[Cite as State v. McCain, 2018-Ohio-2425.]


                                     COURT OF APPEALS
                                 MONTGOMERY COUNTY, OHIO
                                 SECOND 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-                                        :   (Visiting Judges Sitting by
                                             :   Supreme Court Assignment)
                                             :
 MICHAEL D. MCCAIN                           :   Case No. 27533
                                             :
                                             :
        Defendant-Appellant                  :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Montgomery County
                                                 Court of Common Pleas, case no. 04-
                                                 CR-1865



JUDGMENT:                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                          June 22, 2018




APPEARANCES:

 For Plaintiff-Appellee:                         For Defendant-Appellant:

 MATHIAS H. HECK, JR.                            MICHAEL D. MCCAIN, PRO SE
 PROSECUTING ATTORNEY                            #A479429
 ANDREW T. FRENCH                                Mansfield Correctional Inst.
 P.O. Box 972                                    P.O. Box 788
 301 West Third Street                           Mansfield, OH 44901
 Dayton, OH 45422
Montgomery County, Case No. 27533                                                       2

Delaney, J.

       {¶1} Appellant Michael D. McCain appeals from the March 15, 2017 “Decision,

Order and Entry Overruling Request for Records” of the Montgomery County Court of

Common Pleas. Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s criminal convictions is not

necessary for our resolution of this appeal. This matter has a lengthy procedural history.

       {¶3} This case arose in 2004 when appellant entered pleas of guilty to felony

murder and aggravated robbery, and was sentenced to an aggregate prison term of 15

years to life. Appellant did not appeal directly from his convictions and sentence.

       {¶4} In 2013, appellant began filing a number of post-conviction motions, all of

which were overruled, and the decisions of the trial court were affirmed in subsequent

appeals. See, State v. McCain, 2nd Dist. Montgomery No. 26020, 2014-Ohio-2819

[McCain I, untimely petition for post conviction relief]; State v. McCain, 2nd Dist.

Montgomery No. 26356, 2015-Ohio-449, motion for delayed appeal denied, 143 Ohio

St.3d 1415, 2015-Ohio-2911, 34 N.E.3d 929 [McCain II, withdrawal of guilty pleas on

basis of alleged “judicial bias” and improper warning re post release control]; State v.

McCain, 2nd Dist. Montgomery No.27195, 2017-Ohio-7518, appeal not allowed, 151 Ohio

St.3d 1514, 2018-Ohio-365, 90 N.E.3d 952 [McCain III, 2016 motions to withdraw pleas

and petition for post conviction relief].

       {¶5} On February 27, 2017, appellant filed an “Official request from Michael D.

McCain Sr., for the Public Records and Court Documents in the archives or records

specialist office for good reason given” (sic throughout). Appellant argued, e.g., he
Montgomery County, Case No. 27533                                                         3

needed the records for the pending appeal in McCain III. The trial court overruled

appellant’s request on March 15, 2017, finding:

                     * * * *.

                     It appears from the record that Defendant seeks certain

              records for purposes of his pending appeal in [McCain III]. The

              record in [McCain III] was certified by the Clerk of Courts on

              November 9, 2016. As such, the court finds that matters relating to

              the record are the subject of the Appellate Court’s jurisdiction, and

              as such, the court OVERRULES the pending Motion filed by

              Defendant.

                     * * * *.

       {¶6} Appellant then filed a motion before this Court on April 10, 2017, during the

pendency of McCain III, requesting the same records, and we granted appellant’s motion,

directing that he “must make his request [for records] to the clerk of courts and must remit

to the clerk any costs for those copies.”

       {¶7} Appellant then filed another motion in McCain III requesting an order to

compel the trial court to provide copies of the records, which we denied.

       {¶8} He also appealed from the trial court’s decision of March 15, 2017, the

instant appeal.

       {¶9} In the meantime, in 2016 appellant commenced an action for a writ of

mandamus in this Court against 1) the judge of the Montgomery Court of Common Pleas

before whom he was arraigned, and 2) the judge of the Montgomery County Court of

Common pleas before whom he entered his guilty pleas. Both judges filed separate
Montgomery County, Case No. 27533                                                       4


motions to dismiss; we dismissed the case in its entirety, and appellant appealed to the

Ohio Supreme Court.

      {¶10} In McCain v. Huffman, 151 Ohio St. 3d 611, 2017-Ohio-9241, 91 N.E.3d
749, the Court overruled a number of appellant’s arguments and stated the following

regarding his requests for records of his arraignment:

                    Regarding [appellant’s] request for records of his arraignment,

             R.C. 149.43(B)(8) provides that there is no duty to provide public

             records requested by an inmate unless “the judge who imposed the

             sentence * * *, 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.” [Appellant] seeks the

             requested records in order to prove that he tried to plead guilty at his

             arraignment and to disprove Judge Froelich's finding that [appellant]

             failed to state a plea. But the outcome of this dispute is of no legal

             consequence: even if he proved his version of events, [appellant]

             would not be entitled to mandamus relief against Judge Huffman.

             Therefore, [appellant’s] request for records of his arraignment was

             correctly denied.

                    McCain v. Huffman, 151 Ohio St. 3d 611, 2017-Ohio-9241, 91
N.E.3d 749, ¶ 12.

      {¶11} We turn now to the instant appeal from the trial court’s decision of March

15, 2017.

      {¶12} Appellant raises one assignment of error:
Montgomery County, Case No. 27533                                                          5


                                 ASSIGNMENT OF ERROR

        {¶13} “THE TRIAL COURT AND SPECIAL PANEL HAS DENIED, HINDERED,

AND PREVENTED ACCESS TO THE COURT RECORDS, AS PUBLIC RECORDS, AND

EVIDENCE TO PROVE HIS CLAIM, THAT HE NOT ONLY PLEAD GUILTY AT HIS

ARRAIGNMENT, BUT WAS WITHOUT HIS ALREADY APPOINTED COUNSEL.

VIOLATING HIS STATUTORY, AND CONSTITUTIONAL RIGHTS TO DUE PROCESS

AND EQUAL PROTECTION OF THE LAW, OF BOTH THE FEDERAL AND STATE OF

OHIO.     PURSUANT TO O.R.C. 149.43, AND OHIO SUPERINTENDENCE RULE

47(A)(1) [sic throughout].”

                                         ANALYSIS

        {¶14} Appellant argues, again, that he is entitled to the records of his arraignment.

We disagree.

        {¶15} First, as we have already advised appellant, he must request records from

the clerk of court and “must remit to the clerk any costs for those copies.” Ohio Sup.

R. 45(B) states:

                      (1) A court or clerk of court shall make a court record available

               by direct access, promptly acknowledge any person's request for

               direct access, and respond to the request within a reasonable

               amount of time.

                      (2) Except for a request for bulk distribution pursuant to Sup.

               R. 46, a court or clerk of court shall permit a requestor to have a court

               record duplicated upon paper, upon the same medium upon which

               the court or clerk keeps it, or upon any other medium the court or
Montgomery County, Case No. 27533                                                      6


             clerk determines it can be reasonably duplicated as an integral part

             of its normal operations.

                    (3) A court or clerk of court shall mail, transmit, or deliver

             copies of a requested court record to the requestor within a

             reasonable time from the request, provided the court or clerk may

             adopt a policy allowing it to limit the number of court records it will

             mail, transmit, or deliver per month, unless the requestor certifies in

             writing that the requestor does not intend to use or forward the

             records, or the information contained in them, for commercial

             purposes. For purposes of this division, “commercial” shall be

             narrowly construed and does not include news reporting, the

             gathering of information to assist citizens in the understanding of

             court activities, or nonprofit educational research.

                    (4) A court or clerk of court may charge its actual costs

             incurred in responding to a request for direct access to a court

             record. The court or clerk may require a deposit of the estimated

             actual costs.

      {¶16} Pursuant to the Rules of Superintendence, therefore, appellant may request

the records but he must pay the clerk’s actual costs of preparing them.

      {¶17} Appellant also argues, though, that he is entitled to the records pursuant to

the Public Records Act, R.C. 149.43. The pertinent portion of that Act, section (B)(8),

provides:
Montgomery County, Case No. 27533                                                        7


                      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.

       {¶18} Appellant has failed to present any justiciable claims for which the

requested records would provide support.        Moreover, the Ohio Supreme Court has

already reviewed appellant’s claims and determined that the request for records was

properly denied. McCain v. Huffman, supra, 2017-Ohio-9241 at ¶ 12. Finally, any

purported claim related to the underlying criminal case has been raised and rejected in

appellant’s series of appeals listed supra.

       {¶19} We conclude appellant’s request for records dated February 27, 2017 was

properly overruled.

       {¶20} Appellant’s sole assignment of error is denied.
Montgomery County, Case No. 27533                                                   8


                                   CONCLUSION

       {¶21} Appellant’s sole assignment of error is overruled and the judgment of the

Montgomery County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Baldwin, J., concur.



                                        HON. PATRICIA A. DELANEY




                                        HON. JOHN W. WISE



                                        HON. CRAIG R. BALDWIN