THE STATE OF OHIO, APPELLEE, v. EVERETTE, APPELLANT.
No. 2010-1325
Supreme Court of Ohio
June 16, 2011
129 Ohio St.3d 317, 2011-Ohio-2856
O‘CONNOR, C.J.
Michael DeWine, Attorney General, and Elise Porter, Assistant Attorney General, for appellee.
O‘CONNOR, C.J.
{¶ 1} In this appeal, we decide whether a videotape recording of the trial court proceedings filed in the court of appeals constitutes a “transcript” pursuant to
Relevant Background
{¶ 2} In June 2008, a jury found Thomas E. Everette Jr., appellant, guilty of aggravated murder, aggravated robbery, and grand theft of a motor vehicle, all with firearm specifications. The trial court found him guilty of having a weapon-while under disability and sentenced him to life imprisonment with the possibility of parole after 28 years.
{¶ 3} Everette appealed his conviction on July 16, 2008. That same day, Everette‘s trial counsel requested preparation of the trial transcript. On August 1, 2008, Everette‘s appellate counsel filed a praecipe in the appellate court, requesting a transcript of a suppression hearing. On August 26, 2008, six videotapes—including videotapes of the trial, the hearing on Everette‘s motion to suppress, and the sentencing hearing—were filed. A summary of the docket was filed two days later. That same day, the clerk of courts issued its
{¶ 4} On April 8, 2009, Everette submitted a petition for postconviction relief, claiming that his trial counsel had rendered ineffective assistance by failing to call a detective as a witness, failing to gather and present telephone records at trial, and failing to object to prosecutorial misconduct. Everette supported his petition with his own unsworn statement and indicated that he needed the transcripts to further support his claims.
{¶ 5} On April 20, 2009, the state, appellee, moved to dismiss Everette‘s petition as untimely because it had been filed more than 180 days after the filing of the transcript of proceedings (the videotapes) in violation of
{¶ 6} Everette opposed the motion, arguing that his 180-day time limitation did not begin until October 15, 2008, when the written transcripts were filed. Consequently, he argued, his petition was due on April 13, 2009, not February 23, 2009, as the state asserted, and was timely.
{¶ 7} The trial court dismissed Everette‘s petition, holding that it was untimely under
{¶ 8} The appellate court affirmed the trial court‘s dismissal of Everette‘s petition for postconviction relief. State v. Everette, Montgomery App. No. 23585, 2010-Ohio-2832, 2010 WL 2487940, ¶ 39. In overruling Everette‘s assignments of error, the Second District held that the videotaped recordings that were filed on August 26, 2008, constituted the transcript of proceedings. Id. at ¶ 33. Consequently, the 180-day time period for filing Everette‘s petition for postconviction relief began on August 26, 2008, and expired on February 23, 2009. Id. at ¶ 26.
{¶ 9} Everette appealed to this court for discretionary review, which this court granted, 126 Ohio St.3d 1597, 2010-Ohio-4928, 935 N.E.2d 44, to clarify what constitutes a “trial transcript” for purposes of filing a petition for postconviction relief pursuant to
Analysis
R.C. 2953.21 and App.R. 9 Provide Little Guidance as to the Definitions of “Trial Transcript” or “Transcript of Proceedings”
{¶ 10}
{¶ 11} “Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court.”
{¶ 12} Although
{¶ 13} “The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. A videotape recording of the proceedings constitutes the transcript of proceedings other than hereinafter provided, and, for
{¶ 14} “In all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means.”
{¶ 15} Although
In the Absence of a Statutory Definition, “Trial Transcript” and “Transcript of Proceedings” Should be Given Their Usual, Normal, and Customary Meanings
{¶ 16} The legislature has not defined “trial transcript.” See State v. Hollingsworth, 118 Ohio St.3d 1204, 2008-Ohio-1967, 886 N.E.2d 863, ¶ 12 (Moyer, C.J., concurring in decision to dismiss the cause as having been improvidently accepted). However, we are not left without guidance. The General Assembly has directed that words not defined by statute “shall be * * * construed according to the rules of grammar and common usage.”
{¶ 17} In accordance with the directive of
Common Usage of “Trial Transcript” and “Transcript of Proceedings”
{¶ 18} Black‘s Law Dictionary defines “transcript” as “[a] handwritten, printed, or typed copy of testimony given orally; esp., the official record of proceedings in a trial or hearing, as taken down by a court reporter.” Black‘s Law Dictionary (9th Ed.2009) 1636. Webster‘s Third New International Dictionary defines “transcript” as “a written or printed copy“; “a usu. typewritten copy of dictated or recorded matter“; “an official or legal and often published copy or engross-
{¶ 19} Black‘s Law Dictionary defines “transcript of proceedings” as “[a] compilation of all documents relating to a bond issue, typically including the notices, affidavits of notices, a bond resolution (or bond ordinance), official statement, trust indenture and loan agreements, and minutes of meetings of all authorizing bodies.” Black‘s Law Dictionary at 1636.
{¶ 20} Based on these definitions of “transcript” and “transcript of proceedings,” we hold that a “transcript” or “transcript of proceedings” must be in written, typed, or printed form.
{¶ 21} Our holding is consistent with the usual, normal, and customary meanings of the words and also in harmony with the proposed amendments to
{¶ 22} As stated in the Staff Note, appellate courts prefer written transcripts, because portions of the proceedings are required to be cited on appeal. While modern technology has advanced how proceedings before a trial court may be recorded and documented, the written, typed, or printed version remains the ideal way of citing the record on appeal. In fact, in many courtrooms, proceedings are recorded by audio or video devices rather than by stenographic reporters. Despite these technological advances, a written document with page numbers is much easier to cite than a transcript in another medium, such as a videotape or audio recording, and avoids subjective interpretation of the words uttered by witnesses. In addition, a written transcript provides all parties and the courts with an objective source from which all concerned can refer to the same information.
Parties’ Interpretation of “Trial Transcript” and “Transcript of Proceedings”
{¶ 23} The state argues that we need look no further than
{¶ 24} We are not persuaded.
{¶ 25} The state‘s myopic focus on a single sentence in
{¶ 26} Everette correctly argues that
{¶ 27} Significantly, the rule later states: “When the written form is certified by the reporter in accordance with
{¶ 28} To hold otherwise would render the exception in the rule meaningless. Under the state‘s view, whenever a videotape recording of the proceedings is filed, the clock for purposes of appeal would begin to run. That would mean that the 180-day time limit does not begin to run until the videotape recording is filed even if a certified, written transcript is filed first. That result is not only contrary to the language of
{¶ 29} Here, the videotapes were filed first on August 26, 2008. The certified, written transcripts were filed on October 15, 2008. Under our holding, the clock for calculating the timeliness of Everette‘s petition did not begin to run until October 15, when the certified, written transcripts were filed. Thus, Everette had 180 days from October 15, 2008, to file his petition for postconviction relief pursuant to
Conclusion
{¶ 30} In cases in which a videotape recording of the proceedings and a written form of the proceedings is certified by a reporter, only the certified, written transcript of the trial court proceedings constitutes a trial transcript or transcript of proceedings under
Judgment reversed and cause remanded.
PFEIFER, LUNDBERG STRATTON, and MCGEE BROWN, JJ., concur.
O‘DONNELL, LANZINGER, and CUPP, JJ., dissent.
LANZINGER, J., dissenting.
{¶ 31} I respectfully dissent.
{¶ 32} The statute that relates to timely filing states, “Except as otherwise provided in section 2953.23 of the Revised Code, a petition under division (A)(1) of this section shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court of appeals in the direct appeal of the judgment of conviction or adjudication or, if the direct appeal involves a sentence of death, the date on which the trial transcript is filed in the supreme court.” (Emphasis added.)
{¶ 34} “The original papers and exhibits thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and a certified copy of the docket and journal entries prepared by the clerk of the trial court shall constitute the record on appeal in all cases. A videotape recording of the proceedings constitutes the transcript of proceedings other than hereinafter provided, and, for purposes of filing, need not be transcribed into written form. Proceedings recorded by means other than videotape must be transcribed into written form. When the written form is certified by the reporter in accordance with
{¶ 35} “In all capital cases the trial proceedings shall include a written transcript of the record made during the trial by stenographic means.” (Emphasis added.)
{¶ 36} Thus, the “transcript of proceedings if any” constitutes part of the record on appeal. A videotape recording of the proceedings is the transcript and, unlike proceedings recorded by other means, need not be transcribed into written form for filing. Capital cases must have a written transcript of the record made by stenographic means. The language of
{¶ 37} Although the majority wishes to adopt language of the proposed rule that would make videotape recordings no longer adequate as transcripts for purposes of appeal, those rule amendments have not yet been adopted. When
O‘DONNELL and CUPP, JJ., concur in the foregoing opinion.
Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Andrew T. French, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Jeremy J. Masters, Assistant Public Defender, for appellant.