COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70028 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION RICHARD INGRAM : : Defendant-appellant : : DATE OF ANNOUNCEMENT : NOVEMBER 27, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. CR-248312 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. Cuyahoga County Prosecutor JEROME S. BERKELEY, ESQ. MARILYN CASSIDY, ESQ. 3229 Fairmount Boulevard Assistant County Prosecutor Cleveland Heights, OH 44118 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J. The issue in this appeal is whether plaintiff Richard Ingram's motion for a determination whether he committed an offense for purposes of receiving compensation for wrongful imprisonment under R.C. 2743.48 could be filed under his common pleas court criminal case number. The trial court found the motion improper and granted the state's motion to dismiss. We agree. In May 1990, a jury found Ingram guilty of four counts of rape involving a minor under thirteen years of age. A panel of this court reversed the convictions, finding prosecutorial misconduct so permeated the trial as to affect its fundamental fairness. See State v. Ingram (July 9, 1992), Cuyahoga App. No. 60072, unreported. The state retried Ingram and a jury returned not guilty verdicts on all counts. Ingram then filed a pro se "motion to determine period of wrongful incarceration," as a prelude to bringing an action seeking damages for wrongful incarceration. He used the case number from his underlying criminal action and the clerk of the court assigned that motion to the judge who presided over the acquittal. The state asked the court to dismiss Ingram's motion, arguing that any action brought pursuant to R.C. 2743.48 must be commenced with the filing of a civil complaint, not by a motion. Pursuant to R.C. 2744.48(B)(1), a court of common pleas must determine that a person is a wrongfully imprisoned individual as a - 3 - predicate to that individual bringing an actual suit for damages in the court of claims. R.C. 2303.05 provides that: "A court of common pleas has exclusive, original jurisdiction to hear and determine an action or proceeding that is commenced by an individual who satisfies divisions (A)(1) to (4) of section 2743.48 of the Revised Code and that seeks a determination by the court that the offense of which he was found guilty, including all lesser-included offenses, either was not committed by him or was not committed by any person. If the court enters the requested determination, it shall comply with division (B) of that section." In the legal lexicon, the words "action" and "commence," are terms of art, so we must consider the use of those words accordingly. See R.C. 1.42; Klemas v. Flynn (1993), 66 Ohio St.3d 249, 250. Civ.R. 2 states, "[t]here shall be only one form of action, and it shall be known as a civil action." Civ.R.3(A) states, "[a] civil action is commenced by filing a complaint with the court ***." The use of the words "action" and "commence" in R.C. 2305.02 necessarily implies that the General Assembly fully intended that aggrieved persons seeking a determination of wrongful imprisonment do so by filing a complaint in the court of common pleas. Accord State v. Jackson (Apr. 20, 1994), Lorain App. No 93CA005725, unreported ("an action for wrongful imprisonment cannot be brought by filing a motion for a determination of wrongful imprisonment in the criminal case in which the conviction occurred."); cf. Cotton v. State (Apr. 6, 1995), Cuyahoga App. No. 67403, unreported (trial court assigned civil action for determination of wrongful imprisonment had no duty to transfer - 4 - matter to trial court judge who presided over Cotton's criminal trial). We are aware that this court has indicated otherwise. In Nesbitt v. State (Feb. 15, 1990), Cuyahoga App. No. 56381, we used rather broad language which could, in the abstract, support Ingram's position. We find Nesbitt distinguishable on its facts. Nesbitt had been acquitted on retrial in CR-81257 of an armed robbery charge, and filed a pro se petition for determination of wrongful imprisonment. Unfortunately, the clerk of the court filed the motion under CR-90852, an unrelated criminal case for which Nesbitt was then serving time in prison. The trial court mistakenly considered the petition as a request for relief from Nesbitt's current incarceration in CR-90852 and dismissed the petition. Nesbitt then filed a civil action (presumably assigned to a different judge) seeking a declaration that the state wrongfully imprisoned him on CR-81257. He asked the court for relief from the dismissal under Civ.R. 60(B). In addition, he asked the court to transfer his wrongful imprisonment petition from the criminal docket to the civil docket. The court denied both motions and dismissed the declaratory judgment action. This court found the trial court improperly dismissed Nesbitt's wrongful imprisonment petition because its journal entry showed the court mistakenly believed Nesbitt directed the petition to his current sentence. Id., unreported at 3. In addition, we found principles of res judicata relating to the dismissal by the - 5 - first court would not bar Nesbitt from pursing his declaratory judgment complaint filed with the second court. We stated: "In addition, the previous trial court had jurisdiction of that claim. R.C. 2305.02 grants the courts of common pleas exclusive jurisdiction in a proceeding to determine whether the state has wrongfully imprisoned an individual pursuant to R.C. 2743.48(A)(4). These are civil proceedings in nature. Cf. R.C. 2743.48. Moreover, courts of common pleas have concurrent civil and criminal jurisdiction. See R.C. 2305.01 (civil jurisdiction); R.C. 2901.03 (criminal jurisdiction). Accordingly, the mere fact that the clerk of courts assigned the plaintiff's petition to the criminal docket does not deprive the court of jurisdiction. The distinction between the criminal docket and the civil docket is administrative rather than jurisdictional." Id., unreported at 4. Factually, Nesbitt presents a far different scenario than that presented here. This court necessarily had to consider that Nesbitt's "petition" for a determination of wrongful imprisonment had been mistakenly filed, through no fault of Nesbitt's, not only as a motion, but in the wrong criminal case as well. Basing its decision on "considerations of fairness," this court found vacation of the dismissal of the wrongful imprisonment petition warranted. Id. at 2. Moreover, the Nesbitt court had the unusual situation where Nesbitt had, in fact, properly filed a civil action. Under that circumstance, the court concluded the dismissal of the improperly filed petition would not have preclusive effect since the trial court had not considered the merits of Nesbitt's petition. Id. at 4. - 6 - Although Nesbitt did state that the criminal court would properly have jurisdiction over Nesbitt's petition, that statement was clearly dicta. It arose from the court's discussion of res judicata but was not essential to its holding because the court based its decision on the trial court's failure to address the merits of Nesbitt's petition. Therefore, we find our decision in Nesbitt does not alter our holding here. Because we find Ingram should have filed a civil complaint for a determination of wrongful imprisonment, the trial court did not err by dismissing Ingram's motion. The assigned error is overruled. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, C.J. NAHRA, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .