[Cite as Worley v. State, 2014-Ohio-1429.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100200



                                      PEREZ WORLEY
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      STATE OF OHIO
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-803166

        BEFORE: Kilbane, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                   April 3, 2014
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Brian R. Gutkoski
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mark Marein
Marein & Bradley
526 Superior Avenue
Suite 222
Cleveland, Ohio 44114

R. Emmett Moran
Davis & Young
1200 Fifth Third Center
600 Superior Avenue, East
Cleveland, Ohio 44114
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, the state of Ohio (the “State”), appeals from the trial

court’s decision granting summary judgment in favor of plaintiff-appellee, Perez Worley

(“Worley”), finding that he is a wrongfully imprisoned individual under R.C.

2743.48(A)(5). Based on the Ohio Supreme Court’s recent ruling in Mansaray v. State,

Slip Opinion No. 2014-Ohio-750, we reverse the trial court’s judgment on Worley’s

motion for summary judgment and remand with instructions for the trial court to enter

judgment in favor of the State.

       {¶2} The facts surrounding Worley’s convictions underlying this civil case are

described by this court in State v. Worley, 8th Dist. Cuyahoga No. 94590,

2011-Ohio-2779.     In 2009, Worley was convicted for attempted murder, aggravated

robbery, felonious assault, kidnapping, and carrying a concealed weapon for robbing and

shooting two males. The trial court sentenced Worley to 29 years in prison. In 2011,

we reversed his convictions and remanded the matter for a new trial, finding that the

investigating officer’s testimony regarding a witness and the codefendant violated the

Sixth Amendment’s Confrontation Clause and should not have been admitted. Id. at ¶

19.

       {¶3} Following our remand, Worley proceeded to a new jury trial, at which he was

found not guilty of all charges. Subsequently, Worley filed a wrongful imprisonment

complaint in March 2013.          In his complaint, he alleged that he was a wrongfully
imprisoned individual under R.C. 2743.48(A)(5). R.C. 2743.48 governs civil actions

against the State for wrongful imprisonment, and provides in pertinent part:

      (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 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.

      {¶4} In June 2013, Worley moved for summary judgment, arguing that he is a

wrongfully imprisoned individual under R.C. 2743.48(A)(5) because an error in

procedure resulted in his release. The State opposed Worley’s motion, arguing that
Worley’s error in procedure did not happen subsequent to sentencing. The trial court

granted Worley’s motion for summary judgment, finding that he is a wrongfully

imprisoned individual. The court stated:

      Worley is determined to be a wrongfully imprisoned individual under [R.C.
      2743.48]; that [Worley] was acquitted at retrial, and the court further finds
      that an error in procedure resulted in [Worley’s] subsequent release from
      prison; therefore[,] summary judgment of [Worley] is granted. The court
      further gives notice to [Worley] that he may commence a civil action
      against the state in the court of claims as a result of the wrongful
      imprisonment, and that he has the right to be represented in said claims by
      counsel of his choice.

      {¶5} The State now appeals, raising the following six assignments of error for

review.

                                Assignment of Error One

      The trial court committed reversible error when it purportedly granted
      Worley’s summary judgment motion.

                               Assignment of Error Two

      The trial court committed reversible [error when it] denied the State’s
      motion to strike jury demand as moot.

                               Assignment of Error Three

      The trial court abused its discretion when it granted Worley’s motion for
      protective order that failed to comply with the plain language of Civ.R. 26.

                               Assignment of Error Four

      The trial court abused its discretion when it denied the State leave to file a
      cross motion for summary judgment when the case was only three months
      old and had not been set for trial, where the court never fixed a dispositive
      motion deadline, and where the court had granted Worley’s leave to file for
      summary judgment, instanter, less than thirty days prior.
                                 Assignment of Error Five

       The trial court committed reversible error when it granted Worley’s July 3,
       2013 motion to strike the evidentiary materials attached to the State’s
       opposition to summary judgment.

                                 Assignment of Error Six

       The trial court committed reversible error when [it] sua sponte “Note[d] an
       error was made” but nonetheless denied the State’s Civ.R. 60 motion
       without a hearing.

                              Motion for Summary Judgment

       {¶6} We review an appeal from summary judgment under a de novo standard of

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

Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 N.E.2d 860

(8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696

N.E.2d 201 (1998), the Ohio Supreme Court set forth the appropriate test as follows:

       Pursuant to Civ.R. 56, summary judgment is appropriate when (1) there is
       no genuine issue of material fact, (2) the moving party is entitled to
       judgment as a matter of law, and (3) reasonable minds can come to but one
       conclusion and that conclusion is adverse to the nonmoving party, said party
       being entitled to have the evidence construed most strongly in his favor.
       Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679,
       1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The
       party moving for summary judgment bears the burden of showing that there
       is no genuine issue of material fact and that it is entitled to judgment as a
       matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293,
       1996-Ohio-107, 662 N.E.2d 264, 273-274.

       {¶7} Once the moving party satisfies its burden, the nonmoving party “may not

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response,

by affidavit or as otherwise provided in this rule, must set forth specific facts showing
that there is a genuine issue for trial.”   Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio

St.3d 383, 385, 667 N.E.2d 1197 (1996). Doubts must be resolved in favor of the

nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 604 N.E.2d

138 (1992).

       {¶8} The issue in this case is whether Worley is a “wrongfully imprisoned

individual” as defined in R.C. 2743.48(A)(5). The Ohio Supreme Court provides the

answer to this question in Mansaray, Slip Opinion No. 2014-Ohio-750.

       {¶9} In Mansaray, plaintiff-appellee, Yanko Mansaray, filed a wrongfully

imprisoned individual complaint after his convictions were reversed by this court.

Mansaray at ¶ 2-4, citing State v. Mansaray, 8th Dist. Cuyahoga No. 93562,

2010-Ohio-5119.      The trial court dismissed his wrongfully imprisoned individual

complaint, and we reversed, concluding that Mansaray satisfied all five requirements of

R.C. 2743.48(A)(1)-(5). Id. at ¶ 4. The State appealed, and the Ohio Supreme Court

accepted jurisdiction. Id.

       {¶10} The Ohio Supreme Court’s analysis focused on whether Mansaray was a

wrongfully imprisoned individual under R.C. 2743.48(A)(5), which provides that:

       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.

       {¶11} The court noted that
        ‘[t]he fifth factor of R.C. 2743.48(A) may be fulfilled in one of two ways:
        (1) subsequent to sentencing and during or subsequent to imprisonment “an
        error in procedure resulted in the individual’s release” or (2) the charged
        offense (and any lesser included offense) was not committed by the
        individual or no crime was committed at all (actual innocence).’

Id. at ¶ 7, quoting Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229,

¶ 12.

        {¶12} The State argued that the subsequent event is an error in procedure that

occurs after sentencing and during or after imprisonment. Mansaray argued that the

subsequent event is a judicial determination that an error occurred, even if that error

occurred prior to sentencing and imprisonment.              Mansaray, Slip Opinion No.

2014-Ohio-750, at ¶ 8.

        {¶13} The court found that the State’s interpretation is correct, noting that

        the state’s version is the meaning that is obvious and common in large part
        because in the state’s version, the introductory phrase modifies “error in
        procedure,” the noun phrase closest to it. Youngstown Club v. Porterfield,
        21 Ohio St.2d 83, 86, 255 N.E.2d 262 (1970). In Mansaray’s version, the
        introductory phrase modifies a noun phrase that doesn’t appear in the
        statute: “a judicial determination that an error in procedure occurred.”

        ***

        Nothing in the statute indicates that the General Assembly intended to open
        the state to liability for wrongful imprisonment when a conviction is
        reversed based on a procedural error that occurred prior to sentencing.
        Mansaray’s interpretation would greatly expand the ability of defendants to
        seek compensation for wrongful imprisonment. If that is indeed what the
        General Assembly intended, it did a remarkable job of keeping it to itself —
        and it will be able to enact such legislation upon learning that we do not
        think that it has already done so.

Id. at ¶ 9-10.
       {¶14} The Mansaray court concluded that “when a defendant seeks a declaration

that he is a wrongfully imprisoned individual and seeks to satisfy R.C. 2743.48(A)(5) by

proving that an error in procedure resulted in his release, the error in procedure must have

occurred subsequent to sentencing and during or subsequent to imprisonment.” Id. at ¶

12; syllabus.

       {¶15} Likewise, in the instant case, the error in procedure — a Confrontation

Clause violation — that resulted in Worley’s release did not occur subsequent to

sentencing and during or subsequent to imprisonment. Accordingly, Worley did not

satisfy R.C. 2743.48(A)(5) and is not a wrongfully imprisoned individual. We reverse

the trial court’s judgment on Worley’s motion for summary judgment and remand with

instructions for the trial court to enter judgment, as a matter of law, in favor of the State.

See App.R. 12(B).

       {¶16} In the second, third, fourth, fifth, and sixth assignments of error, the State

argues that the trial court committed several procedural errors. However, based on our

disposition of the first assignment of error, the remaining assignments of error are

overruled as moot. See App.R. 12(A)(1)(c).

       {¶17} Judgment is reversed, and the matter is remanded with instructions for the

trial court to enter judgment in favor of State.

       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

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
