[Cite as Derrico v. State, 2019-Ohio-1767.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

WALTER DERRICO,                                     :

                 Plaintiff-Appellant,               :
                                                               No. 107192
                 v.                                 :

STATE OF OHIO,                                      :

                 Defendant-Appellee.                :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 9, 2019


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Case No. CV-18-891381


                                              Appearances:

                 Ford, Gold, Kovoor & Simon Law Group, Sarah Thomas
                 Kovoor, for appellant.

                 Dave Yost, Ohio Attorney General, and Thomas E.
                 Madden, Assistant Attorney General; Michael C.
                 O’Malley, Prosecuting Attorney, and Brian R. Gutkoski,
                 Assistant Prosecuting Attorney, for appellee.


LARRY A. JONES, SR., J.:

                   Plaintiff-appellant, Walter Derrico (“Derrico”), appeals from the trial

court’s decision to grant defendant-appellee, the state of Ohio’s, motion for
judgment on the pleadings on Derrico’s complaint for wrongful imprisonment. For

the reasons set forth below, we affirm.

                  In 2012, Derrico pleaded guilty to drug trafficking and drug

possession and was sentenced to four years in prison. In December 2016, the state

moved to vacate his conviction and sentence; at this time, Derrico had already been

released from prison and was on parole. According to the state’s motion,

       The Cuyahoga County Prosecutor has conducted an internal review of
       this case, which was originally presented to the Cuyahoga County
       Prosecutor’s Office by [three East Cleveland police officers, who] were
       convicted in the United States District Court for the Northern District
       of Ohio on charges relating to police misconduct, including conspiracy
       and making false statements. Due to the now known conduct of these
       former officers in past cases, the County Prosecutor no longer has
       confidence in the Defendant’s conviction. Based on the internal
       review, the County Prosecutor has concluded that the integrity of the
       conviction is now in question.

       In order to further justice, the Cuyahoga County Prosecutor, through
       his undersigned assistant, respectfully moves this Honorable Court to
       vacate the Defendant’s conviction and sentence, allow Defendant to
       move to vacate his guilty plea, and allow the State to dismiss this case.
       The State will not re-try the Defendant.

                  On February 1, 2017, the court held a hearing and granted the state’s

motion, dismissing the case with prejudice.          The court terminated Derrico’s

postrelease control and stated that Derrico “has reserved all rights to further redress

in this court.”

                  Derrico subsequently filed the instant action, seeking a declaration

that he was a wrongfully imprisoned individual as defined by Ohio’s wrongful

imprisonment statute — R.C. 2743.48(A). Derrico alleged that his conviction was
vacated and dismissed with prejudice because it was determined that he “did not

commit the subject offenses and was convicted due to gross misconduct of East

Cleveland, Ohio police officers, who planted incrimination [sic] evidence against

Derrico.”

              The state responded by filing an answer and a motion for judgment

on the pleadings under Civ.R. 12(C). In its motion for judgment on the pleadings,

the state argued that Derrico is barred from wrongful imprisonment compensation

because he pleaded guilty to the offenses in the underlying case. Derrico opposed

the State’s motion, arguing, for the first time, that R.C. 2743.48(A)(2) is

unconstitutional on its face. The State moved to file a reply brief, which the court

granted. Derrico then moved to file an amended complaint to add his constitutional

argument. The state filed a brief in opposition. The court denied Derrico’s motion.

              The trial court granted the state’s motion for judgment on the

pleadings, finding that R.C. 2743.48 does not have an exception for a guilty plea that

is later vacated. The court additionally found that Derrico’s constitutional argument

was not properly before the court because it was not pled in his complaint; rather, it

was raised for the first time in his opposition to the State’s motion for judgment on

the pleadings. The court further found that Derrico failed to make a prima facie case

showing support for his constitutional challenges and that the attempt to raise them

post hoc was only in response to the state’s motion identifying a bar to his claims.

              Derrico now appeals, raising the following two assignments of error

for review.
      I. The Trial Court Erred in Dismissing Derrico’s Complaint With
      Prejudice Without Affording Derrico an Opportunity to Amend His
      Complaint, and Erred in Overruling Derrico’s Motion for Leave to
      Amend his Complaint. (Trial Court decision dated April 30, 2018[.])

      II. The Trial Court Erred in not Finding that Derrico Made a Prima
      Facie Showing that [R.C.] 2743.48(A)(2) is not Constitutional. (Trial
      Court decision dated April 30, 2018[.])

              This court recently decided an analogous case. Moore v. State, 8th

Dist. Cuyahoga No. 107114, 2019-Ohio-700. In Moore, the State moved to dismiss

Moore’s convictions and sentence based on misconduct by the same three East

Cleveland detectives. The trial court granted the state’s motion. Moore filed a

similar civil complaint pursuant to R.C. 2743.48. In Moore, as in this case, the state

moved for judgment on the pleadings arguing that Moore was prohibited from

compensation due to wrongful imprisonment because he pled guilty to the offenses

in the underlying case. Id. at ¶ 6. The court agreed with the state, finding that R.C.

2743.48 barred his claim and that Moore’s constitutional argument was untimely

pled. Id.

              The Moore case differs slightly from the case at bar in its procedural

stance. In both cases, the claimants failed to raise the constitutionality of R.C.

2743.48 in his complaint; both claimants did not raise the issue until after the state

moved for judgment on the pleadings. In Moore, however, Moore never moved to

amend his complaint; instead, Moore moved for relief from judgment under Civ.R.

60(B) after the trial court dismissed his complaint. The trial court denied his

motion, finding that Moore had had an opportunity to respond to the state’s motion
and filed a brief in opposition raising issues that were not addressed in his complaint

but never moved for leave to amend his complaint. Id. Here, as mentioned, Derrico

filed for leave to amend his complaint. In both cases, the trial court determined that

the claimant’s constitutional argument was not properly before the court because it

was not pled in the complaint and raised for the first time in opposition to the State’s

motion for judgment on the pleadings.

                 We now turn to the assignments of error, which we have combined

for review.

                 In the first assignment of error, Derrico argues that the trial court

erred in denying his motion to amend his complaint.

                 As this court stated in Moore:

       Civ.R. 15(A) provides that a

       party may amend its pleading once as a matter of course within
       twenty-eight days after serving it or, if the pleading is one to which a
       responsive pleading is required within twenty-eight days after service
       of a responsive pleading or twenty-eight days after service of a motion
       under Civ.R. 12(B), (E), or (F), whichever is earlier.

       The decision of whether to grant a motion for leave to amend a
       pleading is within the discretion of the trial court. Turner v. Cent.
       Local School Dist., 85 Ohio St.3d 95, 99, 1999-Ohio-207, 706 N.E.2d
       1261, citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum.
       Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991). We will not overturn a
       trial court’s ruling on a motion for leave to amend a pleading without
       first determining that the court abused its discretion. Id.

Id. at ¶ 9-10.

                 As mentioned, Moore differs procedurally because Moore never

moved to amend his complaint. In this case, Derrico filed his complaint on January
10, 2018. The state filed its answer and moved for judgment on the pleadings on

February 27, 2018. Derrico moved for an extension of time to respond to the state’s

motion and the court granted him an extension until March 19 to answer. On March

19, Derrico filed his memorandum in response to the state’s motion and raised his

constitutional argument for the first time. Derrico then waited until April 2, 2018,

to move for leave to amend his complaint. Because Derrico did not file his motion

until April 2, he was outside the 28 days afforded by Civ.R. 15(A) by which he could

have amended his answer without leave.

              When a plaintiff seeks leave to amend a complaint, “there must be at

least a prima facie showing that the movant can marshal support for the new matters

sought to be pleaded[.]” Solowitch v. Bennett, 8 Ohio App.3d 115, 117, 456 N.E.2d

562 (8th Dist.1982). Where a movant fails to make a prima facie showing of support

for new matters sought to be pleaded, a trial court acts within its discretion in

denying a motion to amend the pleadings. Id. at 123.

              While a trial court should always construe the motion in favor of the

movant in order for the plaintiff to save his or her cause of action, and the granting

of leave should not be withheld absent good reason, “this court’s role is to determine

whether the trial judge’s decision was an abuse of discretion, not whether it was the

same decision we might have made.” Wilmington Steel Prod., Inc., 60 Ohio St.3d

at 122, 573 N.E.2d 622, citing State, ex rel. Wargo v. Price, 56 Ohio St.2d 65, 381

N.E.2d 943 (1978).
               The trial court determined that Derrico did not make a prima facie

showing. As the trial court noted, Derrico moved to amend his complaint solely in

response to the state’s motion identifying a bar to his claims. Derrico claims the

court erred in not allowing him to amend his complaint because he made a prima

facie argument showing that R.C. 2743.48(A)(2) is unconstitutional. Derrico argues

that the distinction between persons who go to trial and are convicted and those who

accept plea bargains, for the purposes of defining a “wrongfully imprisoned

individual,” is facially arbitrary and in violation of his constitutional rights to equal

protection and due process.

               There are two primary ways to challenge the constitutionality of a

statute: by facial challenge or through an “as-applied” challenge. Harrold v. Collier,

107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. In a facial challenge to

the constitutionality of a statute, the claimant must show that there are no set of

facts under which the challenged statute is constitutional. An as-applied challenge

alleges that a particular application of a statute is unconstitutional.          “Facial

challenges present a higher hurdle than as-applied challenges because, in general,

for a statute to be facially unconstitutional, it must be unconstitutional in all

applications.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156,

¶ 7, citing Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d

278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.

               Where there is no suspect class or fundamental right at issue, as is the

case here, a rational-basis test applies. Conley v. Shearer, 64 Ohio St.3d 284, 289,
595 N.E.2d 862 (1992). The analysis begins with the presumption that statutes are

constitutional. State v. Peoples, 102 Ohio St.3d 460, 2004-Ohio-3923, 812 N.E.2d

963, ¶ 5. This presumption requires substantial deference to legislative judgments.

Conley at id. It also means that courts refrain from judging the “wisdom, fairness,

or logic” of legislative choices. Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125

L.Ed.2d 257 (1993), citing FCC v. Beach Communications, Inc., 508 U.S. 307, 313,

113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). Rather, courts must uphold a challenged

statute “if at all possible.” Conley at id.

               Viewing a statute through this deferential lens, a court must first

determine whether the statute is supported by some valid, or legitimate,

governmental interest. Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio

St.3d 104, 2010-Ohio-4908, 936, N.E.2d 944, ¶ 19. Once the court has identified a

valid governmental interest, it must then determine if the means by which the state

has chosen to advance the valid governmental interest are rational.                  Id.

Classifications will be invalidated only if they “bear no relation to the state’s goal.”

State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996). The individual

challenging the law bears the burden of proving that it is not rationally related to a

valid state interest. McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-

6505, 839 N.E.2d 1, ¶ 9. The state carries no burden to show that some rational

basis justifies the legislation. State v. Williams, 88 Ohio St.3d 513, 531, 728 N.E.2d

342 (2000).
              Under Ohio law, R.C. 2743.48(A)(2) prohibits those who plead guilty

to a crime from receiving compensation if that conviction is later vacated. The valid

state interests behind R.C. 2743.48(A)(2) are twofold: first, to protect public funds

from going to individuals who accepted responsibility for crimes by pleading guilty,

and second, to hold those who plead guilty to a higher standard than those who

exercised their right to a trial and contested the state’s evidence, but were

nonetheless convicted. There is no constitutional requirement to provide any

compensation to one who is released from prison; holding those who plead guilty to

a crime to a higher bar may, in some cases, be unfair, but that does not equate to the

requirement being unrelated to a valid state interest. Thus, Derrico has failed to

make a prima facie showing in support of his constitutional argument.

              As the Ohio Supreme Court noted in Dunbar v. State, 136 Ohio St.3d

181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 20,

      The General Assembly created the claim for wrongful imprisonment
      and placed limitations upon the categories of persons who are eligible
      for compensation. One limitation is that the claimant cannot have
      pled guilty to the offense. Unfortunately * * * the General Assembly
      did not provide an exception for guilty pleas that are later vacated.

              Derrico did not properly challenge the constitutionality of R.C.

2743.48(A)(2) in the trial court and the issue cannot be raised for the first time on

appeal. As this court stated in Moore:

      “Issues that could have been raised and resolved in the trial court
      cannot be raised for the first time on appeal. * * * Therefore, issues
      not raised in the trial court are forfeited on appeal.” Miller v.
      Romanauski, 8th Dist. Cuyahoga No. 100120, 2014-Ohio-1517, ¶ 35,
      citing Thompson v. Preferred Risk Mut. Ins. Co., 32 Ohio St.3d 340,
       513 N.E.2d 733 (1987); Hous. Advocates, Inc. v. Am. Fire & Cas. Co.,
       8th Dist. Cuyahoga Nos. 86444 and 87305, 2006-Ohio-4880; State v.
       Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306. Having
       failed to properly assert these arguments below, Moore cannot now
       assert these arguments on appeal.

Id. at ¶ 25.

               In light of the above, the assignments of error are overruled.

               Finally, the State moved for sanctions against counsel for Derrico.

This motion is denied. See Moore at id., fn.1.

               Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said 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

EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR
