[Cite as Bode v. Fairfield Cty. Pros. Atty.'s Office, 2018-Ohio-28.]


                                         COURT OF APPEALS
                                      FAIRFIELD COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


JASON T. BODE                :                                     JUDGES:
                             :                                     Hon. Patricia A. Delaney, P.J.
     Plaintiff-Appellant     :                                     Hon. William B. Hoffman, J.
                             :                                     Hon. Earle E. Wise, Jr., J.
-vs-                         :
                             :
FAIRFIELD COUNTY PROSECUTING :                                     Case No. 17-CA-18
ATTORNEY'S OFFICE            :
                             :
     Defendant-Appellee      :                                     OPINION



CHARACTER OF PROCEEDING:                                           Appeal from the Court of Common
                                                                   Pleas, Case No. 2016CV00678



JUDGMENT:                                                          Affirmed




DATE OF JUDGMENT:                                                  January 2, 2018




APPEARANCES:

For Plaintiff-Appellant                                            For Defendant-Appellee

SCOTT P. WOOD                                                      JOSHUA S. HORACEK
120 East Main Street                                               239 West Main Street
Suite 200                                                          Suite 101
Lancaster, OH 43130                                                Lancaster, OH 43130

                                                                   DEBRA GORRELL-WEHRLE
                                                                   150 East Gay Street
                                                                   16th Floor
                                                                   Columbus, OH 43215
Fairfield County, Case No. 17-CA-18                                                       2

Wise, Earle, J.

         {¶ 1} Plaintiff-Appellant, Jason T. Bode, appeals the April 12, 2017 entry of the

Court of Common Pleas of Fairfield County, Ohio, granting judgment on the pleadings

to Defendant-Appellee, Fairfield County Prosecuting Attorney's Office, on his complaint

for declaration of wrongful imprisonment.

                          FACTS AND PROCEDURAL HISTORY

         {¶ 2} On January 6, 2012, the Fairfield County Grand Jury indicted appellant on

five counts of operating a motor vehicle while under the influence (OVI) in violation of

R.C. 4511.19. Each count carried a specification pursuant to R.C. 2941.1413 alleging

five OVI convictions within the twenty years prior, elevating the counts to felonies in the

fourth degree. Four of the priors (1996-1999) were committed when appellant was an

adult and one (1992) was committed when he was a juvenile.

         {¶ 3} On May 2, 2012, appellant pled no contest to two of the counts with their

attendant specifications (Count 3, a violation of R.C. 4511.19(A)(1)(f) committed on May

28, 2011, and Count 5, a violation of R.C. 4511.19(A)(1)(h) committed on December 29,

2011).     The remaining three counts and their specifications were dismissed.           By

judgment entry filed June 26, 2012, the trial court indicated it found appellant guilty, and

sentenced him to seven and one-half years in prison, four and one-half years

suspended in lieu of community control. Appellant was required to serve three years of

mandatory prison time.

         {¶ 4} Appellant filed an appeal, challenging in part the use of his juvenile OVI.

This court affirmed appellant's convictions and sentence.        State v. Bode, 5th Dist.

Fairfield No. 12-CA-33, 2013-Ohio-2134.
Fairfield County, Case No. 17-CA-18                                                      3


       {¶ 5} Appellant filed an appeal with the Supreme Court of Ohio. The court

found a prior juvenile adjudication cannot be used "under R.C. 4511.19(G)(1)(d) to

enhance the penalty for a later offense when the adjudication carried the possibility of

confinement, the adjudication was uncounseled, and there was no effective waiver of

the right to counsel." State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, syllabus.

The court reversed this court's judgment and remanded the matter to the trial court for

resentencing. At the time of the reversal, April 23, 2015, appellant had already served

almost three years in prison.

       {¶ 6} Upon remand, by entry filed June 17, 2015, the trial court resentenced

appellant on Counts 3 and 5 as misdemeanors in the first degree, imposing an

aggregate term of three hundred sixty days in the county jail with credit for time served.

       {¶ 7} On November 18, 2016, appellant filed a complaint against appellee for a

declaration of wrongful imprisonment pursuant to R.C. 2743.48. On February 15, 2017,

appellee filed a motion for judgment on the pleadings, claiming appellant did not meet

the requirements under the statute. By entry filed April 12, 2017, the trial court granted

the motion, finding the facts alleged in appellant's complaint failed to satisfy R.C.

2743.48(A)(4).

       {¶ 8} Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows

                                             I

       {¶ 9} "THE TRIAL COURT ERRED IN GRANTING JUDGMENT ON THE

PLEADINGS AGAINST THE PETITIONER IN A WRONGFUL IMPRISONMENT

ACTION."
Fairfield County, Case No. 17-CA-18                                                    4


                                            I

       {¶ 10} In his sole assignment of error, appellant claims the trial court erred in

granting judgment on the pleadings pursuant to Civ.R. 12(C). We disagree.

       {¶ 11} Civ.R. 12(C) states, "[a]fter the pleadings are closed but within such time

as not to delay the trial, any party may move for judgment on the pleadings."

       {¶ 12} In Estate of Heath v. Grange Mutual Casualty Co., Delaware No.

02CAE05023, 2002-Ohio-5494, ¶ 8-9, this court succinctly stated the standard of review

as follows:



              The standard of review of the grant of a Motion for Judgment on the

       Pleadings is the same as the standard of review for a Civ.R. 12(B)(6)

       Motion. As the reviewing court, our review of a dismissal of a complaint

       based upon a judgment on the pleadings requires us to independently

       review the complaint and determine if the dismissal was appropriate. Rich

       v. Erie County Department of Human Resources (1995), 106 Ohio App.3d

       88, 91, 665 N.E.2d 278.     Judgment on the pleadings may be granted

       where no material factual issue exists. However, it is axiomatic that a

       motion for judgment on the pleadings is restricted solely to the allegations

       contained in those pleadings.     Flanagan v. Williams (1993), 87 Ohio

       App.3d 768, 623 N.E.2d 185. See, also, Nelson v. Pleasant (1991), 73

       Ohio App.3d 479, 481, 597 N.E.2d 1137; Barilatz v. Luke (Dec. 7, 1995),

       Cuyahoga App. No. 68304, unreported, 1995 WL 723294.
Fairfield County, Case No. 17-CA-18                                                     5


             A reviewing court need not defer to the trial court's decision in such

      cases. Id. A Motion for a Judgment on the Pleadings, pursuant to Civ.R.

      12(C), presents only questions of law. Peterson v. Teodosia [Teodosio]

      (1973), 34 Ohio St.2d 161, 165-166, 297 N.E.2d 113. The determination

      of a motion under Civ.R. 12(C) is restricted solely to the allegations in the

      pleadings and the nonmoving party is entitled to have all material

      allegations in the complaint, with all reasonable inferences to be drawn

      therefrom, construed in her favor. Id.



      {¶ 13} The statute at issue is R.C. 2743.48, action against state for wrongful

imprisonment, which states the following:



             (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.
Fairfield County, Case No. 17-CA-18                                                   6


             (3) The individual was sentenced to an indefinite or definite term of

      imprisonment in a state correctional institution for the offense of which the

      individual was found guilty.

             (4) The individual's conviction was vacated, dismissed, or reversed

      on appeal, the prosecuting attorney in the case cannot or will not seek any

      further appeal of right or upon leave of court, and no criminal proceeding

      is pending, can be brought, or will be brought by any prosecuting attorney,

      city director of law, village solicitor, or other chief legal officer of a

      municipal corporation against the individual for any act associated with

      that conviction.

             (5) Subsequent to sentencing and during or subsequent to

      imprisonment, an error in procedure resulted in the individual's release, or

      it was determined by the court of common pleas in the county where the

      underlying criminal action was initiated that the charged offense, including

      all lesser-included offenses, either was not committed by the individual or

      was not committed by any person.



      {¶ 14} "One who claims to be a 'wrongfully imprisoned individual' under R.C.

2743.48 must prove all of the factors in R.C. 2743.48(A) by a preponderance of the

evidence before seeking compensation from the state for wrongful imprisonment." Doss

v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, paragraph one of the syllabus.

      {¶ 15} In its motion for judgment on the pleadings, appellee argued appellant

failed to meet subsections (A)(4) and (5). Subsections (A)(1)-(3) were not contested. In
Fairfield County, Case No. 17-CA-18                                                       7


its April 12, 2017 entry granting judgment on the pleadings to appellee, the trial court

found appellant failed to satisfy subsection (A)(4) as follows:



              It appears from the Complaint that Plaintiff can establish the first

       two elements of R.C. 2743.48(A)(4) i.e., that (1) his conviction was

       vacated and reversed on appeal and (2) the Fairfield County Prosecuting

       Attorney cannot pursue any further appeal; however, in accepting the

       allegations contained in the Complaint as true, Plaintiff does not and

       cannot demonstrate that "no criminal proceeding is pending, can be

       brought or will be brought . . . for any act associated with that conviction"

       because on remand, the Prosecuting Attorney continued the criminal

       proceedings against Plaintiff. As noted in the Complaint, upon remand to

       the trial court, "Plaintiff was found guilty of misdemeanors only . . . ."

       (Compl. at ¶ 4).



       {¶ 16} The trial court concluded:



              [C]riminal proceedings were still factually supportable and legally

       permissible following reversal of Plaintiff's conviction, as evidenced by the

       fact that Plaintiff pled no contest to and was convicted of two

       misdemeanors. (See Compl. at ¶ 4). Therefore, even when taken as true,

       the facts set forth in Plaintiff's Complaint fail to satisfy R.C. 2743.48(A)(4).
Fairfield County, Case No. 17-CA-18                                                    8


       {¶ 17} We disagree with the trial court's finding that appellant met the first

element of subsection (A)(4): "The individual's conviction was vacated, dismissed, or

reversed on appeal."

       {¶ 18} In his direct appeal in his criminal case, appellant challenged in part the

use of his juvenile OVI to elevate the counts to felony OVIs, thereby enhancing his

sentence. As discussed above, this court affirmed his sentence and appellant appealed

to the Supreme Court of Ohio. The court reviewed the following specific proposition of

law:



              An uncounseled juvenile adjudication for operating a vehicle under

       the influence of alcohol (OVI), without a valid waiver of counsel, can not

       (sic) be used to enhance subsequent OVI charges when the juvenile is

       ordered to complete a 3–day driver intervention program (DIP), subject to

       potential detention if the DIP is not completed.



State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, ¶ 8.



       {¶ 19} The court agreed and reversed this court's judgment on the issue and

remanded the matter to the trial court for resentencing. The trial court followed this

directive, resentenced appellant on two misdemeanors on June 17, 2015, and the case

was concluded. Appellant's conviction was never "vacated, dismissed, or reversed on

appeal," just his sentence was to comport with the misuse of the juvenile adjudication.
Fairfield County, Case No. 17-CA-18                                                      9


Therefore, we concur with the trial court that appellant did not satisfy subsection (A)(4),

albeit for a different reason.

       {¶ 20} Upon review, we find the trial court did not err in granting judgment on the

pleadings to appellee.

       {¶ 21} The sole assignment of error is denied.

       {¶ 22} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Hoffman, J. concur.




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