[Cite as D'Ambrosio v. State, 2013-Ohio-4472.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99520



                                    JOE D’AMBROSIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.


                                      STATE OF OHIO
                                                 DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CV-775307

        BEFORE: Kilbane, J., Jones, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                       October 10, 2013
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
Charles E. Hannan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Terry H. Gilbert
Gordon S. Friedman
Friedman & Gilbert
55 Public Square
Suite 1055
Cleveland, Ohio 44113

Jeffry F. Kelleher
1540 Leader Building
526 Superior Avenue
Cleveland, Ohio 44114

David E. Mills
1300 West Ninth Street
Suite 636
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1} Defendant-appellant, the state of Ohio, appeals from the judgment of the

trial court that awarded summary judgment to plaintiff, Joe D’Ambrosio, and that denied

the state’s cross-motion for summary judgment on the issue of whether an “error in

procedure” within the meaning of R.C. 2743.48(A)(5) resulted in D’Ambrosio’s release

from prison. For the reasons set forth below, the judgment of the trial court is affirmed.

       {¶2} In 1988, D’Ambrosio was indicted on two counts of aggravated murder

with death penalty specifications, kidnapping, and aggravated burglary, in connection

with the death of Anthony Klann (“Klann”). The matter was tried to a three-judge panel.

 D’Ambrosio was sentenced to death and a consecutive 10 to 25-year term of

imprisonment was imposed on the other charges.

       {¶3} In March 2001, following various unsuccessful state and federal challenges

to his conviction, D’Ambrosio filed a petition for a writ of habeas corpus in the United

States District Court for the Northern District of Ohio. The petition included a claim that

the prosecution had failed to disclose exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The items identified by

D’Ambrosio that were withheld included evidence that one of the state’s witnesses was

not prosecuted for an alleged rape and had asked for police assistance in resolving a

pending DUI charge, that this witness knew information about the case that was not made

public, and that the state withheld evidence disputing the location and time of the murder.

 D’Ambrosio v. Bagley, N.D.Ohio No. 1:00-CV-02521, 2006 U.S. Dist. LEXIS 12794
(Mar. 24, 2006). On March 24, 2006, the district court granted D’Ambrosio’s petition

for a writ of habeas corpus. The court held that most of the evidence that D’Ambrosio

had introduced to support his Brady claim was withheld by the prosecution and that

D’Ambrosio’s due process rights were violated. The district court granted the petition

and ordered the state to set aside D’Ambrosio’s conviction and sentence or conduct

another trial within 180 days. Id. That decision was stayed pending appeal and was

affirmed by the Sixth Circuit Court of Appeals. D’Ambrosio v. Bagley, 527 F.3d 489

(6th Cir.2008). On September 11, 2008, in compliance with the Sixth Circuit’s mandate,

the district court ordered:

       The [State] shall either: (1) set aside D’Ambrosio’s convictions and
       sentences as to all counts of the indictment, including the sentence of death;
       or (2) conduct another trial. This shall be done within 180 days from the
       effective date of this Order.

       {¶4} In late February 2009, the state produced additional, previously undisclosed,

evidence. D’Ambrosio v. Bagley, 619 F.Supp.2d 428 (N.D.Ohio 2009). In response, the

trial judge in the state criminal proceedings declined to permit the trial to proceed until

D’Ambrosio had time to examine the new evidence. The state sought additional time

within which to try D’Ambrosio but, by April 27, 2009, the district court determined that

the state “did not respond to multiple discovery requests, produced material * * *

discovery on the eve of trial, and then sought to interfere with the orderly progress of the

trial through gamesmanship,” and denied the state’s request for additional time. The

district court did not bar reprosecution of D’Ambrosio and graciously stayed its ruling for

15 days, allowing the state an opportunity to determine whether it wished to retry
D’Ambrosio. Id. The state took no action during this 15-day period.

       {¶5} To compound the due process violations, after learning that its key witness

Edward Espinoza (“Espinoza”) died on April 30, 2009, the state did not inform either

D’Ambrosio or the trial court of this news until late July, and never informed the district

court of this fact.

       {¶6} On March 3, 2010, the district court barred the reprosecution of

D’Ambrosio. D’Ambrosio v. Bagley, 688 F. Supp.2d 709 (N.D.Ohio 2010). On March

5, 2010, the trial court dismissed all charges against D’Ambrosio and ordered him

released without any conditions. On August 29, 2011, the Sixth Circuit “affirmed * * *

[the] unconditional writ barring D’Ambrosio’s reprosecution.” D’Ambrosio v. Bagley,

656 F.3d 379 (6th Cir.2011). On January 23, 2012, the Supreme Court denied the state’s

petition for a writ of certiorari. Bobby v. D’Ambrosio, ___ U.S.           , 132 S.Ct. 1150,

181 L.Ed.2d 1031 (2012).

       {¶7} On February 7, 2012, D’Ambrosio filed the instant action, seeking to be

declared a wrongfully imprisoned individual under R.C. 2743.48. On June 7, 2012,

D’Ambrosio moved for summary judgment.               He asserted that he meets the five

requirements of this statute, including the requirement disputed by the parties as to

whether following his sentencing an “error in procedure” resulted in his release under

R.C. 2743.48(A)(5). D’Ambrosio argued that in light of the Brady violations and the

district court’s explicit instructions to the state barring reprosecution, there was an “error

in procedure” within this portion of the statute.
       {¶8} The state filed a brief in opposition and cross-motion for partial summary

judgment, in which it argued that D’Ambrosio did not meet the requirements of R.C.

2743.48(A)(5) because the Brady violations are not an “error in procedure” occurring

subsequent to his sentencing.     The state additionally argued that the district court

released D’Ambrosio due to a discovery sanction and not due to an error in procedure.

       {¶9} On January 15, 2013, the trial court granted D’Ambrosio’s motion for

summary judgment and denied the state’s cross-motion for partial summary judgment. In

a detailed and thoughtful opinion, the trial court reasoned that D’Ambrosio established

the requirements of R.C. 2743.48(A)(5).        The trial court reasoned that the Brady

violations from D’Ambrosio’s 1989 trial, as well as continuing due process violations

occurring in connection with the retrial order, constituted “an error in procedure” that

resulted in his release.

       {¶10} The state now appeals and assigns three interrelated errors for our review:

                                Assignment of Error One

       The trial court erred in declaring that D’Ambrosio was a “wrongfully

       imprisoned individual” because no error in procedure occurred subsequent

       to sentencing or during or subsequent to imprisonment.

                                Assignment of Error Two

       The trial court erred in declaring that D’Ambrosio was a “wrongfully
       imprisoned individual” because his release from custody did not result from
       any alleged error in procedure.

                                Assignment of Error Three
      The trial court erred in declaring that D’Ambrosio was a “wrongfully

      imprisoned individual” when D’Ambrosio did not present any evidence to

      show that he was not engaged in any criminal conduct arising out of the

      incident for which he was prosecuted.

      {¶11} In reviewing the trial court’s award of summary judgment, we apply a de

novo standard of review.      Mohammad v. State, 8th Dist. Cuyahoga No. 98655,

2012-Ohio-5517, ¶ 11. 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.

Id.

      {¶12} In 1986, the General Assembly enacted R.C. 2305.02 and 2743.48 to

authorize civil actions against the state in the Court of Claims for specified monetary

amounts by certain wrongfully imprisoned individuals. Walden v. State, 47 Ohio St.3d

47, 49, 547 N.E.2d 962 (1989). Under the statutory scheme, a claimant first files an

action in the common pleas court seeking a preliminary factual determination that he

meets all of the requirements of R.C. 2743.48(A)(1)-(5). If successful, the claimant then

must file an action in the Court of Claims to recover money damages. Griffith v.

Cleveland, 128 Ohio St.3d 35, 2010-Ohio-4905, 941 N.E.2d 1157, paragraph two of the
syllabus. R.C. 2305.02 and 2743.48.

      {¶13} R.C. 2743.48(A) sets forth the following five 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.

      {¶14} With regard to the state’s contention that the trial court erred in awarding

summary judgment to D’Ambrosio because he did not present any evidence to show that

“he was not engaged in any criminal conduct arising out of the incident for which he was

prosecuted,” we note that R.C. 2743.48(A)(5) was amended effective April 9, 2003, “to

allow a person who could not establish his or her actual innocence, but who could

establish that an error in procedure resulted in his or her release, to file a complaint
against the state of Ohio seeking a declaration that he or she had been wrongfully

imprisoned.” Nelson v. State, 5th Dist. Tuscarawas No. 2006 AP 0061, 2007-Ohio-6274,

¶ 30.       Before this amendment, only individuals who could establish their actual

innocence could file such a complaint.

        {¶15} In Hill v. State, 10th Dist. Franklin No. 12AP-635, 2013-Ohio-1968, the

court observed that as a result of the amendment to R.C. 2743.48(A)(5), the General

Assembly provided an alternative to the proof of “actual innocence” requirement, where

the individual could establish that “an error in procedure resulted in the individual’s

release.”     Id., citing Nelson v. State, 5th Dist. Tuscarawas No. 2006 AP 0061,

2007-Ohio-6274, ¶ 30 (R.C. 2743.48(A)(5) met where the individual’s conviction had

been reversed on speedy trial grounds).

        {¶16} In accordance with the foregoing, and in light of the amendment to

R.C. 2743.48(A)(5), D’Ambrosio was not required to prove “actual innocence.” Under

the amended statutory scheme, D’Ambrosio could meet the requirements of R.C.

2743.48(A)(5) by establishing that “an error in procedure resulted in the individual’s

release.”     Therefore, the trial court properly rejected the state’s argument that

D’Ambrosio was required to present evidence to show that he was not engaged in any

criminal conduct arising out of the incident for which he was prosecuted. The third

assignment of error is without merit.

        {¶17} With regard to the state’s additional contentions that the trial court erred in

concluding that D’Ambrosio met the requirements of R.C. 2743.48(A) because no error
of procedure occurred subsequent to sentencing or during or subsequent to imprisonment,

resulting in his release, we note that the trial court provided two grounds in support of its

ruling.     The trial court concluded that D’Ambrosio met the requirements of R.C.

2743.48(A)(5) because of the Brady violations that occurred during his trial, and also

because of the state’s conduct after it was ordered to release or retry D’Ambrosio

pursuant to the 180-day order.

          {¶18} With regard to the Brady violations, the court in Hill,10th Dist. Franklin No.

12AP-635, 2013-Ohio-1968, held that Hill met the criteria of a wrongfully imprisoned

individual under R.C. 2743.48(A)(5) where his conviction was reversed as the result of an

illegal search and seizure. In light of that reversal, the prosecuting attorney asserted that

the state could not successfully reprosecute Hill. In determining that Hill met the criteria

of a wrongfully imprisoned individual under R.C. 2743.48(A)(5), the Tenth Appellate

District held that a procedural error effectively precluded a future prosecution and stated

that there was “a direct causal relationship between the procedural error of the police in

obtaining critical evidence against Hill and the ultimate dismissal of the charges against

him.” Id. at ¶ 44. The court stated:

          [W]e believe that the “subsequent to sentencing” phrase modifies the timing
          of the convict’s release, i.e., it mandates that the individual be released from
          prison subsequent to sentencing, based on an error of procedure that
          occurred before sentencing.

Id. at ¶ 45, fn. 4.

          {¶19} Similarly, in Mansaray v. State, 8th Dist. Cuyahoga No. 98171,

2012-Ohio-3376, discretionary appeal allowed, Mansaray v. State, 134 Ohio St.3d 1417,
2013-Ohio-158, 981 N.E.2d 884, the defendant had been convicted of drug offenses

based on evidence obtained by police in violation of the Fourth Amendment. On appeal,

the denial of the motion to suppress was subsequently reversed. In concluding that

Mansaray sufficiently set forth a wrongful imprisonment claim, this court noted that “the

improper denial of Mansaray’s motion to suppress — the error in procedure — occurred

prior to sentencing. Therefore, Mansaray satisfied the requirements in R.C.

2743.48(A)(5).”

      {¶20} In addition, in Larkins v. State, 10th Dist. Franklin No. 09AP-140,

2009-Ohio-3242, ¶ 10, the Court of Claims held that a prosecutor’s failure to disclose

exculpatory evidence to the defendant constituted an error in procedure for purposes of

R.C. 2743.48(A)(5) and addressed the issue of when the error in procedure must occur.

In that matter, Larkins was convicted of aggravated murder, attempted murder, and

aggravated robbery. He later obtained exculpatory documents that the Cuyahoga County

Common Pleas Court concluded should have been turned over to Larkins prior to trial

under Brady. The trial court eventually granted Larkins’s motion to dismiss the charges,

and this court affirmed. State v. Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90.

Following those proceedings, Larkins sought a declaration in the trial court that he was a

wrongfully imprisoned individual as defined in R.C. 2743.48. He later entered into a

joint stipulation with the state that he had been released as the result of an error in

procedure, and the trial court found that appellant was a wrongfully imprisoned

individual. On appeal, the Tenth District Court of Appeals acknowledged that a Brady
violation that occurred before sentencing constitutes an error in procedure under R.C.

2743.48(A)(5) because the error resulted in Larkins’s release.

       {¶21} In this matter, the trial court also held that the Brady violation, which

occurred before sentencing, constituted an error in procedure under R.C. 2743.48(A)(5).

The trial court stated:

       The district court found in 2006 that the state committed a Brady violation
       by withholding exculpatory evidence from D’Ambrosio at his trial in 1989.
       * * * While the Brady violation occurred prior to conviction, it was not
       discovered until sentencing and imprisonment had occurred, and this error
       in criminal procedure resulted in D’Ambrosio’s release.

       {¶22} We likewise conclude that there are no genuine issues of material fact in this

matter and that D’Ambrosio established the requirements of R.C. 2743.48 as a matter of

law. In the extensive habeas corpus proceedings conducted from 2001 to 2006, the

federal courts ruled that the state failed to disclose exculpatory evidence in violation of

D’Ambrosio’s due process rights.            This Brady violation, which occurred before

sentencing, can no longer be cured. For that reason, the trial court properly concluded

that there has been an error in procedure that resulted in D’Ambrosio’s release, as

required under R.C. 2743.48(A)(5).

       {¶23} With regard to the additional ground that the trial court relied upon in

support of its conclusion that the requirements of R.C. 2743.48(A)(5) were met herein, it

is undisputed that the state is now barred from reprosecuting D’Ambrosio because of its

actions following the 2006 retrial order.

       {¶24} The district court observed that pursuant to Satterlee v. Wolfenbarger, 453
F.3d 362, 370 (6th Cir.2006), it is vested with broad discretion to fashion a proper remedy

in habeas corpus that allows a district court to bar the state from reprosecuting where

there are “extraordinary circumstances.”         The district court concluded that such

“extraordinary circumstances” were present as “the state inexcusably, repeatedly, or

otherwise abusively fails to act within the prescribed time period or if the state’s delay is

likely to prejudice the petitioner’s ability to mount a defense at trial[.]” In support of this

conclusion, the district court listed the state’s failure to retry D’Ambrosio within 180

days, its attack on the state court judge before whom the retrial was pending, and its delay

in notifying the defense of the death of a key witness, and in producing yet more

potentially exculpatory evidence.

