[Cite as Johnston v. State, 2016-Ohio-4761.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT



Dale Johnston,                                    :

                 Plaintiff-Appellee,              :
                                                                  No. 12AP-1022
v.                                                :        (C.P.C. No. 11CVH-12-15900)

State of Ohio,                                    :       (REGULAR CALENDAR)

                 Defendant-Appellant.             :




                                         D E C I S I O N

                                      Rendered on June 30, 2016



                 The Owen Firm, LLC, and James D. Owen, for appellee.

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

                   APPEAL from the Franklin County Court of Common Pleas
                       ON REMAND from the Supreme Court of Ohio

SADLER, J.
        {¶ 1} On October 28, 2015, the Supreme Court of Ohio in Johnston v. State, 144
Ohio St.3d 311, 2015-Ohio-4437 ("Johnston II"), reversed the decision of this court in
Johnston v. State, 10th Dist. No. 12AP-1022, 2014-Ohio-1452 ("Johnston I"), and
remanded the case to this court to "address the assignments of error it previously
determined moot." Johnston II at ¶ 25. On consideration of the remaining assignments
of error, we reverse the judgment of the trial court.
No. 12AP-1022                                                                                2


I. FACTS AND PROCEDURAL HISTORY
       {¶ 2} In Johnston I, defendant-appellant, State of Ohio, appealed from a
judgment of the Franklin County Court of Common Pleas declaring plaintiff-appellee,
Dale Johnston, a wrongfully imprisoned individual pursuant to R.C. 2743.48(A). The
Supreme Court accepted the state's discretionary appeal on the following proposition of
law: "The divided court in the Tenth District erred when it, for the first time, held in direct
contravention of the express wishes of the Ohio General Assembly, that the 2003
amendments to R.C. 2743.48 (governing an 'error in procedure') do not apply
retroactively." Johnston II at ¶ 12. The Supreme Court set out the relevant facts and
procedural history of this case as follows:
              In September 1983, almost a year after the discovery of the
              bodies of Cooper and Schultz, a Hocking County grand jury
              indicted Johnston on two counts of aggravated murder with
              death penalty specifications. At trial, a three judge panel
              found him guilty of all charges and specifications and
              sentenced him to death on each count. The appellate court
              overturned Johnston's convictions and remanded the cause
              for a new trial. We affirmed that ruling because the trial court
              had abused its discretion in permitting a witness to testify
              about his posthypnosis recollection and the state had
              committed a Brady violation, Brady v. Maryland, 373 U.S.
              83, 87 * * * (1963), by failing to disclose evidence that
              suggested that the victims may have been murdered at a
              location different from that alleged by the state and that
              someone else may have been responsible for the murders.

              On remand, the Hocking County Common Pleas Court
              transferred the case to Hamilton County for trial, which then
              transferred to Franklin County. The parties jointly filed a
              motion with the trial court to determine the admissibility of
              the testimony of the witness who had been hypnotized. In
              response, the court held that the hypnotically refreshed
              testimony was inadmissible. The court also granted
              Johnston's motion to suppress statements he had made
              during an interrogation, along with evidence seized from him
              and his residence. That suppression ruling was appealed and
              affirmed by the Tenth District Court of Appeals on May 10,
              1990. The next day, the state nolled the indictment against
              Johnston, and thereafter, he was released from the
              penitentiary.
No. 12AP-1022                                                                        3


              Subsequently, Johnston filed a wrongful imprisonment claim
              pursuant to R.C. 2743.48, but the common pleas court
              dismissed it in 1993, concluding that Johnston had not proved
              by a preponderance of the evidence that he did not commit
              the murders.

              On April 9, 2003, the General Assembly amended R.C.
              2743.48 and expanded the definition of wrongfully
              imprisoned individuals to include those who had been
              released due to a procedural error subsequent to sentencing.
              Sub.S.B. No. 149, 149 Ohio Laws, Part II, 3545. Developments
              in the investigation of the deaths of Cooper and Schultz
              culminated in Chester McKnight pleading guilty to their
              aggravated murders on December 18, 2008.

              Based on McKnight's plea, Johnston filed a second claim for
              wrongful imprisonment, alleging that he was innocent and
              also claiming that errors in procedure, including the Brady
              violations, resulted in his release. Both parties filed for
              summary judgment. The trial court accepted Johnston's
              procedural error argument, rejected the state's position that
              the 2003 amendment to R.C. 2743.48 was not retroactive,
              granted Johnston's motion for summary judgment, and
              declared Johnston to be a wrongfully imprisoned individual.

              The state appealed, and the Tenth District Court of Appeals
              reversed the trial court and held that the amendment did not
              apply retroactively to Johnston's claim and that its ruling
              rendered moot the state's other assignments of error asserting
              that a six-year statute of limitations applied to Johnston's
              claim, that res judicata barred Johnston from relitigating his
              actual innocence claim, and that Johnston had not satisfied
              the fourth and fifth prongs of the wrongful imprisonment
              statute. The appellate court later denied Johnston's
              application for en banc consideration and his motion to certify
              a conflict, and it declined to consider the state's contention
              that the wrongful imprisonment claim also failed based on our
              newly released decision in Mansaray v. State, 138 Ohio St.3d
              277, 2014-Ohio-750.

(Citations omitted.) Id. at ¶ 6-11.
       {¶ 3} In reversing the decision of this court in Johnston I, the Supreme Court
concluded in Johnston II that "[t]he 2003 amendment to R.C. 2743.48 expanded the
definition of a wrongfully imprisoned individual to include those able to demonstrate a
No. 12AP-1022                                                                              4


procedural error occurring subsequent to sentencing that resulted in the inmate's release
and applies retroactively to permit litigation of claims on that basis."       Id. at ¶ 24.
Accordingly, the Supreme Court reversed the decision of this court and remanded the case
for us to consider the state's remaining assignments of error.
       {¶ 4} This court subsequently issued a journal entry stating, pursuant to the
mandate of the Supreme Court reversing the judgment of this court, this matter is hereby
resubmitted to the court for consideration of appellant's first, third, fourth, and fifth
assignments of error.
       {¶ 5} The parties submitted no supplemental memoranda to this court following
remand, nor did they request further argument. Accordingly, we will decide the appeal
based on the written briefs previously submitted by the parties and without further oral
argument. The assignments of error remanded to this court for consideration read as
follows:
              [1.] The trial court committed reversible error by declaring
              the six (6) year statute of limitations for wrongful
              imprisonment cases, pursuant to Nelson v. State, 5th Dist.
              No. 2006 AP 10 0061, 2007-Ohio-6274, ¶21, did not apply to
              Appellee.

              [3.] The trial court committed reversible error by declaring
              Appellee was not barred by the doctrine of res judicata from
              re-litigating his actual innocence claim, previously passed
              upon by a court of competent jurisdiction in 1993.

              [4.] The trial court committed reversible error by declaring
              Appellee satisfied the fourth prong of the wrongful
              imprisonment statute, R.C. § 2743.48(A)(4).

              [5.] The trial court committed reversible error by declaring
              Appellee satisfied the fifth prong of the wrongful
              imprisonment statute, R.C. § 2743.48(A)(5).

II. STANDARD OF REVIEW
       {¶ 6} The trial court granted Johnston's motion for summary judgment and
declared him a wrongfully imprisoned individual pursuant to R.C. 2743.48. Summary
judgment is proper only when the party moving for summary judgment demonstrates that
(1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as
No. 12AP-1022                                                                              5


a matter of law, and (3) reasonable minds could come to but one conclusion and that
conclusion is adverse to the party against whom the motion for summary judgment is
made, that party being entitled to have the evidence most strongly construed in that
party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d
181, 183 (1997).
       {¶ 7} Appellate review of a summary judgment motion is de novo. Helfrich v.
Allstate Ins. Co., 10th Dist. No. 12AP-559, 2013-Ohio-4335, ¶ 7, citing Helton v. Scioto
Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). " '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.' " Id., quoting Mergenthal
v. Star Banc Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997).
III. LEGAL ANALYSIS
       A. Third Assignment of Error (Res Judicata)
       {¶ 8} Because the state's third assignment of error raises the question whether the
1993 judgment in Johnston's prior wrongful imprisonment action bars him from
relitigating the claim in this case, we will consider the third assignment of error first. In
its third assignment of error, the state argues that the trial court erred when it found that
res judicata did not bar Johnston's second action for wrongful imprisonment based on a
claim of actual innocence.
       {¶ 9} There is no dispute that in State v. Johnston, Hocking C.P. No. 91-CIV-186
(Aug. 9, 1993), Johnston sought a declaration of wrongful imprisonment based on a claim
of actual innocence, and Judge McQuade entered judgment in favor of the state as to that
claim. " 'The doctrine of res judicata encompasses the two related concepts of claim
preclusion, also known as * * * estoppel by judgment, and issue preclusion, also known as
collateral estoppel.' " State ex rel. Nickoli v. Erie MetroParks, 124 Ohio St.3d 449, 2010-
Ohio-606, ¶ 21, quoting O'Nesti v. DeBartolo Realty Corp., 113 Ohio St.3d 59, 2007-Ohio-
1102, ¶ 6. "Under the doctrine of res judicata, '[a] valid, final judgment rendered upon the
merits bars all subsequent actions based upon any claim arising out of the transaction or
occurrence that was the subject matter of the previous action.' " Kelm v. Kelm, 92 Ohio
St.3d 223, 227 (2001), quoting Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995),
No. 12AP-1022                                                                              6


syllabus. Furthermore, "[r]es judicata operates to bar litigation of ' "all claims which were
or might have been litigated in a first lawsuit." ' " (Emphasis omitted.) Id., quoting Grava
at 382, quoting Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 60, 62 (1990). The
issue preclusion branch of res judicata estops a party from drawing into question in a
second action a point or fact which was actually and directly at issue in a former action
and was there passed on and determined by a court of competent jurisdiction. See Perry
v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 11AP-571, 2012-Ohio-452, ¶ 19, citing
Grava; Norwood v. McDonald, 142 Ohio St. 299, 306 (1943).
       {¶ 10} Johnston makes no argument in this appeal that his claim for wrongful
imprisonment based on actual innocence survives the 1993 judgment. Nor does Johnston
contend that the claim falls within an exception to the doctrine of res judicata.
Nevertheless, the state asserts that in addition to a claim that Johnston's release was the
result of "an error in procedure," pursuant to the 2003 amendment of R.C. 2743.48(A)(5),
the trial court declared Johnston a wrongfully imprisoned individual based on a claim of
actual innocence. In responding to the state's third assignment of error, Johnston's brief
states, in relevant part, as follows:
               As far as [Johnston] can tell, the trial court never made the
               finding about which [the state] complains. * * * Moreover,
               recognizing that the 1993 decision may have issue
               preclusion/collateral estoppel effects, [Johnston] has, thus
               far, not attempted to satisfy condition five (5) of the wrongful
               imprisonment statute by asserting his innocence.

               However, [Johnston's] innocence is nonetheless relevant
               because, in addition to showing the equities of the situation, it
               helps to explain why "no criminal proceeding . . . can be
               brought, or will be brought . . . for any act associated with
               [his] conviction." * * * Nothing about the fact that Johnston
               failed (in 1993) to prove, by a preponderance of the evidence,
               that he satisfied condition five (5) prevents him from using
               evidence of his innocence for a different purpose now.

(Johnston's Brief, 46-48.)
       {¶ 11} The trial court's "Final Judgment" reads, in relevant part, as follows:
               In Mr. Johnston's criminal case, after sentencing and during
               the term of his imprisonment, several errors of criminal
               procedure and violations of the Constitution were found by
No. 12AP-1022                                                                                             7


                the Fourth District Court of Appeals, the Ohio Supreme Court,
                the Franklin County Court of Common Pleas, and the Tenth
                District. Among these were Brady violations, improper use of
                testimony enhanced by hypnosis, and Due Process and Fourth
                Amendment violation. As a result of these errors, Mr.
                Johnston was released from prison. Thus, Mr. Johnston
                meets R.C. 2743.48(A)(5).

(Nov. 13, 2012 Final Judgment, 2.)
        {¶ 12} The November 13, 2012 judgment does not contain any finding regarding
actual innocence,1 nor does the trial court's October 31, 2012 decision granting Johnston's
motion for summary judgment. Thus, we agree with Johnston's interpretation of the trial
court judgment in this case. Our review of both the trial court's November 13, 2012
judgment entry and the October 31, 2012 decision granting Johnston's motion for
summary judgment reveals that the trial court never declared Johnston to be a wrongfully
imprisoned individual based on a claim of actual innocence under R.C. 2743.48(A)(5).
Therefore, the record does not support the trial court error alleged by the state's third
assignment of error. See App.R. 12(A)(2) and 16(A)(3).
        {¶ 13} For the foregoing reasons, the state's third assignment of error is overruled.
        B. Fifth Assignment of Error
        {¶ 14} Because it is dispositive of the state's remaining assignments of error, we
will next address the state's fifth assignment of error. In this assigned error, the state
contends the trial court committed reversible error by declaring that Johnston satisfied
the fifth prong of the wrongful imprisonment statute, R.C. 2743.48(A)(5). As amended in
2003, R.C. 2743.48(A) provided, in relevant part, as follows:
                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:

                ***

                (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
1 With regard to the newly discovered evidence of Johnston's innocence, we note that the trial court

specifically stated that such evidence was "immaterial." (Oct. 31, 2012 Decision Granting Plaintiff's Cross-
Motion for Summary Judgment, 7.)
No. 12AP-1022                                                                                  8


                 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.

(Emphasis added.)
          {¶ 15} The state's fifth assignment of error alleges that the trial court erred when it
determined that "[s]ubsequent to sentencing and during or subsequent to imprisonment,
an error in procedure resulted in the individual's release." R.C. 2743.48(A)(5). We agree.
          {¶ 16} Just weeks after this court issued its decision in Johnston I, the Supreme
Court decided Mansaray v. State, 138 Ohio St.3d 277, 2014-Ohio-750, wherein the court
interpreted the 2003 amendment to R.C. 2743.48(A)(5).                 In our April 24, 2014
memorandum decision on Johnston's application for en banc consideration, this court
stated:
                 [Johnston] directs this court to the recent decision of the
                 Supreme Court of Ohio in Mansaray v. State, __ Ohio St.3d
                 __, 2014-Ohio-750, rendered on March 5, 2014, after this
                 court's decision in [Johnston I]. In Mansaray, the court held
                 "when a defendant seeks a declaration that he is a wrongfully
                 imprisoned individual and seeks to satisfy R.C. 2743.48(A)(5)
                 by proving that an error in procedure resulted in his release,
                 the error in procedure must have occurred subsequent to
                 sentencing and during or subsequent to imprisonment." Id.
                 at ¶ 12. Because [Johnston] relies upon alleged errors that
                 occurred during trial, [the state] asserts that under
                 Mansaray, [Johnston] cannot succeed in his current wrongful
                 imprisonment claim. Although [the state] asserted in its fifth
                 assignment of error that the errors herein alleged by
                 [Johnston] are not the sort of errors in procedure
                 contemplated by R.C. 2743.48(A)(5), our decision analyzed
                 only retroactivity. Accordingly, we will not consider
                 Mansaray's application to this case.

(Apr. 24, 2014 Memorandum Decision, fn. 1.) Because the Supreme Court in Johnston II
directed this court to "address the assignments of error it previously determined moot,"
No. 12AP-1022                                                                                           9


