[Cite as Johnson v. State, 2012-Ohio-3964.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 98050




                                    LESTER JOHNSON

                                                     PLAINTIFF-APPELLANT

                                               vs.



                                      STATE OF OHIO
                                                           DEFENDANT-APPELLEE




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-764051

        BEFORE:          Jones, J., Blackmon, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                    August 30, 2012
ATTORNEY FOR APPELLANT

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


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Brian R. Gutkoski
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Plaintiff-appellant, Lester Johnson, 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

       {¶2} In March 1990, Johnson was convicted of rape in Case No. CR-247259.

The trial court sentenced Johnson to a prison term and labeled him 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.”      As a result of being labeled a sexually oriented offender, Johnson

was required to annually report his address to the state of Ohio for ten years upon his

release from prison.

       {¶3} 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 Johnson was reclassified as a Tier I offender, and upon his

release from prison he was required to report and verify his address every 90 days for life.

       {¶4} In December 2008, Johnson was indicted for failing to verify his address

under the AWA in violation of R.C. 2950.06(F), a first degree felony. In July 2009,

Johnson pleaded guilty to the charge and was sentenced to a three-year prison term.
          {¶5} Subsequently, 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. Thus, under

the authority of Williams, Johnson filed a motion to withdraw his guilty plea for failure to

verify.     The trial court granted his motion and vacated his conviction for failure to

verify. Johnson was released from prison on August 30, 2011, after having served

approximately two years and seven months of his three-year sentence.

          {¶6} In September 2011, Johnson 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. As grounds for its motion, the state argued that

Johnson was not a wrongfully imprisoned individual because he pleaded guilty to the

offense for which he was charged.         The trial court agreed, denied Johnson’s summary

judgment motion, and granted the state’s motion for summary judgment.

          {¶7} Johnson’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

          {¶8} In his assigned error, Johnson contends that the trial court erred in granting

the state’s summary judgment motion upon its finding that Johnson’s guilty plea for

failure to verify barred a declaration that he was a wrongfully imprisoned individual.
We agree.

        {¶9} 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 (internal

citations omitted). 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.

        {¶10} 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.

      {¶11} According to the state, because Johnson pleaded guilty to the failure to

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

(A)(2) of the statute. Johnson, on the other hand, contends that because Ohio’s version

of the AWA was determined to be unconstitutional as applied to him, he pleaded guilty to

a nonexistent crime. Thus, according to Johnson, his plea was void because it was not
knowingly, voluntarily, and intelligently made. Johnson contends that a void guilty plea

has no legal effect and, therefore, cannot preclude his right to present a claim for

wrongful imprisonment under R.C. 2743.48. Johnson also contends that because R.C.

2743.48 is a remedial statute that should be liberally construed to correct manifest

injustice, we should find that its requirement that a defendant not have pleaded guilty to a

crime be an ambiguity that we resolve in his favor. In support of his contentions,

Johnson relies on State v. Moore, 165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452

(4th Dist.), and this court’s decision in Dunbar v. State, 8th Dist. No. 97364,

2012-Ohio-707.

       {¶12} In Moore, the 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.

       {¶13} 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.

       {¶14} 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.

       {¶15} Thus, the Fourth District held that the defendant’s plea was not knowingly,

intelligently, and voluntarily made, and was therefore void.   “Because a void plea has no

effect at law, it does not exist for purposes of determining whether a person qualifies to

seek compensation pursuant to R.C. 2743.48.” Id. at ¶ 24.        Accordingly, the court of

appeals found that the trial court did not err in finding the defendant was a wrongfully

imprisoned individual.

       {¶16} This court recently followed Moore in Dunbar.        In Dunbar, the defendant

was originally charged with domestic violence. The charges resulted from him striking

his live-in fianceé in the face and head, twisting her legs, and kicking her.   Immediately

after the incident, the defendant became remorseful and apologized.      The defendant left

the victim alone in the house for extended periods of time, but told her not to leave the

house or answer the door. According to the victim, the defendant did not want anyone

to see her because of the way her faced looked.
      {¶17} The defendant pleaded no contest to the original domestic violence charge

and was sentenced to 180 days in jail. While the defendant was serving his sentence, he

was indicted on three counts of abduction and one count of domestic violence; the

indictment was based on the same incident described above.        The defendant pleaded

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

court accepted the plea, but sentenced the defendant to a two-year prison term.

      {¶18} On appeal, this court found that the defendant’s plea was knowingly,

intelligently, and voluntarily made, but that the trial court erred in imposing a prison

sentence in contravention of the plea agreement without affording the defendant an

opportunity to withdraw his plea.          State v. Dunbar, 8th Dist. No. 87317,

2007-Ohio-3261, ¶ 141. (“Dunbar I.”)       This court directed that the defendant’s plea be

vacated.

      {¶19} On remand, the case proceeded to a jury trial.     At the time of the trial, the

defendant had been imprisoned for more than two years.       The jury found the defendant

guilty of one count of abduction, and the trial court sentenced him to a five-year prison

term. On appeal, this court found that the evidence was insufficient to support the

abduction conviction and reversed it.        State v. Dunbar, 8th Dist. No. 92262,

2010-Ohio-239, ¶ 30 (“Dunbar II”).      The defendant was discharged from prison and

filed an action seeking a declaration that he was a wrongfully imprisoned individual

under R.C. 2743.48.     The trial court granted the defendant’s motion for summary

judgment, finding that he was a wrongfully imprisoned individual, and the state appealed.
       {¶20} The issue on appeal hinged on the defendant’s plea to abduction (prior to

this court vacating it).   The state contended that the plea barred the defendant       from

being a wrongfully imprisoned individual. Following Moore’s liberal construction of

the statute, this court found that the plea did not bar the defendant from being a

wrongfully imprisoned individual because it was void. Dunbar, supra, 2012-Ohio-707

(“Dunbar III”).   “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 compensation under R.C.

2743.48.”   Id. at ¶ 16.

       {¶21} Thus, on the authority of Moore and Dunbar III, Johnson’s plea was void,

and he was not precluded under R.C. 2743.48(A)(2) from a declaration that he was a

wrongfully incarcerated individual.

       {¶22} Further, this court recently reached the same result again in Ballard v. State,

8th Dist. No. 97882, 2012-Ohio-3086.           In Ballard, under similar circumstances

presented here, the trial court granted the state’s motion for summary judgment, finding

that the defendant was foreclosed     from relief under R.C. 2743.48 because of his plea.

This court reversed, citing Moore and Dunbar.        This court noted in particular that the

purpose of R.C. 2743.48 “would not be served by withholding relief from individuals

who were induced to enter a guilty plea ‘that carries no force or effect at law.’” Ballard at

¶ 26, quoting Moore at ¶ 22. Accordingly, this court held in Ballard that a “void guilty

plea ‘does not exist for purposes of determining whether a person has the right to see[k]

compensation under R.C. 2743.48.’” Id. at ¶ 27, quoting Moore at ¶ 24.
       {¶23} Following this court’s decisions in Dunbar III and Ballard, as well as the

Fourth Appellate District’s decision in Moore, we find that Johnson was a wrongfully

incarcerated individual under R.C. 2743.48 and, therefore, reverse the trial court’s

judgment.

       {¶24} Judgment reversed; case remanded.

       It is ordered that appellant recover from appellee 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.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, A.J., CONCURS;
KATHLEEN ANN KEOUGH, J., DISSENTS WITH
SEPARATE OPINION


KATHLEEN ANN KEOUGH, J., DISSENTING:

       {¶25} Respectfully, I dissent. I agree that R.C. 2743.48(A) should be construed

liberally to effect its remedial intent.   Nevertheless, I would find that in this case,

Johnson’s guilty plea bars a determination that he was a wrongfully imprisoned

individual.
       {¶26} Unlike in State v. Moore, 165 Ohio App.3d 538, 2006-Ohio-114, 847

N.E.2d 452 (4th Dist.) and Dunbar v. State, 8th Dist. No. 97364, 2012-Ohio-707, relied

upon by the majority, Johnson’s plea was not void when it was made, even though it was

subsequently vacated. Moore’s plea was void because he was misled by counsel and

advised to plead guilty despite the existence of exculpatory evidence that implicated

another individual; thus, it was not made knowingly, voluntarily, or intelligently.

Dunbar’s plea was likewise void because the trial court did not advise him prior to

entering his plea that the court might impose a prison sentence, despite the negotiated

plea for community control sanctions; hence, it also was not made knowingly, voluntarily,

or intelligently.

       {¶27} Here, however, Johnson was represented by counsel when he entered his

plea, and there is no evidence whatsoever that he was misled or not given all the

information necessary to evaluate the advisability of entering a plea. The record reflects

that he was given notice of the charge and an opportunity to be heard, and then entered

his plea. Quite simply, unlike the facts in Moore and Duncan, there is nothing in this

record to demonstrate that Johnson was “wrongfully induced” to enter a guilty plea, or

that he did not enter his plea knowingly, voluntarily, and intelligently. Moore, 165 Ohio

App.3d 538, 2006-Ohio-114, 847 N.E.2d 452, ¶ 23.

       {¶28} The majority’s reliance on Ballard v. State, 8th Dist. No. 97882,

2012-Ohio-3086, is also misplaced. In Ballard, this court stated that “a void guilty plea

‘does not exist for purposes of determining whether a person has the right to see[k]
compensation under R.C. 2743.48.’” Id. at ¶ 27, quoting Moore at ¶ 24. But Johnson’s

plea was not void.

       {¶29} Likewise, Ballard’s pronouncement that the purpose of R.C. 2743.48

“would not be served by withholding relief from individuals who were induced to enter a

guilty plea ‘that carries no force or effect at law’” is not applicable to this case. As

discussed above, Johnson was not pressured or “induced” to enter his guilty plea; he did

so knowingly, voluntarily, and intelligently.

       {¶30} Furthermore, post-plea changes in the law do not render an otherwise valid

plea involuntary or unknowing.

      Absent misrepresentation or other impermissible conduct by state agents, *
      * * a voluntary plea of guilty intelligently made in the light of the then
      applicable law does not become vulnerable because later judicial decisions
      indicate that the plea rested on a faulty premise.
Brady v. United States, 397 U.S. 742, 757, 25 L.Ed.2d 747, 90 S.Ct. 1463 (1970); see

also United States v. Bradley, 400 F.3d 459, 463 (6th Cir.2005). “The possibility of a

favorable change in the law occurring after a plea is one of the normal risks that

accompanies a guilty plea.” United States v. Sahlin, 399 F.3d 27, 31 (1st Cir.2005);

United States v. Bradley, 400 F.3d 459, 463 (6th Cir.2005). Such possibility does not

mean that the defendant was pressured or coerced to plead guilty, nor does it render his

plea void. Sahlin at 31.

       {¶31} Johnson knowingly and voluntarily pled guilty under the law in effect at the

time of his plea; he was not coerced or pressured to do so.1 Thus, although the Ohio


       Johnson could have challenged the validity of the law he was charged with violating or
       1
Supreme Court determined after his plea that Ohio’s AWA was unconstitutional as

applied to him, his plea was not void when it was made.

       {¶32} “If the legislature had intended all persons whose convictions are reversed *

* * to receive compensation for wrongful imprisonment, [it] would have written R.C.

2743.48 in such a manner.” Ratcliff v. State, 94 Ohio App.3d 179, 182, 640 N.E.2d 560

(4th Dist.1994), appeal not allowed, 70 Ohio St.3d 1426, 638 N.E.2d 88 (1994). Instead,

R.C. 2743.48 expressly provides that a claimant seeking a determination that he is a

wrongfully imprisoned individual must satisfy each of the provisions of R.C.

2743.48(A)(1) through (5). Accordingly, I would find that under R.C. 2743.48(A)(2),

Johnson’s knowing, voluntary, and intelligent guilty plea precludes a determination that

he is a wrongfully imprisoned individual under the statute.




appealed his conviction.   He did neither.
