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State v. Burns

Court of Appeals of Ohio, Fifth District, Licking

January 8, 2018

STATE OF OHIO Plaintiff-Appellee
v.
ROBERT L. BURNS, JR. Defendant-Appellant

         Criminal Appeal from the Court of Common Pleas, Case No. 12 CR 0116

          For Plaintiff-Appellee, WILLIAM C. HAYES, PROSECUTING ATTORNEY, DANIEL J. BENOIT, ASSISTANT PROSECUTOR.

          For Defendant-Appellant, ROBERT L. BURNS, JR., PRO SE, CHILLICOTHE CORR. INSTITUTION.

          Hon. W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, John, J.

         {¶1} Appellant Robert L. Burns, Jr. appeals the decision of the Court of Common Pleas, Licking County, which denied his pro se post-conviction motion to compel disclosure of allegedly exculpatory evidence. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.

         {¶2} In March 2012, appellant was charged with three counts of illegal use of a minor in a nudity-oriented performance, three counts of corruption of a minor, and two counts of corruption of a minor with drugs. Following a jury trial, appellant was convicted on all but one count of corruption of a minor with drugs. The trial court sentenced him to a total prison term of thirteen years and three months, with the terms to run consecutively. Additionally, appellant was classified as a sexually oriented offender, with an annual registration requirement for ten years.

         {¶3} Appellant then filed a direct appeal to this Court, arguing in his sole assigned error that his due process rights were violated when the State read portions of his son's prior testimony from a juvenile proceeding, for purposes of refreshing the son's recollection. On October 9, 2012, we overruled the assigned error and affirmed appellant's convictions. See State v. Burns, 5th Dist. Licking No. 2012-CA-37, 2012-Ohio-4706.

         {¶4} On October 22, 2015, more than three years after his trial, appellant filed a pro se petition for post-conviction relief ("PCR"). Via a judgment entry issued on November 25, 2015, the trial court denied appellant's petition for post-conviction relief as untimely. On July 6, 2016, we affirmed. See State v. Burns, 5th Dist. Licking No. 15-CA-98, 2016-Ohio-4833. Appellant's attempts to have the decision reviewed by the Ohio Supreme Court and the United States Supreme Court were unsuccessful. See State v. Burns, 147 Ohio St.3d 1506, 2017-Ohio-261, 67 N.E.3d 824; Burns v. Ohio, 138 S.Ct. 73, 199 L.Ed.2d 50 (2017).

         {¶5} In addition, on February 23, 2015, prior to his aforesaid PCR petition, appellant had filed a post-conviction "motion for production of Brady material."[1] Then, on June 22, 2017, appellant filed a "motion to compel disclosure of exculpatory material and information." The State filed a response on August 3, 2017.

         {¶6} On August 8, 2017, the trial court denied appellant's motion to compel disclosure via a judgment entry.

         {¶7} On August 31, 2017, appellant filed a notice of appeal. He herein raises the following sole Assignment of Error:

         {¶8} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANTS 'MOTION TO COMPEL DISCLOSURE OF EXCULPATORY MATERIAL AND INFORMATION, ' WHEN IT IS CLEAR THAT SOME OF THE DISCOVERY WAS SUPPRESSED, AND OTHER DISCOVERY WAS MARKED 'COUNSEL ONLY' BY THE PROSECUTION WHO SET OUT TO ...


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