[Cite as Armstrong v. State, 2017-Ohio-1207.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO



SHAWN ARMSTRONG,                                :     OPINION

                                                :
                 Plaintiff-Appellant,                 CASE NO. 2016-T-0054
                                                :

        - vs -                                  :

STATE OF OHIO, et al.,                          :

                                                :

                 Defendant-Appellee.            :


Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CV
00600.

Judgment: Affirmed.


Shawn Armstrong, pro se, PID: A664-072, Marion Correctional Institution, P.O. Box 57,
940 Marion-Williamsport Rd., Marion, OH 43302 (Plaintiff-Appellant).

Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215 and Debra L. Gorrell Wehrle, Assistant Attorney General,
150 East Gay Street, Criminal Justice Section, 16th Floor, Columbus, OH 43215 (For
Defendant-Appellee).


COLLEEN MARY O’TOOLE, J.

                 {¶1}    Appellant, Shawn Armstrong, appeals from the May 3, 2016

        judgment of the Trumbull County Court of Common Pleas, granting appellee’s,
       the state of Ohio, motion to dismiss regarding appellant’s re-filed pro se wrongful

       imprisonment claim.1 For the reasons stated, we affirm.

               {¶2}   Appellant was a defendant in the 1998 case relating to the murder

       of Brad McMillan. Following trial, the jury found appellant guilty of one count of

       aggravated murder, in violation of R.C. 2903.01(A), with a firearm specification,

       in violation of R.C. 2941.145. The trial court sentenced appellant to a prison term

       of 23 years to life. Appellant filed an appeal with this court, Case Nos. 2001-T-

       0120 and 2002-T-0071.

               {¶3}   On October 22, 2004, this court found that the trial court’s failure to

       provide a limiting instruction regarding a witness’s testimony allowed the

       prosecution to use prior unsworn statements, not only for impeachment

       purposes, but also as substantive evidence, in violation of appellant’s

       constitutional right to confront a witness under the Sixth Amendment of the

       United States Constitution. State v. Armstrong, 11th Dist. Trumbull Nos. 2001-T-

       0120 and 2002-T-0071, 2004 WL 2376467, ¶110, 118. Thus, this court reversed

       appellant’s conviction and remanded the matter for further proceedings. Id. at

       ¶125. Appellant remained incarcerated.

               {¶4}   On remand, appellant was appointed counsel for a retrial.

       However, on May 12, 2006, the state filed for leave for a nolle prosequi without

       prejudice, which the trial court granted that same date. Appellant was released

       from custody but remains subject to jeopardy for the murder of Mr. McMillan.




1. Appellant is currently incarcerated on another offense in another matter and is scheduled to be
released from prison in 2022.


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       {¶5}   In 2008, appellant filed a wrongful imprisonment case in the

Franklin County Court of Common Pleas, seeking a declaration that he is a

wrongfully imprisoned individual so that he may be entitled to seek compensation

from the state under R.C. 2743.48. The matter was later transferred to Trumbull

County. Thereafter, the state filed a motion to dismiss. Appellant subsequently

voluntarily dismissed that case without prejudice.

       {¶6}   In 2009, appellant re-filed his complaint for wrongful imprisonment

in Trumbull County. On August 23, 2010, the trial court dismissed the case with

prejudice to re-file until such time as appellant can comply with the mandatory

elements of R.C. 2743.48 (requiring an individual to prove that “no criminal

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

attorney[.]”) R.C. 2743.48(A)(4). The court noted that the prosecutor’s affidavit

cannot be overcome by appellant as it states that appellant remains a suspect in

the murder of Mr. McMillan. The trial court concluded that because appellant is

unable to establish under any circumstances that the prosecutor cannot or will

not bring further action against him, the court was without jurisdiction to entertain

his complaint.

       {¶7}   In 2015, appellant re-filed his wrongful imprisonment claim in the

Franklin County Court of Common Pleas. The matter was later transferred to

Trumbull County. Thereafter, the state filed a motion to dismiss.

       {¶8}   On May 3, 2016, the trial court granted the state’s motion to

dismiss. The court found that given that the case involves the same parties and

issues as well as arising from the same transaction or occurrence as that of the




                                      3
prior litigation, i.e., wrongful imprisonment, where a final and valid decision was

rendered on the merits in 2010, the case is barred by res judicata. The court

also found that the lack of statutory limitation for re-indictment of murder charges

under R.C. 2901.13(A)(2) barred appellant’s ability to satisfy the fourth set of

statutory criteria of R.C. 2743.48(A)(4). Appellant filed the instant pro se appeal

and asserts the following four assignments of error:

       {¶9}   “[1.] The Trial Court Abused its’ Discretion & Erred by granting The

Appellees Motion to Transfer (Venue) finding that (Venue) was Proper in Franklin

County.

       {¶10} “[2.] The Trial Court Abused its’ Discretion & Erred by Willfully

denying Appellants Motion to Stay the Proceedings in Pursuant to R.C.

2711.02(B) pending Appellants Appeal of the Transfer of His Action to The

Trumbull County Court of Common Pleas from Franklin County, Depriving

Appellant of His Procedural & Substantive Due Process & Equal Protection of the

Law.

       {¶11} “[3.] The Trial Court Abused its’ Discretion & Erred by Dismissing

Appellants Claim against Appellee Due to the Doctrine of Res Judicata & The

Statute of Limitation of R.C. 2901.13(A)(2) Depriving Appellant of His Substantive

& Procedural Due Process & Equal Protection of the Law.

       {¶12} “[4.] The Trial Court Abused its’ Discretion & Erred by Dismissing

Appellants Statutory Claim To be Declared a Wrongful Imprisoned Individual

Contrary to the Plain Terms of O.R.C. 2743.48(A)(1)-(5) Depriving Appellant of




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His Constitutional Guarantee of Substantive & Procedural Due Process & Equal

Protection of the Law.”

       {¶13} Preliminarily, we note that the wrongful imprisonment statutes were

intended to compensate only the innocent for wrongful imprisonment.          See

Walden v. State, 47 Ohio St.3d 47, 49 (1989). “In a proceeding under R.C.

2305.02 (“Jurisdiction to hear action for wrongful imprisonment”), the claimant

bears the burden of proving his innocence by a preponderance of the evidence.”

Id. at paragraph three of the syllabus.

       {¶14} “The General Assembly has developed a two-step process to

compensate those who have been wrongfully imprisoned. The first step is an

action in the common pleas court seeking a preliminary factual determination of

wrongful imprisonment; the second step is an action in the Court of Claims to

recover money damages. Griffith v. Cleveland, 128 Ohio St.3d 35, 2010-Ohio-

4905, * * *, paragraph two of the syllabus. The wrongful-imprisonment statute,

R.C. 2743.48, was added to the Revised Code in 1986 by Sub.H.B. No. 609 ‘to

authorize civil actions against the state, for specified monetary amounts, in the

Court of Claims by certain wrongfully imprisoned individuals.’ 141 Ohio Laws,

Part III, 5351.   The statute was designed to replace the former practice of

compensating those wrongfully imprisoned by ad hoc moral-claims legislation.

Walden[, supra, at] 49 * * *. Under the statutory scheme, a claimant must be

determined to be a ‘wrongfully imprisoned individual’ by the court of common

pleas before being permitted to file for compensation against the state of Ohio in

the Court of Claims.      R.C. 2305.02 and 2743.48(B)(2); Griffith v. Cleveland,




                                      5
paragraph two of the syllabus.” (Parallel citations omitted.) Doss v. State, 135

Ohio St.3d 211, 2012-Ohio-5678, ¶10.

       {¶15} “Actions against the state for wrongful imprisonment are governed

by R.C. 2743.48, which places the burden on a claimant to prove by a

preponderance of the evidence that he or she meets the definition of a

‘wrongfully imprisoned individual.’” Bundy v. State, 143 Ohio St.3d 237, 2015-

Ohio-2138, ¶15, citing Doss, supra, at paragraph one of the syllabus. To meet

that definition, the claimant must satisfy each of the following requirements under

R.C. 2743.48(A):

       {¶16} “(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.

       {¶17} “(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.

       {¶18} “(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.

       {¶19} “(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




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

corporation against the individual for any act associated with that conviction.

       {¶20} “(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.”

       {¶21} In his first assignment of error, appellant argues the trial court erred

in transferring venue from Franklin County to Trumbull County.

       {¶22} R.C. 2305.02 states:

       {¶23} “The court of common pleas in the county where the underlying

criminal action was initiated has exclusive, original jurisdiction to hear and

determine a civil action or proceeding that is commenced by an individual who

seeks a determination by that court that the individual satisfies divisions (A)(1) to

(5) of section 2743.48 of the Revised Code. If that court enters the requested

determination, it shall comply with division (B) of that section.”

       {¶24} R.C. 2743.48(B)(1) provides in part: “A person may file a civil action

to be declared a wrongfully imprisoned individual in the court of common pleas in

the county where the underlying criminal action was initiated.”

       {¶25} In this case, the underlying criminal action, i.e., aggravated murder,

was initiated and decided in the Trumbull County Court of Common Pleas. In

2015, appellant re-filed his wrongful imprisonment claim in the Franklin County




                                       7
Court of Common Pleas. The case was later transferred to Trumbull County.

Pursuant to R.C. 2305.02 and 2743.48(B)(1), the Franklin County Court of

Common Pleas properly transferred the instant matter to Trumbull County.

       {¶26} Appellant’s first assignment of error is without merit.

       {¶27} In his second assignment of error, appellant contends the trial court

erred in denying his motion to stay pending his appeal of the transfer of venue to

the Trumbull County Court of Common Pleas from Franklin County.

       {¶28} An order granting or denying a motion to change venue is

interlocutory and not a final order subject to appellate review under R.C. 2505.02.

State ex rel. Allied Chem. Co. v. Aurelius, 16 Ohio App.3d 69 (8th Dist.1984),

citing Snell v. The Cincinnati Street Ry. Co., 60 Ohio St. 256, paragraph five of

the syllabus (1899); Falls Elec. Contracting, Inc. v. Tri-State Construction, 11th

Dist. Trumbull No. 2004-T-0104, 2004-Ohio-6952, ¶2; In re W.W., 190 Ohio

App.3d 653, 2010-Ohio-5305, ¶19 (11th Dist.).

       {¶29} As addressed, pursuant to R.C. 2305.02 and 2743.48(B)(1), the

Franklin County Court of Common Pleas properly transferred the instant matter

to Trumbull County.     In adhering to the statutory language, the matter was

transferred to the county where the underlying criminal conviction was initiated,

i.e., Trumbull County. As this court was without jurisdiction to render a decision

on an order denying or granting a change of venue, it was proper for the trial

court to deny appellant’s request for a stay.

       {¶30} Appellant’s second assignment of error is without merit.




                                      8
       {¶31} In his third assignment of error, appellant alleges the trial court

erred in dismissing his claim under res judicata and the statute of limitation.

       {¶32} “Res judicata applies when (1) the judgment of the prior suit is

valid, final, and was decided on the merits; (2) the judgment of the prior suit was

issued by a court of competent jurisdiction; (3) both the prior and present suit

involve the same parties or those whose interests are sufficiently close to call for

privity; and (4) both the prior and present suit arose from the same transaction or

occurrence.” Yeager v. Ohio Civil Rights Comm., 11th Dist. Trumbull No. 2004-

T-0099, 2005-Ohio-6151, ¶35, citing Grava v. Parkman Twp., 73 Ohio St.3d 379,

syllabus (1995).

       {¶33} As stated, in 2009, appellant re-filed his complaint for wrongful

imprisonment in Trumbull County. On August 23, 2010, the trial court dismissed

the case with prejudice to re-file until such time as appellant can comply with the

mandatory elements of R.C. 2743.48 (requiring an individual to prove that “no

criminal proceeding is pending, can be brought, or will be brought by any

prosecuting attorney[.]”)     R.C. 2743.48(A)(4).      The court noted that the

prosecutor’s affidavit cannot be overcome by appellant as it states that appellant

remains a suspect in the murder of Mr. McMillan. The trial court concluded that

because appellant is unable to establish under any circumstances that the

prosecutor cannot or will not bring further action against him, the court was

without jurisdiction to entertain his complaint.




                                       9
       {¶34} In 2015, appellant re-filed his wrongful imprisonment claim in the

Franklin County Court of Common Pleas. The matter was later transferred to

Trumbull County. Thereafter, the state filed a motion to dismiss.

       {¶35} On May 3, 2016, the trial court granted the state’s motion to

dismiss. The court found that given that the case involves the same parties and

issues as well as arising from the same transaction or occurrence as that of the

prior litigation, i.e., wrongful imprisonment, where a final and valid decision was

rendered on the merits in 2010, the case is barred by res judicata. The court

also found that the lack of statutory limitation for re-indictment of murder charges

under R.C. 2901.13(A)(2) barred appellant’s ability to satisfy the fourth set of

statutory criteria of R.C. 2743.48(A)(4).

       {¶36} Thus, there was a valid final judgment decided on the merits by a

court of competent jurisdiction. The prior and present suits involve the same

parties and arose from the same transaction or occurrence, i.e., the alleged

wrongful imprisonment. The issues are the same. The facts are identical.

       {¶37} Appellant has already obtained a decision that he cannot prove that

a prosecutor cannot or will not bring a criminal action of aggravated murder

against him pursuant to R.C. 2743.48(A)(4).        Appellant cannot be declared

wrongfully imprisoned. In addition, the Ohio Supreme Court has established that

a dismissal of a criminal murder conviction, without prejudice to re-filing, given

the lack of time constraints under R.C. 2901.13(A)(2), bars an individual’s ability

to satisfy the fourth prong of the wrongful imprisonment statute. C.K. v. State,

145 Ohio St.3d 322, 2015-Ohio-3421, ¶18-19.




                                     10
            {¶38} Appellant’s third assignment of error is without merit.

            {¶39} In his fourth assignment of error, appellant maintains the trial court

      erred in dismissing his statutory claim to be declared a wrongful imprisoned

      individual contrary to R.C. 2743.48(A)(1)-(5).

            {¶40} As stated, to meet the definition of a wrongfully imprisoned

      individual, the claimant must satisfy each of the following requirements under

      R.C. 2743.48(A)(1)-(5). Appellant did not. Even putting aside the doctrine of res

      judicata, the plain language of the wrongful imprisonment statutes required the

      Franklin County Court of Common Pleas to transfer the matter to Trumbull

      County, i.e., the county where the underlying criminal conviction was initiated,

      and bars a declaratory judgment of wrongful imprisonment as criminal charges

      “can be brought” against appellant. See R.C. 2305.02; R.C. 2743.48(A)(1)-(5)

      and (B)(1).

            {¶41} Appellant’s fourth assignment of error is without merit.

            {¶42} For the foregoing reasons, appellant’s assignments of error are not

      well-taken. The judgment of the Trumbull County Court of Common Pleas is

      affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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