[Cite as D'Ambrosio v. State, 2013-Ohio-4472.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 99520
JOE D’AMBROSIO PLAINTIFF-APPELLEE
vs.
STATE OF OHIO DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-775307
BEFORE: Kilbane, J., Jones, P.J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: October 10, 2013 ATTORNEYS FOR APPELLANT
Timothy J. McGinty Cuyahoga County Prosecutor Charles E. Hannan Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Terry H. Gilbert Gordon S. Friedman Friedman & Gilbert 55 Public Square Suite 1055 Cleveland, Ohio 44113
Jeffry F. Kelleher 1540 Leader Building 526 Superior Avenue Cleveland, Ohio 44114
David E. Mills 1300 West Ninth Street Suite 636 Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, the state of Ohio, appeals from the judgment of the
trial court that awarded summary judgment to plaintiff, Joe D’Ambrosio, and that denied
the state’s cross-motion for summary judgment on the issue of whether an “error in
procedure” within the meaning of R.C. 2743.48(A)(5) resulted in D’Ambrosio’s release
from prison. For the reasons set forth below, the judgment of the trial court is affirmed.
{¶2} In 1988, D’Ambrosio was indicted on two counts of aggravated murder
with death penalty specifications, kidnapping, and aggravated burglary, in connection
with the death of Anthony Klann (“Klann”). The matter was tried to a three-judge panel.
D’Ambrosio was sentenced to death and a consecutive 10 to 25-year term of
imprisonment was imposed on the other charges.
{¶3} In March 2001, following various unsuccessful state and federal challenges
to his conviction, D’Ambrosio filed a petition for a writ of habeas corpus in the United
States District Court for the Northern District of Ohio. The petition included a claim that
the prosecution had failed to disclose exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The items identified by
D’Ambrosio that were withheld included evidence that one of the state’s witnesses was
not prosecuted for an alleged rape and had asked for police assistance in resolving a
pending DUI charge, that this witness knew information about the case that was not made
public, and that the state withheld evidence disputing the location and time of the murder.
D’Ambrosio v. Bagley, N.D.Ohio No. 1:00-CV-02521, 2006 U.S. Dist. LEXIS 12794 (Mar. 24, 2006). On March 24, 2006, the district court granted D’Ambrosio’s petition
for a writ of habeas corpus. The court held that most of the evidence that D’Ambrosio
had introduced to support his Brady claim was withheld by the prosecution and that
D’Ambrosio’s due process rights were violated. The district court granted the petition
and ordered the state to set aside D’Ambrosio’s conviction and sentence or conduct
another trial within 180 days. Id. That decision was stayed pending appeal and was
affirmed by the Sixth Circuit Court of Appeals. D’Ambrosio v. Bagley, 527 F.3d 489
(6th Cir.2008). On September 11, 2008, in compliance with the Sixth Circuit’s mandate,
the district court ordered:
The [State] shall either: (1) set aside D’Ambrosio’s convictions and sentences as to all counts of the indictment, including the sentence of death; or (2) conduct another trial. This shall be done within 180 days from the effective date of this Order.
{¶4} In late February 2009, the state produced additional, previously undisclosed,
evidence. D’Ambrosio v. Bagley, 619 F.Supp.2d 428 (N.D.Ohio 2009). In response, the
trial judge in the state criminal proceedings declined to permit the trial to proceed until
D’Ambrosio had time to examine the new evidence. The state sought additional time
within which to try D’Ambrosio but, by April 27, 2009, the district court determined that
the state “did not respond to multiple discovery requests, produced material * * *
discovery on the eve of trial, and then sought to interfere with the orderly progress of the
trial through gamesmanship,” and denied the state’s request for additional time. The
district court did not bar reprosecution of D’Ambrosio and graciously stayed its ruling for
15 days, allowing the state an opportunity to determine whether it wished to retry D’Ambrosio. Id. The state took no action during this 15-day period.
