[Cite as State v. Werber, 2012-Ohio-2516.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97797



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                  GREGORY WERBER
                                                       DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              DISMISSED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-501932

               BEFORE:          Blackmon, A.J., Cooney, J., and Kilbane, J.

              RELEASED AND JOURNALIZED:                    June 7, 2012
APPELLANT

Gregory Werber, pro se
Inmate #540-806
Marion Correctional Institution
P.O. Box 57
Marion, Ohio 43302-8256


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Mark J. Mahoney
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, A.J.:

         {¶1} Appellant Gregory Werber (“Werber”) appeals the trial court’s denial of his

request for the trial court to make a “justiciable finding” pursuant to the Public Records

Act and assigns the following two errors for our review:

         I. The trial court’s failure to make a “justiciable finding” on Werber’s
         “Public Records Act Request for Justiciable Finding,” violates R.C.
         149.43(B)(8), and requires that the trial court’s order be reversed and
         the case remanded for the “justiciable finding” required by R.C.
         149.43(B)(8).

         II. The trial court erred by denying Werber’s motion to rule R.C.
         149.43(B)(8) unconstitutional on its face or as applied to Werber
         because it obstructs, delays, and denies Werber, and incarcerated
         convicts like Werber, access to public records in violation of their
         rights to access the court, petition their government with their
         grievances, due process, self-representation, and equal protection
         under Article I, Sections 10 and 16 of the Ohio Constitution, and the
         First, Fifth, Sixth, and Fourteenth Amendments of the United States
         Constitution.

         {¶2} After reviewing the record and pertinent law, we dismiss the appeal because

it is moot. The apposite facts follow.

                                          Facts

         {¶3} Werber entered a plea to drug trafficking in an amount equal to or

exceeding 5,000 grams but less than 20,000 grams. As part of the plea agreement,

Werber agreed to a five-year sentence. Werber appealed his plea; this court in State v.

Werber, 8th Dist. No. 90888, 2008-Ohio-6482, reversed and remanded the matter to the

trial court. On remand, Werber represented himself at a jury trial. The jury found

Werber guilty of two counts of drug trafficking and one count of possession of criminal

tools.    The trial court merged Werber’s two drug trafficking counts and sentenced
Werber to eight years for drug trafficking and one year for possession of criminal tools, to

be served consecutively. This court affirmed his convictions in State v. Werber, 8th Dist.

No. 93716, 2010-Ohio-4883.

       {¶4} On February 24, 2011, Werber filed a writ of habeas corpus action in the

federal district court. The federal court ordered that Werber file a copy of the transcript

from his “state appeals Nos. 90888 and 93716,” as well as state exhibits 42 and 43, and

defense exhibit A. Werber filed the transcripts but was unsuccessful in his attempts to

have the Cuyahoga County prosecutor submit the exhibits to the federal court.

       {¶5} Therefore, on December 4, 2011, Werber filed in the Cuyahoga County

Court of Common Pleas a public records request for a justiciable finding pursuant to R.C.

149.43(B)(8). Pursuant to the statute, such a finding was necessary before he could

directly request the exhibits from the clerk of courts. Attached to Werber’s motion was

the order from the federal district court magistrate ordering the attorney general’s office

to produce state exhibits 42 and 43 and defense exhibit A. Werber also filed a motion to

declare R.C. 149.43 unconstitutional.

       {¶6} On December 5, 2011, the state filed a brief in opposition to Werber’s

request. The state argued that the prosecutor’s office did not possess the exhibits that

Werber sought to obtain. The state argued that Werber should make his request to the

clerk of courts for the Eighth District Court of Appeals where the exhibits were located.

On December 12, 2011, Werber filed a reply brief stating that the state had misconstrued

the issue, and that he was seeking an order from the common pleas court stating that he

has a justiciable claim as required by R.C. 149.43(B)(8). On December 14, 2011, the
trial court denied Werber’s motions stating that “the clerk of courts is the proper person to

obtain the court records under the Ohio Public Records Act.”

       {¶7} On December 23, 2011, the state filed with the common pleas court, a

motion captioned, “State’s Notice of Compliance with the Order to Produce Evidence

Issued by the United States District Court, Rendering Defendant’s Request Moot.” In

the motion, the state declared that on December 8, 2011, the attorney general’s office had

filed a notice that the exhibits were being mailed to the court in compliance with the

district court’s order. The state argued that Werber’s request was, therefore, moot. In

response, on January 6, 2012, in spite of already denying Werber’s motions, the trial court

held “Defendant’s public records act request for a justiciable finding pursuant to R.C.

149.43(B)(8) is denied as moot.” However, Werber had filed his notice of appeal the day

before the trial court’s January ruling.

                                    Dismissal of Appeal

       {¶8} In his assigned error, Werber contends the trial court erred by denying his

motion for a justiciable finding required by R.C. 149.43(B)(8), and he claims R.C.

149.43(B)(8) is unconstitutional.

       {¶9} We conclude that this appeal is moot. As we stated above, after the trial

court denied Werber’s motions, the attorney general’s office complied with the district

court’s order and provided the requested exhibits to the district court. Appellate courts

will not review questions that do not involve live controversies.          See Tschantz v.

Ferguson, 57 Ohio St.3d 131, 133, 566 N.E.2d 655 (1991). Thus, an action must be

dismissed as moot unless it appears that a live controversy exists. Lorain Cty. Bd. of
Commrs. v. U.S. Fire Ins. Co., 81 Ohio App.3d 263, 266–267, 610 N.E.2d 1061 (9th

Dist.1992). Because the records that were the subject of Werber’s request have been

provided to the district court, there is no live controversy before this court; therefore, the

appeal is moot.

       {¶10} Appeal dismissed.

       It is ordered that appellee recover of appellant its costs herein taxed.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, ADMINISTRATIVE JUDGE

COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR
