[Cite as State v. Askew, 2017-Ohio-1512.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, : 

 CASE NO. 2016-L-093

 - vs - : 

JAMES D. ASKEW, III, : 

 Defendant-Appellant. : 

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

000539. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant 

Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, 

Painesville, OH 44077 (For Plaintiff-Appellee). 

James D. Askew, III, pro se, PID: A642-217, Lake Erie Correctional Institution, P.O. 

Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant). 

THOMAS R. WRIGHT, J. 

{¶1} Appellant, James D. Askew, III, appeals the trial court’s denial of his public 

records request. He contests the court’s ruling that he failed to state a justiciable claim 

requiring the clerk of courts to provide the requested records. We affirm. 

{¶2} Pertaining to the request at issue, appellant pleaded guilty to one count of 

felonious assault and the accompanying repeat violent offender specification. After 

finding him guilty, the trial court imposed an aggregate sentence of fifteen years, eight 

years on the primary charge and seven years on the specification. Appellant did not 
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appeal. 

{¶3} In the first thirteen month after the conviction, appellant filed two petitions 

for postconviction relief, both of which were denied by the trial court. Appellant did not 

appeal the ruling on his first petition, but he did appeal the ruling on the second petition. 

In State v. Askew, 11th Dist. Lake No. 2014-L-072, 2015-Ohio-43, ¶18, we affirmed on 

the basis that the second petition failed to assert a viable argument for deeming his 

sentencing judgment void. 

{¶4} Approximately one year after our decision, appellant moved the trial court 

for an order requiring the clerk of courts to provide him with a copy of a September 27, 

2012 judgment entry allegedly stating that appellant waived arraignment on the 

indictment. According to the motion, he needs the copy in order to “present to [the trial] 

Court a substantive and procedural due process claim pertaining to purported waiver of 

arraignment so jurisdiction issues can be asserted via ineffective assistance of counsel 

issues.” 

{¶5} The trial court denied the motion concluding that appellant failed to 

demonstrate that he has a justiciable claim or that the public record he seeks is 

necessary to support the claim. 

{¶6} Appellant raises one assignment for review: 

{¶7} “The trial court abused its discretion by denying appellant’s request 

pursuant to R.C. 149.43(B)(8) when a justiciable claim was presented via jurisdiction 

issues.” 

{¶8} R.C. 149.43(B) generally sets forth procedures governing disclosure of 

records maintained in a public office. Hall v. State, 11th Dist. Trumbull No. 2008-T0073, 2009-Ohio-404, ¶9. R.C. 149.43(B)(8) governs the within dispute: 

{¶9} “A public office or person responsible for public records is not required to 
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permit a person who is incarcerated pursuant to a criminal conviction or a juvenile 

adjudication to inspect or 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.” 

{¶10} “Through the passage of R.C. 149.43(B)(8), ‘[t]he General Assembly 

clearly evidenced a public-policy decision to restrict a convicted inmate’s unlimited 

access to public records in order to conserve law enforcement resources.’ State ex rel. 

Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶14. To that end, ‘R.C. 

149.43(B)(8) requires an incarcerated criminal offender who seeks records relating to 

the inmate’s criminal prosecution to obtain a finding by the sentencing judge or the 

judge’s successor that the requested information is necessary to support what appears 

to be a justiciable claim.’ State ex rel. Fernbach v. Brush, 133 Ohio St.3d 151, 2012-

Ohio-4212, ¶2.” State v. Rodriguez, 12th Dist. Preble No. CA2013-11-011, 2014-Ohio2583, ¶13. 

{¶11} For purposes of R.C. 149.43(B)(8), a “justiciable claim” is “‘a claim 

properly brought before a court of justice for relief.’” State v. Seal, 4th Dist. Highland 

No. 13CA10, 2014-Ohio-4168, ¶8, quoting State v. Wilson, 2d Dist. Montgomery No. 

23734, 2011-Ohio-4195, ¶9. In trying to interpret R.C. 149.43(B)(8), some appellate 

districts have concluded that an inmate cannot satisfy the “justiciable claim” requirement 

without a pending proceeding to which the requested public record would be material. 
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Id.; State v. Atakpu, 2d Dist. Montgomery No. 25232, 2013-Ohio-4392, ¶9; State v. 

Rodriguez, 6th Dist. Wood No. WD-10-062, 2011-Ohio-1397, ¶9. 

{¶12} Seal, Atakpu, and Rodriguez are not persuasive. The statute does not 

require that a justiciable claim is pending, only that the inmate has a justiciable claim to 

be advanced. Moreover, there are times when an inmate is required to attach copies of 

court documents to initial pleadings in order to state a viable claim for relief such as a 

petition for a writ of habeas corpus R.C. 2725.04(D) (copies of commitment papers must 

be attached to petition). 

{¶13} Nevertheless, the public records request must allege a justiciable claim. 

Here, appellant did not carry his burden. Although appellant bandies about various 

legal terms such as due process, jurisdiction, and ineffective assistance, he does not 

give any explanation as to how these terms relate to a justiciable claim. He does not 

allege operative facts demonstrating a due process violation, a lack of jurisdiction, or a 

denial of effective assistance of counsel. Necessarily, his motion, likewise, does not 

state how a copy of the “waiver” judgment is necessary to advance a justiciable claim. 

Therefore, the trial court properly held that the lack of an alleged justiciable claim 

warranted denial of his public record request. 

{¶14} Appellant’s sole assignment of error is without merit and the trial court’s 

judgment is affirmed. 

CYNTHIA WESTCOTT RICE, 

COLLEEN MARY O’TOOLE, 

concur.