Court of Appeals of Ohio, Fifth District, Licking
Appeal from the Court of Common Pleas, Case No. 12 CR 0116
Plaintiff-Appellee, WILLIAM C. HAYES, PROSECUTING ATTORNEY,
DANIEL J. BENOIT, ASSISTANT PROSECUTOR.
Defendant-Appellant, ROBERT L. BURNS, JR., PRO SE,
CHILLICOTHE CORR. INSTITUTION.
W. Scott Gwin, P. J. Hon. John W. Wise, J. Hon. Earle E.
Wise, Jr., J.
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
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.
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.
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).
In addition, on February 23, 2015, prior to his aforesaid PCR
petition, appellant had filed a post-conviction "motion
for production of Brady
material." 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,
On August 8, 2017, the trial court denied appellant's
motion to compel disclosure via a judgment entry.
On August 31, 2017, appellant filed a notice of appeal. He
herein raises the following sole Assignment of Error:
"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