[Cite as McClain v. State, 2014-Ohio-1711.]

                             IN THE COURT OF APPEALS OF OHIO
                                 TENTH APPELLATE DISTRICT


Anthony McClain,                                     :

                 Plaintiff-Appellant,                :
                                                                        No. 13AP-427
v.                                                   :              (C.P.C. No. 11CV-11-4270)

State of Ohio,                                       :             (REGULAR CALENDAR)

                 Defendant-Appellee.                 :




                                              D E C I S I O N

                                      Rendered on April 22, 2014


                 The Owen Firm, LLC, and James Owen, for appellant.

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

                  APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Plaintiff-appellant, Anthony McClain, appeals from a judgment of the
Franklin County Court of Common Pleas granting summary judgment to defendant-
appellee, the State of Ohio, on his statutory claim for a determination that he was a
wrongfully-imprisoned individual. For the following reasons, we reverse that judgment
and remand the matter for further proceedings.
I. Factual and Procedural Background
        {¶ 2} In 1995, a grand jury indicted appellant with one count of murder and a
firearm specification arising from the death of Philip White in Cincinnati, Ohio. The state
alleged that appellant murdered White after a drug buy gone bad.             A jury found him
No. 13AP-427                                                                                          2

guilty and the trial court sentenced him to 18 years to life.1 Appellant subsequently sought
and received a new trial based on newly discovered evidence. In 2006, a jury in his
second trial found appellant not guilty of murder. No other criminal charges have ever
been filed against him arising out of the murder.
          {¶ 3} On November 16, 2011, appellant filed a complaint in the trial court seeking
a determination that he was a wrongfully-imprisoned individual pursuant to R.C.
2743.48(A). The state requested summary judgment on appellant's claim. In relevant
part, the state argued that appellant did not satisfy the statutory definition of a
wrongfully-imprisoned individual because he was engaged in other criminal activity
during the incident that gave rise to White's murder. R.C. 2743.48(A)(4).2 Appellant
requested partial summary judgment on his own behalf, claiming that as a matter of law
he satisfied the first four of the five statutory requirements. R.C. 2743.48(A)(1) through
(5).
          {¶ 4} The trial court agreed with the state that appellant could not satisfy the
requirement set forth in R.C. 2743.48(A)(4) because he was attempting to purchase drugs
from White shortly before White was murdered. Accordingly, the trial court granted the
state's motion for summary judgment. The trial court also concluded that appellant's own
motion for partial summary judgment was moot in light of its ruling.
    II. The Appeal
          {¶ 5} Appellant appeals the trial court's determination that he is not a wrongfully-
imprisoned individual and assigns the following errors:
                  [1.] The Common Pleas Court erred when it found that
                  McClain failed to satisfy condition four (4) of Ohio Revised
                  Code, section 2743.48 as a matter of law by disregarding the
                  language of Gover v. State, 67 Ohio St.3d 93 (1993), which
                  interprets an "act associated with th[e] conviction" as
                  contemporaneous criminal conduct "arising out of the
                  incident for which [the plaintiff was] initially charged."

                  [2.] The Common Pleas Court erred when it failed to grant
                  McClain partial summary judgment and hold that McClain

1   See State v. McClain, 1st Dist. No. C-950859 (Aug. 28, 1996).

2 The state also argued that appellant could not prove his actual innocence. R.C. 2743.48(A)(5). The trial
court denied the state's motion on this ground, concluding that genuine issues of material fact existed as
to his innocence. The state has not appealed that decision.
No. 13AP-427                                                                          3

              meets the first two parts of condition four (4) and conditions
              one (1) through three (3) of the wrongful imprisonment
              statute, section 2743.48.

       A. Standard of Review
       {¶ 6} The trial court granted the state's motion for summary judgment. Appellate
review of summary judgment motions is de novo. Andersen v. Highland House Co., 93
Ohio St.3d 547, 548 (2001). " 'When reviewing a trial court's ruling on summary
judgment, the court of appeals conducts an independent review of the record and stands
in the shoes of the trial court.' " Abrams v. Worthington, 169 Ohio App.3d 94, 2006-
Ohio-5516, ¶ 11 (10th Dist.), quoting Mergenthal v. Star Banc Corp., 122 Ohio App.3d
100, 103 (12th Dist.1997). Civ.R. 56(C) provides that a trial court must grant summary
judgment 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 and that conclusion is adverse to the
party against whom the motion for summary judgment is made. Gilbert v. Summit Cty.,
104 Ohio St.3d 660, 2004-Ohio-7108, ¶ 6.
       B. The Wrongful Imprisonment Statute–R.C. 2743.48
       {¶ 7} The wrongful imprisonment statute, R.C. 2743.48, allows a person who
satisfies the definition of a wrongfully-imprisoned individual to commence a civil action
against the state in the Court of Claims to recover damages because of the person's
wrongful imprisonment.      R.C. 2743.48(D).     A court of common pleas must initially
determine whether the person satisfies the definition of a wrongfully-imprisoned
individual. R.C. 2743.48(B)(1). Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, ¶ 10.
              1. A Wrongfully-Imprisoned Individual
       {¶ 8} Pursuant to R.C. 2743.48(A)(1) through (5), a wrongfully-imprisoned
individual is a person 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, 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
No. 13AP-427                                                                         4

             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.

      {¶ 9} A person seeking to be declared a wrongfully-imprisoned individual must
prove each of these requirements by a preponderance of the evidence. Doss at ¶ 22. The
state does not dispute that appellant satisfied the first three requirements of the
definition. However, the state argues that he did not satisfy the requirement in R.C.
2743.48(A)(4). We disagree.
             2. R.C. 2743.48(A)(4) and Gover v. State
      {¶ 10} In 1993, the Supreme Court of Ohio interpreted the R.C. 2743.48(A)(4)
requirement in Gover v. State, 67 Ohio St.3d 93 (1993) as follows:
             "[N]o criminal proceeding * * * can be brought * * * against
             the individual for any act associated with that conviction" is of
             critical importance. This statutory language is intended to
             filter out those claimants who have had their convictions
             reversed, but were committing a different offense at the time
             that they were engaging in the activity for which they were
             initially charged. When the General Assembly enacted Ohio's
             wrongful imprisonment legislation, it "intended that the court
             of common pleas actively separate those who were wrongfully
             imprisoned from those who have merely avoided criminal
             liability."
No. 13AP-427                                                                            5

Id. at 95, quoting Walden v. State, 47 Ohio St.3d 47, 52 (1989).
       {¶ 11} Ultimately, the court held that "claimants seeking compensation for
wrongful imprisonment must prove that at the time of the incident for which they were
initially charged, they were not engaging in any other criminal conduct arising out of the
incident for which they were initially charged." Gover at 95.
       {¶ 12} Relying on Gover, the state argues that because appellant admitted to
purchasing drugs from White, and thereafter attempted to arrange another drug purchase
from White shortly before White was murdered, appellant engaged in other criminal
conduct during the incident for which he was initially charged, and therefore, cannot
satisfy the requirement in R.C. 2743.48(A)(4). We disagree.
       {¶ 13} Not only are the present facts distinguishable from the facts in Gover, the
definition of a wrongfully-imprisoned individual has changed since Gover was decided in
1993. At that time, the definition of a wrongfully-imprisoned individual included only
those individuals who could prove actual innocence of the offenses, including any lesser
included offenses.    See former version of R.C. 2743.48(A)(5).        The Gover court's
interpretation of R.C. 2743.48(A)(4) was made in that context.
       {¶ 14} In 2003, the legislature amended the definition of a "wrongfully imprisoned
individual" to include individuals who could not establish actual innocence but who were
released from prison as the result of an error in procedure.          R.C. 2743.48(A)(5).
Therefore, a wrongfully-imprisoned individual no longer includes only actually innocent
people. In light of this statutory change, this court has noted that the "observations" and
"comments" in Gover regarding the meaning of R.C. 2743.48(A)(4) "simply cannot
prevail over contradictory text in the current version of the statute." Hill v. State, 10th
Dist. No. 12AP-635, 2013-Ohio-1968, ¶ 30; LeFever v. State, 10th Dist. No. 12AP-1034,
2013-Ohio-4606, ¶ 26 (applying plain language of statute, which was "intended * * * to
bar recovery to a claimant against whom criminal proceedings are still factually
supportable and legally permissible following reversal"); Jenkins v. State, 10th Dist. No.
12AP-726, 2013-Ohio-5536, ¶ 17-18. See also James v. State, 2d Dist. No. 2013-CA-28,
2014-Ohio-140, ¶ 14-19.
       {¶ 15} Even if appellant had been engaged in other criminal conduct during the
incident for which he was initially charged, appellant would still satisfy R.C.
No. 13AP-427                                                                           6

2743.48(A)(4) if "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."   R.C. 2743.48(A)(4).    The state simply ignores this statutory language.
Jenkins at ¶ 18 (offender satisfies R.C. 2743.48(A)(4) because statute of limitations on
other charges had expired and potential charges would violate offender's rights to speedy
trial, thus no other charges could be brought). See also James at ¶ 19 (offender satisfies
R.C. 2743.48(A)(4) because the state could not retry him on charges that had been
dismissed with prejudice).
        {¶ 16} Here, the other alleged criminal acts cited by the state occurred in 1995.
Because those acts occurred almost 20 years ago, it would appear that the criminal statute
of limitations, R.C. 2901.13, prevents those charges from being brought by the prosecuting
attorney now. However, the record is unclear regarding the precise charges that could be
brought against appellant and whether those charges are barred by the applicable statute
of limitations. Accordingly, we conclude that the trial court erred by granting the state
summary judgment on the eligibility requirement of R.C. 2743.48(A)(4). Issues of fact
remain regarding whether criminal charges can or will be brought against appellant by
any prosecuting attorney for any acts associated with his conviction.         We sustain
appellant's first assignment of error and remand the matter for further proceedings on
that issue in accordance with this decision.
               3. The Other Requirements in R.C. 2743.48(A)
        {¶ 17} Appellant argues in his second assignment of error that the trial court
should have addressed the arguments in his motion for partial summary judgment that he
satisfied the other requirements in R.C. 2743.48(A)(1) through (4). We disagree.
        {¶ 18} An individual seeking to be declared a wrongfully-imprisoned individual
under R.C. 2743.48(A) must prove each of the five requirements in that statute. Doss at
¶ 22.   Because the trial court decided that appellant failed to satisfy one of those
requirements, it was not required to address the others. We note, however, that the state
did not dispute that appellant satisfied the first three requirements. Indeed, appellant
was indicted for a felony, satisfying R.C. 2743.48(A)(1), was found guilty of but did not
plead guilty to a felony, satisfying R.C. 2743.48(A)(2), and was sentenced to an indefinite
or definite term of imprisonment as a result, satisfying R.C. 2743.48(A)(3). Additionally,
No. 13AP-427                                                                               7

his murder conviction was reversed on appeal after the appellate court ordered a new trial
and the state could not appeal his acquittal after his second trial, satisfying the other parts
of R.C. 2743.48(A)(4) not addressed above. We also note that appellant must still satisfy
the requirements contained in R.C. 2743.48(A)(5), which has not been addressed by the
trial court.
       {¶ 19} We overrule appellant's second assignment of error.
IV. Conclusion
       {¶ 20} We overrule appellant's second assignment of error, but sustain his first
assignment of error. Accordingly, we reverse the judgment of the Franklin County Court
of Common Pleas and remand the matter for further proceedings to determine whether
appellant is a wrongfully-imprisoned individual under R.C. 2743.48(A).
                                   Judgment reversed; cause remanded with instructions.

                            TYACK and T. BRYANT, JJ., concur.

               T. BRYANT, J., retired, of the Third Appellate District,
               assigned to active duty under authority of Ohio Constitution,
               Article IV, Section 6(C).
