[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.
2 {¶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
4 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 * * *.
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[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.
2 {¶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
4 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
6 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.