State v. Boyle

[Cite as State v. Boyle, 2022-Ohio-2887.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2022-CA-19
:
v. : Trial Court Case No. 2013-CR-42
:
DAVID BOYLE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 19th day of August, 2022.

...........

MEGAN A. HAMMOND, Atty. Reg. No. 0097714, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200, Xenia, Ohio
45385
Attorney for Plaintiff-Appellee

DAVID BOYLE, #A687-887, C.C.I., P.O. Box 5500, Chillicothe, Ohio 45601
Defendant-Appellant, Pro Se

.............

LEWIS, J.
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{¶ 1} Defendant-Appellant David Boyle appeals from an order of the Greene

County Common Pleas Court denying his “Request to Subpoena Specific Records.” For

the reasons outlined below, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 2} The history of this case was recently addressed in State v. Boyle, 2d Dist.

Greene No. 2022-CA-7, 2022-Ohio-2165, ¶ 2-6:

In 2013, Boyle was indicted on 16 counts of rape involving his

daughter. Following negotiations, Boyle entered a plea of guilty to six

counts of rape in exchange for the dismissal of the remaining counts. No

agreement was reached as to sentencing. The trial court sentenced Boyle

to an aggregate prison term of 40 years and designated him a Tier III sex

offender. The conviction was affirmed on appeal. State v. Boyle, 2d Dist.

Greene No. 2013-CA-43, 2014-Ohio-1271.

On June 16, 2014, Boyle filed a pro se application to reopen his

appeal pursuant to App.R. 26(B). We denied his application to reopen on

September 29, 2014. Boyle filed three additional applications to reopen in

2016, 2020, and 2021, which were all denied by this Court.

On June 24, 2018, Boyle filed a “Motion to Dismiss Defective

Indictment,” in which he argued that the indictment violated his

constitutional right to due process because it contained numerous

undifferentiated counts of rape. Boyle claimed these “carbon-copy” counts

failed to describe sufficiently the charges, thereby preventing him from
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properly preparing his defense. The State filed a memorandum in

opposition. The trial court overruled the motion, finding that Boyle's guilty

plea waived any error associated with the indictment and that his claims

were barred by the doctrine of res judicata. Boyle appealed, and we

affirmed the judgment of the trial court. See State v. Boyle, 2d Dist. Greene

No. 2018-CA-12, 2018-Ohio-3284.

On September 19, 2018, Boyle filed a “Petition for an Evidentiary

Hearing,” in which he alleged Miranda violations, speedy trial violations,

insufficient evidence, and ineffective assistance of counsel. The trial court

construed the motion as a petition for post-conviction relief and denied it as

untimely on October 23, 2018.

On November 2, 2021, Boyle filed a “Motion for Fraud Upon the

Court Pursuant to R.C. 2921.32(A).” The State filed a memorandum in

opposition on December 1, 2021. The trial court again construed the

motion as a petition for post-conviction relief and denied it as untimely on

January 6, 2022.

This Court affirmed the trial court’s decision denying Boyle’s November 2021 motion as

an untimely and successive petition for post-conviction relief. Id. at ¶ 16-17.

{¶ 3} After the trial court overruled Boyle’s November motion, Boyle filed a

“Request to Subpoena Specific Records.” Boyle sought the following documents: grand

jury transcripts, Miranda waivers, sworn affidavits from his defense attorneys, his own

statements, statements made by the victim and two other witnesses, text messages, Ohio
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Bureau of Criminal Investigation (“BCI”) documents, and speedy trial time waivers.

Boyle explained that he requested the records in order to demonstrate that his conviction

had not been supported by the evidence and that his attorney had been ineffective. He

later argued in his response to the State’s reply that he was seeking the records to obtain

possible newly-discovered evidence and to potentially show a Brady violation if, in fact,

new evidence came to light.

{¶ 4} The trial court construed Boyle’s motion as: (1) a petition for post-conviction

relief, (2) a request for public records filed pursuant to R.C. 149.43, (3) a request for grand

jury transcripts, and (4) a request for court records as defined by Sup.R. 44. To the

extent the trial court construed Boyle’s motion as a petition for post-conviction relief, a

request for grand jury transcripts, and a request for public records, his motion was denied.

To the extent that the motion sought court records, the trial court did not deny Boyle’s

motion but, instead, instructed Boyle to request those records from the Greene County

Clerk of Courts and remit payment to the clerk for any costs of the copies. Boyle timely

appealed.

{¶ 5} While not clear from his brief, it appears that Boyle argues on appeal that the

trial court should have granted his request for various records, and that the trial court

erred in denying his motion as an untimely petition for post-conviction relief. We find no

merit to his arguments.

{¶ 6} We first note that prior to the filing of briefs, this Court questioned whether a

portion of the trial court’s decision constituted a final appealable order. Having found

that the portion of the trial court’s order denying Boyle’s post-conviction request for grand
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jury transcripts is not a final appealable order, we specifically limited the scope of this

appeal to exclude review of the denial of his request for grand jury transcripts. Therefore,

we will not consider that portion of the trial court’s order in this opinion.

II. Petition for Post-Conviction Relief

{¶ 7} The trial court first considered Boyle’s “Request to Subpoena Specific

Records” as an untimely and successive petition for post-conviction relief. The trial court

found it lacked jurisdiction to consider Boyle’s petition and denied it. Upon review, we

find the trial court did not err in construing Boyle’s motion as a petition for post-conviction

relief and, thereafter, denying it.

{¶ 8} It is well-established that “[c]ourts may recast irregular motions into whatever

category necessary to identify and establish the criteria by which the motion should be

judged.” State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, 882 N.E.2d 431, ¶ 12.

“[W]here a criminal defendant, subsequent to his or her direct appeal, files a motion

seeking vacation or correction of his or her sentence on the basis that his or her

constitutional rights have been violated, such a motion is a petition for post[-]conviction

relief as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160, 679

N.E.2d 1131 (1997). In his motion, Boyle requested the trial court to review certain

documents from his case in order to prove to the trial court that his attorney was ineffective

for various reasons. At the end, he asked that the trial court review the specifically

identified records so that the court could see that he did not receive “a fair trial if one was

to be had, a fair plea agreement, a fair direct appeal, a fair delayed appeal, post-

conviction, state habea[s], or any other remedy that would be required[.]” While we
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agree with the trial court that Boyle’s motion was difficult to adequately categorize, we do

not think it was unreasonable for the trial court to have construed his motion as an

untimely petition for post-conviction relief.

{¶ 9} “A post[-]conviction proceeding is not an appeal of a criminal conviction, but,

rather, a collateral civil attack on the judgment.” State v. Steffen, 70 Ohio St.3d 399,

410, 639 N.E.2d 67 (1994). If a defendant has filed a direct appeal of his or her

conviction, a petition for post-conviction relief must be filed no later than 365 days after

the trial transcript is filed in the court of appeals in the direct appeal. R.C.

2953.21(A)(2)(a). Boyle filed a direct appeal of his conviction, and the transcript of

proceedings was filed in this Court in August 2013. The current petition for post-

conviction relief was filed in January 2022, well beyond the 365-day deadline set forth in

R.C. 2953.21(A)(2)(a).

{¶ 10} Where a defendant files an untimely petition for post-conviction relief, the

trial court lacks jurisdiction to consider it, unless the untimeliness is excused under R.C.

2953.23(A)(1)(a). State v. Wells, 2d Dist. Champaign No. 2010-CA-5, 2010-Ohio-3238,

¶ 10. The untimely filing of a petition for post-conviction relief may be excused with a

showing that either (1) the defendant was unavoidably prevented from discovering the

facts upon which he or she relies to present the claim, or (2) the United States Supreme

Court recognized a new federal or state right that applies retroactively to his or her

situation and the petition asserts a claim based on that right. R.C. 2953.23(A)(1)(a).

Additionally, the petitioner must show by clear and convincing evidence that, if not for the

constitutional error from which he or she suffered, no reasonable factfinder would have
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found the petitioner guilty of the offense for which the defendant was convicted. R.C.

2953.23(A)(1)(b).

{¶ 11} “We review a trial court's denial of a petition for postconviction relief without

a hearing for an abuse of discretion.” (Citations omitted.) State v. Taylor, 2021-Ohio-

1670, 170 N.E.3d 1310, ¶ 40 (2d Dist.). A trial court abuses its discretion when its

decision evidences an attitude that is arbitrary, capricious, or unreasonable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 12} Boyle has failed to allege or assert any facts that would satisfy the two-

prong test set forth in R.C. 2953.23(A)(1). Specifically, Boyle has failed to allege any

facts that would establish he was unavoidably prevented from discovering the facts upon

which he relies to present his claims, and he does not assert that the United States

Supreme Court has recognized a new federal or state right that applies retroactively to

his situation. Because Boyle did not satisfy the two-prong test to excuse the

untimeliness of his petition, the trial court was without jurisdiction to consider his petition

or provide the relief he requested. State v. Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-

4744, 121 N.E.3d 351, ¶ 41. As such, the trial court correctly denied Boyle’s motion.

III. Request for Records

{¶ 13} Due to the ambiguity of Boyle’s motion, the trial court considered the motion,

in the alternative, as a request for public records. Ohio’s Public Records Act requires a

public office to make copies of public records available to any person on request and

within a reasonable period of time. R.C. 149.43(B)(1). “But when a requester seeks

public records from a court, the Rules of Superintendence generally apply.” State ex rel.
 -8-

Ware v. Kurt, Ohio Slip Opinion No. 2022-Ohio-1627, __ N.E.3d __, ¶ 11. Because the

two categories of public records requests operate differently, it was necessary for the trial

court to determine under which category Boyle’s requests fell. The court found that the

majority of the records requested fell under Ohio’s Public Records Act codified in R.C.

149.43, while the court records fell under the Rules of Superintendence for the Courts of

Ohio. To the extent that the trial court considered Boyle’s motion a public records

request, the trial court found that Boyle had not provided any information for the court to

conclude that he was pursuing a justiciable claim and that the records sought were

necessary to support that claim. To the extent the trial court considered Boyle’s request

for court records under the Rules of Superintendence, it explained that Boyle was entitled

to request and obtain those records, but that he must direct his request to the Greene

County Clerk of Courts and remit payment to the clerk for any costs for those copies. We

agree with the trial court in both respects.

a. Public Records Act

{¶ 14} While the Public Records Act should be applied “liberally in favor of broad

access” to public records, there are some limitations. One such limitation is in R.C.

149.43(B)(8), which states, in relevant part, that:

A public office or person responsible for public records is not required to

permit a person who is incarcerated pursuant to a criminal conviction * * *

to inspect or to obtain a copy of any public record concerning a criminal

investigation or prosecution * * * unless the request to inspect or to obtain

a copy of the record is for the purpose of acquiring information that is subject
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to release as a public record under this section and the judge who imposed

the sentence * * * 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} The statute “sets forth heightened requirements for inmates seeking public

records, and requires an incarcerated criminal defendant to demonstrate that the

information he is seeking pursuant to R.C. 149.43 is necessary to support a justiciable

claim or defense.” State v. Gibson, 2d Dist. Champaign No. 2006-CA-37, 2007-Ohio-

7161, ¶ 13 (applying former R.C. 149.43(B)(4), now R.C. 149.43(B)(8)). “A ‘justiciable

claim’ is a claim that is properly brought before a court of justice for relief.” State v.

Wilson, 2d Dist. Montgomery No. 23737, 2011-Ohio-4195, ¶ 9. A justiciable claim does

not exist where an inmate fails to identify “any pending proceeding with respect to which

the requested documents would be material * * *.” State v. Atakpu, 2d Dist. Montgomery

No. 25232, 2013-Ohio-4392, ¶ 9, citing Gibson at ¶ 14.

{¶ 16} Orders denying an inmate’s request for public records are reviewed under

an abuse of discretion standard. State v. Morris, 2d Dist. Montgomery Nos. 26949 and

26960, 2017-Ohio-1196, ¶ 29, citing Atakpu at ¶ 7. A trial court abuses its discretion

when the determination is arbitrary, unreasonable, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 17} There is no question that Boyle was an incarcerated individual pursuant to

a criminal conviction as he was sentenced to a term of 40 years in prison as a result of

his guilty pleas. The relevant records he sought included Miranda waivers, his own
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statements, statements made by the victim and two other witnesses, text messages, and

BCI documents—all of which concerned a criminal investigation or prosecution. The

sworn affidavits Boyle requested of his defense attorneys did not exist and, therefore,

could not be obtained from a public records request. The filed time waivers are

addressed below as they fall under the category of court records. Because R.C.

149.43(B)(8) plainly applied, Boyle was required to show that the information he was

seeking under the public records request was necessary to support a justiciable claim or

defense.

{¶ 18} Given that Boyle’s November 2021 petition for post-conviction relief was

denied, there was no pending proceeding with respect to which the requested documents

would be material. Boyle has not shown that any potentially cognizable claims remain

justiciable in his case, which already has seen a direct appeal, multiple petitions for post-

conviction relief, and a federal habeas corpus action. Further, because Boyle entered a

negotiated guilty plea, which this Court affirmed on direct appeal, it is difficult to conceive

how Boyle could show that the documents he sought were necessary to support a

justiciable claim or defense, inasmuch as Boyle’s guilty pleas constitute a complete

admission of guilt. Crim.R. 11(B)(1). Thus, any claims pertaining to factual guilt, such

as witness statements or text messages, are irrelevant. Accordingly, the trial court did

not abuse its discretion when it determined Boyle had failed to demonstrate that the

information sought in the public record was necessary to support what appears to be a

justiciable claim.

b. Rules of Superintendence for the Courts of Ohio
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{¶ 19} “Sup.R. 44 through 47 deal specifically with the procedures regulating public

access to court records and are the sole vehicle for obtaining such records in actions

commenced after July 1, 2009.” State ex rel. Richfield v. Laria, 138 Ohio St. 3d 168,

2014-Ohio-243, 4 N.E.3d 1040, ¶ 8. The superintendence rules define “court record” as

both a “case document” and an “administrative document.” Sup.R. 44(B). Relevant

here, the term “case document” means a document or information submitted to a court or

filed with a clerk of courts in a judicial action or proceeding (e.g., exhibits, pleadings,

orders), as well as any document prepared by the court or the clerk of courts in the judicial

action or proceeding (e.g., journals, dockets), subject to certain exceptions. Sup.R.

44(C)(1).

{¶ 20} Of the documents requested by Boyle, only the speedy trial time waivers

filed with the clerk of courts were subject to the Rules of Superintendence for the Courts

of Ohio. Those records were accessible through the Greene County Clerk of Courts’

office. Pursuant to Greene County Common Pleas Court Local Rules of Practice and

Procedure 1.08(I)(A), the clerk of courts is responsible for filing and maintaining all

documents delivered to the clerk’s office. Upon request and the payment of a photocopy

fee, the clerk will provide copies of any original document maintained by its office within

a reasonable period of time. Gr. Co. C.P.R. 1.08(II)(C). See also Sup.R. 45(B)(4)

(allowing charges for actual costs or deposit of estimated actual costs incurred in

responding to a request for a court record). Thus, the trial court was correct in informing

Boyle that he was entitled to the documents, but that the request must be made to the

Greene County Clerk of Courts and payment must be made to cover the costs of those
 -12-

copies.

{¶ 21} Having found no errors in the trial court’s order, the judgment of the Greene

County Common Pleas Court is affirmed.

.............

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Megan A. Hammond
David Boyle
Hon. Adolfo A. Tornichio