WALTER DERRICO, Plаintiff-Appellant, v. STATE OF OHIO, Defendant-Appellee.
No. 107192
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
May 9, 2019
2019-Ohio-1767
LARRY A. JONES, SR., J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-18-891381
Ford, Gold, Kovoor & Simon Law Group, Sarah Thomas Kovoor, for appellant.
Dave Yost, Ohio Attorney General, and Thomas E. Madden, Assistant Attorney General; Michael C. O‘Malley, Prosecuting Attorney, and Brian R. Gutkoski, Assistant Proseсuting Attorney, for appellee.
JOURNAL ENTRY AND OPINION
LARRY A. JONES, SR., J.:
{¶ 1} Plaintiff-appellant, Walter Derrico (“Derrico“), appeals from the trial court‘s decision to grant defendant-appellee, the state of Ohio‘s, motion for
{¶ 2} In 2012, Derrico pleaded guilty to drug trafficking and drug possession and was sentenced to four years in prison. In December 2016, the state moved to vacate his conviction and sentence; at this time, Derrico had alrеady been released from prison and was on parole. According to the state‘s motion,
The Cuyahoga County Prosecutor has conducted an internal review of this case, which was originally presented to the Cuyahoga County Prosecutor‘s Offiсe by [three East Cleveland police officers, who] were convicted in the United States District Court for the Northern District of Ohio on charges relating to police misconduct, including conspiracy and making false statements. Due to the now known cоnduct of these former officers in past cases, the County Prosecutor no longer has confidence in the Defendant‘s conviction. Based on the internal review, the County Prosecutor has concluded that the integrity of the conviction is now in question.
In order to further justice, the Cuyahoga County Prosecutor, through his undersigned assistant, respectfully moves this Honorable Court to vacate the Defendant‘s conviction and sentence, allow Defendant to move to vacate his guilty plea, and allow the State to dismiss this case. The State will not re-try the Defendant.
{¶ 3} On February 1, 2017, the court held a hearing and granted the state‘s motion, dismissing the case with prejudice. The court terminated Derrico‘s postrelease control and stated that Derrico “has reserved all rights to further redress in this court.”
{¶ 4} Derrico subsequently filed the instant action, seeking a declaration that he was a wrongfully imprisoned individual as defined by Ohio‘s wrongful imprisonment statute —
{¶ 5} The state responded by filing an answer and a motion for judgment on thе pleadings under
{¶ 6} The trial court granted the state‘s motion for judgment on the pleadings, finding that
{¶ 7} Derrico now appeals, raising the following two assignments of error for rеview.
The Trial Court Erred in Dismissing Derrico‘s Complaint With Prejudice Without Affording Derrico an Opportunity to Amend His Complaint, and Erred in Overruling Derrico‘s Motion for Leave to Amend his Complaint. (Trial Court decision dated April 30, 2018[.]) - The Trial Court Erred in not Finding that Derrico Made a Prima Faсie Showing that [R.C.] 2743.48(A)(2) is not Constitutional. (Trial Court decision dated April 30, 2018[.])
{¶ 8} This court recently decided an analogous case. Moore v. State, 8th Dist. Cuyahoga No. 107114, 2019-Ohio-700. In Moore, the State moved to dismiss Moore‘s convictions and sentence based on misconduct by the same three East Cleveland detectives. The trial court granted the state‘s motion. Moore filed a similar civil complaint pursuant to
{¶ 9} The Moore case differs slightly from the case at bar in its procedural stance. In both cases, the claimants failed to raise the constitutionality of
{¶ 10} We now turn to the assignments of error, which we have combined for review.
{¶ 11} In the first assignment of error, Derrico argues that the trial court erred in denying his motion to amend his complaint.
{¶ 12} As this court stated in Moore:
Civ.R. 15(A) provides that a party may amend its pleading once as a matter of course within twenty-eight days after serving it or, if the pleading is one to which a responsive pleading is required within twenty-eight days after service of a responsive pleading or twenty-eight days after service of a motion underCiv.R. 12(B) , (E), or (F), whichever is earlier.The decision of whether to grant a motion for leave to amend a pleading is within the discretion of the trial court. Turner v. Cent. Local School Dist., 85 Ohio St.3d 95, 99, 1999-Ohio-207, 706 N.E.2d 1261, citing Wilmington Steel Prods., Inc. v. Cleveland Elec. Illum. Co., 60 Ohio St.3d 120, 573 N.E.2d 622 (1991). We will not overturn a trial court‘s ruling on a motion for leave to amend a pleading without first determining that the court abused its discretion. Id.
Id. at ¶ 9-10.
{¶ 13} As mentioned, Moore differs procedurally because Moore never moved to amend his complaint. In this case, Derrico filed his complaint on January
{¶ 14} When a plaintiff seeks leave to amend a complaint, “there must be at least a prima facie showing that the movant can marshal supрort for the new matters sought to be pleaded[.]” Solowitch v. Bennett, 8 Ohio App.3d 115, 117, 456 N.E.2d 562 (8th Dist.1982). Where a movant fails to make a prima facie showing of support for new matters sought to be pleaded, a trial court acts within its discretion in denying a motion to amend the pleadings. Id. at 123.
{¶ 15} While a trial сourt should always construe the motion in favor of the movant in order for the plaintiff to save his or her cause of action, and the granting of leave should not be withheld absent good reason, “this court‘s role is to determine whether the trial judge‘s decision was an abuse of discretion, not whether it was the same decision we might have made.” Wilmington Steel Prod., Inc., 60 Ohio St.3d at 122, 573 N.E.2d 622, citing State, ex rel. Wargo v. Price, 56 Ohio St.2d 65, 381 N.E.2d 943 (1978).
{¶ 17} There are two primary ways to challenge the constitutionality of a statute: by facial challenge or through an “as-applied” challenge. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. In a facial challenge to the constitutionality of a statute, the claimant must show that there are no set of facts under which the challenged statute is constitutional. An as-applied challenge alleges that a particular application of a statute is unconstitutional. “Facial challenges present a higher hurdle than as-applied challenges because, in general, for a statute to be facially unconstitutional, it must be unconstitutional in all applications.” State v. Romage, 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7, citing Oliver v. Cleveland Indians Baseball Co. Ltd. Partnership, 123 Ohio St.3d 278, 2009-Ohio-5030, 915 N.E.2d 1205, ¶ 13.
{¶ 18} Where there is no suspect class or fundamental right at issue, as is the case here, a rational-basis test applies. Conley v. Shearer, 64 Ohio St.3d 284, 289,
{¶ 19} Viewing a statute through this deferential lens, a court must first determine whether the statute is supported by some valid, or legitimate, governmental interest. Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936, N.E.2d 944, ¶ 19. Once the court has identified a valid governmental interest, it must then determine if the means by which the state has chosen to advance the valid governmental interest are rational. Id. Classifications will be invalidated only if they “bear no relation to the state‘s goal.” State v. Thompkins, 75 Ohio St.3d 558, 561, 664 N.E.2d 926 (1996). The individual challenging the law bears the burden of proving that it is not rationally related to a valid state interest. McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-Ohio-6505, 839 N.E.2d 1, ¶ 9. The state carries no burden to show that some rational basis justifies the legislation. State v. Williams, 88 Ohio St.3d 513, 531, 728 N.E.2d 342 (2000).
{¶ 21} As the Ohio Supreme Court noted in Dunbar v. State, 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 20,
The General Assembly creatеd the claim for wrongful imprisonment and placed limitations upon the categories of persons who are eligible for compensation. One limitation is that the claimant cannot have pled guilty to the offense. Unfortunately * * * the General Assembly did nоt provide an exception for guilty pleas that are later vacated.
{¶ 22} Derrico did not properly challenge the constitutionality of
“Issues that could have been raised and resolved in the trial court cannot be raised for the first time on appeal. * * * Therefore, issues not raised in the trial court are forfeited on appeal.” Miller v. Romanauski, 8th Dist. Cuyahoga No. 100120, 2014-Ohio-1517, ¶ 35, citing Thompson v. Preferred Risk Mut. Ins. Co., 32 Ohio St.3d 340,
513 N.E.2d 733 (1987); Hous. Advocates, Inc. v. Am. Fire & Cas. Co., 8th Dist. Cuyahoga Nos. 86444 and 87305, 2006-Ohio-4880; State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306. Having failed to properly assert these argumеnts below, Moore cannot now assert these arguments on appeal.
Id. at ¶ 25.
{¶ 23} In light of the above, the assignments of error are overruled.
{¶ 24} Finally, the State moved for sanctions against counsel for Derrico. This motion is denied. See Moore at id., fn.1.
{¶ 25} 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.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR