Lemons v. State

[Cite as Lemons v. State, 2020-Ohio-5619.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

ANTHONY LEMONS, :

Plaintiff-Appellee, :
No. 109188
v. :

STATE OF OHIO, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 10, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas
Case No. CV-15-839878

Appearances:

David B. Malik and Sara Gedeon; Kevin M. Spellacy;
Gerhardstein & Branch, Co., L.P.A., Alphonse A.
Gerhardstein, and Jennifer L. Branch, for appellee.

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brian R. Gutkoski and Kenneth M. Rock,
Assistant Prosecuting Attorneys, for appellant.

MARY J. BOYLE, P.J.:

Defendant-appellant, state of Ohio, appeals the trial court’s judgment

granting summary judgment to plaintiff-appellee, Anthony Lemons, declaring
Lemons to be a wrongfully imprisoned individual under R.C. 2743.48(A). The state

raises one assignment of error for our review:

The trial court erred when it granted appellee’s motion for summary
judgment and denied the State’s cross motion for summary judgment
on October 10, 2019.

Finding no merit to the state’s assigned error, we affirm.

I. Procedural History and Factual Background

In October 1995, a jury convicted Lemons of murder for the death of

Eric Sims and attempted murder of Jude Adamcik. The trial court sentenced him to

15 years to life in prison. This court affirmed his convictions. See State v. Lemons,

8th Dist. Cuyahoga No. 71644, 1998 Ohio App. LEXIS 125 (Jan. 15, 1998) (for factual

background).

In December 2013, the criminal trial judge — the same judge who

presided over Lemons’s jury trial — granted Lemons a new trial pursuant to newly

discovered exculpatory evidence. The judge found that “undisclosed evidence

compels the court to grant defendant a new trial” under Brady v. Maryland, 373

U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The judge explained that Lemons

received police reports from a public records request that had not been provided to

him in discovery before his 1995 trial. The court stated that the “evidence includes

critical information that throws doubt upon the credibility of eyewitness Adamcik

who testified for the state at trial.”

Specifically, the criminal trial judge found that Lemons was not told

that police showed Adamcik a photo array of six individuals who were known to go
by the nickname of “Tone” on January 8, 1995, which was nearly eight months after

Sims’s murder in April 1994, and that Adamcik did not identify Lemons that day.

Instead, on January 8, 1995, Adamcik told police that she would rather see the

individual in person. Police then showed Adamcik the same photo array the

following day, on January 9, and that is when she chose Lemons as Tone. The

criminal trial judge noted that Adamcik admitted at trial that she was shown photos

on more than one occasion, but not that she was unable to identify the shooter when

first looking at the photos.

The criminal trial judge then noted that the state never disclosed to

Lemons that several days after Adamcik identified him in an April 1995 physical

lineup, Adamcik stated to one of the detectives that she was positive she identified

the correct person because after she chose him in the lineup, she noticed his shoes,

and they were the same shoes that he had been wearing on the night of the murder.

The state also did not tell Lemons that the detectives seized Lemons’s shoes after

Adamcik’s claim, and subsequently discovered from a Nike representative that the

shoes Lemons had been wearing in the lineup could not have been the same shoes

that he was wearing at the time of the murder because the shoes had not been

manufactured until at least January 1995. The criminal trial judge further noted

that although Adamcik testified at trial that the shooter was wearing certain tennis

shoes, no testimony was elicited from her about her claim of recognizing those shoes

at the lineup over a year later.
 Adamcik passed away of natural causes in November 1996. Because

she was the state’s only evidence at Lemons’s trial that linked him to the crimes, the

state filed a notice of dismissal without prejudice on January 24, 2014. On that same

date, the state moved for leave to dismiss the indictment without prejudice. The

state informed the court that it wished to continue its investigation into Sims’s

murder to look for discoverable evidence that could lead to reprosecution. Lemons

also moved to dismiss his criminal case with prejudice.

On March 5, 2014, the criminal trial judge denied Lemons’s motion

to dismiss. Eight days later, the criminal trial judge denied the state’s motion to

dismiss and set the case for trial.

On August 29, 2014, the state renewed its motion to dismiss the case

without prejudice. The state informed the criminal trial judge that it would continue

to further investigate Sims’s murder. The judge denied the state’s motion to renew

its motion to dismiss and set another date for trial.

On December 2, 2014, the state again sought permission to dismiss

the indictment without prejudice, which would allow for further criminal

investigation. Later that same month, the criminal trial judge denied the state’s

motion to dismiss and ordered the state to proceed immediately to trial. When the

state was unable to proceed, the trial court entered a judgment of acquittal due to

insufficient evidence pursuant to Crim.R. 29.

On February 3, 2015, Lemons filed a civil complaint against the state

seeking a declaration that he was a wrongfully imprisoned individual as defined by
R.C. 2743.48(A), Ohio’s wrongful imprisonment statute. While we do not normally

place law in the procedural history, it will be helpful to do so in this case to

thoroughly understand the procedural history.

When Lemons filed his civil complaint, former R.C. 2743.48(A) stated

that a “wrongfully imprisoned individual” was an individual who establishes 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, 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, 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.

In his original complaint, Lemons asserted that he was a wrongfully

imprisoned individual due to an “error in procedure” that occurred “subsequent to

sentencing and during or subsequent to imprisonment” that resulted in his release
under the first prong of R.C. 2743.48(A)(5), as well as due to his actual innocence

under the second prong of R.C. 2743.48(A)(5).

