[Cite as Dunbar v. State, 2012-Ohio-707.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97364




                                       LANG DUNBAR
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      STATE OF OHIO
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-734290

        BEFORE: Cooney, J., Blackmon, A.J., and Sweeney, J.

        RELEASED AND JOURNALIZED: February 23, 2012
ATTORNEYS FOR APPELLANT

William D. Mason
Cuyahoga County Prosecutor

Michael A. Dolan
Assistant County Prosecutor
Justice Center
1200 Ontario St., 8th Floor
Cleveland, OH 44113


ATTORNEY FOR APPELLEE

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


       COLLEEN CONWAY COONEY, J.:

       {¶1}    Defendant-appellant, the state of Ohio (“the State”), appeals the trial court’s

determination that plaintiff-appellee, Lang Dunbar (“Dunbar”), was a “wrongfully imprisoned

individual” pursuant to R.C. 2743.48. We find no merit to the appeal and affirm.

       {¶2}    The facts giving rise to this declaratory judgment action are not in dispute. On

November 7, 2004, Dunbar struck his live-in fiancée, Davida Moore (“Moore”), in the face and

head. He also twisted her legs and kicked her. Immediately following the incident, Dunbar

became remorseful, apologized, and instructed Moore not to leave the house or answer the door.

       {¶3}    On November 20, 2004, Moore filed a complaint against Dunbar with the

Cleveland police, and Dunbar was subsequently charged with domestic violence. Dunbar pled

no contest to the domestic violence charge in Cleveland Municipal Court, and the court

sentenced him to 180 days in jail.
        {¶4}    While Dunbar was serving his jail sentence, the Cuyahoga County Grand Jury

indicted him on three counts of abduction and one count of domestic violence arising from the

same November 7, 2004 incident. Dunbar negotiated a plea agreement wherein he agreed to

plead guilty to one count of abduction in exchange for community control sanctions. The court

accepted the plea with full knowledge of its terms but nevertheless imposed a two-year sentence.

 On appeal, this court found that Dunbar knowingly, intelligently, and voluntarily entered into

the plea agreement and pled guilty in accordance with its terms. However, this court determined

that the trial court erred in imposing a prison sentence in contravention of the plea agreement

without affording Dunbar the opportunity to withdraw his plea. State v. Dunbar, 8th Dist. No.

87317, 2007-Ohio-3261, ¶ 141 (“Dunbar I”). Therefore, we directed that his plea be vacated.

Id. at ¶ 193.

        {¶5}    On remand, a jury convicted Dunbar of one count of abduction, and the court

sentenced him to a five-year prison term.1 This court again reversed Dunbar’s conviction, this

time because it found there was insufficient evidence to support the conviction.                             State v.

Dunbar, 8th Dist. No. 92262, 2010-Ohio-239, ¶ 30 (“Dunbar II”).

        {¶6}    In our opinion in Dunbar II, we recounted Moore’s testimony that after the

domestic violence incident, Dunbar told her not to leave the house or answer the door “because

of the way [her] face looked.” Moore stated that during the relevant time period, Dunbar never

threatened her, was not violent toward her, but instead, repeated ly apologized for the incident.

Moore further testified that, during the relevant time period, Dunbar left her alone in the house

for extended periods of time. Because there was no evidence that Dunbar locked Moore in the


        1
        Dunbar had been in prison for more than two years when the jury trial commenced in September 2008.
house each time he left, this court concluded that Moore had the opportunity to leave or summon

help, and thus there was insufficient evidence to support the abduction conviction. Dunbar was

subsequently ordered discharged from prison.

       {¶7}    On August 16, 2010, Dunbar filed the instant case seeking a declaration that he

was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48(A). This determination is a

prerequisite for filing a claim for damages against the State in the Court of Claims. R.C.

2743.48(D).    The parties submitted cross-motions for summary judgment.           The trial court

granted Dunbar’s motion for summary judgment, declared him a “wrongfully imprisoned

individual,” and denied the State’s motion for summary judgment. The State now appeals,

raising two assignments of error.

       {¶8}    In its first assignment of error, the State argues the trial court erred in granting

Dunbar’s motion for summary judgment and declaring him a “wrongfully imprisoned

individual.” The State contends that Dunbar’s initial guilty plea to the abduction charge

precludes him from qualifying as a “wrongfully imprisoned individual.”              In its second

assignment of error, the State argues the trial court erred in denying its motion for summary

judgment because Dunbar failed to prove his innocence by a preponderance of the evidence. We

address these two assigned errors together because they are interrelated.

       {¶9}    An appellate court reviews a trial court’s decision on a motion for summary

judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241

(1996). Summary judgment is appropriate when, construing the evidence most strongly in favor

of the nonmoving party, (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, that conclusion being adverse to the nonmoving party.       Zivich v. Mentor Soccer

Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998), citing Horton v. Harwick Chem.

Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three of the syllabus.

       {¶10} Prior to filing suit in the Court of Claims for damages for wrongful imprisonment,

a petitioner must obtain a declaratory judgment in the court of common pleas certifying that the

petitioner was a “wrongfully imprisoned individual.” R.C. 2743.48. To obtain the declaratory

judgment, the petitioner must establish that: (1) he was convicted of a felony; (2) he was

sentenced to prison for that conviction; (3) the conviction was vacated, dismissed, or reversed;

(4) no further prosecution was attempted or allowed for that conviction or any act associated with

that conviction; and (5) the offense of which the petitioner was found guilty was not committed

by the petitioner or was not committed at all. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d

70, 701 N.E.2d 1002 (1998); R.C. 2305.02; R.C. 2743.48(A).

       {¶11} However, the petitioner seeking to establish a claim for wrongful imprisonment

must produce more evidence than a judgment of acquittal, which is merely a judicial finding that

the state did not prove its case beyond a reasonable doubt. Ellis v. State, 64 Ohio St.3d 391,

393, 596 N.E.2d 428 (1992), citing Walden v. State, 47 Ohio St.3d 47, 547 N.E.2d 962 (1989).

The wrongful imprisonment statutes were intended to compensate the innocent for wrongful

imprisonment. They are not intended to compensate those who have merely avoided criminal

liability. Walden at 52; Gover v. State, 67 Ohio St.3d 93, 95, 616 N.E.2d 207 (1993). The

petitioner carries the burden of proof in affirmatively establishing his or her innocence, by a

preponderance of the evidence, under R.C. 2743.48(A)(5).
        {¶12} The State argues that by entering a guilty plea in his first prosecution, Dunbar

forfeited any ability to petition for wrongful imprisonment status. In support of its argument, the

State emphasizes the fact that R.C. 2743.48(A)(2) requires that the petitioner be “found guilty of,

but did not plead guilty to, the particular charge.” Dunbar, on the other hand, argues that

because his guilty plea was vacated by this court, it cannot bar his right to present a claim for

wrongful imprisonment.

        {¶13} In State v. Moore, 165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452 (4th

Dist.), the appellate court was confronted with the same issue presented here. Moore pled guilty

to murder in 1995. His counsel had failed to inform him that the state’s gunshot-residue tests

showed that Moore tested negative for gunshot residue and that another person, Lisa Mullett,

tested positive for gunshot residue.    On advice of counsel and without knowledge of the

gunshot-residue tests, Moore pled guilty and was sentenced to 15 years to life in prison. When

Moore learned about the tests, he filed a motion for postconviction relief and a motion to

withdraw his guilty plea. The trial court granted the motion, finding that he did not receive the

effective assistance of counsel and that he did not knowingly, intelligently, and voluntarily enter

his plea.

        {¶14} Moore’s case proceeded to trial in July 2004. Two witnesses testified that the

gunshot-residue tests indicated that Mullett, not Moore, had fired the gun. Additionally, two

other witnesses testified that they had overheard Mullett admit that she committed the murder.

The jury found Moore not guilty.

        {¶15} In August 2004, Moore filed a wrongful imprisonment claim under R.C. 2743.48.

 Based on the transcript and exhibits from Moore’s criminal trial, the court issued a judgment
entry declaring Moore a “wrongfully imprisoned individual.” The state appealed, arguing that

the Moore could not be declared a “wrongfully imprisoned individual” because he had previously

pled guilty to the charge for which he was imprisoned. In affirming the trial court’s judgment,

the Moore court explained that because his guilty plea was void, it carried no force or effect at

law. Id., 165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452, ¶ 22, (4th Dist.). The Moore

court further explained:

       R.C. 2743.48 is ambiguous to the extent that it does not explicitly state whether
       only valid guilty pleas will preclude recovery, or whether guilty pleas that are
       void will also preclude recovery. R.C. 2743.48’s purpose of redressing existing
       wrongs would not be served by withholding relief from individuals who were
       wrongfully induced to enter a guilty plea. The narrowest interpretation of R.C.
       2743.48, which would preclude recovery even if the guilty plea is nugatory and
       has no effect at law, would thwart the remedial goals of the statute. On the other
       hand, 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.

       {¶16} We agree with this liberal construction of R.C. 2743.48. 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.

       {¶17} In the instant case, this court vacated Dunbar’s guilty plea because the trial court

failed to abide by the parties’ plea agreement, which it had approved, without advising Dunbar

that it might impose a prison sentence in contravention of the plea agreement. This court

explained that “‘[w]here a sentence recommendation is an integral part of a plea agreement, the

failure to inform the defendant of potential changes may result in a plea that was not entered into

knowingly, voluntarily, or intelligently.’” Dunbar I, 8th Dist. No. 87317, 2007-Ohio-3261, at
¶ 139, quoting State v. Algood, 9th Dist. Nos. 90CA004903, 90CA004904, 90CA004905 1991

WL 116269 (June 19, 1991). Thus, when the trial court decided to deviate from the plea

agreement, it should have clearly advised Dunbar of its intention, and allowed him to reconsider

his plea. Id. at ¶ 140. Without knowledge that the court might impose a prison sentence,

Dunbar’s plea was not entered knowingly, voluntarily, and intelligently, was void, and therefore,

does not preclude his wrongful imprisonment claim.

       {¶18} The State also argues that Dunbar’s contemporaneous criminal conduct prevents

him from qualifying as a “wrongfully imprisoned individual” under R.C. 2743.48. In Gover,

67 Ohio St.3d 93, 616 N.E.2d 207, the Ohio Supreme Court explained that R.C. 2743.48 “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.”    Id. at 95.    For that reason, the “requirement that ‘no criminal

proceeding * * * can be brought * * * against an individual for any act associated with that

conviction’ is of critical importance.” Id.

       {¶19} Gover filed a wrongful imprisonment claim after his safecracking conviction was

reversed. The safecracking charge was brought against him after a glass window in a restaurant

had been broken and Gover, who was observed leaving the scene, possessed objects stolen from

the safe when he was arrested a short time later. On appeal, the court reversed his conviction

because Gover had not removed the items from a safe. The Ohio Supreme Court remanded the

wrongful imprisonment case to the trial court because the record was “devoid of any evidence

that the trial court considered whether [Gover] committed other offenses.” Because Gover could
be subject to further prosecution for other crimes arising from the same incident, the Supreme

Court refused to declare him a “wrongfully imprisoned individual.”

       {¶20} Dunbar committed the domestic violence offense before the actions involving the

alleged abduction and had completed his sentence for the domestic violence conviction before

the abduction conviction arose. Once someone completes a prison sentence and has “served his

debt to society,” he is entitled to freedom.        State v. Bradley, 8th Dist. No. 79094,

2002-Ohio-3540, ¶ 10.      Once Dunbar completed his sentence for domestic violence, any

additional prison time he served for a crime he did not commit constituted wrongful

imprisonment, because no further criminal prosecution could be brought against him.

       {¶21} The State also argues that the court erred by not requiring Dunbar to prove his

innocence   by a preponderance of the evidence.        As previously noted, to qualify as a

“wrongfully imprisoned individual” under R.C. 2743.48, the petitioner must not only be

acquitted of the crime for which he was imprisoned, but he must also prove his innocence by a

preponderance of the evidence. Walden, 47 Ohio St.3d at 52, 547 N.E.2d 962.

       {¶22} The State suggests that the evidence in the record is insufficient to establish

Dunbar’s innocence by a preponderance of the evidence. As previously mentioned, a petitioner

seeking to establish a claim for wrongful imprisonment must produce more evidence than a

judgment of acquittal, which is simply a judicial finding that the State did not prove its case

beyond a reasonable doubt. Ellis, 64 Ohio St.3d at 393, 596 N.E.2d 428. Hence, the State

asserts: “the very same transcript of a criminal proceeding which results in a conviction and

which is subsequently overturned on the weight or sufficiency of the evidence may nonetheless

be insufficient to support a claimant’s innocence by a preponderance of the evidence.” Moore,
165 Ohio App.3d at 543, 2006-Ohio-114, 847 N.E.2d 452 (4th Dist.), citing Chandler v. State,

95 Ohio App.3d 142, 149,          641 N.E.2d 1382 (8th Dist.1994).       However, implicit in that

statement is the idea that the record may well be sufficient, depending on the facts of the case.

           {¶23} This court recently upheld the trial court’s grant of summary judgment in an

analogous case. See Doss v. State, 8th Dist. No. 96452, 2011-Ohio-6429. In Doss, we found

the uncontradicted evidence in the record supported Doss’s motion under R.C. 2743.48(A). Id.

at ¶ 17.

           {¶24} In the instant case, the trial court relied on the facts set forth in Dunbar II, 8th

Dist. No. 92262, 2010-Ohio-239, when it found that Dunbar met his burden of proving his

innocence. In Dunbar II, this court found there was insufficient evidence to support Dunbar’s

abduction conviction because the victim testified that Dunbar never restrained her but left for

long periods of time during which she was free to leave the house. R.C. 2905.02(A)(2), which

governs abduction, states that “[n]o person shall * * * [b]y force or threat, restrain the liberty of

another person under circumstances that create a risk of physical harm to the victim or place the

other person in fear.” “Fear” is defined as “a distressing emotion aroused by impending danger.”

Websters Unabridged Dictionary 1960 (2d Ed.1998).

           {¶25} The State suggests that the trial court’s reliance on Dunbar II was improper and

that the record is otherwise devoid of any evidence proving his innocence.             However, an

appellate court may take judicial notice of a court’s finding in another case. Kirshner v.

Shinaberry, 64 Ohio App.3d 536, 582 N.E.2d 22 (6th Dist.1989). See also In re Lassiter, 101

Ohio App.3d 367, 374, 655 N.E.2d 781 (2d Dist.1995). This rule comports with other doctrines

in Ohio jurisprudence such as collateral estoppel and law of the case, which are intended to avoid
the possibility of inconsistent results and preserve the integrity of the courts. Accordingly, the

trial court could rely on the facts established in Dunbar II to find that Dunbar proved his

innocence by a preponderance of the evidence.

       {¶26} Accordingly, we overrule both assignments of error.

       {¶27} Judgment affirmed.

       It is ordered that appellee recover of 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



       PATRICIA A. BLACKMON, A.J., and JAMES J. SWEENEY, J., CONCUR
