COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71197 STATE OF OHIO, EX REL. : MICHAEL EDWARDS : : Relator : : JOURNAL ENTRY vs. : and : OPINION JUDGE THOMAS PATRICK CURRAN : : Respondent : : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 5, 1997 CHARACTER OF PROCEEDING : MANDAMUS (Motion No. 76403) JUDGMENT : DISMISSED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For relator: MICHAEL EDWARDS, pro se #320-968 Madison Correctional Inst. Post Office Box 740 London, Ohio 43140 For respondent: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor RHONDA M. O'NEAL, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71197 STATE OF OHIO, ex rel. MICHAEL EDWARDS : : Relator : : JOURNAL ENTRY vs. : and : OPINION THOMAS P. CURRAN, JUDGE : COURT OF COMMON PLEAS : CUYAHOGA COUNTY, OHIO : : (NOTION NO. 76403) Respondent : : : DATE: JUNE 5, 1997 JOURNAL ENTRY The relator, Michael Edwards, commenced this mandamus action against the respondent, Judge Thomas P. Curran, to compel the judge "to produce documents requested in attached motion," i.e., the original notes of the arresting officers, together with police reports containing statements of witnesses and any and all state- ments made by the defendant/appellant or witnesses to the arrest- ing officer or officers concerning the crime. Judge Curran, through the Cuyahoga County Prosecutor, moved to dismiss because the state had already provided Mr. Edwards with all the records to which he was entitled. Attached to this motion was a copy of the docket; thus, this court considers the motion to dismiss a motion - 3 - for summary judgment pursuant to Civ.R. 12(B). Despite having many months in which to respond, Mr. Edwards never filed anything. For the following reasons, this court grants Judge Curran's motion for summary judgment and dismisses the mandamus action. In the underlying case, Mr. Edwards was found guilty of rape, kidnapping and aggravated robbery and sentenced to ten to twenty- five years on each count, to be served consecutively. He appealed, and the public defender's office was appointed to represent him. Mr. Edwards then, after conviction and sentencing, moved the respondent for the above-listed records so he could file a post- conviction petition. Judge Curran denied the motion. First, this case is properly dismissed for lack of prosecu- tion. Mr. Edwards never responded and never filed anything after Judge Curran moved for summary judgment. In State ex rel. White v. Enright (1992), 65 Ohio St.3d 481, 605 N.E.2d 44, the relator sought various discovery matters, including police reports and witness statements, from the prosecutor. After the prosecutor submitted the relevant materials under seal, the relator never filed a brief in support of his position. The court of appeals then dismissed the mandamus action for lack of prosecution, and the Supreme Court of Ohio affirmed. Furthermore, the courts have often dismissed mandamus actions for lack of prosecution when the relator has failed to file briefs. State ex rel. Mancini v. Ohio Bureau of Motor Vehicles (1994), 69 Ohio St.3d 486, 633 N.E.2d 1126; State ex rel. Crow v. Baynes (1962), 173 Ohio St. 311, 181 N.E.2d 804; and - 4 - State ex rel. Eglin v. Watzek (1961), 172 Ohio St. 199, 174 N.E.2d 261. On the merits of the case, this court rules that Judge Curran's position, that Mr. Edwards has been provided with all to which he is entitled, is well taken. Mr. Edwards is not entitled to witness statements nor to police notes and reports. Crim.R. 16(B). Even under R.C. 149.43, the Ohio Public Records Act, and State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 N.E.2d 83, there is generally no duty to provide such records. The docket establishes that before trial in November 1995, Mr. Edwards moved for discovery and that in December 1995, the state submitted its response. This response stated that Mr. Edwards made no written statement to the police, although he did make an oral one. The response provided the following summary of that statement: The defendant stated he could not remember what he did or who he was with in September 2, 1995. He stated he does not know who would make a complaint like this against him. He stated that if he remembers correctly he was working at Jacob's Field for the Cleveland Indians baseball games. Moreover, to the extent that Mr. Edwards is demanding that Judge Curran provide the records, the request is misdirected because the judge would not have custody of the records. The police or the prosecutor would have custody of these requested records, and any duty to disclose would be upon those persons and not the judge. If a person does not have custody of certain records, then there is no duty for that person to disclose or - 5 - provide those records. State ex rel. Master v. City of Cleveland (1996), 75 Ohio St.3d 23, 661 N.E.2d 180. There are also adequate remedies at law which preclude this mandamus action. To the extent that Mr. Edwards seeks to compel the respondent judge to order that these various records be pro- duced by other persons, Mr. Edwards has an adequate remedy by way of appeal. After conviction in the underlying case, Mr. Edwards filed a motion with the respondent to order the prosecutor to make available the requested records; Judge Curran denied the motion. Then Mr. Edwards commenced this mandamus action to compel the respondent "to produce documents requested in the attached motion." Therefore, Mr. Edwards is seeking judicial review of the respondent's action. That is properly done through appeal, not mandamus. It is well-established that when a court has discretion to act, its only duty is to exer- cise that discretion. *** Although a writ of mandamus may require an inferior tribunal to exercise its judgment or to proceed to the discharge of its function, *** it may not control judicial discretion, even if such discretion is grossly abused. State ex rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914. (Citations omitted.) Ney also stands for the proposition that mandamus may not issue if there is an adequate remedy at law, such as appeal. Finally, the Supreme Court of Ohio in Steckman ruled that in criminal proceedings, including post-conviction petitions, a defendant may use only Crim.R. 16 to obtain discovery and records, - 6 - such as Mr. Edwards is requesting. Therefore, Mr. Edwards has or had an adequate remedy at law which precludes this mandamus action to compel the respondent judge to provide the requested records. State ex rel. Tran v. McGrath (1997), 78 Ohio St.3d 45; State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 33, 564 N.E.2d 86; and State ex rel. Sibarco v. City of Berea (1966), 7 Ohio St.2d 85, 218 N.E.2d 428, cert. denied (1967), 386 U.S. 957. Accordingly, the respondent's motion for summary judgment is granted, and the application for writ of mandamus is dismissed. Relator to pay costs. LEO M. SPELLACY, J. CONCURRING JOSEPH J. NAHRA, J. CONCURRING ______________________________ .