STATE OF OHIO v. KIMANI E. WARE

{¶2} We previously set forth the underlying facts and procedural posture of this case as

follows:

On November 18, 2003, Appellant was indicted on nine criminal counts stemming

from the attempted murder of his then-girlfriend, the kidnapping of her four

children, and the rape of her then twelve-year-old daughter. Following a two day

jury trial, Appellant was found guilty of one count of attempted murder, in violation

of R.C. 2923.02 and R.C. 2903.02(A); two counts of kidnapping, in violation of

R.C. 2905.01(B)(2); one count of kidnapping, in violation of R.C. 2905.01(A)(4);

two counts of rape, in violation of R.C. 2907.02(A)(1)(b); one count of gross sexual

imposition, in violation of R.C. 2907.05(A)(4); one count of attempted rape, in

violation of R.C. 2923.02 and R.C. 2907.02(A)(1)(b); and one count of felonious

assault, in violation of R.C. 2903.11(A)(2).

On June 25, 2004 Appellant was sentenced to three concurrent ten year terms of

imprisonment for his kidnapping convictions. He was also sentenced to ten years

imprisonment for his conviction of attempted murder; five years imprisonment for

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his conviction of attempted rape; and two life sentences for each conviction of rape.

Appellant’s three concurrent terms for kidnapping were to run first and

consecutively to his terms for the remaining crimes. As stated, Appellant is not

eligible for parole until the year 2048, when he will have served forty-five years of

his sentence.

State v. Ware, 9th Dist. Summit No. 22232, 2005-Ohio-1822, ¶ 2-3. Mr. Ware appealed the

sentence imposed by the trial court, and this Court affirmed. Id. at ¶ 1. He later filed various other

motions in the trial court which were all denied, including a motion for access to public records

pursuant to R.C. 149.43(G), and a motion for access to court records pursuant to Sup.R. 44 through

47.

{¶3} Mr. Ware now appeals from the trial court’s order denying his motions for access

to public records and court records, raising two assignments of error for this Court’s review. We

have consolidated his assignments of error because they involve the same analysis.

II.

ASSIGNMENT OF ERROR ONE

THE TRIAL COURT ERRED WHEN DENIED (SIC) APPELLANT’S MOTION

FOR ACCESS TO PUBLIC RECORDS UNDER R.C. 149.43(G)

ASSIGNMENT OF ERROR TWO

THE TRIAL COURT ABUSED IT’S (SIC) DECRETION (SIC) WHEN IT

DENIED APPELLANT’S MOTION FOR TO (SIC) COURT RECORDS

PURSUANT TO RULES OF SUPERINTENDENCE 44 THROUGH 47.

{¶4} In his assignments of error, Mr. Ware argues that the trial court erred in denying

his motions for public records and court records.

{¶5} The Supreme Court of Ohio has recently clarified that Sup.R. 44 through 47 only

apply to case documents in cases commenced on or after July 1, 2009. State ex rel. Parker Bey v.

Byrd, Slip Opinion No. 2020-Ohio-2766, ¶ 11-12. See also Sup.R. 47(A)(1). As Mr. Ware’s

underlying criminal case commenced prior to July 1, 2009, an action to compel the production of

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documents from that case must therefore be brought under the Public Records Act, not the Rules

of Superintendence. See id. Thus, while Mr. Ware properly sought certain documents through the

Public Records Act, i.e., R.C. 149.43, he improperly sought other records pursuant to Sup.R. 44

through 47.

{¶6} Nevertheless, if Mr. Ware was aggrieved by the failure of the police department

and the prosecutor to promptly prepare these records and make them available to him upon request,

his remedy would lie in mandamus, not in a direct appeal to this Court. See State ex rel. Cincinnati

Enquirer v. Cincinnati, 157 Ohio St.3d 290, 2019-Ohio-3876, ¶ 6 (“Mandamus is the appropriate

remedy by which to compel compliance with Ohio’s Public Records Act, R.C. 149.43.” (Emphasis

added.)); R.C. 149.43(C)(1)(b); but see R.C. 149.43(C)(1)(a) (permitting the aggrieved party to

file a complaint with the clerk of the court of claims or the clerk of the court of common pleas

under section 2743.75 of the Revised Code, instead of commencing a mandamus action); State ex

rel. McDougald v. Greene, Slip Opinion No. 2020-Ohio-2782, ¶ 6 (“Mandamus is an appropriate

remedy by which to compel compliance with Ohio’s Public Records Act, R.C. 149.43.” (Emphasis

added.)); contra Henderson v. Vivo, 7th Dist. Mahoning No. 19 MA 0053, 2020-Ohio-698, ¶ 18

(determining relator’s mandamus petition was precluded because he did not first appeal the trial

court’s denial of his public records request).

{¶7} Accordingly, Mr. Ware’s assignments of error are both overruled.

Mr. Ware’s first and second assignments of error are both overruled. The judgment

of the Summit Count Court of Common Pleas is affirmed.