Richter v. State

[Cite as Richter v. State, 2026-Ohio-3670.] IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY Arthur N. Richter Court of Appeals No. L-25-00212 Appellant Trial Court No. CI0202204333 v. State of Ohio DECISION AND JUDGMENT Appellee Decided: September 18, 2026 ***** Joseph Sobecki, for appellant. Dave Yost, Ohio Attorney General, and Andrew T. Gatti, Senior Assistant Attorney General, for appellee. ***** ZMUDA, J. I. Introduction {¶ 1} Appellant, Arthur Richter, appeals from the August 26, 2025 judgment of the Lucas County Court of Common Pleas, finding that he was not a wrongfully imprisoned individual, as defined in R.C. 2743.48(A), and dismissing his claim for damages. For the following reasons, we affirm the trial court’s judgment. II. Facts and Procedural Background a. Appellant’s criminal conviction and appeal {¶ 2} The facts underlying this appeal began with appellant’s 2018 convictions for complicity to murder and inciting to violence. State v. Richter, 2019-Ohio-5422, ¶ 14 (6th Dist.) (“Richter I”). Appellant’s convictions arose from a bar fight during which appellant engaged in physical altercation with another patron. During the incident, the other patron struck appellant’s uncle who had come to appellant’s defense. Id. at ¶ 2-5. Appellant’s uncle died from the injuries he suffered during the fight. Id. Appellant was charged with, and convicted of, one count of inciting to violence and one count of complicity to murder. Id. at ¶ 6. We reversed his convictions on December 31, 2019, finding that the State failed to introduce sufficient evidence to prove either offense. Id. at ¶ 48. b. Appellant’s civil complaint and appeal {¶ 3} On November 15, 2022, appellant filed a complaint seeking to be declared a wrongfully imprisoned individual pursuant to R.C. 2743.48(A). Richter v. State, 2025- Ohio-268, ¶ 8 (6th Dist.) (“Richter II”). R.C. 2743.48 establishes a two-step process through which an individual may be deemed a “wrongfully imprisoned individual” eligible to seek damages from the State for that wrongful imprisonment. Id. at ¶ 14. “The first step is an action in the common pleas court seeking a preliminary factual determination of wrongful imprisonment; the second is an action in the Court of Claims 2. to recover money damages.” Id. at ¶ 14. R.C. 2743.48(A) defines a “wrongfully imprisoned individual” as an individual that fulfills the following criteria: (1) The individual was charged with a violation of a section of the Revised Code by an indictment or information, and the violation charged was an aggravated felony, felony, or misdemeanor. (2) The individual was found guilty of, but did not plead guilty to, the particular charge or a lesser-included offense by the court or jury involved, and the offense of which the individual was found guilty was an aggravated felony, felony, or misdemeanor. (3) The individual was sentenced to an indefinite or definite term of imprisonment in a state correctional institution for the offense of which the individual was found guilty. (4) The individual's conviction was vacated, dismissed, or reversed on appeal and all of the following apply: (a) No criminal proceeding is pending against the individual for any act associated with that conviction. *** (5) Subsequent to sentencing or during or subsequent to imprisonment, * * * it was determined by the court of common pleas in the county where the underlying criminal action was initiated either that the offense of which the individual was found guilty, including all lesser-included offenses, was not committed by the individual or that no offense was committed by any person[.] After the parties agreed to stipulations of fact and evidentiary issues including the entire criminal trial record, appellant filed a motion for summary judgment seeking a finding that he met these criteria. Richter II at ¶ 8. The State filed its own motion, citing our conclusion in Richter I that appellant’s behavior during the incident likely constituted criminal conduct, seeking a judgment that appellant did not fulfill the requirements of R.C. 2743.48(A)(5). Id., citing Richter I at ¶ 46. 3.  {¶ 4} The trial court granted the State’s motion and denied appellant’s motion on February 13, 2024. Id. at ¶ 1. In doing so, it determined that because appellant’s conduct during the incident constituted multiple offenses—disorderly conduct, inducing panic, assault, and menacing—that he could not show that he did not commit all lesser-included offenses of inciting to violence. Id. at ¶ 9. Appellant appealed the trial court’s finding. Id. at ¶ 10. Relevant to the present appeal, appellant argued that while the trial court found that he had committed some offenses, it did not address whether they were lesser- included offenses of the complicity to murder or inciting to violence offenses he had been charged with initially. Id. at ¶ 20-21. As a result, he argued that the trial court did not address the requirements of R.C. 2743.48(A)(5). Id. We agreed and, on January 24, 2025, we reversed the trial court’s granting of the State’s motion for summary judgment and remanded the matter for further proceedings. Id. at ¶ 29. c. Judgment on remand and the present appeal {¶ 5} After the Ohio Supreme Court declined jurisdiction of appellant’s appeal of our decision, the matter returned to the trial court pursuant to our remand order. On May 20, 2025, the trial court established a briefing schedule, ordering the parties to “[identify] their respective positions on remand with citation to the trial record where appropriate for determination of issues yet to be decided by this court.” Appellant and the State filed briefs containing their arguments regarding his status as a wrongfully imprisoned individual on July 27, 2025. Richter argued that he met all elements of R.C. 2743.48(A). The State argued that appellant committed two lesser-included offenses to the originally charged offenses—namely, complicity to involuntary manslaughter and disorderly 4. conduct. The State also argued that appellant could not show that he was “actually innocent” because he could not establish that he had not committed any offense through his conduct on the night of the incident. In response, appellant argued that any offenses he may have committed were not lesser-included offenses of his overturned convictions and that his commission of other uncharged offenses did not bar his fulfillment of R.C. 2743.48(A)(5). {¶ 6} On August 26, 2025, without conducting a hearing, the trial court granted judgment in the State’s favor. Relevant to the present appeal, the trial court reviewed our decision in Richter I, finding that despite our having reversed appellant’s conviction for inciting to violence under the criminal standard of proof, that the preponderance of evidence showed that he nonetheless committed that offense. The trial court also held that appellant committed multiple other offenses during his conduct that evening— menacing, disorderly conduct, panic, and assault—and that disorderly conduct was a lesser-included offense of inciting to violence. The court further held that appellant had not shown that he had not committed the remaining offenses. As a result, the trial court held that appellant was not a wrongfully imprisoned individual and granted judgment in the State’s favor. III. Assignments of Error {¶ 7} Appellant timely appealed and asserts the following errors for our review: 1. The trial court erred by determining that there is no dispute of material fact that Richter committed inciting to violence as a matter of law. 2. The trial court erred by finding that disorderly conduct is a lesser included offense of inciting to violence. 5.  3. The trial court erred by dismissing the instant case without a hearing. IV. Law and Analysis {¶ 8} Each of appellant’s assigned errors relate to the trial court’s judgment that appellant was not a wrongfully imprisoned individual as described in R.C. 2743.48(A). Before addressing the merits of the assigned errors, we find it prudent to provide an overview of the process through which the trial court makes that determination and then address the alleged errors within the context of that process. {¶ 9} “The General Assembly has developed a two-step process to compensate those who have been wrongfully imprisoned.” Doss v. State, 2012-Ohio-5678, ¶ 10. “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.” Id. “Under the statutory scheme, a claimant must be determined to be a ‘wrongfully imprisoned individual’ by the court of common pleas before being permitted to file for compensation against the state of Ohio in the Court of Claims.” Id. {¶ 10} A wrongfully imprisoned individual is an individual who satisfies the criteria set forth in R.C. 2743.48(A)(1) through (5). The only criteria in dispute in this appeal is R.C. 2743.48(A)(5), which states that an individual has been wrongfully imprisoned when “it was determined by the court of common pleas in the county where the underlying criminal action was initiated either that the offense of which the individual was found guilty, including all lesser-included offenses, was not committed by the 6. individual or that no offense was committed by any person.” An individual seeking this designation “must affirmatively prove [their] innocence by a preponderance of the evidence.” Doss at ¶ 14. That is, “the General Assembly intended that the court of common pleas actively separate those who were wrongfully imprisoned from those who have merely avoided criminal liability.” Id. “When a court vacates or reverses a criminal conviction based on insufficiency of the evidence, the court is saying that the State has not proven the elements of the offense beyond a reasonable doubt; it is not saying that innocence has been proven.” Id. at ¶ 15. “R.C. 2743.48(A)(5) requires an affirmative showing of innocence beyond proof of an acquittal.” Id. at ¶ 14. {¶ 11} R.C. 2743.48(A)(5) “may be fulfilled in one of two ways: (1) subsequent to sentencing and during or subsequent to imprisonment, ‘an error in procedure resulted in the individual’s release” or (2) the charged offense (and any lesser included offense) was not committed by the individual or no crime was committed at all (actual innocence).” Id. at ¶ 12. In the underlying case, appellant sought a determination that he was actually innocent and, therefore, had been wrongfully imprisoned. The trial court, then, was obligated to conduct a de novo review of any evidence the parties relied on to make that determination without regard to this court’s previous reversal of appellant’s convictions in Richter I. See Doss at ¶ 21. In doing so, the trial court held that appellant had not established his actual innocence under R.C. 2743.48(A)(5) and entered summary judgment against him.1 Appellant now challenges both the procedure through which the 1 The trial court held that appellant committed the inciting to violence offense by inciting violence against his uncle during his altercation with another patron. Under the 7. trial court reached that determination and the merits of that decision. We address appellant’s procedural argument first. a. The trial court did not err by granting judgment in the State’s favor without holding a hearing. {¶ 12} In his third assignment of error, appellant argues that the trial court erred in granting judgment to the State without first conducting a hearing. Specifically, he argues that he was entitled to a hearing to present evidence for the trial court to consider when determining whether he met the requirements of R.C. 2743.48(A)(5). We disagree. procedure outlined in Doss, the trial court’s finding is based on the preponderance of the evidence. As this is a separate standard than the “beyond a reasonable doubt” burden of proof required in criminal prosecutions, the trial court’s finding that appellant had committed the original offense does not run afoul of our reversal of appellant’s conviction for that offense. See Doss at ¶ 17. We note, however, that the trial court’s analysis is in direct contrast to our decision in Richter I. In Richter I, we held that establishing an inciting to violence offense requires the incitement of violence against a third party, not against the inciter, as a matter of law. See also State v. Turner, 2007- Ohio-5449 (8th Dist.) (holding that an inciting to violence offense is limited to incitement against third parties). The trial court’s judgment critiques this conclusion and suggests that there are factual scenarios in which individuals may be held liable for inciting violence against themselves. As described in Turner, recognizing an inciting to violence offense for violence committed against the inciter would create absurd results—for example, charging an individual with inciting another to rape them or charging the wife of an abusive husband with inciting domestic violence against herself by acting in a noncriminal manner her husband does not like. Id. at ¶ 102-103. Further. allowing a “first party” inciting to violence offense could result in charges against an unsympathetic victim of a violent offense when their conduct, although perhaps offensive to general social norms, would not otherwise constitute a criminal offense. For these reasons, we take this opportunity to reaffirm, in accordance with our decision in Richter I, that an inciting to violence offense is limited to instances where the violence was incited against a third party as a matter of law. 8.  {¶ 13} On May 13, 2025, the Ohio Supreme Court declined jurisdiction over appellant’s appeal of our decision in Richter II. The case was remanded to the trial court in accordance with our decision. On May 20, 2025, the trial court ordered the following: The parties are directed to submit supplemental briefing to this court pursuant to the remand of the Sixth District Court of Appeals Decision and Judgment, issued January 24, 2025, identifying respective to their positions on remand with citation to the trial record where appropriate for determination of issues yet to be decided by the trial court. * * * If either party requests a hearing, the request shall be so indicated in the caption of the first respective brief. The trial court’s order did not specify the type of hearing the parties could request—for example, an oral argument or an evidentiary hearing. In his supplemental brief, appellant requested an evidentiary hearing to “call witnesses to prove that he did not commit complicity in the commission of murder and inciting to violence as a matter of law.” The State did not request a hearing. Although it had invited the parties to request a hearing, the trial court granted judgment to the State without honoring appellant’s request. Appellant argues that this constitutes error. {¶ 14} At the time the trial court first granted judgment to the State on February 9, 2024, both parties had filed their own motions for summary judgment. Richter II, 2025- Ohio-268, at ¶ 8. As it was the granting of the State’s motion for summary judgment that we reversed, the trial court was “required to proceed from the point at which [this] error occurred.” Giancola v. Azem, 2018-Ohio-1694, ¶ 21, citing State ex rel. Douglas v. Burlew, 2005-Ohio-4382, ¶ 11. Our remand order, then, required the trial court to continue from the time it had originally ruled on the parties’ motions for summary judgment. 9.  {¶ 15} In their supplemental briefing, the parties again made arguments related to their summary judgment motions. The trial court’s order under review in this appeal granted summary judgment to the State. Therefore, we must determine whether the trial court erred in granting summary judgment without first conducting an evidentiary hearing. Motions for summary judgment are governed by Civ.R. 56. Civ.R. 56(C) states: Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. The rule plainly states what a trial court may consider when ruling on a motion for summary judgment. Moreover, the rule expressly states that no evidence other than that identified in Civ.R. 56(C) may be considered. See Pollard v. Elber, 2018-Ohio-4538, ¶ 21 (6th Dist.) (holding that evidence to be considered in a motion for summary judgment must be the type listed in Civ.R. 56(C) and that “a court may not consider any other types of evidence.”). Evidence presented at a hearing while the motion for summary judgment is pending is not the type of evidence that a trial court can consider pursuant to Civ.R. 56(C). See Hargrove v. Hargrove, 2026-Ohio-2260, ¶ 19 (11th Dist.) (“A trial court is precluded from considering supplemental oral testimony introduced for the first time at a hearing on a motion for summary judgment under Civ.R. 56.”). Put simply, the evidentiary hearing appellant argues the trial court deprived him of when it granted 10. summary judgment to the State would not have introduced evidence the trial court could have considered in resolving the State’s motion for summary judgment. {¶ 16} For these reasons, we find that the trial court did not err in granting the State’s motion for summary judgment without first conducting appellant’s requested evidentiary hearing. To the contrary, the trial court’s resolution of either party’s summary judgment motion based on evidence to be presented at a hearing would have been improper under Civ.R. 56(C). Pollard at ¶ 21. As a result, we find appellant’s third assignment of error not well-taken. b. The trial court did not err in granting summary judgment in the State’s favor. {¶ 17} In appellant’s first assignment of error, he argues that the trial court erred when it found that there was no genuine issue of material fact that he had committed an inciting to violence offense. In his second assignment of error, appellant argues that the trial court erred when it determined that disorderly conduct is a lesser-included offense of inciting to violence. Because these assignments are resolved through the same analysis, we address them together. {¶ 18} The central premise of appellant’s second and third assignments of error is that the trial court erred when it found that appellant did not satisfy the requirements of R.C. 2743.48(A)(5) because the trial court found he had committed the inciting to violence offense and the lesser-included offense of disorderly conduct. The trial court’s judgment, however, was not limited to these findings. The court also held that because appellant had committed other offenses during the underlying incident that he could not 11. satisfy R.C. 2743.48(A)(5)’s requirement that “no offense was committed by any person[.]” As described below, appellant does not assign error to the trial court’s alternative basis for granting judgment to the State based on appellant’s commission of other offenses. Because appellant failed to challenge this alternative basis for the trial court’s judgment in this appeal, we are compelled to affirm that judgment as his success on the assigned errors will not result in a reversal. See Awad v. Lovelace, 2026-Ohio- 2533, ¶ 31 (8th Dist.) (“When a trial court grants judgment on multiple, alternative bases and an appellant does not challenge one of those bases, this court will uphold the judgment on the unchallenged basis.”); Schutte v. Summit Cty. Sheriff’s Office, 2018- Ohio-2565, ¶ 21 (9th Dist.). {¶ 19} Whether R.C. 2743.48(A)(5) requires a defendant to establish that they had not committed any offenses in order to establish their actual innocence was clearly at issue before the trial court. In its supplemental brief, the State argued that because appellant committed multiple offenses during the underlying incident that he could not show that he was actually innocent under that section’s “catch all” provision. That is, because appellant could not show that “no offense was committed by any person,” including himself, that he was not a wrongfully imprisoned individual. Appellant argued that showing no offense was committed by any person was one of three ways in which he could satisfy R.C. 2743.48(A)(5) and did not constitute a “catch all” provision to ensure that individuals who committed any offense could not seek damages for wrongful imprisonment. Instead, he argued that he could satisfy R.C. 2743.48(A)(5) by showing that he had not committed the originally charged offenses or any of their lesser-included 12. offenses without establishing the remaining criteria.2 The trial court, considering this dispute an issue of first impression, agreed with the State and held that because appellant had not shown that he did not commit any offense, that he had not shown his actual innocence and, therefore, was not a wrongfully imprisoned individual as described in R.C. 2743.48(A)(5). {¶ 20} Despite raising this issue with the trial court, and the trial court finding that appellant’s commission of other offenses was an alternative basis on which to grant judgment to the State, appellant does not challenge that finding in this appeal. As a result, even if he was to succeed on his assigned errors, we would still be required to affirm the trial court’s judgment on the unchallenged, alternative basis on which summary judgment was granted. See Awad at ¶ 31 Schutte at ¶ 21. Therefore, since appellant failed to assign error to the trial court’s alternative basis on which it granted judgment, we find his first and second assignments of error not well-taken. 3 2 The “third way” appellant argued he could satisfy R.C. 2743.48(A)(5) is to show that an error in procedure resulted in his release. The “procedural error” designation allows an individual to establish that they were released from prison as the result of a “violation of the Brady Rule[.]” R.C. 2743.48(A)(5). Appellant was not released from prison for such a violation and that issue is not before us. 3 We note that the parties spent a portion of their briefs—the State in its brief, appellant in his reply brief—renewing their arguments on their interpretation of R.C. 2743.48(A)(5). Because this issue is not before us, we decline to address these arguments. 13.  V. Conclusion {¶ 21} For these reasons, we find appellant’s first, second, and third assignments of error not well-taken and we affirm the August 26, 2025 judgment of the Lucas County Court of Common Pleas. {¶ 22} Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4. Thomas J. Osowik, P.J. JUDGE Gene A. Zmuda, J JUDGE Myron C. Duhart, J CONCUR. JUDGE This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/. 14.