610 N.E.2d 622
No. 87-01691-WI.Court of Claims of Ohio.
Decided March 2, 1988.
Adrian Cimerman and Lorin J. Zaner, for plaintiff.
Anthony J. Celebrezze, Jr., Attorney General, and Simon B. Karas, Assistant Attorney General, for defendant.
LEONARD J. STERN, Judge.
The court hereby renders judgment in favor of plaintiff and against defendant in the amount of $129,867.70, distributed as set forth in this judgment. For the reasons set forth in the findings of fact and conclusions of law, plaintiff is adjudged to be a wrongfully imprisoned individual and is entitled to the above amount as a matter of fact and law.
Findings of Fact
1. Plaintiff, Floyd Fay, was indicted by the Wood County Grand Jury, 2nd Quarter, 1978 annual term, for the aggravated murder of Frederick W. Ery in violation of R.C. 2903.01. The indictment charged plaintiff with having caused the death of Ery with prior calculation and design on May 28, 1978.
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2. Upon jury trial and on August 1, 1978, plaintiff was found guilty as charged. As a result plaintiff was sentenced to a term in the Ohio penal system of life imprisonment.
3. Following conviction and sentence, further investigation led to proof that other individuals committed the crime and not plaintiff. As a result, plaintiff’s defense counsel and the prosecuting attorney of Wood County filed a joint motion for a new trial for plaintiff. On October 30, 1980, the Court of Common Pleas of Wood County granted the motion, and ordered plaintiff released from confinement. Criminal proceedings against plaintiff thereafter terminated.
4. On December 18, 1986, plaintiff filed a motion for determination that he was wrongfully imprisoned with the Wood County Common Pleas court. On January 6, 1987, the Wood County Prosecutor filed a response, stating, “no objection to the * * * motion and further would join in such request.” On January 16, 1987, the Court of Common Pleas of Wood County entered a determination that plaintiff was a wrongfully imprisoned person.
5. Between the time of his sentence and release, plaintiff was incarcerated in the Ohio penal system for two years and eighty days.
6. During the time period between his arrest, and his release from imprisonment, plaintiff was not employed. During the same operative period, the person next lowest in seniority to plaintiff at his prior place of employment earned $61,701. Subsequent to his release, plaintiff was reemployed by his prior employer and continues to be so employed. His earnings in the interim years between release and the present are further evidence that he would have earned at least as much as the person next lowest in seniority in 1978-1980.
7. Plaintiff’s criminal defense was presented by both private counsel and by public defender representation. The cost of plaintiff’s private criminal defense was $10,127.50. Plaintiff has paid $1,500. An outstanding bill of $8,627.50 is owed to Lorin J. Zaner, attorney at law. The court finds $10,127.50 to be a reasonable amount for services rendered by Zaner. No request is made for reimbursement for the costs of representation by the public defender.
8. Plaintiff’s current attorney Adrian Cimerman has expended in excess of forty hours in prosecution of this complaint for wrongful imprisonment, accumulated 888 miles of driving and accumulated other incidental costs.
Conclusions of Law
1. R.C. 2743.48(A)(1)-(4) defines a “wrongfully imprisoned individual” as including a person charged by indictment with an aggravated felony, who is
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thereafter found guilty of such aggravated felony, and sentenced to a term of imprisonment in a state penal institution, and who, subsequently obtains a determination by a court of common pleas that the offense of which he was found guilty “was not committed by him.” R.C. 2743.48(E)(1) further provides that in a civil action in this court, the complainant may establish that he is wrongfully imprisoned by submitting the determination of the court of common pleas of wrongful imprisonment. The “determination” is all the evidence required to establish wrongful imprisonment in this court and the determination is entitled to an irrefutable presumption. Plaintiff has shown that he meets all the conditions for wrongful imprisonment and has, in addition, submitted the determination of the Court of Common Pleas of Wood County to that effect. Plaintiff is a wrongfully imprisoned individual.
2. R.C. 2743.48(E)(2)(a)-(c) provides for a statutory formula for compensation of a wrongfully imprisoned individual. R.C. 2743.48(E)(2)(a) provides for compensation of the costs, including reasonable attorney fees, in connection with the criminal process against plaintiff. The court concludes that such amount herein is $10,127.50. R.C. 2743.48(E)(2)(b) provides for $25,000 per year of imprisonment and a pro-rata share for any portion of a year. The amount plaintiff is entitled to for two years and eighty days of imprisonment is $55,547.90, R.C. 2743.48(E)(2)(c) provides for compensation of lost income that resulted from arrest prosecution, conviction, and wrongful imprisonment. The amount awarded herein is $61,701.
3. R.C. 2743.48(F)(2) provides that plaintiff is entitled to reasonable attorney fees for his counsel in prosecuting the civil action. The court hereby awards $2,500.
Judgment for plaintiff.
LEONARD J. STERN, J., retired, of the Supreme Court of Ohio, sitting by assignment.
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