concurring in judgment.
{¶ 23} It is important to recognize that this is a civil action seeking a declaratory judgment that C.K. was a wrongfully imprisoned individual, and the action is governed by statute. In enacting wrongful-imprisonment legislation, the General Assembly “intended that the court of common pleas actively separate those who were wrongfully imprisoned from those who have merely avoided criminal liability.” Walden v. State, 47 Ohio St.3d 47, 52, 547 N.E.2d 962 (1989).
{¶ 24} We have determined that one who claims to be a wrongfully imprisoned individual under R.C. 2743.48 must prove all five of the factors in R.C. 2743.48(A) by a preponderance of the evidence before seeking compensation from the state in the Court of Claims for wrongful imprisonment. Doss v. State, 135 Ohio St.3d 211, 2012-Ohio-5678, 985 N.E.2d 1229, paragraph one of the syllabus.
{¶ 25} We have decided a number of wrongful-imprisonment-claim cases on grounds of statutory construction of R.C. 2743.48: Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, paragraph one of the syllabus (vacation of a plea of guilty to a felony does not make a person eligible to pursue damages against the state — construing R.C. 2743.48(A)(2)); Mansaray v. State, 138 Ohio St.3d 277, 2014-Ohio-750, 6 N.E.3d 35, syllabus (an error in procedure resulting in release must have occurred after sentencing and during or after imprisonment — construing R.C. 2743.48(A)(5)); Bundy v. State, 143 Ohio St.3d *328237, 2015-Ohio-2138, 36 N.E.3d 158, syllabus (actual-innocence standard is not met by showing that the conviction was reversed solely because the statute describing the offense could not be enforced on constitutional grounds — construing R.C. 2743.48(A)(5)).
Spangenberg, Shibley & Liber, L.L.P., Nicholas A. Dicello, and William B. Eadie, for appellee. Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Brian R. Gutkoski, Assistant Prosecuting Attorney, for appellant. Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio Prosecuting Attorneys Association.{¶ 26} I would decide this case similarly, on a precise reading of the statute, and hold that C.K. was required to prove by a preponderance of the evidence that he meets the requirement of R.C. 2743.48(A)(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.
(Emphasis added.)
{¶ 27} We have already held with respect to this section that claimants must prove that they were not engaging in any other criminal conduct arising out of the incident for which they were initially charged. Gover v. State, 67 Ohio St.3d 93, 95, 616 N.E.2d 207 (1993). According to the language of this section, a dismissal without prejudice on a charge of murder precludes a claimant from eligibility as a wrongfully imprisoned individual. Murder has no statute of limitations. In this case, the prosecutor’s dismissal otherwise than with prejudice leaves open the possibility of a new case being brought against C.K.
{¶ 28} It may well be that the General Assembly does not intend to foreclose compensation to one who has been imprisoned under circumstances such as these. If that is so, the statute should be amended to say so.
{¶ 29} I respectfully concur in judgment.
French, J., concurs in the foregoing opinion.