[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
C.K. v. State, Slip Opinion No. 2015-Ohio-3421.]




                                        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-3421
              C.K., APPELLEE, v. THE STATE OF OHIO, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
        may be cited as C.K. v. State, Slip Opinion No. 2015-Ohio-3421.]
R.C. 2743.48—Wrongful-imprisonment action—Claimant whose conviction was
        reversed on appeal failed to demonstrate that no criminal proceeding is
        pending, can be brought, or will be brought against him for any act
        associated with that conviction.
     (No. 2014-0735—Submitted May 19, 2015—Decided August 26, 2015.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                            No. 100193, 2014-Ohio-1243.
                                   _______________
        O’DONNELL, J.
        {¶ 1} The state of Ohio appeals from a judgment of the Eighth District
Court of Appeals that reversed a grant of summary judgment in its favor in
connection with C.K.’s wrongful imprisonment action, which he filed after the
appellate court reversed his conviction for the murder of Andre Coleman. The
appellate court concluded that genuine issues of material fact existed regarding
                             SUPREME COURT OF OHIO




whether C.K. is a wrongfully imprisoned individual as defined in R.C. 2743.48
because the state had not shown that a future criminal proceeding would be
factually supportable and legally permissible following the reversal of C.K.’s
murder conviction as against the manifest weight of the evidence.
        {¶ 2} However, the reversal of a conviction as against the manifest weight
of the evidence does not bar retrial on the same charges using the same evidence.
Here, the prosecutor dismissed the indictment without prejudice. The law
provides that charges can be brought at any time because there is no statute of
limitations for murder, and although C.K. may be able to demonstrate that the
state has deferred prosecution pending discovery of new evidence of guilt, that
showing is insufficient as a matter of law to prove, as required by R.C.
2743.48(A)(4), that no criminal proceeding can or will be brought against him in
the future.
        {¶ 3} Accordingly, because there are no genuine issues of material fact
and because the state is entitled to judgment as a matter of law in this case, we
reverse the judgment of the appellate court and reinstate the judgment of the trial
court in favor of the state of Ohio.
                          Facts and Procedural History
        {¶ 4} On September 20, 2009, Andre Coleman broke into C.K.’s home
looking for his girlfriend, Valerie McNaughton, who was C.K.’s tenant. C.K.
ordered Coleman to leave, but Coleman brushed past him, slammed McNaughton
to the ground, and began beating her. C.K told Coleman to stop, and when he saw
Coleman move his arm behind his back, C.K. believed he was reaching for a gun.
C.K. took his handgun from his pocket, saw what he thought was a gun in
Coleman’s hand, and shot Coleman multiple times. C.K. stood over Coleman’s
body and pulled the trigger again when he saw the body move, but he could not
recall whether additional shots had fired. Coleman died from his wounds.




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                                January Term, 2015




       {¶ 5} The state indicted C.K. for Coleman’s murder with firearm
specifications. At trial, C.K. admitted killing Coleman but relied on Ohio’s castle
doctrine, asserting that he had acted in self defense. The jury found C.K. guilty,
and the trial court sentenced him to 18 years to life in prison.
       {¶ 6} The appellate court reversed the conviction as being against the
manifest weight of the evidence, explaining that the castle doctrine created a
presumption of self defense because Coleman had unlawfully entered C.K.’s
house, C.K. had a bona fide belief that he was in imminent danger of death or
great bodily harm, and he had no duty to retreat in his own home before using
deadly force. 195 Ohio App.3d 343, 2011-Ohio-4814, 959 N.E.2d 1097, ¶ 25, 26,
29, 30 (8th Dist.). Concluding that the jury had lost its way in rejecting C.K.’s
claim of self defense, the appellate court ordered a new trial. Id. at ¶ 31.
       {¶ 7} On remand, the state dismissed the indictment without prejudice.
C.K. then moved to seal the criminal record. At a hearing on that motion, a
prosecuting attorney for the state asserted that it did not intend to reindict C.K. at
that time, but that “it could in the future.” The trial court sealed the records, and
the appellate court affirmed that ruling. State v. C.K., 8th Dist. Cuyahoga No.
99886, 2013-Ohio-5135.
       {¶ 8} In June 2012, C.K. commenced this action seeking a declaration that
he is a “wrongfully imprisoned individual” entitled to compensation, alleging that
the court of appeals held that the castle doctrine permitted him to use deadly force
against Coleman and therefore he cannot and will not be retried for murder. The
state moved for summary judgment, asserting that C.K. could not meet the
requirement of R.C. 2743.48(A)(4) to prove that the state cannot or will not indict
him for an act associated with Coleman’s murder. The state attached the affidavit
of a prosecutor who averred that the case “remains open, without prejudice to re-
filing/re-indicting, given the lack of statutory limitations under R.C.
2901.13(A)(2).”    The trial court granted summary judgment in favor of the state,




