[Cite as State v. Smith, 2021-Ohio-3471.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200366
TRIAL NO. B-1505510
Plaintiff-Appellee, :
vs. : O P I N I O N.
WILLIAM ANTONIO SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: October 1, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
William A. Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant William Antonio Smith appeals the Hamilton
County Common Pleas Court’s judgment denying his “Motion for Subpoena of
Hospital Records and Jail Phone Conversations Between Defendant and Counsel.”
We affirm the court’s judgment.
Procedural Posture
{¶2} In 2017, Smith was convicted on two counts of murder and a single
count of having weapons while under a disability. He unsuccessfully challenged his
convictions on direct appeal and in a petition under R.C. 2953.21 for postconviction
relief. See State v. Smith, 1st Dist. Hamilton No. C-170028, 2018-Ohio-2504,
appeals not accepted, 154 Ohio St.3d 1444, 2018-Ohio-4962, 113 N.E.3d 553; State
v. Smith, 1st Dist. Hamilton No. C-190162, 2020-Ohio-1370.
{¶3} In February 2019, Smith filed an application for DNA testing. The
common pleas court denied the application in August 2019, and Smith appealed.
{¶4} That appeal, in the case numbered C-190558, was still pending,1 when,
in August 2020, Smith filed with the common pleas court his “Motion for Subpoena
of Hospital Records and Jail Phone Conversations Between Defendant and Counsel.”
The common pleas court denied that motion in September 2020. This appeal
followed.
{¶5} In this appeal, Smith presents two assignments of error that may fairly
be read together to challenge the denial of his “Motion for Subpoena of Hospital
1 In April 2021, in the appeal from the denial of Smith’s DNA-testing application, this court
remanded to the common pleas court for the limited purpose of “provid[ing] an explanation for
its denial of Mr. Smith’s DNA-testing request.” State v. Smith, 1st Dist. Hamilton No. C-190558,
2021-Ohio-1389. The common pleas court fulfilled that mandate with its June 2021 entry setting
forth the reasons for denying the application. This appeal remains pending before this court.
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OHIO FIRST DISTRICT COURT OF APPEALS
Records and Jail Phone Conversations Between Defendant and Counsel.” We do not
reach the merits of those assignments of error, because we have no jurisdiction to
review the denial of that motion.
No Common Pleas Court Jurisdiction
{¶6} In his “Motion for Subpoena of Hospital Records and Jail Phone
Conversations Between Defendant and Counsel,” Smith invoked R.C. 2937.19 to ask
the common pleas court to issue a subpoena for evidence “material” to his guilt of the
offenses of which he had been convicted. R.C. 2937.19 authorizes the issuance of
subpoenas for a preliminary hearing, and not, as Smith would have it, for the
purpose of pursuing postconviction relief. The motion did not otherwise designate a
rule or statute under which the relief sought may be granted. Thus, the common
pleas court was left to “recast” the motion “into whatever category necessary to
identify and establish the criteria by which the motion should be judged.” See State
v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12 and syllabus.
{¶7} But the motion was not reviewable by the common pleas court under
any postconviction procedure provided by statute or rule. The motion was not
reviewable under the standards provided by R.C. 2953.21 et seq., governing the
proceedings on a petition for postconviction relief, because it did not seek relief from
Smith’s criminal convictions based on a constitutional violation during the
proceedings resulting in those convictions. See R.C. 2953.21(A)(1). Nor was the
motion reviewable as a motion to withdraw a guilty or no-contest plea under Crim.R.
32.1 or a motion for a new trial under Crim.R. 33, when Smith was convicted, not
upon guilty or no-contest pleas, but following a jury trial, and the motion did not
seek a new trial. The motion was not reviewable under R.C. Chapter 2731 as a
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OHIO FIRST DISTRICT COURT OF APPEALS
petition for a writ of mandamus, under R.C. Chapter 2721 as a declaratory judgment
action, or under R.C. Chapter 2725 as a petition for a writ of habeas corpus, because
the motion did not satisfy those statutes’ procedural requirements. See R.C. 2731.04,
2721.12(A), and 2725.04. And Crim.R. 57(B) did not require the common pleas court
to entertain the motion under Civ.R. 60(B), because Smith’s convictions were
reviewable and had, in fact, been reviewed, under the procedures provided for a
direct appeal.
No Court of Appeals Jurisdiction.
{¶8} Moreover, this court has no jurisdiction to review the common pleas
court’s entry denying Smith’s “Motion for Subpoena.” Article IV, Section 3(B)(2), of
the Ohio Constitution, confers upon an intermediate appellate court only “such
jurisdiction as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals
within the district.”
{¶9} An appeals court has jurisdiction under R.C. 2953.02 and 2953.08 to
review a judgment of conviction entered in a criminal case. But the entry overruling
Smith’s “Motion for Subpoena of Hospital Records and Jail Phone Conversations
Between Defendant and Counsel” is plainly not a judgment of conviction.
{¶10} An appeals court also has jurisdiction under R.C. 2953.23(B) to review
an order denying a petition for postconviction relief. But, as we determined, Smith’s
motion was not reviewable by the common pleas court under the postconviction
statutes.
{¶11} Finally, an appeals court has jurisdiction under R.C. 2505.03(A) to
review and affirm, modify, or reverse a “final order, judgment or decree.” For
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OHIO FIRST DISTRICT COURT OF APPEALS
purposes of that grant of jurisdiction, an order is “final” if it “affects a substantial
right in an action [and] in effect determines the action and prevents a judgment.”
R.C. 2505.02(B)(1). An order is also “final” if it is “made in a special proceeding,”
that is, in “an action or proceeding that is specially created by statute and that prior
to 1853 was not denoted as an action at law or a suit in equity.” R.C. 2505.02(B)(2)
and (A)(2). And an order is “final” if it “grants or denies a provisional remedy.” A
“provisional remedy” is a remedy in “a proceeding ancillary to an action.” And an
order granting or denying a provisional remedy is final, when the order “in effect
determines the action with respect to the provisional remedy and prevents a
judgment in the action in favor of the appealing party with respect to the provisional
remedy,” and “[t]he appealing party would not be afforded a meaningful or effective
remedy by an appeal following final judgment as to all proceedings, issues, claims,
and parties in the action.” R.C. 2505.02(A)(3) and (B)(4).
{¶12} Thus, under R.C. 2505.03(A), an intermediate appellate court has
jurisdiction to review an inferior court’s order only if that order was entered in an
“action” or “proceeding.” But the common pleas court’s entry denying Smith’s
“Motion for Subpoena” was not made in any “action” or “proceeding” then pending
before that court.
{¶13} The “Motion for Subpoena” itself did not commence an “action” or
“proceeding” before the common pleas court. As we determined, the motion was
subject to dismissal for lack of jurisdiction, because it was not reviewable by the
common pleas court under any postconviction procedure provided by statute or rule.
{¶14} Nor could the entry denying the “Motion for Subpoena” be said to have
been made in the “proceeding” commenced upon Smith’s application for DNA
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OHIO FIRST DISTRICT COURT OF APPEALS
testing. The DNA-testing application was filed and denied, and its denial was
appealed, in 2019. Then, in 2020, while that appeal was pending, the “Motion for
Subpoena” was filed and denied, and its denial is here appealed. The appeal from the
denial of the DNA-testing application had divested the common pleas court of
jurisdiction to take any further action upon the DNA-testing application, except in
aid of that appeal. See State ex rel. Dobson v. Handwork, 159 Ohio St.3d 442, 2020-
Ohio-1069, 151 N.E.3d 613, ¶ 17, citing In re S.J., 106 Ohio St.3d 11, 2005-Ohio-3215,
829 N.E.2d 1207, ¶ 9. And Smith’s “Motion for Subpoena” cannot be read to seek
relief in aid of that appeal.
{¶15} Thus, the entry from which this appeal derives, denying the “Motion
for Subpoena,” was not, as required by R.C. 2505.02, made in any “action” or
“proceeding” then pending before the common pleas court. Therefore, R.C.
2505.03(A) does not confer upon this court jurisdiction to review the denial of the
motion.
Appeal Dismissed
{¶16} This court has no jurisdiction to review the entry denying Smith’s
“Motion for Subpoena of Hospital Records and Jail Phone Conversations Between
Defendant and Counsel.” Accordingly, we dismiss the appeal.
Appeal dismissed.
BERGERON, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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