[Cite as Artiaga v. Ohio Dept. of Rehab. & Corr., 2011-Ohio-4856.]




                                                        Court of Claims of Ohio
                                                                             The Ohio Judicial Center
                                                                     65 South Front Street, Third Floor
                                                                                Columbus, OH 43215
                                                                      614.387.9800 or 1.800.824.8263
                                                                                 www.cco.state.oh.us



THOMAS ARTIAGA, et al.

       Plaintiffs

       v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

       Defendant

Case No. 2010-10254

Judge Clark B. Weaver Sr.

DECISION




        {¶1}     On June 9, 2011, defendant filed a motion for summary judgment
pursuant to Civ.R. 56(B). On June 22, 2011, plaintiffs filed a response. The motion is
now before the court for a non-oral hearing pursuant to L.C.C.R. 4.
        {¶2}     Civ.R. 56(C) states, in part, as follows:
        {¶3}     “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that 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, that party being entitled to
have the evidence or stipulation construed most strongly in the party's favor.” See also
Gilbert v. Summit County, 104 Ohio St.3d 660, 2004-Ohio-7108, citing Temple v. Wean
United, Inc. (1977), 50 Ohio St.2d 317.
        {¶4}    Plaintiff1 asserts that pursuant to Hernandez v. Kelly, 108 Ohio St.3d 395,
2006-Ohio-126, his post-release control from January 15, 2007, until September 2,
2009, was invalid. Plaintiff alleges false imprisonment and negligence; plaintiffs Susan
Artiaga, Nikki Artiaga, and Cody Artiaga, allege loss of consortium.2 Defendant argues
that it is not liable inasmuch as plaintiff’s incarceration and subsequent post-release
control were pursuant to facially valid sentencing orders of both the Lucas and Ottawa
County Courts of Common Pleas.
        {¶5}    False imprisonment occurs when a person confines another “‘intentionally
without lawful privilege and against his consent within a limited area for any appreciable
time, however short.’” Feliciano v. Kreiger (1977), 50 Ohio St.2d 69, 71, quoting 1
Harper & James, The Law of Torts (1956), 226, Section 3.7. See also Bennett v. Ohio
Dept. of Rehab. & Corr. (1991), 60 Ohio St.3d 107, 109.
        {¶6}    In order to prevail on his claim of false imprisonment, plaintiff must show
that: 1) his lawful term of confinement expired; 2) defendant intentionally confined him
after the expiration; and 3) defendant had knowledge that the privilege initially justifying
the confinement no longer existed. Corder v. Ohio Dept. of Rehab. & Corr. (1994), 94
Ohio App.3d 315, 318.
        {¶7}    However, “‘an action for false imprisonment cannot be maintained where
the wrong complained of is imprisonment in accordance with the judgment or order of a
court, unless it appear that such judgment or order is void.’” Bennett, supra, at 111,
quoting Diehl v. Friester (1882), 37 Ohio St. 473, 475.
        {¶8}    Plaintiff argues that his sentencing entries from both the Lucas and
Ottawa County Courts of Common Pleas were rendered void by the subsequent holding
in Hernandez v. Kelly, supra.
        {¶9}    In Hernandez, the Supreme Court of Ohio held that the Adult Patrol
Authority could not subject an offender to post-release control unless the trial court both
notified the offender at sentencing that he would be subject to such control and

1
 Plaintiff shall be used to refer to Thomas Artiaga herein.
2
  On June 27, 2011, defendant filed a motion to dismiss plaintiff Nikki Artiaga’s claims for failure to comply
with the court’s May 25, 2011 order. On July 5, 2011, defendant filed a motion to dismiss Cody Artiaga’s
claims for failure to comply with the court’s May 25, 2011 and June 20, 2011 orders. Upon review, the
motions shall be granted.
incorporated that notice into the sentencing entry.       Hernandez, supra.      “When a
defendant is convicted of or pleads guilty to one or more offenses and postrelease
control is not properly included in a sentence for a particular offense, the sentence for
that offense is void.” State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, ¶16. “‘The
effect of determining that a judgment is void is well established. It is as though such
proceedings had never occurred; the judgment is a mere nullity and the parties are in
the same position as if there had been no judgment.’” Id. at ¶12, quoting Romito v.
Maxwell (1967), 10 Ohio St.2d 266, 267-268.     The Tenth District Court of Appeals has
consistently rejected the argument that an inmate who was confined pursuant to a
judgment that was later determined to be “void ab initio” is automatically entitled to
recovery for false imprisonment. Fryerson v. Dept. of Rehab. & Corr., Franklin App. No.
02AP-1216, 2003-Ohio-2730; Roberson v. Dept. of Rehab. & Corr., Franklin App. No.
03AP-538, 2003-Ohio-6473.       Facial invalidity does not require the consideration of
extrinsic information or the application of case law. Gonzales v. Ohio Dept. of Rehab. &
Corr., Franklin App. No. 08AP-567, 2009-Ohio-246, ¶10.
       {¶10} In support of its motion, defendant filed certified copies of entries from the
Lucas County Court of Common Pleas and the Ottawa County Court of Common Pleas.
Plaintiff was sentenced to five years of community control by the Lucas County Court of
Common Pleas on February 13, 1998, in Case No. G-4801-CR-0199702770. On July
6, 2001, plaintiff pled guilty in the Ottawa County Court of Common Pleas to three
counts in Case No. 00-CR-121, and he was sentenced to serve a term of 18 months in
defendant’s custody. On July 25, 2001, plaintiff was sentenced to five years in prison
for a second violation of his community control in Case No. G-4801-CR-0199702770,
which was to be served consecutively with his sentence from the Ottawa County Court
of Common Pleas.
       {¶11} Although plaintiff asserts that defendant had a duty to determine the
validity of the sentencing entries in light of the holding in Hernandez, the proper remedy
when confronted with a sentencing entry that does not meet the requirements set forth
in Hernandez is to petition the trial court for a revised sentencing entry. See State v.
Talley, Cuyahoga App. No. 89328, 2007-Ohio-5853, ¶11 (holding that an inmate may
petition the trial court for
post-conviction relief on the ground that he was not legally under post-release control
due to defects in the sentencing entries.) Plaintiff did not file an affidavit to dispute
defendant’s evidence.
       {¶12} Upon review of the sentencing entries that defendant relied upon to
subject plaintiff to post-release control, the court does not perceive any error which
would draw into question the validity of the orders. The court finds that defendant
confined plaintiff and placed him under post-release control pursuant to a valid court
order at all times relevant. Thus, defendant cannot be liable for false imprisonment.
Further, the derivative claim for loss of consortium also must fail. See Bowen v. Kil-
Kare, Inc. (1992), 63 Ohio St.3d 84, 93.
       {¶13} Based upon the foregoing, the court finds that defendant is entitled to
judgment as a matter of law. Accordingly, defendant’s motion for summary judgment
shall be granted and judgment shall be rendered in favor of defendant.
                                             Court of Claims of Ohio
                                                                       The Ohio Judicial Center
                                                               65 South Front Street, Third Floor
                                                                          Columbus, OH 43215
                                                                614.387.9800 or 1.800.824.8263
                                                                           www.cco.state.oh.us



THOMAS ARTIAGA, et al.

      Plaintiffs

      v.

OHIO DEPARTMENT OF REHABILITATION AND CORRECTION

     Defendant
Case No. 2010-10254

Judge Clark B. Weaver Sr.

JUDGMENT ENTRY


       {¶14} A non-oral hearing was conducted in this case upon defendant’s motion
for summary judgment. For the reasons set forth in the decision filed concurrently
herewith, defendant’s motion for summary judgment is GRANTED and judgment is
rendered in favor of defendant. Defendant’s motions to dismiss plaintiffs Nikki Artiaga
and Cody Artiaga are GRANTED. Court costs are assessed against plaintiffs. The
clerk shall serve upon all parties notice of this judgment and its date of entry upon the
journal.



                                         _____________________________________
                                         CLARK B. WEAVER SR.
                                         Judge

cc:
Amy S. Brown                          Cody Artiaga
Assistant Attorney General            Nikki Artiaga
150 East Gay Street, 18th Floor       Susan Artiaga
Columbus, Ohio 43215-3130             Thomas Artiaga
                                      604 ½ Raymer Boulevard
                                      Toledo, Ohio 43605

JSO/dms
Filed August 15, 2011
To S.C. reporter September 22, 2011
