[Cite as Kern v. State, 2014-Ohio-1740.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

Thomas D. Kern,                                  :

                 Plaintiff-Appellant,            :                   Nos. 12AP-1018 and
                                                                          13AP-454
v.                                               :                 (C.P.C. No. 11CV-014833)

State of Ohio,                                   :             (REGULAR CALENDAR)

                 Defendant-Appellee.             :


                                           D E C I S I O N

                                      Rendered on April 24, 2014


                 Marshall D. Wisniewski, for appellant.

                 Michael DeWine, Attorney General, and Debra Gorrell
                 Wehrle, for appellee.

                  APPEALS from the Franklin County Court of Common Pleas

DORRIAN, J.
        {¶ 1} Plaintiff-appellant, Thomas D. Kern ("appellant"), appeals from a decision
of the Franklin County Court of Common Pleas denying his motion for summary
judgment and granting the motion for summary judgment filed by defendant-appellee,
State of Ohio (the "state"), on appellant's complaint seeking a declaration that he was a
"wrongfully imprisoned individual" pursuant to R.C. 2743.48. Appellant also appeals
from the trial court's decision denying his motion for relief from that judgment. Because
we conclude that appellant did not satisfy the statutory criteria to be declared a
"wrongfully imprisoned individual," we affirm.
        {¶ 2} Ohio law provides for a two-step procedure to compensate individuals who
have been wrongfully imprisoned. In the first step, a claimant must file a civil action in the
court of common pleas seeking a determination that he is a wrongfully imprisoned
Nos. 12AP-1018 and 13AP-454                                                                            2


individual. Once the court of common pleas has determined that the claimant was
wrongfully imprisoned, the claimant may then initiate the second step by filing a civil
action in the Court of Claims to recover monetary damages. See R.C. 2743.48(B); Doss v.
State, 135 Ohio St.3d 211, 2012-Ohio-5678, ¶ 10. Appellant commenced this action by
filing a complaint in the Franklin County Court of Common Pleas seeking an order
declaring that he was a wrongfully imprisoned individual.1 The parties filed cross-motions
for summary judgment with attached evidentiary materials.
        {¶ 3} As relevant to this appeal, the pleadings and evidence established the
following facts. On August 21, 2003, appellant was indicted in the Wood County Court of
Common Pleas on one count of aggravated vehicular assault in violation of R.C.
2903.08(A)(1), a felony of the third degree. On February 2, 2004, appellant entered a plea
of no contest to an amended charge of aggravated vehicular assault in violation of R.C.
2903.08(A)(2), a felony of the third degree. Pursuant to his no-contest plea, on March 29,
2004, the Wood County Court of Common Pleas sentenced appellant to four years'
imprisonment. Appellant was granted judicial release on November 29, 2004. Appellant's
judicial release was revoked on June 4, 2007, and his original sentence was re-imposed,
with credit for prior time served. Appellant subsequently filed a motion to correct his
judgment of conviction because it did not include the plea, means of conviction, and
sentence in one judgment. State v. Kern, 6th Dist. No. WD-09-051, 2010-Ohio-5508,
¶ 10. Based on that motion, on June 8, 2009, the Wood County Court of Common Pleas
issued an amended judgment and imposed the same sentence. Id. Appellant also moved
to vacate his sentence. On appeal from the amended judgment and denial of the motion to
vacate, the Sixth District Court of Appeals held that the trial court erred by failing to
inform appellant that his no-contest plea subjected him to a mandatory prison term. Id. at
¶ 19. The appellate court vacated the no-contest plea and remanded the case to the trial
court for further proceedings. Id. at ¶ 20. Following the appellate court's remand, on


1We note that the underlying conviction that forms the basis for appellant's wrongful-imprisonment claim
occurred in the Wood County Court of Common Pleas. At the time appellant filed his wrongful-
imprisonment complaint, in December 2011, the relevant jurisdictional statutes, R.C. 2305.02 and
2743.48(B), provided that any court of common pleas had jurisdiction to hear and determine an action
seeking a determination that an individual was wrongfully imprisoned. The statutes subsequently have been
amended to provide that the action must be filed in the court of common pleas in the county where the
underlying criminal action was initiated. See 2012 Am.Sub.H.B. No. 487.
Nos. 12AP-1018 and 13AP-454                                                                           3


July 18, 2011, appellant entered a plea of no contest to an amended charge of vehicular
assault in violation of R.C. 2903.08(A)(3), a misdemeanor of the first degree. Appellant
was sentenced to 180 days' imprisonment, with credit for time served.
        {¶ 4} The trial court granted the state's motion for summary judgment and
denied appellant's motion for summary judgment, concluding that appellant failed to
demonstrate that he satisfied all of the requirements to be declared a wrongfully
imprisoned individual under R.C. 2743.48(A). Appellant subsequently filed a motion for
relief from judgment pursuant to Civ.R. 60(B), asserting that a sentencing entry upon
which the trial court relied in granting summary judgment for the state had been
vacated.2 The trial court denied the motion for relief from judgment, concluding that,
even in light of the revised sentencing entry, appellant failed to satisfy the requirements
under R.C. 2743.48(A).
        {¶ 5} Appellant appeals from the judgment denying his motion for summary
judgment and granting the state's motion for summary judgment. He also appeals from
the decision denying his motion for relief from judgment. In this consolidated appeal,
appellant assigns three errors for this court's review:
                ASSIGNMENT OF ERROR NO. 1

                THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
                WHEN IT DENIED PLAINTIFF/APPELLANT'S MOTION
                FOR SUMMARY JUDGMENT, DESPITE HIS SHOWING
                THERE WAS NO DISPUTE AS TO ANY MATERIAL FACTS,
                AND AFTER CONSTRUING THEM IN THE STATE'S
                FAVOR, AND APPLYING SAME TO CONTROLLING
                AUTHORITY, REASONABLE MINDS COULD ONLY
                CONCLUDE HE WAS A "WRONGFULLY IMPRISONED
                INDIVIDUAL," UNDER REVISED CODE SECTION
                2743.48(A); [sic] AS A MATTER OF LAW.

                ASSIGNMENT OF ERROR NO. 2

                THE TRIAL COURT COMMITTED PREJUDICIAL ERROR,
                WHEN IT GRANTED THE STATE'S MOTION FOR


2 On July 25, 2011, the Wood County Court of Common Pleas entered a judgment entry indicating that
appellant pled guilty to an amended charge of vehicular assault. Subsequently, on January 22, 2013, the
court entered a nunc pro tunc judgment entry indicating that appellant entered a no-contest plea to that
charge.
Nos. 12AP-1018 and 13AP-454                                                                 4


              SUMMARY JUDGMENT, BECAUSE THE COURT FAILED
              TO CONSTRUE BOTH THE UNDISPUTED MATERIAL
              FACTS, AND THE VAGUE AND IMPRECISE TERMS OF
              [R.C.] 2748.48(A) [sic] TO HIS BEST INTEREST UNDER
              CIVIL RULE 56.

              ASSIGNMENT OF ERROR NO. 3

              THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
              UPON REMAND WHEN IT ABUSED ITS DISCRETION BY
              DENYING PLAINTIFF/APPELLANT'S CIV. R. 60(B)
              MOTION BECAUSE IT CONTINUED TO RULE HE MUST
              STILL PROVE HIS ACTUAL INNOCENCE IN THIS
              REVISED CODE § 2743.48(A)(5), "ERROR IN PROCEDURE"
              CASE.

       {¶ 6} In his first assignment of error, appellant asserts that the trial court erred by
denying his motion for summary judgment on his wrongful-imprisonment claim.
Generally, the denial of a summary judgment motion is not a final, appealable order.
Stevens v. Maxson, 10th Dist. No. 12AP-672, 2013-Ohio-5792, ¶ 8. In this case, the trial
court's order is final and appealable because it also granted the state's motion for
summary judgment, thereby disposing of all claims. See, e.g., Anderson v. Consumer
Portfolio Servs., Inc., 10th Dist. No. 12AP-339, 2012-Ohio-4380, ¶ 6 ("The trial court's
initial grant of summary judgment in this case disposed of all claims against all parties
and was a final appealable order."). In appellant's second assignment of error, appellant
argues that the trial court erred by granting the state's motion for summary judgment.
The trial court denied appellant's motion for summary judgment for the same reason it
granted the state's motion for summary judgment—i.e., the state was entitled to judgment
as a matter of law because appellant did not satisfy all of the elements of R.C. 2743.48(A).
Therefore, we will consider appellant's first and second assignments of error together.
       {¶ 7} We review a trial court's grant of summary judgment de novo. Capella III,
L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing
Andersen v. Highland House Co., 93 Ohio St.3d 547, 548 (2001). "De novo appellate
review means that the court of appeals independently reviews the record and affords no
deference to the trial court's decision." (Internal citations omitted.) Holt v. State, 10th
Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary judgment is appropriate where "the
Nos. 12AP-1018 and 13AP-454                                                          5


moving party demonstrates that (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 party against whom
the motion for summary judgment is made." Capella III at ¶ 16, citing Gilbert v. Summit
Cty., 104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6. In ruling on a summary judgment
motion, the court must resolve all doubts and construe the evidence in favor of the
nonmoving party. Pilz v. Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-
4040, ¶ 8.
       {¶ 8} Under R.C. 2743.48(A), a "wrongfully imprisoned individual" is an
individual who satisfies each of the following criteria:
              (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.
Nos. 12AP-1018 and 13AP-454                                                              6


       {¶ 9} The trial court concluded that appellant satisfied R.C. 2743.48(A)(1) and
(3). We agree. Appellant was indicted on one charge of aggravated vehicular assault in
violation of R.C. 2903.08(A)(1), a felony of the third degree. Thus, appellant was "charged
with a violation of a section of the Revised Code by an indictment * * * and the violation
charged was an aggravated felony or felony." R.C. 2743.48(A)(1). Similarly, as a result of
his conviction, appellant was sentenced to a term of four years' imprisonment. This
satisfied the criteria of having been "sentenced to an indefinite or definite term of
imprisonment in a state correctional institution for the offense of which [he] was found
guilty." R.C. 2743.48(A)(3).
       {¶ 10} The trial court granted summary judgment in favor of the state, however,
based on its conclusion that appellant failed to satisfy R.C. 2743.48(A)(2), (4), and (5).
Under R.C. 2743.48(A)(4), appellant was required to establish that his conviction was
vacated, dismissed or reversed on appeal, that the prosecuting attorney cannot or will not
seek any further appeal, and that "no criminal proceeding is pending, can be brought, or
will be brought by any prosecuting attorney * * * against the individual for any act
associated with that conviction." The Sixth District Court of Appeals vacated appellant's
conviction for aggravated vehicular assault. Kern at ¶ 19. It appears that the Wood County
prosecuting attorney did not pursue any further appeal of the Sixth District's decision.
Therefore, appellant established the first two elements of R.C. 2743.48(A)(4). However,
appellant cannot demonstrate that "no criminal proceeding is pending, can be brought, or
will be brought * * * for any act associated with that conviction" because, on remand from
the court of appeals decision vacating his conviction, the prosecuting attorney continued
the criminal proceeding against appellant. Ultimately, appellant pled no contest to an
amended charge of misdemeanor vehicular assault and was convicted of that charge
pursuant to his plea. Therefore, appellant cannot satisfy the requirements of R.C.
2743.48(A)(4).
       {¶ 11} Appellant argues that, subsequent to a 2003 amendment to the statute, R.C.
2743.48(A)(4) should only apply to wrongful-imprisonment claims based on "actual
innocence" but not claims based on "error in procedure." This court has previously
discussed the legislative history of R.C. 2743.48(A) in Hill. See Hill at ¶ 9-15. We agree
that following the 2003 amendment, a wrongful-imprisonment claimant may prove either
Nos. 12AP-1018 and 13AP-454                                                                 7


that " '(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).' " Hill at ¶ 17, quoting Doss at ¶ 12. However, the "error in
procedure"/"actual innocence" dichotomy applies to R.C. 2743.48(A)(5), not R.C.
2743.48(A)(4). As the Supreme Court of Ohio has held, "we must apply the [wrongful
imprisonment] statute as it is written." Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-
2163, ¶ 17. "[T]he statute expressly provides that to demonstrate that he is a 'wrongfully
imprisoned individual' pursuant to R.C. 2743.48, the claimant must satisfy each of the
provisions of R.C. 2743.48(A)(1) through (5)." (Emphasis sic.) Id. "The use of the phrase
'no criminal proceedings * * * can * * * or will be brought' was clearly intended by the
General Assembly to bar recovery to a claimant against whom criminal proceedings are
still factually supportable and legally permissible following reversal." LeFever v. State,
10th Dist. No. 12AP-1034, 2013-Ohio-4606, ¶ 26. In this case, criminal proceedings were
still factually supportable and legally permissible following reversal of appellant's
conviction, as evidenced by the fact that he pled no contest to and was convicted of an
amended charge. "The plain language of [R.C. 2743.48(A)(4)] contains no qualifications
and permits no exceptions." Id. Appellant's failure to satisfy R.C. 2743.48(A)(4) precludes
him from being declared a wrongfully imprisoned individual; therefore, we need not reach
the question of whether he satisfied subsection (A)(2) and (5) of the statute.
       {¶ 12} Based on the foregoing analysis, we conclude that the state was entitled to
judgment as a matter of law on appellant's wrongful-imprisonment claim because there
was no genuine issue of material fact, and reasonable minds could only conclude that
appellant failed to demonstrate that he satisfied all of the requirements under R.C.
2743.48(A) to be declared a wrongfully imprisoned individual. Therefore, the trial court
did not err by granting the state's motion for summary judgment and denying appellant's
motion for summary judgment.
       {¶ 13} Accordingly, we overrule appellant's first and second assignments of error.
       {¶ 14} In appellant's third assignment of error, he argues that the trial court erred
by denying his motion for relief from judgment under Civ.R. 60(B). We review a trial
court's decision to grant or deny a motion for relief from judgment under Civ.R. 60(B) for
Nos. 12AP-1018 and 13AP-454                                                                  8


abuse of discretion. Winona Holdings, Inc. v. Duffey, 10th Dist. No. 10AP-1006, 2011-
Ohio-3163, ¶ 12. An abuse of discretion occurs where a trial court's decision is
"unreasonable, arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217,
219 (1983).
       {¶ 15} A party seeking relief from judgment under Civ.R. 60(B) "must demonstrate
that: (1) the party has a meritorious defense or claim to present if relief is granted; (2) the
party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1) through (5);
and (3) the motion is made within a reasonable time, and, where the grounds of relief
are Civ.R. 60(B)(1), (2), or (3), not more than one year after the judgment, order or
proceeding was entered or taken." GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47
Ohio St.2d 146 (1976), paragraph two of the syllabus. The movant must establish all three
of the requirements to obtain relief from judgment. Duffey at ¶ 13.
       {¶ 16} Appellant argued that he was entitled to relief from judgment under Civ.R.
60(B)(4) and (5). In relevant part, Civ.R. 60(B)(4) provides that a party may be relieved
from a judgment when "a prior judgment upon which it is based has been reversed or
otherwise vacated." Civ.R. 60(B)(5) provides for relief from judgment for "any other
reason justifying relief from judgment." Appellant's claim for relief from judgment turned
on the fact that the Wood County Court of Common Pleas vacated the judgment entry
indicating that he had pled guilty to an amended charge of misdemeanor vehicular assault
and entered a nunc pro tunc entry indicating that he pled no contest to that charge.
Assuming for purposes of analysis that this was sufficient to satisfy the second element of
the GTE test, appellant failed to satisfy the first element by demonstrating that he had a
meritorious claim to present if the trial court granted relief from judgment. Appellant
asserted that, if leave from judgment was granted, he would immediately seek to file a
supplemental motion for summary judgment. However, appellant would still have been
unable to satisfy the statutory requirements to be declared a wrongfully imprisoned
individual. Regardless of whether he pled guilty or pled no contest to the amended charge
of misdemeanor vehicular assault, appellant would still be unable to satisfy R.C.
2743.48(A)(4) because the prosecuting attorney could and did continue the criminal
proceeding against him for an act associated with his original conviction. Therefore, the
trial court did not abuse its discretion by denying the motion for relief from judgment.
Nos. 12AP-1018 and 13AP-454                                                          9


      {¶ 17} Accordingly, we overrule appellant's third assignment of error.
      {¶ 18} For the foregoing reasons, we overrule appellant's three assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
                                                                     Judgment affirmed.
                       SADLER, P.J., and O'GRADY, J., concurs.
                                 _______________
