardless of whether the appellant
7.
actually has the right in a particular case, the denial of a request for transcripts affects a
substantial, legal right. (Citations omitted.) Taylor at ¶ 13. To hold otherwise would
necessitate consideration of the merits of an appeal in order to make the jurisdictional
determination, with jurisdiction only found where an appellant is likely to prevail on the
merits. We either have jurisdiction to consider the merits of an appeal, or we do not, with
that jurisdiction defined, in this instance, by the rights implicated within R.C. 2505.02.
{¶ 19} In considering the merits, in this case, we note that appellant had no
postconviction proceeding and no application to reopen pending at the time he requested
the transcript. Furthermore, appellant identified no particular challenge to his sentence,
requiring reference to the sentencing transcript. Prior challenges, moreover, have
attacked the conviction as void, and a recent decision by the Ohio Supreme Court
forecloses such a challenge. See State v. Henderson, Slip Opinion No. 2020-Ohio-4784,
¶ 44 (a sentencing challenge must be asserted in the direct appeal or such challenge is
deemed waived, even where the sentence is later determined to be unlawful).
{¶ 20} Without a pending matter, appellant is not entitled to a transcript at state’s
expense. Therefore, we find no merit in appellant’s appeal, and find the trial court was
within its discretion to deny the request. Accordingly, we find appellant’s sole
assignment of error not well-taken.
8.
Conclusion
{¶ 21} We affirm the judgment of the Lucas County Court of Common Pleas,
denying appellant’s motion for transcripts. Appellant is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
9.
