[Cite as State v. Atakpu,

.]

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

STATE OF OHIO

Plaintiff-Appellee

v.

PETER JEMMA ATAKPU

Defendant-Appellant

Appellate Case No. 25232

Trial Court Case No. 1999-CR-2375 1999-CR-0382 (Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 30th day of September, 2013.

...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

PETER JEMMA ATAKPU, Inmate No. 329-309, Ross Correctional Institution, P.O. Box 7010, Chillicothe, Ohio 45601 Defendant-Appellant-Pro Se

............. 2

WELBAUM, J.

{¶ 1} Appellant, Peter J. Atakpu, appeals from an order holding that he is not entitled

to enforce a public records request. The issue presented by this appeal is whether the trial court

abused its discretion when it found that Atakpu, a prison inmate whose appeals were either

exhausted or time-barred, was not entitled to enforce a public records request without first

demonstrating that the records were necessary to support a justiciable claim under R.C.

149.43(B)(8).

{¶ 2} We conclude that the trial court did not err in overruling Atakpu’s motion for

public records. Atakpu failed to identify pending judicial proceedings that would suffice under

the heightened requirements for incarcerated inmates seeking public records under

R.C.149.43(B)(8). Accordingly, the judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} Appellant, Peter J. Atakpu, was convicted of multiple offenses in Montgomery

County Common Pleas Court on April 6, 2000. After pleading guilty to the offenses, Atakpu

was sentenced to a total of thirty-four years to life in prison. Atakpu did not appeal his

convictions.

{¶ 4} On February 28, 2012, Atakpu, acting pro se, filed a motion and affidavit

requesting documents pertaining to his criminal case. The State then filed a memorandum in

opposition on March 9, 2012. Subsequently, the trial court overruled Atakpu's motion on May 9,

2012. On June 4, 2012, Atakpu filed a timely notice of appeal from the trial court’s decision. 3

II. Did The Trial Court Abuse Its Discretion When It

Failed to Provide Appellant With Transcripts?

{¶ 5} Atakpu’s sole assignment of error states that:

The trial court abused its discretion and erred when it failed to give the

Appellant, Peter Atakpu, his transcripts so he can appeal his case as a matter of

right under both the State and Federal Constitutions.

{¶ 6} Under this assignment of error, Atakpu contends that the trial court abused its

discretion when it failed to provide him with copies of his transcripts. The trial court considered

the request and issued the following decision:

The Defendant in the above-captioned case has made a pro se request for a

copy of the public record concerning the criminal investigation and/or

prosecution. The Defendant has failed to demonstrate that the information sought

in the public record is necessary to support what appears to be a justiciable claim

of the Defendant. Therefore, pursuant to O.R.C. Section 149.43(B)(8), the

Defendant's motion for a copy of the public record is hereby OVERRULED.

{¶ 7} Such orders are reviewed by an abuse of discretion standard. State ex rel.

Rittner v. Barber, 6th Dist. Fulton No. F-05-020,

. “ ‘An abuse of

discretion means an unreasonable, arbitrary, or unconscionable action.’ ” State ex rel. Doe v.

Smith,

,

,

, quoting State ex rel. Beacon

Journal Publishing Co. v. Akron,

,

,

, ¶ 59.

{¶ 8} In the case before us, the trial court followed R.C. 149.43(B)(8), which states

that: 4

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.

{¶ 9} We have construed identical language in a prior version of the statute

[previously, R.C. 149.43(B)(4)]. In that regard, we found that where an incarcerated defendant

did not identify any pending proceeding with respect to which the requested documents would be

material, the trial court did not err in overruling a public records request. State v. Gibson, 2d

Dist. Champaign No. 06CA37,

.

{¶ 10} Atakpu advocates that he needs the documents for the effective pursuit of his

defense, which was denied him under the State and Federal Constitutions. However, Atakpu has

identified no pending judicial proceedings that would suffice under the heightened requirements

for incarcerated inmates seeking public records under the statute. See, e.g., Gibson at ¶ 13-14.

The limitations period for appeals and post-conviction actions pertaining to Atakpu’s criminal

case are presently time-barred. 5

{¶ 11} Accordingly, the trial court did not abuse its discretion when it determined that

Atakpu failed to demonstrate that the information sought in the public record was necessary to

support what appears to be a justiciable claim, nor did the trial court err when it overruled

Atakpu’s request for records.

III. Conclusion

{¶ 12} Atakpu’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

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

FAIN, P.J. and HALL, J., concur.

Copies mailed to:

Mathias H. Heck Michele D. Phipps Peter Jemma Atakpu Hon. Barbara P. Gorman