Johns v. State ( 1981 )

Putman, J.

A defendant has no common-law claim against the state for damages after he has obtained his release upon a writ of habeas corpus for violation of his constitutional rights. See Tymcio v. State (1977), 52 Ohio App. 2d 298.

Cuyler v. Sullivan (1980), 446 U. S. 335, recently held that the right of the accused to adequate representation of counsel includes the counsel which he personally selects and privately retains. However, this does not give him a right of civil action against the state government based solely upon the alleged shortcomings of such counsel.

In the case sub judice, the General Assembly did not attempt to vote Johns an unconditional grant of a specific sum as a “moral claim” or upon any other basis. Whether it could have done so in such a case is not before us and we make no decision thereon.

The General Assembly, aware of Johns v. Perini, supra, and its conditional nature, limited its grant of access to the public treasury to the prior condition that the Court of Claims hear the evidence de novo upon whether justice had been done in Johns’ state trial. The argument that Johns v. Perini, supra, is res judicata misses the mark completely. The point is that the decision in Johns v. Perini, supra, does not make the state liable nor does it obligate the General Assembly or limit it in the options it has available to impose as a precondition of its discretionary opening of the public treasury. The General Assembly understands that evidentiary restrictions coupled with the heavy burden of proof upon the state frequently lead to final releases from imprisonment irrespective of actual innocence of the accused or objectionable conduct on the part of the government.

There is no “presumption” that a released prisoner is entitled to a key to the public treasury. The General Assembly intended to defer to the Court of Claims on the separate question of whether the state of Ohio was responsible for Johns’ incarceration in such a way as to warrant any discretionary payment of tax dollars to him. Upon that question no prior judicial decision could be res judicata. That issue could not have been ligated in Johns v. Perini, supra.

In its opinion in the first appeal, the Court of Appeals for Franklin County correctly captured and clearly restated that unequivocal legislative purpose. In the second appeal of this cause, that court, comprised of a different panel, erroneously departed from “the law of the case” it had previously correctly declared.

The Court of Claims correctly followed the mandate of the Court of Appeals when, upon retrial, it entered a judgment in favor of the state upon the plaintiff having failed to adduce any evidence on the first issue in the legislative mandate.

Accordingly, the judgment of the Court of Appeals for Franklin County is reversed.

Judgment reversed.

Celebrezze, C. J., W. Brown, P. Brown, Sweeney and Locher, JJ., concur. C. Brown, J., dissents. Putman, J., of the Fifth Appellate District, sitting for Holmes, J.