Dunbar v. State ( 2012 )

[Cite as Dunbar v. State, 2012-Ohio-707.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97364
LANG DUNBAR
PLAINTIFF-APPELLEE
vs.
STATE OF OHIO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-734290
BEFORE: Cooney, J., Blackmon, A.J., and Sweeney, J.
RELEASED AND JOURNALIZED: February 23, 2012
ATTORNEYS FOR APPELLANT
William D. Mason
Cuyahoga County Prosecutor
Michael A. Dolan
Assistant County Prosecutor
Justice Center
1200 Ontario St., 8th Floor
Cleveland, OH 44113
ATTORNEY FOR APPELLEE
Terry H. Gilbert
Friedman & Gilbert
1370 Ontario Street
Suite 600
Cleveland, Ohio 44113-1752
COLLEEN CONWAY COONEY, J.:
{¶1} Defendant-appellant, the state of Ohio (“the State”), appeals the trial court’s
determination that plaintiff-appellee, Lang Dunbar (“Dunbar”), was a “wrongfully imprisoned
individual” pursuant to R.C. 2743.48. We find no merit to the appeal and affirm.
{¶2} The facts giving rise to this declaratory judgment action are not in dispute. On
November 7, 2004, Dunbar struck his live-in fiancée, Davida Moore (“Moore”), in the face and
head. He also twisted her legs and kicked her. Immediately following the incident, Dunbar
became remorseful, apologized, and instructed Moore not to leave the house or answer the door.
{¶3} On November 20, 2004, Moore filed a complaint against Dunbar with the
Cleveland police, and Dunbar was subsequently charged with domestic violence. Dunbar pled
no contest to the domestic violence charge in Cleveland Municipal Court, and the court
sentenced him to 180 days in jail.
{¶4} While Dunbar was serving his jail sentence, the Cuyahoga County Grand Jury
indicted him on three counts of abduction and one count of domestic violence arising from the
same November 7, 2004 incident. Dunbar negotiated a plea agreement wherein he agreed to
plead guilty to one count of abduction in exchange for community control sanctions. The court
accepted the plea with full knowledge of its terms but nevertheless imposed a two-year sentence.
On appeal, this court found that Dunbar knowingly, intelligently, and voluntarily entered into
the plea agreement and pled guilty in accordance with its terms. However, this court determined
that the trial court erred in imposing a prison sentence in contravention of the plea agreement
without affording Dunbar the opportunity to withdraw his plea. State v. Dunbar, 8th Dist. No.
87317, 2007-Ohio-3261, ¶ 141 (“Dunbar I”). Therefore, we directed that his plea be vacated.
Id. at ¶ 193.
{¶5} On remand, a jury convicted Dunbar of one count of abduction, and the court
sentenced him to a five-year prison term.1 This court again reversed Dunbar’s conviction, this
time because it found there was insufficient evidence to support the conviction. State v.
Dunbar, 8th Dist. No. 92262, 2010-Ohio-239, ¶ 30 (“Dunbar II”).
{¶6} In our opinion in Dunbar II, we recounted Moore’s testimony that after the
domestic violence incident, Dunbar told her not to leave the house or answer the door “because
of the way [her] face looked.” Moore stated that during the relevant time period, Dunbar never
threatened her, was not violent toward her, but instead, repeated ly apologized for the incident.
Moore further testified that, during the relevant time period, Dunbar left her alone in the house
for extended periods of time. Because there was no evidence that Dunbar locked Moore in the
1
Dunbar had been in prison for more than two years when the jury trial commenced in September 2008.
house each time he left, this court concluded that Moore had the opportunity to leave or summon
help, and thus there was insufficient evidence to support the abduction conviction. Dunbar was
subsequently ordered discharged from prison.
{¶7} On August 16, 2010, Dunbar filed the instant case seeking a declaration that he
was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48(A). This determination is a
prerequisite for filing a claim for damages against the State in the Court of Claims. R.C.
2743.48(D). The parties submitted cross-motions for summary judgment. The trial court
granted Dunbar’s motion for summary judgment, declared him a “wrongfully imprisoned
individual,” and denied the State’s motion for summary judgment. The State now appeals,
raising two assignments of error.
{¶8} In its first assignment of error, the State argues the trial court erred in granting
Dunbar’s motion for summary judgment and declaring him a “wrongfully imprisoned
individual.” The State contends that Dunbar’s initial guilty plea to the abduction charge
precludes him from qualifying as a “wrongfully imprisoned individual.” In its second
assignment of error, the State argues the trial court erred in denying its motion for summary
judgment because Dunbar failed to prove his innocence by a preponderance of the evidence. We
address these two assigned errors together because they are interrelated.
{¶9} An appellate court reviews a trial court’s decision on a motion for summary
judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241(1996). Summary judgment is appropriate 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.
{¶10} Prior to filing suit in the Court of Claims for damages for wrongful imprisonment,
a petitioner must obtain a declaratory judgment in the court of common pleas certifying that the
petitioner was a “wrongfully imprisoned individual.” R.C. 2743.48. To obtain the declaratory
judgment, the petitioner must establish that: (1) he was convicted of a felony; (2) he was
sentenced to prison for that conviction; (3) the conviction was vacated, dismissed, or reversed;
(4) no further prosecution was attempted or allowed for that conviction or any act associated with
that conviction; and (5) the offense of which the petitioner was found guilty was not committed
by the petitioner or was not committed at all. State ex rel. Tubbs Jones v. Suster, 84 Ohio St.3d
70, 701 N.E.2d 1002 (1998); R.C. 2305.02; R.C. 2743.48(A).
{¶11} However, the petitioner seeking to establish a claim for wrongful imprisonment
must produce more evidence than a judgment of acquittal, which is merely a judicial finding that
the state did not prove its case beyond a reasonable doubt. 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 wrongful imprisonment statutes were intended to compensate the innocent for wrongful
imprisonment. They are not intended to compensate those who have 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 in affirmatively establishing his or her innocence, by a
preponderance of the evidence, under R.C. 2743.48(A)(5).
{¶12} The State argues that by entering a guilty plea in his first prosecution, Dunbar
forfeited any ability to petition for wrongful imprisonment status. In support of its argument, the
State emphasizes the fact that R.C. 2743.48(A)(2) requires that the petitioner be “found guilty of,
but did not plead guilty to, the particular charge.” Dunbar, on the other hand, argues that
because his guilty plea was vacated by this court, it cannot bar his right to present a claim for
wrongful imprisonment.
{¶13} In State v. Moore, 165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452 (4th
Dist.), the appellate court was confronted with the same issue presented here. Moore pled guilty
to murder in 1995. His counsel had failed to inform him that the state’s gunshot-residue tests
showed that Moore tested negative for gunshot residue and that another person, Lisa Mullett,
tested positive for gunshot residue. On advice of counsel and without knowledge of the
gunshot-residue tests, Moore pled guilty and was sentenced to 15 years to life in prison. When
Moore learned about the tests, he filed a motion for postconviction relief and a motion to
withdraw his guilty plea. The trial court granted the motion, finding that he did not receive the
effective assistance of counsel and that he did not knowingly, intelligently, and voluntarily enter
his plea.
{¶14} Moore’s case proceeded to trial in July 2004. Two witnesses testified that the
gunshot-residue tests indicated that Mullett, not Moore, had fired the gun. Additionally, two
other witnesses testified that they had overheard Mullett admit that she committed the murder.
The jury found Moore not guilty.
{¶15} In August 2004, Moore filed a wrongful imprisonment claim under R.C. 2743.48.
Based on the transcript and exhibits from Moore’s criminal trial, the court issued a judgment
entry declaring Moore a “wrongfully imprisoned individual.” The state appealed, arguing that
the Moore could not be declared a “wrongfully imprisoned individual” because he had previously
pled guilty to the charge for which he was imprisoned. In affirming the trial court’s judgment,
the Moore court explained that because his guilty plea was void, it carried no force or effect at
law. Id., 165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452, ¶ 22, (4th Dist.). The Moore
court further explained:
R.C. 2743.48 is ambiguous to the extent that it does not explicitly state whether
only valid guilty pleas will preclude recovery, or whether guilty pleas that are
void will also preclude recovery. R.C. 2743.48’s purpose of redressing existing
wrongs would not be served by withholding relief from individuals who were
wrongfully induced to enter a guilty plea. The narrowest interpretation of R.C.
2743.48, which would preclude recovery even if the guilty plea is nugatory and
has no effect at law, would thwart the remedial goals of the statute. 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. at ¶ 23.
{¶16} We agree with this liberal construction of R.C. 2743.48. Because a void guilty
plea has no effect at law, it does not exist for purposes of determining whether a person has the
right to seek compensation under R.C. 2743.48.
{¶17} In the instant case, this court vacated Dunbar’s guilty plea because the trial court
failed to abide by the parties’ plea agreement, which it had approved, without advising Dunbar
that it might impose a prison sentence in contravention of the plea agreement. This court
explained that “‘[w]here a sentence recommendation is an integral part of a plea agreement, the
failure to inform the defendant of potential changes may result in a plea that was not entered into
knowingly, voluntarily, or intelligently.’” Dunbar I, 8th Dist. No. 87317, 2007-Ohio-3261, at
¶ 139, quoting State v. Algood, 9th Dist. Nos. 90CA004903, 90CA004904, 90CA004905 1991
WL 116269 (June 19, 1991). Thus, when the trial court decided to deviate from the plea
agreement, it should have clearly advised Dunbar of its intention, and allowed him to reconsider
his plea. Id. at ¶ 140. Without knowledge that the court might impose a prison sentence,
Dunbar’s plea was not entered knowingly, voluntarily, and intelligently, was void, and therefore,
does not preclude his wrongful imprisonment claim.
