Reply of the State of Ohio

Transcription

1 Cleveland State Unversty Court Flngs 2000 Tral Reply of the State of Oho Stephane Tubbs Jones Cuyahoga County Prosecutor Marlyn B. Cassdy Cuyahoga County Assstant Prosecutor How does access to ths work beneft you? Let us know! Follow ths and addtonal works at: sheppard_court_flngs_2000 Recommended Ctaton Jones, Stephane Tubbs and Cassdy, Marlyn B., "Reply of the State of Oho" (1996) Court Flngs. Paper Ths State v. Sheppard, Cuyahoga County Common Pleas Case No s brought to you for free and open access by the 2000 Tral at EngagedScholarshp@CSU. t has been accepted for ncluson n Court Flngs by an authorzed admnstrator of EngagedScholarshp@CSU. For more nformaton, please contact lbrary.es@csuoho.edu.

2 . _,..,, ~ - j 3 /">,_. "' N THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHO ALAN J. DAVS, Specal Admnstrator of the Estate of SAMUEL H. SHEPPARD vs. STATE OF OHO Plantff, CASE NO. CR JUDGE RONALD SUSTER REPLY OF STATE OF OHO Defendant. The State of Oho, by and through counsel Stephane Tubbs Jones, Prosecutng Attorney for Cuyahoga County, and Marlyn Cassdy, Assst~nt Prosecutng Attorney for ts reply to pettoner response, sets forth the wthn case authorty. Ths authorty supports the proposton that an acton for wrongful ncarceraton s a cvl acton requrng that a cvl acton be commenced wth the flng of a complant. "An acton for wrongful mprsonment cannot be brought by flng a moton for a determnaton of wrongful mprsonment n the crmnal case n whch the convcton occurred. An acton brought pursuant to O.R.C and O.R.C for wrongful mprsonment s a cvl acton. (Cvl Rule 3 (A) requres that a cvl acton be commenced wth the flng of a complant." State of Oho v. Nel S. Jackson, 1994 Oho App. Lexs 1737 (Aprl 20,

3 1994). See also, State of Oho v. Larry Smth 1989 Oho App. Lexs 2019 (9th Appellate Dstrct) whch states that O.R.C and O.R.C must be read n par matera because they present the statutory process through whch an ndvdual must progress before he can recover monetarly: "The statute n conjuncton wth O.R.C does more than mbue the court wth jursdcton to hear and determne an acton or proceedng. The phrase hear and determne relates to the functon of the court to try and to decde all questons nvolved n a controversy presented to the court. The word 'acton' as used n the statute has a specfc statutory defnton. O.R.C defnes 'acton' as: an ordnary proceedng n a court of justce, nvolvng process, pleadngs, and endng n a judgment or decree by whch a party prosecutes another for the redress of a legal wrong " Emphass added, Oho v. Smth, supra Fnally, there s no legal authorty to support the proposton that a proceedng for determnaton of wrongful ncarceraton be assgned to the orgnal crmnal tral docket ~ "Cvl Procedure Local Rule 15 sets forth the procedure for case assgnments and for the transfer of cases. There was no reason for ths cvl case to be transferred nasmuch as the subject matter of ths case s dstnct from the pror crmnal prosecuton and the rules of dscovery and burden of proof are dfferent. " Mlton Cotton v. State of Oho, Eghth Appellate Dstrct, Case No , Aprl 6,

4 Oho authorty s abundantly clear that a proceedng for wrongful ncarceraton s a cvl acton subject to the Oho Cvl Rules. For all of the foregong reasons, the moton of the State of Oho for judgment on the pleadngs should be granted. Respectfully submtted, STEPHANE TUBBS JONES, Prosecutng Attorney of Cuyahoga County, Oho MARLYN B KLEY CASSDY (,OO 4647) AssstaNJt Prosecutng Att{olt'ney Courts Tower - Eghth Floo"r 1200 Ontaro Street Cleveland, Oho (216) ATTORNEYS FOR DEFENDANTS CERTFCATE OF SERVCE A copy of the foregong Reply has been served by regular U.S. mal, - \ postage prepad t o Terry H. Glbert, Attorney for Pettoner, Specal Admnstrator of the Estate of Samuel H. Sheppard at 1700 Standard Buldng, 1370 Ontaro Street, Cleveland, '1~f 11 Oho ths G 1 l day of July, DY ( ) Prosecutng Att 3

5 ' Pqcll l()tfl CASE of l.cvel 1 prmed n FULL format. STATE oj OHO. Appclcc v. NEL S. ACKSON, Appellant C.A. No. 93CA~72$ COURf OF APPEALS F OHO. NNTH APPEU.ATB DSTRCT, LORAN COUNTY 1994 Oho App. LEXS 1737 NOTCE: [*l) THE LEXS PAGNA10N OF THS DOCUMENT S SUBJECT TO CHANGE PENDNG R.ELEASB OF THB FNAL PtmlJSllBD VERSON. PROR lstory: APPBAL FROM ndgment ENTERED N nm COMMON ~s COURT. COUNTY OF LORAN, omq. CASE NO. 91CR DSPOSmON: The tral coun'a ~s affmled. COUNSEL: GREGORY A. WllTB, ~ Attorney, 226 Mddle A.Ye., Elyra, Of NEL JACKSON, # , 207~ JS. Avon-Belden Road, Grafton, OH JUDGES: REECE, COOK. DCKNSON OPNlONBY: FOR nm COURT; JO W. REECE OPNON: ~ECSON AND 10URNr Dared: Aprl 20, 1994 BNTKY Ths C8WlC was.beard upon the rccorq n the tral coun. Each error uagned has bcco revewed~ the followng dsposton s made: / REECE, P.J. Plantff-appellant, Nel Jackson appeals the tral coun's denal of hs moton /for a detemlnaron that he WU wrongfully mpraon:q pursuant to R.C We affrm. Jackson was ndcted on Aueust 20, 1991, on ouc cowa of~. R.C (A), whch catred a spec- fc.aton for a. pror volent offense. <J>n December 11, 1991, Jackon was convcted of escapc wth the specfcaton and &CDtcnccd to a tw0-dve year jal term. J aclaon appealed ht convcton to ths coun and rcvcrscd t for nsuffcent evdenc=. Stale v. Jackso111(0ct. 21, 1992). [Wl] Loran App. No. 92CA00~283 J unrcponed. On Aprl 20, 1994, Decded August 30, 1993, Jacbon moved for dctcmnadcn that he WU W'OD&fully mpraoocd. 1'be moton WU fled n the crmnal cue whch ncluded bs orgnal ndc""cm The tral coun dened tha moton. 1acbon appcaja. m. ne u ha sole aaspmcat of error the tral comt' 1 denal of ths moton. ntally, we DOtc tbatlld acaolloc.--falmpram.. mcatwt.....,.,~ --- Mrm.... nuon of w10119w.llpc n Cbeamba.a. wbcla de con~ OC01111tc9 An acton brought pursuam to R.C and R.C. 230~.02 for wroqfu1 mprsomnc:nt.a-a..cbdla::dou"lvudln ~ Stam (1989), 47 Oho St.3d 47, SJ, S47 N.E.1.d 962. Cv.R. 3(A) reqakll dlaa.~f.tcll C H~... fdlrll(:; of rmrpl 1 *'1.<bt'1W>JredrodM'-of lzpltjw'(j9'jj; 87 Ollo~S- 6l,.. cw.n.b.2d.mt:.httlda.cue, ~ ~ Jackson attempted to obtan a detcrmhwon of wron&fu l.ropraomncm by flng ems moton n ha crmm.1 C&K. Ths s an uappropralz: avenue to seek the remedy he rcquesu. Even f Jac.klon bad ptopery commenced ths lcton, [*3] be has not mec hs burden of provug lhat he wu wrodfully mprsoned. n a Procecdns \mdor,r.c ,. a clamant Dllllt prove bs tmt>ccdqc by a preponderance of the evdence. lvuden supra, puasrapb three of the syllabua. A clamant may no& merely rely on the judjdcnt of acquual n hs crmnal cue to prove the cvl wrongful mprlooment c.lam. d. al A judgment of acquttal la not necea11rly a fddna mat an accused s nnocent; rather t s a fmddg that the sratc dd not prove ts case beyond a reuonable doubt. d. n reyersng Jacbcm's convcton. wo were holdq tha& tbc st.au; had not proved bey~ rrmjdlble doubt that a.caon bad ~. t doe8 DOt ncccsarly follow from that judgment tbat Jacbon was noocem. Nor docs t prove dlal he was WODgfully mprloaed undct R. C Thus, Jackson wu requred to produce more evdc:m:e of hs mlocm::e than the revcnal of hs convcton. Th!le faled to do.

6 J 1994 Oho App. LEXS 1737, 3 Pap 12 t also appears that J8':klon WU ~ for scpmte offemca whle he was m~ OD rhc C8CaPC charge. n rulng on a moton to expunge tba [ 4) convcton from Ja.ckaon's record on Fejnwy 22, the. aal coun fov.dd that J acbon wal ncarccr.ared on charges of aggr:avar.cd trafftctng and pqssesson of crmnal tool.a. f a defeddmt s scnrrnd (or ocher offcmes oot related to tle convcton of whch he acqutted, t s qucsdonable wbetber he may be toond to be wrongfully mpraoled puquant to R.C. 2l43.48(A)(l)-(5). Jae.Don's assjnmeut of error s ov~ The tral ccun'sj ldjdcm s affnncd. Tho Court fdda tbat dlcre were l'cl80dlblc ground! for tha appeal.! ~order that a~ mandate ssue out of dna court, drccdna the Coamy of LoDn Common Plea Court to carry ths judjllledt D1o eucwon. A cctt&:d copy of ths jouma1 entl')' shall comqbltl: the mandate, puxludl to App.R. 27. mmeducjy upon the flng hereof, tha dnannent shall consttute the joumal emry of judp>c:nt, and t shall be tle sta.mp;d by Clerc of the Coun of Appeals at whch tme the perod for revew shall bqn to N1. App.R. 22(B). Costs rued ro Appellant. Exceptooa. 10HN w. RBBCB, FOR THE coma

7 23RD CASE 1f Level 2 prnted n FULL format. STATE OF OHO, ~lantff-appellant v. LARRY T. SMT1, Defendant-Appellee C.A. No ; ~HE LEXS PAGNATON OF THS DOCTMENT S SUBJECT TO CHANG PENDNG RELEASE OF THE FNAL PUBLSHED VERSON. Court of Appeal& of Oho, Nr.th Appellate Dstrct, Summt J County Oho App. LEXS 2019 June 7, :989, Decded PAGE 34 ~OR 'l] HSTORY: APPEAL FROM JUDGMENT ENT~ N THE C8MMON PLEA.9 COURT, COUNTY OF SUMMT, [O, CA$}j; NO. CR :sposton: Appellant's ass~gnment of e=::-or s well taken. Judgment of the ~al court s reversed and Uhs case s ~emanded for proceedngs consstent.th ths opnon. >UNSEL1 PHL!? D, BOGDANOFF, A.l&t. Prosecutor, Akron, Oho, :or Plantff, DONALD s. VARAN, JR., At ~ orney at Law, Akron, Oho, for Defendant. SMON B. KAR.AS, Asst. Attdrney General, Columbus, Oho, for Amcus Curae. JDGES: WLLAM R. BARD, FO~ THE COURT, CACOPPO, P. J., REECE, J,, CONCUR. 'NONBY: BARD 'NON: DECSON AND JOY~~ ~~ ENTRY BARD, J, Tha cause was heard upon the =record n the tral court. Each error asagned ts been revewed and the fo lowng dsposton s made: Ths cause came before thj court upon the appeal of the State of Oho from tral court's order fndng that the appellee, Larry T. Smth was a mprsoned ndvdual pursuant to R.C and R.C We e ~ongfully ~verse.. - n 1976, Smth waa charged wth one count of aggravated murder and one count : aggravated robbery. He waved :. a jury t ral and the case. was subsequently ~ed n front of a three-julge panel. Tha panel found Smth gulty on both )Unta and sentenced [*2] hm to f ve to twenty-fve years on the ;gravated robbery charge an lfe mprsonment on the aggravated murder charge. e sentences were to be served concurrencly. On January 12, 1979, Smth moved r a new tral whch was gr1nted by the cral. court. The case was agan tred : ths tme before a jury. The jury recurned a verdct of not gulty on both :unta. n December of 1986 Smth brought an acton for wrongful

8 . n 11 v t, 1l;.,.,._.,..,,,,... _ PAGE J Oho App. EXS 2019, *2.prsonment n the court of conunon pleas. The court conducted hearnga n.nuary and February. Becaus of pendng legslaton whch could affect Smth's am, the tral court ataye the case untl the new legslaton became 'fectve. / On August 16, 1988, a vs~tng judge was apponted to decde Smth's case.. thout conductng a hearng /and wthout notfyng the State, the judge ruled Lat Smth was a wrongfully ~mpreoned ndvdual as defned n R.C and c The State appeals. ASSGNMENT OF ERROR 'he tral court commtted e,ror n fndng that the defendant was a wrongfully 1prsoned ndvdual wthou conductr.g a de novo hearng and gvng the State opportunty to be heard. 11 The State clams that the!common pleas court [*3] should have conducted a! novo hearng before ruln on whether Smth was a wrongfully mprsoned tdvdual. A two-tered sch me exste n Oho whereby one can seek reparaton cm the State for an errone us mprsonment. The.-fllng of an:; ~~a tba... >urt of. oc:mmcm pleaa nta~e the pro~eedng. The governng statute, as t :ad at the tme of Smth's Jcton, provded that: ~ court of common plaas ha& exclusve, orgnal jursdcton to hear and termne an acton or proce dng that:.s commenced by an ndvdual who sfes dvsons (A) (1) t (3) of secton of the Revsed Code and.t seeks a determnaton b the court that the of fen&e of whch he was found lty, ncludng all le er ncluded offenses, ether was not commtted by hm ~ was not commtted by any erson. f the court enters the requested :termnaton, t shall comp y wth dvson (B) of that secton. 11 c ::l en the court of common ple s "determnes" that the plantff a wrongfully '!prsoned ndvdual, t mudt nform hm of hs rght to commence a cvl!ton aganst the state n lhe court of clams. R. C (B) (l). _ The complanant conclusvly eatablahea he s a wrongfully [*4] '!prsoned person by submtt'ng to the court of clams a certfed copy of the ~al court's judgment entry of hs convcton and sentencng and a certfed py of the common pleas cou t's determnaton that he was wrongfully. 1prsoned. The statute read 11 * *. * :El (l). n. a cvl acton as descrbed n dvson (D) of ths secton, the )mplanant may establsh th the s a wrongfully.mprsoned ndvdual by bmttng to the court of c~amsa certfed copy of the judgment.entry. of the )Urt of common pleas asaoc~ted wth hs convcton and sentencng, and a rtfed copy of the entry qf the determnaton of a court of common pleas that! s a wrongfully mprsone~ ndvdual because the offense of whch he wa ~und gulty, n~ludng all l esser-ncluded offenses, ether was not commtted hm or. was not commtted by any person. No other evdenca shall be requred the complanant to e11tabl&h that he s a wrongfully mprsoned_. ndvdual, d he shall :.be. rrebuttably jpresumed to be a wrongfully mprsoned.

9 r"'. ~ ft "", / \._ l, \ol' V l Oho App. : XS *4 PAGE 36 ldvdual. n j "* * * jl c S(El (1). The cour of clams would then be rl!qured to )mplanant a sum of money consstng of certan coats, expenses )St wages enumerated n the statute, plus$ 25,000 for each year 1prsonment. See R.C (E) (2) (a)-(c). award the ['*5] and of Smth argues that the co~on pleas court compled wth the statutory scheme en t 11 determned 11 that he jwas wrongfully mprsoned. The State argues that C and R.C ~ requre the court to conduct a tral de novo. The :ate clams that n the ns~ant case, the common pleas court accepted the 1ry's verdct of not gultyj a conclusve evdence that Smth was wrongfully prsoned. n ts decson, the tra court dd no~ ndcate ts reasonng or what rdance t reled on n reaahng ts decson. What s clear, however, s that e tral court made ts rul ~ ng wthout th& parte& appearng before t. Based )On the language employed rl the statuce, and the current case l~w, such a lng by the court was erro~. R.C and R.C. 274~.48, ~ehftn"!r"tatu!ory- ' muat be read n p~ matera..becauae they proces through whch an ndvdual mu t p:cg're...befcre! can recover mone~arly. order to ascertan the meanng of the two statutes execute them n accordanqe wth that meanng, we must look to the language Jd by the legslacure. Henk (*6] v. Trustee (1891), 48 Oho St ~evdent Bank v. Wood (1973), 36 Oho St. 2d 101, 105. R.C ~ nvests the mrt of common pleas wth j rsdcton 11 to hear and determne an acton or ~oceedng 11 that s brought y an ndvdual who was ndcted for an aggravated 1lony or fe~ony, was found gulty and was sentenced to a term of mprsonment. C B(A) (1) (3). The ~tatute n conjuncton wth R.C does more an mbue the court wth ju~sdcton as Smth argue&, but alao descrbes the rpe of proceedng whch muat occur at the common pleas level. The court has ~gnal jursdcton 11 to hear and determne an acton or proceedng." The. rase "hear and determne 11 ~elates to the functon of the court to try and to!cde all questons nvolved n a controversy presented to the court. See Quarl Abbot (1885), 102 nd. 233, 1 NE 476. The term mples that the partes are ~fore the court. 15 Amercal' and Englsh Encyclopeda of Law (2 Ed 1900) 307. e word 11 acton 11 as used n the statute has a specfc statutory defnton.. c defnes "act on a11~ r * * an ordnary proceedn n a court of ju tce, nvolvng.: proc-., ~.eadngs, [*7] and end~g n a judgment or decree, by whch a party :osecutes another for the r dreaa of a legal wrong, enforcement of a legal.ght, or the punshment of publc offense : -. lus, the wordng of R.C suggests that the legslature ntended the,mmon pleas court. to adjudqate the ssue of whether. an ndvdual s ~ongfully mprsoned after. ~ he partes have presented ther postons n-an versa.ry aettng. Our nt ~rataton a also supported by the language utlzed n 2743;48. der ths. secton an ndv~ual who brngs an. acton. n the.court of cqmmon.eaa :ll8ed.not wat untl h oonvcton WA rever d but may brng the' acton

10 r... n v l \ / \ o.. ' ' ""'..,..,,1, 1 '-..,......,..,.., 1o tt PAGE ~ Oho App. LJEXS 2019, *7 'ter hs sentencng, durng Jhs mprsonment or after he served hs sentence. c (A) (4). nl Because the plantff need not aubmt to the court any rdance of a reversal. of h~ convcton, he must present some quantty of proof owng he dd not commt th~ crme or that no one conuntted t. The tradtonal!aeure of persuason n a cvl case s by a preponderance of the evdence. As :ated by the Supreme court: ~here s no doctrne of the law settled more frmly than the rule whch lthorzes ssues of fact n cvl cases to [*Bl be determned n accordance.th the preponderance or weght of the evdence. The reaaon of the rule no )ubt s, that as between man and man, where a lose must fall upon one or the :her, t s rght that the ~aw should cast t upon hm who s shown to have ~en the cause of tha loaa, ~y proof e&cablshng the reaaonable probablty of e fact." * * *, f 'nee, Str&nathan & Co. v. Greaves (1874), 26 Oho St. 2, 4. The nature of.1th' s acton n the common jpleas court s cvl for he s seekng redress of a.vl wrong. Thus, he must ptove he was wrongfully mprsoned by a preponderance : tha evdence.! nl The statutory references n the ~ex~ are to R.C as t exsted ~or to March 17, :989, wh~h s the effectve date of an amendment whch added prerequste that the ndtdual's convcton was vacated, dsmssed or rersed on appeal. Other juradctons have ~onatrued R.C and R.C to requre lat the party brngng the acton n the court of common pleas prove that he ~d not commt the offense for whch he was convcted. See Mueller v. State )ecember 12, 1988), Warren ~P , unreported; Walden v. State [*9] Tune 16, 1988), Frankln Apj. No. 87 AP-1026, unreported; Ells v. State (June ;, 1988), Frankln App. NO. 87 AP n these caeee, the courts held that no,11ateral estoppel effect would be gven to the reversal of the. complan~t's mvcton; d. We fnd that lthese decsons a.re consstent wth our.revew of e statutor scheme contaned n R.C and R.C The Court: fnds that ther were reasonable grounds for ths appeal. we order that a specal mandate ssue out of ths court, drectng the County. Summt Common Pleas.court to carry ths judgment nto executon. A certfed )PY of ths journal entry slla11 consttute the mandate,.pursuant to -App. R,. 27. mmedately upon the fl ~g hereof, t hs document shall cons~tute the )urnal entry of judgmen~, and t shall be fle. stamped by the Clerk of the )Urt of Appeal& at whch t1e the perod or revew shall begn to run. App. R.? (E) Costs taxed to appellee. Exceptons. WLLAM R. BARD, FOR THE COURT, CACOPPO, P. J.,. REECE, J., CONCUR

11 . ~: N by;a l~ ~ N : T ~ : N : ~~~. o- ~ o-~o,,. ~. r ~, 22ND CASE jf Level 2 prnted n FULL format. STATE OF OHO, /Plantff-Appellee, v. J&RRY NEELEY, J Defendant-Appellant Case No. CA ; THE LEXS PAGNATON OF THS DOCUMENT S SUBJECT '!'O CHANCfE PENDNG RELEASE OF THE FNAL PUBLSHED VERSON. Cour1; of Appea]s of Oho, Twelfth Appellate Dstrct, Preble county J ' l 89 Oho App. LEXS 2960 July 31, l989, Decded PAGE 38 :SPOSTON: (*l) Judgment reversed and remanded. >UNSEL: Wlfrd Q. Dues, Pr]/ble County Prosecutng Attorney, Eaton, Oho, for.an~ff-appellee. Kuczak & Stukay, Konrad K czak, Dayton, Oho, for Defendant-Appellant. Anthony J. Celebrezze, Jr ~, Oho Attorney General, Smon B. Karas, Columbus, o, Amcus Curae for the l ho Attorney General..GES: KOEHLER, J., YOUNG, J., concurs separately. JONES, P.J., dssents. >NONBY 1 KOEHLER rnon: OPNON KO~, J. Defeno.nt-app~llant, Jerry Neeley, wae convcted by a jury of >rcble rape n the Preble, aunty Court of Common Pleas on October 14, He ta subsequently sentenced t serve fve to twenty-fve years n the Oho State mtentary. mmedately after hs con cton, appellant's bond was revoked. Therefore, >r approxmately one year d rng the pendency of he appeal,. appellant remaned carcerated by the state of Oho. Appellant obtaned a reve~aal of hs convcton n ths court by a memorandum caon and judgment entry dated October 9, 1984 n Preble CA We >und appellant wa& enttledj to a new tral based on evdentary errors >mmtted -by the- lower court Specfcally, the tral court mproperly permtted ~ or bad act testmony to b receved and refused [*2] to allow appellant to swer an ultmate queston of fact on drect examnaton. Subsequently, the :ate dd not seek ta retry, ppellant, and thereupon, dsmssed the ndctment l June 9, on February 11, 1988, app~llant appled to the Preble county court of common.eas for a declaraton that jhe was a "wrongfully mprsoned ndvdual pursuant Revsed Code secton ~ Sectons (A) (l). through (A) (4). "The state.led to respond to appellant's applcaton. -

12 ' ~: Nl ~r;a U"N: T U e N e ~~~ PAGE Oho App. LEXS 2960, *2 The lower court summarly joverruled sad applcaton, fndng that "(t]he fnton of mproperly mp~soned ndvdual doe not, nor.does the court.leve t w&s ntended to, nclude those persons whose convctons were versed due to an error at ttral." Appallan~ tmely fled th ~ s nstant appeal settng forth the followng sgnment of error: : "The tral court commtted prejudcal error n overrulng! fendant-appellan~'s applcaton to be found a wrongfully mprsoned d v dual. " Appellant contend that he was a wrongfully mprsoned ndvdual and lerefore enttled to damages aganst the state. The argument advanced by lpellant reasons that a reversal and dsmssal of hs pror convcton 'nclusvely establshes [*3] hs nnocence, for purposes of a wrongful prsonment acton. We dsagree. Oho has adopted a two-stjp procedure for compensatng those ndvduals ~ongfully mprsoned. nl The frst step requres a cou~ of common pleas to ~termne whether one wa a ' wrongfully mprsoned ndvdual" as set forth n C as follows: ~court of common pleas ha exclusve, orgnal j ursdcton to hear and ~termne an acton or proceedng that s commenced by an ndvdual who sfes dvsons (A) (l) to (3) of secton of the Revsed Coda and.at seeks a determnaton by the court that the off snse of whch he was found llty, ncludng all lesser1ncluded offenses, ether was not commtted by hm ~ was not commtted by any ~erson. * * *. 11 nl The wrongful mprsonmdnt statutes whch apply n ths case are R.C and R.C , effectve September 24, An amended legslatve ~raon has recently been enacted by t he General Assembly n ts 1988 sesson, ~ng. effectve March 17, For all purpoaea, the former provsons apply.nee appellant's determnaton by the court of common pleas on January 23, 189, s well before the effectve date of ths new legslaton. [*4] The second step then provdes for a cvl acton to be brought n the-court clams pursuant to R.C whereby the determnaton made by the court r common pleas s an rrebul table presumpton. n the case ~ub j udce, t e fr~t step of ths analyss s n ssue. R. C (A) lsts the four requrements necessary to prove wrongful- mprsonment a proceedng before a cou~t of common pleas under R.C The ld1v1dual must prove the fol lowng : (1) He -was :charged wth a volaton of a secton of the Revsed Code by an dctment or nformaton pror to, or on or after, the affectve date of tha ~cton, and the volaton c1arged was an aggravated felony or felony. (2) He was found gulty of tthe partcular charge or a lesser-ncluded offense r the court or jury nvolved, and the offense of whch he waa found gulty was aggravated.felony or felony. - (3) He.was.sentenced to an ndefnte or defnte term of mprsonment n a '

13 \..,,:;.n lo.,... ~ f,\ ~ 1.,._1\ - r"' - V , - W.., 1 1 "" ' '""' ' ' - - "" 1' Oho App. LEXS 2960, *4 t 1 f. t h ~ e pena or re ormacory 11st1tut1on or t e offense of whch he was found lty. 40 4) Subsequent to hs sentencng and durng or subsequent to hs mprsonment,. was determned by a court lot common ple~s that the offense o! [*5] whch : wa found gulty, nclud~g all lesser-ncluded offenses, ether waa not >mmtted by hm or was not qommtted by any person. n Appellant clearly satsfds the frst three requrements of R.C (A).nee he was charged and con~cted of forcble rape and sentenced to a term of ~rsonment n a penal nst~tuton for the offense for whch he was found Llty. The dspute n ths lnstance centers on the manner the court of common.eas determned appellant was not a "wrongfully mprsoned ndvdual." n Mueller v. State (Dec. /12, 1988), warren App. No. CA88-0S-037, unrl!lport:.ed, ls court held that t~e cou~t below erred n fndng that a pror!termnaton of not gulty ~n a crmnal prosecuton was bndng n a cvl oceedng to recover damages aganst the atace. Rather, we establshed that c and re~re& a de novo determnaton of whether the.amant dd not commt the qffense or the offense was not commtted by anyone.!e State v. Smth (June 7, ~989), Summt App. No. CAl380l, unreported. n the nstant case, the ~ ral court dd not ndcate ts rea&onng except to.y that an mproperly mprsoned ndvdual does not nclude (*6] those!rsons whose convctons ar~ reversed due to an error at tral. Therefore, t clear that the lower cou~ made ts rulng wthout the beneft of thl! partee earng before t. Hence, ~aaed on the language n R.C and our case.w, such a rulng by the cott was error. Further, snce a crmnal!defendant s not requred to submt evdence for a versal cf hs convcton, ~e must n a cvl proceedng for damages present me degree of proof shown~that he dd not commt the crme or that no one mmtted t. Thua, ance t -burden of proof and evdentary requ& nta-n a.vl matter a.re not eauval t to a crmnal tral, the tra:l c~1sle 11 ~ 1nduot ~ d1t vdq.vc, hearng pr Or to- determnng whether an nd Vdual:;. ---rbeen ' rrcmgfully mpr!aoned; J 11 The Frankln County Court of Appeals has prevously addreaaed the effect of 1 acquttal on a determnat on of wrongful mprsonment pursuant to R.C. '43.48 and n Ell v. State (June 16, 1988), Frankln App. No. -AP-1099, unreported, and Walden v. State (June 16, -1988), Frankln App.. No. '-AP-1026, unreported, n2 ttte plantff's convctons were reversed on appeal.. on retral, both [*7] E~ls and Walden were acqutted. They subsequently ought actons for wrongful!mprsonment whch we.re well-taken by th& --court of 1mmon plea& due to the acqu~ttals.. - n.2 These ca.see were accepj ed for revew by the.oha supreme ~~urt on - :ptember 28, 1908, and are currently pendng before the court as appeals and oss-appeals n case numbe, ed , , , and 88...,1440. The Frankln county Court,of Appeals dffered, -holdng that an acquttal doee t establsh that an ndvdual has been wrongfully mprsoned wthn. the :anng of th~ statute. The ~ourt reasoned: ne key ssue here s wheth~r the General Assembly ntended that. thare _ be _ a ~

14 \ _,_,,, W n1.... t \' r - ~ W.;J 1J w ' '11..,, ' ' 1989 Oho App. LEXS 2960, *? PAGE 41, ~lateral eatoppel effa~t J the cvl acton of a factual determnaton made 1 th~ crmnal proceedng n whch the clamant was ultmately found not dlty. ~8UCA.d.ntent,. U - ted-.11paafcally n the r~ t:atmt.eaf~. ') >ll&ter&l.... aeoppel. effect b gven to facl:u&l -detarmn&toa~n. ;:{ ~-a ;~f ~,?erf~~ol.j>"ao~~~ =.u~~r.t:,,..jtate to... a. ', - - CluC!ed -~! 'befold < n.,,, ble lubt. Mo.reoveE, self-ncr~ton, prvlege, and deeo.we~'""" t -* &J.. L.... rm:.. are'.fferent Dd:~cruan l.. ~~c ec;ng, the ~tate may not depo e- the-def"endant... >r raqat-re-,;-~end nt to tee~fy nvoluntar1ly ,, We adhere to and adopt th~ s analyss ae set forth n Mueller, supra. 1ere ore, appellant's aaag~ment of error 8 well-taken requrng the court!low to conduct a full de novo hearng n order to datermne whether appellant LB "wrongfully mprsoned. 11 >NCURBY: YOUNG lncur: YOUNG, J., concurrng separately. wrte separately only to stress 1at, whle the bsttar pract.lce would be to fle a separate acton to determne clam of wrongful mprsonment, there s nothng n ether R.C or C to preclude sucm determnaton n the orgnal crmnal acton. c refers to na.n aqton or proceedng. 11 Snce ths does not 1ecfcally mandate a flng other than n the orgnal crmnal case, agree Lat the ~ourt ot common pleas had authorty to proceed n that caae. agr t~t the cted st~tutes l"equre a hearng to determne the ssue of ngful mprsonment and, ttterefore, agree th&t the matter must be reveraed and :1nanded for further proceed, ngs. :SSENTBY: JONES :SSENT 1 JONES, P. J., ds sendng. Whle concur generally wth the holdng of e majorty [*9] - thac th~s case must be remanded to the tral court, would!mand for a dfferent reason. Qute smply, there s no fnal appealable order,.d the matter s not proper.ljy before ths court. Ths matter came to the.tenton of the tral court lwhen appellant fled, on February 11, 1988, an.strument enttled 11 Applca on For Determnatnn., 'l'ha.t::: Defendant;..._.~nlly 1p~soned ~_yj.~_11~~~ H ~~;.ga~.o~~ _was- fledr :~~.OZ.gnal:- ~ - l :tcm;,.:.,. undez:., caae ;W~. - 9"2:~feupon, tha ;. t-r&l..,c:~ w ~~,.at such "applcaton' be d ned. Procedurally;:: -appa&±lfflt. ZnkJ 11 saec];.: ov':~zon;;.,purauant --to - ~. c.-. ~.2305.o~, saekng~. a..-..gle9c kntcld oa..-~:, ;......,.. fense for whch he was found gu lty wa~ ether not commtted by hm or not mmtted by any person. App~llant would have had.the burden of proof n- such vl acton, but would at l~ast have been enttled to a hearng. f appellant.led to prove anythng mor than the mere fact that hs convcton -was ~ versed, t would have been entrely proper for the tral judge to. deny relef, wal done n ths case. Th. appeals n Walden, supra, :and Mueller, supra, were om separate cvl actona flled by Waldan [*10] and Mueller, clamng. that.ey had been wrongfully mp~' soned, and were enttled to seek damages n the.urt of Clams. There ha b n no parace cv_l ~c_t,,qn. _ ;.Jl-~ - ta...caaa,, ba ora ua.. d would "'therefore : dsms the appeal because there hn- been- na ~"ml"l... pe.abl:e order. ~

15 - 2 - JAMES M. PORTER, Jl., Plantff-app~llant Mlton Cotton appeals from the judgment of the Coznmon_ Pleaf Court that he was not a wrongfully mprsoned person en1:tled to ~ompensaton f.rom the State, defendant-appellee, '. pursuant to R.C. 27\.t3.48. Plantff clams t~e court's rulnq was cont.rary to the law and the evdence, that he was enttled. to swranary j~;ment and proper answers to hs request for admssons, and that 'he case ~hould have been transferred. to the judqe who conduc~edl1 crmnal tral. We fnd no mert to the appeal and affrm tl result ~low. CotJl.tAs ndcted on four counts for recevng stolen propert~.c., 29l3 l51) and related crmes arsng out of events that ocfed on Se~tember 10, ;. onat date, \Cleveland Polce Detectves nvestgated. a < t compla'f crmnal actvty occurrng at Elwell Avenue; clevel Oho. THe detectves went ~o that address and found thj:'ee and a pck-up truck n the drveway. A blue pck-up truck a blue C~dllac were parked n the backyard of the ocat the spot where the o~gnal two car garage once stood.! A g:ca llac was p rked n tha drveway behnd th blue Cadllac and a vehkle '\lf'ae parked behnd the gray Cadllac. The blue And th~ bluca CAdllac w4lre not.. vab.le from the..-~ stre \. fh detactyes arrved, they found Atlas Phllps, ~ who"-=lv~e address, 1 :&tand.nq next to the crver a door of. a -gray

16 ' ;; c:. 1~ 0 j f"l "l'\11 C:. 1 JC:.11C:.l'\f"ll.. ;;; '11 "" ' "", r ~ 1 t -, """"'""'"' f ""'V -.., Cadllac, the second car from the street. Cott.on a car -was parked closest to the street and had been backed nto the drveway. nsde the qray Cadllac the datect ves found Cotton worknq bensath the neern~ column wth some tool. The &tearng column had been peeled to a~low a person to bypass the gnton lock and. start the car wthout an qnton key. The pant dentfcaton plate waa mssnq from the car's f.rewall under the hood. v ncle dentfcatbn number (VN) on the dashboard ndcated Cadllac. Wt~ the permsson of Phllps and Cotton, the polce looked at the 1other vehcles n the drveway. ' The thrd Ca' fzom the street, a blue 1978 Cadllac, also had ts steernq column pjeled. ts da1hboard had been damaged and ts rado removed. Th Th tn, normally found on the dashboard near the wndsh6j'ld on the drver's sde, was mssnq. Next to the pck-up t:ruck on the ground were found varoue : mechanc's tools and \a steer~nq column whch had been pantad to match the damaqed steerng column of the gray Cadllac. None of the three vehcles hjd lcense plates, although the gray Cadllac had a temporary taq ~n the back bumper. Cotton and Phllps were arrested and the cara and pck-up, truck were towed to a ~olce mpound lot for further nvestgaton... t was determned thllt (l) the VN number found on" the gray Cadllac dd not match the actual model year of the car;.. ( 2) th = gro.y Cadllac had teen reported stolen n Alabama from t& reqstered ownar: and (3) the pck-up truck waa raq&tered to a

17 t...;:.111 '-", "" 1 1 """ "u-, --" - 'r Townvlle, Pennsylvana. owner, but had b.. n reported stolen n Cleveland on May Pror to. th auet cf tral, the court dened Cotton e renewed moton to suppress the evdence found at th erme scene. At th close of the State s1 case, the court granted Cotton's moton for acquttal pursuant tc Crm. R. 29, on: Count Ona, Recevng Stolen Property (the qray 1 Cadllac) ; Count 'l'hree, Recevng Stolen Property (the blue 1 Cadllac) ; and Count Four, Possesson of Crmnal Tools (the mechanc's tools). The tral court granted Cotton's moton due to the State's falure to present any evdance that the Cadllacs were actually stolen. Cotton presented no wtnesses. The jury convcted Cotton on the sole remannq charge ot recevnq stolen property, the 1978 Chevrolet pck-up truck. Hs post-convcton motons were den..ed. On November 3, 1988, Cotton was eentanced to a term of two to t n years. on appeal to thls Court, ha convcton on the pck-up truck was rever ed and he was dscharged. state v. Cotton (Aprl 12, 1990), Cuyahoqa App. No , unreported. Ths Court held that Cotton waa lllproperl~ ndcted and th evdence adduced at tral dd not demonstrate tha~ app~llant had posaeaaon of th pck-up truck for the purpose of dsposng of t or to w-thhold t- peenanently from the ewnar, nor w.aa there evdence to show he knew t was l!ltolan. d. 1 at ll. The Court stated "At beat, the. avdence nfers that appellant was gulty of unauthorzed uae of' a vehcle" wth whchl he was not charged. The jury s verdct wae

18 ~:1' 0 ) f". Vl'\ll~ _.~l\~;>f'\ not raveraad due to a lack of evdence of crmnal actvty, but more from the tral court's mproper n11tructona to tha juj:y and tha Stat ' falure to prove ts ca beyond a rea ona.ble cou}:)t.. Plantff brow;pt a cvl actonr.r under R.C and ' to recover campensaton from the State for benq a per&on wronqfully mprsoned untl he wab dscharq d by the Court of Appeal order. The case was submtted by agreement on tha brefs,! tranacrpt of the cr.lnnal tral and Cotton's deposton. At hs depoetbn, Cotton dened any knowledge of stolen vehcles or the exstence of. any crmnal actvty. Cotton! testfed he dd not lfnd t odd to observe aaveral vehcles n Phllp5 1 s drveway wthout lcense plates and ntact steerng columns. On the day cf the arrest, Cotton went over to Phllpa's house to work on hs 1 own vehcl&. He saw Phllpa worknq on a broken eteernq column and, due to hs pror knowledqe of stearnq columns,. ha decded to lend a hand. Cotton, who s a certfed mechanc wth certf.jlcates from both Mansfeld Reformatory and Maron Correctonal lnsttuta, testfed that h haa worked on "qute a few columns n [hs] tme." The tral court. :fourd that "There s no evdence before ths Court -that prove ths clamant's nnocence of th& crme ha waa convcted of, as - wel!l as any. laaaar ncluded otfenaaa. DY a preponderance of the ~vdance." The tral court dete:z:m:ned that Cotton waa engaqed n crmnal actvty-at the tme of hs arrest.

19 ..._,;_ jt THE DECSON OF THE COMMON PLEAS COtJRT TO REFUSE TO!DECLARE THE PLANTFF A WRONGFULLY MPRSONED! PERSON S CONTRARY TO LAW AND CONTRARY TO THE EVDENCE.. THE COURT ERR.ED N NOT GVNG PRECLUSVE. EFFECT N 'l'he JUDGMENT OF THE COURT OP' APPEALS.. THE COURT COMMTTED PREJUDCAL ERROR N NOT GRANTNG SUldMARY JUDGMENT TO THE PLANTFF. Plantff Cotton contends that because hs convcton for recevng stolen proper~y was reversed by ths Court, t follows that he wae wronqful~ mprsoned, as a matter of law, and enttled to compensaton. We ldsaqree. n 1986, the Oho. Laqslature enacted R.~C wh,j,ch qranted jul:adcton to Courts of Common Pleas to determne whether. or not a person has1 bean wrongfully mpraoned as the term s defned n R. c R.C (.A) (\1)-(5) provdes n pertnent part, ae follows1 (A) As used n ths secton, a "wronqfully mpraoned lndvdual" means an ndvdual who satated- each of the followngs. ( 1) He was charq&d wth a volaton. of a secton of ltha Revsed Code by an ndctment or n:tormaton pror to, or on or after, September 24, 1986, and the volaton charged wa& an aq~avated felony or felony. (2) He.was found gulty of, but dd not plead qul ty to, the partcula:: charge of a lal&er-

20 ... ~ "11... "11 "'..,..., > ncluded :otfensll nvolved, : and the found gulty wae felony.! by the court or jury offense of whch he was an ag.qravated. felony or ( 3) He we sentenced to an ndefnte or defnte t'u:m of mprsonment n a state pan.al or reformatory nsttuton for the offense of whch he was found gulty. ' (4) Tha ndvdual'8 convcton was vacated or was dsmssed, or reversed on appeal, the proaec:utnq attorney n th case cannot or wll not seak any further appeal of rqht or upon leave of court, and no crmnal proceedng js pendng, can be brouqht, or wll be brought by any p.rosecutnq attorney, cty d.rector of law, vllaqe solctor, or other chef legal! offcer of a muncpal corporaton aqanat the ndvdual for any act as ocated wth that convcton. (5) Subs~nt to hs sentencng and durng or subsequent to hs mprsonment, f was determned by a court of common. plea thlt the offense of whch he was found gulty, ncludng al lesser-ncluded ~ offenses, ether was not commtted by hm or was not commtted by any person. ' '. \.. n Walden v. Stade (1989), 47 Oho St.Jd 47, the Supreme Court hqld that n a proceedng for wronqful mprsonment under R.C. 230~.02, th claman~ bears the burden of provnq nnocence by a preponderance of th~ evdence not smply aa a result of an acquttal or reversal\ of a convcton n the underlyng.crmnal case. "n enactnq sjct.on ~, the General Aa embly ntended th.at the court of Common Plecus actvely separate.. thoae- who were wrongfully mprsonedlfrom those who. have merely avoded crmnal... lablty." d at 52. Snce the State s unable to appeal a fnal verdct n a crmnal case, the ssue ot whether or not the

21 ' ~ C: ~ D T f'l vr\llc: -.lt:.11c:., " -...,, -,.,,, -.;;.,J.,; ' """' ' 11 -.,,..,...,... Y.., "" " - a - plantff was trulx an nnocent peraon s another raaaon for deternnng wronqfujl. mprsonment by a preponderance of the evdence. d. "Clamants. seekng compensaton for ronqful mprsonment must prpve that at the tme of the ncdent for whch they were ntally 1charqed, they wer~ not engagng n any other crmnal conduct ar~snq out of the ncdent for whch they were ntally charged." ~ Gover v. State ( 1993), 67 Oho St.3d 93, ayllabus. So t s that : the Walden Court held that wh re a person clamng compansatdn for wrongful mprsonment has obtaned a judq:mmlt: ot acqu.t.tuf,,_udgme11.t J.a.. no.t.: ~~- ~~~!11'~~~ f U..C.t.. n.-&. p:o~g under R.C W&ldea<;.,.. ~a~t..,.., of ~yllabus. we tnb. the same pr.ncpla should apply whether he was acqutted at tral or, as here, the convcton was reversed on ' appeal. Chandler v. State (1994), 95 Oho App.3d 142; see, a,~o. Mueller v. state (Dec. 12, 1988), Warren App. No. CABB , unreported.! Ths Court n state v. cotton, No at paqe 10: the evdence nfers that appellant waa qtllt:y of tna.uthorzed use of a vehcle. R.C ! Stats v. Boyce (1986), 33 Oho App, 2d However, appellant was not charged wt.h that offense. - ~;.. Snce ths court! haa.. pravouely acknowledged -that the evdence permtted.nf~rence olf Cotton's culpablty unde-r a les1ar ncl~ of fenae., there was ~uf fcent evdence to over-come plantff!

22 ! ~t; ~ 0 " v l\11c: C:. 1 1C:. \ "~.., - J. W - Q \,, W '.., v ' 1 ) clam that the offense charged "was not commtted by hm or was not! commj.tt&d by any perll!on." Sea R.C (A) (S). The nterancaa Jawn from all of the evdence be:tore th court establshed ~he plajtff's culpabltya (1) ha was worknq on cars wth peeled steerng columns and chanqed VN plates: (2) he.. waa underneath the waled column of the gray Cadllac when the polce arrved on th, scene and found hm worknq on the coumn: (3) ~oola were acatte~ed about the a.raa where Cotton waa workng. and three stolen ve!ujclas were stuated. t does not take much magnaton to conclu~e that Cotton was engaged n some knd ot llegal conduct whetru:lr or not the State faled to prove t beyond a raaaonable doubt. Tha totalty ot the crcumstances must b consdered n a case. such as ths, There ras suffcent evdence, f bal~ved by the tral court, to eatabll.ah that defendant was not truly nnocent.,. :- '. -! : --. and was wrongfully ncarcerated a a pure vctm of crcumstance.. There was suffcent Jdance n the record to show that appellant or soma other person are enqaged n crmnal conduct n workng on the peelad staern columns of stolen vehclsa. These assgnments of error are overruled. V.... THE COMHON PLEAS COURT FALED. - TO. GRANT JUDGMENT TO THE PLANTFP BECAUSE THE REQUEST - FOR ADMSSONS WAS NOT~ PROPERLY ANSWERED.. Th.a aasqnment o~ error s wthout m rt. The x:acord raveala.. that. the State provde~ the plant:u wth a tmely reaponae.. to..,_.s... dscovar;y. requfult. Hah th pla..ntff been dcsa.tafed..,,.th _ the ~.

23 .,...,...,,,..,, r H\ - "'-1 -,r ~ response, he should ava fled a moton to. compel pur uant to Cv. R. 37, whch was not done. P'rom th~ recor; and tral brefs below, ths asua was not rased or otherwse rouqbt to the court's attenton. We wll not address an aeegnmej t of error not rased n the tral court. Lakevood v. All Struetures, nc. (1983), 13 Oho App.3d 115: State v. Wllams (1977), ~ l Oho St.2d 112, 117. See, also, State ex rel. Athens Cty. De~ t. App.3d 619, 622. Assgnment of Etror V s ovarrulad. of Human Serv. v. fol:f (1991), 77 Oho V. THE COURT OMMTTED PRE.JUDCAL ERROR N NOT TRANSP'!RRBG THS CASE TO THE JUDGE WHO CONDUCTED ~ CRMNAL CASE. The plantff f ~ led a moton to transfer ths case from Judge MdGnty ' s docket to hat of Judge Burt w. Grffn for the reason tha~ Jud~~ Grffn ha presded at tha crmnal tr~al nvolvng '.t~ plantff. tranafer of plantff ctes n~ authorty requrnq the caae to th orqnal tral judge. <~;lsa\ttll ~o;r _,.. <..,. "~-~~alt~ ~ c:t l.ul111:8nt. Superntendence.. Rule.. 4 a:.: :>JDspl,aced.. superntendence Rule 4 pj:ovd. for a.system. of asa<jnnq.casea.;: where~y: a.c:u.5& s a qnad by chance to. a judge 0 the.. court who

24 ~ 'l >Jl:~ 1 O l,..., 1 v '\": l.lt:m:;r\,..._ 1.., - '"w - Y oj '11 '.., r 11 - ll - becomes prmarly responsble fer the determnaton of that case. The scope of the rul ~ dd not compel the assgnment of Cotton's cvl case to. Judqe G f fn. The purpose of the rule s to prevent the forum shoppnq f judqe&. Cotton's requeat to have Judge Grffn hear hs cv case goes aqanst the ntent and purpose of Superntendance Rule t A8aqnment of Erkor V s overruled. Judgment affrmed.

25 .:J~ l c ' t s ordered ~hat appellae recover of appellant ts costs heren taxed. 1 The Court fnd \there were reasonable ground for ths appeal. t s ord red trat a specal mandate aaue out of ths Court drectng the Court \of Common Pleas to carry ths judgment nto executon. A certfed copr of ths ent:ry shall consttute the mandate purauant to Rule 27 bf the Rules of Appellate Procedure. RECEVED FOR FLNG JAMES D. SHEENEY. P.J., and O'DONNELL, J.. CONCtJR. APR GER~LD E. U RST, CLERK EP. \ : Th entry s Eade pursuant to the thrd sentence of Rule Cf ~222.0MM,./ JAMES M. PORTER JUDGE N.B. 22(0), Oho Rules of ppellate Procedure. Ths s an announcement of d9cson (see Rul 26). Tan (10) days from the date hereof, tha document wll belsta.mped to na1ca~e journalzaton, at whch tme t wll become ~he judgment and order of the court and tme perod for revew wlll begn to run.