State v. Mills , 2022 Ohio 369 ( 2022 )

[Cite as State v. Mills, 2022-Ohio-369.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Craig R. Baldwin, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
JOHN CLINTON MILLS, SR., : Case No. 2021 CA 0054
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2006 CR 0843
JUDGMENT: Dismissed
DATE OF JUDGMENT: February 8, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP CARLY M. EDELSTEIN
Prosecuting Attorney Assistant State Public Defender
Richland County 250 East Broad Street, Suite 1400
Columbus, Ohio 43215
By: VICTORIA E. MUNSON
Assistant Prosecuting Attorney
38 South Park Street, Second Floor
Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0054 2
Baldwin, P.J.
{¶1} Appellant, John Clinton Mills, Sr, appeals from the June 21, 2021 decision
of the Richland County Court of Common Pleas denying his motion to waive or modify
appointed counsel fees.
STATEMENT OF FACTS AND THE CASE
{¶2} A statement of the facts underlying appellant’s conviction is unnecessary
for our disposition of this appeal.
{¶3} On April 4, 2007 Mills plead guilty to possession of drugs in violation of R.C.
2925.11(A) and he was sentenced to nine months in prison and five years of post release
control. The trial court delivered a statement seeking payment of costs and fees to Mills
on April 9, 2007. An updated statement was sent on July 20, 2007 but no payment was
received. Additional statements were sent on July 22, 2019 and August 22, 2019 but
were returned for lack of a correct address. The matter was sent to collection and Mills
was located.
{¶4} Mills filed a pro-se motion to waive fees and costs on April 9, 2021, the state
responded on May 19, 2021 and Mills, represented by counsel, filed a reply on June 1,
2021. On June 21, 2021, the trial court dismissed the motion concluding that it was barred
by res judicata.
{¶5} Mills filed a timely appeal and submitted two assignments of error:
{¶6} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED MR.
MILLS' MOTION TO WAIVE COSTS ON RES JUDICATA GROUNDS.”
{¶7} “II. THE COURT ERRED BY FAILING TO REVIEW COSTS, FOLLOWING
MR. MILLS' MOTION, ON THE BASIS OF RES JUDICATA, WHICH VIOLATED THE
Richland County, Case No. 2021 CA 0054 3
EQUAL PROTECTION CLAUSES OF THE UNITED STATES AND OHIO
CONSTITUTIONS BY ELIMINATING THE REQUIRED PROTECTIONS FOR
REVIEWING COSTS AT THE TIME OF ENFORCEMENT.”
{¶8} The matter was scheduled for oral argument on December 9, 2021, but, on
October 17, 2021, Mills passed away. The state filed a suggestion of death on
November 3, 2021 and counsel for Mills filed a suggestion of death on November 24,
2021. Neither party has moved this court to substitute the estate or any person for the
decedent in this case.
{¶9} The matter came before us for oral argument on December 9, 2021 and this
court granted the parties leave to file supplemental briefs addressing “whether this matter
is moot and should be dismissed due to the death of the Appellant.” (Magistrate Order,
Dec. 14, 2021). The parties have filed supplemental briefs regarding this question and
the matter is before this court for consideration.
ANALYSIS
{¶10} Appellant’s counsel urges this court to find that the matter is not moot simply
because the appellant has passed and that a motion to substitute a party may be made
sometime in the future. Mills passed away on October 17, 2021, one hundred seven days
ago, the first suggestion of death was filed over ninety days ago, and no motion to
substitute a party for the decedent has been filed by either party. Appellant’s counsel has
not indicated when or if such a motion will be filed aside from stating that the decedent’s
“estate may still file a motion substituting the parties within a reasonable time.”
(Supplemental Brief of Appellant John Clinton Mills, Sr, Jan. 20, 2022, p.3).
Richland County, Case No. 2021 CA 0054 4
{¶11} Appellant’s counsel also provides no insight or argument regarding a
definition of “reasonable time” aside from a reference to the holding of Hackett & Arnold,
Inc. v. Notash, 8th Dist. Cuyahoga No. 56736, 1990 WL 37422, *2. In that case the Eighth
District Court of Appeals found that it was not bound by the ninety-day time limit of Civ.R.
25, but instead must follow App.R. 29 as interpreted by the Supreme Court of Ohio in
McGettrick, supra, which allows for substitution within a “reasonable time.” In Hackett &
Arnold, Inc a motion for substitution was filed in November 1989 after the notification of
death of appellant in June 1989, well outside the time limit, but the court noted that:
the delay in filing the substituted party was a result of the inability to locate
the decedent's will for submission to probate court. This lengthened the time
for appointment of the decedent's wife as administrator. Once the
administrator was officially appointed by the probate court, appellant's
counsel filed a motion for substitution. We find said substitution to have
occurred within a reasonable time.
Hackett & Arnold, Inc., supra at *2.
{¶12} In the case before us, no motion to substitute has been filed, no explanation
for the delay has been offered and no prediction as to when or if a motion to substitute
will be filed has been provided. While the holding of Hackett & Arnold, Inc. supports the
proposition that a reasonable time can be more than ninety days in the context of this
case, we do not find that it supports the indefinite and unsupported delay that has been
requested.
{¶13} Appellate Rule 29(A) states in pertinent part: “If a party dies after a notice
of appeal is filed or while a proceeding otherwise pending in the court of appeals, the
Richland County, Case No. 2021 CA 0054 5
personal representative of the deceased party may be substituted as a party on motion
filed by the representative, or by any party, with the clerk of the court of appeals. * * * *.”
{¶14} The Ohio Supreme Court construed App.R. 29(A) in the context of a criminal
appeal thusly:
When a criminal defendant-appellant dies while his appeal is
pending and, subsequently, within a reasonable time, a personal
representative of the decedent is appointed, that representative may be
substituted as a party on motion by the decedent's representative or the
state under the then existing style of the case, and the court of appeals shall
proceed to determine the appeal. Absent such a motion, filed within a
reasonable time by the state, for substitution of a party, the court of
appeals may dismiss the appeal as moot, vacate the original judgment
of conviction and dismiss all related criminal proceedings, including
the original indictment. (App. R. 29[A], construed and applied).
State v. McGettrick, 31 Ohio St.3d 138, 509 N.E.2d 378, paragraph one of the syllabus.
(Emphasis added.)
{¶15} In the instant case, no motion has been made for substitution of a party.
This court made its concerns clear during oral argument and allowed the parties to brief
the issue of whether the matter should be considered moot. Appellant counsel’s response
is a request for a reversal of the trial court’s decision and an indefinite extension of time
within which a motion to substitute may be filed. While we agree that the death of a party
does not mandate the dismissal of the matter, in the circumstances of this case we feel
that the facts support the exercise of our discretion to find the matter moot for lack of filing
Richland County, Case No. 2021 CA 0054 6
of a motion to substitute a party within a reasonable time. Murtha v. Dyer, 12th Dist.
Warren No. CA2012-11-120, 2013-Ohio-2970, ¶ 6; Mesaros v. Mesaros, 5th Dist. Stark
No. 2007CA00284, 2008-Ohio-2579, ¶ 11.
{¶16} This appeal is dismissed.
By: Baldwin, P.J.
Hoffman, J. and
Delaney, J. concur.