100 N.E.3d 871 (Ohio App. 8 Dist. 2017), 104481, Lemons v. State
|Citation:||100 N.E.3d 871, 2017-Ohio-8584|
|Opinion Judge:||MARY J. BOYLE, P.J.:|
|Party Name:||Anthony LEMONS, Plaintiff-Appellant v. STATE of Ohio, Defendant-Appellee|
|Attorney:||David B. Malik, Sara Gedeon, Jennifer Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch Co., L.P.A., Kevin M. Spellacy, McGinty, Hilow & Spellacy Co., L.P.A., ATTORNEYS FOR APPELLANT Michael DeWine, Ohio Attorney General, BY: Debra Gorrell-Wehrle, Assistant Attorney General, ATTORNEYS FOR A...|
|Judge Panel:||BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J. ANITA LASTER MAYS, J., CONCURS; FRANK D. CELEBREZZE, JR., J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION|
|Case Date:||November 16, 2017|
|Court:||Court of Appeals of Ohio|
[Copyrighted Material Omitted]
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-15-839878.
David B. Malik, Sara Gedeon, Jennifer Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch Co., L.P.A., Kevin M. Spellacy, McGinty, Hilow & Spellacy Co., L.P.A., ATTORNEYS FOR APPELLANT
Michael DeWine, Ohio Attorney General, BY: Debra Gorrell-Wehrle, Assistant Attorney General, ATTORNEYS FOR APPELLEE
BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
MARY J. BOYLE, P.J.:
[¶ 1] Plaintiff-appellant, Anthony Lemons, appeals the trial courts judgment declaring that he was not a wrongfully imprisoned individual under R.C. 2743.48(A). Lemons raises two assignments of error for our review: 1. The trial court erred when it concluded that [he] was not a wrongfully imprisoned individual on May 2, 2016.
2. The trial court erred when it denied [him] leave to amend his complaint on November 20, 2015.
[¶ 2] After review, we overrule Lemonss first assignment of error, but sustain his second assignment of error. We therefore reverse the judgment of the trial court and remand for further proceedings.
I. Procedural History and Factual Background
[¶ 3] 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 WL 12380 (Jan. 15, 1998) (for factual background).
[¶ 4] In December 2013, the criminal trial judge— the same judge who presided over the 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."
[¶ 5] 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 Simss 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.
[¶ 6] 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 Lemonss shoes after Adamciks 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.
[¶ 7] Adamcik passed away of natural causes in November 1996. Because she was the states only witness at Lemonss 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 Simss murder to look for discoverable evidence that could lead to reprosecution. Lemons also moved to dismiss his criminal case, but with prejudice.
[¶ 8] On March 5, 2014, the trial court denied Lemonss motion to dismiss. On March 13, 2014, the trial court denied the states motion to dismiss and set the case for trial.
[¶ 9] On August 29, 2014, the state renewed its motion to dismiss the case without prejudice. The state informed the trial court that it would continue to further investigate Simss murder. The trial court denied the states motion to renew its motion to dismiss and set another date for trial.
[¶ 10] On December 2, 2014, the state again sought permission to dismiss the indictment without prejudice, which would allow for further criminal investigation. On December 23, 2014, the trial court denied the states 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.
[¶ 11] On February 3, 2015, Lemons filed a civil complaint against the state— the case that is now before us on appeal— seeking a declaration that he was a wrongfully imprisoned individual as defined by Ohios wrongful imprisonment statute. Under R.C. 2743.48(A), a "wrongfully imprisoned individual" is 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 individuals 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 individuals 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.
[¶ 12] 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).
[¶ 13] On March 10, 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.
[¶ 14] Five days before trial, on November 12, 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." 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).
[¶ 15] After a three-day trial, the trial court determined that Lemons did not establish by a preponderance of the evidence that...
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