Lemons v. State, 111617 OHCA8, 104481

Docket Nº:104481
Opinion Judge:MARY J. BOYLE, PRESIDING JUDGE
Party Name:ANTHONY LEMONS PLAINTIFF-APPELLANT v. STATE OF OHIO DEFENDANT-APPELLEE
Attorney:ATTORNEYS FOR APPELLANT 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 APPELLEE Michael DeWine Ohio Attorney General BY: Debra Gorrell-Wehrle Assistant Attorney General C...
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
 
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2017-Ohio-8584

ANTHONY LEMONS PLAINTIFF-APPELLANT

v.

STATE OF OHIO DEFENDANT-APPELLEE

No. 104481

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 16, 2017

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

ATTORNEYS FOR APPELLANT 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 APPELLEE Michael DeWine Ohio Attorney General BY: Debra Gorrell-Wehrle Assistant Attorney General Criminal Justice Section

BEFORE: Boyle, P.J., Laster Mays, J., and Celebrezze, J.

ON RECONSIDERATION 1

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, PRESIDING JUDGE

{¶1} Plaintiff-appellant, Anthony Lemons, appeals the trial court's 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 Lemons's 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 Ohio App. LEXIS 125 (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 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.

{¶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 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.

{¶7} Adamcik passed away of natural causes in November 1996. Because she was the state's only witness 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, but with prejudice.

{¶8} On March 5, 2014, the trial court denied Lemons's motion to dismiss. On March 13, 2014, the trial court denied the state's 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 Sims's murder. The trial court denied the state's 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 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.

{¶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 Ohio's 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 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.

{¶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 he was actually innocent of murdering Sims and attempting to murder Adamcik. It is from this judgment that Lemons now appeals.

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