{¶18} The State also argues that Dunbar’s contemporaneous criminal conduct prevents
him from qualifying as a “wrongfully imprisoned individual” under R.C. 2743.48. In Gover,
67 Ohio St.3d 93, 616 N.E.2d 207, the Ohio Supreme Court explained that R.C. 2743.48 “is
intended to filter out those claimants who have had their convictions reversed, but were
committing a different offense at the time that they were engaging in the activity for which they
were initially charged.” Id. at 95. For that reason, the “requirement that ‘no criminal
proceeding * * * can be brought * * * against an individual for any act associated with that
conviction’ is of critical importance.” Id.
{¶19} Gover filed a wrongful imprisonment claim after his safecracking conviction was
reversed. The safecracking charge was brought against him after a glass window in a restaurant
had been broken and Gover, who was observed leaving the scene, possessed objects stolen from
the safe when he was arrested a short time later. On appeal, the court reversed his conviction
because Gover had not removed the items from a safe. The Ohio Supreme Court remanded the
wrongful imprisonment case to the trial court because the record was “devoid of any evidence
that the trial court considered whether [Gover] committed other offenses.” Because Gover could
be subject to further prosecution for other crimes arising from the same incident, the Supreme
Court refused to declare him a “wrongfully imprisoned individual.”
{¶20} Dunbar committed the domestic violence offense before the actions involving the
alleged abduction and had completed his sentence for the domestic violence conviction before
the abduction conviction arose. Once someone completes a prison sentence and has “served his
debt to society,” he is entitled to freedom. State v. Bradley, 8th Dist. No. 79094,
2002-Ohio-3540, ¶ 10. Once Dunbar completed his sentence for domestic violence, any
additional prison time he served for a crime he did not commit constituted wrongful
imprisonment, because no further criminal prosecution could be brought against him.
{¶21} The State also argues that the court erred by not requiring Dunbar to prove his
innocence by a preponderance of the evidence. As previously noted, to qualify as a
“wrongfully imprisoned individual” under R.C. 2743.48, the petitioner must not only be
acquitted of the crime for which he was imprisoned, but he must also prove his innocence by a
preponderance of the evidence. Walden, 47 Ohio St.3d at 52, 547 N.E.2d 962.
{¶22} The State suggests that the evidence in the record is insufficient to establish
Dunbar’s innocence by a preponderance of the evidence. As previously mentioned, a petitioner
seeking to establish a claim for wrongful imprisonment must produce more evidence than a
judgment of acquittal, which is simply a judicial finding that the State did not prove its case
beyond a reasonable doubt. Ellis, 64 Ohio St.3d at 393, 596 N.E.2d 428. Hence, the State
asserts: “the very same transcript of a criminal proceeding which results in a conviction and
which is subsequently overturned on the weight or sufficiency of the evidence may nonetheless
be insufficient to support a claimant’s innocence by a preponderance of the evidence.” Moore,
165 Ohio App.3d at 543, 2006-Ohio-114, 847 N.E.2d 452 (4th Dist.), citing Chandler v. State,
95 Ohio App.3d 142, 149, 641 N.E.2d 1382 (8th Dist.1994). However, implicit in that
statement is the idea that the record may well be sufficient, depending on the facts of the case.
{¶23} This court recently upheld the trial court’s grant of summary judgment in an
analogous case. See Doss v. State, 8th Dist. No. 96452, 2011-Ohio-6429. In Doss, we found
the uncontradicted evidence in the record supported Doss’s motion under R.C. 2743.48(A). Id.
at ¶ 17.
{¶24} In the instant case, the trial court relied on the facts set forth in Dunbar II, 8th
Dist. No. 92262, 2010-Ohio-239, when it found that Dunbar met his burden of proving his
innocence. In Dunbar II, this court found there was insufficient evidence to support Dunbar’s
abduction conviction because the victim testified that Dunbar never restrained her but left for
long periods of time during which she was free to leave the house. R.C. 2905.02(A)(2), which
governs abduction, states that “[n]o person shall * * * [b]y force or threat, restrain the liberty of
another person under circumstances that create a risk of physical harm to the victim or place the
other person in fear.” “Fear” is defined as “a distressing emotion aroused by impending danger.”
Websters Unabridged Dictionary 1960 (2d Ed.1998).
{¶25} The State suggests that the trial court’s reliance on Dunbar II was improper and
that the record is otherwise devoid of any evidence proving his innocence. However, an
appellate court may take judicial notice of a court’s finding in another case. Kirshner v.
Shinaberry, 64 Ohio App.3d 536, 582 N.E.2d 22 (6th Dist.1989). See also In re Lassiter, 101
Ohio App.3d 367, 374, 655 N.E.2d 781 (2d Dist.1995). This rule comports with other doctrines
in Ohio jurisprudence such as collateral estoppel and law of the case, which are intended to avoid
the possibility of inconsistent results and preserve the integrity of the courts. Accordingly, the
trial court could rely on the facts established in Dunbar II to find that Dunbar proved his
innocence by a preponderance of the evidence.
{¶26} Accordingly, we overrule both assignments of error.
{¶27} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
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.
PATRICIA A. BLACKMON, A.J., and JAMES J. SWEENEY, J., CONCUR