Covender v. State

[Cite as Covender v. State, 

.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

JOEL COVENDER                                          C.A. No.      21CA011780

        Appellant

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
STATE OF OHIO                                          COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellee                                       CASE No.   13 CV 181182

                                 DECISION AND JOURNAL ENTRY

Dated: January 23, 2023



        HENSAL, Presiding Judge.

        {¶1}     Joel Covender appeals a judgment of the Lorain County Court of Common Pleas

that granted summary judgment to the State of Ohio on his wrongfully-imprisoned-individual

action under Revised Code Section 2743.48. For the following reasons, this Court reverses.

                                                  I.

        {¶2}     In 1996, a jury found Mr. Covender guilty of committing felonious sexual

penetration and gross sexual imposition against six-year-old A.S. and five-year-old J.S. In July

2007, however, the trial court granted Mr. Covender a new trial in both cases based on the

recantation of testimony of the two alleged victims. This Court later reversed the granting of a

new trial as to A.S., concluding that she had not actually recanted her testimony. In August 2007,

the trial court dismissed the charges in the case involving J.S.

        {¶3}     Mr. Covender filed additional motions for new trial in the case involving A.S., and

the trial court granted one of them in 2013. The case involving A.S. proceeded to a bench trial in
                                                   2


October 2014. Based on the evidence that was presented at the retrial, the trial court found that

the State failed to meet its burden of proof and found Mr. Covender not guilty of the offenses.

       {¶4}    Meanwhile, in August 2013, Mr. Covender filed a complaint to be declared a

wrongfully imprisoned person under Revised Code Section 2743.48 based on the case involving

J.S. After he was found not guilty in the case involving A.S., he amended his complaint to add

that case, and both parties thereafter moved for summary judgment. The trial court granted

judgment to the State, but this Court reversed because its judgment entry lacked any explanation

or analysis. Covender v. State, 9th Dist. Lorain No. 18CA011355, 

. On remand,

the trial court granted summary judgment to the State again, concluding that Mr. Covender had

not filed his complaint involving J.S. within the six-year statute of limitations period and that he

had not established his actual innocence of either of the charged offenses. Mr. Covender has

appealed, assigning four errors. We will address the third and fourth assignments of error together

because they both address whether Mr. Covender established that he did not commit the offenses.

                                                  II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED SINCE COVENDER TIMELY FILED HIS
       COMPLAINT ON AUGUST 15, 2013[,] BECAUSE AN R.C. 2743.48 CLAIM
       DOES NOT ACCRUE UNTIL THE UNDERLYING CRIMINAL CASE IS
       PERMANENTLY VACATED, DISMISSED OR REVERSED ON APPEAL
       PURSUANT TO R.C. 2743.48(A)(4)

       {¶5}    In his first assignment of error, Mr. Covender argues that the trial court incorrectly

determined that he filed his complaint in the case involving J.S. outside of the six-year statute of

limitations. The court reasoned that the statute of limitations began to run when it granted Mr.

Covender’s motion for new trial. According to Mr. Covender, however, his claim did not accrue

until the trial court dismissed the charges in that case.
                                                   3


        {¶6}    “The General Assembly has developed a two-step process to compensate those who

have been wrongfully imprisoned. The first step is an action in the common pleas court seeking a

preliminary factual determination of wrongful imprisonment; the second step is an action in the

Court of Claims to recover money damages.” Doss v. State, 

, 

; R.C. 2743.48.

        {¶7}    Both parties contend that Mr. Covender’s cause of action in the case involving J.S.

accrued in 2007. They disagree, however, whether it occurred when the trial court granted Mr.

Covender’s motion for new trial or when the case was dismissed a month later. “Normally, a cause

of action does not accrue until such time as the infringement of a right arises. It is at this point that

the time within which a cause of action is to be commenced begins to run.” State ex rel. Teamsters

Local Union 377 v. Youngstown, 

 (1977). Because wrongful conduct does

not always result in immediate injury, however, “[t]he corollary rule developed for this situation

holds that where the injury caused by wrongful conduct is not immediately apparent and does not

immediately result in actual injury, a cause of action does not accrue until actual injury or damage

occurs.” C.E. Greathouse & Son, Inc. v. Middleton, 12th Dist. Butler No. CA 85-05-047, 

, *4 (June 30, 1986). The “basic statute of limitations rule … is … a rather simple

one—a plaintiff’s cause of action cannot accrue, and the statute of limitations thereby begin to run,

until all the elements of a cause of action have occurred or are otherwise reasonably manifested.”

Id.; Kovacs v. Thomson, Hewitt & O’Brien, 

 (9th Dist.1997) (“[T]he

existence of the Kovacses’ cause of action dates from the point at which all elements of the …

claim became present[.]”).

        {¶8}    In 2007, a person qualified as a wrongfully imprisoned individual under Section

2743.48 if they could establish five requirements. First, the individual had to have been charged
                                                  4


with a violation of the Revised Code that was a felony or aggravated felony. Second, they had to

have been found guilty of the charge or a lesser-included offense by a jury or the court and the

offense had to be a felony or aggravated felony. Third, they had to have been sentenced to a

definite or an indefinite term of imprisonment. Fourth, their conviction had to have been vacated,

dismissed or reversed; the prosecuting attorney could not or would not seek further appeal of that

decision; and no criminal proceeding had to be pending or could or would be brought by any

prosecuting attorney against the individual for any act associated with the conviction. Finally,

there either had to have been an error in procedure that resulted in the individual’s release or a

court of common pleas had to determine that the individual did not commit the offense for which

he was found guilty.

       {¶9}    The first three elements are not in dispute. Mr. Covender was charged and

convicted of a felony and was sentenced to a term of imprisonment. Regarding the fourth element,

even after he was granted a new trial, Mr. Covender could not establish that he was a wrongfully

imprisoned individual until “the prosecuting attorney in the case [could] not or [would] not seek

any further appeal …, and no criminal proceeding [was] pending, [could] be brought, or [would]

be brought by any prosecuting attorney[.]” R.C. 2743.48(A)(4) (2007). The fourth element in the

case involving J.S., therefore, did not exist until the charges in that case were dismissed.

       {¶10} The trial court wrote that there “is significant precedent that the date of accrual in

the wrongful imprisonment case is not dependent upon the outcome or conclusion of the

underlying criminal proceeding.” None of the cases it cited, however, involved a claim under

Section 2743.48. Instead, they involved claims such as abuse of process. See Haller v. Borror,

10th Dist. Franklin No. 1993 WL 93APE12-1657, 

 (June 14, 1994); Reagan v.

City of Alliance, 5th Dist. Stark No. CA-7069, 

 (May 4, 1987); Yaklevich v. Kemp,
                                                 5


Schaeffer & Rowe, 

 (1994). “[I]n an action for abuse of process, it is not

necessary, ordinarily, to establish that the action in which the process issued has terminated in the

plaintiff's favor.” Yaklevich v. Kemp, Schaeffer & Rowe, 10th Dist. Franklin No. 91AP-1296, 

, *3 (June 9, 1992). Because the causes of action in the cases the trial court cited

involve different elements than the cause of action for wrongful imprisonment, the cases that the

trial court relied on are not persuasive.

       {¶11} Regarding the fifth element, Mr. Covender’s cases do not involve “an error in

procedure[.]” R.C. 2743.48(A)(5). Once the other four elements existed, however, he was

permitted to seek a determination by the common pleas court that the offenses of which he was

charged “either [were] not committed by [him] or [were] not committed by any person” under

Section 2743.48(A)(5), which is what Mr. Covender sought in his complaint. See R.C. 2305.02

(bestowing jurisdiction on the court of common pleas to determine under Section 2743.48(A)(5)

if the offense of which an individual was found guilty was not committed by the individual). Upon

review of the record, we conclude that, because Mr. Covender filed his complaint in the case

involving J.S. within six years of the other elements of his wrongfully-imprisoned-individual

claims, his claim was timely and the trial court incorrectly determined that it was barred by the

statute of limitations. Mr. Covender’s first assignment of error is sustained.

                                   ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN GRANTING THE STATE OF OHIO’S
       MOTION FOR SUMMARY JUDGMENT SINCE COVENDER DID SATISFY
       R.C[.] 2743.48(A)(4) BECAUSE BOTH OF HIS UNDERLYING CRIMINAL
       CASES WERE VACATED, DISMISSED OR REVERSED ON APPEAL.

       {¶12} In his second assignment of error, Mr. Covender argues that the trial court

incorrectly determined that his convictions either had to have been vacated on appeal, dismissed
                                                  6


on appeal, or reversed on appeal. The trial court wrote that Mr. Covender had failed to satisfy the

requirements of Section 2743.48(A)(4) because his convictions “were affirmed on appeal.”

       {¶13} At the time that Mr. Covender filed his complaint in 2013, Section 2743.48(A)(4)

provided that a wrongfully imprisoned individual had to satisfy that his conviction “was vacated,

dismissed, or reversed on appeal ….” The State argued, and the trial court agreed, that the

words “on appeal” related back to each term in the preceding series thus making the sentence read

“vacated on appeal,” “dismissed on appeal,” or “reversed on appeal.” The statute, however, did

not always contain that specific language. As noted under the first assignment of error, Mr.

Covender’s cause of action in the case involving J.S. accrued in 2007. At that time, Section

2743.48(A)(4) provided that an individual had to establish that their conviction “was vacated or

was dismissed, or reversed on appeal ….” We must apply that version of the statute to Mr.

Covender’s claim involving J.S. because Mr. Covender’s claim vested at the time his cause of

action accrued and the Ohio Constitution prohibits the General Assembly from making retroactive

laws. Ohio Constitution, Article II, Section 28; Pivonka v. Corcoran, 

, 2020-

Ohio-3476, ¶ 27 (“This nonretroactivity clause protects vested rights from new legislative

encroachments and nullifies a new statute that creates burdens, duties, obligations or liabilities that

did not exist when the statute became effective.”); Bill Swad Chevrolet, Inc. v. Dunson, 10th Dist.

Franklin No. 18AP-233, 

 (“[A]ccrued causes of action present vested,

substantive rights that the legislature cannot retroactively extinguish[.]”).

       {¶14} A plain language reading of the version of the statute that was in effect in 2007

demonstrates that an individual could satisfy subsection (A)(4) if their conviction was vacated, if

their conviction was dismissed, or if their conviction was reversed on appeal. Mr. Covender’s

conviction was vacated when the trial court granted his motion for new trial. We, therefore,
                                                 7


conclude that the trial court incorrectly determined that Mr. Covender could not satisfy former

Section 2743.48(A)(4) in the case involving J.S. because his conviction was not vacated on appeal,

dismissed on appeal, or reversed on appeal.

       {¶15} Regarding the case involving A.S., Mr. Covender’s claim did not accrue until he

was found not guilty of those charges in 2014. By that time, Section 2743.48(A)(4) had been

amended to provide that the individual’s conviction had to have been “vacated, dismissed, or

reversed on appeal[.]” The State argues that, under this language, the vacating, dismissal, or

reversal had to have happened “on appeal” and not subsequently. It cites Paroline v. United States,

 (2014), in support of its argument that “on appeal” modifies each of the preceding

terms. Paroline, however, recognized that there are competing canons of construction that could

apply to such situations. Under the “grammatical rule of the last antecedent,” “a limiting clause

or phrase … should ordinarily be read as modifying only the noun or phrase that it immediately

follows.” 

, quoting Barnhart v. Thomas, 

 (2003). Applying that canon,

“on appeal” would modify only the term “reversed” and not the terms “vacated” or “dismissed[.]”

On the other hand, a different canon provides that, if “several words are followed by a clause which

is applicable as much to the first and other words as to the last, the natural construction of the

language demands that the clause be read as applicable to all.” 

 quoting Porto Rico Ry., Light

& Power Co. v. Mor, 

 (1920). Applying that canon, “on appeal” would modify

all three of the preceding terms.

       {¶16} When the General Assembly modified Section 2743.48(A)(4) in 2012, it removed

the words “or was” after the word “vacated” and replaced them with a comma. Upon review of

the changes, it would appear that the amendment was more likely intended to replace the

grammatically clunky phrase “was vacated or was dismissed, or reversed on appeal” with the better
                                                8


flowing “vacated, dismissed, or reversed on appeal,” and was not intended to make a substantive

change to the law. This interpretation is also consistent with Section 1.11’s instruction that

“[r]emedial laws … shall be liberally construed in order to promote their object and assist the

parties in obtaining justice.” R.C. 1.11; Clark v. Scarpelli, 

 (2001)

(explaining that remedial legislation must be construed liberally to give effect to its legislative

purpose).

       {¶17} The State’s construction of Section 2743.48(A)(4) would preclude anyone whose

conviction was overturned on post-conviction relief from seeking relief under Section 2743.38.

The current version of Section 2743.48, however, which still contains the “vacated, dismissed, or

reversed on appeal” language that was in effect at the time Mr. Covender filed his case involving

A.S., specifically mentions violations of the Brady Rule. Ordinarily, Brady claims cannot be

established on direct appeal, however, because they require defendants to prove that the

government withheld evidence that was favorable and material to their defense and the record on

direct appeal is limited to what was presented at trial. R.C. 2743.48(A)(5); State v. Bethel, 

, 

, citing Smith v. Cain, 

 (2012); State v. Rivera,

9th Dist. Lorain No. 06CA008909, 

 (“[T]he appellate court is limited to facts

that appear in the record before the trial court.”). Accordingly, we conclude that the trial court

incorrectly concluded that Mr. Covender could not satisfy the requirements of Section

2743.48(A)(4) because his convictions had not been vacated, dismissed, or reversed in his direct

appeal. Mr. Covender’s second assignment of error is sustained.
                                                 9


                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE/STATE OF
       OHIO’S MOTION FOR SUMMARY JUDGMENT BECAUSE COVENDER
       SATISFIES THE ACTUAL INNOCENCE TEST UNDER O.R.C. 2743.48(A)(5).

                                 ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED WHEN IT DENIED COVENDER’S MOTION
       FOR SUMMARY JUDGMENT SINCE HE DID SATISFY R.C. 2743.48(A)(1)-
       (5).

       {¶18} In his third assignment of error, Mr. Covender argues that the trial court incorrectly

granted summary judgment to the State on the issue of whether he had shown he is innocent of the

offenses of which he was charged and imprisoned. In his fourth assignment of error, Mr. Covender

argues, likewise, that the court incorrectly denied his motion for summary judgment because he

established his innocence. The trial court wrote that it “finds Covender has not shown actual

innocence in either [c]ase[.]”

       {¶19} Under Civil Rule 56(C), summary judgment is appropriate if:

       [n]o genuine issue as to any material fact remains to be litigated; (2) the moving
       party is entitled to judgment as a matter of law; and (3) it appears from the evidence
       that reasonable minds can come to but one conclusion, and viewing such evidence
       most strongly in favor of the party against whom the motion for summary judgment
       is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 

 (1977). To succeed on a motion for summary

judgment, the party moving for summary judgment must first be able to point to evidentiary

materials that demonstrate there is no genuine issue as to any material fact, and that it is entitled

to judgment as a matter of law. Dresher v. Burt, 

 (1996). If the movant

satisfies this burden, the nonmoving party “must set forth specific facts showing that there is a

genuine issue for trial.” 

, quoting Civ.R. 56(E). This Court reviews an award of summary

judgment de novo. Grafton v. Ohio Edison Co., 

 (1996).
                                                 10


       {¶20} A claimant may not rely “solely on a judgment of acquittal to establish actual

innocence.” Doss, 

, 

, citing Walden v. State, 

 (1989). Such “judgment is not to be given preclusive effect, because an acquittal is a

determination that the state has not met its burden of proof. It is not necessarily a finding that the

accused is innocent.” Id. at ¶ 14. Instead, “a claimant advancing a wrongful-imprisonment claim

‘must affirmatively prove [his] innocence by a preponderance of the evidence.’” Id., quoting

. “The General Assembly requires a showing of innocence to be made affirmatively

and adjudicated de novo before a claimant can be found to be eligible for compensation in a

wrongful-imprisonment action.” Id. at ¶ 21.

       {¶21} In opposition to the State’s motion for summary judgment and in support of his

own motion, Mr. Covender submitted multiple documents, including affidavits and filings from

his criminal cases. One of the affidavits he submitted was his own, averring that he did not commit

the offenses of which he was convicted and noting that he had always maintained his innocence.

       {¶22} Mr. Covender also submitted affidavits from J.S. and A.S. According to the

affidavit of J.S., he remembered at some point going from living with his mother and Mr. Covender

to with one of his grandmothers. He remembered his grandmother taking him to speak with a

police detective and that he was uncomfortable during the questioning. He averred that Mr.

Covender treated him well and never hurt him or touched him in an inappropriate manner,

including never touching him in his private areas. He said that, although he apparently told the

police that Mr. Covender had touched him while he was playing in a backyard playhouse, the

playhouse would have been too small for an adult to fit inside. He recalls being questioned by

many different people and wanting to please them and his grandmother. He felt pressure to say

what they wanted him to say.
                                                 11


       {¶23} According to the affidavit of A.S., she does not remember making any of the

statements that she allegedly made and does not recall understanding what molestation meant. She

remembered Mr. Covender being a good father and that he never hurt her or touched her in an

inappropriate manner. She remembered going to court and wanting to please the people that had

been questioning her. She averred that Mr. Covender had never molested her or touched her

inappropriately, that she would remember such an event if it had happened, that Mr. Covender had

always treated her well, and that she felt pressure from grownups to say what they wanted her to

say.

       {¶24} Mr. Covender also submitted a document that J.S. had sent to the adult parole

authority, indicating that he had never been hurt or mistreated by Mr. Covender, that he

remembered making things up about Mr. Covender’s alleged crimes, and explaining that he had

told lies because he did not want to be separated from his sister.

       {¶25} Mr. Covender also submitted part of J.S.’s testimony from the hearing on his

motion for new trial and from the second trial of the charges involving A.S. J.S. testified that he

had lied about a lot of things when he was five years old, that he had lied about the accusations he

made of Mr. Covender, and that Mr. Covender had never touched him inappropriately. J.S.

explained that, because A.S. had been taken away after saying certain things, he said them too so

that he could be taken away as well and rejoin his sister. He indicated that none of his family

members, however, forced him to make any of his accusations.

       {¶26} Mr. Covender also submitted A.S.’s testimony from the hearing on his motion for

new trial and from the second trial of the charges involving her. A.S. testified that she had a

problem with telling lies as a child and may have been lying about what she had told her

grandmothers about Mr. Covender’s alleged actions. She testified that Mr. Covender did not touch
                                                12


her in any places that were not appropriate and that he was innocent of any offenses. She also

testified that she had been constantly pushed to bend what she was saying about Mr. Covender.

A.S. conceded that she did not recall much about her childhood and that she did not have an

independent recollection of whether anything had happened but believed she would remember

such events if they had happened. Mr. Covender also submitted a document that A.S. had sent to

the adult parole authority, indicating that, although she could not remember much about her

childhood, she recalled Mr. Covender being a kind and gentle man.

       {¶27} Mr. Covender further submitted the affidavit of D.S., the biological father of both

J.S. and A.S. According to D.S., he witnessed the children’s grandmothers pressuring and coercing

A.S. to testify as she did in the original trial, instructing her on what to say Mr. Covender did to

her, and saw them repeatedly reading a book about child molestation to A.S. Mr. Covender also

submitted a 1994 service plan review of A.S. by the Center for Children and Youth Services that

indicated that A.S. needed to work on her behaviors, including lying.

       {¶28} According to Mr. Covender, because J.S. and A.S. were young children at the time

that they testified, they were susceptible to pressure and manipulation from adults, lessening their

credibility, especially here where D.S. witnessed such acts. Mr. Covender notes that, now that J.S.

and A.S. are grown adults, they have repeatedly told the truth of what happened, which is that he

did not commit any of the alleged offenses. The State, however, argues that this Court has already

determined that A.S.’s testimony from the hearing on Mr. Covender’s motion for new trial did not

constitute a recantation. It also argues that just because the trial court acquitted Mr. Covender of

the charges involving A.S. does not mean that he has proven actual innocence. The State argues

that, considered as a whole, the evidence refutes Mr. Covender’s claims that he is innocent or that

a crime did not occur.
                                                   13


        {¶29}    In ruling on a motion for summary judgment, “the court is limited to examining

the evidence ‘taking all permissible inferences and resolving questions of credibility in plaintiff’s

favor to determine whether a reasonable jury acting reasonably could find [the elements of the

claim].’” Dupler v. Mansfield Journal Co., Inc., 

 (1980). When the trial

court considered the State’s motion for summary judgment, however, it does not appear that the

court construed the evidence in a light most favorable to Mr. Covender, resolved issues of

credibility in his favor, or gave Mr. Covender the benefit of all permissible inferences. Instead of

determining whether a reasonable trier of fact could find that he was innocent of the offenses, it

improperly weighed whether Mr. Covender “demonstrated his actual innocence in the briefing

before it” and made a “find[ing] [that] Covender has not shown actual innocence in either Case[.]”

Lakeview Loan Servicing, L.L.C. v. Dancy, 9th Dist. Summit No. 27889, 

, ¶ 18

(“[I]t is improper for a trial court to make findings of fact in order to resolve a disputed issue during

a summary judgment proceeding.”).

        {¶30} Upon review of the record, we conclude that the evidence submitted by Mr.

Covender establishes there is a genuine issue of material fact whether he did not commit the

offenses of which he was convicted or that no one committed the offenses. R.C. 2743.48(A)(5).

We, therefore, conclude that the trial court incorrectly granted summary judgment to the State. On

the other hand, because we cannot assume that the affidavits submitted by Mr. Covender are

credible when considering his motion for summary judgment, we conclude that the trial court

correctly denied Mr. Covender’s motion for summary judgment. Mr. Covender’s third assignment

of error is sustained. His fourth assignment of error is overruled.

                                                  III.
                                                14


       {¶31} Mr. Covender’s first, second, and third assignments of error are sustained. His

fourth assignment of error is overruled. The judgment of the Lorain County Court of Common

Pleas is reversed, and this matter is remanded for further proceedings.

                                                                               Judgment reversed,
                                                                              and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT




TEODOSIO, P. J.
CONCURS.

CARR, J.
DISSENTING.
                                                15



       {¶32} I respectfully dissent. Because this Court sua sponte raised the issue of which

version of R.C. 2743.48(A)(4) applies to Covender’s claims under the specific facts of this case, I

would give the parties an opportunity to brief that issue. See State v. Moore, 

,

.


APPEARANCES:

W. SCOTT RAMSEY, Attorney at Law, for Appellant.

DAVE YOST, Attorney General, and THOMAS E. MADDEN, Senior Assistant Attorney
General, for Appellee.