[Cite as James v. State, 2014-Ohio-140.]

 

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

OMAR K. JAMES, aka : 

AHMAD K. JAMES : Appellate Case No. 2013-CA-28 

: 

Petitioner-Appellant : Trial Court Case No. 09-CV-1251 

: 

v. : 

: 

STATE OF OHIO : (Civil Appeal from 

: (Common Pleas Court) 

Respondent-Appellee : 

: 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 17th day of January, 2014. 

. . . . . . . . . . . 

DEREK A. FARMER, Atty. Red. #0071654, Farmer Law Offices, 428 Beecher Road, Suite C, 

Columbus, Ohio 43230 

Attorney for Petitioner-Appellant 

MICHAEL DeWINE, by PETER L. JAMISON, Atty. Reg. #0086539, Ohio Attorney General’s 

Office, Criminal Justice Section, 150 East Gay Street, 16th Floor, Columbus, Ohio 43215 

and 

D. ANDREW WILSON, by ANDREW P. PICKERING, Atty. Reg. #0068770, Clark County 

Prosecutor’s Office, 50 East Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 

45501 

Attorneys for Respondent-Appellee, State of Ohio 

 

. . . . . . . . . . . . . 

 
FAIN, J. 

{¶ 1} Plaintiff-appellant Omar K. James appeals from a summary judgment rendered in 

favor of defendant-appellee the State of Ohio on James’s complaint for wrongful imprisonment. 

James contends that the trial court erred by granting the State’s motion for summary judgment 

and in not finding that he was a “wrongfully imprisoned individual” pursuant to R.C. 

2743.48(A). 

{¶ 2} We conclude that the trial court erred in rendering summary judgment in favor of 

the State; it should have rendered summary judgment in favor of James. Accordingly, the 

judgment of the trial court is Reversed, and this cause remanded for the trial court to enter 

judgment for James. 

I. Course of the Proceedings

{¶ 3} In 1996, James was indicted on one count of Possession of Crack Cocaine in an 

amount greater than twenty-five grams, a first-degree felony in violation of R.C. 2925.11; one 

count of Carrying a Concealed Weapon, a fourth-degree felony in violation of R.C. 2923.12; one 

count of Having Weapons While Under Disability, a fifth-degree felony in violation of R.C. 

2923.13; and one count of Possession of Cocaine in an amount exceeding five grams, but less 

than twenty-five grams, a fourth-degree felony in violation of R.C. 2925.11(C)(4). All of the 

counts in the indictment related to events that transpired on September 7, 1996. 

{¶ 4} In June 1997, James was tried on the four counts in the indictment. A jury 

found him guilty of Having Weapons While Under Disability. The jury could not reach a verdict 

on the remaining three counts of the indictment. James was sentenced to a prison term of twelve 

months. He did not appeal from his conviction and served his prison term. 
[Cite as James v. State, 2014-Ohio-140.]

{¶ 5} A second trial on the remaining three counts of the indictment commenced in 

June 1998. On the first day of trial, James told the trial court that he wanted to represent 

himself. The jury trial proceeded with James representing himself. The jury returned guilty 

verdicts on the remaining three counts, and the trial court sentenced James to thirteen years in 

prison. James appealed; we affirmed. State v. James, 2d Dist. Clark No. 98-CA-54, 1999 WL 

76815 (Feb. 19, 1999). James then sought to appeal to the Supreme Court of Ohio, which 

declined to hear the appeal. State v. James, 86 Ohio St.3d 1414, 711 N.E.2d 1010 (1999). 

{¶ 6} James subsequently sought a writ of habeas corpus in the United States District 

Court for the Southern District of Ohio, challenging his three felony convictions that resulted 

from the second trial. In June 2005, the United States District Court granted James a conditional 

writ of habeas corpus. James v. Brigano, 201 F.Supp.2d 810 (S.D.Ohio 2002). The State 

appealed. In November 2006, the United States Court of Appeals for the Sixth Circuit affirmed 

the district court’s decision insofar as it held that James did not knowingly and intelligently 

waive his right to counsel at trial. James v. Brigano, 470 F.3d 636, 644 (6th Cir. 2006). The 

District Court then ordered the State to retry James on or before October 27, 2008. James v. 

Brigano, S.D. Ohio No. 3:00CV00491, 2008 WL 2949411 (July 30, 2008). The State failed to 

retry James by this deadline. 

{¶ 7} James thereafter moved in the court of common pleas to dismiss the remaining 

three counts of the indictment, with prejudice. In August 2009, the trial court sustained the 

motion and dismissed the remaining three counts of the indictment, with prejudice. 

{¶ 8} In September 2009, James brought this action in the court of common pleas, 

alleging that he was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48(A). James 

and the State both moved for summary judgment. The trial court overruled James’s motion and 
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granted the State’s motion, dismissing the action. From this judgment, James appeals. 

II. James Established by a Preponderance of the Evidence that He 

Was a Wrongfully Imprisoned Individual Pursuant to R.C. 2743.48(A)

{¶ 9} James’s sole assignment of error states: 

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT 

RELIEF TO THE STATE AND IN FAILING TO SUSTAIN APPELLANT’S 

MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WHETHER 

APPELLANT IS A WRONGFULLY IMPRISONED INDIVIDUAL UNDER 

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

{¶ 10} When reviewing a summary judgment, an appellate court conducts a de novo 

review. Village of Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). 

 “De Novo review means that this court uses the same standard that the trial court should have 

used, and we examine the evidence to determine whether as a matter of law no genuine issues 

exist for trial.” Brewer v. Cleveland City Schools Bd. Of Edn., 122 Ohio App.3d 378, 383, 701 

N.E.2d 1023 (8th Dist.1997), citing Dupler v. Mansfield Journal Co., 64 Ohio St.2d 116, 413 

N.E.2d 1187 (1980). Therefore, the trial court’s decision is not granted any deference by the 

reviewing appellate court. Brown v. Scioto Cty. Bd. Of Commrs., 87 Ohio App.3d 704, 711, 622 

N.E.2d 1153 (4th Dist.1993). 

{¶ 11} R.C. 2743.48, the wrongful imprisonment statute, authorizes civil actions against 

the State, for specified monetary amounts, in the court of claims by wrongfully imprisoned 

individuals. Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, ¶ 10. 
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Under the statutory scheme, a claimant must first be determined to be a “wrongfully imprisoned 

individual” by the court of common pleas before seeking compensation from the State in the 

court of claims. R.C. 2305.02 and R.C. 2743.48(B)(2); Doss at ¶ 10. 

{¶ 12} R.C. 2743.48(A) defines a “wrongfully imprisoned individual” as “an individual 

who satisfies each of the following: 

(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. 

(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, 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, 
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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. 

{¶ 13} A claimant must satisfy all five criteria in R.C. 2743.48(A), by a preponderance 

of the evidence, to be declared a “wrongfully imprisoned individual.” Gover v. State, 67 Ohio 

St.3d 93, 95, 616 N.E.2d 207 (1993). The trial court failed to identify which of the five criteria 

James had failed to establish, as a matter of law. The parties agree that James established the 

first three criteria pursuant to R.C. 2743.48(A), but disagree over whether James established the 

last two criteria in R.C. 2743.48(A)(4) and (5). Based on our review of the record, we agree 

with the parties that James established the criteria in R.C. 2743.48(A)(1) through (3). We will 

now address whether he established the criteria in R.C. 2743.48(A)(4) and (5). 

{¶ 14} In 1993, the Supreme Court of Ohio interpreted R.C. 2743.48(A)(4), holding: 

“claimants seeking compensation for wrongful imprisonment must prove that at the time of the 

incident for which they were initially charged, they were not engaging in any other criminal 

conduct arising out of the incident for which they were initially charged.” Gover at syllabus. 

The Supreme Court explained the rationale behind its interpretation of R.C. 2743.48(A)(4): 

The requirement that “no criminal proceeding * * * can be brought * * * 

against the individual for any act associated with that conviction” is of critical 

importance. This statutory language is intended to filter out those claimants who 

have had their convictions reversed, but were committing a different offense at the 

time that they were engaging in the activity for which they were initially charged. 
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When the General Assembly enacted Ohio’s wrongful imprisonment legislation, it 

“intended that the court of common pleas actively separate those who were 

wrongfully imprisoned from those who have merely avoided criminal liability.” 

Id. at 95, quoting Walden v. State, 47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989). 

{¶ 15} It is undisputed that James was charged with, and convicted of, Having Weapons 

While Under Disability for a criminal act that occurred at the same time as the criminal acts 

forming the basis of the remaining three counts of the indictment, which resulted in the 

subsequent thirteen-year prison sentence for which James claims he was wrongfully imprisoned. 

At first glance, the Supreme Court’s holding in Gover appears to require that James’s conviction 

for Having Weapons While Under Disability precludes him, as a matter of law, from satisfying 

R.C. 2743.48(A)(4). However, this result would ignore the particular facts addressed by the 

Gover court and the 2003 Amendment to R.C. 2743.48(A). 

{¶ 16} At the time of Gover, R.C. 2743.48(A)(5) stated: 

Subsequent to his sentencing and during or subsequent to imprisonment, it 

was determined by a court of common pleas that the offense of which he was 

found guilty, including all lesser-included offense, either was not committed by 

him or was not committed by any person. 

{¶ 17} In December 2002, the 124th General Assembly enacted Sub.S.B. No. 149, 

which added language allowing a claimant to satisfy R.C. 2743.48(A)(5) by demonstrating an 

error in procedure that resulted in the individual’s release. By adding this language, the General 

Assembly provided an alternative to the condition that a claimant either had not committed the 

offense or that the offense had not been committed by any other person. In other words, a 
8

claimant no longer had to prove actual innocence in order to satisfy (A)(5). This amendment to 

(A)(5) became effective April 9, 2003. 

{¶ 18} In Hill v. State, 10th Dist. Franklin No. 12AP-635, 2013-Ohio-1968, the Court of 

Appeals for the Tenth District recently addressed the effect of the 2003 amendment in relation to 

the Gover court’s interpretation of R.C. 2743.48(A)(4). The Tenth District explained, at ¶ 

26-30: 

In Gover, the Supreme Court specifically interpreted subsection (4) of R.C. 

2743.48, as in effect in 1993. Gover, the WI claimant, had been charged and 

convicted of the crime of safecracking based on his conduct on September 13, 

1988. On that date, Gover was arrested after a police officer observed him 

emptying his pockets of coins, costume jewelry, and other items that had earlier 

been part of a restaurant display that apparently resembled, but was not, a safe. See 

State v. Gover, 67 Ohio App.3d 384 (1st. Dist.1990). The restaurant's general 

manager had previously observed Gover in the restaurant moving in a crouched 

position and exiting the restaurant with bulging pockets. On appeal, the court of 

appeals reversed the conviction as the state could not prove the existence of an 

actual safe or vault. Accordingly, the state had not proven all elements of the 

crime of safecracking of which Gover had been convicted, and the court of 

appeals reversed that conviction. 

Gover subsequently filed an action seeking adjudication as a wrongfully 

imprisoned individual. The Supreme Court acknowledged that Gover had not 

committed the offense of safecracking with respect to his conduct on September 
9

13, 1988, but opined that Gover “was nevertheless committing other criminal 

offenses,” Gover v. State at 96, and suggested that the prosecutor might have 

charged him with burglary, rather than safecracking. The Supreme Court 

remanded the wrongful-imprisonment case to the civil trial court for it to 

determine whether Gover had committed offenses other than safecracking on the 

date of the alleged criminal conduct.[] In an opinion written by Justice Pfeifer, 

the Supreme Court explained that subsection (4) is “intended to filter out those 

claimants [for compensation] who have had their convictions reversed, but were 

committing a different offense at the time that they were engaging in the activity 

for which they were initially charged.” Id. at 95. Similarly, consistent with the 

statute as then in effect, the court concluded that “[w]hen the General Assembly 

enacted Ohio's wrongful imprisonment legislation, it ‘intended that the court of 

common pleas actively separate those who were wrongfully imprisoned from 

those who have merely avoided criminal liability.’ ” (Emphasis added.) Id., citing 

Walden at 47 Ohio St.3d 52. These observations were made in 1993, prior to the 

2003 amendment to R.C. 2743.48(A)(5) and at a time when a WI claimant was 

required to prove actual innocence. 

In the case before us, the state argues that Hill, by pleading no contest, 

admitted that he was in possession of crack cocaine and that he therefore “merely 

avoided criminal liability” based on application of the exclusionary rule. The state 

relies on the Supreme Court's statements in Gover and Hill's plea of no contest 

after the trial court denied his motion to suppress. It argues that Hill may not be 
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deemed to be a wrongfully imprisoned individual because his lack of actual 

innocence on December 19, 2009 precludes a finding that Hill satisfied subsection 

(A)(4) of R.C. 2743.48. In making this argument, the state seeks to graft the 

innocence component of subsection (5) of R.C. 2743.48(A) into subsection (4) 

based on Gover's description of the overarching purpose of the wrongfulimprisonment statute as in effect in 1993. But, as discussed earlier in this 

decision, and as recognized by the Supreme Court of Ohio in Doss, the General 

Assembly in enacting Sub.S.B.No. 149 in 2002 effected a substantive change to 

the statutory wrongful-imprisonment compensation scheme. It “expanded the 

criteria by which a claimant could establish that he or she is a wrongfully 

imprisoned individual.” Griffith [v. Cleveland], [128 Ohio St.3d 35,] 

2010-Ohio-4905, ¶ 21. After that statutory change, a released prisoner may 

establish his status as a wrongfully imprisoned individual without proving his 

innocence if he can instead establish that he was released as the result of an error 

in procedure. See Griffith at ¶ 29 (describing the addition of the “error in 

procedure” provision of R.C. 2743.48(A)(5) as establishing an “alternative” to the 

determination whether the claimant “committed the offense”). 

In determining whether Hill established the R.C. 2743.48(A)(4) criterion, 

we must apply the current text of that provision, rather than decide the case based 

on observations made in Gover concerning the pre-2003 version of the statute. 

That is, we must determine whether Hill proved by a preponderance of the 

evidence[] that “no criminal proceeding is pending, can be brought, or will be 
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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” and not whether Hill's release from prison 

represented merely the avoidance of criminal liability. In short, comments in 

Gover based on the text of a prior version of R.C. 2743.48(A) simply cannot 

prevail over contradictory text in the current version of the statute. 

{¶ 19} We agree with the Tenth District’s analysis in Hill. Consequently, James’s 

conviction for Having Weapons While Under Disability does not preclude James from satisfying 

R.C. 2743.48(A)(4) if James can establish that his convictions on the other charges have been 

vacated and the prosecuting attorney cannot pursue further criminal proceedings on those 

charges. R.C. 2743.48(A)(4). It is undisputed that James’s convictions were vacated as a result 

of federal habeas corpus proceedings. Furthermore, the State cannot re-try James on those 

underlying charges because the trial court dismissed those three charges with prejudice in 2009. 

Therefore, James has established, through a preponderance of the evidence, that he has satisfied 

the criteria in R.C. 2743.48(A)(4). 

{¶ 20} Next, James must satisfy R.C. 2743.48(A)(5). Pursuant to this section, James 

must establish that “[s]ubsequent to sentencing and during or subsequent to imprisonment, an 

error in procedure resulted in [his] release * * * .” The “error in procedure” occurred when the 

trial court proceeded to trial without obtaining from James a knowing and intelligent waiver of 

his right to counsel at trial. This error ultimately led to the vacation of James’s convictions. 

We conclude that this satisfies R.C. 2743.48(A)(5). 

{¶ 21} The State contends that only “structural error” can qualify as “procedural error” 
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pursuant to R.C. 2743.48(A)(5). We do not agree. The plain language of R.C. 2743.48(A)(5) 

does not limit the term “procedural error” to structural error. If the General Assembly had 

intended that only structural errors could satisfy R.C. 2743.48(A)(5), then the General Assembly 

presumably would have used the term structural error, rather than procedural error. 

Furthermore, a failure to obtain a knowing and intelligent waiver of a defendant’s right to counsel 

at trial arguably satisfies even the more strict structural error standard, since the result is that the 

defendant is totally deprived of counsel at trial. See State v. Martin, 103 Ohio St.3d 385, 

2004-Ohio-5471, 816 N.E.2d 227, ¶ 54-56 (Moyer, C.J., concurring in judgment only). 

{¶ 22} The State also contends that the error in procedure that occurred must have 

occurred after sentencing. According to the State, the error of procedure in this case occurred 

during trial, and therefore cannot satisfy R.C. 2743.48(A)(5). We do not agree. As the Hill

court explained, at fn. 4: 

[W]e note that the initial phrase of R.C. 2743.48(A)(5) provides that 

“[s]ubsequent to sentencing and during or subsequent to imprisonment” (emphasis 

added), an error in procedure resulted in the prisoner's release or a trial court 

determined that the claimant was actually innocent. The text emphasized above 

existed in the statute prior to the 2003 amendment, and we do not believe that this 

modifying language relates to the timing of the commission of errors of procedure. 

We are unaware of any procedural error that could conceivably result in a 

convict's release from prison if the error occurred after conviction and sentencing. 

To read the phrase as including only post-sentencing procedural errors would 

render the amendment meaningless. * * * Rather, we believe that the “subsequent 
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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. We further note that the 

Legislative Service Commission in its Final Bill Analysis of Sub.S.B. No. 149, 

described the bill as including a new provision that “an error in procedure resulted 

in the individual's release as an alternative to the condition that subsequent to 

sentencing and during or subsequent to imprisonment it was determined by the 

court of common pleas that the offense of which the individual was found guilty 

was not committed by the individual or by any other person.” 

{¶ 23} We agree with the Tenth District’s reasoning in Hill. The only logical 

interpretation of the phrase “[s]ubsequent to sentencing and during or subsequent to 

imprisonment” is that this phrase describes the timing of the individual’s release, or the court’s 

determination that no offense was committed. R.C. 2743.48(A)(5). 

{¶ 24} James’s sole assignment of error is sustained. 

IV. Conclusion

{¶ 25} James’s sole assignment of error having been sustained, the judgment of the trial 

court is Reversed, and this cause is Remanded for the trial court to enter summary judgment in 

James’s favor. 

. . . . . . . . . . . . . 

FROELICH, P.J., and DONOVAN, JJ., concur. 
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

Copies mailed to: 

Michael DeWine 

Peter L. Jamison 

D. Andrew Wilson 

Andrew P. Pickering 

Derek A. Farmer 

Hon. Douglas M. Rastatter