[Cite as State v. Evans, 2017-Ohio-9293.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF MEDINA ) 

STATE OF OHIO 

 Appellee 

 v. 

JOSEPH R. EVANS 

 Appellant 

C.A. No. 17CA0029-M 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF MEDINA, OHIO 

CASE No. 08CR0536 

DECISION AND JOURNAL ENTRY 

Dated: December 29, 2017 

 

HENSAL, Presiding Judge. 

{¶1} Joseph Evans appeals from the judgment of the Medina County Court of Common 

Pleas. We affirm. 

I. 

{¶2} This appeal involves a pro se criminal defendant’s motion for a copy of the trial 

transcripts at the State’s expense. Much of the procedural history of this case is set forth in this 

Court’s prior decision in State v. Evans, 9th Dist. Medina No. 09CA0049-M, 2010-Ohio-3545. 

Relevantly, a jury found Mr. Evans guilty of two counts of rape of a minor and one count of the 

lesser included offense of gross sexual imposition. Id. at ¶ 2. Mr. Evans appealed, and this 

Court affirmed his convictions. Id. at ¶ 35. 

{¶3} While Mr. Evans’s direct appeal remained pending with this Court, he filed a 

petition for post-conviction relief with the trial court, which the trial court denied. This Court 

affirmed the trial court’s decision. State v. Evans, 9th Dist. Medina No. 12CA0044-M, 2013-
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Ohio-1216. Over four years later, Mr. Evans filed a “Motion for Copy or Use of Court 

Transcripts at the State’s Expense for Preparation of a Motion for Resentencing” wherein he 

requested a complete copy of the trial and sentencing transcripts, or, alternatively, “use of the 

complete transcripts on loan to him or the Warden of Trumbull Corrections Institution for a 

period of time to be designated by [the trial court].” 

{¶4} The trial court denied Mr. Evans’s motion, noting that Mr. Evans had already 

filed a direct appeal, as well as an appeal of the denial of his petition for post-conviction relief, 

both of which were unsuccessful. It further noted that it previously provided Mr. Evans with a 

copy of the transcripts for his direct appeal, and that any new appeal or motion would be 

untimely. The trial court ultimately concluded that Mr. “Evans is not entitled to a new copy of 

the transcript at [the] State’s expense each time he files a pro-se motion.” Mr. Evans has 

appealed, raising one assignment of error for our review. 

II. 

ASSIGNMENT OF ERROR 

THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION FOR 

COPY OR USE OF COURT TRANSCRIPTS AT THE STATE’S EXPENSE 

FOR PREPARATION OF A MOTION FOR RESENTENCING, IN 

VIOLATION OF HIS RIGHTS TO DUE PROCESS AND EQUAL 

PROTECTION UNDER THE FOURTEENTH AMENDMENT TO THE U.S. 

CONSTITUTION AND ARTICLE 1, SECTION [] 10 OF THE OHIO 

CONSTITUTION. 

{¶5} In his sole assignment of error, Mr. Evans argues that the trial court erred by 

denying his motion for a copy or use of the transcripts, which he needs in order to be able to file 

a motion for resentencing. He argues that, since a court can disregard an assignment of error if 

the appellant fails to provide citations to the record, he is entitled to a copy of the trial and 

sentencing transcripts at the State’s expense. 
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{¶6} Prior to addressing the merits of Mr. Evans’s argument, this Court must sua 

sponte address whether the order under review is a final, appealable order. Sunkin v. Collision 

Pro, Inc., 174 Ohio App.3d 56, 2007-Ohio-6046, ¶ 8 (9th Dist.). In State v. Tripodo, the Ohio 

Supreme Court acknowledged that an order denying an indigent defendant’s request for 

transcripts is a final, appealable order. 50 Ohio St.2d 124, 126-128 (1977). There, the defendant 

filed a motion for a transcript of the proceedings, but the trial court’s judgment entry denying the 

request “was never made final by a judgment entry properly journalized.” Id. at 126. In 

acknowledging that such an order would be final and appealable, the Ohio Supreme Court stated 

that “[i]t is unfortunate that the trial court or the parties did not place a judgment entry on the 

record in the trial court so that the premature notice of appeal could then be based on a final 

judgment vesting the Court of Appeals with subject matter jurisdiction.” Id. at 127. Relying 

upon Tripodo, the Court of Appeals for the Second, Fifth, Eighth, and Tenth Districts have 

determined that such an order is a final, appealable order. State v. Clark, 2d Dist. Greene No. 

97CA27, 1998 Ohio App. LEXIS 2695, *13 (June 19, 1998); State v. Hewitt, 5th Dist. Stark No. 

2016CA00067, 2016-Ohio-5762, ¶ 12-16; State v. Majid, 8th Dist. Cuyahoga No. 102154, 2015-

Ohio-2406, ¶ 4; State v. Hatfield, 10th Dist. Franklin No. 11AP-1045, 2012-Ohio-3473, ¶ 5. 

Further, this Court, among others, has implicitly acknowledged that such an order is a final, 

appealable order. State v. McKinstry, 9th Dist. Summit Nos. 16540, 16545, 1994 Ohio App. 

LEXIS 1480, *1 (Apr. 6, 1994); State v. Buder, 6th Dist. Wood No. WD-11-036, 2012-Ohio386, ¶ 1; State v. Walker, 4th Dist. Lawrence No. 04CA16, 2005-Ohio-1584, ¶ 6. 

{¶7} Despite the Ohio Supreme Court’s ruling in Tripodo, the Court of Appeals for the 

Seventh and Eleventh Districts have held that an order denying a request for transcripts is not a 
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final, appealable order. In reaching that conclusion, those courts noted that the defendant did not 

have any pending actions at the time the defendant filed the request. State v. Jones, 7th Dist. 

Mahoning No. 14 MA 46, 2015-Ohio-1707, ¶ 18 (noting that it previously denied an appeal 

relating to a defendant’s request for transcripts because the defendant “did not have pending in 

the trial court any action to warrant review of the trial transcripts * * *.”); State v. Miller, 11th 

Dist. Trumbull No. 2015-T-0022, 2015-Ohio-2986, ¶ 5-6 (determining that such an order was 

not final and appealable because the defendant made the request in anticipation of filing a 

petition for post-conviction relief, but did not have any pending actions). While we are mindful 

of case law indicating that an indigent defendant’s right to relevant portions of a transcript is 

limited to pending actions, that analysis addresses the merits, not the finality, of such an order. 

See, e.g., State ex rel. Call v. Zimmers, 85 Ohio St.3d 367, 368 (1999) (addressing the merits of 

the appeal, but indicating that the defendant had no pending actions); State ex rel. Murr v. 

Thierry, 34 Ohio St.3d 45, 45 (1987) (same). This Court is bound by the Ohio Supreme Court’s 

decision in Tripodo, and is further persuaded by the Second, Fifth, Eighth, and Tenth Districts’ 

reliance upon Tripodo. We, therefore, hold that the underlying order is a final, appealable order, 

and now turn to the merits of this appeal. 

{¶8} The Ohio Supreme Court has consistently held that an indigent criminal defendant 

is only entitled to one copy of a transcript. State ex rel. Call v. Fragale, 104 Ohio St.3d 276, 

2004-Ohio-6589, ¶ 9, quoting Zimmers at 368; Thierry at 45 (stating same). Here, the record 

reflects that Mr. Evans received a copy of his transcript in connection with his direct appeal. 

Despite Mr. Evans’s arguments to the contrary, he was not entitled to an additional copy at the 

State’s expense. Fragale at ¶ 9. The trial court, therefore, did not err when it denied his request. 
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Id. at ¶ 10; State v. Davis, 9th Dist. Summit No. 16875, 1994 Ohio App. LEXIS 4724, *6-7 (Oct. 

19, 1994). Accordingly, Mr. Evans’s assignment of error is overruled. 

III. 

{¶9} Joseph Evans’s assignment of error is overruled. The Judgment of the Medina 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 JENNIFER HENSAL 

 FOR THE COURT 
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CALLAHAN, J. 

CONCURS. 

CARR, J. 

CONCURRING IN JUDGMENT ONLY. 

{¶10} I respectfully concur in the Court’s judgment. Evans is merely asking for access 

to a transcript that already exists, not an additional copy of the transcript at the State’s expense. 

Either way, I agree that Evans cannot prevail here as this is not the proper vehicle to gain access 

to a transcript. 

APPEARANCES: 

JOSEPH R. EVANS, pro se, Appellant. 

S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant 

Prosecuting Attorney, for Appellee.