we must now consider the Mansaray decision in reviewing the assignments of error.2
Johnston II at ¶ 25.
        {¶ 17} In Mansaray, Yanko Mansaray was released from prison when the Eighth
District Court of Appeals reversed his convictions on drug and weapons charges because
the evidence found in Mansaray's residence was the product of an illegal search. Id. at
¶ 4.   Mansaray subsequently filed a civil action alleging that he was a wrongfully
imprisoned individual because an error in procedure had resulted in his release. The trial
court dismissed Mansaray's wrongful imprisonment complaint but the court of appeals
reversed, concluding that Mansaray satisfied all five requirements of R.C. 2743.48(A)(1)
through (5). Id. More particularly, the Eighth District found that "the trial court's denial
of Mansaray's motion to suppress, which was subsequently found to be improper,
constitutes an error in procedure under R.C. 2743.48(A)(5)."3 The state appealed, and the
Supreme Court accepted jurisdiction.
        {¶ 18} The Supreme Court's analysis in Mansaray focused on whether Mansaray
qualified as a wrongfully imprisoned individual under the 2003 amendment to R.C.
2743.48(A)(5). The court noted that, pursuant to the 2003 amendment, " '[t]he fifth
factor of R.C. 2743.48(A) may be fulfilled in one of two ways: (1) subsequent to sentencing
and during or subsequent to imprisonment "an error in procedure resulted in the
individual's release" or (2) the charged offense (and any lesser included offense) was not
committed by the individual or no crime was committed at all (actual innocence).' " Id. at
¶ 7, quoting Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, ¶ 12.
        {¶ 19} The state argued that the subsequent event referred to in amended R.C.
2743.48(A)(5) must be an error in procedure that occurs after sentencing and during or
after imprisonment. Mansaray argued that the subsequent event is the judicial
determination that a procedural error occurred, even if that error occurred prior to
sentencing and imprisonment.            In adopting the state's position, the Supreme Court
reasoned as follows:

2 In the appeal to the Supreme Court of Ohio in Johnston II, the parties cited the newly released Mansaray
case both in their briefs and in oral argument, but the Supreme Court did not determine the impact of the
Mansaray decision on the appeal because it had not accepted a proposition of law related to the Mansaray
case. Johnston II at ¶ 15.
3 Mansaray v. State, 8th Dist. No. 98171, 2012-Ohio-3376, ¶ 17.
No. 12AP-1022                                                                           10


                 The state's version is the meaning that is obvious and
                 common in large part because in the state's version, the
                 introductory phrase modifies "error in procedure," the noun
                 phrase closest to it. Youngstown Club v. Porterfield, 21 Ohio
                 St.2d 83, 86, 255 N.E.2d 262 (1970). In Mansaray's version,
                 the introductory phrase modifies a noun phrase that doesn't
                 appear in the statute: "a judicial determination that an error
                 in procedure occurred."

                 Nothing in the statute indicates that the General Assembly
                 intended to open the state to liability for wrongful
                 imprisonment when a conviction is reversed based on a
                 procedural error that occurred prior to sentencing.
                 Mansaray's interpretation would greatly expand the ability of
                 defendants to seek compensation for wrongful imprisonment.
                 If that is indeed what the General Assembly intended, it did a
                 remarkable job of keeping it to itself—and it will be able to
                 enact such legislation upon learning that we do not think that
                 it has already done so.

Id. at ¶ 9-10.
       {¶ 20} Accordingly, the Mansaray court expressly concluded that "when a
defendant seeks a declaration that he is a wrongfully imprisoned individual and seeks to
satisfy R.C. 2743.48(A)(5) by proving that an error in procedure resulted in his release,
the error in procedure must have occurred subsequent to sentencing and during or
subsequent to imprisonment." Id. at ¶ 12.
       {¶ 21} In this case, the Supreme Court reversed Johnston's convictions in 1988
"because the trial court had abused its discretion in permitting a witness to testify about
his posthypnosis recollection and the state had committed a Brady violation, * * * by
failing to disclose evidence that suggested that the victims may have been murdered at a
location different from that alleged by the state and that someone else may have been
responsible for the murders." Johnston II at ¶ 6, citing State v. Johnston, 39 Ohio St.3d
48 (1988). On remand, the trial court suppressed certain statements made by Johnston,
ruled that the posthypnosis testimony of another witness would not be admitted at trial,
and excluded other physical evidence. This court subsequently affirmed the trial court's
rulings. See State v. Johnston, 64 Ohio App.3d 238 (10th Dist.1990). In May 1990, the
state dismissed the indictment.
No. 12AP-1022                                                                             11


       {¶ 22} The wrongful imprisonment cases decided since Mansaray confirm this
court's initial impression that the errors that resulted in Johnston's release did not occur
subsequent to sentencing and during or subsequent to imprisonment as is required to
satisfy R.C. 2743.48(A)(5). See, e.g., D'Ambrosio v. State, 139 Ohio St.3d 1416, 2014-
Ohio-2487 (under Mansaray, the reversal of a conviction because of a Brady violation
that occurred at trial does not qualify as an "error in procedure" for purposes of R.C.
2743.48(A)(5)); Hill v. State, 139 Ohio St.3d 451, 2014-Ohio-2365 (under Mansaray, the
reversal of a conviction because the trial court erred in denying a motion to suppress
evidence obtained in violation of an individual's Fourth Amendment rights does not
qualify as an "error in procedure" for purposes of R.C. 2743.48(A)(5)); Holloway v. State,
8th Dist. No. 100586, 2014-Ohio-2971, ¶ 18 (under Mansaray, the reversal of a conviction
because of erroneous admission of hearsay evidence at trial does not qualify as an "error
in procedure" for purposes of R.C. 2743.48(A)(5)); Worley v. State, 8th Dist. No. 100200,
2014-Ohio-1429 (under Mansaray, 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 undisputed evidence in this case establishes
the errors that resulted in Johnston's release occurred at his criminal trial and not
"[s]ubsequent to sentencing and during or subsequent to imprisonment."                 R.C.
2743.48(A)(5).    On this record, Johnston cannot satisfy the requirements of R.C.
2743.48(A)(5) as a matter of law. Johnston's failure to satisfy each of the requirements of
R.C. 2743.48 is fatal to his wrongful imprisonment claim. Dunbar v. State, 136 Ohio
St.3d 181, 2013-Ohio-2163, ¶ 21; Doss at ¶ 22.
       {¶ 23} In concluding that the Brady violation qualifies as an "error in procedure"
for purposes of R.C. 2743.48(A)(5), the dissent adopts the same logic rejected by the
Mansaray court. In Mansaray, the Supreme Court of Ohio found that a conviction
secured by the state based on illegally obtained evidence was an "error in procedure" that
occurred at trial and not on the subsequent judicial determination that the evidence was
inadmissible. Id. at ¶ 14 ("we cannot conceive of a situation in which a denial of a motion
to suppress evidence would occur subsequent to sentencing and during or subsequent to
imprisonment"). The dissent now employs the same flawed logic in contending that the
Brady violation that resulted in Johnston's release did not result in an "error in
No. 12AP-1022                                                                            12


procedure" until the state dismissed the charges against Johnston following reversal of his
conviction.
       {¶ 24} Moreover, the Supreme Court of Ohio rejected a similar claim when it
summarily reversed the decision of the Eighth District Court of Appeals in D'Ambrosio v.
State, 8th Dist. Cuyahoga No. 99520, 2013-Ohio-4472. The Court of Appeals in
D'Ambrosio had determined that "there was an error in procedure from both the Brady
violations at trial and the state's repeated due process violations during the extended 180-
day period for retrial that resulted in the district court's March 3, 2010 bar to
reprosecution." Id. at ¶ 28. On appeal, the Supreme Court of Ohio summarily reversed
the decision of the Eight District Court of Appeals on the authority of Mansaray.
D'Ambrosio, 2014-Ohio-2487. Thus, under Mansaray, the postconviction due process
violation advocated by the dissent is not a qualifying "error in procedure" for purposes of
R.C. 2743.48(A)(5).
       {¶ 25} On the authority of Mansaray, Johnston's claim for wrongful imprisonment
is barred as a matter of law. Accordingly, the trial court erred when it granted Johnston's
motion for summary judgment and declared him a wrongfully imprisoned individual.
The state's fifth assignment of error is sustained.
       C. First and Fourth Assignments of Error
       {¶ 26} In its first assignment of error, the state argues that the trial court erred
when it determined that Johnston's cause of action for wrongful imprisonment under the
2003 amendment to R.C. 2743.48(A)(5) did not accrue until the effective date of the 2003
amendment. In the state's fourth assignment of error, it argues that the trial court erred
when it determined that no criminal proceeding can be brought against Johnston for any
act associated with his conviction as required by R.C. 2743.48(A)(4).
       {¶ 27} Having determined that Mansaray bars Johnston's claim for wrongful
imprisonment based on an error in procedure and having further determined that the
trial court did not declare Johnston a wrongfully imprisoned individual based on a claim
of actual innocence, the state's first and fourth assignments of error are rendered moot.
See App.R. 12(A)(1)(c); Mansaray at ¶ 5; Worley at ¶ 16.
No. 12AP-1022                                                                               13


IV. CONCLUSION
       {¶ 28} For the foregoing reasons, we overrule the state's third assignment of error,
sustain the state's fifth assignment of error, and find the state's first and fourth
assignments of error moot. Accordingly, we reverse the judgment of the Franklin County
Court of Common Pleas and remand this cause for further proceedings consistent with
this decision.
                                                                         Judgment reversed;
                                                                            cause remanded.

                          LUPER SCHUSTER, J., concurs.
                    BRUNNER, J., concurs in part and dissents in part.

BRUNNER, J., concurring in part and dissenting in part.
       {¶ 29} I concur with the majority in overruling the State's third assignment of
error, but I respectfully dissent from the majority's decision as to the State's fifth
assignment of error and would not render as moot the State's first and fourth assignments
of error. This opinion is limited to discussing my difference with the majority on the
State's fifth assignment of error, and I would reserve any discussion I may have
concerning the first and fourth assignments of error until they may become relevant to the
court's decision.
       {¶ 30} I respectfully dissent from the decision of the majority as to the State's fifth
assignment of error because I would interpret that, under Mansaray v. State, 138 Ohio
St.3d 277, 2014-Ohio-750, Johnston does and can meet the fifth requirement of R.C.
2743.48 and that he is, thus, entitled under this prong to institute a civil action against the
State for wrongful imprisonment under R.C. 2743.48. Respectfully, Mansaray, applied to
Johnston's particular situation, does not dictate the result reached by the majority but, in
fact, dictates the opposite result as to the fifth prong. Mansaray has been interpreted by
the Eighth District Court of Appeals as specifically applying to the fifth prong, the issue at
the heart of Johnston's case in this appellate review. See Beckwith v. State, 8th Dist. No.
101695, 2015-Ohio-1030, ¶ 22.
       {¶ 31} In reviewing the grant of summary judgment by the trial court, Civ.R. 56(C)
requires that in our de novo review we determine whether the trial court properly
determined that: (1) no genuine issue of material fact exists, (2) the moving party is
No. 12AP-1022                                                                            14


entitled to judgment as a matter of law, and (3) reasonable minds could come to but one
conclusion and that conclusion is adverse to the party against whom the motion for
summary judgment is made, that party being entitled to have the evidence most strongly
construed in that party's favor. State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio
St.3d 181, 183 (1997). Clearly, at this juncture of Johnston's extensive litigation journey,
there is little to no dispute of facts, and the crux issue is whether he can show under
Mansaray that, " 'subsequent to sentencing and during or subsequent to imprisonment,
an error in procedure resulted in * * * [his] release.' " Id. at ¶ 6, quoting R.C.
2743.48(A)(5). Mansaray was decided by the Supreme Court of Ohio after we decided
the State's appeal in Johnston v. State, 10th Dist. No. 12AP-1022, 2014-Ohio-1452
("Johnston I"). Johnston argued in his reply brief before the              Supreme Court
(http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf= 756370.pdf) that the
Supreme Court's holding in Mansaray does not prevent Johnston from establishing the
fifth prong of R.C. 2743.48. The Supreme Court remanded Johnston's case to this Court
in part to decide this issue. Johnston I.
       {¶ 32} R.C. 2743.48 sets forth five requirements for entitling an individual to seek
compensation from the state for wrongful imprisonment:

              (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, 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, dismissed, or
              reversed on appeal, the prosecuting attorney in the case
No. 12AP-1022                                                                           15


              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.

(Emphasis added.)
       {¶ 33} There is no factual disagreement between the parties that material,
exculpatory evidence was withheld from Johnston in violation of Brady v. Maryland, 373
U.S. 83 (1963), and that dismissal of the charges against Johnston did not occur until well
after Johnston's sentencing and imprisonment. The exculpatory evidence withheld in
violation of Brady included evidence that the murders may have occurred at a location
other than Johnston's farm and that another person may have been responsible for the
victims' deaths. On review of the Fourth District Court of Appeals' direct appellate review
of Johnston's murder convictions, the Supreme Court explicitly stated, "When the
prosecution withholds material, exculpatory evidence in a criminal proceeding, it
violates the due process right of the defendant under the Fourteenth Amendment to a
fair trial." State v. Johnston, 39 Ohio St.3d 48, 60 (1988). When an issue is raised and
addressed on a direct appeal, it becomes the law of the case. State v. Ikharo, 10th Dist.
No. 10AP-967, 2011-Ohio-2746, ¶ 5. Further,

              Pursuant to the "law of the case" doctrine, this court's
              conclusion in defendant's direct appeal remains the law of the
              case on that issue for all subsequent proceedings in the case
              and thus controls our decision in the present appeal. Nolan v.
              Nolan (1984), 11 Ohio St.3d 1, 3, 11 Ohio B. 1, 462 N.E.2d 410.

State v. Ikharo, 10th Dist. No. 05AP-167, 2005-Ohio-6616, ¶ 9. The "law of the case"
doctrine requires that we hold that the State's Brady violations of Johnston's right to a
fair trial constitutes the deprivation of his right to due process. Id.
No. 12AP-1022                                                                           16


       {¶ 34} We have recently cited Johnston in support of a Brady violation
constituting a due process deprivation, and, further, we have stated that such a violation
requires dismissal:

              If evidence is materially exculpatory, its suppression violates a
              defendant's due process rights, and requires dismissal of the
              charge. State v. Glunt, 10th Dist. No. 09AP-962, 2010-Ohio-
              3024, ¶ 9, citing State v. Johnston, 39 Ohio St.3d 48, 529
              N.E.2d 898 (1988).

(Emphasis added.) State v. Daniels, 10th Dist. No. 14AP-326, 2015-Ohio-2649, ¶ 17.
Thus, our prior precedent on this issue is not only that suppressing materially exculpatory
evidence violates due process but that, if found, it requires dismissal.
       {¶ 35} In Johnston's case, the charges were dismissed well after his sentencing and
imprisonment—not until May 11, 1990.          It is the late act of dismissal resulting in
Johnston's release that constitutes the error under the statute, not any judicial
determination.

              Nothing in the language of the statute suggests, even
              indirectly, that the subsequent event is a judicial
              determination than [sic] an error occurred.

(Emphasis added.) Mansaray at ¶ 9. Under Mansaray, Johnston satisfies the fifth prong
of R.C. 2743.48.
       {¶ 36} The majority labels this analysis as "flawed logic." (Majority Decision at
¶ 23.) Based on the procedural history of this case, the prosecutor and not the trial court
dismissed the charges. The charges should have been dismissed long before they were;
the error occurred at the time of dismissal, and this is the distinction that meets the
narrow confines of the fifth prong of the statute as interpreted by the Supreme Court in
Mansaray. Johnston can meet these narrowest of qualifications and should be permitted
to proceed to the next step. Moreover, a reading of D'Ambrosio v. State, 8th Dist. No.
99520, 2013-Ohio-4472, overruled by the Supreme Court in D'Ambrosio v. State, 139
Ohio St.3d 1416, 2014-Ohio-2487, indicates that much of the litigation in that case
occurred in federal court through a writ of habeas corpus, with the trial court having
dismissed the charges. A trial court’s error is determined only upon a subsequent judicial
No. 12AP-1022                                                                          17


determination. The act of dismissing an indicted offense is an act of discretion by a
prosecutor. This is a critical distinction that should allow Johnston to proceed.

              Dismissal of criminal charges by the prosecution is governed
              by Crim.R. 48(A), which states: "The state may by leave of
              court and in open court file an entry of dismissal of an
              indictment, information, or complaint and the prosecution
              shall thereon terminate." Thus, the prosecution has
              discretion, with permission of the court, to determine when
              and which charges should be dropped.

State v. Jones, 8th Dist. No. 101311, 2015-Ohio-1818, ¶ 31.
       {¶ 37} Thus, we should find that Johnston does, as a matter of law, meet the fifth
prong required under R.C. 2743.48 for a civil action for having been wrongfully
imprisoned. Therefore, we should address the State's first and fourth assignments of error
and determine at that point whether we may affirm the judgment of the trial court.
                            ________________________
