[Cite as Billeter v. State, 2013-Ohio-3698.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



DONALD BILLETER III                                JUDGES:
                                                   Hon. John W. Wise, P. J.
        Plaintiff-Appellant                        Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 2013CA00083
STATE OF OHIO

        Defendant-Appellee                         OPINION




CHARACTER OF PROCEEDING:                        Civil Appeal from the Court of Common
                                                Pleas, Case No. 12CV03766


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         August 26, 2013



APPEARANCES:

For Plaintiff-Appellant                         For Defendant-Appellee

TERRY H. GILBERT                                JOHN D. FERRERO
FRIEDMAN & GILBERT                              PROSECUTING ATTORNEY
55 Public Square                                MICHAEL S. BICKIS
Suite 1055                                      ASSISTANT PROSECUTOR
Cleveland, Ohio 44735-1901                      110 Central Plaza South, Suite 510
                                                Canton, Ohio 44702
Stark County, Case No. 2013CA00083                                                            2

Wise, P. J.

          {¶1}   Appellant Donald Billeter III, aka Donald Billiter III, appeals the decision of

    the Court of Common Pleas, Stark County, which dismissed his civil claim for wrongful

    imprisonment. Appellee is the State of Ohio. The relevant facts leading to this appeal

    are as follows.

          {¶2}   In December 1998, in case number 1998CR0651, appellant entered a

    plea of guilty to one count each of aggravated burglary (a first-degree felony) and

    domestic violence (a fifth-degree felony) in the Stark County Court of Common Pleas.1

    Appellant was thereupon convicted and sentenced to an aggregate prison term of three

    years. The trial court's sentencing entry imposed a term of post-release control of “up

    to a maximum of three (3) years,” which was incorrect under R.C. 2967.28(B).

          {¶3}   Appellant did not appeal the aforesaid conviction and sentence. He was

    released from prison in May 2001.

          {¶4}   On April 9, 2004, within the three-year period of his ordered post-release

    control, appellant was indicted under case number 2004CR0452 by the Stark County

    Grand Jury on one count of escape from post-release control detention. On April 26,

    2004, appellant entered a plea of guilty to the offense of escape. On June 3, 2004, the

    trial court sentenced appellant to a community control sanction on the escape

    conviction. Appellant again did not appeal.

          {¶5}   Subsequently, appellant violated the terms and conditions of his

    community control sanction, resulting in the revocation of his probation by the trial



1
   Because the case appealed is from a separate civil action, we will recite a summary
of appellant’s pertinent criminal cases based on the briefs and a review of prior
appellate decisions.
Stark County, Case No. 2013CA00083                                                     3


court. The trial court then sentenced appellant to a six-year prison term. Appellant did

not appeal the revocation or the imposition of the prison sentence.

      {¶6}   On July 21, 2008, appellant filed a pro se motion to suspend further

execution of sentence. However, the trial court overruled the motion.

      {¶7}   Appellant filed an appeal of the trial court's judgment entry overruling his

motion to suspend execution to this Court. Appellant argued the trial court should have

vacated the escape conviction as he was not validly on post-release control. We

rejected the argument and affirmed the judgment of the trial court. Appellant did not

seek reconsideration or appeal our decision to the Ohio Supreme Court.

      {¶8}   In March 2010, appellant filed a motion to withdraw his guilty plea in case

number 2004CR0452 on the ground that his conviction for the offense of escape was a

nullity. The trial court overruled the motion based, in part, on res judicata.

      {¶9}   Appellant then appealed to this Court. On May 9, 2011, we affirmed the

trial court’s decision to deny the motion to withdraw guilty plea. See State v. Billiter,

Stark App.No. 2010CA00292, 2011-Ohio-2230.

      {¶10} Appellant then appealed to the Ohio Supreme Court. On November 7,

2012, the Court reversed our decision, ruling as follows: “When a criminal defendant is

improperly sentenced to postrelease control, res judicata does not bar the defendant

from collaterally attacking his conviction for escape due to an earlier postrelease-

control sentencing error.” State v. Billiter, 134 Ohio St.3d 103, 980 N.E.2d 960, 2012-

Ohio-5144, at the syllabus.
Stark County, Case No. 2013CA00083                                                    4


      {¶11} On December 14, 2012, in accordance with the Ohio Supreme Court’s

decision, the trial court vacated appellant’s conviction and community control violation

in case number 2004CR0452.

      {¶12} In the meantime, on December 5, 2012, appellant filed a civil complaint for

wrongful imprisonment in the Stark County Court of Common Pleas under case

number 2012CV03766.

      {¶13} On December 11, 2012, the State filed a motion to dismiss under Civ.R.

12(B)(6). On March 12, 2013, the State filed a motion for judgment on the pleadings.

On March 26, 2013, appellant filed a memorandum in opposition. The State filed a

reply the next day.

      {¶14} On April 3, 2013, the trial court issued a judgment entry granting the

State’s motion for judgment on the pleadings.

      {¶15} On April 30, 2013, appellant filed a notice of appeal in case number

2012CV03766. He herein raises the following two Assignments of Error:

      {¶16} “I. THE TRIAL COURT ERRED IN GRANTING JUDGMENT ON THE

PLEADINGS FOR THE DEFENDANT-APPELLEE BECAUSE THE TRIAL COURT’S

SENTENCING OF PLAINTIFF-APPELLANT WAS VOID AB INITIO AND THE TRIAL

COURT HAD NO JURISDICTION TO ACT; THUS A VOID PLEA[,] CONVICTION,

AND SENTENCE CANNOT CONSTITUTE A BAR TO RECOVERY UNDER O.R.C.

2743.48(A)(2).

      {¶17} “II. THE TRIAL COURT ERRED IN GRANTING JUDGMENT ON THE

PLEADINGS FOR THE DEFENDANT-APPELLEE BECAUSE THE TRIAL COURT
Stark County, Case No. 2013CA00083                                                      5


VACATED PLAINTIFF-APPELLANT’S ESCAPE CONVICTION, THUS SATISFYING

O.R.C. 2743.48(A)(4).”

                                                 I.

      {¶18} In his First Assignment of Error, appellant contends the trial court erred in

granting judgment on the pleadings in favor of the State of Ohio regarding appellant’s

wrongful imprisonment complaint. We disagree.

      {¶19} “The wrongful-imprisonment statute, R.C. 2743.48, was added to the

Revised Code in 1986 by Sub.H.B. No. 609 ‘to authorize civil actions against the state,

for specified monetary amounts, in the Court of Claims by certain wrongfully

imprisoned individuals.’ ” State v. Doss, 135 Ohio St.3d 211, 985 N.E.2d 1229, 2012-

Ohio-5678, ¶10, citing 141 Ohio Laws, Part III, 5351. “All wrongful-imprisonment

claimants must follow a two-step process. In the first step, the claimant must bring an

action in the court of common pleas to secure a determination that he or she is a

wrongfully imprisoned individual entitled to compensation. In the second step, the

claimant must file a civil action against the state, in the Court of Claims, to recover a

sum of money.” Griffith v. Cleveland, 128 Ohio St.3d 35, 2010-Ohio-4905, 941 N.E.2d

1157, paragraph two of the syllabus.

      {¶20} R.C. 2743.48(A)(2) mandates that among the five required elements

constituting the definition of a “wrongfully imprisoned individual” is the following:

      {¶21} “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.”

(Emphasis added.)
Stark County, Case No. 2013CA00083                                                      6

      {¶22} Recently, in Dunbar v. State, --- N.E.2d ----, 2013-Ohio-2163, the Ohio

Supreme Court specifically held: “One who has been convicted of a felony on a plea of

guilty that is subsequently vacated on appeal is not eligible to be declared a wrongfully

imprisoned individual in order to pursue damages against the state of Ohio in the Court

of Claims.” Id., at the syllabus.

      {¶23} In the case sub judice, it is undisputed that appellant did in fact plead

guilty to one count of escape. However, appellant seeks to distinguish his case from

the situation in Dunbar. He notes that in Dunbar, the Eighth District Court of Appeals

had originally concluded that the trial court had erred by failing to advise Mr. Dunbar of

the possibility of deviation from the recommended sentence of community control and

by not giving him the opportunity to withdraw his guilty plea when the trial court decided

to impose a prison sentence. The court of appeals then remanded and instructed the

trial court to vacate Mr. Dunbar's plea. See Dunbar at ¶3. Appellant in contrast urges

that in his case his plea to the offense of escaping post-release control was vacated

because the trial court, having improperly advised him of post-release control in 1998,

had no authority to convict and sentence him for escape. Appellant thus essentially

maintains that since his guilty plea flowed from a flawed post-conviction release

notification, his subsequent sentence for escape was void and his plea to the escape

charge was a nullity, thus effectively putting him in the position of never having made

the guilty plea at all.

      {¶24} However, we are unpersuaded that appellant’s plea withdrawal causes his

case to fall outside the scope of Dunbar’s holding. The Ohio Supreme Court’s

language therein is clear: “The General Assembly created the claim for wrongful
Stark County, Case No. 2013CA00083                                                         7


imprisonment and placed limitations upon the categories of persons who are eligible for

compensation. One limitation is that the claimant cannot have pled guilty to the

offense. *** [T]he General Assembly did not provide an exception for guilty pleas that

are later vacated.” Dunbar at ¶20.

      {¶25} Accordingly, the trial court did not err in finding appellant failed to meet the

definition of a “wrongly imprisoned individual” under R.C. 2743.48(A).

      {¶26} Appellant's First Assignment of Error is overruled.

                                                II.

      {¶27} In his Second Assignment of Error, appellant contends on alternative

grounds the trial court erred in granting judgment on the pleadings in favor of the State

of Ohio regarding appellant’s complaint.

      {¶28} In the case sub judice, the trial court also granted judgment on the

pleadings in favor of the State of Ohio based on appellant’s failure to satisfy R.C.

2743.48(A)(4), which mandates another of the five elements constituting the definition

of a “wrongfully imprisoned individual” as follows:

      {¶29} “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.”

      {¶30} It appears the trial court determined that R.C. 2743.48(A)(4) had not been

satisfied in this matter on the theory that “if there is no guilty plea, there also can be no
Stark County, Case No. 2013CA00083                                                      8


finding of guilt to later vacate, dismiss, or reverse on appeal.” Judgment Entry, April 3,

2013, at 1-2.

        {¶31} However, an appellate court is not required to render an advisory opinion

on a moot question or to rule on a question of law that cannot affect matters at issue in

a case. State v. Bistricky (1990), 66 Ohio App.3d 395, 397.

        {¶32} Per the statute’s own language, each of the five elements of R.C.

2743.48(A) must be satisfied in order for a person to be classified as a “wrongfully

imprisoned individual.” Based on our above determination regarding appellant’s First

Assignment of Error, we find the issue raised in the Second Assignment of Error is

moot.

        {¶33} For the reasons stated in the foregoing opinion, the decision of the Court

of Common Pleas, Stark County, Ohio, is hereby affirmed.



By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.

                                            ___________________________________
                                            HON. JOHN W. WISE


                                            ___________________________________
                                            HON. PATRICIA A. DELANEY


                                            ___________________________________
                                            HON. CRAIG R. BALDWIN

JWW/d 0808
Stark County, Case No. 2013CA00083                                          9


              IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




DONALD BILLETER III                       :
                                          :
       Plaintiff-Appellant                :
                                          :
-vs-                                      :         JUDGMENT ENTRY
                                          :
STATE OF OHIO                             :
                                          :
       Defendant-Appellee                 :         Case No. 2013CA00083




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed.

       Costs assessed to appellant.




                                          ___________________________________
                                          HON. JOHN W. WISE


                                          ___________________________________
                                          HON. PATRICIA A. DELANEY


                                          ___________________________________
                                          HON. CRAIG R. BALDWIN
