[Cite as Houston v. State, 2012-Ohio-4404.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 98118 

DARRELL HOUSTON 

PLAINTIFF-APPELLEE

vs.

STATE OF OHIO

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-735702 

BEFORE: Kilbane, J., Stewart, P.J., and Keough, J. 

RELEASED AND JOURNALIZED: September 27, 2012
ATTORNEYS FOR APPELLANT

William D. Mason 

Cuyahoga County Prosecutor 

Michael A. Dolan 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Mark E. Porter 

David B. Gallup 

Gallup & Burns 

The Leader Building - Suite 810 

526 Superior Avenue, East 

Cleveland, Ohio 44114-1401 
MARY EILEEN KILBANE, J.: 

{¶1} Defendant-appellant, the state of Ohio (“State”), appeals the trial court’s 

decision granting summary judgment in favor of plaintiff-appellee, Darrell Houston 

(“Houston”), which declared Houston to be a wrongfully imprisoned individual under 

R.C. 2743.48. Finding no merit to the appeal, we affirm. 

{¶2} In October 1991, Houston was charged with aggravated murder with prior 

calculation and design, aggravated murder, and aggravated robbery, with each count 

carrying firearm specifications. Houston was also charged with having a weapon while 

under disability. The charges arose from the murder of Said Ali (“Ali”), the owner of 

Sam & Rose Deli in Cleveland, Ohio. The two aggravated murder and aggravated 

robbery charges proceeded to a jury trial.1

 The having a weapon while under disability 

charge proceeded to the bench, with the understanding that Houston would plead guilty to 

the weapons charge if the jury first found him guilty of at least one of the other charges. 

{¶3} The facts presented at trial were previously set forth by this court in 

Houston’s most recent appeal, State v. Houston, 8th Dist. No. 90780, 2009-Ohio-224,

discretionary appeal not accepted, 122 Ohio St.3d 1410, 2009-Ohio-2751, 907 N.E.2d 

119: 

 1

On the third day of trial, the trial court granted the State’s request to 

dismiss the aggravated murder count with prior calculation and design charge.
The facts offered at Houston’s 1992 trial showed that a witness named 

James Pope [“Pope”] testified that he worked at a convenience store in 

September 1991. Pope said that he had been in the basement of the store 

when he heard a gunshot. He thought the store owner [Ali] had accidently 

discharged a firearm, but when he came up the stairs, he surprised a 

gun-wielding robber and saw the store owner slumping behind the register 

with a gunshot wound to the head. The robber saw Pope and ordered him 

to open the cash register, warning him that “[y]ou’ll be looking just like [the 

store owner] if you don’t open up.” Frightened, Pope fumbled with the 

cash register and pleaded for his life. The robber said, “I am not going to 

shoot you, Boo.” 

Pope told the police that the robber looked like Houston, a man he knew by 

the names of “Darrell” and “Dee.” Pope agreed that he knew Houston 

“fairly well” because he had gone to Houston’s house to cut his hair. Pope 

gave the police a description of the shooter and the clothes that the shooter 

had been wearing. He specifically recalled telling the police that the 

shooter had a mark on the right side of his face, although he conceded that 

his written statement did not include that fact. A bystander near the store 

who did not see the shooter’s face corroborated Pope’s description of the 

shooter’s jacket, hooded sweatshirt and shoes. The police confirmed 

“Dee” as being Houston, and Pope positively identified Houston as the 

shooter from a photograph. Pope then requested a face-to-face 

identification with Houston and confirmed that Houston’s clothing matched 

that of the shooter. The police were unable to recover any fingerprints or 

other physical evidence from the scene, although they were able to confirm 

the presence of gunshot residue on the sleeves of Houston’s jacket. 

[In October 1991, which was about] a month after the shooting, Pope called 

the police to say that he had been at a Halloween party and saw a person 

who looked like the robber. [Pope told the police that he believed the 

shooter was a man known to him as “Popeye.”] The police investigated 

Pope’s new assertion, but were unable to find a person who matched the 

description of the robber. 

Pope testified [at trial] that Houston was not the shooter because “I don’t 

see the mark on the right side of his face.” He agreed that other than the 

mark, Houston was identical to the person who robbed the store and shot 

the store owner. Pope said that the person he saw at the Halloween party 

not long after the robbery was definitely the robber because “I remember 

seeing the same mark on his face that I seen the guy with the mark there. 

That’s what made me change my mind that it wasn’t Darrell.” Even so, 
when asked “[d]oes that person that you saw on Halloween fit the same 

description as the description of Darrell Houston,” Pope answered, 

“[e]xactly.”2

 Id. at ¶ 2-5. 

{¶4} The jury found Houston guilty of aggravated murder, aggravated robbery, 

and the accompanying firearm specifications. Pursuant to the pretrial stipulation 

regarding the contingent plea, Houston pled guilty to having a weapon while under 

disability. The trial court sentenced Houston to an aggregate of 33 years to life in 

prison. 

{¶5} Houston then filed a direct appeal to this court, raising issues relating to the 

weight and sufficiency of the evidence. He argued that the trial court abused its 

discretion by admitting evidence of his identity as the perpetrator and by admitting certain 

expert testimony. We rejected these assertions and affirmed the conviction in State v. 

Houston, 8th Dist. No. 64574, 1994 Ohio App. LEXIS 52 (Jan. 13, 1994). The Ohio 

Supreme Court did not accept this appeal in State v. Houston, 69 Ohio St.3d 1478, 634 

N.E.2d 1024 (1994). 

{¶6} In 1995, Houston filed an application for reopening his appeal under 

App.R. 26(B) in State v. Houston, 8th Dist. No. 64574, 1994 Ohio App. LEXIS 52 (Jan. 

13, 1994), reopening disallowed, Motion No. 259344 (Feb. 15, 1995). Houston claimed 

that appellate counsel had been ineffective by failing to argue that trial counsel violated 

 2

In a subsequent affidavit by Pope, attached to Houston’s 2003 motion for a 

new trial, Pope stated that: “I lied to the * * * Assistant Prosecuting Attorneys and 

the jury when I said that I was positive that [Houston] is the same male I observed 

in the store with the gun * * *.”
an essential duty by not having subpoenaed witnesses present to testify at trial. We 

rejected these arguments as untimely and further noted that they could have been raised 

on direct appeal. The Ohio Supreme Court affirmed, holding that Houston failed to 

show good cause for his untimely filing of the application for reopening in State v. 

Houston, 73 Ohio St.3d 346, 1995-Ohio-317, 652 N.E.2d 1018. 

{¶7} Houston then filed a petition for a writ of habeas corpus in federal court, 

again raising trial counsel’s ineffectiveness and claiming that the State failed to present 

sufficient evidence of his guilt. The district court denied the petition, finding that 

Houston procedurally defaulted the ineffective assistance of appellate counsel claim and 

that the evidence at trial was sufficient for a rational jury to find Houston guilty beyond a 

reasonable doubt. Houston, 8th Dist. No. 90780, 2009-Ohio-224, at ¶ 8. The United 

States Court of Appeals for the Sixth Circuit affirmed the denial of the petition, finding 

that Houston had not shown that the proceedings against him were fundamentally unfair 

or resulted in his unjust confinement. Houston v. Anderson, 129 F.3d 1264 (6th 

Cir.1997). 

{¶8} In June 1998, Houston returned to the trial court and filed a pro se petition 

for postconviction relief, which the court denied. In December 2003, Houston sought 

leave to file a motion for a new trial on grounds of newly discovered evidence. Houston 

argued that Pope had submitted a sworn statement in which he said that “in October 1991 

[the witness saw] the actual Perpetrator at a Halloween party approximately one month 

after the robbery and murder * * *.” Pope also said that he lied to the police because “I 
was afraid of the Perpetrator and I knew he would kill me if I implicated him in this 

crime.” The trial court conducted a hearing on the application and heard testimony from 

Pope. Apart from restating his reasons for falsely implicating Houston, Pope testified 

that he knew the name of the assailant as “Popeye or something” and that the assailant 

was also known as “Dee” because “he was from Detroit.”3

{¶9} The trial court denied Houston’s application for leave, finding that there 

was no newly discovered evidence to warrant a new trial. The court found that the 

events recounted by Pope in 1991, 1992, and 2004 were substantially the same and that 

Pope had consistently described the assailant as a person who looked like Houston, but 

who was taller and had a mark on the right side of his face. Pope said Popeye’s “‘last 

name was Ware — started with the Dee Ware.’” Houston, 8th Dist. No. 90780, 

2009-Ohio-224, ¶ 10. The trial court found that “[w]hile Pope claims to know the real 

perpetrator he has not made an identification.” When asked to clarify, Pope said “‘[t]he 

first name was Dee. I don’t know if it was any other name Darrell or — and the last 

name was Ware.’” Id. 

{¶10} Houston appealed the trial court’s denial to this court in State v. Houston, 

8th Dist. No. 86652, 2006-Ohio-1599. We affirmed the court’s refusal to grant leave to 

file a delayed motion for a new trial, holding that Houston “did not offer any new 

 3

“The record shows several variations on the spelling of this nickname: 

Popeye, Popi and Po-Pi. We assume that these spelling variations are pronounced 

identically to that of the cartoon character ‘Popeye,’ and use that spelling 

throughout for simplicity.” Houston, 8th Dist. No. 90780, 2009-Ohio-224, fn.1.
evidence.” Id. at ¶ 2. We noted that “[t]he eyewitness had recanted his identification 

of Houston at trial, and that Houston made this the subject of his post-conviction relief.” 

Id. Furthermore, we indicated that “[t]he only new aspect to the motion for a new trial 

was the statement by the eyewitness concerning his motivation for allegedly 

misidentifying Houston. The eyewitness’[s] motivation for recanting is irrelevant — the 

evidence was the recantation, and the recantation was not new.” Id.

{¶11} Then in January 2007, Houston filed a second application for leave to file a 

motion for a new trial. In this application, he claimed that Pope could, for the first time, 

identify Popeye as Eugene Demarr Ware (“Ware”), an inmate in Georgia’s penal system, 

whose voter registration records showed that he lived in Cleveland in 1991. Pope 

submitted an affidavit stating that “I got a good look at the assailant who I only knew by 

the street name Popeye aka Po Pi.” Pope claimed that “for the first time ever I was 

shown a photograph of the actual assailant who robbed the store and shot and killed [the 

storeowner]” and that “I can testify that [Ware] was the actual assailant * * *.” Houston 

also offered the affidavit of Bobby Ray Slaughter (“Slaughter”), a person who lived in the 

neighborhood where the robbery occurred. Slaughter stated that he identified a 

photograph of Ware as a person known to him as Popeye, and that in September 1991 

Popeye lived downstairs from his sister, who lived near the deli on East 141st Street in 

Cleveland. 

{¶12} The State opposed the application for leave, arguing that Pope had identified 

Popeye as Ware during the 2004 hearing on the first application for leave to file a motion 
for a new trial, so Ware’s identity was not new evidence. In October 2007, the trial court 

granted Houston’s application for leave to file a motion for a new trial. In his 

subsequent motion for a new trial, 

Houston argued that Ware’s booking sheet allowed Pope to “identify the 

actual assailant by his name, identity and aliases (street name Popeye),” and 

that Pope did not have the opportunity to present this information at trial. 

The state opposed the motion, arguing that Pope had clearly testified at trial 

that Houston was not the robber, putting into issue Pope’s credibility in 

light of his strong identification of Houston as the robber immediately after 

the murder. The state argued that the new evidence would merely try to 

bolster Pope’s credibility and thus did not constitute new and material 

evidence. 

The court granted the motion for a new trial, stating that it would issue a 

“judgment entry in support of decisions.” The court did not, however, 

issue a judgment entry in support of its decision. The State thereafter 

sought leave to appeal in this court and we granted that application. 

Houston, 8th Dist. No. 90780, 2009-Ohio-224, at ¶ 14-15. Houston posted bond and 

was released from prison in November 2007. 

{¶13} On appeal, we affirmed the trial court’s decision, concluding that the trial 

court did not abuse its discretion by granting the motion for a new trial. Id. at ¶ 25. 

After our remand, Houston was reindicted with the aggravated murder, aggravated 

robbery, and having a weapon while under disability charges. After several delays and a 

mistrial, the aggravated murder and robbery charges proceeded to a jury trial in August 

2010. The having a weapon while under disability charge again proceeded to the bench. 

 After the jury was impaneled, the State moved to dismiss the charges with prejudice. 

The trial court granted the State’s motion and ordered the record in Houston’s case 

sealed. 
{¶14} Thereafter, in September 2010, Houston filed the instant complaint for 

declaratory relief. In his second amended complaint, filed in December 2010, Houston 

alleged that he was a wrongfully imprisoned individual under R.C. 2743.48. In June 

2011, both parties moved for summary judgment. Houston argued the evidence 

demonstrates that: (1) he was indicted and convicted in 1992 of aggravated murder with 

a firearm specification, aggravated robbery with the firearm specification, and having 

weapon under a disability, all of which are felonies; (2) he was sentenced to 33 years to 

life in prison after his conviction; (3) his convictions were vacated and a new trial ordered 

in November 2007; (4) he cannot be prosecuted for the offenses again by virtue of the 

dismissal with prejudice; and (5) he did not commit the offenses for which he was 

convicted. The State argued that Houston is not a wrongfully imprisoned individual 

because he pled guilty to having a weapon while under disability and he failed to 

demonstrate his actual innocence. 

{¶15} In February 2012, the trial court granted Houston’s motion for summary 

judgment and denied the State’s motion for summary judgment. The trial court found 

that: 

[Houston’s] decision to plead guilty should not bar [him] from pursuing his 

wrongful imprisonment claim especially given the fact that his underlying 

convictions for aggravated murder and aggravated robbery were vacated 

upon the trial court granting his motion for a new trial. Once those 

convictions were vacated, the guilty plea ceased to be valid. Liberally 

construing the statute, [Houston’s] guilty plea for having a weapon under 

disability does not bar him from pursuing his wrongful imprisonment claim 

as a matter of law. 
{¶16} The trial court further found that there are no issues of material fact with 

respect to Houston’s actual innocence. Therefore, the trial court declared Houston a 

wrongfully imprisoned individual under R.C. 2743.48. 

{¶17} It is from this order the State now appeals, raising the following single 

assignment of error for review. 

ASSIGNMENT OF ERROR 

The trial court erred in granting [Houston’s], and denying [the State’s] 

motion for summary judgment pursuant to [Civ.R. 56]. 

Standard of Review

{¶18} We review an appeal from summary judgment under a de novo standard of 

review. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 

N.E.2d 241; Zemcik v. LaPine Truck Sales & Equip. Co., 124 Ohio App.3d 581, 585, 706 

N.E.2d 860 (8th Dist.1998). In Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 

369-370, 1998-Ohio-389, 696 N.E.2d 201, the Ohio Supreme Court set forth the 

appropriate test as follows: 

Pursuant to Civ.R. 56, summary judgment is appropriate when (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 nonmoving party, said party 

being entitled to have the evidence construed most strongly in his favor. 

Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 

1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus. The 

party moving for summary judgment bears the burden of showing that there 

is no genuine issue of material fact and that it is entitled to judgment as a 
matter of law. Dresher v. Burt (1996), 75 Ohio St.3d 280, 292-293, 

1996-Ohio-107, 662 N.E.2d 264, 273-274. 

{¶19} Once the moving party satisfies its burden, the nonmoving party “may not 

rest upon the mere allegations or denials of the party’s pleadings, but the party’s response, 

by affidavit or as otherwise provided in this rule, must set forth specific facts showing 

that there is a genuine issue for trial.” Civ.R. 56(E); Mootispaw v. Eckstein, 76 Ohio 

St.3d 383, 385, 1996-Ohio-389, 667 N.E.2d 1197. Doubts must be resolved in favor of 

the nonmoving party. Murphy v. Reynoldsburg, 65 Ohio St.3d 356, 358-359, 

1992-Ohio-95, 604 N.E.2d 138. 

Wrongful Imprisonment

{¶20} “The Ohio Revised Code provides a two-step process whereby a person 

claiming wrongful imprisonment may sue the State for damages incurred due to the 

alleged wrongful imprisonment.” State ex rel. Jones v. Suster, 84 Ohio St.3d 70, 72, 

1998-Ohio-275, 701 N.E.2d 1002, citing Walden v. State, 47 Ohio St.3d 47, 547 N.E.2d 

962 (1989). The first action, in the common pleas court, seeks a preliminary factual 

determination of wrongful imprisonment. Id. The second action, in the Court of 

Claims, provides for damages. Id. 

