[Cite as Ballard v. State, 2012-Ohio-3086.]


         Court of Appeals of Ohio
                       EIGHTH APPELLATE DISTRICT
                          COUNTY OF CUYAHOGA



                      JOURNAL ENTRY AND OPINION
                               No. 97882


                           RASHAD BALLARD
                                                    PLAINTIFF-APPELLANT

                                              vs.

                              STATE OF OHIO
                                                    DEFENDANT-APPELLE



                          JUDGMENT:
                    REVERSED AND REMANDED


                              Civil Appeal from the
                     Cuyahoga County Court of Common Pleas
                              Case No. CV-755140

        BEFORE: Rocco, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: July 5, 2012
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ATTORNEYS FOR APPELLANT

Samuel S. Riotte
David B. Malik
8437 Mayfield Road
Suite 101
Chesterland, Ohio 44026

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Michael A. Dolan
Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
                                    3



KENNETH A. ROCCO, J.:

       {¶1} Plaintiff-appellant Rashad Ballard appeals from the trial court

order that granted summary judgment to defendant-appellee the state of

Ohio on Ballard’s complaint, which sought a declaratory judgment that he

was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48 for the

period from December 12, 2009 to July 16, 2010 in case number

CR-521631.

       {¶2} Ballard presents two assignments of error. He argues that R.C.

2743.48 requirements should be liberally construed, and that summary

judgment on his complaint violated his right to due process of law.

       {¶3} Upon a review of the record, this court agrees that summary

judgment in the state’s favor on Ballard’s complaint was inappropriate.

Consequently, Ballard’s assignments of error are sustained.           The trial

court’s order is reversed, and this case is remanded for further proceedings

consistent with this opinion.

       {¶4} Ballard’s complaint, which he later supported by affidavit, set

forth the following facts.
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       {¶5} In 2005, Ballard was convicted of sexual battery.         He was

classified under Ohio’s version of “Megan’s Law” as a sexually oriented

offender and served a year in prison.

       {¶6} Upon his release from prison, Ballard complied with the

requirements imposed by his sexual offender classification. However, in

2008, the Ohio Attorney General reclassified Ballard under Ohio’s

newly-enacted version of the Adam Walsh Act (“AWA”).                         The

reclassification changed the frequency of Ballard’s reporting requirements

from annually for only ten years to every ninety days for the rest of his life.

Ballard did not receive any notification of the attorney general’s action.

       {¶7} In August 2008, Ballard was indicted in case number

CR-521631 for failing to meet the newly-imposed reporting requirements.

He was arrested on this charge in March 2009.

       {¶8} During the pendency of his criminal case, he filed a petition in

the Cuyahoga County Court of Common Pleas, Civil Division, to contest

the application of the AWA to his 2005 conviction.1 However, the state

never responded to his petition and the court took no action.

       {¶9} In June 2009, acting on the advice of counsel, Ballard pleaded

guilty in CR-521631 to the charge of failing to comply with the AWA


       1Case   number CV-688694.
                                   5

requirements. He was sentenced to a nine-month prison term, but the term

was suspended and he was placed on six months of “probation.”

      {¶10} Ballard failed to successfully complete his “probation.” On

December 2, 2009, he was arrested for violating the terms of his

“probation.” On December 9, 2009, the trial court imposed the original

sentence in

CR-521631 for Ballard’s conviction for violating the AWA.          Ballard

remained incarcerated in the Belmont Correctional Institution from

December 12, 2009, to July 16, 2010, for his conviction.

      {¶11} On June 4, 2010, the decision in State v. Bodyke, 126 Ohio

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, was announced. Bodyke held

that the AWA was unconstitutional as applied to persons such as Ballard.

Therefore, pursuant to Bodyke, “any reporting requirements imposed on

[Ballard] under the AWA were unlawfully imposed * * * .” State v.

Caldero, 8th Dist. No. 96719, 2012-Ohio-11, ¶ 11.

      {¶12} On July 22, 2010, six days after his release from prison,

Ballard filed a motion in case number CR-521631 to withdraw his guilty

plea to the charge of failure to comply with the AWA’s reporting

requirements. On October 6, 2010, the trial court granted his motion.
                                      6

       {¶13} On October 21, 2010, the civil court finally acted, granting

Ballard’s petition to contest the application of the AWA to his 2005

conviction. That court further formally reinstated Ballard’s original sexual

offender classification.

       {¶14} On November 10, 2010, the state dismissed the charge against

Ballard in case number CR-521631 with prejudice.            The state attorney

general’s office sent a letter to Ballard dated November 29, 2010, that

informed him that his “offender classification ha[d] been switched back to

[his] original Megan’s Law classification,” and that his next reporting date

was “3/6/2013.”

       {¶15} Ballard filed the instant action on May 12, 2011. He sought a

declaration that he was a “wrongfully imprisoned person” in case number

CR-521631 pursuant to R.C. 2743.48. He attached a copy of the letter sent

to him from the attorney general’s office dated November 29, 2010.

       {¶16} After the state filed its answer to the allegations of Ballard’s

complaint, it filed a motion for summary judgment.           The state argued

Ballard could not meet all the requirements necessary to obtain relief under

R.C. 2743.48. The state filed no evidentiary material to its motion.

       {¶17} Ballard responded with a brief in opposition. He attached his

affidavit, swearing to the truth of the allegations of his complaint.
                                    7

      {¶18} The trial court ultimately granted the state’s motion for

summary judgment on Ballard’s complaint. In its opinion, citing Ruff v.

State, 10th Dist. No. 95APE02-243, 1995 WL546896 (Sept. 14, 1995), the

trial court indicated Ballard’s guilty plea to the charge in CR-521631 barred

him from obtaining the relief he sought.

      {¶19} Ballard filed a timely appeal from the trial court’s decision.

He presents the following two assignments of error.

      “I.     The trial court erred when it strictly construed Ohio’s

wrongful imprisonment statute.

      “II.    The trial court erred and violated the Plaintiff’s Due

Process rights in failing to recognize that Mr. Ballard’s initial guilty

plea was constitutionally deficient.”

      {¶20} Ballard’s two assignments of error present similar issues;

therefore, they will be addressed together. He argues that the record does

not support an award of summary judgment in the state’s favor on his

complaint for a declaratory judgment. He contends the evidence he

submitted to establish the requirements of R.C. 2743.48(A) was sufficient

to withstand the state’s motion. This court agrees.

      {¶21}     An appellate court reviews a trial court’s decision on a

motion for summary judgment de novo. Grafton v. Ohio Edison Co., 77
                                    8

Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).         Summary judgment is

appropriate only when, construing the evidence most strongly in favor of

the nonmoving party: (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, that conclusion being adverse to the

nonmoving party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367,

369-370, 696 N.E.2d 201 (1998), citing Horton v.

Harwick Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995),

paragraph three of the syllabus.

       {¶22} In order to file suit in the Court of Claims for damages for

wrongful imprisonment, a petitioner first must obtain a declaratory

judgment in the court of common pleas certifying that the petitioner was a

“wrongfully imprisoned individual” pursuant to R.C. 2743.48. State ex rel.

Tubbs Jones v. Suster, 84 Ohio St.3d 70, 701 N.E.2d 1002 (1998); R.C.

2305.02.

       {¶23} A judgment of acquittal is insufficient; the petitioner seeking

to establish a claim for wrongful imprisonment must produce evidence to

establish the requirements set forth in R.C. 2743.48(A). Ellis v. State, 64

Ohio St.3d 391, 393, 596 N.E.2d 428 (1992), citing Walden v. State, 47

Ohio St.3d 47, 547 N.E.2d 962 (1989). The reason for the requirements is
                                    9

because the wrongful imprisonment statutes were intended to compensate

the innocent, not those who merely avoided criminal liability. Walden at

52; Gover v. State, 67 Ohio St.3d 93, 95, 616 N.E.2d 207 (1993). The

petitioner carries the burden of proof by a preponderance of the evidence.

Dunbar v. State, 8th Dist. No. 97364, 2012-Ohio-707, ¶ 11.

      {¶24} R.C. 2743.48 provides in pertinent part as follows:

       (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 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
                                     10

found guilty, including all lesser-included offenses, either was not
committed by the individual or was not committed by any person.

        {¶25} The statute clearly states that the complainant must meet all of

the requirements in order to obtain a declaratory judgment. In this case, the

state   argued to the trial court in support of its motion for summary

judgment that Ballard was foreclosed from relief because he entered a

guilty plea in case number CR-521631. The trial court incorrectly agreed

with the state’s argument, finding the decision in Ruff, 10th Dist. No.

95APE02-243, 1995 WL546896 (Sept. 14, 1995), persuasive, while the

decision in State v. Moore, 165 Ohio App.3d 538, 2006-Ohio-114, 847

N.E.2d 452 (4th Dist.), was “distinguishable.”

        {¶26} This court has found Moore’s reasoning, however, to be

appropriate. In Dunbar, 8th Dist. No. 97364, 2012-Ohio-707, ¶ 15, this

court agreed with Moore that the narrowest interpretation of R.C.

2743.48(A)(2) would thwart the remedial goals of the wrongful

imprisonment statutes. Although Moore acknowledged R.C. 2743.48 is

ambiguous to the extent that it does not explicitly state whether guilty pleas

that are void will preclude recovery, the statute’s purpose would not be

served by withholding relief from individuals who were induced to enter a

guilty plea “that carries no force or effect at law.”
                                            11

                      On the other hand, interpreting R.C. 2743.48 liberally
             would result in assuring that a plea that has been determined
             to have no legal effect does not, in fact, have any legal effect
             upon either the criminal or civil matters associated with the
             case. This would further the remedial goals of the statute by
             addressing the particularly egregious wrong of imprisoning an
             individual not only wrongfully, but also unconstitutionally.
             Id., citing Moore at ¶ 23.

             {¶27} Therefore, a void guilty plea “does not exist for purposes of

      determining whether a person has the right to see compensation under

R.C. 2743.48.” Id. at ¶16.2

      {¶28} Because the record contains evidence that supports Ballard’s claim, the trial

court acted improperly in granting the state’s unsupported motion for summary judgment.

Ballard’s assignments of error are sustained.

      {¶29} The trial court’s order is reversed, and this case is remanded for further

proceedings consistent with this opinion.

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

      The court finds there were reasonable grounds for this appeal.




      2Similarly, in State v. Beasley, 8th Dist. No. 96806, 2011-Ohio-6650, ¶ 11,
this court addressed the effect of a guilty plea to a reporting violation based on
AWA reclassification, and stated that, because the AWA was deemed
unconstitutional, as a matter of law, it could not “serve as the predicate for the
violations charged in the indictment”; therefore, even if the defendant entered a
guilty plea, his conviction is void. State v. Grunden, 8th Dist. No. 95609,
2011-Ohio-3687.      Indeed, the defendant is entitled to “immediate release from
the prison time he is serving.” Beasley, at ¶ 12.
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      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.



_________________________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, SR., J., CONCURS
FRANK D. CELEBREZZE, JR., P.J., DISSENTS
(SEE ATTACHED DISSENTING OPINION)

      FRANK D. CELEBREZZE, JR., P.J., DISSENTING:

             {¶30} I dissent from the majority’s holding that material issues of

      fact exist regarding Ballard’s classification as a wrongfully imprisoned

      person. In this case, that question represents a question of law, unaided by

      further testimony or discovery.          The facts necessary for such a

      determination are clear.    Ballard was arrested, pled guilty to, and was

      convicted of failing to comply with new conditions under the AWA that

      were not previously mandated under Megan’s Law. Ballard’s plea of guilt

      is fatal to his case.

             {¶31} The majority relies on this court’s holding in Dunbar,

      2012-Ohio-707, which, in turn, relies on Moore, 165 Ohio App.3d 538,

      2006-Ohio-114, 847 N.E.2d 452. These cases construct a legal fiction that
                                   13

the wrongfully imprisoned person statute is ambiguous regarding vacated

convictions and withdrawn guilty pleas. However, the reason underlying

such a liberal construction is misplaced in this case. This view was taken

in these cases in furtherance of the remedial goals of compensating those

wrongfully imprisoned. But that goal can be accomplished without this

court’s storied hand penning new provisions of the Ohio Revised Code.

        {¶32} The wrongfully imprisoned statute supplements, not supplants,

the common law tort of wrongful imprisonment.         Haddad v. Dept. of

Rehab. & Corr., 10th Dist. No. 01AP-1130, 2002-Ohio-2813, ¶ 21. As

such, Ballard may recover under a tort action against the state even though

he fails to qualify under R.C. 2743.48. Bennett v. ODRC, 60 Ohio St.3d

107, 110-111, 573 N.E.2d 633 (1991). Such a liberal interpretation of

unusually clear statutory language is neither warranted nor required in this

case.   Therefore, I would uphold the trial court’s grant of summary

judgment in the state’s favor.
