[Cite as Williams v. State, 2015-Ohio-3771.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 102664




                                    J.L. WILLIAMS, JR.
                                                        PLAINTIFF-APPELLANT

                                                  vs.

                                       STATE OF OHIO
                                                        DEFENDANT-APPELLEE




                                               JUDGMENT:
                                                AFFIRMED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-13-819134

        BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: September 17, 2015
ATTORNEY FOR APPELLANT

Paul A. Mancino
Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian R. Gutkoski
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} J.L. Williams filed a complaint seeking to be declared a wrongfully

imprisoned individual pursuant to R.C. 2743.48. The state filed a motion for judgment

on the pleadings pursuant to Civ.R. 12(C) arguing that, as a matter of law, Williams could

not be declared a wrongfully imprisoned individual as statutorily defined. The trial court

granted the motion. For the following reasons, we affirm the judgment of the trial court.

       {¶2} In 2011, a jury acquitted Williams from three counts of trafficking drugs and

two counts of drug possession. In that same case, after waiving the jury trial on the

having weapons while under disability count, Williams was found guilty and sentenced to

one year in prison by the trial court.          Williams successfully appealed.         In State v.

Williams, 8th Dist. Cuyahoga No. 97235, 2012-Ohio-3355, a panel from this court

concluded that Williams’s conviction for having weapons while under disability was

against the manifest weight of the evidence. Williams’s conviction was vacated and

served as the basis of the R.C. 2743.48 claim.

       {¶3} Williams, in the current appeal, advanced three assignments of error, all of

which depend on whether the trial court erred in granting judgment on the pleadings in

favor of the state.1 We review a ruling on a motion for judgment on the pleadings de


       1
         Williams devotes considerable ink to a claim that the trial court converted the motion for
judgment on the pleadings into one for summary judgment and considered facts outside the pleadings.
  The trial court’s final judgment was based on Civ.R. 12(C). Based on the procedural posture, we
find no merit to Williams’s attempt to interpret the trial court’s final judgment as anything but a
judgment on the pleadings. Further, we need not address the issue of whether the state can refile the
novo. Thornton v. Cleveland, 176 Ohio App.3d 122, 2008-Ohio-1709, 890 N.E.2d 353,

¶ 3 (8th Dist.). Motions for judgment on the pleadings are governed by Civ.R. 12(C),

which states as follows: “After the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings.” “In order to be

entitled to a dismissal under Civ.R. 12(C), it must appear beyond doubt that [the

nonmovant] can prove no set of facts warranting the requested relief, after construing all

material factual allegations in the complaint and all reasonable inferences therefrom in

[the nonmovant’s] favor.” State ex rel. Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio

St.3d 73, 74, 2002-Ohio-1383, 765 N.E.2d 854. As a matter of law, Williams cannot be

declared a wrongfully imprisoned individual based on the claims as pleaded.

       {¶4} The trial court granted the state’s motion for judgment on the pleadings

relying on Holloway v. State, 8th Dist. Cuyahoga No. 100586, 2014-Ohio-2971. In that

case, a panel from this court concluded that pursuant to R.C. 2743.48, an individual

seeking to be declared wrongfully imprisoned must meet all five enumerated

requirements of R.C. 2743.48(A), which 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:

       ***

       (5) Subsequent to sentencing and during or subsequent to imprisonment, an
       error in procedure resulted in the individual’s release, or it was determined

having weapons while under disability charge. Our decision is not predicated on whether the state
can charge Williams again, and therefore, we need not reach any conclusions on that issue.
       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.

Subsection (A)(5) has two alternative options.2 The plaintiff can allege actual innocence

or that an error in procedure that occurred after sentencing and during or after

imprisonment resulted in the plaintiff’s release.

       {¶5} In Holloway, for instance, the plaintiff’s alleged error in procedure,

pursuant to R.C. 2743.48(A)(5), was that the trial court erred in admitting hearsay during

his trial, as demonstrated by the fact that on the direct appeal the conviction was vacated.

Id. at ¶ 18. The Holloway panel concluded that because the complaint was limited to the

allegation that an error occurred at trial and there was no allegation of actual innocence,

the plaintiff could not be declared a wrongfully imprisoned individual pursuant to R.C.

2743.48(A)(5) as a matter of law.            Id.; Mansaray v. State, 138 Ohio St.3d 277,

2014-Ohio-750, 6 N.E.3d 35, ¶ 7 (in the absence of allegations of actual innocence, the

plaintiff must allege error that resulted in the individual’s release that occurred

subsequent to sentencing or imprisonment under the plain and ordinary reading of the

statute).




       2
          We recognize that the Ohio Supreme Court released two decisions recently interpreting R.C.
2743.48. Neither decision is applicable to the current case. In State v. Bundy, Slip Opinion No.
2015-Ohio-2138, the court concluded that an offender cannot prove actual innocence by showing his
conviction was reversed as being unconstitutional. In this case, Williams has not pleaded actual
innocence. In C.K. v. State, Slip Opinion No. 2015-Ohio-3421, the court interpreted R.C.
2743.48(A)(4), a factor not at issue in the current case.
       {¶6} The same result must follow in this case. In his complaint, Williams alleged

that he was a wrongfully imprisoned individual because a panel of this court vacated his

conviction based on errors made at trial and before sentencing. There are no allegations

of actual innocence.3 As in Holloway and Mansaray, and after construing all material

factual allegations in the complaint and all reasonable inferences in his favor, we must

conclude that Williams can prove no set of facts entitling him to relief pursuant to R.C.

2743.48(A). The alleged error in procedure that resulted in his release from prison

occurred before sentencing. In the absence of allegations of actual innocence, Williams

cannot be declared a wrongfully imprisoned individual.                  Upon our review of the

allegations in the complaint, Williams cannot satisfy R.C. 2743.48(A)(5) as pleaded, and

judgment as a matter of law in favor of the state was appropriate. We affirm the

judgment of the trial court.

       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 issue out of this court directing the common

pleas court to carry this judgment into execution.


       3
         The fact that an appellate court vacated a conviction is not actual innocence. Doss v. State,
135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, ¶ 22. “[A] trial court adjudicating proof
of innocence pursuant to R.C. 2743.48(A)(5) may not find that a claimant has been wrongfully
imprisoned based solely on an appellate court judgment vacating a felony conviction due to
insufficient evidence and discharging the prisoner without a remand for a new trial.” Id. In light of
the fact that Williams failed to allege actual innocence in the complaint and solely based his
allegations on an appellate reversal of his conviction, the trial court could not have considered any
argument regarding actual innocence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
