[Cite as State v. Wilson,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 23734

vs. : T.C. CASE NO. 04CR2632

ANTHONY L. WILSON : (Criminal Appeal from Common Pleas Court Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 19th day of August, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Timothy J. Cole, Asst. Pros. Attorney, Atty. Reg. No. 0084117, P.O. Box 972, Dayton, OH 45422

Attorney for Plaintiff-Appellee

Anthony L. Wilson, #567-649, P.O. Box 69, London, OH 43140 Defendant-Appellant, Pro Se

. . . . . . . . .

GRADY, P.J.:

On October 7, 2009, the common pleas court denied Defendant

Anthony Wilson’s request made pursuant to the Ohio Public Records

Act for copies of certain documents related to Defendant’s

conviction in common pleas court case number 2004CR02632. Wilson

was then incarcerated pursuant to a criminal conviction in another 2

case. The court found that Wilson failed to demonstrate “that

the information sought in the public record is necessary to support

what appears to be a justiciable controversy.”

Wilson filed an application for reconsideration. Wilson

averred that the records he requested are needed “for exhausting

executive remedies (clemency),” adding:

“Those documents are required to be attached to such petition

to validate petitioner criminal history in seeking clemency relief.

Public records needed for this petition consist of; Police Report,

Indictment, and Judgment Entries, etc.”

The trial court denied Wilson’s application for again failing

to show “how his claim of a clemency application is justiciable.”

Wilson appeals.

ASSIGNMENT OF ERROR

“TRIAL COURT COMMITTED PREJUDICE ERROR BY DENYING DEFENDANT

ACCESS TO INSPECT AND COPY THE PUBLIC RECORDS IN VIOLATION OF OHIO

AND UNITED STATES CONSTITUTION AND PURSUANT TO O.R.C.

149.43(B)(8).”

R.C. 149.43(A)(1) defines a public record to include “records

kept by any public office.” R.C. 149.43(B)(1) provides that,

“subject to division (B)(8) of this section, upon request, a public

officer or person responsible for public records shall make copies

of the requested public record available at cost and within a 3

reasonable period of time.”

R.C. 149.43(B)(8) states:

“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.”

A “justiciable claim” is a claim properly brought before a

court of justice for relief. Clemency is the power to grant

reprieves, commutations, and pardons for crimes and offenses.

Section 11, Article II of the Ohio Constitution confers that power

on the governor. That grant of power is exclusive. The power

may not be exercised by a court of justice. Therefore, an

application for clemency is not “a justiciable claim” for purposes 4

of R.C. 149.43(B)(8). The trial court was not required to provide

copies of the records Wilson requested.1

We are troubled by the “justiciable claim” exception in R.C.

149.43(B)(8) we are required by the express terms of that section

to enforce. Section 11, Article II confers power on the governor

to grant reprieves, commutations, and pardons for all crimes and

offenses, “ . . .subject, however, to such regulations, as to the

manner of applying for pardons as may be prescribed by law.” R.C.

2967.07 provides that applications for clemency shall be presented

in writing to the adult parole authority. The parole board has

issued Instructions and Guidelines 2 that require applicants to

provide copies of indictments and judgments of conviction for each

crime for which clemency is requested, adding: “These documents

can be obtained from the sentencing county and may require payment

of a copying fee.” We urge the General Assembly to consider an

exception to the justiciable controversy requirement in R.C.

149.43(B)(8) to permit a convicted defendant who wishes to apply

for clemency to obtain the needed documents.

The assignment of error is overruled. The judgment from which

the appeal is taken will be affirmed.

1 To our knowledge, neither the court nor its clerk maintains or is otherwise responsible to keep police reports. 2 See WWW.drc.ohio.gov/web/Forms/DRC3068 instructions.pdf 5

FAIN, J. And HALL, J., concur.

Copies mailed to:

Timothy J. Cole, Esq. Anthony L. Wilson Hon. Connie S. Price