Houston v. State

[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:

On the third day of trial, the trial court granted the State’s request to
1

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

In a subsequent affidavit by Pope, attached to Houston’s 2003 motion for a
2

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