Court of Appeals of Ohio, Eleventh District, Trumbull
Appeal from the Trumbull County Court of Common Pleas, Case
No. 2016 CV 00600.
Armstrong, pro se, PID: Marion Correctional Institution,
Marion-Williamsport Rd., Marion, (Plaintiff-Appellant).
DeWine, Ohio Attorney General, Columbus, and Debra L Gorrell
Wehrle, Assistant Attorney General, (For Defendant-Appellee).
COLLEEN MARY OTOOLE, J.
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. For the reasons stated, we affirm.
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
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.
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.
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
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.
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.
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:
"[1.] The Trial Court Abused its' Discretion &
Erred by granting The Appellees Motion to Transfer (Venue)
finding that (Venue) was Proper in Franklin County.
"[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.
"[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