[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Johnston v. State, Slip Opinion No. 2015-Ohio-4437.]




                                         NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.



                         SLIP OPINION NO. 2015-OHIO-4437
           JOHNSTON, APPELLANT, v. THE STATE OF OHIO, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as Johnston v. State, Slip Opinion No. 2015-Ohio-4437.]
The 2003 amendment to R.C. 2743.48 expanding the definition of “wrongfully
        imprisoned individual” to include those able to demonstrate a procedural
        error occurring subsequent to sentencing that resulted in the inmate’s
        release applies retroactively.
   (No. 2014-0530—Submitted March 11, 2015—Decided October 28, 2015.)
              APPEAL from the Court of Appeals for Franklin County,
                          No. 12AP-1022, 2014-Ohio-1452.
                               ____________________
                              SYLLABUS OF THE COURT
The 2003 amendment to R.C. 2743.48 expanded the definition of a wrongfully
        imprisoned individual to include those able to demonstrate a procedural
        error occurring subsequent to sentencing that resulted in the inmate’s
        release and applies retroactively to permit litigation of claims on that basis.
                            SUPREME COURT OF OHIO




                             ____________________
       O’DONNELL, J.
       {¶ 1} The issue presented on this appeal is whether Dale Johnston can
prosecute a second claim for wrongful imprisonment based on the 2003 amendment
to R.C. 2743.48.
       {¶ 2} The undisputed facts reveal that a panel of three judges found
Johnston guilty of two counts of aggravated murder involving the deaths of his
stepdaughter, Margaret Annette Cooper, a.k.a. Margaret Annette Johnston, and her
fiancé, Todd Schultz, whose dismembered torsos were found in the Hocking River
and whose arms, legs, and heads were buried in a cornfield adjacent to the river.
The court sentenced Johnston to death on each count, and subsequently denied
Johnston’s motion for a new trial asserting inter alia that exculpatory evidence had
been withheld by the state. Johnston appealed, and the appellate court reversed the
convictions and remanded the case for a new trial. 4th Dist. Hocking No. 412, 1986
WL 8799 (Aug. 6, 1986); 4th Dist. Hocking No. 425, 1986 WL 8798 (Aug. 6,
1986). We affirmed the appellate court and remanded the case, concluding that the
trial court had abused its discretion in permitting testimony from a witness whose
memory had been hypnotically refreshed and that the outcome of the trial may have
been different if the state had disclosed certain items of exculpatory evidence. 39
Ohio St.3d 48, 529 N.E.2d 898 (1988). Following our remand, the state nolled the
indictment against Johnston, resulting in his release from the penitentiary, where
he had spent more than six years on death row.
       {¶ 3} Upon his release from prison, Johnston filed a claim for wrongful
imprisonment pursuant to R.C. 2743.48, but the trial court dismissed it in 1993
because he had failed to prove by a preponderance of the evidence that he did not
commit the murders, which was the statutory burden imposed upon a claimant at
that time. See former R.C. 2743.48, Am.H.B. No. 623, 142 Ohio Laws, Part III,




                                         2
                                January Term, 2015




4675; Ellis v. State, 64 Ohio St.3d 391, 395, 596 N.E.2d 428 (1992) (stating the
burden of proof).
       {¶ 4} Two subsequent developments explain the reason we have accepted
review of Johnston’s second claim for wrongful imprisonment:


               one, Chester McKnight pleaded guilty to the aggravated
       murder of both Cooper and Schultz, and
               two, the legislature amended R.C. 2743.48 and expanded the
       definition of a wrongfully imprisoned individual to include those
       released as a result of a procedural error occurring subsequent to
       sentencing.


       {¶ 5} Pursuant to the amended language in the statute, Johnston filed a
second claim for wrongful imprisonment, and ultimately, the trial court declared
him to be a wrongfully imprisoned individual. The appellate court, however,
reversed that decision and held that the amended statute did not apply retroactively
to Johnston’s alleged injury, which occurred prior to the amendment’s effective
date. Johnston has appealed that retroactivity ruling to this court.
                          Facts and Procedural History
       {¶ 6} In September 1983, almost a year after the discovery of the bodies of
Cooper and Schultz, a Hocking County grand jury indicted Johnston on two counts
of aggravated murder with death penalty specifications. At trial, a three judge panel
found him guilty of all charges and specifications and sentenced him to death on
each count. The appellate court overturned Johnston’s convictions and remanded
the cause for a new trial. 4th Dist. Hocking No. 412, 1986 WL 8799; 4th Dist.
Hocking No. 425, 1986 WL 8798. We affirmed that ruling because the trial court
had abused its discretion in permitting a witness to testify about his posthypnosis
recollection and the state had committed a Brady violation, Brady v. Maryland, 373




                                          3
                             SUPREME COURT OF OHIO




U.S. 83, 87, 83 S.Ct. 1194, 10 L.E.2d 215 (1963), by failing to disclose evidence
that suggested that the victims may have been murdered at a location different from
that alleged by the state and that someone else may have been responsible for the
murders. 39 Ohio St.3d 48, 56, 62-63, 529 N.E.2d 898.
       {¶ 7} On remand, the Hocking County Common Pleas Court transferred the
case to Hamilton County for trial, which then transferred to Franklin County. The
parties jointly filed a motion with the trial court to determine the admissibility of
the testimony of the witness who had been hypnotized. In response, the court held
that the hypnotically refreshed testimony was inadmissible. The court also granted
Johnston’s motion to suppress statements he had made during an interrogation,
along with evidence seized from him and his residence. That suppression ruling
was appealed and affirmed by the Tenth District Court of Appeals on May 10, 1990.
64 Ohio App.3d 238, 580 N.E.2d 1162 (10th Dist.1990). The next day, the state
nolled the indictment against Johnston, and thereafter, he was released from the
penitentiary.
       {¶ 8} Subsequently, Johnston filed a wrongful imprisonment claim
pursuant to R.C. 2743.48, but the common pleas court dismissed it in 1993,
concluding that Johnston had not proved by a preponderance of the evidence that
he did not commit the murders.
       {¶ 9} On April 9, 2003, the General Assembly amended R.C. 2743.48 and
expanded the definition of wrongfully imprisoned individuals to include those who
had been released due to a procedural error subsequent to sentencing. Sub.S.B. No.
149, 149 Ohio Laws, Part II, 3545. Developments in the investigation of the deaths
of Cooper and Schultz culminated in Chester McKnight pleading guilty to their
aggravated murders on December 18, 2008.
       {¶ 10} Based on McKnight’s plea, Johnston filed a second claim for
wrongful imprisonment, alleging that he was innocent and also claiming that errors
in procedure, including the Brady violations, resulted in his release. Both parties




                                         4
                                  January Term, 2015




filed for summary judgment. The trial court accepted Johnston’s procedural error
argument, rejected the state’s position that the 2003 amendment to R.C. 2743.48
was not retroactive, granted Johnston’s motion for summary judgment, and
declared Johnston to be a wrongfully imprisoned individual.
           {¶ 11} The state appealed, and the Tenth District Court of Appeals reversed
the trial court and held that the amendment did not apply retroactively to Johnston’s
claim and that its ruling rendered moot the state’s other assignments of error
asserting that a six-year statute of limitations applied to Johnston’s claim, that res
judicata barred Johnston from relitigating his actual innocence claim, and that
Johnston had not satisfied the fourth and fifth prongs of the wrongful imprisonment
statute.     The appellate court later denied Johnston’s application for en banc
consideration and his motion to certify a conflict, and it declined to consider the
state’s contention that the wrongful imprisonment claim also failed based on our
newly released decision in Mansaray v. State, 138 Ohio St.3d 277, 2014-Ohio-750,
6 N.E.3d 35.
           {¶ 12} We accepted Johnston’s discretionary appeal on one proposition of
law: “THE DIVIDED COURT IN THE TENTH DISTRICT ERRED WHEN IT,
FOR THE FIRST TIME, HELD IN DIRECT CONTRAVENTION OF THE
EXPRESS WISHES OF THE OHIO GENERAL ASSEMBLY, THAT THE 2003
AMENDMENTS TO                R.C. 2743.48 (GOVERNING AN                "ERROR      IN
PROCEDURE") DO NOT APPLY RETROACTIVELY.” 139 Ohio St.3d 1428,
2014-Ohio-2725, 11 N.E.3d 284.
                                Positions of the Parties
           {¶ 13} Johnston contends that res judicata does not preclude his wrongful
imprisonment claim based on procedural error because that claim did not exist at
the time he filed the first wrongful imprisonment claim and because it is based on
a different nucleus of operative facts. He alleges Mansaray does not bar his claim
because the prosecution continued to withhold exculpatory evidence after




                                            5
                             SUPREME COURT OF OHIO




sentencing, and he urges us to reconsider Mansaray if we disagree. Finally, he
asserts that the 2003 amendment to R.C. 2743.48 applies retroactively to him.
       {¶ 14} The state maintains that res judicata bars Johnston’s wrongful
imprisonment claim based on procedural error because it shares a common nucleus
of operative facts with the original claim, and it urges that the only difference
between the two wrongful imprisonment claims is the theory of recovery. It
contends that the 2003 amendment does not necessitate an exception to the
application of res judicata based on Phung v. Waste Mgt., Inc., 71 Ohio St.3d 408,
644 N.E.2d 286 (1994). The state also contends that we can forgo a retroactivity
analysis of the amendment, arguing that Mansaray forecloses the instant claim
because Brady violations are trial errors, not post sentencing errors, relying on
District Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 129
S.Ct. 2308, 17 L.E.2d 38 (2009), to support its position. Finally, it asserts that the
2003 amendment does not retroactively rejuvenate failed wrongful imprisonment
claims that have been litigated to final judgment and could not do so without
violating separation of powers principles.
                                         Issues
       {¶ 15} The applicability of res judicata and Mansaray were not addressed
by the court of appeals, and we did not accept propositions of law related to these
issues for review. Despite the parties’ discussion of these issues in their appellate
briefs and during oral argument, we decline to address them in the first instance.
Thus, the only issue before this court is whether the 2003 amendment to R.C.
2743.48 applies retroactively to a claim filed in common pleas court after the
effective date of the amended statute.
                                 Law and Analysis
                               Statutory Modification
       {¶ 16} On April 9, 2003, the General Assembly expanded the definition of
a wrongfully imprisoned individual in division (A)(5) of the wrongful




                                           6
                               January Term, 2015




imprisonment statute to include those who can demonstrate that a procedural error
occurred subsequent to sentencing that resulted in the release of the inmate.
Sub.S.B. No. 149, 149 Ohio Laws, Part II, 3545. The statute provides:


       As used in this section * * * a “wrongfully imprisoned individual”
       means an individual who satisfies each of the following:
               ***
               (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.


(Emphasis added.) Id.
                                   Retroactivity
       {¶ 17} Although Johnston’s imprisonment occurred before the effective
date of the 2003 amendment to R.C. 2743.48, he filed the instant claim seeking a
determination that he is a wrongfully imprisoned individual after the effective date
of that amendment.
       {¶ 18} As we explained in Smith v. Smith, 109 Ohio St.3d 285, 2006-Ohio-
2419, 847 N.E.2d 414, the Retroactivity Clause contained in Article II, Section 28
of the Ohio Constitution “ ‘prohibits the General Assembly from passing retroactive
laws and protects vested rights from new legislative encroachments,’ ” and it “
‘nullifies those new laws that “reach back and create new burdens, new duties, new
obligations, or new liabilities not existing at the time [the statute becomes
effective].” ’ ” (Bracked material added in Bielat.) Id. at ¶ 6, quoting Bielat v.




                                         7
                            SUPREME COURT OF OHIO




Bielat, 87 Ohio St.3d 350, 352-353, 721 N.E.2d 28 (2000), quoting Miller v.
Hixson, 64 Ohio St. 39, 51, 59 N.E. 749 (1901).
       {¶ 19} Determining whether a law violates the Retroactivity Clause
involves a two-step test:


       “[W]e must first ‘determine whether the General Assembly
       expressly intended the statute to apply retroactively.’ [Bielat at
       353]. If so, we must determine whether ‘the statute is substantive,
       rendering it unconstitutionally retroactive, as opposed to merely
       remedial.’ (Emphasis sic.) Id. A substantive statute is one that
       ‘impairs vested rights, affects an accrued substantive right, or
       imposes new or additional burdens, duties, obligations, or liabilities
       as to a past transaction.’ Id. at 354, 721 N.E.2d 28; Van Fossen v.
       Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106-107, 522
       N.E.2d 489.”


Longbottom v. Mercy Hosp. Clermont, 137 Ohio St.3d 103, 2013-Ohio-4068, 998
N.E.2d 419, ¶ 22, quoting Smith at ¶ 6.
       {¶ 20} Instructive on this point is the uncodified language in Section 3 of
Sub.S.B. No. 149, which states that the 2003 amendment applies “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.” (Emphasis added.) 149 Ohio Laws, Part II, 3551.
       {¶ 21} This language expresses the General Assembly’s intent that the
application of the 2003 amendment not be limited to wrongful imprisonment
occurring after the amendment’s effective date. Johnston commenced this action
in the common pleas court subsequent to the effective date of the 2003 amendment
to R.C. 2743.48 and will necessarily commence any resultant action in the Court of




                                          8
                                 January Term, 2015




Claims after the effective date of the amended statute. Thus, the amendment
applies to his claim even though his imprisonment predated the amendment.
        {¶ 22} Regarding the second step in the retroactivity analysis, the 2003
amendment is substantive because it imposes new liability on the state for past
imprisonments. However, because the amendment impairs only the rights of the
state and not those of individuals seeking recovery for wrongful imprisonment, the
amendment may nonetheless constitutionally be given retroactive effect in light of
the General Assembly’s clear expression of its intent for retroactivity. State ex rel.
Sweeney v. Donahue, 12 Ohio St.2d 84, 87, 232 N.E.2d 398 (1967) (“While a
statute which impairs only the rights of the state may constitutionally be given
retroactive effect, such effect will not be given in the absence of a clear expression
of legislative intention for retroactivity” [internal citation omitted]).
        {¶ 23} Thus, the 2003 amendment to R.C. 2743.48 applies retroactively to
permit litigation of claims filed in accordance with that amendment.
                                     Conclusion
        {¶ 24} The 2003 amendment to R.C. 2743.48 expanded the definition of a
wrongfully imprisoned individual to include those able to demonstrate a procedural
error occurring subsequent to sentencing that resulted in the inmate’s release and
applies retroactively to permit litigation of claims on that basis.
        {¶ 25} Accordingly, the judgment of the appellate court is reversed and the
cause is remanded for the appellate court to address the assignments of error it
previously determined moot.
                                                                      Judgment reversed
                                                                  and cause remanded.
        O’CONNOR, C.J., and PFEIFER, LANZINGER, KENNEDY, FRENCH, and
O’NEILL, JJ., concur.
                                __________________
        Koenig & Long, L.L.C., and Todd A. Long, for appellant.




                                           9
                            SUPREME COURT OF OHIO




       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Stephen P. Carney, Deputy Solicitor, and Debra L. Gorrell, Senior Assistant
Attorney General, for appellee.
                             __________________




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