Case Information
*1
[Cite as
Carr v. State
,
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
DAVID L. CARR, : Case No. 14CA3468
Plaintiff-Appellant, : v. : DECISION AND JUDGMENT ENTRY STATE OF OHIO, :
Defendant-Appellee. : RELEASED 09/18/2015 APPEARANCES:
Joseph J. Triscaro and Scott M. Kuboff, DeMarco & Triscaro, Ltd., Solon, Ohio, for appellant. Michael DeWine, Ohio Attorney General, and Debra Gorrell Wehrle, Assistant Ohio Attorney General, Columbus, Ohio, for appellee.
Hoover, P.J. On January 13, 2015, we consolidated this appeal with Vinton No. 14CA697 for
purposes of oral argument and decision. Consolidation was done at the request of the parties, and due to the similarity of the facts and issues raised on appeal. The decision and judgment entry issued herein is identical to the decision and judgment entry issued in Vinton No. 14CA697 with minor exceptions to the case caption and judgment entry. In these consolidated cases plaintiff-appellant, David L. Carr, appeals from the
trial court decisions granting summary judgment in favor of defendant-appellee, the State of Ohio, as to his complaints for a determination that he was a wrongfully-imprisoned individual pursuant to R.C. 2743.48. Carr contends that the trial courts erred by granting the state's motions for summary judgment and in not finding that he was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48(A). Finding no merit to his appeals, we affirm the judgments of the trial courts.
I. FACTS AND PROCEDURAL HISTORY
A. Background In the early 1980s, Carr was convicted of a first-degree sexual assault, along with
other offenses in West Virginia. His complete sentence in that matter was as follows: Count I, Sexual Assault, ten (10) to twenty (20) years to be served concurrent with Count II; Count II, Nighttime Burglary, one (1) to fifteen (15) years to be served concurrent with Count I; Count III, Aggravated Robbery, thirty (30) years to be served concurrent with Count IV but consecutive to Counts I and II; and Count IV, Aggravated Robbery, thirty (30) years to be served concurrent with Count III but consecutive to Counts I and II. At the time of Carr’s conviction and sentence West Virginia apparently did not have any type of sex offender registration law. After serving his sentence, Carr was released from prison in the summеr of 2008. Upon his release from prison, Carr signed a “Notification of Sex Offender Responsibility” form, acknowledging that he must register as a sex offender in West Virginia or any other state that he moved to. Thereafter, Carr moved to Ohio and was classified as a Tier III sex offender under 2007 Am.Sub.S.B. No. 10 (“S.B. 10”), Ohio’s version of the Adam Walsh Act (“AWA”).
B. The Ross County Conviction and Reversal on Appeal On April 9, 2010, in case number 10 CR 117, a Ross County grand jury indicted
Carr with one count of failure to notify of an address change, in violation of R.C. 2950.05, a first-degree felony, and other unrelated charges. The indictment alleged that Carr was a sexually oriented offender, having been convicted in West Virginia of sеxual assault, and was required to register as a sex offender under R.C. 2950.04(A)(4). Carr filed various motions seeking dismissal of the failure to notify charge, which the trial court denied. On March 25, 2011, the Ross County grand jury indicted Carr on one count of failure to notify of an address change, in violation of R.C. 2950.05, a first-degree felony, in case number 11 CR 220. At a hearing, the state informed the trial court that the indictment in 11 CR 220 was intended as a substitute for the failure to notify count in 10 CR 117. The parties agreed to conduct the trial on the charge under case number 11 CR 220 and that documents filed in 10 CR 117 would be deemed filed in 11 CR 220. Following a jury trial, Carr was convicted on thе failure to notify charge and the trial court sentenced him to a term of imprisonment. On appeal to this court, Carr challenged his conviction and alleged that he did not
have a duty to register as a sex offender in Ohio. Specifically, Carr argued that his classification
as a Tier III sex offender in Ohio violated Ohio’s Retroactivity Clause because under Ohio law at
the time of his West Virginia conviction, he had no duty to register. In a unanimous decision, we
held that because Carr committed his sex offense prior to S.B. 10’s enactment, his Tier III sex
offender classification was unconstitutional, in thаt it violated Section 28, Article II of the Ohio
Constitution, which prohibits the General Assembly from passing retroactive laws.
State v. Carr
,
4th Dist. Ross No. 11CA3256,
C. The Vinton County Conviction and Reversal on Appeal On April 7, 2010, a Vinton County grand jury indicted Carr with one count of
failure to notify of an address change, in violation of R.C. 2950.05, a first-degree felony. The indictment alleged that Carr was a sexually oriented offender, having been convicted in Wеst Virginia of sexual assault, and was therefore required to register as a sex offender under R.C. 2950.04(A)(4) and failed to notify the Vinton County Sheriff at least 20 days prior to changing his residential address. Carr filed a pro se motion to dismiss the indictment claiming that he did not have a duty to register as a sex offender under R.C. 2950.04. After the trial court denied the motion, Carr pleaded no contest to failure to notify of an address change, in violation of R.C. 2950.05(F)(2), a third-degree felony. The trial court found him guilty, and sentenced Carr to two years imprisonment. On appeal to this court, Carr challenged his conviction and alleged that he did not
have a duty to register as a sex offender in either Ohio or West Virginia. Specifically, Carr
argued that because he committed his underlying offense (the West Virginia sexual assault)
before the 2007 enactment of the AWA, the act did not apply to him. In a two-to-one decision,
we reversed Carr’s conviction and held that “[b]ecause Carr committed his underlying offense
before the effective date of the Adam Walsh Act and [has] never been classified [as a sexual
offender] under Megan’s Law, his prosecution for failure to notify of an address change violates
Ohio’s Retroactivity Clausе and the trial court erred by not dismissing the indictment against
him.”
State v. Carr
, 4th Dist. Vinton No. 12CA686,
D. The Wrongful Imprisonment Cases After his release, Carr filed actions for declaratory judgment pursuant to R.C.
2743.48 in the Ross County Court of Cоmmon Pleas and the Vinton County Court of Common Pleas, seeking a determination that he was a wrongfully-imprisoned individual. Carr and the state both moved for summary judgment in each respective case. The trial courts each overruled Carr's motion and granted the state's motion, thereby dismissing the actions. It is from these judgments that Carr appeals.
II. ASSIGNMENTS OF ERROR Carr assigns the following errors for our review:
1. The trial court erred in denying Plaintiff-Appellant’s motion for summary judgment as, even in viewing the evidence in the light most favorable to the Defendant-Appellee, there are no genuine issues of material fact in dispute аs Plaintiff-Appellant had no duty to register as a sex offender in Ross County, Ohio, and therefore, he is entitled to be declared as a wrongfully imprisoned person pursuant to R.C. § 2743.48.
2. The trial court erred in granting Defendant-Appellee’s motion for summary
judgment as, in light of this Honorable Court’s holdings in State v. Carr, 4th Dist.
No. 12-CA-686,
III. LAW AND ANALYSIS
{¶10} Becаuse Carr's assigned errors are interrelated, we address them jointly. Together they contend that the trial courts erred by granting the state's motions for summary judgment and in not finding that he was a “wrongfully imprisoned individual” pursuant to R.C. 2743.48(A).
A. Summary Judgment Standard of Review We review the trial court’s decision on a motion for summary judgment de novo.
Smith v. McBride
,
established: (1) that there is no genuinе issue as to any material fact; (2) that the moving party is
entitled to judgment as a matter of law; and (3) that reasonable minds can come to only one
conclusion, and that conclusion is adverse to the nonmoving party. Civ.R. 56(C);
DIRECTV,
Inc. v. Levin
,
B. Wrongfully-Imprisoned Individual “The wrongful-imprisonment statute, R.C. 2743.48, was added to the Revised
Code in 1986 by Sub.H.B. No. 609 to authorize civil actions against the state, for specified
monetary amounts, in the Court of Claims by certain wrongfully imprisoned individuals.”
(Quotation omitted.)
Doss v. State,
step process.
Griffith v. Cleveland
,
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, 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 legаl 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 Doss v. State, supra , at paragraph one of the syllabus, the Ohio Supreme
Court stated that: “One who claims to be a ‘wrongfully imprisoned individual’ under R.C. 2743.48 must prove all of the factors in R.C. 2743.48(A) by a preponderance of the evidence before seeking compensation from the state for wrongful imprisonment.” Turning to the instant case, it is undisputed that Carr meets the first three prongs of the statute. In its summary judgment motions, the state argued that Carr could not establish the fourth and fifth prong of the wrongful imprisonment statute, R.C. 2743.48(A)(4) and (5), and therefore, it was entitled to summary judgment as a matter of law. Carr, on the other hand, argued in his motions that he had established all of the factors enumerated in R.C. 2743.48(A), and thus he was entitled to summary judgment. The state raises the same arguments here as it did below. Carr also makes similar arguments on appeal, but adds that should he not be entitled to summary judgment, genuine issues of material fact make the state’s summary judgment awards improper. Because our conclusion with respect to R.C. 2743.48(A)(5) is dispositive, we will not address R.C. 2743.48(A)(1) through (4). [1]
{¶17} “The fifth factor of R.C. 2743.48(A) may be fulfilled in one of two ways: (1) subsequent to sentencing and during or subsequent to imprisonment, ‘an error in procedure resulted in the individual's release’ or (2) the charged offense (and any lesser included offense) was not committed by the individual or no crime was committed at all (actual innocence).” Doss at ¶ 12. In the consolidated cases, Carr has not alleged a procedural error subsequent to sentencing, or during or subsequent to imprisonment. Accordingly, we will focus on Carr’s claim of actual innocence. While the consolidated appeals were pending, the Ohio Supreme Court released
its decision in
Bundy v. State
,
was a wrongfully-imprisoned individual.
Id
. at ¶¶ 10, 13. Bundy had previously been classified
as a sexually oriented offender under Megan’s Law; thus requiring that he register with the
sheriff in the county of his residence, and that he verify his address in October of every year.
Id
.
at ¶ 3. In 2007, the General Assembly repealed Megan’s Law, effective January 1, 2008, and
replaced it with Ohio’s version of the AWA (codified at R.C. Chapter 2950).
Id
. at ¶ 5. The new
standards for sex-offender classification and registration under the AWA were to be applied
retroactively, and the attorney general’s office was charged with reclassifying all previously
convicted sex offеnders in conformity with the tiered system of the AWA.
Id
., citing R.C.
2950.031 and R.C. 2950.032. As a result, at the end of 2007 Bundy was reclassified as a Tier II
sex offender.
Id
. Under this classification, Bundy’s obligation under R.C. 2950.06 to periodically
verify his address increased from a frequency of once every year to once every 180 days.
Id
.
After Bundy failed to timely verify his address under the new AWA standards,
he was charged with a third-degree felony violation of R.C. 2950.06.
Id
. at ¶ 6. Following a
bench trial, Bundy was convicted and sentenced to three years in prison.
Id
. The Second District
Court of Appeals affirmed his conviction on appeal, holding that the reclassification prоvisions
and new registration requirements were constitutionally sound.
Id
. at ¶ 7. The Ohio Supreme
Court accepted Bundy’s discretionary appeal and reversed his conviction; noting that his
reclassification under the AWA was unconstitutional.
Id
. at ¶¶ 7, 8. In doing so, the Court relied
upon its holding in
State v. Bodyke
,
prison, Bundy filed a complaint in the court of common pleas seeking a declaration that he was a wrongfully-imprisoned individual under R.C. 2743.48. Id . at ¶ 9. The common pleas court awarded Bundy summary judgment and declared him to be a wrongfully-imprisoned individual on the basis that the invalidation of the AWA’s reclassification process on constitutional grounds required the conclusion that no violation of the law had been committed. Id . at ¶¶ 9-11. On appeal, the Second District Court of Appeals affirmed the trial court’s judgment, holding that Bundy could not have committed the AWA address-verification offense because the offense itself was a nullity pursuant to Bodyke . Id . at ¶ 13. The Ohio Supreme Court then accepted the state’s request for discretionary review. Id . at ¶ 14. On appeal to the Ohio Supreme Court, Bundy argued that he was actually
innocent, under R.C. 2743.48(A)(5), because his charged offense – a violation of R.C. 2950.06 – was predicated upon laws – R.C. 2950.031 and 2950.032 – that were found to be unconstitutional. Id . at ¶ 22. Thus, Bundy asserted that he could not have committed any offense based on the unconstitutional laws. Id . The Court rejected Bundy’s arguments noting, “legal innocence does not translate to a presumption of factual innocence for purposes of R.C. 2743.48(A)(5)”. Id . at ¶ 21. The Court explained that:
[Re]gardless of any legal fiction that might result from the constitutional invalidation of an offense, the offense itself is not erased from objective reality. The statute defining Bundy’s offense existed as a historical fact, as did Bundy’s act or omission that formed the basis of his criminal charge.
Id . at ¶ 29. The Court then went on to construe R.C. 2743.48(A)(5) and noted that nothing
in the plain language of the statute “indicates an intention to exclude from the term ‘offense’ certain kinds of constitutional violations.” Id . at ¶ 30. The Court noted that if it were to accept Bundy’s position, it would be adding a third criterion to the actual innocence standard: “or the statute defining the offense was declared unenforceable on constitutional grounds.” Id . The Court declined to make such an addition. Id . The Court concluded that:
There is no dispute that despite being put on notice of his new registration obligations as a Tier II sex offender, Bundy failed to verify his current residence address with the sheriff on March 14, 2008, thereby violating R.C. 2950.06. Bodyke ’s later invalidation of the statutes for reclassifying sex offenders meant that the increased requirements of R.C. 2950.06 could not be constitutionally enforced against Bundy, and his conviction for failing to comply with those requirements was thus reversed. However, the reversal of his conviction on constitutional grounds does not establish that on March 14, 2008, the violation of R.C. 2950.06 “was not committed” by Bundy. He therefore fails to satisfy the innocence standard of the wrongful-imprisonment statute.
Id . at ¶ 32. The Court then reversed the judgment of the Second District Court of Appeals and remanded the cause to the trial court to enter an order of dismissal. Id . at ¶ 33. To show actual innocence under the wrongful-imprisonment statute, Carr must
prove that “the charged offense, including all lesser-included offenses, either was not committed
by [him] or was not committed by any person.” R.C. 2743.48(A)(5). The
Bundy
decision now
makes clear that a judgment of acquittal on the grounds that the statute describing the offense
could not be enforced on cоnstitutional grounds is not enough to satisfy the actual innocence
standard of R.C. 2743.48(A)(5) for a claimant seeking a declaration that he is a wrongfully-
imprisoned individual. Rather, the statute requires a showing of innocence to be made
affirmatively and adjudicated de novo before a claimant can be found to be eligible for
compensation in a wrongful imprisonment action.
Doss,
decisions in
Carr I
and
Car II
, does not affirmatively prove his innocence of the alleged acts,
failure to notify of an address change, for which his imprisonment was imposed. The fact that the
application of the AWA was declared unconstitutional as to his circumstances does not mean that
he did not commit the offense that served as the basis for the imposition of his incarceration.
See
Bundy
,
supra
, (determining that a reversal of a conviction due to constitutional infirmity does not
necessitate a finding that the claimant is factually innocent). The wrongful imprisonment statute
was intended to compensate those who were innocent and wrongfully imprisoned, not those who
had merely avoided criminal liability.
Walden
,
imprisonment was imposed, as expressly required by R.C. 2743.48(A)(5), he has failed to prove that he was a “wrongfully imprisoned individual” as that term is defined in R.C. 2743.48. Therefore, Carr is not entitled to summary judgment in his favor. Carr also argues in his appellate briefs, that a genuine issue of material fact
exists which precludes summary judgment in favor of the state. Specifically, Carr contends that when he was convicted of sexuаl assault in the 1980s, West Virginia law did not require that he register as a sex offender. He also contends that he completed his sexual assault sentence by 1993, prior to any law becoming effective in West Virginia or Ohio, which would have required that he register as a sex offender. Thus, he contends he has no duty to register as a sex offender under R.C. 2950.04(A)(4) [2] , Megan’s Law, or any West Virginia law and is actually innocent of the charged offenses that resulted in his imprisonment. At the very least, he contends the evidence conflicts with evidence provided by the state, thus creating a question of fact of whether he was rеquired to register as a sex offender. While Carr’s argument is creative, we note that he raises it for the first time on
appeal. It is well-settled law in Ohio that appellate courts will not consider as error issues that are
raised for the first time on appeal.
Schade v. Carnegie Body Co.,
evidence indicating that Carr is required to register as a sex offender in West Virginia and any other state in which he resides. In addition to the “Notification of Sex Offender Responsibility” form, which was signed by Carr and acknowledges that he must register as a sex offender in Wеst Virginia or any other state that he resides, the state also introduced a copy of W. Va. Code, § 15-12-2. The code section, which expressly states that it is to be applied retroactively and prospectively, also indicates that Carr had a duty to register in West Virginia. The state also introduced, as evidence in support of its summary judgment motions, correspondence between Carr and the West Virginia Attorney General and West Virginia State Police. Of particular note, an agent of the West Virginia State Police responded to Carr’s inquiry as to his duty to register should he move to another state, by not only informing him of his lifetime duty to register in West Virginia as a sex offender, but also that he was required to register as a sex offender in the state in which he resided. The West Virginia State Police supported its proposition by expressly citing the retroactive nature of W. Va. Code, § 15-12-2. Carr contends on appeal that W. Va. Code, § 15-12-2 does not apply to him because he was convicted of sexual assault and allegedly completed his sexual assault sentence prior to the statute’s enactment. However, this argument fails to rebut the express language of the statute, whiсh indicates that it applies retroactively and prospectively. Thus, even if Carr has not waived the argument by raising it for the first time on appeal, there does not appear to be a genuine issue of material fact regarding his duty to register as a sex offender. Finally, Carr argues the state’s summary judgment evidence, including the
“Notification of Sex Offender Responsibility” form, the copy of W. Va. Code, § 15-12-2, and his
correspondence with the West Virginia authorities is improper summary judgment evidence
under Civ. 56(C) because the exhibits were not properly authenticated and were unsworn.
Even if we were to assume, arguendo, that the exhibits were not proper Civ.R.
56(C) evidence, and were not incorporated by reference in a properly framed affidavit pursuant
to Civ.R. 56(E), we note that Carr failed to object to the appropriateness of the evidence in the
trial court proceedings.
[3]
In fact, not only did Carr fail to object to the consideration of the state’s
exhibits; he actually cited one of the state’s exhibits to support a proposition of fact made in one
of his memorandums in opposition to the state’s motions for summary judgment. [
See
OP 21, at
p. 12 (Vinton).] “Failurе to object to the court's consideration of the evidence submitted in
support of a motion for summary judgment constitutes waiver of any alleged error in the
consideration of the evidence. A trial court may consider evidence other than the evidence
specified in Civ.R. 56(C) where no objection has been raised.” (Citations omitted.)
Cowen v.
Lucas
, 4th Dist. Scioto No. 96CA2456,
IV. CONCLUSION “Not every person who is released from prison because of a successful appeal is
entitled to compensation. The legislature set forth a procedure for claimants * * * to follow in
R.C. 2743.48, so that the common pleas court could actively separate demonstrably innocent
persons who have been wrongfully imprisoned from persons who have merely avoided criminal
liability. * * * [O]ne who claims to be a ‘wrongfully imprisoned individual’ under R.C. 2743.48
must prove all of the factors in R.C. 2743.48(A) by a preponderance of the evidence before
seeking compensation from the state for wrongful imprisonment.”
Doss
,
2743.48(A)(5) may not, as a matter of law, rely solely on an appellate court judgment reversing a felony conviction because the statute describing the offense could not be enforced on constitutional grounds. Thus, Carr is unable to satisfy all the necessary criteria to be declared a wrongfully-imprisoned individual and we overrule his first assignment of error. Moreover, Carr has failed to demonstrate that a genuine issue of material fact precludes summary judgment in favor of the state. By failing to raise the argument he now raises in the trial court, Carr waived the argument for purposes of his appeal. In any event, the summary judgment evidence establishes that Carr has a duty to register as a sex offender in West Virginia, and thus, he is not factually innocent of the charge for which he was imprisoned. Carr also waived his argument that the state relied on improper summary judgment evidence by failing to object to the trial court’s consideration of the evidence. Therefore, we overrule Carr’s second assignment of error. Having determined that there are no genuine issues of material fact, and that the state is entitled to judgment as a matter of law, we affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs. The Court finds that reasonable grounds exist for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Court of Common Pleas, 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.
Abele, J. & McFarland, A.J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________ Marie Hoover Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.
Notes
[1] In the Ross County case, the trial court determined that Carr could not satisfy the fourth factor, aka R.C. 2743.48(A)(4). Meanwhile, in the Vinton County case, the trial court determined that Carr could not satisfy the fifth factor, aka R.C. 2743.48(A)(5).
[2] R.C. 2950.04(A)(4) provides: “Regardless of when the sexually oriented offense was committed, each person who is convicted, pleads guilty, or is adjudicated a delinquent child in a court in another state * * * for committing a sexually oriented offense shall comply with the following registration requirements if, at the time the offender or delinquent child moves to and resides in this state * * * the offender or delinquent child has a duty to register as a sex offender or child-victim offender under the law of that other jurisdiction as a result of the conviction, guilty plea, or adjudication[.]
[3] Carr’s memorandum in opposition to the state’s motion for summary judgment in the Ross County case does contend that the “Notification of Sex Offender Responsibility” form is “unauthenticated, unwitnessed, and incomplete”. [OP 24, at p. 5 (Ross).] However, Carr never specifically objects to the trial court’s consideration of the exhibit, nor did he ever object to the consideration of the state’s other summary judgment exhibits.