[Cite as State v. Armengau, 2016-Ohio-5534.]
                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                    :

                 Plaintiff-Appellee,              :
                                                                  No. 16AP-418
v.                                                :           (C.P.C. No. 13CR-2217)

Javier H. Armengau,                               :         (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                          D E C I S I O N

                                    Rendered on August 25, 2016


                 Michael DeWine, Attorney General, Jocelyn K. Lowe, and
                 Katherine E. Mullin, for appellee.

                 Javier H. Armengau, pro se.

                                     ON MOTION TO DISMISS
KLATT, J.
        {¶ 1} Defendant-appellant Javier H. Armengau filed a notice of appeal seeking
review of an order entered by the Franklin County Court of Common Pleas. The matter is
before us on a motion by plaintiff-appellee the State of Ohio to dismiss the appeal for lack
of a final, appealable order. The state also urges dismissal based on appellant's failure to
comply with R.C. 2969.25(A), which requires inmates bringing an appeal to furnish an
affidavit listing prior civil actions.
        {¶ 2} Appellant is incarcerated pursuant to a conviction and sentence that is
currently the object of a separate appeal in this court. Seeking certain public records that
he believes will exonerate him, appellant filed a public records request with the prosecutor
and other public officials.         Dissatisfied with the partial response to these requests,
appellant moved under his original criminal case number for a determination by the trial
court judge, pursuant to R.C. 149.43(B)(8), that the public records requested by appellant
No. 16AP-418                                                                            2


were necessary to support a justiciable claim. The trial court denied the determination on
various grounds. Appellant then filed a timely notice of appeal to this court.
       {¶ 3} The state first moves to dismiss the appeal on the basis that the denial of a
public records request can only be challenged through an original action in mandamus
commenced through a complaint in this court, and that a notice of appeal does not give us
jurisdiction to review the trial court's order.
       {¶ 4} The state correctly points out that Ohio's public records act, R.C. 149.43 et
seq., generally contemplates that mandamus is the means by which a person aggrieved by
the denial of the release of records may seek redress. R.C. 149.43(C); State ex rel.
Steckman v. Jackson, 70 Ohio St.3d 420, 437-39 (1994); State ex rel. Rasul-Bey v.
Onunwor, 94 Ohio St.3d 119, 121, 2002-Ohio-67. Such mandamus actions, however,
generally arise directly from the denial by a public agency or custodian of records of a
public records request. R.C. 149.43(B)(8), in contrast, imposes an additional procedural
hurdle when the requester is an inmate:
               A public office or person responsible for public records is not
               required to permit a person who is incarcerated pursuant to a
               criminal conviction or a juvenile adjudication to inspect or to
               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.

"The language of the statute is broad and encompassing. [R.C. 149.43(B)(8)] clearly sets
forth heightened requirements for inmates seeking public records. * * * The 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.
       {¶ 5} As a result of this additional procedural step, an inmate seeking public
records relating to a criminal investigation or prosecution may be denied access to those
No. 16AP-418                                                                               3


records as a result of a judicial determination, rather than an administrative refusal by the
record custodian. Despite the dispositive decision by a trial court in such cases regarding
the availability of public records, the state argues that mandamus remains the only
recourse for the aggrieved requester and that no direct appeal from the trial court's denial
will lie. This is a question of first impression before this court.
       {¶ 6} To define the inmate's recourse when denied a favorable R.C. 149.43(B)(8)
determination by the trial court, the state relies on R.C. 149.43(C)(1), which provides that
a person "allegedly aggrieved" by "the failure of a public office or the person responsible
for public records to promptly prepare a public record and make it available" may
commence a mandamus action "in the court of common pleas of the county in which
division (B) of this section allegedly was not complied with," in the Supreme Court of
Ohio, or in the appellate court for the district concerned.
       {¶ 7} R.C. 149.43(C)(1) addresses a mandamus action brought to contest a denial
of public records by the record custodian.         Nothing in the language of that section
specifically addresses a challenge to a trial court's determination pursuant to R.C.
149.43(B)(8), and the cases cited here by the state are not R.C. 149.43(B)(8) cases. In
contrast, the only appellate cases we have found on point accepted such an appeal in
preference to an original action for a writ.
       {¶ 8} In State v. Lather, 6th Dist. No. S-08-036, 2009-Ohio-3215, an inmate
brought a direct appeal from a judgment of the Sandusky County Court of Common Pleas
that denied his request for public records pursuant to R.C. 149.43(B)(8). Apparently
without challenge from the state regarding the appropriateness of the appeal, the Sixth
District applied an abuse-of-discretion standard to find that the sentencing judge's
determination in denying access to the public records should not be disturbed.
       {¶ 9} In State v. Thornton, 2d Dist. No. 23291, 2009-Ohio-5049, the court
explicitly rejected the state's assertion that a direct appeal was not the proper remedy
after an R.C. 149.43(B)(8) denial: "We do not agree that Thornton was required to file a
petition for a writ of mandamus when the sentencing judge did not find that the
information was necessary to support a justiciable claim. Since a public office or public
records keeper is not required to permit a prisoner to obtain a copy of any public record
concerning a criminal investigation or prosecution until the sentencing judge makes the
No. 16AP-418                                                                              4


required finding, it would be futile to bring a mandamus action against the public office or
public records keeper. It is also fundamental that mandamus may not be used as a
substitute for appeal when a direct appeal would provide an adequate remedy. An appeal
will provide Thornton an adequate remedy and he has chosen it." (Citations omitted.)
Thornton at ¶ 8.
       {¶ 10} Thornton is consistent with prior decisions. Earlier, in State v. Gibson, 2d
Dist. No. 06CA37, 2007-Ohio-7161, the Second District had accepted without comment an
inmate's appeal from a trial court's R.C. 149.43(B)(8) determination and upheld it under
an abuse-of-discretion standard. See also State v. Wilson, 2d Dist. No. 23247, 2009-
Ohio-7035; State v. Roberts, 5th Dist. No. 2007-CA-33, 2008-Ohio-3115; State v. Heid,
4th Dist. No. 14CA3668, 2015-Ohio-1502; State v. Dowell, 8th Dist. No. 102408, 2015-
Ohio-3237.
       {¶ 11} It is unclear against whom a mandamus action would be brought under the
state's theory. True, a writ pursuant to R.C. 149.43(C) would be the appropriate vehicle to
compel compliance by a recalcitrant custodian once the trial court had issued an R.C.
149.43(B)(8) determination granting access to records, because that determination
would have created a clear legal right of access to the records in question. Thornton; see
also State ex rel. Herboltzheimer v. Columbus, 10th Dist. No. 05AP-397, 2005-Ohio-5169
(finding no duty on the part of custodian in the absence of an R.C. 149.43(B)(8)
determination).    However, to seek a writ against the custodian after a trial court
determination denying access would be futile, and to seek a writ against the trial court
itself would be misplaced because a writ will not issue to control the exercise of judicial
discretion. State ex rel. Ney v. Niehaus, 33 Ohio St.3d 118 (1987); State ex rel. McGrath v.
Calabrese, 8th Dist. No. 97082, 2011-Ohio-4833 (mandamus will not lie to compel a
judicial official to alter a judicial determination or compel an outcome in a judicial
proceeding).
       {¶ 12} As such, we find that a direct appeal from an unfavorable R.C. 149.43(B)(8)
determination is the appropriate means by which an inmate may challenge the trial
court's action. This mechanism better serves the interest of judicial economy and, by
applying the 30-day filing requirement for an appeal under App.R. 4, suitably limits the
No. 16AP-418                                                                              5


chronological scope of such challenges. The trial court's R.C. 149.43(B)(8) determination
here is a final appealable order.
       {¶ 13} We now turn to the state's assertion that we must dismiss the appeal
because appellant has not complied with the requirements of R.C. 2969.25(A). This
argument has merit.
       {¶ 14} R.C. 2969.25(A) specifies that "[a]t the time an inmate commences a civil
action or appeal against a government entity or employee, the inmate shall file with the
court an affidavit" describing each civil action or appeal of a civil action that the inmate
has filed in the previous five years in any state or federal court. The Supreme Court of
Ohio has stated that "[i]t is well settled that '[t]he requirements of R.C. 2969.25 are
mandatory, and failure to comply with them subjects an inmate's action to dismissal.' "
State ex rel. Manns v. Henson, 119 Ohio St.3d 348, 2008-Ohio-4478, ¶ 4, quoting State ex
rel. Ridenour v. Brunsman, 117 Ohio St.3d 260, 2008-Ohio-854, ¶ 5, quoting State ex rel.
White v. Bechtel, 99 Ohio St.3d 11, 2003-Ohio-2262, ¶ 5. Even an attempt to later correct
the deficiencies with the documents necessary to satisfy R.C. 2969.25 will fail because the
documents must be filed at the time the complaint is filed. Brown v. Ohio Adult Parole
Auth., 10th Dist. No. 09AP-797, 2010-Ohio-872, ¶ 11.
       {¶ 15} R.C. 2969.25 applies to actions addressing access to public records under
R.C. 149.43. State ex rel. Brown v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 10AP-332,
2011-Ohio-5401, ¶ 7. Appellant did not file the requisite affidavit detailing his prior and
pending civil actions when commencing the present appeal. He argues that he has duly
filed his affidavit of indigency and inmate accounts required by R.C. 2969.25(C). This
does not fulfil the statutory requirements of R.C. 2969.25(A). Brown at ¶ 6. Appellant's
failure to comply fully with the requirements of R.C. 2969.25(A) when he filed his notice
of appeal causes us to dismiss the appeal.
       {¶ 16} Accordingly, we deny the state's motion to dismiss the appeal for lack of a
final appealable order but grant the state's motion to dismiss the appeal for failure to
comply with R.C. 2969.25(A).
                                                                Motion to dismiss granted.

                             TYACK and BROWN, JJ., concur.
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