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concluding that the offense of murder has no statute of limitations, the state has
the right to retry him at any time, and “the mere possibility of being reindicted
and retried precludes [C.K.] from being found to have been wrongfully
imprisoned pursuant to R.C. 2743.48(A).”
       {¶ 9} On appeal, the court of appeals reversed the trial court and remanded
the case, explaining that R.C. 2743.48(A)(4) bars recovery for wrongful
imprisonment only when future criminal proceedings are factually supportable
and legally permissible and therefore the trial court erred in concluding that the
possibility of retrial by itself rendered C.K. ineligible for compensation. 2014-
Ohio-1243, ¶ 25, 28, 35. The appellate court rejected the state’s argument that
C.K.’s alleged illegal drug use in the week leading up to the murder precluded
recovery, and it determined that there were genuine issues of material fact
regarding whether the state can and will bring another criminal proceeding against
C.K., because “[t]here was no evidence presented by the state as to whether the
prosecutor has discovered new evidence or interviewed new witnesses relating to
C.K.’s claim of self-defense.” Id. at ¶ 34, 41.
                           The State’s Case on Appeal
       {¶ 10} The state maintains that R.C. 2743.48(A)(4) precludes a claimant
from being declared a wrongfully imprisoned individual if the statute of
limitations has not expired and the prosecutor still deems the case to be open. It
asserts that it has reserved the right to reindict C.K. if new evidence of guilt
comes to light and that it could retry C.K. at any time; thus, without proof that
criminal proceedings will never be brought, it is not possible for C.K. to show that
he was, in fact, wrongfully imprisoned.           Finally, the state argues that C.K.
purchased and used cocaine and possessed drug paraphernalia in the week prior to
the murder, and the statute excludes those who engaged in any contemporaneous
criminal activity from being declared a wrongfully imprisoned individual.




                                          4
                               January Term, 2015




                                  C.K.’s Claim
       {¶ 11} C.K. maintains that R.C. 2743.48(A)(4) requires him to prove only
that future criminal proceedings are not possible or not at all likely. According to
C.K., there is no indication that the General Assembly intended to exclude all
those wrongfully convicted of murder—“the people most deeply wronged by the
false conviction”—from recovering for wrongful imprisonment based only on the
lack of a statute of limitations for that offense. He contends that he produced
evidence that the state will not reindict him—including an admission that there
are no plans to prosecute him—and that the prosecutor’s statement that the case
remains open does not prove that the state will prosecute him, because there is no
evidence of an ongoing investigation, and in any case, “prosecution would be
fruitless because C.K. was acting in self-defense.” Lastly, C.K. disputes the
allegation that he was using illegal drugs at the time he shot Coleman, asserting
that the crack pipe found in the house belonged to McNaughton, and he contends
that any contemporaneous criminal conduct must arise from the offense for which
he was convicted to preclude recovery for wrongful imprisonment.
       {¶ 12} Accordingly, we are asked to clarify whether a claimant asserting a
wrongful imprisonment claim can demonstrate that no criminal proceeding can or
will be brought in the future if the state has dismissed an indictment without
prejudice following reversal of the conviction on appeal.
                                Law and Analysis
       {¶ 13} R.C. 2743.48(A)(4) requires a claimant seeking to be declared a
wrongfully imprisoned individual to demonstrate that


               [t]he 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




                                         5
                            SUPREME COURT OF OHIO




       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.


(Emphasis added.)
       {¶ 14} It is well established that a criminal proceeding can be brought
against an accused individual after reversal of a conviction as being against the
manifest weight of the evidence. In such instances, the Double Jeopardy Clause
does not preclude retrial. Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72
L.Ed.2d 652 (1982); State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997). Notably, the court in Tibbs rejected the proposition that “[o]nce an
appellate court rules that a conviction is against the weight of the evidence, * * *
it must reverse any subsequent conviction resting upon the same evidence.” Id. at
43, fn. 18. Rather, the reversal of a conviction as against the manifest weight of
the evidence does not foreclose the state from bringing the accused to trial on the
same charges using the same evidence. Id.
       {¶ 15} Further, the dismissal of an indictment without prejudice on
remand from a reversal does not bar future prosecution of the accused. As the
court explained in Bucolo v. Adkins, 424 U.S. 641, 642, 96 S.Ct. 1086, 47 L.Ed.2d
301 (1976), “[n]olle prosequi, if entered before jeopardy attaches, neither operates
as an acquittal nor prevents further prosecution of the offense.”            We have
similarly indicated that a nolle prosequi dismisses the charges without prejudice
to reindictment. Maloney v. Maxwell, 174 Ohio St. 84, 87, 186 N.E.2d 728
(1962); State v. Bonarrigo, 62 Ohio St.2d 7, 12, 402 N.E.2d 530 (1980).
       {¶ 16} And the prosecutor has discretion to defer bringing criminal
charges against a suspect in the hope of discovering new evidence of guilt. In
United States v. Lovasco, 431 U.S. 783, 791, 97 S.Ct. 2044, 52 L.Ed.2d 752
(1977), the court rejected a claim that an investigative delay violates due process




                                         6
                                 January Term, 2015




and held that “prosecutors are under no duty to file charges as soon as probable
cause exists but before they are satisfied they will be able to establish the
suspect’s guilt beyond a reasonable doubt.”      It further explained that “[r]ather
than deviating from elementary standards of ‘fair play and decency,’ a prosecutor
abides by them if he refuses to seek indictments until he is completely satisfied
that he should prosecute and will be able promptly to establish guilt beyond a
reasonable doubt.” Id. at 795.
         {¶ 17} Courts have therefore recognized that a prosecutor has discretion to
dismiss charges without prejudice in order “to allow further investigation of the
underlying crime and to avoid putting the defendant in criminal jeopardy on
evidence of uncertain credibility.”       People v. Small, 631 P.2d 148, 155
(Colo.1981); accord Arnold v. McCarthy, 566 F.2d 1377, 1385 (9th Cir.1978);
see also Duncan v. State, 939 So.2d 772, ¶ 12-15 (Miss.2006) (explaining that a
prosecutor may nolle charges against the accused without prejudice to future
prosecution on the same charges); State v. Cain, 169 W.Va. 772, 777, 289 S.E.2d
488 (1982) (same); State v. Rowland, 172 Kan. 224, 227, 239 P.2d 949 (1952)
(same); Smith v. State, 135 Fla. 835, 839, 186 So. 203 (1939) (same).
         {¶ 18} In this case, following reversal of the murder conviction, the
prosecutor dismissed the indictment against C.K. without prejudice. Pursuant to
R.C. 2901.13(A)(2), there is no statute of limitations for murder, and thus, the
prosecutor may bring new charges against C.K. at any time. Contrary to the court
of appeals’ assumption, there is no need for the state to discover new evidence of
guilt before it can retry C.K. for murder, and the prosecutor has discretion to defer
prosecution until stronger evidence disproving the claim of self defense comes to
light.
         {¶ 19} In asserting that no new charges can or will be brought against him,
C.K. can point to the passage of time since the dismissal of the indictment, the
absence of any current plans to prosecute him, and the lack of any active




