[Cite as Mansaray v. State, 2012-Ohio-3376.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98171



                                  YANKO MANSARAY
                                               PLAINTIFF-APPELLANT

                                                vs.


                                      STATE OF OHIO
                                               DEFENDANT-APPELLEE




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-765125

        BEFORE: Kilbane, J., Sweeney, P.J., and Jones, J.

        RELEASED AND JOURNALIZED:                     July 26, 2012
ATTORNEY FOR APPELLANT

Terry H. Gilbert
Friedman & Gilbert
1370 Ontario Street
Suite 600
Cleveland, Ohio 44113-1752

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Brian R. Gutkoski
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} This is an accelerated appeal brought pursuant to App.R. 11.1 and

Loc.App.R. 11.1.

       {¶2} Plaintiff-appellant, Yanko Mansaray (“Mansaray”), appeals the trial court’s

judgment granting the motion to dismiss of defendant-appellee, the state of Ohio

(“State”). For the reasons set forth below, we reverse and remand.

       {¶3} In January 2007, Mansaray was indicted with drug trafficking, drug

possession, possessing criminal tools, and having a weapon while under disability. The

drug trafficking and drug possession counts had major drug offender and firearm

specifications attached. The charges resulted from the discovery of large quantities of

ecstasy pills in Mansaray’s home, while U.S. Marshals attempted to execute an arrest

warrant for another person allegedly at Mansaray’s home.

       {¶4} Prior to trial, Mansaray moved to suppress the drugs and guns found in his

home. The trial court denied the motion after a hearing, and the matter proceeded to a

jury trial. The jury found Mansaray guilty of drug possession and possessing criminal

tools, but not guilty of drug trafficking. In a bifurcated hearing, the trial court found

Mansaray guilty of having a weapon while under disability. In October 2007, the trial

court sentenced Mansaray to a total of 11 years in prison.
       {¶5} Mansaray then filed an appeal with this court, arguing that the trial court

erred when it denied his motion to suppress. State v. Mansaray, 8th Dist. No. 93562,

2010-Ohio-5119. We agreed with Mansaray, finding that the U.S. Marshals violated

Mansaray’s Fourth Amendment rights when they failed to obtain a search warrant to

search his home and had no reasonable belief that the suspect they were looking for lived

with Mansaray. Id. at ¶ 26. As a result of this court’s opinion in Mansaray, Mansaray

was released from prison and the trial court dismissed the indictment against him.

       {¶6} In September 2011, Mansaray brought a wrongful imprisonment action

against the State under R.C. 2743.48, alleging that an error in procedure (the trial court’s

denial of his motion to suppress, which was subsequently found to be improper) resulted

in his release. In response, the State moved to dismiss Mansaray’s complaint under

Civ.R. 12(B)(6). The State argued that Mansaray failed to state a claim because the

illegal search occurred in December 2006, which did not occur “‘subsequent to his

sentencing and during or subsequent to his imprisonment’ as laid out in R.C.

2743.48(A)(5).”    R.C. 2743.48(A)(5) provides in pertinent part:          “a ‘wrongfully

imprisoned individual’ means an individual who satisfies each of the following: * * *

[s]ubsequent 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.”        The trial court agreed with the State and dismissed
Mansaray’s complaint, finding that under a plain reading of R.C. 2743.48(A)(5), “the

error must have taken place after the conviction in order for an individual to take

advantage of the statutory allowance.”

       {¶7} It is from this order that Mansaray now appeals, raising the following single

assignment of error for review.

                               ASSIGNMENT OF ERROR

       The trial court erred by reading [R.C. 2743.48] so as to ignore the required
       liberal construction of the statute and the legislative intent of the relevant
       language.

                                    Standard of Review

       {¶8} We apply a de novo standard of review to the trial court’s granting of a

motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim. Perrysburg Twp. v.

Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v.

Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this

standard of review, we must independently review the record and afford no deference to

the trial court’s decision. Herakovic v. Catholic Diocese of Cleveland, 8th Dist. No.

85467, 2005-Ohio-5985, ¶ 13.

       {¶9} In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6) for

failure to state a claim upon which relief may be granted, it must appear beyond doubt

that the plaintiff can prove no set of facts in support of his or her claim that would entitle

the plaintiff to relief.    Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491,

2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O’Brien v. Univ. Community Tenants
Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). In resolving a Civ.R. 12(B)(6)

motion, a court’s factual review is confined to the four corners of the complaint. Grady v.

Lenders Interactive Servs., 8th Dist. No. 83966, 2004-Ohio-4239, ¶ 6. Within those

confines, a court accepts as true all material allegations of the complaint and makes all

reasonable inferences in favor of the nonmoving party. Fahnbulleh v. Strahan, 73 Ohio

St.3d 666, 667, 1995-Ohio-295, 653 N.E.2d 1186. “[A]s long as there is a set of facts,

consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the

court may not grant a defendant’s motion to dismiss.” York v. Ohio State Hwy. Patrol,

60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

                          R.C. 2743.48 — Wrongful Imprisonment

       {¶10} R.C. 2743.48, the wrongful imprisonment statute, allows an individual who

meets the statutory definition of a “wrongfully imprisoned individual” to file a civil action

against the state and recover monetary damages, reasonable attorney fees, and other

expenses. R.C. 2743.48(A) defines a “wrongfully imprisoned individual” as one who

satisfies each of the following five criteria:

       (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 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.

       {¶11} R.C. 2743.48(A)(5) was amended effective April 9, 2003, “to allow a

person, who could not establish his or her actual innocence, but who could establish that

an error in procedure resulted in his or her release to file a complaint against the State of

Ohio seeking a declaration that he or she had been wrongfully imprisoned.” Nelson v.

State, 5th Dist. No. 2006 AP 0061, 2007-Ohio-6274, ¶ 30. Before this amendment, only

individuals who could establish their actual innocence could file such a complaint.

       {¶12} Both parties agree that the issue in this case is the interpretation of the

phrase, “[s]ubsequent to sentencing and during or subsequent to imprisonment, an error in

procedure resulted in the individual’s release,” as stated in R.C. 2743.48(A)(5).

Mansaray argues R.C. 2743.48(A)(5) is unambiguous, and as it pertains to his complaint,

a plain reading of the statute requires that after sentencing, an error in procedure resulted

in the wrongfully imprisoned individual’s release. The State, on the other hand, argues

that R.C. 2743.48(A)(5) requires that the error in procedure occur after the individual was

sentenced or imprisoned. The State further argues that the trial court properly interpreted
R.C. 2743.48(A)(5) and dismissed Mansaray’s complaint because the trial court’s

improper denial of Mansaray’s motion to suppress occurred prior to his sentencing and

imprisonment.

      {¶13} When interpreting a statute,

       a court’s paramount concern is the legislative intent in enacting the statute.
       In determining legislative intent, the court first looks to the language in the
       statute and the purpose to be accomplished. Words used in a statute must
       be taken in their usual, normal or customary meaning. It is the duty of the
       court to give effect to the words used and not to insert words not used.
       Where the language of a statute is plain and unambiguous and conveys a
       clear and definite meaning, there is no need to apply rules of statutory
       interpretation.
State ex rel. Richard v. Bd. of Trustees of the Police & Firemen’s Disability & Pension

Fund, 69 Ohio St.3d 409, 411-412, 1994-Ohio-126, 632 N.E.2d 1292. (Internal citations

and quotations omitted.)

      {¶14} Furthermore, “[t]he presumption always is, that every word in a statute is

designed to have some effect, and hence the rule that, ‘in putting a construction upon any

statute, every part shall be regarded, and it shall be so expounded, if practicable, as to

give some effect to every part of it.’” Turley v. Turley, 11 Ohio St. 173 (1860), citing

Commonwealth v. Alger, 61 Mass. 53, 7 Cush. 53 (Mass. 1851). (Emphasis in original.)

See also R.C. 1.47(B), which provides that: “[i]n enacting a statute, it is presumed that *

* * [t]he entire statute is intended to be effective” and R.C. 1.42, which provides that:

“[w]ords and phrases shall be read in context and construed according to the rules of

grammar and common usage. Words and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed

accordingly.”

       {¶15} We find that the State’s interpretation of R.C. 2743.48(A)(5) would render

the section absurd. To say that an individual is wrongfully imprisoned only when the

error in procedure occurred after the individual was sentenced or imprisoned would be

illogical.   The State references only one error in procedure that can occur after

sentencing and results in release — the discovery of exculpatory DNA evidence. We

decline to find that this is solely what the legislature intended when it amended R.C.

2743.48(A)(5).

       {¶16} R.C. 2743.48 is a remedial statute that must be construed liberally. See

Dunbar v. State, 8th Dist. No. 97364, 2012-Ohio-707, ¶ 16. A plain reading of the

relevant portion in R.C. 2743.48(A)(5) requires that: (1) after the individual’s sentence

and during or after imprisonment, (2) the individual was released because of an error in

procedure. That is, the error in procedure, which resulted in the individual’s release,

occurred prior to sentencing and imprisonment. This reading avoids unreasonable and

absurd results. See State ex rel. Asti v. Ohio Dept. of Youth Servs., 107 Ohio St.3d 262,

2005-Ohio-6432, 838 N.E.2d 658, ¶ 28 (where the Ohio Supreme Court stated that: “[w]e

must construe the applicable statute and rule to avoid such unreasonable or absurd

results.”)

       {¶17} Based on this reading, we find that the trial court’s denial of Mansaray’s

motion to suppress, which was subsequently found to be improper, constitutes an error in
procedure under R.C. 2743.48(A)(5).1 Here, Mansaray’s motion to suppress was denied

on October 2, 2007 and the trial court sentenced him on October 10, 2007. This court

found that the U.S. Marshal illegally seized evidence from Mansaray and that evidence

should have been suppressed. Mansaray at ¶ 26. Subsequently, we reversed the trial

court’s order denying Mansaray’s motion to suppress. Because the improper denial of

Mansaray’s motion to suppress — the error in procedure — occurred prior to sentencing,

Mansaray satisfied the requirements in R.C. 2743.48(A)(5).

       {¶18} In an analogous situation, the Tenth District Court of Appeals in Larkins v.

State, 10th Dist. No. 09AP-140, 2009-Ohio-3242, addressed the issue of when the error in

procedure must occur. In Larkins, the appellant, Larkins, was convicted of aggravated

murder, attempted murder, and aggravated murder.             Larkins eventually obtained

exculpatory documents and sought a new trial. After a hearing on the motion, the

Cuyahoga County Common Pleas Court concluded that the documents should have been

turned over to Larkins pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). The State appealed, and this court affirmed the trial court’s grant of

a new trial. State v. Larkins, 8th Dist. No. 82325, 2003-Ohio-5928. Larkins then filed a

motion to dismiss the charges against him with the trial court. The trial court granted the

motion to dismiss, and this court affirmed.      State v. Larkins, 8th Dist. No. 85877,

2006-Ohio-90.


       1Wenote that a motion to suppress is a procedural remedy governed by the
Ohio Rules of Criminal Procedure. E.g., Crim.R. 12 and 47.
       {¶19} After that, Larkins sought a declaration in the trial court that he was a

wrongfully imprisoned individual as defined in R.C. 2743.48. He entered into a joint

stipulation with the State that he had been released as the result of an error in procedure.

Based on that stipulation, the trial court found that appellant was a wrongfully imprisoned

individual. On appeal, the Tenth District Court of Appeals acknowledged that a Brady

violation, which occurred before sentencing, constitutes an error in procedure under R.C.

2743.48. Larkins at ¶ 10.

       {¶20} As stated above, R.C. 2743.48 requires that an individual satisfy the criteria

in R.C. 2743.48(A)(1)-(5) to be considered “wrongfully imprisoned.” In the instant case,

we agree with both parties and the trial court that the requirements in R.C.

2743.48(A)(1)-(4) are satisfied by Mansaray. Based on the facts stated in Mansaray’s

complaint, we also find that Mansaray satisfied the requirements of R.C. 2743.48(A)(5).

Therefore, Mansaray sufficiently pled a wrongful imprisonment claim in order to survive

a motion to dismiss for failure to state a claim. As a result, the trial court erred when it

granted the State’s motion to dismiss.

       {¶21} Accordingly, the sole assignment of error is sustained.

       {¶22} Judgment is reversed, and the matter is remanded for proceedings consistent

with this opinion.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

JAMES J. SWEENEY, P.J., and
LARRY A. JONES, SR., J., CONCUR
