[Cite as Davis v. Clark Cty. Bd. of Commrs., 2015-Ohio-3794.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

FRANK DAVIS                                           :     Appellate Case No. 2014-CA-87
                                                      :
        Plaintiff-Appellant                           :     Trial Court Case No. 11-CV-52
                                                      :
v.                                                    :     (Civil Appeal from
                                                      :      Common Pleas Court)
THE CLARK COUNTY                                      :
BOARD OF COMMISSIONERS, et al.                        :
                                                      :
        Defendants-Appellees                          :
                                                      :

                                              ...........
                                              OPINION
                         Rendered on the 18th day of September, 2015.
                                              ...........

WILLIAM D. BELL, SR., Atty. Reg. No. 0027596, 830 Main Street, Suite 604, Second
National Building, Cincinnati, Ohio 45202
      Attorney for Plaintiff-Appellant

MICHAEL DeWINE, Atty. Reg. No. 0009181, by CAITLYN A. NESTLEROTH, Atty. Reg.
No. 0087724, Ohio Attorney General’s Office, Criminal Justice Section, Corrections Unit,
150 East Gay Street, 16th Floor, Columbus, Ohio 43215
      Attorneys for Defendants-Appellees

                                             .............

FAIN, J.

        {¶ 1} Plaintiff-appellant Frank Davis appeals from a summary judgment rendered

against him in the Clark County Common Pleas Court on his claim that he is a wrongfully
                                                                                       -2-
incarcerated person, pursuant to R.C. 2743.48(A).



      {¶ 2} Davis contends that the trial court erred by granting summary judgment to

the non-moving party. Davis also contends that the court erred by finding that the

procedural error that led to his release from prison did not meet the requirements of the

wrongfully incarcerated statute, R.C. 2743.48(A)(5).

      {¶ 3} We conclude that the trial court erred by rendering summary judgment in

favor of defendant-appellee the State of Ohio, because the record does support a

conclusion that a procedural error occurred subsequently to Davis’s conviction and

sentencing, when the trial court refused to release Davis after his convictions were

reversed. Accordingly, Davis’s claim that the trial court erred by rendering summary

judgment in favor of a non-moving party is moot.



                              I. Course of Proceedings

      {¶ 4} In 1999, Davis pleaded no contest to, and was convicted of, one count of

Possession of Cocaine, and two counts of Trafficking. Davis was found guilty and

sentenced to serve 11 years in prison. As a result of numerous appeals, as discussed

below, Davis commenced his period of incarceration on December 14, 2000, served four

years until he was released on December 22, 2004, and was incarcerated again, for the

same offenses, on March 21, 2005. After this court issued a writ of mandamus, Davis was

released from prison on October 13, 2006.

      {¶ 5} From 1999 to the present, numerous appeals have been pursued and we

have rendered eight appellate decisions. In Davis 1, we concluded that the trial court did
                                                                                          -3-
not err in sustaining a motion to suppress, because the search warrant failed to

sufficiently particularize the area to be searched. State v. Davis, 2d Dist. Clark No.

2000-CA-16, 2000 WL 1803626 (Dec. 8, 2000). In Davis 2, we held that Davis’s motion to

withdraw his plea should not have been denied, because the trial court failed to inform

him that he was ineligible for judicial release. State v. Davis, 2d Dist. Clark No.

2003-CA-87, 2004-Ohio-5979. On remand in 2005, Davis was allowed to withdraw his

plea, his new motion to suppress was overruled, and Davis again pled no contest to three

counts, was found guilty, and was sentenced to serve 12 years in prison. In Davis 3, we

held that the search warrant had been insufficient to establish probable cause, and that

the good-faith exception did not apply; we reversed Davis’s convictions. State v. Davis,

166 Ohio App. 3d 468, 2006-Ohio-1592, 851 N.E. 2d 515, ¶ 4 (2d Dist.). On remand, the

trial court erroneously decided to apply our reversal only to the cocaine charge, and in an

order dated July 26, 2006, the trial court refused to release Davis on the two trafficking

charges. In Davis 4, we held that the trial court erred when it refused to release Davis, and

we ordered his immediate release. State v. Davis, 2d Dist. Clark No. 06-CA-79,

2006-Ohio-5306. In Davis 5, we issued a writ of mandamus ordering the trial court to

release Davis from prison. State ex rel. Davis v. Rastatter, 2d Dist. Clark No. 06-CA-66,

2006-Ohio-5305. On February 7, 2007, the trial court dismissed the case against Davis

and released bond. A month later, Davis moved to seal the records related to his

conviction and for a return of his personal property, which had been forfeited to the State

in his previous plea agreement. In Davis 6, we held the trial court erred in overruling the

motion to seal the records without first conducting a hearing, but we found no error in the

court’s refusal to return the forfeited property. State v. Davis, 175 Ohio App. 3d 318,
                                                                                          -4-
2008-Ohio-753, 886 N.E.2d 916 (2d Dist.). In Davis 7, we held that the trial court erred by

applying the wrong legal standard, which led to the overruling of Davis’s motion to seal

the record. State v. Davis, 2d Dist. Clark No. 2008-CA-71, 2009-Ohio-1632.

       {¶ 6} On October 6, 2008, Davis brought this civil action for wrongful

imprisonment, naming numerous state and county officials as defendants. The action

was removed to federal court. After the federal claims were dismissed, Davis refiled the

action for wrongful imprisonment on January 14, 2011, and later amended the complaint

to add claims for malicious prosecution and civil conspiracy. In Davis 8, we held that the

trial court did not err in dismissing Davis’s claims for malicious prosecution and civil

conspiracy filed against state officials. Davis v. Clark County Board of Commissioners,

2013-Ohio-2758, 994 N.E.2d 905 (2d Dist.).

       {¶ 7} On December 19, 2013, Davis moved for summary judgment on his

wrongful imprisonment claim. On December 30, 2013 the State filed a memorandum in

opposition to Davis’s motion for summary judgment, seeking a stay of the case until a

ruling in the case of State v. Mansaray was issued by the Ohio Supreme Court. After the

Mansaray decision was issued, Davis filed a supplemental memorandum in support of his

motion for summary judgment.         The State filed a response, entitled “Defendant’s

Memorandum in Opposition to Plaintiff’s Supplemental Filing to the Motion for Summary

Judgment on Wrongful Imprisonment.” The docket does not reflect any motion filed by the

State of Ohio seeking summary judgment in its favor on the wrongful imprisonment claim,

or any evidentiary materials filed by the State in support of a motion. In the last paragraph

of its memorandum in opposition to Davis’s motion for summary judgment, the State of

Ohio states, “For the foregoing reasons, Defendant, the State of Ohio, respectfully
                                                                                          -5-
requests that the court deny summary judgment to Plaintiff, grant summary judgment in

its favor, dismiss Plaintiff’s complaint with prejudice, assess costs to Plaintiff, and award

any other relief deemed necessary and just by the court.” Dkt at 35. On July 10, 2014,

the trial court issued a four-sentence entry overruling Davis’s motion, granting summary

judgment in favor of the State of Ohio, and dismissing the complaint with prejudice. The

court made no findings of fact or conclusions of law, and provided no explanation of the

basis for its decision.

       {¶ 8} In his motion and on appeal, Davis argues that he has met all the

requirements of the wrongful incarceration statute, R.C. 2743.48(A)(1) through (A)(5).

Davis relies on facts established in the trial court’s own docket and previously filed court

orders, which show that he met all the requirements as follows:

       1. Davis was charged with a felony, after the effective date of the statute,

           as required by R.C. 2743.48(A)(1);

       2. Davis was found guilty of a felony, without a plea of guilt, as required by

           R.C. 2743.48(A)(2);

       3. Based on the conviction of a felony, Davis was sentenced to a term of

           imprisonment in a state correctional facility as required by R.C. 2743.48

           (A)(3);

       4. Davis’s conviction was vacated, dismissed or reversed on appeal and

           the prosecuting attorney will not or cannot seek any further appeal, and

           no criminal proceeding is pending, can be brought or will be brought

           against Davis for any acts associated with his conviction, as required by

           R.C. 2743.48(A)(4); and
                                                                                          -6-



       5. Subsequent to sentencing and during or after imprisonment, an error in

          procedure resulted in Davis’s release from prison, as required by R.C.

          2743.48(A)(5).

       {¶ 9}   The State of Ohio argues that Davis failed to meet his burden of proving

any of the five elements of R.C. 2743.48 (A), because he did not attach any evidentiary

quality materials to his summary judgment motion. The State also argues that Davis

cannot meet the requirement set forth in R.C. 2743.48(A)(5), because the error that

released him from prison was based on the reversal of the trial court’s denial of his motion

to suppress, a motion that preceded his conviction. Davis argues that two procedural

errors occurred after his conviction; first, when the appellate court reversed the overruling

of his motion to suppress; and second, an error occurred after his second conviction when

the trial court failed to release him after our reversal and remand.



               II. Davis Established that a Procedural Error Occurred

                      After his Sentencing and Imprisonment

       {¶ 10} In his first assignment of error, Davis contends as follows:

               THE TRIAL COURT ERRED WHEN IT FAILED TO GRANT

       SUMMARY JUDGMENT TO THE PLAINTIFF.

       {¶ 11} Summary judgment is appropriate when 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

when viewing the evidence most strongly in favor of the nonmoving party, and that
                                                                                       -7-
conclusion is adverse to the nonmoving party. Hudson v. Petrosurance, Inc., 127 Ohio

St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29; Sinnott v. Aqua–Chem, Inc., 116 Ohio

St.3d 158, 2007-Ohio-5584, 876 N.E.2d 1217, ¶ 29.          When reviewing a summary

judgment, an appellate court conducts a de novo review. Grafton v. Ohio Edison Co., 77

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). “De Novo review means that this court uses

the same standard that the trial court should have used, and we examine the evidence to

determine whether as a matter of law no genuine issues exist for trial.” Brewer v.

Cleveland City Schools Bd. of Edn., 122 Ohio App.3d 378, 383, 701 N.E.2d 1023 (8th

Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 119–20, 413

N.E.2d 1187 (1980). Therefore, the trial court's decision is not granted deference by the

reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704,

711, 622 N.E.2d 1153 (4th Dist.1993).

      {¶ 12} To prevail on a motion for summary judgment seeking to prove that he was

a “wrongfully imprisoned” person, Davis was required to establish that there is no genuine

issue of material fact that he has met all of the requirements of R.C. 2743.48(A)(1)

through R.C. 2743.48(A)(5). R.C. 2743.48 provides as follows:

             (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:

             (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.
                                                                                            -8-



             (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} Based on the conclusions we reached in the eight previous appellate

decisions, the record establishes that Davis has met the requirements of R.C.

2743.48(A)(1) through R.C. 2743.48(A)(4). We note that the State has not challenged
                                                                                           -9-
that Davis meets the first three requirements, but does argue that Davis has failed to

present sufficient facts to prove the fourth and fifth elements of the wrongful imprisonment

statute. The fact that the six-year statute of limitations, R.C. 2901.13, has now passed on

bringing new charges against Davis for the conduct, which occurred in 1999, and the fact

that the indictment was finally dismissed by the trial court in February, 2007, establishes,

as a matter of law, that Davis has met the requirement set forth in R.C. 2743.48(A)(4).

The remaining factor at issue is found in R.C. 2743.48(A)(5), which requires Davis to

prove that an error in procedure resulted in his release.

       {¶ 14} The Supreme Court of Ohio, in Mansaray, has held that to meet the

requirements of R.C. 2743.48(A)(5), a petitioner must prove that a procedural error

occurred after sentencing, not during trial. Mansaray v. State, 138 Ohio St. 3d 277,

2014-Ohio-0750, 6 N.E.3d 35. Davis argues that he has met the requirements of the

statute by showing two different procedural errors that occurred after his sentencing and

imprisonment. First, Davis argues that a procedural error occurred four years after his

conviction and incarceration when we reversed his conviction, holding that the trial court

erred when it overruled his motion to suppress. Second, Davis argues that another error

occurred when the trial court failed to release him upon our reversal of his conviction.

       {¶ 15} Although the Supreme Court of Ohio in Mansaray, gave us no guidance on

what constitutes a “procedural error” as that term is used in R.C. 2743.48(A)(5), it did

reject Mansaray’s argument that an error occurs subsequently to conviction when an

appellate court reverses a conviction based on an error that occurred before or during the

trial. Mansaray at ¶ 8.    A few appellate courts have applied the term to determine

whether a wrongfully imprisoned person had met the requirements of the statute, without
                                                                                            -10-
proving actual innocence. We determined in James v. State, 2d Dist. Clark No.

2013-CA-28, 2015-Ohio-623, that a procedural error occurred after sentencing, when the

federal court, within its ruling on a petition for habeas corpus, directed the trial court to

retry James within a set period of time, but the trial court failed to reschedule the trial in a

timely manner, leading directly to a dismissal of the charges, with prejudice, and James’s

release from prison. Id. at ¶ 6. We relied on a holding of the Fifth District Court of

Appeals in Nelson v. State, 5th Dist. Tuscarawas No. 2006-AP-0061, 2007-Ohio-6274,

which found that a violation of the Speedy Trial Act, R.C. 2945.71, after the initial

conviction was reversed, was a procedural error that met the final requirement of the

wrongful incarceration statute.

       {¶ 16} In State v. Holloway, 8th Dist. Cuyahoga No.100586, 2014-Ohio-2971,

¶18, the court found that Holloway did not meet the requirements of the statute with proof

that he was released from prison when his conviction was reversed based on a holding

that the trial court had erred by allowing the admission of hearsay evidence during trial.

Similarly, in Worley v. State, 8th Dist. Cuyahoga No. 100200, 2014-Ohio-1429, the court

held that an error in admitting testimony that constituted a confrontation-clause violation

during the trial did not qualify as a procedural error occurring subsequently to sentencing.

The decision in Hill v. State, 10th Dist. Franklin No. 12AP-635, 2013-Ohio-1968, was

reversed by the Supreme Court of Ohio, on the authority of Mansaray, after the Tenth

District Court of Appeals had found a qualifying error to have occurred as a result of an

illegal search and seizure prior to trial. Hill v. State, 139 Ohio St. 3d 452, 2014-Ohio-2365,

12 N.E.3d 1203. Similarly, the decision in D'Ambrosio v. State, 8th Dist. Cuyahoga No.

99520, 2013-Ohio-4472, was reversed by the Supreme Court of Ohio, on the authority of
                                                                                       -11-
Mansaray, after the Eighth District Court of Appeals had found a qualifying error to have

occurred as a result of Brady violations for the failure to disclose exculpatory evidence

prior to trial. D'Ambrosio v. State, 139 Ohio St. 3d 1416, 2014-Ohio-2487, 10 N.E.3d 736.

       {¶ 17} We conclude that Davis cannot meet the requirements of the wrongful

incarceration statute based on the error we found in Davis 3 regarding the overruling of a

motion to suppress, which occurred prior to his conviction. However, we conclude that the

second error raised by Davis does present a procedural error that only occurred after his

conviction and sentencing. Therefore, the question is whether the requirements of R.C.

2743.48(A)(5) are met by the trial court’s error in refusing to release Davis from prison

after his conviction was reversed, an error that occurred subsequent to his trial and

sentencing. The record establishes that Davis was not released until we issued a writ of

mandamus, holding that the trial court erred by not following our mandate and by not

authorizing Davis’s release from prison after we reversed his conviction. State ex rel.

Davis v. Rastatter, 2d Dist. Clark No. 06-CA-66, 2006-Ohio-5305, ¶ 7. We described the

trial court’s error in Davis 5, as follows:

               On July 26, 2006, disregarding our mandate, Respondent

       journalized an order requiring Petitioner to continue to serve two of the

       three sentences on convictions we reversed. That was not only contrary to

       the law of the case as we decided it; it was also a failure to exercise the

       discretion we had ordered Respondent to exercise.

Id. at ¶ 6.

       {¶ 18} The records from the previous appeals establish that our reversal of Davis’s

conviction occurred on March 31, 2006, but Davis was not released from prison until
                                                                                         -12-
October 13, 2006. The record shows that the case was dismissed and the bond was

released by entry dated February 7, 2007. We conclude that Davis was wrongfully

imprisoned from March 31, 2006, to October 13, 2006, as a result of the trial court’s error

in refusing to release Davis after his convictions were reversed.

       {¶ 19} Therefore, Davis did present sufficient evidence from the historical record of

his case through eight previous appeals to establish that there are no genuine issues of

material fact, and that he is entitled to judgment as a matter of law that he was wrongfully

imprisoned, meeting each of the factors set forth in R.C. 2743.48(A)(1) through R.C.

2743.48(A)(5). Davis’s first assignment of error is sustained.



                   III. Davis’s Second Assignment of Error Is Moot

       {¶ 20} In his second assignment of error, Davis contends as follows:

              THE TRIAL COURT ERRED WHEN IT GRANTED SUMMARY

       JUDGMENT TO A NONMOVANT WITHOUT FOLLOWING RULE 56 OF

       THE OHIO RULES OF CIVIL PROCEDURE.

       {¶ 21} In State ex rel. Cuyahoga Cty. Hosp. v. Bur. of Workers' Comp., 27 Ohio

St.3d 25, 28, 500 N.E.2d 1370 (1986), the Supreme Court of Ohio held “[w]hile Civ.R. 56

does not ordinarily authorize courts to enter summary judgment in favor of a non-moving

party, an entry of summary judgment against the moving party does not prejudice his due

process rights where all relevant evidence is before the court, no genuine issue as to any

material fact exists, and the non-moving party is entitled to judgment as a matter of law.”

Id., citing Marshall v. Aaron, 15 Ohio St.3d 48, 472 N.E.2d 335 (1984).

       {¶ 22} However, we need not render a conclusion on the propriety of the trial
                                                                                       -13-
court’s decision to grant summary judgment to a non-moving party. The first assignment

of error having been sustained, the second assignment of error is moot, since the

summary judgment must be reversed as a result of the sustaining of Davis’s first

assignment of error. Davis’s second assignment of error is overruled as moot.



                                    IV. Conclusion

      {¶ 23} The first assignment of error having been sustained, and the second

assignment of error having been overruled as moot, the judgment of the trial court is

Reversed, and this cause is Remanded with instructions for the entry of summary

judgment in favor of Davis, which will allow him to proceed to the Court of Claims of Ohio

for a determination of appropriate compensation. We further recommend that upon

remand, this cause be assigned to a different judge to avoid further delay or the risk of

disqualification pursuant to R.C. 2701.03.

                                      ............

DONOVAN and HALL, JJ., concur.


Copies mailed to:

William D. Bell, Sr.
Michael DeWine
Caitlyn A. Nestleroth
Hon. Douglas M. Rastatter
