[Cite as LeFever v. State, 2013-Ohio-4606.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Virginia LeFever, : 

 Plaintiff-Appellant, : 

 No. 12AP-1034 

v. : (C.P.C. No. 12CVH-01-973)

 

State of Ohio, : (REGULAR CALENDAR) 

 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on October 17, 2013 

 

Cooper & Elliott, LLC, Rex H. Elliott, Charles H. Cooper, Jr., 

Bradley A. Strickling and Barton R. Keyes, for appellant. 

Michael DeWine, Attorney General, and Debra Gorrell 

Wehrle, for appellee.

 

APPEAL from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Plaintiff-appellant, Virginia LeFever ("appellant"), appeals from a decision 

of the Franklin County Court of Common Pleas granting summary judgment in favor 

defendant-appellee, State of Ohio ("the State"), as to her complaint for wrongful 

imprisonment brought pursuant to R.C. 2743.48. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellant and William LeFever were getting a divorce. The final hearing 

was scheduled for September 27, 1988. Once the divorce was final, appellant planned to 

move to California with her children Alex, Sarah and Cory. William died on 

September 22, 1988, one week before the hearing. 
No. 12AP-1034 2 

{¶ 3} The Sixth Circuit Court of Appeals summarized the facts surrounding 

William's death and appellant's prosecution for aggravated murder in LeFever v. Money, 

225 F.3d 659 (6th Cir.2000), as follows: 

On September 19, 1988, [appellant], who is a registered nurse, 

went to the office of her then-employer, Medical Personnel 

Pool. She told Anita Cullison, the staff coordinator there, that 

she was looking for a specific type of syringe for use on a Pool 

patient whom [appellant] was scheduled to see later that day. 

The next afternoon, [appellant] called Cullison * * * and * * * 

brought up a conversation they had several months before in 

which they discussed the fact that someone could be 

"eliminated" for $50 and a bus ticket. That same afternoon, 

William [LeFever] arrived at [appellant]'s home to pick up his 

tools. * * * At 8:30 that evening, [appellant] called Cullison, 

this time at home, and explained to her that she was not 

serious about eliminating anyone. [Appellant] also said that 

William had nothing to offer her except a life insurance policy, 

and that he would likely remove her as beneficiary after the 

divorce. William fell asleep on the family room couch and was 

still asleep when [appellant] went upstairs to bed at 10:30. 

Around midnight, Cory LeFever heard loud banging and then 

saw William running around naked and grabbing and talking 

to the trash. When Cory told [appellant] how William was 

acting, she told him that his dad would be all right. After 

hearing more banging, Cory went to [appellant] again, and 

this time she got up and went downstairs to check on William. 

When she and Cory went downstairs, they saw the bathroom 

in a state of disarray, and William had bruises and a big gash 

on his knee. [Appellant] then took William upstairs to her 

bedroom. 

At 6 a.m. that morning [appellant] noticed that her bottle of 

Elavil was missing. When she returned to her bedroom, she 

saw the bottle containing one-half tablet of Elavil on the floor 

near the nightstand. At that point, she surmised that William 

had taken 20, 100 mg tablets of Elavil. At 8:30 a.m., 

[appellant] called Cullison, again at home, and said that she 

let William in because he was making a scene, and that he had 

taken an overdose of pills. [Appellant] said she monitored his 

vitals and he would be all right, but she could not report to 

work that day. At 10:30 a.m. [appellant] called Cullison again, 

this time at the office, and asked her if she had called 

[appellant] at home, because she was keeping a "low profile." 
No. 12AP-1034 3 

That afternoon, between 2:15 and 2:30, [appellant] and her 

children went into the Pool office looking for a bandage. 

William was left behind at her home. 

Later that same afternoon, [appellant] telephoned Vernon 

Breese, William's best friend, and said that William was 

"pretty bad off," and that he was bruised and beaten up from 

bumping around the house. He told her to call the emergency 

squad. She said she did not want to do that, because she did 

not want people to know about the overdose, especially 

because of their impending divorce. When he arrived at 

[appellant]'s home, Breese found William lying in a supine 

position on the bathroom floor with pale gray skin, bruises, 

and a bad, unbandaged cut below his knee. As he began 

wiping William down in an effort to revive him, he told 

[appellant] to call the emergency squad. She offered to call a 

doctor she knew instead. 

[Appellant] told Breese that Dr. Wesley Filipow told her that 

"it would pass," to wait it out, and that, if he did not get better, 

to then bring him to the hospital. At that point, Breese 

insisted that she call the emergency squad, which she did. 

At the hospital William * * * said that his bruises were from 

[appellant] who would "beat the shit out of him" whenever he 

passed out. William died that morning at 11:37. 

Pursuant to a warrant, the police later found the following 

items while searching [appellant]'s bags of garbage: a can of 

poison peanuts used to kill rodents; a 35 mm film canister 

with a residue consistent with the strychnine-laced peanuts; a 

can of Forces Ro-Dex used to kill pocket gophers, which 

contains a strychnine base; a pink dye consistent with that 

used in Ro-Dex; an empty bottle of Terro ant killer, which 

contains an arsenic base; the charred remains of a burnt 

fumigant stick called "Smoke 'Ems," a mole killer that 

contains sulfuric dioxide; household deodorizer; syringes; and 

hypodermic needles. 

In trying to determine the cause of William's death, medical 

examiners for the county found the following poisons in 

William's system: amitriptyline; its metabolite, nortriptyline; 

strychnine; arsenic; and sulfate. 

[T]he chief toxicologist for the county coroner's office found 

pieces of cracked corn, peanuts, seeds, and dye in William's 
No. 12AP-1034 4 

body that were identical to that found in the Ro-Dex rodent 

bait and the poison peanuts located in [appellant]'s garbage. 

* * * In William's blood he found 16 times the amount of 

sulphate that would normally be present; he said the amount 

was consistent with an individual breathing in the fumes from 

a sulfur candle. After considering all of this evidence, the 

examiners opined that William died from acute amitriptyline 

and nortriptyline poisoning that was administered 

intramuscularly and rectally. 

(Footnotes omitted.) 

{¶ 4} On November 30, 1988, the Licking County Grand Jury indicted appellant 

on one count of aggravated murder in connection with the death of her husband. 

Following a bench trial, appellant was convicted of aggravated murder and sentenced to 

life in prison. The court of appeals affirmed the conviction in State v. LeFever, 5th Dist. 

No. CA-3535 (Nov. 18, 1991). 

{¶ 5} In 2010, after appellant had served 22 years of a life sentence, the 

sentencing court granted appellant's motion for a new trial due to the fact that the State's 

toxicologist had lied about his qualifications.1 The Licking County Prosecutor, Ken 

Oswalt, subsequently dismissed the indictment "without prejudice." 

{¶ 6} Thereafter, appellant filed a complaint against the State seeking a 

declaration that she was a wrongfully imprisoned individual pursuant to R.C. 2743.48. In 

her complaint, appellant alleges that she did not kill her husband, and that a crime "was 

not committed by any person because it was, in fact, a suicide, and not a murder." 

(Complaint, ¶ 8.) 

{¶ 7} On November 22, 2012, the trial court concluded that appellant failed to 

produce evidence that no criminal proceeding can or will be brought against her for any 

act associated with her conviction, and granted summary judgment in favor of the State. 

{¶ 8} Appellant timely appealed to this court from the judgment of the Franklin 

County Court of Common Pleas and assigns the following assignments of error: 

1. The trial court erred when it granted summary judgment 

in favor of the State of Ohio and found there was no genuine 

issue of material fact as to whether a criminal proceeding "can 

be brought or will be brought" against Virginia LeFever. 

 

1 State v. LeFever, Licking C.P. No. 1988-CR-17117 (Nov. 22, 2010) (Judgment entry granting new trial). 
No. 12AP-1034 5 

2. The trial court abused its discretion when it impliedly 

denied Ms. LeFever's motion for leave to file a motion for 

partial summary judgment by terminating the case without 

ruling on the motion for leave. 

 

II. STANDARD OF REVIEW 

{¶ 9} Appellate review of a summary judgment motion is de novo. Helton v. 

Scioto Cty. Bd. of Commrs., 123 Ohio App.3d 158, 162 (4th Dist.1997). "When reviewing a 

trial court's ruling on summary judgment, the court of appeals conducts an independent 

review of the record and stands in the shoes of the trial court." Mergenthal v. Star Bank 

Corp., 122 Ohio App.3d 100, 103 (12th Dist.1997). We must affirm the trial court's 

judgment if any of the grounds raised by the movant at the trial court are found to support 

it, even if the trial court failed to consider those grounds. Coventry Twp. v. Ecker, 101 

Ohio App.3d 38, 41-42 (9th Dist.1995). 

{¶ 10} Summary judgment is proper only when the party moving for summary 

judgment demonstrates that: (1) no genuine issue of material fact exists, (2) the moving 

party is entitled to judgment as a matter of law, and (3) reasonable minds could come to 

but one conclusion and that conclusion is adverse to the party against whom the motion 

for summary judgment is made, that party being entitled to have the evidence most 

strongly construed in that party's favor. Civ.R. 56(C); State ex rel. Grady v. State Emp. 

Relations Bd., 78 Ohio St.3d 181, 183 (1997). 

{¶ 11} When seeking summary judgment on the ground that the nonmoving party 

cannot prove its case, the moving party bears the initial burden of informing the trial 

court of the basis for the motion, and identifying those portions of the record that 

demonstrate the absence of a genuine issue of material fact on an essential element of the 

nonmoving party's claims. Dresher v. Burt, 75 Ohio St.3d 280, 293 (1996). A moving 

party does not discharge this initial burden under Civ.R. 56 by simply making a 

conclusory allegation that the nonmoving party has no evidence to prove its case. Id. 

Rather, the moving party must affirmatively demonstrate by affidavit or other evidence 

allowed by Civ.R. 56(C) that the nonmoving party has no evidence to support its claims. 

Id. If the moving party meets this initial burden, then the nonmoving party has a 

reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing that there is a 
No. 12AP-1034 6 

genuine issue for trial and, if the nonmoving party does not so respond, summary 

judgment, if appropriate, shall be entered against the nonmoving party. Id. 

III. LEGAL ANALYSIS 

 A. Trial Court Ruling 

{¶ 12} In order to be declared a wrongfully imprisoned individual, a claimant must 

satisfy, by a preponderance of the evidence, all five criteria set forth in R.C. 2743.48(A). 

Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163; Gover v. State, 67 Ohio St.3d 93, 

95 (1993). 

{¶ 13} R.C. 2743.48(A) provides, in relevant part, as follows: 

As used in this section and section 2743.49 of the Revised 

Code, a "wrongfully imprisoned individual" means an 

individual who satisfies each of the following: 

 

* * * * 

(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 

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 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. 

(Emphasis added.) 

{¶ 14} The trial court granted summary judgment for the State because appellant 

did not present any evidence in satisfaction of R.C. 2743.48(A)(4). More particularly, 

the trial court determined that appellant "has not presented any evidence showing that 

she could not be retried." (Trial Court Decision, 10.) 
No. 12AP-1034 7 

{¶ 15} The trial court explained that "[t]he evidence presented shows criminal 

proceedings against Ms. LeFever may be brought by the prosecuting authority for an act 

associated with her earlier murder conviction. Plaintiff has not offered evidence to the 

contrary on that issue i.e., the statute has run, it is barred by res judicata, etc." (Emphasis 

sic.) (Trial Court Decision, 11.) In other words, the trial court placed the burden on 

appellant to produce evidence that subsequent criminal proceedings were either not 

possible upon the evidence or that such proceedings were legally barred. 

B. State's Evidence in Support of Summary Judgment 

{¶ 16} The State presented evidence establishing that the prosecutor had not 

abandoned his effort to prosecute appellant for the death of her husband and that such a 

prosecution was both factually sustainable and legally permissible following reversal. The 

State argues that the evidence conclusively establishes that further criminal proceedings 

can or will be brought against appellant for her husband's death. We agree. 

{¶ 17} In a press release dated April 21, 2011, Licking County Prosecutor, Ken 

Oswalt, made the following comments about the case against appellant: 

After an exhaustive analysis of that evidence – including 

exploring the limitations on conducting new scientific testing 

today on what few biological samples remain after over 20 

years – I have come to the professional judgment that, as it 

currently stands, I am not in a position to successfully retry 

Mrs. LeFever on the charge of Aggravated Murder with any 

likely prospect of meeting the State's burden of proving her 

guilt beyond a reasonable doubt. 

* * * 

Although the granting of the motion to dismiss terminates the 

current proceedings, it also does one other significant thing. 

Because the dismissal was done "without prejudice" it allows 

for the re-filing of charges in the future in the event that new 

admissible evidence were to be discovered; and/or in the 

event that scientific advancements in the future were to allow 

for the testing of currently available biological samples by a 

new qualified toxicologist, that would also include reliable 

opinions not only as to the presence and quantity of any 

poisons in Mr. LeFever's body at the time of his death; but 

also reliable expert opinions regarding the timing, mode 

and/or manner of administration of those poisons. As 

reported to me, these things cannot be done with the current 
No. 12AP-1034 8 

state of today's scientific know-how. As that may change in 

the coming years, the possibility does exist that re-filing 

charges in this matter could legally occur at some point in the 

future. 

(Press Release, 1-2.) 

{¶ 18} In his deposition testimony in this matter, Oswalt explained that he still 

believed that he had at least "a fair chance of getting [appellant] convicted of at least 

aggravated attempted murder." (Tr. 27.) With regard to the statute of limitations, Oswalt 

testified as follows: 

Q. [W]hat is, then, the statute of limitations on an attempted 

aggravated murder charge? 

A. It is generally six years. However, statute of limitations are 

tolled during any period of time an indictment is pending, 

prosecution is pending. So that six-year statute of limitations 

was tolled when she was indicted in November of 2008 - - 

excuse me, 1988 and it was tolled up until the date I dismissed 

that indictment. 

(Tr. 47.) 

{¶ 19} Oswalt related that there is no statute of limitations for aggravated murder. 

(Tr. 50.) However, he acknowledged that if the science of toxicology does not advance far 

enough in the next few years to permit a prosecution for aggravated murder, he will have 

to make a decision whether to proceed with a charge of attempted aggravated murder. 

(Tr. 47-50.) He conceded that res judicata would bar him from subsequently prosecuting 

appellant for aggravated murder if he first went forward with a charge of attempted 

aggravated murder. (Tr. 48-49.) 

{¶ 20} According to Oswalt, both Corey and Sarah LeFever have expressed to him 

that they are willing to give testimony which would implicate appellant in an attempt to 

poison her husband with a fumigant known as "Smoke 'Ems." Oswalt related that one 

other witness has come forward since the reversal of appellant's conviction to offer 

testimony which corroborates the facts set forth by Corey and Sarah. He refused, 

however, to disclose details regarding the new evidence against appellant due to the 
No. 12AP-1034 9 

existence of a privilege.2 According to Oswalt, his assessment of the chances of a 

conviction for attempted aggravated murder are based upon the evidence he has received 

since appellant's release, the testimonial evidence presented in the first trial, and the 

remaining physical evidence uncovered in the search of appellant's home. 

C. Meaning of R.C. 2743.48(A)(4) 

{¶ 21} In her first assignment of error, appellant argues that that trial court’s 

interpretation of R.C. 2743.48(A)(4) is contrary to the intent of the General Assembly in 

enacting the wrongful imprisonment statute. We disagree. 

{¶ 22} Appellant's first contention is that the trial court misinterpreted the phrase

"no criminal proceeding * * * can be brought, or will be brought." R.C. 2743.48(A)(4). 

Appellant notes that the statute is remedial in nature and that the General Assembly did 

not intend to deny recovery to the claimant simply because of the mere possibility of 

future criminal proceedings. Rather, she believes that the General Assembly intended the 

language as a bar to recovery only where further criminal proceedings will, more likely 

than not, result in a conviction. 

{¶ 23} " ' "[W]here the language of a statute is clear and unambiguous, it is the 

duty of the court to enforce the statute as written, making neither additions to the statute 

nor subtractions therefrom." ' " Terry v. Sperry, 130 Ohio St.3d 125, 2011-Ohio-3364, 

¶ 25, quoting Sherwin-Williams Co. v. Dayton Freight Lines, Inc., 112 Ohio St.3d 52, 

2006-Ohio-6498, ¶ 14, quoting Hubbard v. Canton City School Bd. of Edn., 97 Ohio St.3d 

451, 2002-Ohio-6718, ¶ 14. In Dunbar, the disputed issue was whether a claimant 

satisfied R.C. 2743.48(A)(2), which requires claimant to prove that he has not pleaded 

guilty to the offense for which he was convicted. The court of appeals had reversed 

Dunbar's first conviction because the trial court failed to advise him of his rights and did 

not give him the opportunity to withdraw his guilty plea. Id. at ¶ 3. Dunbar's second 

conviction was overturned due to insufficient evidence. Id. at ¶ 4. Dunbar subsequently 

filed a complaint seeking a declaration that he was a wrongfully imprisoned individual. 

Id. at ¶ 4. The trial court granted summary judgment for Dunbar reasoning that his prior 

 

2 Attorney "opinion work-product" involves the attorney's mental impressions, conclusions, opinions or 

legal theories, and such work product can be discovered in a civil action only in very rare and 

extraordinary circumstances. Stanton v. Univ. Hosps. Health Sys., Inc., 166 Ohio App.3d 758, 2006-

Ohio-2297 (8th Dist.). 
No. 12AP-1034 10 

guilty plea was a nullity and, therefore, R.C. 2743.48(A)(2) did not bar recovery. Id. at 

¶ 6. The court of appeals affirmed. 

{¶ 24} On appeal to the Supreme Court of Ohio, the State argued that the plain 

language of subsection (A)(2) mandates that the claimant "did not plead guilty," and that 

Dunbar was seeking "a judicially crafted exception" for claimant's whose guilty pleas have 

been vacated. Id. at 12. The State insisted that "[s]uch an exception would swallow the 

rule." Id. Dunbar countered that R.C. 2743.48 is a remedial statute which must be 

liberally construed, and that the State's interpretation was "contrary to the clear intent" of 

the General Assembly. Id. Dunbar also argued that R.C. 2743.48(A)(2) was "ambiguous 

because it does not address the effect of a void or vacated guilty plea." Id. at ¶ 13. 

{¶ 25} The Supreme Court of Ohio reversed the judgment of the court of appeals 

stating: 

The General Assembly created the claim for wrongful 

imprisonment and placed limitations upon the categories of 

persons who are eligible for compensation. One limitation is 

that the claimant cannot have pled guilty to the offense. 

Id. at ¶ 20. 

[W]e must apply the statute as it is written. Here, the statute 

expressly provides that to demonstrate that he is a 

"wrongfully imprisoned individual" pursuant to R.C. 2743.48, 

the claimant must satisfy each of the provisions of R.C. 

2743.48(A)(1) through (5). Gover v. State, 67 Ohio St.3d 93, 

95, 616 N.E.2d 207 (1993). This includes the express 

requirement that the claimant did not plead guilty to the 

particular offense. 

(Emphasis sic.) Id. at ¶ 17. 

{¶ 26} We must also apply R.C. 2743.48(A)(4) as it is written. The statute 

expressly requires the claimant to prove that no criminal proceedings can or will be 

brought against her for any act associated with her prior conviction. The use of the phrase 

"no criminal proceedings * * * can * * * or will be brought" was clearly intended by the 

General Assembly to bar recovery to a claimant against whom criminal proceedings are 

still factually supportable and legally permissible following reversal. The plain language 

of the statute contains no qualifications and permits no exceptions. 
No. 12AP-1034 11 

{¶ 27} In this case, reversal of appellant's conviction forecloses the State from 

using the testimony of the same toxicologist in any future criminal proceedings. However, 

the physical evidence upon which the State relied in obtaining a conviction is still 

available for use by the State in any future criminal proceedings. While Oswalt admitted 

that the few remaining biological samples are not of sufficient quality to permit scientific 

analysis at this point in time, he is preserving the evidence in the event of a relevant 

advancement in the science of toxicology in the near future. Moreover, Oswalt has stated 

that the statute of limitations has not yet run on the charge of attempted aggravated 

murder and that the existing evidence supports such a charge. Thus, in the context of this 

case, the State has conclusively demonstrated that appellant cannot prove a critical 

element of her claim. 

{¶ 28} Appellant next contends that the trial court's interpretation of the phrase 

"no criminal proceedings * * * can * * * be brought" renders meaningless the proceeding 

language "or will be brought." R.C. 2743.48(A)(4). We disagree. 

{¶ 29} In determining the meaning of a statute, a court may not take out, strike or 

read anything out of a statute, or delete, subtract or omit anything therefrom. Id. at ¶ 18. 

"To the contrary, it is a cardinal rule of statutory construction that significance and effect 

should if possible be accorded every word, phrase, sentence and part of an act." Id. We 

read the phrase "no criminal proceedings * * * will be brought" as an alternative means for 

the claimant to satisfy R.C. 2743.48(A)(4) in cases where future criminal proceedings are 

both factually supportable and legally permissible, but the prosecutor has elected not to 

proceed. Indeed, "[t]he decision whether to prosecute a criminal offense is generally 

within the prosecutor's discretion." Cleveland v. Thorne, 8th Dist. No. 98365, 2013-Ohio1029, ¶ 26, citing United States v. Armstrong, 517 U.S. 456, 464 (1996). And, "[t]here is 

* * * a 'strong presumption of regularity' in prosecutorial discretion." Id., quoting State v. 

Norris, 147 Ohio App.3d 224, 229 (8th Dist.2002). When the language of the statute is 

viewed in the proper light, it is evident that the trial court's interpretation gives meaning 

to every word, phrase and part of subsection (A)(4). 

{¶ 30} In a related argument, appellant contends that the trial court erred when it 

ignored evidence of her innocence in its subsection (A)(4) analysis. In opposition to the 

State's motion for summary judgment, appellant submitted her own affidavit wherein she 
No. 12AP-1034 12 

avers that her husband's death was a suicide. According to appellant, if the trial court 

accepts her proof of innocence, then, ipso facto, there is an issue of fact whether criminal 

proceedings can be brought against her for her husband's death. 

{¶ 31} Appellant's argument puts the cart before the horse. In our view, an 

important reason the General Assembly enacted subsection (A)(4) as an element of a 

wrongful imprisonment claim is to assure that all criminal proceedings that can or will be 

filed against the claimant are finally determined before a wrongful imprisonment action is 

commenced. If we were to adopt appellant's position, subsection (A)(4) would be 

swallowed up by the actual innocence standard in subsection (A)(5). This is the type of 

argument the Supreme Court rejected in Dunbar.

{¶ 32} Finally, to the extent that appellant claims that the trial court's 

interpretation of subsection (A)(4) distorts the burden of proof in a wrongful 

imprisonment case, we note that the trial court specifically stated that appellant had the 

burden of proving each of the elements of her wrongful imprisonment claim, by a 

preponderance of the evidence. (Trial Court Decision, 7.) Moreover, as noted above, the 

evidence appellant presented in support of her claim of innocence is not legally sufficient 

to withstand the State's properly supported motion for summary judgment as to 

subsection (A)(4). 

{¶ 33} In short, appellant was unable to present evidence to support an inference 

that, more likely than not, no criminal proceeding can or will be brought against her for 

an act associated with her conviction. We acknowledge that our opinion in Hill v. State, 

10th Dist. No. 12AP-635, 2013-Ohio-1968, contains dicta suggesting that it is unfair to 

require a wrongful imprisonment claimant to prove that a prosecutor will never initiate 

future criminal proceedings. However, the Hill case is distinguishable inasmuch as the 

reviewing court excluded material physical evidence in reversing Hill's conviction, and the 

prosecutor subsequently acknowledged that no further proceedings would be brought 

against claimant. Id. at ¶ 3. Moreover, the more recent opinion of the Supreme Court in 

Dunbar has cautioned us that creating an exception to the requirements of R.C. 

2743.48(A) is "within the purview of the General Assembly." Id. at ¶ 19. 

{¶ 34} Accordingly, appellant's first assignment of error is overruled. 

 
No. 12AP-1034 13 

D. Motion for Leave 

{¶ 35} In her second assignment of error, appellant argues that the trial court 

abused its discretion when it impliedly denied her motion for leave to file a motion for 

partial summary judgment. According to appellant, the motion for leave was based upon 

the recent authority in Johnston v. State, Franklin C.P. No. 11CVH-12-15900 (Oct. 31, 

2012).3 In that case, the trial court determined that the reversal of a criminal conviction 

due to a Brady violation4 constitutes an "error in procedure" as the term is used under 

amended R.C. 2743.48(A)(5).5 

{¶ 36} A trial court's decision to grant or deny leave to file a motion for summary 

judgment is reviewed under the abuse of discretion standard. Gilchrist v. Gonsor, 8th 

Dist. No. 88609, 2007-Ohio-3903, ¶ 30; Cooper v. Valvoline Instant Oil Change, 10th 

Dist. No. 07AP-392, 2007-Ohio-5930, ¶ 8. "The term 'abuse of discretion' connotes more 

than an error of law or judgment; it implies that the court's attitude is unreasonable, 

arbitrary or unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983), 

quoting State v. Adams, 62 Ohio St.2d 151, 157 (1980). 

{¶ 37} Appellant’s complaint alleges only that she is wrongfully imprisoned under 

the actual innocence standard. Rather than moving the trial court to amend her pleading, 

she sought leave from the trial court to file a motion for summary judgment based upon 

the "error in procedure" standard. While the trial court did not expressly rule upon the 

motion for leave, the court did state that appellant's "later arguments regarding 

subsection (A)(5) are moot." (Nov. 12. 2012 Trial Court Decision, 11.) 

{¶ 38} Appellant acknowledges that she failed to timely file her motion for 

summary judgment. Moreover, to survive the State's motion for summary judgment, 

appellant was required to produce evidence as to each of the elements of her statutory 

claim, including R.C. 2743.48(A)(4). Having determined that that the trial court did not 

err when it granted summary judgment on the basis that appellant failed to present 

 

3 The case is currently before this court on appeal. See Johnston v. State, 10th Dist. No. 12AP-1022 

4 Brady v. Maryland, 373 U.S. 83 (1963). 

5 In December 2002, the General Assembly enacted Sub.S.B. No. 149. As a result of the statutory 

amendment, a claimant may satisfy R.C. 2743.48(A)(5) by proving that "an error in procedure resulted in 

the individual's release." 
No. 12AP-1034 14 

evidence in satisfaction of subsection (A)(4), her "error in procedure" claim is moot. 

Accordingly, the trial court did not abuse its discretion in denying appellant's motion for 

leave. Appellant's second assignment of error is overruled. 

IV. DISPOSITION 

{¶ 39} Having overruled each of appellant's assignments of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

 BROWN and SADLER , JJ., concur. 

____________