[Cite as Chessman v. State, 2013-Ohio-2757.]




         IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

SCOTT CHESSMAN                                          :

        Plaintiff-Appellant                             :            C.A. CASE NO.    25413

v.                                                      :            T.C. NO.   11CV2696

STATE OF OHIO, et al.                                   :            (Civil appeal from
                                                                     Common Pleas Court)
        Defendant-Appellee                              :

                                                        :

                                               ..........

                                           OPINION

                         Rendered on the         28th       day of       June     , 2013.

                                               ..........

ANDREA G. OSTROWSKI, Atty. Reg. No. 0075318, 25 E. Central Avenue, Suite 4,
Springboro, Ohio 45066
       Attorney for Plaintiff-Appellant

DEBRA GORRELL WEHRLE, Atty. Reg. No. 0062747, Assistant Attorney General, 150
East Gay Street, 16th Floor, Columbus, Ohio 43215
       Attorney for Defendant-Appellee

                                               ..........

FROELICH, J.

                {¶ 1} Scott Chessman appeals from a judgment of the Montgomery County
                                                                                               2

Court of Common Pleas, which granted the State of Ohio’s motion for summary judgment

and overruled Chessman’s motion for summary judgment on Chessman’s action to be

declared a “wrongfully imprisoned individual” under R.C. 2743.48(A). For the following

reasons, the trial court’s judgment will be reversed and the matter will be remanded to the

trial court with instructions to the trial court to enter judgment in favor of Mr. Chessman.

                                      I. Procedural History

       {¶ 2}    In 2003, Chessman pled guilty to two counts of rape in the Greene County

Court of Common Pleas, and he was sentenced to four years in prison. Chessman was also

designated a sexually oriented offender. State v. Chessman, Greene C.P. No. 2003-CR-242.

 Due to errors during the plea hearing, Chessman’s plea was vacated on appeal, and the case

was remanded to the trial court. State v. Chessman, 2d Dist. Greene No. 03 CA 100,

2006-Ohio-835.

       {¶ 3}     Chessman subsequently pled guilty to two counts of rape, sexual battery,

and gross sexual imposition. On June 9, 2006, the trial court sentenced Chessman to three

years in prison and again designated him a sexually oriented offender. Due to the amount of

time that Chessman had already served in prison (including jail time credit), the court’s

sentencing entry ordered that Chessman be released from prison. Chessman was placed on

five years of post-release control.

       {¶ 4}    When Senate Bill 10 went into effect in 2008 (bringing Ohio’s Sex Offender

Registration and Notification Act into compliance with the federal Adam Walsh Child

Protection and Safety Act of 2006), Chessman was redesignated a Tier III sex offender. As

a Tier III sex offender, Chessman was required, among other things, to verify his address and
                                                                                                                                    3

registration information every 90 days for life.1

         {¶ 5}       Although Chessman initially complied with his reporting requirements, he

was eventually charged with failing to notify the sheriff of a cell phone number. We have

described the underlying facts as follows:

                    On December 18, 2008, Chessman’s sister bought him a cell phone.

         According to the service provider’s records, the phone was registered to

         Chessman at his sister’s address.                      The phone was of the pay-as-you-go

         variety. This particular phone began with $10 and, after the phone was

         activated, $2 was deducted every day, whether the user talked on the phone

         all day or not at all. So after five days this phone would stop working unless

         more days were purchased.

                    Two days later, on December 20, 2008, Chessman was sent to jail for

         an unspecified parole violation. His parole officer arranged for Chessman to

         enter the in-residence New Life Program at Volunteers of America (“VOA”)

         upon his release from jail. When Chessman was released on December 31,

         2008, before being taken to the VOA, he was brought to the sheriff’s

         department to fulfill his address-verification requirement.                                In addition to

         verifying his address, an offender must also verify that all of his registration

         information is current, including telephone numbers. Chessman completed

         and signed the verification paperwork, but he did not list the new cell-phone

             1
                  In State v. Bodyke, 126 Ohio St.3d 266, 2010 -Ohio- 2424, 933 N.E.2d 753, the Supreme Court held that
   reclassification by the attorney general under S.B. 10 violated the separation of powers doctrine and was unconstitutional. We
   need not discuss here the impact of Bodyke on Chessman’s classification or his subsequent conviction for failure to notify.
                                                                                           4

          number.

                  Despite knowing that residents at the VOA were not permitted to have

          cell phones, Chessman smuggled the phone in with him. Even though the

          phone was no longer functioning, the $10 having been used up some time

          ago, Chessman hoped to get it working again. Somehow (the record does

          not say how) Chessman did get the phone working while at the VOA. And,

          on February 6, 2009, a VOA employee caught Chessman talking on it beneath

          the covers of his bed. The VOA confiscated the phone and handed it over to

          Chessman’s parole officer, who then turned it over to the Montgomery

          County Sheriff’s Office.

                  Chessman was eventually arrested and indicted on a charge of failure

          to notify of a change in telephone numbers under division (D) of section

          2950.05 in violation of subdivision (F)(1) of that section. * * *

State v. Chessman, 188 Ohio App.3d 428, 2010-Ohio-3239, 935 N.E.2d 887, ¶ 3-6 (2d

Dist.).

          {¶ 6}     In May 2009, Chessman was convicted, after a bench trial, of failure to

notify, in violation of R.C. 2905.05, a first-degree felony. The trial court sentenced him to

three years in prison. State v. Chessman, Montgomery C.P. No. 2009 CR 591 (May 1,

2009). Chessman appealed from his conviction.

          {¶ 7}     Upon review, we vacated Chessman’s conviction for failure to notify. We

noted that, under R.C. 2901.03(A), if conduct is not statutorily defined as an offense, that

conduct cannot constitute a criminal offense.             Chessman, 188 Ohio App.3d 428,
                                                                                             5

2010-Ohio-3239, 935 N.E.2d 887, at ¶ 9. And, under R.C. 2901.03(B), a criminal offense

is not defined unless the Revised Code states a positive prohibition or enjoins a specific

duty, and provides a penalty for violation of that prohibition or failure to meet such duty.

Id.   We concluded that, “[w]hile R.C. 2950.05 positively prohibits failing to provide

notification of a change in telephone numbers, the plain language of R.C. 2950.99 provides

no penalty for violation.” Id. at ¶ 11. “Because there is no penalty, failing to provide

notice of a change in telephone numbers cannot, under R.C. 2901.03, constitute a criminal

offense.” Id. at ¶ 17. Chessman’s conviction for failing to notify the sheriff of his cell

phone number was therefore vacated as void.

       {¶ 8}    On April 12, 2011, Chessman filed an action for declaratory judgment,

seeking a declaration that he was a “wrongfully imprisoned individual” under R.C. 2743.48,

the wrongful imprisonment statute. Chessman subsequently moved for summary judgment

on his claim, asserting that he met each of the five requirements to be designated a

“wrongfully imprisoned individual” based on his conviction for failing to register his cell

phone number. Chessman argued that (1) the charge was a felony, (2) he was found guilty

and did not plead guilty to the offense, (3) he was sentenced to prison, (4) his conviction was

vacated and no criminal proceeding can be brought against him for his acts associated with

the conviction, and (5) he did not commit the alleged offense, because there was no criminal

offense under the Revised Code.

       {¶ 9}    The State opposed Chessman’s motion and filed its own motion for

summary judgment.         The State asserted that Chessman could not satisfy R.C.

2743.48(A)(4), which requires that no criminal proceeding can be brought against the
                                                                                              6

individual for any act associated with the conviction. The State argued that Chessman had

violated his reporting requirements as well as “numerous conditions of release.” The State

emphasized, citing Gover v. Ohio, 67 Ohio St.3d 93, 95, 616 N.E.2d 207 (1993), that R.C.

2743.48 “was never intended to compensate ‘those who have merely avoided criminal

liability.’”

        {¶ 10} On April 19, 2012, following a telephone conference call with the parties,

the trial court ordered the parties to submit supplemental “briefs and/or stipulations,

affidavits or other evidence addressing: 1) the actual stated ‘conditions’ governing Plaintiff’s

post-release control following his 2006 resentencing; and 2) the legal remedies available to

the State of Ohio for violations of those conditions by an individual subject to such

conditions.” Both parties filed additional memoranda and documentation in response to the

trial court’s order.

        {¶ 11} The trial court ultimately granted the State’s motion for summary judgment

and denied Chessman’s motion for summary judgment. The court initially concluded that

Chessman’s “entitlement to relief turns on Section 2743.48(A)(4)’s requirement that ‘that no

criminal proceeding is pending, can be brought, or will be brought * * * against [Plaintiff]

for any act associated with’ the wrongful conviction on which his claim is premised.”

(Emphasis in original.) The trial court stated:

        The evidence presented demonstrates that the conditions governing Plaintiff’s

        post-release supervision relative to his rape conviction required, and Plaintiff

        agreed, that he would “successfully complete a program for sex offenders.”

        Additionally, the record shows that rules of the VOA sex offender program in
                                                                                            7

        which Plaintiff was participating barred him from possessing the cell phone

        on which his invalid conviction was based.            Without question, then,

        Plaintiff’s possession of an unregistered cell phone that led to his allegedly

        wrongful incarceration constituted a violation of the terms of his post-release

        control. The Court thus must consider whether any criminal proceeding

        could be brought against Plaintiff for that “act associated with” his wrongful

        conviction.

(Internal citations omitted.) Because imprisonment was a possible sanction for violating

post-release control, the trial court further concluded that “some ‘criminal proceeding,’

however hypothetical, could ‘be brought’ against Plaintiff for his ‘act’ of possessing a

prohibited cell phone, as ‘associated with’ his wrongful conviction.”             (Emphasis in

original.)

        {¶ 12} In reaching its decision, the trial court rejected Chessman’s argument that

only the parole board could impose imprisonment, and thus he could satisfy R.C.

2743.48(A)(4). The court reasoned:

        * * * Ohio R.C. § 2743.48(A)(4) conspicuously does not mandate that an

        offender be subject to a prison term for the “associated act” in order to be

        ineligible for restitution under the wrongful incarceration statute. Rather,

        Section 2743.48(A)(4) requires only that the offender might be subject to

        some unspecified “criminal proceeding” based on the same conduct that led

        to his wrongful conviction. * * * [T]he fact that the State, to date, apparently

        has not elected to pursue a violation charge against Plaintiff on that basis also
                                                                                            8

       is irrelevant. It appears that a different criminal proceeding of some type

       indeed could be instituted against Plaintiff for his illicit possession and use of

       a cell phone while a resident at the VOA facility. * * *

(Emphasis in original.)

       {¶ 13} In its concluding paragraph, the trial court denied Chessman’s motion and

granted the State’s motion on the grounds that “Plaintiff has not sustained his ‘burden of

proof in affirmatively establishing his or her innocence under R.C. 2743.48(A)(5)’ * * * and

Plaintiff could be subjected to a different ‘criminal proceeding’ based on his ‘act’ of

possessing an unregistered cell phone, which also violated his conditions of post-release

supervision.”   (Emphasis in original.)     The trial court did not provide reasons for its

conclusion under R.C. 2743.48(A)(5).

       {¶ 14} Chessman appeals from the trial court’s judgment.

                                 II. Analysis of R.C. 2743.48

       {¶ 15} In his sole assignment of error, Chessman claims that “[t]he trial court erred

by denying [his] motion for summary judgment and granting [the State’s] motion for

summary judgment.”

       {¶ 16}    Civ.R. 56(C) provides that summary judgment may be granted when the

moving party demonstrates that (1) there is no genuine issue of material fact; (2) the moving

party is entitled to judgment as a matter of law, and (3) viewing the evidence most strongly

in favor of the nonmoving party, reasonable minds can come to but one conclusion and that

conclusion is adverse to the party against whom the motion for summary judgment is made.

State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183, 677 N.E.2d 343
                                                                                             9

(1997); Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46

(1978). 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 the essential element(s) of the nonmoving party's claims.”

Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party

satisfies its initial burden, “the nonmoving party then has a reciprocal burden * * * to set

forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does

not so respond, summary judgment, if appropriate, shall be entered against the nonmoving

party.” Id.; see Civ.R. 56(E).

       {¶ 17} R.C. 2743.48, the wrongful imprisonment statute, authorizes civil actions

against the State, for specified monetary amounts, in the court of claims by “wrongfully

imprisoned individuals.”    Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d

1229, ¶ 10.     Under the statutory scheme, a claimant must first be determined to be a

“wrongfully imprisoned individual” by the court of common pleas before seeking

compensation from the State in the court of claims.           Id., citing R.C. 2305.02 and

2743.48(B)(2); Griffith v. Cleveland, 128 Ohio St.3d 35, 2010-Ohio-4905, 941 N.E.2d 1157,

paragraph two of the syllabus.

       {¶ 18}     R.C. 2743.48 provides:

       (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
                                                                                            10

       Revised Code by an indictment or information, 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, 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.

               (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 the court of common pleas in the county where the

       underlying criminal action was initiated that the charged offense, including all

       lesser-included offenses, either was not committed by the individual or was

       not committed by any person.

A claimant must satisfy all five criteria, by a preponderance of the evidence, to be declared a
                                                                                            11

“wrongfully imprisoned individual.”        Dunbar v. State,             Ohio St.3d            ,

2013-Ohio- 2163,             N.E.2d         , ¶ 11, ¶ 17; Gover v. State, 67 Ohio St.3d 93, 95,

616 N.E.2d 207 (1993).

          {¶ 19}    The    State    does   not   contest   that   Chessman     satisfied   R.C.

2743.48(A)(1)-(3), and the record establishes that Chessman met those criteria, as a matter

of law. Chessman was charged by indictment with failure to notify, in violation of R.C.

2950.05(D)(1) and (F)(1).          Chessman was subsequently convicted of that charge, a

first-degree felony, after a bench trial, and the trial court sentenced him to three years in

prison.

          {¶ 20} The record also establishes that Chessman satisfied the fifth criterion, R.C.

2743.48(A)(5), as a matter of law. Chessman was charged with and convicted of failing to

notify the sheriff’s department of his cell phone number, as required by the sex offender

registration statute. However, we concluded in Chessman’s appeal from that conviction

that the failure to provide notice of a change in telephone numbers did not constitute a

criminal offense, because there was no statutory penalty for that conduct. Accordingly, “the

charged offense” of failure to notify was not committed by Chessman, nor could it have been

committed by any person under the circumstances of his case, since legally there was no

such charge.

          {¶ 21} The State suggests that Chessman merely avoided criminal liability, because

R.C. 2950.05 proscribes his failure to register and notify the sheriff about a change of

telephone number, yet the statute fails to impose a penalty. In essence, the State argues that

Chessman committed the “charged offense” of failure to notify, although this failure was not
                                                                                              12

a crime.

       {¶ 22}    In Walden v. State, 47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989), the Ohio

Supreme Court rejected a similar argument, where the State asserted that the two claimants

had committed “offenses” (murder and felonious assault, respectively), but did not commit

“crimes” because they had acted in self-defense. The supreme court explained:

       As a matter of common usage, the words “crime” and “offense” are

       synonymous.       For example, the words “crime” and “offense” are used

       interchangeably in Crim.R. 7(D), and the word “offense” is used throughout

       R.C. Title 29 to refer to crimes. We see nothing in the language or purpose

       of R.C. 2305.02 and 2743.48 which would impart to the word “offense” any

       technical or particular meaning different from this common usage.

Walden at 50.      The Court held that a person who acted in self-defense may seek

compensation for wrongful imprisonment under R.C. 2305.02 and 2743.48. Because the

offense for which Chessman was convicted was not a crime under the facts of his case, he

likewise was not precluded under R.C. 2743.48(A)(5) from being declared a wrongfully

imprisoned individual.

       {¶ 23} On appeal, Chessman (as did the trial court) focuses primarily on R.C.

2743.48(A)(4). R.C. 2743.48(A)(4) requires that (1) Chessman’s conviction “was vacated,

dismissed, or reversed on appeal,” (2) “the prosecuting attorney in the case cannot or will not

seek any further appeal of right or upon leave of court,” and (3) “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
                                                                                                                       13

for any act associated with that conviction.” The parties do not dispute that Chessman’s

conviction for failure to notify was vacated on appeal and that the prosecuting attorney

cannot or will not seek further appeal of that judgment.2

         {¶ 24} As stated above, the trial court found that Chessman “could” be subject to a

“criminal proceeding” based on his actions, because his possession of the cell phone was a

violation of his post-release control. The State argues that the trial court’s interpretation is

correct, summarizing the third requirement of R.C. 2743.48(A)(4) to be that “no criminal

proceeding * * * can be brought * * * against the individual for any act associated with that

conviction.”

         {¶ 25}      The State relies on Gover, 67 Ohio St.3d 93, 616 N.E.2d 207 (1993), to

support its assertion that Chessman cannot recover under the wrongful imprisonment statute

because he could have been subject to criminal proceedings based on his actions. In Gover,

the defendant was arrested after a police officer observed him emptying his pockets of coins,

costume jewelry, and other items that had earlier been part of a restaurant display that

apparently resembled, but was not, a safe. Gover was later charged with and convicted of

safecracking. The supreme court concluded that Gover did not satisfy R.C. 2743.48(A)(4).

It reasoned that, although Gover did not commit the offense of safecracking, he

“nevertheless [was] committing other criminal offenses” during his visit to the display

location. Gover at 96.

         {¶ 26} In interpreting R.C. 2743.48(A)(4), the Ohio Supreme Court observed that

             2
               The online docket for State v. Chessman, 2d Dist. Montgomery No. 23412, reflects that the State appealed our
   judgment to the Ohio Supreme Court on August 20, 2010. However, the supreme court subsequently denied leave to appeal.
   12/01/2010 Case Announcements, 2010-Ohio-5762.
                                                                                              14

“[c]laimants seeking compensation for wrongful imprisonment must prove that at the time of

the incident for which they were initially charged, they were not engaging in any other

criminal conduct arising out of the incident for which they were initially charged.” Gover at

93. However, the supreme court “did not suggest in any way that conduct divorced in time

from the events underlying the safecracking charge could be considered an act associated

with the safecracking charge.”        Hill v. State, 10th Dist. Franklin No. 12AP-635,

2013-Ohio-1968, ¶ 37.

       {¶ 27}    The conduct associated with Chessman’s conviction for failure to notify in

Montgomery C.P. No. 09 CR 591 was his failure to provide his cell phone number when he

registered with the Montgomery County Sheriff, as required by R.C. Chapter 2950.

Chessman was subjected to criminal prosecution solely because he failed to notify the

sheriff’s office of the number under the sex offender registration and notification

requirements.    In light of our reasons for vacating his conviction, the State cannot

reprosecute this conduct.     And, to the extent that Chessman engaged in behavior that

violated the conditions of his post-release control, there is no evidence that those actions

were “associated with” his failure to notify the sheriff’s office regarding his cell phone.

       {¶ 28} Chessman’s actions might have also subjected him to sanctions by the parole

board for violating the conditions of his post-release control. Chessman argues that R.C.

2743.48(A)(4) requires that the criminal proceeding be brought by a prosecuting attorney

and that post-release control violations are addressed by the parole board, not a prosecutor.

Chessman asserts that the trial court and the State ignored this critical portion of R.C.

2743.48(A)(4). We agree.       The parole board is not a “prosecuting attorney, city director
                                                                                           15

of law, village solicitor, or other chief legal officer of a municipal corporation.” We cannot

add “parole board” to the clear language of R.C. 2743.48(A)(4).

       {¶ 29}       Upon review of the record, we conclude that the trial court erred, as a

matter of law, when it determined that Chessman failed to satisfy R.C. 2743.48(A)(4) and

(5). Chessman’s assignment of error is sustained.

                                       III. Conclusion

       {¶ 30} The trial court’s judgment will be reversed and the matter will be remanded

to the trial court with instructions to the trial court to enter judgment in favor of Mr.

Chessman.

                                         ..........

DONOVAN, J. and DONOFRIO, J., concur.

(Hon. Gene Donofrio, Seventh District Court of Appeals, sitting by assignment of the Chief
Justice of the Supreme Court of Ohio).



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