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investigation seeking new evidence of guilt.            Those facts, however, are
insufficient as a matter of law to establish the requirement of R.C. 2743.48(A)(4)
that no criminal proceeding “can be brought, or will be brought” against him for
“any act associated with that conviction.” Rather, because there is no statute of
limitations for murder, a new criminal proceeding can be brought at any time, and
because the timing of that event is left to the discretion of the prosecutor, C.K.
cannot prove that no criminal proceeding can or will be brought against him in the
future.
                                        Conclusion
          {¶ 20} R.C. 2743.48(A)(4) requires a claimant seeking to be declared a
wrongfully imprisoned individual to demonstrate that no criminal proceeding is
pending, can be brought, or will be brought against the claimant for any act
associated with a conviction that was vacated, dismissed, or reversed on appeal.
          {¶ 21} Here, the court of appeals assumed that no criminal proceeding can
or will be brought against C.K. based on the fact that the state had no new
evidence of guilt and no active investigation of the crime. However, because
there is no statute of limitations for murder, the state has authority to bring a
criminal proceeding against C.K. at some future time. The decision to defer
prosecution pending the discovery of stronger evidence of guilt is insufficient to
establish that no criminal proceeding can be brought or will be brought against
C.K. for any act associated with Coleman’s murder. Therefore, as a matter of
law, C.K. cannot establish the requirement of R.C. 2743.48(A)(4).
          {¶ 22} Accordingly, the judgment of the appellate court is reversed.
                                                                 Judgment reversed.
          O’CONNOR, C.J., and PFEIFER and KENNEDY, JJ., concur.
          LANZINGER and FRENCH, JJ., concur in judgment.
          O’NEILL, J., dissents.
                                   ____________________




                                            8
                               January Term, 2015




       LANZINGER, J., concurring.
       {¶ 23} It is important to recognize that this is a civil action seeking a
declaratory judgment that C.K. was a wrongfully imprisoned individual, and the
action is governed by statute. In enacting wrongful-imprisonment legislation, the
General Assembly “intended that the court of common pleas actively separate
those who were wrongfully imprisoned from those who have merely avoided
criminal liability.” Walden v. State, 47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989).
       {¶ 24} We have determined that one who claims to be a wrongfully
imprisoned individual under R.C. 2743.48 must prove all five of the factors in
R.C. 2743.48(A) by a preponderance of the evidence before seeking
compensation from the state in the Court of Claims for wrongful imprisonment.
Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, paragraph
one of the syllabus.
       {¶ 25} We have decided a number of wrongful-imprisonment-claim cases
on grounds of statutory construction of R.C. 2743.48: Dunbar v. State, 136 Ohio
St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, paragraph one of the syllabus
(vacation of a plea of guilty to a felony does not make a person eligible to pursue
damages against the state—construing R.C. 2743.48(A)(2)); Mansaray v. State,
138 Ohio St.3d 277, 2014-Ohio-750, 6 N.E.3d 35, syllabus (an error in procedure
resulting in release must have occurred after sentencing and during or after
imprisonment, construing R.C. 2743.48(A)(5)); Bundy v. State, ___ Ohio St.3d
___, 2015-Ohio-2138, __ N.E.3d ___, syllabus (actual-innocence standard is not
met by showing that the conviction was reversed solely because the statute
describing the offense could not be enforced on constitutional grounds—
construing R.C. 2743.48(A)(5)).




                                        9
                             SUPREME COURT OF OHIO




       {¶ 26} I would decide this case similarly, on a precise reading of the
statute, and hold that C.K. was required to prove by a preponderance of the
evidence that he meets the requirement of R.C. 2743.48(A)(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.


(Emphasis added.)
       {¶ 27} We have already held with respect to this section that claimants
must prove that they were not engaging in any other criminal conduct arising out
of the incident for which they were initially charged. Gover v. State, 67 Ohio
St.3d 93, 95, 616 N.E.2d 207 (1993). According to the language of this section, a
dismissal without prejudice on a charge of murder precludes a claimant from
eligibility as a wrongfully imprisoned individual.       Murder has no statute of
limitations. In this case, the prosecutor’s dismissal otherwise than with prejudice
leaves open the possibility of a new case being brought against C.K.
       {¶ 28} It may well be that the General Assembly does not intend to
foreclose compensation to one who has been imprisoned under circumstances
such as these. If that is so, the statute should be amended to say so.
       {¶ 29} I respectfully concur in judgment.
       FRENCH, J., concurs in the foregoing opinion.
                             ____________________




                                         10
                               January Term, 2015




       Spangenberg, Shibley & Liber, L.L.P., Nicholas A. Dicello, and William
B. Eadie, for appellee.
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brian
R. Gutkoski, Assistant Prosecuting Attorney, for appellant.
       Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J.
Holder, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio
Prosecuting Attorneys Association.
                            ____________________




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