[Cite as James v. State, 2014-Ohio-140.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 OMAR K. JAMES, aka                             :
 AHMAD K. JAMES                                 :     Appellate Case No. 2013-CA-28
                                                :
          Petitioner-Appellant                  :     Trial Court Case No. 09-CV-1251
                                                :
 v.                                             :
                                                :
 STATE OF OHIO                                  :     (Civil Appeal from
                                                :     (Common Pleas Court)
          Respondent-Appellee                   :
                                                :
                                            ...........
                                            OPINION
                              Rendered on the 17th day of January, 2014.
                                            ...........

DEREK A. FARMER, Atty. Red. #0071654, Farmer Law Offices, 428 Beecher Road, Suite C,
Columbus, Ohio 43230
      Attorney for Petitioner-Appellant

MICHAEL DeWINE, by PETER L. JAMISON, Atty. Reg. #0086539, Ohio Attorney General’s
Office, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215
and
D. ANDREW WILSON, by ANDREW P. PICKERING, Atty. Reg. #0068770, Clark County
Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio
45501
        Attorneys for Respondent-Appellee, State of Ohio

                                            .............
FAIN, J.

       {¶ 1}    Plaintiff-appellant Omar K. James appeals from a summary judgment rendered in

favor of defendant-appellee the State of Ohio on James’s complaint for wrongful imprisonment.

James contends that the trial court erred by granting the State’s motion for summary judgment

and in not finding that he was a “wrongfully imprisoned individual” pursuant to R.C.

2743.48(A).

       {¶ 2}    We conclude that the trial court erred in rendering summary judgment in favor of

the State; it should have rendered summary judgment in favor of James. Accordingly, the

judgment of the trial court is Reversed, and this cause remanded for the trial court to enter

judgment for James.



                                  I. Course of the Proceedings

       {¶ 3}    In 1996, James was indicted on one count of Possession of Crack Cocaine in an

amount greater than twenty-five grams, a first-degree felony in violation of R.C. 2925.11; one

count of Carrying a Concealed Weapon, a fourth-degree felony in violation of R.C. 2923.12; one

count of Having Weapons While Under Disability, a fifth-degree felony in violation of R.C.

2923.13; and one count of Possession of Cocaine in an amount exceeding five grams, but less

than twenty-five grams, a fourth-degree felony in violation of R.C. 2925.11(C)(4). All of the

counts in the indictment related to events that transpired on September 7, 1996.

       {¶ 4}    In June 1997, James was tried on the four counts in the indictment. A jury

found him guilty of Having Weapons While Under Disability. The jury could not reach a verdict

on the remaining three counts of the indictment. James was sentenced to a prison term of twelve

months. He did not appeal from his conviction and served his prison term.
[Cite as James v. State, 2014-Ohio-140.]
        {¶ 5}     A second trial on the remaining three counts of the indictment commenced in

June 1998. On the first day of trial, James told the trial court that he wanted to represent

himself. The jury trial proceeded with James representing himself. The jury returned guilty

verdicts on the remaining three counts, and the trial court sentenced James to thirteen years in

prison. James appealed; we affirmed. State v. James, 2d Dist. Clark No. 98-CA-54, 1999 WL

76815 (Feb. 19, 1999). James then sought to appeal to the Supreme Court of Ohio, which

declined to hear the appeal. State v. James, 86 Ohio St.3d 1414, 711 N.E.2d 1010 (1999).

        {¶ 6}     James subsequently sought a writ of habeas corpus in the United States District

Court for the Southern District of Ohio, challenging his three felony convictions that resulted

from the second trial. In June 2005, the United States District Court granted James a conditional

writ of habeas corpus. James v. Brigano, 201 F.Supp.2d 810 (S.D.Ohio 2002). The State

appealed. In November 2006, the United States Court of Appeals for the Sixth Circuit affirmed

the district court’s decision insofar as it held that James did not knowingly and intelligently

waive his right to counsel at trial. James v. Brigano, 470 F.3d 636, 644 (6th Cir. 2006). The

District Court then ordered the State to retry James on or before October 27, 2008. James v.

Brigano, S.D. Ohio No. 3:00CV00491, 2008 WL 2949411 (July 30, 2008). The State failed to

retry James by this deadline.

        {¶ 7}     James thereafter moved in the court of common pleas to dismiss the remaining

three counts of the indictment, with prejudice. In August 2009, the trial court sustained the

motion and dismissed the remaining three counts of the indictment, with prejudice.

        {¶ 8}     In September 2009, James brought this action in the court of common pleas,

alleging that he was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48(A). James

and the State both moved for summary judgment. The trial court overruled James’s motion and
                                                                                              4


granted the State’s motion, dismissing the action. From this judgment, James appeals.



               II. James Established by a Preponderance of the Evidence that He

           Was a Wrongfully Imprisoned Individual Pursuant to R.C. 2743.48(A)

       {¶ 9}     James’s sole assignment of error states:

                THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

       RELIEF TO THE STATE AND IN FAILING TO SUSTAIN APPELLANT’S

       MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER

       APPELLANT IS A WRONGFULLY IMPRISONED INDIVIDUAL UNDER

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

       {¶ 10} When reviewing a summary judgment, an appellate court conducts a de novo

review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

 “De Novo review means that this court uses the same standard that the trial court should have

used, and we examine the evidence to determine whether as a matter of law no genuine issues

exist for trial.” Brewer v. Cleveland City Schools Bd. Of Edn., 122 Ohio App.3d 378, 383, 701

N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413

N.E.2d 1187 (1980). Therefore, the trial court’s decision is not granted any deference by the

reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704, 711, 622

N.E.2d 1153 (4th Dist.1993).

       {¶ 11} 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.
                                                                                                5


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. R.C. 2305.02 and R.C. 2743.48(B)(2); Doss at ¶ 10.

       {¶ 12} R.C. 2743.48(A) defines a “wrongfully imprisoned individual” as “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, 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,
                                                                                                 6


       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.

       {¶ 13} A claimant must satisfy all five criteria in R.C. 2743.48(A), by a preponderance

of the evidence, to be declared a “wrongfully imprisoned individual.” Gover v. State, 67 Ohio

St.3d 93, 95, 616 N.E.2d 207 (1993). The trial court failed to identify which of the five criteria

James had failed to establish, as a matter of law. The parties agree that James established the

first three criteria pursuant to R.C. 2743.48(A), but disagree over whether James established the

last two criteria in R.C. 2743.48(A)(4) and (5). Based on our review of the record, we agree

with the parties that James established the criteria in R.C. 2743.48(A)(1) through (3). We will

now address whether he established the criteria in R.C. 2743.48(A)(4) and (5).

       {¶ 14} In 1993, the Supreme Court of Ohio interpreted R.C. 2743.48(A)(4), holding:

“claimants 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 syllabus.

The Supreme Court explained the rationale behind its interpretation of R.C. 2743.48(A)(4):

               The requirement that “no criminal proceeding * * * can be brought * * *

       against the individual for any act associated with that conviction” is of critical

       importance. This statutory language is intended to filter out those claimants who

       have had their convictions reversed, but were committing a different offense at the

       time that they were engaging in the activity for which they were initially charged.
                                                                                                 7


       When the General Assembly enacted Ohio’s wrongful imprisonment legislation, it

       “intended that the court of common pleas actively separate those who were

       wrongfully imprisoned from those who have merely avoided criminal liability.”

Id. at 95, quoting Walden v. State, 47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989).

       {¶ 15} It is undisputed that James was charged with, and convicted of, Having Weapons

While Under Disability for a criminal act that occurred at the same time as the criminal acts

forming the basis of the remaining three counts of the indictment, which resulted in the

subsequent thirteen-year prison sentence for which James claims he was wrongfully imprisoned.

At first glance, the Supreme Court’s holding in Gover appears to require that James’s conviction

for Having Weapons While Under Disability precludes him, as a matter of law, from satisfying

R.C. 2743.48(A)(4). However, this result would ignore the particular facts addressed by the

Gover court and the 2003 Amendment to R.C. 2743.48(A).

       {¶ 16} At the time of Gover, R.C. 2743.48(A)(5) stated:

               Subsequent to his sentencing and during or subsequent to imprisonment, it

       was determined by a court of common pleas that the offense of which he was

       found guilty, including all lesser-included offense, either was not committed by

       him or was not committed by any person.

       {¶ 17} In December 2002, the 124th General Assembly enacted Sub.S.B. No. 149,

which added language allowing a claimant to satisfy R.C. 2743.48(A)(5) by demonstrating an

error in procedure that resulted in the individual’s release. By adding this language, the General

Assembly provided an alternative to the condition that a claimant either had not committed the

offense or that the offense had not been committed by any other person. In other words, a
                                                                                                 8


claimant no longer had to prove actual innocence in order to satisfy (A)(5). This amendment to

(A)(5) became effective April 9, 2003.

         {¶ 18} In Hill v. State, 10th Dist. Franklin No. 12AP-635, 2013-Ohio-1968, the Court of

Appeals for the Tenth District recently addressed the effect of the 2003 amendment in relation to

the Gover court’s interpretation of R.C. 2743.48(A)(4). The Tenth District explained, at ¶

26-30:

                In Gover, the Supreme Court specifically interpreted subsection (4) of R.C.

         2743.48, as in effect in 1993. Gover, the WI claimant, had been charged and

         convicted of the crime of safecracking based on his conduct on September 13,

         1988. On that date, Gover 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. See

         State v. Gover, 67 Ohio App.3d 384 (1st. Dist.1990). The restaurant's general

         manager had previously observed Gover in the restaurant moving in a crouched

         position and exiting the restaurant with bulging pockets. On appeal, the court of

         appeals reversed the conviction as the state could not prove the existence of an

         actual safe or vault. Accordingly, the state had not proven all elements of the

         crime of safecracking of which Gover had been convicted, and the court of

         appeals reversed that conviction.

                Gover subsequently filed an action seeking adjudication as a wrongfully

         imprisoned individual. The Supreme Court acknowledged that Gover had not

         committed the offense of safecracking with respect to his conduct on September
                                                                                       9


13, 1988, but opined that Gover “was nevertheless committing other criminal

offenses,” Gover v. State at 96, and suggested that the prosecutor might have

charged him with burglary, rather than safecracking. The Supreme Court

remanded the wrongful-imprisonment case to the civil trial court for it to

determine whether Gover had committed offenses other than safecracking on the

date of the alleged criminal conduct.[] In an opinion written by Justice Pfeifer,

the Supreme Court explained that subsection (4) is “intended to filter out those

claimants [for compensation] who have had their convictions reversed, but were

committing a different offense at the time that they were engaging in the activity

for which they were initially charged.” Id. at 95. Similarly, consistent with the

statute as then in effect, the court concluded that “[w]hen the General Assembly

enacted Ohio's wrongful imprisonment legislation, it ‘intended that the court of

common pleas actively separate those who were wrongfully imprisoned from

those who have merely avoided criminal liability.’ ” (Emphasis added.) Id., citing

Walden at 47 Ohio St.3d 52. These observations were made in 1993, prior to the

2003 amendment to R.C. 2743.48(A)(5) and at a time when a WI claimant was

required to prove actual innocence.

       In the case before us, the state argues that Hill, by pleading no contest,

admitted that he was in possession of crack cocaine and that he therefore “merely

avoided criminal liability” based on application of the exclusionary rule. The state

relies on the Supreme Court's statements in Gover and Hill's plea of no contest

after the trial court denied his motion to suppress. It argues that Hill may not be
                                                                                       10


deemed to be a wrongfully imprisoned individual because his lack of actual

innocence on December 19, 2009 precludes a finding that Hill satisfied subsection

(A)(4) of R.C. 2743.48.       In making this argument, the state seeks to graft the

innocence component of subsection (5) of R.C. 2743.48(A) into subsection (4)

based on Gover's description of the overarching purpose of the wrongful-

imprisonment statute as in effect in 1993.       But, as discussed earlier in this

decision, and as recognized by the Supreme Court of Ohio in Doss, the General

Assembly in enacting Sub.S.B.No. 149 in 2002 effected a substantive change to

the statutory wrongful-imprisonment compensation scheme. It “expanded the

criteria by which a claimant could establish that he or she is a wrongfully

imprisoned individual.”      Griffith [v. Cleveland], [128 Ohio St.3d 35,]

2010-Ohio-4905, ¶ 21. After that statutory change, a released prisoner may

establish his status as a wrongfully imprisoned individual without proving his

innocence if he can instead establish that he was released as the result of an error

in procedure. See Griffith at ¶ 29 (describing the addition of the “error in

procedure” provision of R.C. 2743.48(A)(5) as establishing an “alternative” to the

determination whether the claimant “committed the offense”).

       In determining whether Hill established the R.C. 2743.48(A)(4) criterion,

we must apply the current text of that provision, rather than decide the case based

on observations made in Gover concerning the pre-2003 version of the statute.

That is, we must determine whether Hill proved by a preponderance of the

evidence[] that “no criminal proceeding is pending, can be brought, or will be
                                                                                                11


       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” and not whether Hill's release from prison

       represented merely the avoidance of criminal liability. In short, comments in

       Gover based on the text of a prior version of R.C. 2743.48(A) simply cannot

       prevail over contradictory text in the current version of the statute.

       {¶ 19} We agree with the Tenth District’s analysis in Hill. Consequently, James’s

conviction for Having Weapons While Under Disability does not preclude James from satisfying

R.C. 2743.48(A)(4) if James can establish that his convictions on the other charges have been

vacated and the prosecuting attorney cannot pursue further criminal proceedings on those

charges. R.C. 2743.48(A)(4). It is undisputed that James’s convictions were vacated as a result

of federal habeas corpus proceedings. Furthermore, the State cannot re-try James on those

underlying charges because the trial court dismissed those three charges with prejudice in 2009.

Therefore, James has established, through a preponderance of the evidence, that he has satisfied

the criteria in R.C. 2743.48(A)(4).

       {¶ 20} Next, James must satisfy R.C. 2743.48(A)(5). Pursuant to this section, James

must establish that “[s]ubsequent to sentencing and during or subsequent to imprisonment, an

error in procedure resulted in [his] release * * * .” The “error in procedure” occurred when the

trial court proceeded to trial without obtaining from James a knowing and intelligent waiver of

his right to counsel at trial. This error ultimately led to the vacation of James’s convictions.

We conclude that this satisfies R.C. 2743.48(A)(5).

       {¶ 21} The State contends that only “structural error” can qualify as “procedural error”
                                                                                                      12


pursuant to R.C. 2743.48(A)(5). We do not agree. The plain language of R.C. 2743.48(A)(5)

does not limit the term “procedural error” to structural error. If the General Assembly had

intended that only structural errors could satisfy R.C. 2743.48(A)(5), then the General Assembly

presumably would have used the term structural error, rather than procedural error.

Furthermore, a failure to obtain a knowing and intelligent waiver of a defendant’s right to counsel

at trial arguably satisfies even the more strict structural error standard, since the result is that the

defendant is totally deprived of counsel at trial. See State v. Martin, 103 Ohio St.3d 385,

2004-Ohio-5471, 816 N.E.2d 227, ¶ 54-56 (Moyer, C.J., concurring in judgment only).

       {¶ 22} The State also contends that the error in procedure that occurred must have

occurred after sentencing. According to the State, the error of procedure in this case occurred

during trial, and therefore cannot satisfy R.C. 2743.48(A)(5). We do not agree. As the Hill

court explained, at fn. 4:

               [W]e note that the initial phrase of R.C. 2743.48(A)(5) provides that

       “[s]ubsequent to sentencing and during or subsequent to imprisonment” (emphasis

       added), an error in procedure resulted in the prisoner's release or a trial court

       determined that the claimant was actually innocent. The text emphasized above

       existed in the statute prior to the 2003 amendment, and we do not believe that this

       modifying language relates to the timing of the commission of errors of procedure.

       We are unaware of any procedural error that could conceivably result in a

       convict's release from prison if the error occurred after conviction and sentencing.

       To read the phrase as including only post-sentencing procedural errors would

       render the amendment meaningless. * * * Rather, we believe that the “subsequent
                                                                                                13


       to sentencing” phrase modifies the timing of the convict's release, i.e., it mandates

       that the individual be released from prison subsequent to sentencing, based on an

       error of procedure that occurred before sentencing. We further note that the

       Legislative Service Commission in its Final Bill Analysis of Sub.S.B. No. 149,

       described the bill as including a new provision that “an error in procedure resulted

       in the individual's release as an alternative to the condition that subsequent to

       sentencing and during or subsequent to imprisonment it was determined by the

       court of common pleas that the offense of which the individual was found guilty

       was not committed by the individual or by any other person.”

       {¶ 23} We agree with the Tenth District’s reasoning in Hill.              The only logical

interpretation of the phrase “[s]ubsequent to sentencing and during or subsequent to

imprisonment” is that this phrase describes the timing of the individual’s release, or the court’s

determination that no offense was committed. R.C. 2743.48(A)(5).

       {¶ 24} James’s sole assignment of error is sustained.



                                         IV. Conclusion

       {¶ 25} James’s sole assignment of error having been sustained, the judgment of the trial

court is Reversed, and this cause is Remanded for the trial court to enter summary judgment in

James’s favor.

                                         .............

FROELICH, P.J., and DONOVAN, JJ., concur.
                            14




Copies mailed to:

Michael DeWine
Peter L. Jamison
D. Andrew Wilson
Andrew P. Pickering
Derek A. Farmer
Hon. Douglas M. Rastatter