{¶21} A “wrongfully imprisoned individual” is defined in R.C. 2743.48(A) as an 

individual who satisfies each of the following requirements: 

(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. 

{¶22} The Ohio Supreme Court has stated that 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, 1992-Ohio-25, 596 N.E.2d 428 

(1992), citing Walden. 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). Under R.C. 2743.48(A)(5), the 

petitioner carries the burden of proof in affirmatively establishing his or her innocence by 

a preponderance of the evidence. 
Guilty Plea

{¶23} Here, the parties do not dispute that Houston established 

R.C. 2743.48(A)(1), (3), and (4). Rather, both parties agree that R.C. 2743.48(2) and (5) 

are at issue in this case. The State argues that by entering a guilty plea to having a 

weapon while under disability in his first trial, Houston failed to establish that he is a 

wrongfully imprisoned individual under R.C. 2743.48(A)(2). In support of its argument, 

the State emphasizes the fact that R.C. 2743.48(A)(2) requires that Houston was “found 

guilty of, but did not plead guilty to, the particular charge.” Houston, on the other hand, 

argues that because his guilty plea was vacated, it cannot bar his right to present a claim 

for wrongful imprisonment. 

{¶24} This court was presented with an analogous situation in Dunbar v. State, 8th 

Dist. No. 97364, 2012-Ohio-707 (“Dunbar III”), discretionary appeal allowed, 132 Ohio 

St.3d 1461, 2012-Ohio-3054, 969 N.E.2d 1230. 

{¶25} In Dunbar III, the plaintiff-appellee, Lang Dunbar (“Dunbar”), was charged 

with domestic violence for assaulting his fiancée. Immediately following the incident, 

he instructed his fiancée not to leave the house or answer the door. In November 2004, 

Dunbar pled no contest to the domestic violence charge in Cleveland Municipal Court, 

and the court sentenced him to 180 days in jail. 

{¶26} While incarcerated, the Cuyahoga County Grand Jury indicted Dunbar with 

three counts of abduction and one count of domestic violence arising from the same 

November 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.” Id. at ¶ 4. 

{¶27} On appeal, this court found 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”). As a result, we directed that his plea be vacated. Id. at ¶ 193. On 

remand, a jury convicted Dunbar of one count of abduction, and the court sentenced him 

to five years in prison. Dunbar III, 8th Dist. No. 97364, 2012-Ohio-707, at ¶ 5. “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”).” Dunbar III at ¶ 5. 

{¶28} Dunbar then filed a wrongful imprisonment complaint, seeking a declaration 

that he was a “wrongfully imprisoned individual” under R.C. 2743.48(A). Dunbar and 

the State each submitted motions for summary judgment. The trial court denied the 

State’s motion for summary judgment and granted Dunbar’s motion, declaring him a 

“wrongfully imprisoned individual.” Id. at ¶ 7. 

{¶29} The State appealed, setting forth arguments similar to the instant case. The 

State first argued “the trial court erred in granting Dunbar’s motion for summary 

judgment and declaring him a ‘wrongfully imprisoned individual.’ The State 

contend[ed] that Dunbar’s initial guilty plea to the abduction charge precludes him from 
qualifying as a ‘wrongfully imprisoned individual.’” Id. at ¶ 8. The State further 

argued “the trial court erred in denying its motion for summary judgment because Dunbar 

failed to prove his innocence by a preponderance of the evidence.” Id. Dunbar argued 

that once his guilty plea was vacated, his wrongful imprisonment claim could not be 

barred. 

{¶30} We affirmed the trial court’s grant of summary judgment in Dunbar’s favor, 

finding that “[b]ecause 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.” Id. at ¶ 16. In reaching our decision, we relied on State v. Moore, 165 Ohio 

App.3d 538, 2006-Ohio-114, 847 N.E.2d 452 (4th Dist.). 

{¶31} In Moore, the Fourth District Court of Appeals was confronted with the 

same issue presented in Dunbar III. Moore pled guilty to murder on the advice of 

counsel and was sentenced to 15 years to life in prison. Moore later learned that another 

individual involved with the murder tested positive for gunshot residue, while he tested 

negative. Moore then filed a motion to withdraw his guilty plea. The trial court 

granted the motion, finding that he did not knowingly, intelligently, and voluntarily enter 

his plea. 

{¶32} Moore’s case proceeded to a jury trial, at which he was found not guilty. 

Moore then filed a wrongful imprisonment claim under R.C. 2743.48. The trial court 

issued a judgment entry declaring Moore a “wrongfully imprisoned individual,” and the 

State appealed. On appeal, the State argued that Moore could not be declared a 
“wrongfully imprisoned individual” because he had previously pled guilty to the charge 

for which he was imprisoned. 

{¶33} 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. Moore, 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. 

{¶34} We agreed with the Moore court’s liberal construction of R.C. 2743.48, 

noting that Dunbar’s guilty plea was vacated 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. Dunbar III, 8th Dist. 

No. 97364, 2012-Ohio-707, at ¶ 16-17. In Dunbar I, we explained, “‘[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.”’ Id. at ¶ 139, quoting State v. Allgood, 9th Dist. Nos. 
90CA004903, 90CA004904, and 90CA004905, 1991 Ohio App. LEXIS 2972 (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. 

Dunbar I, 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.” Dunbar III, at ¶ 17. 

{¶35} Similarly, the facts in the instant case warrant a liberal construction of R.C. 

2743.48. The transcript of Houston’s first murder trial reveals that Houston only agreed 

to plead guilty to the weapons charge if the jury first found him guilty of at least one of 

the other charges. The following colloquy took place prior to trial: 

[DEFENSE COUNSEL]: [We’ll] go forward with the discussions that we 

had in chambers with regards to the fourth count of the indictment. I 

believe that we have a stipulation with regards to that fourth count, which is 

having a weapon while under disability, in violation of Ohio Revised Code 

2923.13, with a firearm and violent specifications. 

The stipulation that I believe that we have reached is that that count of the 

indictment would not be read to the jury. And that upon that conviction, 

of any of the first three counts of the indictment, we would then stipulate 

that Mr. Darrell Houston had in the past been convicted of carrying a 

concealed weapon and, therefore acquiesce to a finding, of a consistent 

finding by the court with regards to that count of the indictment. 

THE COURT: What would happen in the event of a finding of not guilty 

to counts one, two, and three? What would happen to count four? 

[STATE]: Then the probabilities are, we would request a nolle, your 

Honor. 

THE COURT: All right, sir. 

[STATE]: Everything is dependent upon the first three counts. 
{¶36} Thus, Houston’s plea was based on the agreement that he would plead guilty 

to having a weapon while under disability only if he was first found guilty of at least one 

of the other charges. The trial court acknowledged this in its opinion granting Houston’s 

motion for summary judgment when it stated that 

the transcript [of the original murder trial] shows that [Houston’s] guilty 

plea to having a weapon while under disability was contingent on the 

outcome of his trial for aggravated murder and aggravated robbery. The 

guilty plea would stand if the jury found [Houston] guilty of aggravated 

murder and aggravated robbery, or would be withdrawn if the jury found 

him not guilty. 

The trial court then concluded that “[o]nce [the underlying convictions for aggravated 

murder and aggravated robbery] were vacated [in Houston, 8th Dist. No. 90780, 

2009-Ohio-224,] the guilty plea ceased to be valid.” 

{¶37} Moreover, the State concedes in its appellate brief “that [the guilty] plea was 

subsequently vacated upon [Houston’s] second motion for a new trial.” This is evident 

by the fact that on remand Houston was reindicted with aggravated murder, aggravated 

robbery, and having a weapon while under disability. In August 2010, the aggravated 

murder and aggravated robbery charges proceeded to a jury trial, while the weapon while 

under disability charge was bifurcated to the bench again. At this trial, the court granted 

the State’s motion to dismiss the three charges with prejudice and sealed the record. 

Thus, by virtue of the plea contingency in conjunction with the reindictment and 

subsequent retrial on the having a weapon while under disability charge, we find that 

Houston’s guilty plea was in fact vacated. 
{¶38} As we stated in Dunbar III, “a void guilty plea has no effect at law, [thus,] it 

does not exist for purposes of determining whether a person has the right to seek 

compensation under R.C. 2743.48.” Id., 8th Dist. No. 97364, 2012-Ohio-707, at ¶ 16. 

Therefore, Houston’s guilty plea is a nullity and it does not prevent him from establishing 

his wrongful imprisonment claim under R.C. 2743.48(A)(2). 

Actual Innocence

{¶39} The State further argues that Houston failed to establish his actual innocence 

under R.C. 2743.48(A)(5). The State claims that there is a genuine issue of material fact 

as to the identity of the assailant and claims that it is entitled to a trial “so that a record 

can be created.” However, in Dunbar III, we relied on our decision in Doss v. State, 8th 

Dist. No. 96452, 2011-Ohio-6429, and found that the trial court could rely on prior 

appellate decisions or the evidence in Dunbar’s motion for summary judgment when it 

declared him a “wrongfully imprisoned individual.” Id. at ¶ 22-24. Based on the facts 

in the instant case, the trial court had a sufficient record to rule on both motions for 

summary judgment. 

{¶40} Here, the trial court found that the evidence in the record establishes: (1) 

that Pope, the State’s sole eyewitness to the incident, recanted his testimony identifying 

Houston as the assailant; (2) a lack of evidence connecting Houston to the scene of the 

crime; and (3) that Houston did not match the physical description of the assailant. 

{¶41} Pope initially told the police that the assailant looked like Houston, a man he 

knew by the names of “Darrell” and “Dee.” Pope gave the police a description of the 
shooter and the jacket, hooded sweatshirt, and shoes the shooter had been wearing. He 

also told the police that the shooter had a scar or birthmark on the right side of his face. 

About a month after the shooting, Pope informed the police that he had been at a 

Halloween party and saw a person who looked like the robber. He told the police that he 

believed the shooter was a man known to him as Popeye. Then at the original trial, Pope 

testified that Houston was not the shooter because he did not “see the mark on the right 

side of his face.” Pope testified that the person he saw at the Halloween party about a 

month after the robbery was definitely the robber because “I remember seeing the same 

mark on his face that I seen the guy with the mark there. That’s what made me change 

my mind that it wasn’t Darrell.” Pope’s subsequent affidavit identified Ware as the 

assailant. Slaughter’s affidavit established that Ware is known to him as Popeye and in 

September 1991 Popeye lived downstairs from his sister, who lives near the deli. 

Typically, the delayed disclosure of a witness’s recantation weighs against the 

believability and truthfulness of the witness. See State v. Sowers, 81 Ohio St.3d 260, 

263, 1998-Ohio-632, 690 N.E.2d 881. However, in the instant case, Pope recanted his 

identification of Houston as the robber a month after the shooting and consistently 

maintained that Ware was the assailant. 

{¶42} Furthermore, the State never recovered the gun used to kill Ali. Houston’s 

fingerprints were not found at the scene of the crime, and there was no forensic evidence 

linking Houston to the incident. The blood found on Houston’s coat did not match that 

of the victim, and the scientific examiner could not conclude that the gunshot residue 
recovered from the sleeve of Houston’s coat came from the murder weapon. Moreover, 

the scientific examiner could not place a time or date on when the gunshot residue had 

been deposited on the sleeve of the coat. In addition, Houston submitted affidavits from 

five individuals stating that he was with them at the time Ali was robbed and murdered. 

{¶43} Lastly, there were conflicting descriptions of the robber’s height and weight. 

 At the time of the murder, Houston stood at 5’8” and weighed 140 pounds. However, 

Pope described the assailant as 5’8” – 5’9” tall and weighing 175 pounds, and the two 

witnesses who observed the assailant exit the deli described him as 6 feet tall and 

weighing 175 pounds. Also, Houston did not have any identifiable scars or marks on his 

face like Pope initially described. 

{¶44} Based on the foregoing, Houston affirmatively demonstrated his innocence 

by a preponderance of the evidence as required by R.C. 2743.48(A)(5). Therefore, we 

find the trial court properly determined that Houston was a “wrongfully imprisoned 

individual.” 

{¶45} Accordingly, the sole assignment of error is overruled. 

{¶46} Judgment is 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 

MELODY J. STEWART, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR