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Armstrong v. State

Court of Appeals of Ohio, Eleventh District, Trumbull

March 31, 2017

SHAWN ARMSTRONG, Plaintiff-Appellant,
v.
STATE OF OHIO, et al., Defendant-Appellee.

         Civil Appeal from the Trumbull County Court of Common Pleas, Case No. 2016 CV 00600.

          Shawn Armstrong, pro se, PID: Marion Correctional Institution, Marion-Williamsport Rd., Marion, (Plaintiff-Appellant).

          Mike DeWine, Ohio Attorney General, Columbus, and Debra L Gorrell Wehrle, Assistant Attorney General, (For Defendant-Appellee).

          OPINION

          COLLEEN MARY OTOOLE, J.

         {¶1} Appellant, Shawn Armstrong, appeals from the May 3, 2016 judgment of the Trumbull County Court of Common Pleas, granting appellee's, the state of Ohio, motion to dismiss regarding appellant's re-filed pro se wrongful imprisonment claim.[1] For the reasons stated, we affirm.

         {¶2} Appellant was a defendant in the 1998 case relating to the murder of Brad McMillan. Following trial, the jury found appellant guilty of one count of aggravated murder, in violation of R.C. 2903.01(A), with a firearm specification, in violation of R.C. 2941.145. The trial court sentenced appellant to a prison term of 23 years to life. Appellant filed an appeal with this court, Case Nos. 2001-T-0120 and 2002-T-0071.

         {¶3} On October 22, 2004, this court found that the trial court's failure to provide a limiting instruction regarding a witness's testimony allowed the prosecution to use prior unsworn statements, not only for impeachment purposes, but also as substantive evidence, in violation of appellant's constitutional right to confront a witness under the Sixth Amendment of the United States Constitution. State v. Armstrong, 11th Dist. Trumbull Nos. 2001-T-0120 and 2002-T-0071, 2004 WL 2376467, ¶110, 118. Thus, this court reversed appellant's conviction and remanded the matter for further proceedings. Id. at ¶125. Appellant remained incarcerated.

         {¶4} On remand, appellant was appointed counsel for a retrial. However, on May 12, 2006, the state filed for leave for a nolle prosequi without prejudice, which the trial court granted that same date. Appellant was released from custody but remains subject to jeopardy for the murder of Mr. McMillan.

         {¶5} In 2008, appellant filed a wrongful imprisonment case in the Franklin County Court of Common Pleas, seeking a declaration that he is a wrongfully imprisoned individual so that he may be entitled to seek compensation from the state under R.C. 2743.48. The matter was later transferred to Trumbull County. Thereafter, the state filed a motion to dismiss. Appellant subsequently voluntarily dismissed that case without prejudice.

         {¶6} In 2009, appellant re-filed his complaint for wrongful imprisonment in Trumbull County. On August 23, 2010, the trial court dismissed the case with prejudice to re-file until such time as appellant can comply with the mandatory elements of R.C. 2743.48 (requiring an individual to prove that "no criminal proceeding is pending, can be brought, or will be brought by any prosecuting attorney[.]") R.C. 2743.48(A)(4). The court noted that the prosecutor's affidavit cannot be overcome by appellant as it states that appellant remains a suspect in the murder of Mr. McMillan. The trial court concluded that because appellant is unable to establish under any circumstances that the prosecutor cannot or will not bring further action against him, the court was without jurisdiction to entertain his complaint.

         {¶7} In 2015, appellant re-filed his wrongful imprisonment claim in the Franklin County Court of Common Pleas. The matter was later transferred to Trumbull County. Thereafter, the state filed a motion to dismiss.

         {¶8} On May 3, 2016, the trial court granted the state's motion to dismiss. The court found that given that the case involves the same parties and issues as well as arising from the same transaction or occurrence as that of the prior litigation, i.e., wrongful imprisonment, where a final and valid decision was rendered on the merits in 2010, the case is barred by res judicata. The court also found that the lack of statutory limitation for re-indictment of murder charges under R.C. 2901.13(A)(2) barred appellant's ability to satisfy the fourth set of statutory criteria of R.C. 2743.48(A)(4). Appellant filed the instant pro se appeal and asserts the following four assignments of error:

         {¶9} "[1.] The Trial Court Abused its' Discretion & Erred by granting The Appellees Motion to Transfer (Venue) finding that (Venue) was Proper in Franklin County.

         {¶10} "[2.] The Trial Court Abused its' Discretion & Erred by Willfully denying Appellants Motion to Stay the Proceedings in Pursuant to R.C. 2711.02(B) pending Appellants Appeal of the Transfer of His Action to The Trumbull County Court of Common Pleas from Franklin County, Depriving Appellant of His Procedural & Substantive Due Process & Equal Protection of the Law.

         {¶11} "[3.] The Trial Court Abused its' Discretion & Erred by Dismissing Appellants Claim against Appellee Due to the Doctrine of Res Judicata & The Statute of Limitation of R.C. 2901.13(A)(2) Depriving Appellant of His Substantive & ...


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