[Cite as Johnston v. State, 2014-Ohio-1452.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


Dale Johnston,                                    :

                 Plaintiff-Appellee,              :
                                                                No. 12AP-1022
v.                                                :        (C.P.C. No. 11CVH-12-15900)

State of Ohio,                                    :       (REGULAR CALENDAR)

                 Defendant-Appellant.             :



                                         D E C I S I O N

                                    Rendered on February 20, 2014


                 The Owen Firm, LLC, and James Owen, for appellee.

                 Michael DeWine, Attorney General, and Debra Gorrell
                 Wehrle, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

SADLER, P.J.
        {¶ 1} Defendant-appellant, State of Ohio ("state"), appeals from a judgment of the
Franklin County Court of Common Pleas granting summary judgment in favor of
plaintiff-appellee, Dale Johnston, as to his complaint seeking a declaration that he is a
wrongfully imprisoned individual pursuant to R.C. 2743.48. For the reasons that follow,
the judgment of the trial court is reversed.
I. FACTS AND PROCEDURAL HISTORY
        A. Criminal Case
        {¶ 2} The facts and procedural history underlying appellee's convictions are set
forth in the opinion of the Supreme Court of Ohio in State v. Johnston, 39 Ohio St.3d 48
(1988), as follows:
No. 12AP-1022                                                                            2


             Margaret Annette Johnston, and Todd Leroy Schultz, her
             fiancee, left the Schultz family home in Logan, Ohio. They did
             not return.

             On October 14, 1982, two nude and decomposing human
             torsos were discovered in the Hocking River near the city's
             edge. Two days later, the arms, legs, and heads of Annette
             and Todd were found buried in a cornfield adjacent to the
             river.

             The victims had been shot several times with a .22 caliber
             weapon and dismembered with a sharp instrument. Expert
             testimony established that the victims had been killed on or
             about October 4. Various kinds of circumstantial evidence
             linked Annette's stepfather, Dale N. Johnston, to the crime.

             On September 29, 1983, an indictment was issued charging
             Dale N. Johnston, appellee herein, with two counts of
             aggravated murder in violation of R.C. 2903.01.          The
             indictment contained death penalty specifications charging
             that the murders were a part of a course of conduct involving
             the purposeful killing of two or more persons, as provided in
             R.C. 2929.04(A)(2).

             ***

             On August 6, 1986, the court of appeals unanimously reversed
             appellee's conviction and remanded the case for a new trial.
             In case No. 412 (Supreme Court No. 86-1547), the appellate
             court found that the trial court had erred in admitting the
             testimony of a witness who had been hypnotized and in
             issuing an opinion without findings and reasons for its
             conclusion at the sentencing phase. In case No. 425 (Supreme
             Court No. 86-1548), the appellate court held that evidence
             material to appellee's guilt or innocence had been improperly
             withheld by the state.

Id.
      {¶ 3} The Supreme Court of Ohio agreed with the court of appeals and reversed
appellee's convictions for the following reasons: (1) testimony supplied by a witness whose
memory has been refreshed by hypnosis prior to trial is admissible only if the trial court
determines that, under the totality of the circumstances, the proposed testimony is
sufficiently reliable to merit admission; (2) the trial court abused its discretion in
No. 12AP-1022                                                                            3


permitting a witness to testify about his post-hypnosis recollection; and (3) the state's
failure to disclose exculpatory evidence violated due process. The case was remanded to
the trial court with instructions.
       {¶ 4} Upon remand, the trial court suppressed certain statements made by
appellee, ruled that the post-hypnosis testimony of another witness would not be
admitted at trial, and excluded other physical evidence. This court subsequently affirmed
the trial court's rulings. See State v. Johnston, 64 Ohio App.3d 238 (10th Dist.1990). In
May 1990, the state dismissed the indictment.
       B. Civil Action
       {¶ 5} In December 1990, appellee filed a civil action against the state for wrongful
imprisonment. As it existed at the time appellee filed his action in 1990, R.C. 2743.48
provided, in relevant part, as follows:
              (A) As used in this section, a "wrongfully imprisoned
              individual" means an individual who satisfies each of the
              following:

              (1) He was charged with a violation of a section of the Revised
              Code by an indictment or information prior to, or on or after,
              September 24, 1986, and the violation charged was an
              aggravated felony or felony.

              (2) He was found guilty of, but did not plead guilty to, the
              particular charge or a lesser-included offense by the court or
              jury involved, and the offense of which he was found guilty
              was an aggravated felony or felony.

              (3) He was sentenced to an indefinite or definite term of
              imprisonment in a state correctional institution for the
              offense of which he was found guilty.

              (4) The individual's conviction was vacated or was dismissed,
              or reversed on appeal, the prosecuting attorney in the case
              cannot or will not seek any further appeal of right or upon
              leave of court, and no criminal proceeding is pending, can be
              brought, or will be brought by any prosecuting attorney, city
              director of law, village solicitor, or other chief legal officer of a
              municipal corporation against the individual for any act
              associated with that conviction.
No. 12AP-1022                                                                             4


              (5) Subsequent to his sentencing and during or subsequent to
              his imprisonment, it was determined by a court of common
              pleas that the offense of which he was found guilty, including
              all lesser-included offenses, either was not committed by him
              or was not committed by any person.

       {¶ 6} In resolving appellee's civil action, the trial court issued an order on
August 9, 1993 dismissing the action due to appellee's failure to produce sufficient
evidence of his actual innocence as required by R.C. 2743.48(A)(5).
       {¶ 7} Effective April 9, 2003, S.B. No. 149 amended R.C. 2743.48, thereby
providing an alternative to the actual innocence standard of R.C. 2743.48(A)(5). Under
R.C. 2743.48(A)(5) as amended, a claimant seeking a determination that he or she is a
wrongfully imprisoned individual need establish either actual innocence or that an error
in procedure resulted in his or her release.
       {¶ 8} In 2008, appellee filed a second action alleging wrongful imprisonment
pursuant to R.C. 2943.48(A)(5). In this action, appellee alleged both actual innocence
and that an error in procedure resulted in his release.       Appellee's claim of actual
innocence in the 2008 complaint is based upon his assertion that "two other men have
since confessed and been convicted" of the murders underlying this matter. (Amended
Complaint, ¶ 55.)
       {¶ 9} Appellee dismissed his complaint in 2010 by filing a notice of voluntary
dismissal and then re-filed the complaint within one year thereof. Thereafter, the parties
filed cross-motions for summary judgment. On October 25, 2012, the trial court denied
the state's motion for summary judgment and, on October 31, 2012, the trial court granted
appellee's motion for summary judgment.
II. ASSIGNMENTS OF ERROR
       {¶ 10} The state timely appealed and assigns the following assignments of error:
              [I.] The trial court committed reversible error by declaring
              the six (6) year statute of limitations for wrongful
              imprisonment cases, pursuant to Nelson v. State, 5th Dist. No.
              2006 AP 10 0061, 2007-Ohio-6274, ¶21., did not apply to
              Appellee.

              [II.] The trial court committed reversible error by
              determining that the 2003 Amendment to the Wrongful
No. 12AP-1022                                                                           5


              Imprisonment statute of R.C. § 2743.48 retroactively applied
              to Appellee's 1983 criminal conviction.

              [III.] The trial court committed reversible error by declaring
              Appellee was not barred by the doctrine of res judicata from
              re-litigating his actual innocence claim, previously passed
              upon by a court of competent jurisdiction in 1993.

              [IV.] The trial court committed reversible error by declaring
              Appellee satisfied the fourth prong of the wrongful
              imprisonment statute, R.C. § 2743.48(A)(4).

              [V.] The trial court committed reversible error by declaring
              Appellee satisfied the fifth prong of the wrongful
              imprisonment statute, R.C. § 2743.48(A)(5).

III. STANDARD OF REVIEW
       {¶ 11} Appellate review of a summary judgment motion is de novo. Helton v.
Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a
trial court's ruling on summary judgment, the court of appeals conducts an independent
review of the record and stands in the shoes of the trial court." Mergenthal v. Star Banc
Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court's
judgment, if any, of the grounds raised by the movant at the trial court are found to
support it, even if the trial court failed to consider those grounds. Coventry Twp. v.
Ecker, 101 Ohio App.3d 38, 41-42 (9th Dist.1995).
       {¶ 12} Summary judgment is proper only when the party moving for summary
judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving
party is entitled to judgment as a matter of law, and (3) reasonable minds could come to
but one conclusion and that conclusion is adverse to the party against whom the motion
for summary judgment is made, that party being entitled to have the evidence most
strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp.
Relations Bd., 78 Ohio St.3d 181, 183 (1997).
       {¶ 13} When seeking summary judgment on the ground that the nonmoving party
cannot prove its case, the moving party bears the initial burden of informing the trial
court of the basis for the motion and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on an essential element of the
No. 12AP-1022                                                                               6


nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving
party does not discharge this initial burden under Civ.R. 56 by simply making a
conclusory allegation that the nonmoving party has no evidence to prove its case. Id.
Rather, the moving party must affirmatively demonstrate by affidavit or other evidence
allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims.
Id. If the moving party meets this initial burden, then the nonmoving party has a
reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a
genuine issue for trial and, if the nonmoving party does not so respond, summary
judgment, if appropriate, shall be entered against the nonmoving party. Id.
IV. LEGAL ANALYSIS
       A. Trial Court Ruling
       {¶ 14} In order to be declared a wrongfully imprisoned individual, a claimant must
satisfy, by a preponderance of the evidence, all five criteria set forth in R.C. 2743.48(A).
Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163; Gover v. State, 67 Ohio St.3d 93,
95 (1993).
       {¶ 15} As amended in 2003, R.C. 2743.48(A) provided, in relevant part, as follows:
              (A) As used in this section and section 2743.49 of the Revised
              Code, a "wrongfully imprisoned individual" means an
              individual who satisfies each of the following:

              (1) The individual was charged with a violation of a section of
              the Revised Code by an indictment or information prior to, or
              on or after, September 24, 1986, and the violation charged
              was an aggravated felony or felony.

              (2) The individual was found guilty of, but did not plead
              guilty to, the particular charge or a lesser-included offense by
              the court or jury involved, and the offense of which the
              individual was found guilty was an aggravated felony or
              felony.

              (3) The individual was sentenced to an indefinite or definite
              term of imprisonment in a state correctional institution for
              the offense of which the individual was found guilty.

              (4) The individual's conviction was vacated or was dismissed,
              or reversed on appeal, the prosecuting attorney in the case
              cannot or will not seek any further appeal of right or upon
No. 12AP-1022                                                                            7


             leave of court, and no criminal proceeding is pending, can be
             brought, or will be brought by any prosecuting attorney, city
             director of law, village solicitor, or other chief legal officer of a
             municipal corporation against the individual for any act
             associated with that conviction.

             (5) Subsequent to sentencing and during or subsequent to
             imprisonment, an error in procedure resulted in the
             individual's release, or it was determined by a court of
             common pleas that the offense of which the individual was
             found guilty, including all lesser-included offenses, either was
             not committed by the individual or was not committed by any
             person.

      {¶ 16} In granting appellee's motion for summary judgment, the trial court made
the following determinations: that the 1993 decision dismissing appellee's claim for
wrongful imprisonment did not preclude appellee from seeking a declaration of
wrongful imprisonment under the 2003 amendment to R.C. 2743.48(A)(5); that
unproven and uncharged allegations of appellee's sexual misconduct with his
stepdaughter "a few years before" her murder did not prevent appellee from satisfying
the requirements of R.C. 2743.48(A)(4); that the 2003 amendment to R.C.
2743.48(A)(5) applies retroactively to appellee's wrongful imprisonment claim; that the
six-year limitation period for commencing a wrongful imprisonment action did not bar
appellee's recovery under the "error in procedure" standard; and that an error in
procedure resulted in appellee's release from prison. See October 25 and 31, 2012 Trial
Court Decisions.
      B. Second Assignment of Error
      {¶ 17} Because it is dispositive, we address the state's second assignment of error
first. In this assigned error, the state contends the trial court erred in determining the
2003 amendments to R.C. 2743.48 applied retroactively to appellee's alleged injury that
occurred years prior to the amendments' enactment.
      {¶ 18} In evaluating whether a statute applies prospectively or retroactively, courts
in Ohio apply two rules. The first is the rule of statutory construction adopted in R.C.
1.48, which establishes a presumption that statutes are prospective in operation unless
the legislature expressly declares the statute to be retroactive. Hyle v. Porter, 117 Ohio
St.3d 165, 2008-Ohio-542, ¶ 7; Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100,
No. 12AP-1022                                                                              8


105 (1988). A statute that is prospective in operation applies to and regulates conduct
that occurs after its effective date. See Conkle v. Wolfe, 131 Ohio App.3d 375, 383 (4th
Dist.1998).
       {¶ 19} The second rule, one of constitutional limitation, is contained in the Ohio
Constitution, Article II, Section 28 and states, in relevant part, that "[t]he general
assembly shall have no power to pass retroactive laws, or laws impairing the obligation of
contracts." A retroactive statute is one that " 'affect[s] acts or facts occurring, or rights
accruing, before it came into force.' " Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000),
quoting Black's Law Dictionary (6th Ed.1990) 1317. A statute is impermissibly retroactive
in effect if either it takes away or impairs rights that vested or accrued before the statute
came into force or it attaches a new disability in respect to past transactions or
considerations. State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281 (1988), citing Soc. for
the Propagation of the Gospel v. Wheeler, 22 F.Cas. 756, 767 (C.C.D.N.H.1814).
       {¶ 20} In reviewing legislative enactments and interpreting statutory authority, our
review is de novo. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 8. Because
R.C. 1.48 establishes a threshold analysis which must be utilized prior to an inquiry under
the Ohio Constitution, Article II, Section 28, we first must determine whether R.C.
2743.48(A)(5) is expressly made retroactive.       Van Fossen at paragraph one of the
syllabus; Hyle at ¶ 8; Consilio at ¶ 10. In making our determination, we must not infer
retroactivity; rather, R.C. 2743.48(A)(5) must "clearly proclaim" its own retroactivity to
overcome the presumption that it applies prospectively. See Consilio at paragraph one of
the syllabus. If retroactivity of R.C. 2743.48(A)(5) is not expressly proclaimed, the statute
applies prospectively and we do not reach the constitutional question. Id. at ¶ 10; Hyle at
¶ 9, 24, citing Van Fossen at 106.
       {¶ 21} The state contends R.C. 2743.48(A)(5) does not contain an indication that
the General Assembly intended it to apply retroactively to claims that accrued prior to
April 9, 2003, the effective date of the statute's amendments. In contrast, appellee argues
the 2003 amendments create a new cause of action available to any qualified individual
who has not recovered under prior law. In support of his position, appellee points to the
language of R.C. 2743.48(A)(1) as an expression of such retroactivity. As enacted in 1989,
R.C. 2743.48(A) states:
No. 12AP-1022                                                                             9


                 As used in this section, a "wrongfully imprisoned individual"
                 means an individual who satisfies each of the following:

                 (1) He was charged with a violation of a section of the Revised
                 Code by an indictment or information prior to, or on or after,
                 September 24, 1986, and the violation charged was an
                 aggravated felony or felony.

(Emphasis added.)
       {¶ 22} By the use of the phrase "prior to, or on or after" in subsection (A)(1), the
General Assembly indicated that the first requirement of R.C. 2743.48(A) is met by any
individual who has been charged with a felony or aggravated felony under Ohio law.
However, the application of the phrase "prior to, or on or after" is clearly limited to R.C.
2743.48(A)(1). Therefore, we conclude this does not constitute a general statement of
retroactivity.
       {¶ 23} Appellee next contends that, as enacted in 1989, R.C. 2743.48(H) contains a
statement of retroactivity. Said section provides:
                 To be eligible to recover a sum of money as described in this
                 section because of his wrongful imprisonment, a wrongfully
                 imprisoned individual shall not have been, prior to
                 September 24, 1986, the subject of an act of the general
                 assembly that authorized an award of compensation for his
                 wrongful imprisonment or have been the subject of an action
                 before the former sundry claims board that resulted in an
                 award of compensation for his wrongful imprisonment.

       {¶ 24} This section provides that to be eligible to recover under the wrongful
imprisonment statute, an individual must have been wrongfully imprisoned and (1) not
been the subject of an act authorizing compensation for wrongful imprisonment prior to
September 24, 1986, or (2) not been the subject of an action that resulted in an award of
compensation. Persons the subject of an act authorizing compensation for wrongful
imprisonment prior to September 24, 1986, would be those persons who had been
wrongfully imprisoned at that time. Contrary to constituting a clear proclamation of
retroactive application, subsection (H), albeit in a less than concise manner, actually
excludes persons wrongfully imprisoned and covered by an act authorizing compensation
for wrongful imprisonment prior to September 24, 1986.
No. 12AP-1022                                                                               10


       {¶ 25} Even if the language of R.C. 2743.48 is said to be ambiguous regarding its
prospective or retrospective application, "ambiguous language is not sufficient to
overcome the presumption of prospective application." Hyle at ¶ 13. A mere suggestion
of retroactivity is not sufficient to establish that a statute applies retroactively. Id.
       {¶ 26} The dissent disagrees with our interpretation of the language set forth in
R.C. 2743.48(H), and in the dissent's view, said provision provides a clear proclamation of
retroactivity. As support, the dissent cites to this court's decision in Nelson v. State, 183
Ohio App.3d 83, 2009-Ohio-3231 (10th Dist.), which concerned the jurisdiction of the
court of claims to adjudicate a former inmate's wrongful imprisonment claim in a
circumstance in which the state admitted the former inmate was a wrongfully imprisoned
individual. Though recognizing that Nelson did not "specifically address the issue of
retroactivity," the dissent views Nelson as impliedly authorizing retroactive application of
the "error in procedure" standard to claims that accrued prior to April 9, 2003. (Dissent,
¶ 37.) We disagree that Nelson impliedly stands for such proposition and note, " '[a]
reported decision, although a case where the question might have been raised, is entitled
to no consideration whatever as settling * * * a question not passed upon or raised at the
time of the adjudication.' " State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 11,
quoting State ex rel. Gordon v. Rhodes, 158 Ohio St. 129 (1952), paragraph one of the
syllabus.
       {¶ 27} Additionally, the uncodified language of S.B. No. 149 supports our
conclusion that the 2003 amendments to R.C. 2743.48 were not intended to apply
retroactively. In Section 3 of S.B. No. 149, the General Assembly noted "Section[] * * *
2743.48 * * * of the Revised Code, as amended or enacted by this act, apply to civil actions
for wrongful imprisonment in the Court of Claims commenced on or after the effective
date of this act, or commenced prior to and pending on the effective date of this act." This
language indicates the 2003 amendments to R.C. 2743.48 are applicable to actions
commenced in the Court of Claims after April 9, 2003 or are still pending in the Court of
Claims on April 9, 2003.
       {¶ 28} After review of this matter, we conclude R.C. 2743.48(A)(5) does not
contain any clear or express language indicating the General Assembly intended it to be
retroactive in application. As previously stated, the General Assembly's failure to include
No. 12AP-1022                                                                            11


such language means the statute can be applied prospectively only. Hope Academy
Broadway Campus v. State Dept. of Edn., 10th Dist. No 07AP-758, 2008-Ohio-4694,
¶ 14. Our conclusion that the 2003 amendments to R.C. 2743.48 were not expressly made
retroactive precludes us from addressing the constitutional prohibition against
retroactivity. Hyle at ¶ 24.
       {¶ 29} In conclusion, we find the 2003 amendments to R.C. 2743.48 do not apply
retroactively to appellee's alleged injury that occurred prior to the amendments' effective
date. Accordingly, we sustain the state's second assignment of error.
       C. Remaining Assignments of Error
       {¶ 30} Our disposition of the state's second assignment of error renders the
remaining assignments of error moot.
       D. Appellee's Motions
       {¶ 31} Appellee filed motions on March 13 and April 19, 2003 seeking to strike
portions of the state's merit brief, appendix, and reply brief for including exhibits and
reference to materials not contained within the record before the trial court.         Our
disposition of the state's second assignment of error renders these motions moot.
V. CONCLUSION
       {¶ 32} For the foregoing reasons, appellant's second assignment of error is
sustained and the remaining assignments of error are rendered moot. Accordingly, the
judgment of the Franklin County Court of Common Pleas is hereby reversed, and this
matter is remanded to that court for further proceedings consistent with law and this
decision.
                                                                Motions rendered moot;
                                                 judgment reversed and cause remanded.

                                McCORMAC, J., concurs.
                                 CONNOR, J., dissents.

              McCORMAC, J., retired, formerly of the Tenth Appellate
              District, assigned to active duty under the Ohio Constitution,
              Article IV, Section 6(C).
No. 12AP-1022                                                                             12


CONNOR, J., dissenting.
           {¶ 33} Because I believe that the General Assembly intended that the new "error in
procedure" to have a retroactive application, I respectfully dissent.
           {¶ 34} The majority correctly points out that in order to overcome the
constitutional presumption of prospective application, the General Assembly must clearly
proclaim its intention that a statute apply retroactively. However, I disagree with the
conclusion of the majority that R.C. 2743.48 contains no such proclamation. Indeed, R.C.
2743.48(H), as enacted in 1986, includes a general statement of retroactivity which reads
as follows:
                   To be eligible to recover a sum of money as described in this
                   section because of his wrongful imprisonment, a wrongfully
                   imprisoned individual shall not have been, prior to the
                   effective date of this section the subject of an act of the general
                   assembly that authorized an award of compensation for his
                   wrongful imprisonment or have been the subject of an action
                   before the former sundry claims board that resulted in an
                   award of compensation for his wrongful imprisonment.

           {¶ 35} "Prior to 1986, a person who had been wrongfully imprisoned in Ohio could
receive compensation for that wrongful imprisonment only if the General Assembly
enacted a law specifically providing for payment of compensation to that named
individual, i.e., enactment of 'ad hoc moral claims legislation.' " Hill v. State, 10th Dist.
No. 12AP-635, 2013-Ohio-1968, ¶ 10, quoting Walden v. State, 47 Ohio St.3d 47, 49
(1989). In my opinion, R.C. 2743.48(H) is a clear proclamation by the General Assembly
that the wrongful imprisonment statute applies to a qualifying individual released from
prison prior to the effective date of enactment. The only limitation upon retroactive
application being that the individual has not previously received compensation under
another provision of law.1 There is no contention that the General Assembly previously
enacted a law specifically providing for payment of compensation to appellant for his
wrongful imprisonment. I disagree with the assertion in the majority opinion any person
wrongfully imprisoned prior to September 24, 1986, is "the subject of an act authorizing
compensation for wrongful imprisonment." (Majority opinion, ¶ 24.)



1   Appellee concedes that a six-year statute of limitations also applies.
No. 12AP-1022                                                                               13


       {¶ 36} When the General Assembly added the "error in procedure" standard to
R.C. 2743.48(A)(5) in 2003, the General Assembly did not change the operative language
in R.C. 2743.48(H). This being the case, the general statement of retroactivity applies to
the "error in procedure" standard. See R.C. 1.58(A)(1) ("The reenactment, amendment or
repeal of a statute does not affect * * * the prior operation of the statute."). As there is no
claim that appellant previously received compensation for wrongful imprisonment either
through an act of the General Assembly or a judgment of the former sundry claims board,
appellant is "eligible to recover a sum of money as described in this section because of the
wrongful imprisonment." In other words, if appellant presents evidence satisfying the
requirements of R.C. 2743.48(A)(1)-(5), he is entitled to a declaration that he is a
wrongfully imprisoned individual.
       {¶ 37} Indeed, in Nelson v. State, 183 Ohio App.3d 83, 2009-Ohio-3231 (10th
Dist.), we held that an individual who was released from prison in 2001 could recover
damages for wrongful imprisonment in the Court of Claims upon proof that his conviction
was the result of "an error in procedure." Id. at ¶ 21. Although we did not specifically
address the issue of retroactivity in Nelson, our opinion impliedly authorizes the
retroactive application of the "error in procedure" standard to a claim that accrued prior
to April 9, 2003.
       {¶ 38} The majority reasons that certain uncodified provisions of S.B. No. 149,
Section 3, require prospective application of the "error in procedure" standard. However,
the provisions cited by the majority speak to the applicability of the new compensation
formula in actions that have been or will be "commenced" in the Court of Claims. Those
provisions do not address to the application of the new "error in procedure" standard in
actions commenced in the court of common pleas. See R.C. 2305.02. Thus, the general
statement of retroactivity in R.C. 2743.48(H) controls.
       {¶ 39} Having determined that the new "error in procedure" standard is retroactive
in application, I would find that the 2003 amendment represents a remedial change to the
existing law. See Johnson v. State, 8th Dist. No. 98050, 2012-Ohio-3964, ¶ 20; State v.
Moore, 165 Ohio App.3d 538, 2006-Ohio-114, ¶ 20, 23 (4th Dist.); Holcomb v. State, 9th
Dist. No. 26235, 2012-Ohio-5869, ¶ 8; Houston v. State, 8th Dist. No. 98118, 2012-Ohio-
No. 12AP-1022                                                                            14


4404, ¶ 33. Thus, the amendment is permissibly retroactive in application. State v. Cook,
83 Ohio St.3d 404, 411 (1998).
      {¶ 40} In short, I would find that the trial court did not err when it determined that
the 2003 amendment applied retroactively to qualifying individuals who were released
from prison prior to the effective date of the amendment. Accordingly, I would overrule
the State's second assignment of error and proceed to a determination of the merits of
appellant's remaining assignments of error.
                       _____________________________
