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State v. Carr

Court of Appeals of Ohio, Second District, Montgomery

January 10, 2020

STATE OF OHIO Plaintiff-Appellee
v.
BRANDON CHARLES CARR Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2016-CR-745/2

          MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee

          BRANDON CHARLES CARR, Inmate No. 742-713, Defendant-Appellant, Pro Se

          OPINION

          WELBAUM, P.J.

         {¶ 1} This matter is before the court on the pro se appeal of Defendant/Appellant, Brandon Carr, from a trial court judgment denying his request for public records. In a single assignment of error, Carr contends that the trial court violated his due process rights by denying his request for public records under R.C. 149.43(B)(8), when he has justiciable claims.

         {¶ 2} We conclude that the trial court did not err in denying Carr's records' request. Carr failed to identify a pending proceeding to which the records would be material, and he did not indicate how the records would be material to any justiciable claim. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 3} This case involves a post-judgment order in a criminal action initially brought against Brandon Carr in March 2017. On March 23, 2017, an indictment was filed charging Carr with twelve offenses related to the February 2016 death of Brittany Russell. Russell's body had been found inside her car, which was parked at a Dayton, Ohio, apartment complex. Russell had bullet wounds in her head; her infant daughter was found in the car's back seat, unharmed. State v. Carr, 2d Dist. Montgomery No. 28193, 2019-Ohio-3802, ¶ 2.[1] In April 2017, a re-indictment filed in the case charged Carr also with possession of heroin. Id. at ¶ 3.

         {¶ 4} During pretrial proceedings, Carr filed a motion to dismiss the charges due to the pre-indictment destruction of Russell's car, together with any evidence it contained. The trial court overruled the motion from the bench on January 22, 2018, but did not file a written decision. Id. at ¶ 4. On January 27, 2018, Carr filed a motion for reconsideration of the decision on the motion to dismiss, which the court then considered during trial. Id.[2] On February 6, 2018, the court filed a formal entry reflecting its initial decision on the motion to dismiss. However, the court did not specifically state that it was denying the motion to reconsider as well, although the court had overruled that motion after hearing trial testimony. July 12, 2018 Order at p. 3.

         {¶ 5} Following a jury trial, Carr was found guilty of aggravated murder, murder (purposeful), murder (proximate result) (two counts), kidnapping (two counts), felonious assault (two counts), tampering with evidence (two counts), endangering children, and possession of heroin. Carr, 2d Dist. Montgomery No. 28193, 2019-Ohio-3802, at ¶ 3 and 6. The trial court tried a charge of having weapons under disability and found Carr guilty of that charge as well. Id. at ¶ 6. After merging some counts, the court sentenced Carr to life without parole, plus a total of 34 additional years. Id.

         {¶ 6} On April 6, 2018, Carr appealed to our court, and his direct appeal of his conviction was docketed as Montgomery App. No. 27960. That appeal is still pending. While the appeal was pending, Carr filed a pro se motion in the trial court, asking the court to journalize its decision on the motion for reconsideration. On July 12, 2018, the court granted the motion in part, and issued a nunc pro tunc order correcting its prior decision to indicate that it had denied the motion for reconsideration. July 12, 2018 Order at p. 4. On August 8, 2018, Carr appealed from that order as well. This appeal was docketed as Montgomery App. No. 28080, was subsequently consolidated with Case No. 27960, and also remains pending. Carr at ¶ 1.

         {¶ 7} Subsequently, Carr filed several additional pro se post-judgment motions in the trial court, and the court denied them all in a decision filed on October 11, 2018. Carr again filed a notice of appeal, and this appeal was docketed as Montgomery App. No. 28193. Id. at ¶ 10. These motions involved the following matters: "a motion to stay the restitution award included in [Carr's] judgment of conviction; * * * a motion pursuant to R.C. 149.43(B)(8) for copies of the jury verdict forms; and * * * a motion for grand jury testimony from his case, purportedly to support a petition for postconviction relief." Carr, 2d Dist. Montgomery No. 28193, 2019-Ohio-3802, at ¶ 9. On September 20, 2019, we affirmed the trial court's decision on all these matters. Id. at ¶ 42.

         {¶ 8} In the meantime, Carr filed an additional post-judgment motion on February 27, 2019, seeking release of public records under R.C. 149.43(B)(8). On March 27, 2019, the trial court denied that motion as well, and Carr filed a notice of appeal on April 23, 2019. This appeal was ...


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