       {¶25} The district court explained:

       For 20 years, the State held D’Ambrosio on death row, despite wrongfully

       withholding evidence that “would have substantially increased a reasonable

       juror’s doubt of D’Ambrosio’s guilt.” D’Ambrosio, 527 F.3d [489] at 499.

       Despite being ordered to do so by this Court during the extensive habeas

       proceedings before it, the State still failed to turn over all relevant and

       material evidence relating to the crime of which D’Ambrosio was

       convicted. D’Ambrosio * * *, 619 F.Supp.2d [428] at 451-53. Then, once

       it was ordered to provide D’Ambrosio a constitutional trial or release him

       within 180 days, the State did neither. See Id. at 451-55. During those 180

       days, the State engaged in substantial inequitable conduct, wrongfully
          retaining and delaying the production of yet more potentially exculpatory

          evidence. See Id. And, as the 180-day deadline approached, certain of the

          State’s counsel baselessly attacked the state trial judge, came before this

          Court and supplied testimony that, charitably, only can be described as

          “strain[ing] credulity,” and showed startling indifference to D’Ambrosio’s

          rights. Id. at 451-55. Because the State failed to retry D’Ambrosio within

          180 days, moreover, the critical State’s witness — the man around whom

          the entire theory of the State’s case revolved — is no longer available for

          trial, a fact the State knew but withheld from D’Ambrosio, the state court,

          and this Court. To fail to bar retrial in such extraordinary circumstances

          surely would fail to serve the interests of justice. Indeed, it would pervert

          those interests.   D’Ambrosio v. Bagley, 688 F.Supp.2d 709 (N.D.Ohio

          2010).

          {¶26} The trial court likewise concluded that “the original Brady violation and the

continuing due process violations” that compelled the federal courts to bar the

reprosecution of D’Ambrosio are sufficient to meet R.C. 2743.48(A)(5). The trial court

stated:

          [E]rrors in procedure continued to be committed by the state after
          D’Ambrosio was sentenced and imprisoned. * * * This may be the only
          instance to date in which the state cannot genuinely contest that an error in
          procedure occurring subsequent to sentencing and during or subsequent to
          imprisonment (i.e., due process violation while awaiting retrial) has actually
          resulted in an individual’s release. Summary judgment thus is appropriate
          in favor of D’Ambrosio upon this additional basis.
      {¶27} We also conclude, based upon our review of the undisputed facts and the

federal   court   proceedings,   that   subsequent    to D’Ambrosio’s sentencing and

imprisonment, the state committed errors in procedure and, because of those errors,

D’Ambrosio was released and cannot be reprosecuted.        The record clearly shows, and it

is undisputed, that on March 24, 2006, the district court granted D’Ambrosio’s petition

for a writ of habeas corpus and ordered the state to set aside D’Ambrosio’s conviction

and sentence or conduct another trial within 180 days. This order was stayed pending

appeal and was then affirmed. On September 11, 2008, the district court, in compliance

with the Sixth Circuit’s mandate, ordered the state to either set aside D’Ambrosio’s

convictions and sentences as to all counts of the indictment, including the sentence of

death, or to conduct another trial within 180 days from that date. By February 2009,

however, the state produced additional, previously undisclosed, evidence.        The state

sought additional time within which to try D’Ambrosio, and on April 27, 2009, the

district court granted the state an additional 15 days to retry D’Ambrosio. The State took

no action during this 15-day period. The state also failed to timely inform the court or

defense counsel of Espinoza’s April 30, 2009 death, and on March 3, 2010, the district

court barred the reprosecution of D’Ambrosio.        Therefore, D’Ambrosio has established

the requirements of R.C. 2743.48(A)(5) as a matter of law.

      {¶28} For all of the foregoing reasons, the trial court properly concluded that there

are no genuine issues of material fact, and that D’Ambrosio is entitled to judgment as a

matter of law. The record clearly establishes 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.

       {¶29} The state’s first, second, and third assignments of error are without merit.

       {¶30} 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.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR
