[Cite as Jones v. State, 2011-Ohio-3075.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 96184




                                            SHIGALI JONES
                                                PLAINTIFF-APPELLANT

                                                 vs.


                                        STATE OF OHIO

                                                DEFENDANT-APPELLEE




                                              JUDGMENT:
                                               AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CV-729017

        BEFORE: Kilbane, A.J., Celebrezze, J., and S. Gallagher, J.
       RELEASED AND JOURNALIZED: June 23, 2011



ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square, Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Michael A. Dolan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} Plaintiff-appellant, Shigali Jones (Jones), appeals from the trial

court’s decision granting summary judgment in favor of defendant-appellee,

the state of Ohio (State). Finding no merit to the appeal, we affirm.

       {¶ 2} In October 2005, “Jones was charged with attempted murder, two

counts of aggravated robbery, and two counts of felonious assault, all with
firearm specifications.”      State v. Jones, Cuyahoga App. No. 88203,

2007-Ohio-1717, ¶2 (Jones I). The matter proceeded to a jury trial, at which

he was convicted of “attempted murder and two counts of felonious assault

with the accompanying gun specifications. The trial court sentenced Jones

to an aggregate of thirteen years in prison.” Id. at ¶10. Jones appealed to

this court, challenging his convictions and sentence.         See Jones I.    On

appeal, this court reversed his convictions and remanded the matter for a new

trial. Id. at ¶35. Jones was retried and acquitted of all charges in August

2007.

        {¶ 3} Thereafter, Jones filed the instant complaint for declaratory relief

against the State, seeking to have the trial court determine that he was a

wrongfully imprisoned person pursuant to R.C. 2305.02 and 2743.48. The

State filed an answer and moved for summary judgment.1 The State argued

that Jones is not a wrongfully imprisoned person because his incarceration

resulted from the revocation of his parole on his 1990 case, and he was

engaged in criminal conduct at the time he was arrested.2 Jones opposed,


        1 Jonesclaims that an unnamed party, the “Cuyahoga County Board of
Commissioners,” filed a motion for summary judgment. While the Cuyahoga
County Prosecutor’s Office did file a motion for summary judgment on behalf of the
Board of Commissioners, the Prosecutor’s Office also filed a motion for summary
judgment on behalf of the State, which the trial court granted. As such, we find
Jones’s claim unpersuasive.
        2 InCase No. CR-238869 (1990 case), Jones was convicted of kidnapping,
aggravated robbery, gross sexual imposition, and possession of criminal tools. The
trial court sentenced him to six to twenty-five years in prison. Jones was granted
arguing that he was imprisoned for the instant case and not the 1990

conviction. The trial court granted the State’s motion, finding that:

      “[Jones] was on post release control, formerly referred to
      as parole, at the time he was arrested and indicted on the
      aforementioned charges.      * * * The court finds that
      [Jones] is not a wrongfully imprisoned person as [defined
      in R.C. 2743.48 because he] has failed to show any
      evidence of a determination of a court of common pleas
      showing the offenses he was convicted of were not
      committed by him or any other person. [Jones] has
      provided evidence of a jury determination that the [State]
      had failed to meet their burden of proving [his] guilt
      beyond a reasonable doubt. This falls short of providing
      evidence of a determination that the offenses were not
      committed by him or any person. In [Gover v. Ohio (1993),
      67 Ohio St.3d 93, 616 N.E.2d 207], the court held that
      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. [The
      State] submitted an affidavit from [Jones’s] parole officer
      attesting to the facts that [Jones’s] parole was revoked
      four months before his conviction for possession of a
      firearm, failure to report contact with law enforcement,
      failure to report arrest, and associating with individuals
      with criminal histories. [Jones] has failed to submit any
      evidence disputing the parole officer’s account as recited
      in her affidavit. This court finds that possession of a
      firearm by a convicted felon is criminal conduct.
      Summary judgment is hereby granted in favor of [the
      State.]”




parole in September 2003. Jones was on parole when he was arrested in
connection with Case No. CR-471599. In November 2005, Jones was found to be in
violation of his parole and was sent back to prison. He remained in prison until
March 15, 2010, for his parole violation in the 1990 case.
      {¶ 4} It is from this order that Jones appeals, raising the following two

assignments of error for review.

      ASSIGNMENT OF ERROR ONE

      “[Jones] was denied due process of law when the court
      granted [the State’s] motion for summary judgment[.]”

      ASSIGNMENT OF ERROR TWO

      “[Jones] was denied due process of law when the court
      granted a motion for summary judgment based upon a
      ground not identified by [the State.]”

                                      Standard of Review

      {¶ 5} Appellate review of summary judgment is de novo.          Grafton v. Ohio Edison

Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 N.E.2d 241; Zemcik v. LaPine Truck Sales

& Equip. Co. (1998), 124 Ohio App.3d 581, 585, 706 N.E.2d 860.       The Ohio Supreme Court

set forth the appropriate test in Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370,

1998-Ohio-389, 696 N.E.2d 201, 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, 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, 662 N.E.2d 264, 273-274.”
       {¶ 6} 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,

1996-Ohio-389, 667 N.E.2d 1197.       Doubts must be resolved in favor of the nonmoving party.

 Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 1992-Ohio-95, 604 N.E.2d 138.

                                      Wrongful Imprisonment

       {¶ 7} “The Ohio Revised Code provides a two-step process whereby a

person claiming wrongful imprisonment may sue the State for damages

incurred due to the alleged wrongful imprisonment.” State ex rel. Jones v.

Suster, 84 Ohio St.3d 70, 72, 1998-Ohio-275, 701 N.E.2d 1002, citing Walden

v. State (1989), 47 Ohio St.3d 47, 547 N.E.2d 962. The first action, in the

common pleas court, seeks a preliminary factual determination of wrongful

imprisonment. Id. The second action, in the Court of Claims, provides for

damages. Id.

       {¶ 8} A      “wrongfully      imprisoned      individual”     is   defined     in   R.C.

2743.48(A) as an individual who satisfies each of the following requirements:

       “(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.”3

     {¶ 9} In a wrongful imprisonment claim, the petitioner bears the

burden of proving beyond a preponderance of the evidence his or her

innocence.   Suster at 72.   The Ohio Supreme Court has found that “a

previous finding of not guilty is not sufficient to establish innocence. The


     3   We note that the wrongful imprisonment statutes were intended to
compensate the innocent for wrongful imprisonment. Walden at 49. The statutes
were never intended to compensate “‘those who have merely avoided criminal
liability.’” Gover at 95, quoting Walden.
petitioner * * * must produce more evidence than a judgment of acquittal,

which is merely a judicial finding that the state did not prove its case beyond

a reasonable doubt. Ellis v. State (1992), 64 Ohio St.3d 391, 393, 596 N.E.2d

428, 430.” (Emphasis in original.) Id. at 72.

      {¶ 10} In   the   instant   case,   Jones   was   initially   convicted   and

subsequently acquitted of attempted murder, two counts of felonious assault,

and accompanying gun specifications.          He argues that his subsequent

acquittal satisfies his burden that he did not engage in any criminal conduct

at the time of the incident. Jones further argues that his acquittal presented

an issue of fact that could not be decided on summary judgment.

      {¶ 11} However, “[t]he fact that a reviewing court reverses a criminal

conviction does not require a trial court to find that the petitioner was not

engaging in any criminal conduct at the time of incident. Ratcliff v. State

(1994), 94 Ohio App.3d 179, 640 N.E.2d 560. Evidence insufficient to prove

guilt beyond a reasonable doubt does not necessarily prove innocence by a

preponderance of the evidence as required by R.C. 2743.48. Id. Moreover,

reversal on insufficiency of the evidence does not automatically mean an

individual was wrongfully imprisoned. Chandler v. State (1994), 95 Ohio

App.3d 142, 641 N.E.2d 1382.”         Rodriguez v. Petro, Cuyahoga App. No.

87548, 2006-Ohio-5572, ¶11. As the Chandler court stated:
     “[A] judgment of acquittal is not to be given preclusive

     effect in a proceeding under R.C. 2305.02 and 2743.48(A).

     Walden, supra.      ‘As a general rule, a verdict or judgment

     of acquittal in a criminal trial is a determination that the

     state has not met its burden of proof on the essential

     elements of the crime.     It is not necessarily a finding that

     the accused is innocent.’       Id., 47 Ohio St.3d at 51, 547

     N.E.2d at 966, citing Schrader v. Equitable Life Assurance

     Soc. (1985), 20 Ohio St.3d 41, 46, 20 OBR 343, 347-348, 485

     N.E.2d 1031, 1035-1036. * * *          Thus, the very same

     transcript of a criminal proceeding which results in a

     conviction and which is subsequently overturned on the

     weight or sufficiency of the evidence may nonetheless be

     insufficient to support a claimant’s innocence by a

     preponderance of the evidence.       See Page v. State (Aug. 8,

     1989), Franklin App. No. 89AP-222[.]”      Id. at 149.

     {¶ 12} Here, the only evidence Jones provided to the trial court in

support of his petition was the journal entry stating that he was found not

guilty of the charges.   Jones’s eventual acquittal of the charges does not

prove by a preponderance of the evidence that he was innocent of any

wrongdoing. It merely demonstrates that he avoided criminal liability.
       {¶ 13} Furthermore, R.C. 2743.48 provides that the court must consider

whether Jones was engaged in other criminal acts at the time of the incident.

 In the instant case, an affidavit attached to the State’s motion for summary

judgment reveals that Jones was found to be in violation of his parole from

his 1990 case. Melissa Adams (Adams), Chief of the Ohio Department of

Rehabilitation and Correction’s Bureau of Sentence Computation, reviewed

Jones’s inmate records and determined that his sentence in the 1990 case was

set to end on May 31, 2015. In September 2003, Jones was granted parole.

A parole holder was placed on Jones on October 7, 2005, which required that

he remain incarcerated pending resolution of his alleged parole violations.

On November 3, 2005, a parole violation hearing was held, at which Jones

was found to be in violation of his parole for possessing a firearm, failing to

report contact with law enforcement officers, failing to report his arrest, and

associating with individuals who had criminal backgrounds. As a result, he

was recommitted until March 15, 2010.

       {¶ 14} In his brief in opposition to the State’s motion for summary

judgment, Jones failed to submit any evidence contradicting the Ohio

Department of Rehabilitation and Correction’s account. Once the moving party

satisfies its burden, the nonmoving party, by affidavit, must set forth specific facts showing

that there is a genuine issue for trial.   See Civ.R. 56(E). Since Jones has failed to

establish by a preponderance of the evidence that he did not engage in any
other criminal conduct arising out of the incident for which he was initially

charged, we find that the trial court’s decision granting summary judgment in

favor of the State was proper.

       {¶ 15} Accordingly, the first and second assignments of error are

overruled.

       Judgment is affirmed.

       It is ordered that appellee recover from appellant 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, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
