[Cite as Mohammad v. State, 2012-Ohio-5517.]



                Court of Appeals of Ohio
                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA



                             JOURNAL ENTRY AND OPINION
                                      No. 98655



                             JEROME MOHAMMAD
                                                      PLAINTIFF-APPELLANT

                                                vs.

                                    STATE OF OHIO
                                                      DEFENDANT-APPELLEE




                                         JUDGMENT:
                                          REVERSED


                                    Civil Appeal from the
                           Cuyahoga County Court of Common Pleas
                                    Case No. CV-772781

            BEFORE:          Jones, P.J., Cooney, J., and E. Gallagher, J.

            RELEASED AND JOURNALIZED: November 29, 2012
                                            -i-

ATTORNEY FOR APPELLANT

Terry H. Gilbert
Friedman & Gilbert
1370 Ontario Street, Suite 600
Cleveland, Ohio 44113-1752

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Brian R. Gutkoski
Assistant Prosecuting Attorney
Justice Center, Courts Tower
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113




LARRY A. JONES, SR., P.J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1, the trial court records and briefs of counsel.

       {¶2} Plaintiff-appellant, Jerome Mohammad, appeals from the trial court’s

judgment granting the state of Ohio’s motion for summary judgment and finding that he

was not a wrongfully imprisoned individual under R.C. 2743.48. We reverse.

I. Procedural History
       {¶3} In 2008, Mohammad was convicted of attempted gross sexual imposition

labeled a “sexually oriented offender” under the law for the classification and registration

requirements in effect at the time for offenders convicted of sexually oriented offenses,

which was commonly known as “Megan’s Law.” Mohammad, who had previously been

convicted in 1998 of unlawful sexual conduct with a minor, was classified as a sexually

oriented offender, and was required to report his address annually to the state of Ohio for

15 years.

       {¶4} On January 1, 2008, the Ohio legislature enacted Senate Bill 10 (“S.B. 10”),

which was based on the federal Adam Walsh Act (“AWA”). The AWA changed the

classification and registration requirements for offenders convicted of sexually oriented

offenses, and as a result, Mohammad was reclassified as a Tier I offender and, as such,

was required to report and verify his address every 90 days for life.

       {¶5} On June 16, 2009, despite Mohammad’s compliance with the reporting

requirements under Megan’s Law, he was indicted for failing to verify his address under

the AWA in violation of R.C. 2950.06(F), a first degree felony. On March 30, 2010,

Mohammad pleaded guilty to the charge and was sentenced to one year in prison.

       {¶6} Following the Ohio Supreme Court’s decision in State v. Bodyke, 126 Ohio

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, that held the AWA provisions authorizing

the Attorney General to reclassify persons judicially classified under Megan’s Law was

an unconstitutional delegation of judicial authority to the executive branch, Mohammad

filed a motion to withdraw his guilty plea. Later, in July 2011, the Ohio Supreme Court
held in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, that

applying S.B. 10 to offenders who had committed sex offenses prior to its enactment

violated the prohibition against retroactive laws as set forth in the Ohio Constitution.

       {¶7} On September 26, 2011, under the authority of Williams, the trial court

granted Mohammad’s motion, vacated his conviction for failure to verify, and ordered

him released from prison. Subsequently, on January 5, 2012, Mohammad filed a

complaint seeking a declaration under R.C. 2743.48 that he was a wrongfully imprisoned

individual. The parties filed cross-motions for summary judgment.

       {¶8} As grounds for its motion, the state argued that Mohammad was not a

wrongfully imprisoned individual because he pleaded guilty to the offense for which he

was charged. The trial court agreed, denied Mohammad’s summary judgment motion, and

granted the state’s motion for summary judgment. Mohammad now appeals.

       {¶9} Mohammad’s sole assignment of error reads as follows: “The trial court erred

by finding a voided guilty plea sufficient to bar application of O.R.C. 2743.48 to

appellant.”

II. Law and Analysis

       {¶10} In his assigned error, Mohammad contends that the trial court erred in

granting the state’s summary judgment motion upon its finding that Mohammad’s guilty

plea for failure to verify barred a declaration that he was a wrongfully imprisoned

individual. We agree.
       {¶11} Appellate review of a trial court’s ruling on a summary judgment motion is

de novo. Capella III, L.L.C. v. Wilcox, 190 Ohio App.3d 133, 2010-Ohio-4746, 940

N.E.2d 1026, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93 Ohio St.3d

547, 548, 2001-Ohio-1607, 757 N.E.2d 329. “De novo appellate review means that the

court of appeals independently reviews the record and affords no deference to the trial

court’s decision.” Holt v. State, 10th Dist. No. 10AP-214, 2010-Ohio-6529, ¶ 9. Summary

judgment is appropriate where

       the 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,

821 N.E.2d 564, ¶ 6. Therefore, we undertake an independent review to determine

whether the state was entitled to judgment as a matter of law.

       {¶12} R.C. 2743.48(B)(1) sets forth a two-step process for redress for wrongfully

imprisoned individuals. First, the common pleas court must certify that the defendant was

a wrongfully imprisoned individual. If so certified, then the defendant may file a claim

against the state in the Court of Claims for compensation. Under R.C. 2743.48(A), a

“wrongfully imprisoned individual” is an individual who satisfies the following criteria:

       (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.

       {¶13} According to the state, because Mohammad pleaded guilty to the failure to

verify charge, he cannot qualify as a wrongfully imprisoned individual under subsection

(A)(2) of the statute.

       {¶14} Recently, we were presented with an analogous situation in Johnson v. State,

8th Dist. No. 98050, 2012-Ohio-3964. In Johnson, the prisoner was convicted of rape,

classified as a sexual oriented offender under Megan’s Law, and later reclassified as a

Tier I offender under the AWA. Like the instant case, the prisoner in Johnson, pleaded

guilty to failing to verify his address under the AWA in violation of R.C. 2950.06(F), but

subsequently withdrew his guilty plea after the Ohio Supreme Court’s ruling in Williams.

       {¶15} Similarly, the prisoner filed a complaint seeking to be adjudicated a

wrongfully imprisoned individual. Correspondingly with the instant case, the trial court

rejected the complaint in Johnson and granted summary judgment in favor of the state.
       {¶16} We reversed the trial court’s grant of summary judgment in the state’s favor,

finding that “because a void guilty plea has no effect at law, it does not exist for purposes

of determining whether a person has the right to seek compensation under R.C. 2743.48.”

 In reaching this decision, we followed our previous pronouncements in Ballard v.

State, 8th Dist. No. 97882, 2012-Ohio-3086, and Dunbar v. State, 8th Dist. No. 97364

2012-Ohio-707. The Ballard, Dunbar, and Johnson decisions relied on State v. Moore,

165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452 (4th Dist.).

       {¶17} In reliance on Moore, in Johnson at ¶ 12-15 we stated:

       [T]he Fourth Appellate District “liberally construed” R.C. 2743.48 to permit a
       person who had pleaded guilty to an offense to qualify as a wrongfully imprisoned
       individual. The defendant in Moore pleaded guilty to murder in 1995 upon the
       advice of his counsel. In advising the client to plead, counsel failed to inform the
       defendant that exculpatory gunshot residue evidence existed (i.e., evidence that
       showed that the defendant tested negative for gunshot residue, and that another
       suspect tested positive). After pleading guilty and being sentenced, the defendant
       learned of the gunshot residue evidence and filed motions for postconviction relief
       and to withdraw his guilty plea. The defendant’s motions were granted.

       The case proceeded to a jury trial and the gunshot residue evidence was presented.
        The jury acquitted the defendant and he subsequently filed a motion seeking a
       declaration that he was a wrongfully imprisoned individual. The trial court granted
       the defendant’s motion and the state appealed.

       In addressing the “was found guilty of, but did not plead guilty to,” language of
       R.C. 2743.48, the Fourth Appellate District found the statute to be a “remedial
       law,” subject to “liberal construction.” Id. at ¶ 21. The court reasoned that:
       “interpreting R.C. 2743.48 liberally would result in assuring that a plea that has
       been determined to have no legal effect does not, in fact, have any legal effect
       upon either the criminal or civil matters associated with the case. This would
       further the remedial goals of the statute by addressing the particularly egregious
       wrong of imprisoning an individual not only wrongfully, but also
       unconstitutionally.” Id. at ¶ 23.
      Thus, the Fourth District held that the defendant’s plea was not knowingly,
      intelligently, and voluntarily made, and was therefore void.

      {¶18} In accord, we reaffirm that a void guilty plea does not exist for purposes of

determining whether a person has the right to seek compensation under R.C. 2743.48.

Consequently, following our previous decisions in Ballard, Dunbar, and Johnson, as well

as the Fourth Appellate District’s decision in Moore, we find that Mohammad was a

wrongfully incarcerated individual under R.C. 2743.48 and, therefore, reverse the trial

court’s judgment.

      {¶19} Judgment reversed.

      It is ordered that appellant recover of appellee his 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.



LARRY A. JONES, SR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
EILEEN A. GALLAGHER, J., CONCUR