In March 2015, Lemons filed an amended complaint. In it, he no

longer alleged that he was a wrongfully imprisoned individual due to an “error in

procedure” that occurred “subsequent to sentencing and during or subsequent to

imprisonment” that resulted in his release from prison. Five days before trial,

however, in November 2015, Lemons moved to amend his complaint again, this

time to reinstate his allegations that he was released from prison due to procedural

errors that occurred “subsequent to sentencing and during or subsequent to

imprisonment.” He did so because the Ohio Supreme Court had just released a case,

Johnston v. State, 144 Ohio St.3d 311, 2015-Ohio-4437, 42 N.E.3d 746, that he

claimed left open the question as to whether an ongoing Brady violation — one that

began before trial and continued after conviction and prison — could amount to an

“error in procedure” that “occurs subsequent to sentencing or during and

subsequent to imprisonment” under R.C. 2743.48(A)(5). The trial court denied his

motion, and the matter proceeded to a bench trial on the issue of whether Lemons

was actually innocent under R.C. 2743.48(A)(5).

After a three-day trial, the trial court determined that Lemons did not

establish by a preponderance of the evidence that he was actually innocent of

murdering Sims and attempting to murder Adamcik. Lemons appealed. See

Lemons v. State, 2017-Ohio-8584, 100 N.E.3d 871 (8th Dist.), appeal not accepted,

152 Ohio St.3d 1462, 2018-Ohio-1795, 97 N.E.3d 500. Lemons raised two issues on
appeal: (1) the trial court’s decision was against the weight of the evidence, and (2)

the trial court abused its discretion when it denied him leave to amend his

complaint. See id. at ¶ 1.

This court disagreed with Lemons’s first argument that the trial

court’s decision was against the manifest weight of the evidence. Id. at ¶ 122. In

doing so, we recognized that the burden of establishing actual innocence by a

preponderance of the evidence was “extremely difficult for a claimant to overcome.”

Id. at ¶ 113. But we agreed with Lemons’s second argument that the trial court

should have granted him leave to amend his complaint, reasoning that there was no

evidence of bad faith or undue delay and the state was not prejudiced by Lemons’s

motion because it had thoroughly argued, to the trial court and this court, the

question of law that was at issue, namely, whether the continued withholding of

exculpatory evidence (an “ongoing Brady violation”) amounted to an “error in

procedure” that occurs “subsequent to sentencing or during and subsequent to

imprisonment.” Id. at ¶ 146. We noted that R.C. 2743.48(A)(1)-(3) were not in

dispute and that Lemons met the requirements of subsection (A)(4) when the

criminal trial court vacated and dismissed his convictions. Id. at ¶ 149. Thus, the

only issue remaining as to whether Lemons met the requirements of

R.C. 2743.48(A)(5), was whether the “ongoing Brady violation” amounted to an

“error in procedure” that occurs “subsequent to sentencing or during and

subsequent to imprisonment.” Id. at ¶ 146. However, we declined to address that
question on its merits because the trial court had not yet done so. Id. at ¶ 147. We

remanded to the trial court to decide the issue. Id.

After this court’s remand and before the trial court decided the issue,

the General Assembly amended R.C. 2743.48, effective March 22, 2019. See 2018

Am.Sub.H.B. No. 411 (“H.B. 411”). R.C. 2743.48(A)(5) now states:

Subsequent to sentencing or during or subsequent to imprisonment, an
error in procedure was discovered that occurred prior to, during, or
after sentencing, that involved a violation of the Brady Rule which
violated the individual’s rights to a fair trial under the Ohio
Constitution or the United States Constitution, and that 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 either
that the offense of which the individual was found guilty, including all
lesser-included offenses, was not committed by the individual or that
no offense was committed by any person. In addition to any other
application of the provisions of this division regarding an error in
procedure that occurred prior to, during, or after sentencing, as those
provisions exist on and after the effective date of this amendment, if an
individual had a claim dismissed, has a claim pending, or did not file a
claim because the state of the law in effect prior to the effective date of
this amendment barred the claim or made the claim appear to be futile,
those provisions apply with respect to the individual and the claim and,
on or after that effective date, the individual may file a claim and obtain
the benefit of those provisions.

The parties agreed upon remand that the trial court should decide the

issue based on their competing summary judgment motions and that its “sole

decision upon remand [was] whether [Lemons] satisfies R.C. 2742.48(A)(5).”

Specifically, the trial court stated that the only issue it had to decide upon remand

from this court was “whether an ongoing Brady violation that continues after a

claimant was convicted, sentenced, and sent to prison * * * amounts to an ‘error in
procedure’ that occurs ‘subsequent to sentencing or during and subsequent to

imprisonment.’”

The trial court explained that the legislature had amended the

relevant subsection, R.C. 2743.48(A)(5), and that it “clearly retroactively applied” to

Lemons. Although the state now contends that it conducted additional discovery on

remand to determine “whether there was a Brady violation committed by the [s]tate

in the original criminal proceedings,” the trial court determined that “[t]wo separate

courts” have already “found that [Lemons] was subject to a Brady violation” in the

original criminal proceedings. The trial court explained that the criminal trial judge

who vacated Lemons’s convictions in 2013 had found that the state committed a

Brady violation when it withheld material, exculpatory evidence. The trial court

further noted that this court in Lemons, 2017-Ohio-8584, 100 N.E.3d 871, agreed

with the criminal trial judge that the state committed a Brady violation. See id. at

¶ 109 – 112. Although the trial court did not agree that a Brady violation occurred,

it found that the issue of whether a Brady violation occurred could not be relitigated.

Having determined that a Brady violation occurred, the trial court

explained that the only issue left for it to determine was whether “the timing of said

violation * * * led to [Lemons’s] release from prison.” The trial court found that it

did. It explained:

The Brady violation occurred “prior to, during, or after sentencing” as
the exculpatory evidence withheld by the [s]tate failed to be provided
not only during [Lemons’s] criminal trial, but during his
[postconviction] proceedings. The criminal trial [j]udge discovered
this error subsequent to sentencing and during [Lemons’s]
 imprisonment. In addition, the Brady violation plainly led to
[Lemons’s] release, as this [c]ourt has previously stated,
“[u]ndoubtedly, the Brady violations regarding suppression of the
Nike document largely resulted in [Lemons’s] conviction being
overturned and a new trial ordered.”

The trial court concluded that Lemons met the requirements of

R.C. 2743.48(A)(5) and, therefore, was a wrongfully imprisoned individual. It is

from this judgment that the state now appeals.

II. Standard of Review

We review an appeal from summary judgment under a de novo

standard. Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000).

Accordingly, we afford no deference to the trial court’s decision and independently

review the record to determine whether summary judgment is appropriate. N.E.

Ohio Apt. Assn. v. Cuyahoga Cty. Bd. of Commrs., 121 Ohio App.3d 188, 192, 699

N.E.2d 534 (8th Dist.1997).

Civ.R. 56(C) provides that before summary judgment may be granted,

a court must determine that (1) there are no genuine issues of material fact

remaining to be litigated, (2) the moving party is entitled to judgment as a matter of

law, and (3) it appears from the evidence that reasonable minds can come to but one

conclusion, and viewing the evidence most strongly in favor of the nonmoving party,

that conclusion is adverse to the nonmoving party. State ex rel. Duganitz v. Ohio

Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d 654 (1996).
III. Law and Analysis

In its sole assignment of error, the state raises four issues for our

review: (1) whether the amendments in H.B. 411 retroactively apply to Lemons, (2)

whether the trial court improperly imported the criminal trial judge’s conclusions

that a Brady violation had occurred, (3) whether the information concerning

Lemons’s Nike shoes was orally disclosed to defense counsel, and (4) whether a

Brady violation occurred and if so, whether it is material.

A. Retroactivity

The state first argues that the trial court erred when it found that the

amendments set forth in H.B. 411 apply to Lemons’s claim because the amendments

are not retroactive.

R.C. 2743.48(A)(5) as enacted by H.B. 411 now states in relevant part:

In addition to any other application of the provisions of this division
regarding an error in procedure that occurred prior to, during, or after
sentencing, as those provisions exist on and after the effective date of
this amendment, if an individual had a claim dismissed, has a claim
pending, or did not file a claim because the state of the law in effect
prior to the effective date of this amendment barred the claim or made
the claim appear to be futile, those provisions apply with respect to the
individual and the claim and, on or after that effective date, the
individual may file a claim and obtain the benefit of those provisions.

As stated in the amicus brief filed by the Ohio Attorney General in this

appeal, “[t]his language clearly states the legislature’s intent for individuals like

Lemons, who previously could not file claims based on a Brady violation, to gain the

benefit of this amendment.” We agree that this language plainly states that the

amendment is retroactive.
 The state further argues that the retroactive application of H.B. 411’s

amendments to Lemons’s case is unconstitutional “as applied” to Lemons. But the

state does not set forth any argument as to how H.B. 411 is unconstitutional as

applied to Lemons. We therefore decline to address this argument.

The state further contends that because H.B. 411’s amendments are

substantive, its retroactive application violates due process. Article II, Section 28, of

the Ohio Constitution prohibits the General Assembly from passing retroactive laws.

A law violates the Retroactive Clause if (1) the legislature intended it to be

retroactive, and (2) the law affects a substantive right. Van Fossen v. Babcock &

Wilcox Co., 36 Ohio St.3d 100, 522 N.E.2d 489 (1988), paragraphs two and three of

the syllabus.

In Johnston, 144 Ohio St.3d 311, 2015-Ohio-4437, 42 N.E.3d 746, the

Ohio Supreme Court addressed the issue of whether a 2003 amendment to

R.C. 2743.48(A)(5) that expanded the definition of a wrongfully imprisoned

individual to allow convicted persons who could not establish their actual innocence,

but who could establish that an error in procedure resulted in their release, violated

the Retroactivity Clause. The Ohio Supreme Court found that the legislature

explicitly stated that it intended the amendment to apply retroactively and that the

amendment was “substantive because it imposes new liability on the state for past

imprisonments.” Id. at ¶ 22. But the Supreme Court explained that because the

amendment to R.C. 2743.48(A)(5) impaired only the rights of the state and not those

of individuals seeking recovery for wrongful imprisonment, the amendment did not
violate the Retroactivity Clause. Id. at ¶ 22, citing State ex rel. Sweeney v. Donahue,

12 Ohio St.2d 84, 87, 232 N.E.2d 398 (1967).

The analogy in Johnston to the present case is nearly identical. The

General Assembly explicitly intended for the amendments in R.C. 2743.48(A)(5) to

be retroactive, and they were substantive amendments because they imposed new

liability on the state for wrongfully convicted individuals who met the new criteria.

But the amendments do not violate the Retroactivity Clause because only the state’s

rights are impaired, not an individual’s rights.

The state cites to Roe v. Planned Parenthood S.W. Ohio Region, 122

Ohio St.3d 399, 2009-Ohio-2973, 912 N.E.2d 61, in support of its argument that the

amendments to R.C. 2743.48(A)(5) violate the Retroactivity Clause. In Roe, the

Ohio Supreme Court found that the application of an amended statute to impose

punitive damages against Planned Parenthood for its breach of duty to obtain

parents’ consent before performing an abortion on their minor daughter violated the

Retroactivity Clause. Id. at ¶ 37. However, Roe is not applicable to the instant case

because the amendment impaired the rights of an organization, Planned

Parenthood, and not the state as it does in this case.

Accordingly, we find no merit to the state’s arguments relating to

retroactivity.
 B. Relitigation

The state further argues that the trial court “improperly imported” the

criminal trial judge’s conclusions that a Brady violation had occurred rather than

relitigate the matter. Within this single issue, the state raises four sub-issues.

The state first contends that collateral estoppel does not apply in this

case. The doctrine of issue preclusion is one of two related concepts, along with

claim preclusion, within the legal doctrine of res judicata. Grava v. Parkman Twp.,

73 Ohio St.3d 379, 381, 653 N.E.2d 226 (1995). Claim preclusion holds that “[a]

valid, final judgment [] on the merits bars all subsequent actions based upon any

claim arising out of the transaction or occurrence that was the subject matter of the

previous action.” Id. at syllabus. Issue preclusion, also known as collateral estoppel,

provides that “a fact or a point that was actually and directly at issue in a previous

action, and was passed upon and determined by a court of competent jurisdiction,

may not be drawn into question in a subsequent action between the same parties or

their privies, whether the cause of action in the two actions be identical or

different[.]” Fort Frye Teachers Assn. v. State Emp. Relations Bd., 81 Ohio St.3d

392, 395, 692 N.E.2d 140 (1998). While claim preclusion precludes relitigation of

the same cause of action, issue preclusion precludes relitigation of an issue that has

been actually and necessarily litigated and determined in a prior action. Id., citing

Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108, 112, 254 N.E.2d 10 (1969). Here, we

are concerned solely with issue preclusion or collateral estoppel.
 In Thompson v. Wing, 70 Ohio St.3d 176, 637 N.E.2d 917 (1994), the

Ohio Supreme Court set forth three requirements for application of collateral

estoppel or issue preclusion:

Collateral estoppel applies when the fact or issue (1) was actually and
directly litigated in the prior action, (2) was passed upon and
determined by a court of competent jurisdiction, and (3) when the
party against whom collateral estoppel is asserted was a party in privity
with a party to the prior action.

Id. at 183, citing Whitehead at paragraph two of the syllabus. “The essential test in

determining whether the doctrine of collateral estoppel is to be applied is whether

the party against whom the prior judgment is being asserted had full representation

and a ‘full and fair opportunity to litigate that issue in the first action.’” Cashelmara

Villas Ltd. Partnership v. DiBenedetto, 87 Ohio App.3d 809, 813, 623 N.E.2d 213

(8th Dist.1993), quoting Hicks v. De La Cruz, 52 Ohio St.2d 71, 74, 369 N.E.2d 776

(1977).

The state maintains that “[m]any courts have recognized the

inapplicability of any res judicata/collateral estoppel concepts in the context of

findings made in criminal proceedings later applying to a civil case.” The state cites

to one case for this proposition, Takacs v. Palermo, 11th Dist. Trumbull No. 4086,

1990 Ohio App. LEXIS 2711, 9 (June 29, 1990), in which the Eleventh District stated,

“collateral estoppel would not be given effect in a civil action to any fact determined

in the criminal proceeding.” The state asserts that in saying this, the Eleventh

District “[c]it[ed] two wrongful imprisonment cases.” But notably, the state fails to

explain, mention, or even cite to, these “two wrongful imprisonment cases.”
 These two wrongful imprisonment cases were Ellis v. State, 10th Dist.

Franklin No. 87AP-1099, 1988 Ohio App. LEXIS 2538 (June 16, 1988), and Walden

v. State, 10th Dist. Franklin No. 87AP-1026, 1988 Ohio App. LEXIS 2456 (June 16,

1988).1 Both Ellis and Walden had been convicted and sent to prison. They were

both later granted a new trial and found not guilty due to the trier of fact finding that

they had established that they acted in self-defense. They later commenced actions

in the Franklin County Court of Common Pleas seeking a declaration that they were

wrongfully imprisoned. The trial courts agreed, finding that they were bound by the

prior judicial determination that the claimants had been found not guilty in their

criminal trials. The state appealed both cases.

The Tenth District in Ellis and Walden issued nearly identical

opinions on the relevant issue on the same day. At the time Ellis and Walden filed

their actions, former R.C. 2743.48(A)(4) required that they prove by a

preponderance of the evidence that they either did not commit the offense for which

they were found guilty (i.e., actual innocence) or that no one committed the offense.

The Tenth District found that an acquittal in their criminal trials did not establish

that they were wrongfully imprisoned within the meaning of R.C. 2743.48. Ellis at

9; Walden at 8. The Tenth District explained that a finding of not guilty simply

meant that the state did not prove beyond a reasonable doubt the guilt of the

defendants. See Ellis at 8; Walden at 7. But Ellis and Walden, despite being found

1Ellisand Walden were affirmed on appeal by the Ohio Supreme Court. See
Walden v. State, 47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989).
not guilty due to self-defense, still had to establish by a preponderance of the

evidence that they were actually innocent of the offenses for which they were

wrongfully convicted. See Ellis at 7-9; Walden at 6-8.

Ellis and Walden are distinguishable from the present case. At the

time Ellis and Walden were decided, claimants could only recover from the state as

a wrongfully imprisoned individual if they proved that they were actually innocent

of the crimes for which they had been acquitted. The legislature intended that only

truly innocent individuals be allowed to recover damages. In 2003, however,

R.C. 2743.48 was amended to allow persons who could not establish their actual

innocence, but who could establish that an error in procedure resulted in their

release, to file a complaint against the state of Ohio seeking a declaration that they

had been wrongfully imprisoned. See Am.Sub.S.B. No. 149, effective April 9, 2003.

“Before this amendment, only individuals who could establish their actual

innocence could file such a complaint. Thus, the amendment expanded the criteria

by which a claimant could establish that he or she was a wrongfully imprisoned

individual.” See Lemons, 2017-Ohio-8584, 100 N.E.3d 871, at ¶ 131.

Now, of course, with H.B. 411, the legislature has again amended the

statute to explicitly include claimants who “[s]ubsequent to sentencing or during or

subsequent to imprisonment, an error in procedure was discovered that occurred

prior to, during, or after sentencing, that involved a violation of the Brady Rule

which violated the individual’s rights to a fair trial under the Ohio Constitution or

the United States Constitution, and that resulted in the individual’s release[.]”
R.C. 2743.48(A)(5). The newly amended statute requires only that a Brady

violation that occurred prior to, during, or after sentencing, be discovered

subsequent to or during imprisonment. That is exactly what occurred in this case.

“[A]n absolute due process prerequisite to the application of collateral

estoppel is that the party asserting the preclusion must prove that the identical issue

was actually litigated, directly determined, and essential to the judgment in the prior

action.” Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 201, 443

N.E.2d 978 (1983). The Supreme Court further explained:

Collaterally estopping a party from relitigating an issue previously
decided against it violates due process where it could not be foreseen
that the issue would subsequently be utilized collaterally, and where the
party had little knowledge or incentive to litigate fully and vigorously in
the first action due to the procedural and/or factual circumstances
presented therein.

Id.

In 2013, the criminal trial judge held a hearing on the issue of whether

a Brady violation had occurred where both parties were present and had the

opportunity to prove and defend their respective positions. After the hearing, the

criminal trial judge found that a Brady violation had occurred because the state had

withheld exculpatory evidence from Lemons. The judge further found that the

Brady violations were material to the outcome of the proceedings and granted

Lemons a new trial. Accordingly, we find that the issue of whether a Brady violation

occurred, the identical issue, was actually litigated by the same parties, was directly

determined, and was essential to the judgment in the prior action. We further note
that due process does not bar collateral estoppel in this case because it certainly

could be foreseen that the issue would subsequently be utilized collaterally.

Next, the state argues that in the very first case written by the Ohio

Supreme Court interpreting R.C. 2743.48, it found, “the qualitative differences

between civil and criminal proceedings, * * * militate against giving criminal

judgments preclusive effect in civil or quasi-civil litigation.” Walden, 47 Ohio St.3d

at 52, 547 N.E.2d 962. We previously addressed this point when discussing the

Tenth District’s decisions in Ellis, 10th Dist. Franklin No. 87AP-1099, 1988 Ohio

App. LEXIS 2538, and Walden, 10th Dist. Franklin No. 87AP-1026, 1988 Ohio App.

LEXIS 2456.

It is worth noting, however, that the Ohio Supreme Court’s decision

in Walden, 47 Ohio St.3d at 51, 547 N.E.2d 962, only reinforces our analysis and

conclusion regarding this issue. The Supreme Court explained that “[a]s a general

rule, a verdict or judgment of acquittal in a criminal trial is a determination that the

state has not met its burden of proof on the essential elements of the crime. It is not

necessarily a finding that the accused is innocent.” Id. at 51. The court stated, “This

is why the General Assembly intended in R.C. 2305.02 and 2743.48(A)(4) that a

claimant must first affirmatively prove her innocence by a preponderance of the

evidence.” Id. at 52.

As we previously stated, this case is distinguishable because Lemons

is not trying to prove that he was actually innocent of the crimes. Rather, he is
relying on an “error in procedure” that the General Assembly has explicitly stated

includes a Brady violation.

The state further argues that the plain language of R.C. 2743.48(B)(1)

rejects any “collateral estoppel” applicability. This provision states:

(1) A person may file a civil action to be declared a wrongfully
imprisoned individual in the court of common pleas in the county
where the underlying criminal action was initiated. That civil action
shall be separate from the underlying finding of guilt. Upon the filing
of a civil action to be determined a wrongfully imprisoned individual,
the attorney general shall be served with a copy of the complaint and
shall be heard.

The state claims that the language in R.C. 2743.48(B)(1), “That civil

action shall be separate from the underlying finding of guilt[,]” means that “Lemons

starts on a blank slate in his civil case with respect to his purported Brady violations

he claims happened in his murder case.” We disagree with the state’s interpretation

of R.C. 2743.48(B)(1) because there was no “underlying finding of guilt” in this case

due to the fact that Lemons is requesting to be declared a wrongfully imprisoned

individual due to an “error in procedure.” Thus, R.C. 2743.48(B)(1) does not require

Lemons to relitigate the matter of whether a Brady violation occurred. He already

did that. And this court agreed with the criminal trial judge’s conclusion. See

Lemons, 2017-Ohio-8584, 100 N.E.3d 871, at ¶ 109 – 112. Moreover, the legislature

clearly intended for a claimant to meet the requirements of a wrongfully imprisoned

individual when a Brady violation occurs.

Finally, the state asserts that R.C. 2743.48(B)(1) must be read in pari

materia with R.C. 2743.48(A)(5). But this is only relevant where a statute is
ambiguous, and we find no ambiguity here. See State ex rel. Celebrezze v. Allen Cty.

Bd. of Commrs., 32 Ohio St.3d 24, 27-28, 512 N.E.2d 332 (1987), citing Hough v.

Dayton Mfg. Co., 66 Ohio St. 427, 434, 64 N.E. 521 (1902) (in pari materia only

applies “where some doubt or ambiguity exists in the wording of a statute”).

We therefore find no merit to the four sub-issues raised by the state

regarding whether the trial court was required to relitigate the Brady violation.

Thus, we find no error in the trial court’s decision to “import” the criminal trial

judge’s finding that a Brady violation occurred into its analysis.

C. Brady Violation

The state’s remaining issues are whether the information concerning

Lemons’s Nike shoes was orally disclosed to defense counsel and whether a material

Brady violation occurred. We do not need to reach these issues, however, because

we agree with the trial court that these issues have already been litigated and

determined. The criminal trial judge found the Brady violation to be material, and

we agreed. See Lemons, 2017-Ohio-8584, 100 N.E.3d 871, at ¶ 109 – 112. And with

respect to whether the state orally informed defense counsel about the shoes,

defense counsel stated that he “knew about the shoes but that the May 29, 1995

report about Detective Kovacic contacting Nike Corporation was not disclosed to”

him. Thus, although he testified that he knew about the shoes, he did know about

the part that made it exculpatory. Accordingly, we find no merit to the state’s final

two issues.
 D. Dicta and Mandate

One final note relating to two issues raised only in the state’s reply

brief. The state contends that this court’s comments at ¶ 109 – 112 in Lemons were

merely dicta and thus, the trial court erred when it relied on those comments in

determining that a material Brady violation occurred. The state also contends in its

reply brief that the trial court misconstrued our mandate.

We agree that our comments in those paragraphs were dicta because

the issue of whether a Brady violation occurred was not before us on appeal in

Lemons. That does not change the fact that this issue was already litigated and

determined. Moreover, we remanded for the trial court to allow Lemons to amend

his complaint to include the “error in procedure” claim under R.C. 2743.48(A)(5).

This included a determination by the trial court of whether an ongoing Brady

violation amounted to an “error in procedure” that occurred “subsequent to

sentencing or during and subsequent to imprisonment.” Id. at ¶ 146. We did not

remand for the trial court to determine whether a Brady violation occurred. It just

so happened that before the trial court could answer the question of whether an

ongoing Brady violation amounted to an “error in procedure” that occurred

“subsequent to sentencing or during and subsequent to imprisonment,” the General

Assembly answered the question.

Accordingly, we overruled the state’s sole assignment of error.
 E. Response to Dissent

The dissent disagrees with the trial court and this opinion that an

“error in procedure” resulted in Lemons’s release from prison. According to the

dissent, the “error in procedure set into motion the events that culminated in

Lemons’s release,” but “it did not, in and of itself, ‘result in’ his release.” The dissent

does not believe that an individual who was released from prison due to a Brady

violation should be compensated when a new trial “could not go forward solely due

to the death of a main witness.” A plain reading of the wrongful imprison statute as

enacted by H.B. 411 belies the dissent’s assertions.

The relevant portion of former R.C. 2743.48(A)(5) stated:

Subsequent to sentencing and during or subsequent to imprisonment,
an error in procedure resulted in the individual’s release[.]

The relevant portion of R.C. 2743.48(A)(5) as enacted by H.B. 411

now states:

Subsequent to sentencing or during or subsequent to imprisonment, an
error in procedure was discovered that occurred prior to, during, or
after sentencing, that involved a violation of the Brady Rule which
violated the individual’s rights to a fair trial under the Ohio
Constitution or the United States Constitution, and that resulted in the
individual’s release[.]

We note that the legislature amended this provision in H.B. 411 to

overrule the Ohio Supreme Court’s holding in Mansaray v. State, 138 Ohio St.3d

277, 2014-Ohio-750, 6 N.E.3d 35. Jeff Hobday, Ohio Legislative Service

Commission, Bill Analysis, H.B. 411, (As Introduced), 4, Nov. 7, 2017. In Mansaray,

the Ohio Supreme Court had interpreted R.C. 2743.48(A)(5) to mean that the error
in procedure must have occurred after sentencing and during or subsequent to

imprisonment. Id. at ¶ 12. H.B. 411 clarified that “the error may have occurred prior

to, during, or after sentencing, but is discovered after sentencing or during or

subsequent to sentencing.” Hobday at 4. H.B. 411 also made clear that a Brady

violation is an “error in procedure” that qualifies an individual to be declared

wrongfully imprisoned. Id. at 3.

Lemons meets the new criteria under R.C. 2743.48(A)(5). The trial

court found that a Brady violation occurred when Lemons was still in prison for

murder. Thus, the error in procedure, the Brady violation, was discovered

subsequent to Lemons’s sentencing and during his imprisonment. Moreover, the

Brady violation occurred “prior to, during, or after [Lemons’s] sentencing.” Finally,

the trial court granted Lemons a new trial after determining that the state’s

withholding of exculpatory evidence was material and violated Lemons’s right to a

fair trial. This resulted in Lemons’s release from prison.

Nowhere in R.C. 2743.48(A) does it say that a claimant cannot be a

wrongfully imprisoned individual if, after a Brady violation is discovered and a new

trial granted, the state’s “main witness” dies. The statute explicitly requires only that

the error in procedure, the Brady violation, resulted in Lemon’s release from prison.

The dissent is attempting to add exceptions to the statute that are not in it.

Moreover, R.C. 2743.48(A)(4) was also amended in H.B. 411.

Previously, this provision stated that after an individual’s conviction was vacated,

dismissed, or reversed,
 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.

Thus, under the old law, an individual could not be declared wrongfully imprisoned

if there was a possibility that the prosecuting attorney could bring another action

against the claimant at some point in the future for any act associated with the

original conviction.

Now, however, H.B. 411 “remove[d] the criterion that the prosecutor

will not appeal or refile charges with respect to the individual’s conviction.” Hobday,

Ohio Legislative Service Commission, Bill Analysis, H.B. 411, (As Introduced), at 2-

3. R.C. 2743.48(A)(4) now states in relevant part that an individual can be declared

a wrongfully imprisoned individual when all of the following apply: (1) there is no

criminal proceeding “pending against the individual for any act associated with [the]

conviction” that was vacated, dismissed, or reversed, (2) “[t]he prosecuting attorney

in the case, within one year after the date of the vacating, dismissal, or reversal, has

not sought any further appeal of right or upon leave of court,” and (3) the

prosecuting attorney, “within one year after the date of the vacating, dismissal, or

reversal, has not brought a criminal proceeding against the individual for any act

associated with that conviction[.]” R.C. 2743.48(A)(4)(a), (b), and (c).

Therefore, under the new law, a person can be declared a wrongfully

imprisoned individual one year after his or her conviction was vacated, dismissed,
or reversed if the three criteria under R.C. 2743.48(A)(4) are established. The

dissent’s logic is therefore flawed because even if the state could reprosecute Lemons

for murder at some point in the future (which in this case, it cannot), he could still

be declared a wrongfully imprisoned individual now.2

We further note that the dissent’s focus on the fact that Lemons could

not be reprosecuted because the state’s main witness, Jude Adamcik, had died goes

to whether Lemons was “actually innocent” of the crime, not whether “an error in

procedure occurred.” But in Lemons, 2017-Ohio-8584, 100 N.E.3d 871, this court

thoroughly described the issues that occurred at Lemons’s original trial that

undermined Adamcik’s identification of Lemons as the one who killed Sims and

attempted to kill her — including the fact that the photo array shown to Adamcik on

two consecutive days “was suggestive and improper” because police chose the six

individuals based on a nickname rather than on similar physical characteristics. Id.

at ¶ 85-87. There were also several other issues and inconsistencies with Adamcik’s

testimony, including the fact that her description of the shooter’s height and eyes

did not match Lemons’s and that she changed her testimony with respect to where

the shooter lived (she originally stated that he lived at the Cliffview Apartments,

where the shooting took place, but she later changed her story to say that he was not

from the area). Again, however, for purposes of our analysis, it is not relevant

2 However, if a wrongfully imprisoned individual receives compensation from the
state and is later “convicted of or pleads guilty to an offense that is based on any act
associated with the conviction that was vacated, reversed, or dismissed,” the individual
must reimburse the state for the entire sum of money paid under the prior judgment for
wrongful imprisonment. See R.C. 2743.48(F)(5).
whether Lemons was actually innocent of the murder and other crimes as the dissent

implies.

Rather, the focus with respect to Lemons’s claim to be declared a

wrongfully imprisoned individual is whether a material Brady violation occurred.

As we explained in Lemons,

The United States Supreme Court has explained that “evidence is
‘material’ within the meaning of Brady when there is a reasonable
probability that, had the evidence been disclosed, the result of the
proceeding would have been different.” Cone v. Bell, 556 U.S. 449,
469-470, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009). A reasonable
probability does not mean that the defendant “would more likely than
not have received a different verdict with the evidence,” only that the
likelihood of a different result is great enough to “undermine * * *
confidence in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419,
434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

We noted in Lemons that if Lemons had known that Adamcik told

police that she was certain he was the shooter because she recognized his shoes in

the physical lineup, he “could have more thoroughly called Adamcik’s identification

of him into question.” Id. at ¶ 111. We further reasoned, “This, along with the fact

that Adamcik could not initially identify Lemons in the photo array, could have

altered the outcome of Lemons’s trial.” We further explained:

The United States Supreme Court has also observed that evidence
impeaching an eyewitness may not be “materia” according to Brady if
the state’s other evidence is strong enough to sustain confidence in the
verdict. See United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392,
49 L.Ed.2d 342 (1976). Here, Adamcik’s testimony was the only
evidence linking Lemons to the crimes. We simply cannot say that the
state’s other evidence in this case was so strong that it sustained
confidence in the verdict.

Id. at ¶ 112.
 Thus, the dissent’s focus the state’s inability to reprosecute Lemons

because Adamcik had passed away are not factors that courts should consider when

determining whether an individual is a wrongfully imprisoned individual based

upon an error in procedure, specifically a Brady violation, that occurred.

Indeed, the Tenth District case cited by the dissent, Hill v. State, 10th

Dist. Franklin No. 12AP-635, 2013-Ohio-1968, actually supports the conclusion that

when an individual is released from prison due to a Brady violation, that qualifies

as an error in procedure such that an individual meets the criteria of

R.C. 2743.48(A)(5). The Tenth District explained that the individual is not a

wrongfully imprisoned individual “simply by demonstrating that his conviction was

reversed and remanded.” Id. at ¶ 42. Rather, “the procedural errors made in [Hill’s]

case rest upon complete disregard for one’s personal rights guaranteed by the Bill of

Rights of the United States Constitution and the Ohio Constitution.” Id. at ¶ 44.

Similarly, in this case, the procedural error made in Lemons’s case also violated his

constitutional right to a fair trial under the Due Process Clause of the United States

and Ohio Constitution. Further, the Tenth District noted that it had previously

“recognized that a prosecutor’s violation of Brady, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215, in failing to disclose possibly exculpatory evidence to the defendant,

constituted an error in procedure for purposes of R.C. 2743.48(A)(5).” Id. at ¶ 48,

citing Larkins v. State, 10th Dist. Franklin No. 09AP-140, 2009-Ohio-3242.

Although Larkins was a court of claims case in the Tenth District,

the case originated in Cuyahoga County. The facts of Larkins are instructive
here. Larkins had been granted a new trial and released from prison due to a

Brady violation. Larkins at ¶ 4. The state appealed, and this court affirmed.

State v. Larkins, 8th Dist. Cuyahoga No. 82325, 2003-Ohio-5928. The common

pleas court subsequently granted Larkin’s motion to dismiss the charges against

him, which this court affirmed. State v. Larkins, 8th Dist. Cuyahoga No. 85877,

2006-Ohio-90. The trial court later declared that Larkins was a wrongfully

imprisoned individual due to the state agreeing that he had been “released

as the result of an error in procedure.” Larkins, 10th Dist. Franklin No. 09AP-140,

2009-Ohio-3242, ¶ 6. In 2011, the state of Ohio paid Larkins a sum of $510,000

for wrongfully serving over 20 years in prison.

See https://www.cleveland.com/metro/2017/01/ohios_33_wrongfully_convicted.html

(accessed December 7, 2020).

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment

into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

RAYMOND C. HEADEN, J., CONCURS;
FRANK D. CELEBREZZE, JR., J., DISSENTS WITH SEPARATE OPINION
ATTACHED

FRANK D. CELEBREZZE, JR., J., DISSENTING:

I respectfully dissent from the majority opinion. I would reverse the

judgment of the trial court granting summary judgment to Lemons and denying the

state’s cross-motion, because I believe the trial court’s determination that Lemons

was wrongfully imprisoned does not comport with the intent and meaning of the

statute.

In adjudicating Lemons’s claim that he was wrongfully imprisoned,

the trial court determined that the Brady violation “plainly led” to his release

because the prior trial judge, in granting Lemons a new trial, noted that the Brady

violation resulted in Lemons’s conviction being overturned and a new trial ordered.

Lemons was ultimately released when the state was unable to go forward with its

case due to the death of its main witness.

I believe that the intent of the wrongful imprisonment statute is that

the claimed error in procedure must have a direct, causal relationship to the

individual’s release. The Tenth District Court of Appeals has also analyzed the
statute in this manner. See Hill v. State, 10th Dist. Franklin No. 12AP-635, 2013-

Ohio-1968 , rev’d on other grounds, 139 Ohio St.3d 451, 2014-Ohio-2365, 12 N.E.3d

1203. The Hill court noted that:

An individual relying on the procedural-error prong of R.C.
2743.48(A)(5) must establish more than that his or her conviction was
reversed and the case remanded. This is due, however, not to the “error
in procedure” language of the statute but, rather, due to the language
that modifies that phrase—only errors in procedure that resulted in the
individual’s release satisfy subsection (A)(5).

(Emphasis added.) Id. at ¶ 42.

In evaluating whether the error in procedure claimed by Hill “resulted

in his release,” the Tenth District focused on the fact that successful prosecution was

effectively precluded because the error in procedure affected the evidence that the

state would utilize to retry Hill. The court found that “there was a direct causal

relationship between the procedural error of the police in obtaining the critical

evidence against Hill and the ultimate dismissal of the criminal charges against

him.” Id. at ¶ 43.

The trial court in Hill had analyzed the word “resulted” in the statute

and determined that “[t]he plain meaning of the term ‘resulted’ connotes causation:

the error in procedure must be causally connected to the individual’s freedom such

that the only reasonable result of the error must be release.” Hill v. State, Franklin

C.P. No. 11 CV 10039, 2012 Ohio Misc. LEXIS 4851, 25 (July 18, 2012).

The Tenth District agreed with the trial court’s analysis of the statute,

noting that “only in cases where the procedural error ‘vitiates the basis for all
criminal liability,’ would an error in procedure result in the individual’s release.”

Hill, 2013-Ohio-1968, at ¶ 44, quoting Hill, Franklin C.P. No. 11 CV 10039, 2012

Ohio Misc. LEXIS 4851, at 27.

In the instant matter, while the error in procedure set into motion the

events that culminated in Lemons’s release, it did not, in and of itself, “result” in his

release. The state was unable to go forward with the retrial of Lemons because its

main witness had died. Consequently, there is not a direct, causal relationship

between the Brady violations and Lemons’s ultimate release, and I believe Lemons

therefore was not “wrongfully imprisoned” under R.C. 2743.48.

I do not believe that the facts of this case constitute the type of

situation the legislature envisioned when drafting and amending the wrongful

imprisonment statute. Compensating the wrongfully imprisoned is certainly a

laudable goal; however, an error in procedure leading to a new trial that ultimately

could not go forward solely due to the death of a main witness should not yield a

potential multi-million-dollar windfall to a defendant. A simple twist of fate should

not reward Lemons so exorbitantly, particularly at the taxpayers’ expense, and I do

not believe we should set such a precedent here.

Respectfully, I would reverse the judgment of the trial court and find

in favor of the state on Lemons’s claim.