{¶5} To compound the due process violations, after learning that its key witness
Edward Espinoza (“Espinoza”) died on April 30, 2009, the state did not inform either
D’Ambrosio or the trial court of this news until late July, and never informed the district
court of this fact.
{¶6} On March 3, 2010, the district court barred the reprosecution of
D’Ambrosio. D’Ambrosio v. Bagley, 688 F. Supp.2d 709 (N.D.Ohio 2010). On March
5, 2010, the trial court dismissed all charges against D’Ambrosio and ordered him
released without any conditions. On August 29, 2011, the Sixth Circuit “affirmed * * *
[the] unconditional writ barring D’Ambrosio’s reprosecution.” D’Ambrosio v. Bagley,
656 F.3d 379 (6th Cir.2011). On January 23, 2012, the Supreme Court denied the state’s
petition for a writ of certiorari. Bobby v. D’Ambrosio, ___ U.S. , 132 S.Ct. 1150,
181 L.Ed.2d 1031 (2012).
{¶7} On February 7, 2012, D’Ambrosio filed the instant action, seeking to be
declared a wrongfully imprisoned individual under R.C. 2743.48. On June 7, 2012,
D’Ambrosio moved for summary judgment. He asserted that he meets the five
requirements of this statute, including the requirement disputed by the parties as to
whether following his sentencing an “error in procedure” resulted in his release under
R.C. 2743.48(A)(5). D’Ambrosio argued that in light of the Brady violations and the
district court’s explicit instructions to the state barring reprosecution, there was an “error
in procedure” within this portion of the statute. {¶8} The state filed a brief in opposition and cross-motion for partial summary
judgment, in which it argued that D’Ambrosio did not meet the requirements of R.C.
2743.48(A)(5) because the Brady violations are not an “error in procedure” occurring
subsequent to his sentencing. The state additionally argued that the district court
released D’Ambrosio due to a discovery sanction and not due to an error in procedure.
{¶9} On January 15, 2013, the trial court granted D’Ambrosio’s motion for
summary judgment and denied the state’s cross-motion for partial summary judgment. In
a detailed and thoughtful opinion, the trial court reasoned that D’Ambrosio established
the requirements of R.C. 2743.48(A)(5). The trial court reasoned that the Brady
violations from D’Ambrosio’s 1989 trial, as well as continuing due process violations
occurring in connection with the retrial order, constituted “an error in procedure” that
resulted in his release.
{¶10} The state now appeals and assigns three interrelated errors for our review:
Assignment of Error One
The trial court erred in declaring that D’Ambrosio was a “wrongfully
imprisoned individual” because no error in procedure occurred subsequent
to sentencing or during or subsequent to imprisonment.
Assignment of Error Two
The trial court erred in declaring that D’Ambrosio was a “wrongfully imprisoned individual” because his release from custody did not result from any alleged error in procedure.
Assignment of Error Three The trial court erred in declaring that D’Ambrosio was a “wrongfully
imprisoned individual” when D’Ambrosio did not present any evidence to
show that he was not engaged in any criminal conduct arising out of the
incident for which he was prosecuted.
{¶11} In reviewing the trial court’s award of summary judgment, we apply a de
novo standard of review. Mohammad v. State, 8th Dist. Cuyahoga No. 98655,
2012-Ohio-5517, ¶ 11. Summary judgment is appropriate where
the moving party demonstrates that (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, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made.
Id.
{¶12} In 1986, the General Assembly enacted R.C. 2305.02 and 2743.48 to
authorize civil actions against the state in the Court of Claims for specified monetary
amounts by certain wrongfully imprisoned individuals. Walden v. State, 47 Ohio St.3d
47, 49, 547 N.E.2d 962 (1989). Under the statutory scheme, a claimant first files an
action in the common pleas court seeking a preliminary factual determination that he
meets all of the requirements of R.C. 2743.48(A)(1)-(5). If successful, the claimant then
must file an action in the Court of Claims to recover money damages. Griffith v.
Cleveland, 128 Ohio St.3d 35, 2010-Ohio-4905, 941 N.E.2d 1157, paragraph two of the syllabus. R.C. 2305.02 and 2743.48.
{¶13} R.C. 2743.48(A) sets forth the following five criteria:
(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 found guilty, including all lesser-included offenses, either was not committed by the individual or was not committed by any person.
{¶14} With regard to the state’s contention that the trial court erred in awarding
summary judgment to D’Ambrosio because he did not present any evidence to show that
“he was not engaged in any criminal conduct arising out of the incident for which he was
prosecuted,” we note that R.C. 2743.48(A)(5) was amended effective April 9, 2003, “to
allow a person who could not establish his or her actual innocence, but who could
establish that an error in procedure resulted in his or her release, to file a complaint against the state of Ohio seeking a declaration that he or she had been wrongfully
imprisoned.” Nelson v. State, 5th Dist. Tuscarawas No. 2006 AP 0061, 2007-Ohio-6274,
¶ 30. Before this amendment, only individuals who could establish their actual
innocence could file such a complaint.
{¶15} In Hill v. State, 10th Dist. Franklin No. 12AP-635, 2013-Ohio-1968, the
court observed that as a result of the amendment to R.C. 2743.48(A)(5), the General
Assembly provided an alternative to the proof of “actual innocence” requirement, where
the individual could establish that “an error in procedure resulted in the individual’s
release.” Id., citing Nelson v. State, 5th Dist. Tuscarawas No. 2006 AP 0061,
2007-Ohio-6274, ¶ 30 (R.C. 2743.48(A)(5) met where the individual’s conviction had
been reversed on speedy trial grounds).
{¶16} In accordance with the foregoing, and in light of the amendment to
R.C. 2743.48(A)(5), D’Ambrosio was not required to prove “actual innocence.” Under
the amended statutory scheme, D’Ambrosio could meet the requirements of R.C.
2743.48(A)(5) by establishing that “an error in procedure resulted in the individual’s
release.” Therefore, the trial court properly rejected the state’s argument that
D’Ambrosio was required to present evidence to show that he was not engaged in any
criminal conduct arising out of the incident for which he was prosecuted. The third
assignment of error is without merit.
{¶17} With regard to the state’s additional contentions that the trial court erred in
concluding that D’Ambrosio met the requirements of R.C. 2743.48(A) because no error of procedure occurred subsequent to sentencing or during or subsequent to imprisonment,
resulting in his release, we note that the trial court provided two grounds in support of its
ruling. The trial court concluded that D’Ambrosio met the requirements of R.C.
2743.48(A)(5) because of the Brady violations that occurred during his trial, and also
because of the state’s conduct after it was ordered to release or retry D’Ambrosio
pursuant to the 180-day order.
{¶18} With regard to the Brady violations, the court in Hill,10th Dist. Franklin No.
12AP-635, 2013-Ohio-1968, held that Hill met the criteria of a wrongfully imprisoned
individual under R.C. 2743.48(A)(5) where his conviction was reversed as the result of an
illegal search and seizure. In light of that reversal, the prosecuting attorney asserted that
the state could not successfully reprosecute Hill. In determining that Hill met the criteria
of a wrongfully imprisoned individual under R.C. 2743.48(A)(5), the Tenth Appellate
District held that a procedural error effectively precluded a future prosecution and stated
that there was “a direct causal relationship between the procedural error of the police in
obtaining critical evidence against Hill and the ultimate dismissal of the charges against
him.” Id. at ¶ 44. The court stated:
[W]e believe that the “subsequent to sentencing” phrase modifies the timing of the convict’s release, i.e., it mandates that the individual be released from prison subsequent to sentencing, based on an error of procedure that occurred before sentencing.
Id. at ¶ 45, fn. 4.
{¶19} Similarly, in Mansaray v. State, 8th Dist. Cuyahoga No. 98171,
2012-Ohio-3376, discretionary appeal allowed, Mansaray v. State, 134 Ohio St.3d 1417, 2013-Ohio-158, 981 N.E.2d 884, the defendant had been convicted of drug offenses
based on evidence obtained by police in violation of the Fourth Amendment. On appeal,
the denial of the motion to suppress was subsequently reversed. In concluding that
Mansaray sufficiently set forth a wrongful imprisonment claim, this court noted that “the
improper denial of Mansaray’s motion to suppress — the error in procedure — occurred
prior to sentencing. Therefore, Mansaray satisfied the requirements in R.C.
2743.48(A)(5).”
{¶20} In addition, in Larkins v. State, 10th Dist. Franklin No. 09AP-140,
2009-Ohio-3242, ¶ 10, the Court of Claims held that a prosecutor’s failure to disclose
exculpatory evidence to the defendant constituted an error in procedure for purposes of
R.C. 2743.48(A)(5) and addressed the issue of when the error in procedure must occur.
In that matter, Larkins was convicted of aggravated murder, attempted murder, and
aggravated robbery. He later obtained exculpatory documents that the Cuyahoga County
Common Pleas Court concluded should have been turned over to Larkins prior to trial
under Brady. The trial court eventually granted Larkins’s motion to dismiss the charges,
and this court affirmed. State v. Larkins, 8th Dist. Cuyahoga No. 85877, 2006-Ohio-90.
Following those proceedings, Larkins sought a declaration in the trial court that he was a
wrongfully imprisoned individual as defined in R.C. 2743.48. He later entered into a
joint stipulation with the state that he had been released as the result of an error in
procedure, and the trial court found that appellant was a wrongfully imprisoned
individual. On appeal, the Tenth District Court of Appeals acknowledged that a Brady violation that occurred before sentencing constitutes an error in procedure under R.C.
2743.48(A)(5) because the error resulted in Larkins’s release.
{¶21} In this matter, the trial court also held that the Brady violation, which
occurred before sentencing, constituted an error in procedure under R.C. 2743.48(A)(5).
The trial court stated:
The district court found in 2006 that the state committed a Brady violation by withholding exculpatory evidence from D’Ambrosio at his trial in 1989. * * * While the Brady violation occurred prior to conviction, it was not discovered until sentencing and imprisonment had occurred, and this error in criminal procedure resulted in D’Ambrosio’s release.
{¶22} We likewise conclude that there are no genuine issues of material fact in this
matter and that D’Ambrosio established the requirements of R.C. 2743.48 as a matter of
law. In the extensive habeas corpus proceedings conducted from 2001 to 2006, the
federal courts ruled that the state failed to disclose exculpatory evidence in violation of
D’Ambrosio’s due process rights. This Brady violation, which occurred before
sentencing, can no longer be cured. For that reason, the trial court properly concluded
that there has been an error in procedure that resulted in D’Ambrosio’s release, as
required under R.C. 2743.48(A)(5).
{¶23} With regard to the additional ground that the trial court relied upon in
support of its conclusion that the requirements of R.C. 2743.48(A)(5) were met herein, it
is undisputed that the state is now barred from reprosecuting D’Ambrosio because of its
actions following the 2006 retrial order.
{¶24} The district court observed that pursuant to Satterlee v. Wolfenbarger, 453 F.3d 362, 370 (6th Cir.2006), it is vested with broad discretion to fashion a proper remedy
in habeas corpus that allows a district court to bar the state from reprosecuting where
there are “extraordinary circumstances.” The district court concluded that such
“extraordinary circumstances” were present as “the state inexcusably, repeatedly, or
otherwise abusively fails to act within the prescribed time period or if the state’s delay is
likely to prejudice the petitioner’s ability to mount a defense at trial[.]” In support of this
conclusion, the district court listed the state’s failure to retry D’Ambrosio within 180
days, its attack on the state court judge before whom the retrial was pending, and its delay
in notifying the defense of the death of a key witness, and in producing yet more
potentially exculpatory evidence.
{¶25} The district court explained:
For 20 years, the State held D’Ambrosio on death row, despite wrongfully
withholding evidence that “would have substantially increased a reasonable
juror’s doubt of D’Ambrosio’s guilt.” D’Ambrosio, 527 F.3d [489] at 499.
Despite being ordered to do so by this Court during the extensive habeas
proceedings before it, the State still failed to turn over all relevant and
material evidence relating to the crime of which D’Ambrosio was
convicted. D’Ambrosio * * *, 619 F.Supp.2d [428] at 451-53. Then, once
it was ordered to provide D’Ambrosio a constitutional trial or release him
within 180 days, the State did neither. See Id. at 451-55. During those 180
days, the State engaged in substantial inequitable conduct, wrongfully retaining and delaying the production of yet more potentially exculpatory
evidence. See Id. And, as the 180-day deadline approached, certain of the
State’s counsel baselessly attacked the state trial judge, came before this
Court and supplied testimony that, charitably, only can be described as
“strain[ing] credulity,” and showed startling indifference to D’Ambrosio’s
rights. Id. at 451-55. Because the State failed to retry D’Ambrosio within
180 days, moreover, the critical State’s witness — the man around whom
the entire theory of the State’s case revolved — is no longer available for
trial, a fact the State knew but withheld from D’Ambrosio, the state court,
and this Court. To fail to bar retrial in such extraordinary circumstances
surely would fail to serve the interests of justice. Indeed, it would pervert
those interests. D’Ambrosio v. Bagley, 688 F.Supp.2d 709 (N.D.Ohio
2010).
{¶26} The trial court likewise concluded that “the original Brady violation and the
continuing due process violations” that compelled the federal courts to bar the
reprosecution of D’Ambrosio are sufficient to meet R.C. 2743.48(A)(5). The trial court
stated:
[E]rrors in procedure continued to be committed by the state after D’Ambrosio was sentenced and imprisoned. * * * This may be the only instance to date in which the state cannot genuinely contest that an error in procedure occurring subsequent to sentencing and during or subsequent to imprisonment (i.e., due process violation while awaiting retrial) has actually resulted in an individual’s release. Summary judgment thus is appropriate in favor of D’Ambrosio upon this additional basis. {¶27} We also conclude, based upon our review of the undisputed facts and the
federal court proceedings, that subsequent to D’Ambrosio’s sentencing and
imprisonment, the state committed errors in procedure and, because of those errors,
D’Ambrosio was released and cannot be reprosecuted. The record clearly shows, and it
is undisputed, that on March 24, 2006, the district court granted D’Ambrosio’s petition
for a writ of habeas corpus and ordered the state to set aside D’Ambrosio’s conviction
and sentence or conduct another trial within 180 days. This order was stayed pending
appeal and was then affirmed. On September 11, 2008, the district court, in compliance
with the Sixth Circuit’s mandate, ordered the state to either set aside D’Ambrosio’s
convictions and sentences as to all counts of the indictment, including the sentence of
death, or to conduct another trial within 180 days from that date. By February 2009,
however, the state produced additional, previously undisclosed, evidence. The state
sought additional time within which to try D’Ambrosio, and on April 27, 2009, the
district court granted the state an additional 15 days to retry D’Ambrosio. The State took
no action during this 15-day period. The state also failed to timely inform the court or
defense counsel of Espinoza’s April 30, 2009 death, and on March 3, 2010, the district
court barred the reprosecution of D’Ambrosio. Therefore, D’Ambrosio has established
the requirements of R.C. 2743.48(A)(5) as a matter of law.
{¶28} For all of the foregoing reasons, the trial court properly concluded that there
are no genuine issues of material fact, and that D’Ambrosio is entitled to judgment as a
matter of law. The record clearly establishes that there was an error in procedure from both the Brady violations at trial and the state’s repeated due process violations during the
extended 180-day period for retrial that resulted in the district court’s March 3, 2010 bar
to reprosecution.
{¶29} The state’s first, second, and third assignments of error are without merit.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
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.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and EILEEN T. GALLAGHER, J., CONCUR