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Banks v. State

Court of Appeals of Ohio, Eleventh District, Lake

May 30, 2017

DAJUAN BANKS, Plaintiff-Appellant,
THE STATE OF OHIO, et al., Defendant-Appellee.

         Civil Appeal from the Lake County Court of Common Pleas, Case No. 2016 CV 000008.

          Dujuan Banks, pro se, Grafton Correctional Institution, (Plaintiff-Appellant).

          Mike DeWine, Ohio Attorney General, State Office Tower, and Debra L Gorrell Wehrle, Assistant Attorney General, 150 East Gay Street, Criminal Justice Section, (For Defendant-Appellee).



         {¶1} Dajuan Banks appeals from the judgment of the Lake County Court of Common Pleas, dismissing his action for wrongful imprisonment for failure to state a claim. The State of Ohio contends the trial court lacked personal jurisdiction of it, and should have dismissed on that basis. Finding no error, we affirm.

         {¶2} We recently recounted the facts regarding Banks' criminal case in State v. Banks, 11th Dist. Lake No. 2015-L-128, 2016-Ohio-4925, ¶2-4:

         {¶3} "In January 2008, Banks was indicted by the Lake County Grand Jury on three counts of aggravated murder, each carrying a death penalty specification, and firearm specifications; two counts of aggravated burglary, with firearm specifications; and one count of kidnapping, with a firearm specification. The indictment arose from his extraordinarily brutal murder of Sam Nicholson in October 2007. State v. Banks, 11th Dist. Lake No. 2008-L-177, 2009-Ohio-6856, ¶2. Banks was jealous that Mr. Nicholson was dating Banks' ex-girlfriend, Jackie Duncan. Id. Banks entered Mr. Nicholson's home; held him at gunpoint; struck him in the head with the gun; forced Mr. Nicholson to lie on the floor; then, slit his throat, so Ms. Duncan would find his bloodstained corpse when she returned home. Id.

         {¶4} "Banks pleaded not guilty to all charges. Extensive motion practice took place. Banks, supra, at ¶7-11. Banks then entered a plea deal with the state, filing a motion to withdraw his not guilty plea October 20, 2008. Under the deal, Banks pleaded guilty to aggravated murder, aggravated robbery, and kidnapping, all with firearm specifications. Id. at ¶12. In return, the state agreed to nolle prosequi the death penalty specifications, and the remaining counts of the indictment. Id. After hearing, the trial court accepted the plea, and sentenced Banks to life imprisonment without the possibility of parole for the aggravated murder, two ten year terms for the aggravated robbery and kidnapping, respectively, and three years on merged firearm specifications.

         {¶5} "Banks appealed, and we affirmed. Banks at ¶39."

         {¶6} Banks filed this civil action for wrongful imprisonment November 6, 2015. The trial court mistakenly treated it as a criminal action, and dismissed it November 13, 2015. Thereafter, the state moved the trial court to vacate its November 13, 2015 judgment entry, which it did by a judgment entry filed January 4, 2016. The action was reinstated. November 11, 2016, the state moved to dismiss, alleging the trial court lacked personal jurisdiction over it. February 22, 2016, Banks opposed the motion to dismiss. The trial court struck the brief in opposition February 26, 2016, since it had not been served on the state. March 11, 2016, the trial court filed its judgment entry, granting the motion to dismiss. Initially, the trial court determined it had personal jurisdiction over the state. It proceeded to analyze Banks' complaint under Civ.R. 12(B)(6), and concluded it failed to state a claim under the wrongful imprisonment statute, R.C. 2743.48.

         {¶7} Banks timely appealed, assigning three errors. Before dealing with them, however, we must inquire regarding the state's argument the trial court lacked personal jurisdiction over it. While not making a cross assignment of error, the state reiterates this argument on appeal. Its factual basis for the allegation is that Banks did not serve the Lake County Prosecutor with his complaint. Rather, he instructed the Lake County Clerk of Courts to serve the Attorney General of Ohio. The state then points to R.C. 309.09(A), which provides:

         {¶8} "The prosecuting attorney shall be the legal adviser of the board of county commissioners, board of elections, all other county officers and boards, and all tax-supported public libraries, and any of them may require written opinions or instructions from the prosecuting attorney in matters connected with their official duties. The prosecuting attorney shall prosecute and defend all suits and actions that any such officer, board, or tax-supported public library directs or to which it is a party, and no county officer may employ any other counsel or attorney at the expense of the county, except as provided in section 305.14 of the Revised Code." (Emphasis added.)

         {¶9} The state asserts that the Lake County Prosecutor is the proper person to defend it against Banks' wrongful imprisonment action. Thus, the state maintains the prosecutor had to be served with the complaint in order to establish personal jurisdiction over the state. The state observes that two recent decisions of the courts of common pleas have accepted this reasoning. See, e.g., Boyd v. State, Montgomery C.P. No. 2015 CV 05614 (Dec. 29, 2015); Washington v. State, Summit C.P. No. CV 2015 11 5316 (Mar. 4, 2016).

         {¶10} In Maryhew v. Yova,11 Ohio St.3d 154, 156 ...

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