State v. Farris ( 2016 )

[Cite as State v. Farris, 2016-Ohio-5527.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150567
TRIAL NO. B-1501652
Plaintiff-Appellee, :
O P I N I O N.
vs. :
VICTOR FARRIS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Appeal Dismissed
Date of Judgment Entry on Appeal: August 26, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
O HIO F IRST D ISTRICT C OURT OF A PPEALS
M OCK , Judge.
{¶1} Defendant-appellant Victor Farris was originally charged with
robbery for assaulting his father and stealing money from him. After a bench trial,
he was convicted of only misdemeanor assault. The trial court sentenced him to 180
days in the Hamilton County Justice Center and waived costs. Since he had been
held in jail pending the trial, Farris had already served 173 days by the time he
received his sentence. He served the remaining seven days in the Justice Center
without seeking a stay of his sentence from the trial court.
{¶2} Before we can address his assignments of error, we must first
determine whether his appeal is moot. This court lacks jurisdiction to consider the
merits of a case when the sentence has been served voluntarily and no showing of
disability has been made. State v. Berndt, 29 Ohio St. 3d 3, 4, 504 N.E.2d 712 (1987).
Farris argues that his appeal is not moot because he did not serve his sentence
voluntarily and he will suffer collateral consequences as a result of his conviction.
We disagree.
{¶3} Generally speaking, “[w]here a defendant, convicted of a criminal
offense, has voluntarily paid the fine or completed the sentence for that offense, an
appeal is moot when no evidence is offered from which an inference can be drawn
that the defendant will suffer some collateral disability or loss of civil rights from
such judgment or conviction.” State v. Wilson, 41 Ohio St. 2d 236, 325 N.E.2d 236
(1975), syllabus. This rule applies only to misdemeanor convictions, as the Ohio
Supreme Court has held that felony convictions result in collateral disabilities as a
matter of law. See State v. Golston, 71 Ohio St. 3d 224, 643 N.E.2d 109 (1994),
syllabus.
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O HIO F IRST D ISTRICT C OURT OF A PPEALS
{¶4} For this court to have jurisdiction over the appeal, Farris must show
that either he did not serve his sentence voluntarily, or that he will suffer come
collateral disability or loss of civil rights. A defendant can show that he did not serve
a sentence voluntarily if (1) he asked the trial court for a stay of the sentence to allow
for the appeal, see City of Cleveland Hts. v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-
2673, 953 N.E.2d 278, ¶ 23, or (2) he has served the entire sentence prior to his
conviction, precluding him from seeking a stay at the proper time, see State v.
Nelson, 1st Dist. Hamilton No. C-140352, 2015-Ohio-660, ¶ 6, citing State v. Benson,
29 Ohio App. 3d 109, 110, 504 N.E.2d 77 (10th Dist.1986).
{¶5} Since Farris did not ask the trial court for a stay, he has attempted to
argue that he served his sentence involuntarily prior to his conviction pursuant to
Nelson. But, in Nelson, the defendant had served the entire sentence prior to the
conviction that was the subject of the appeal. As this court noted,
a criminal defendant's misdemeanor appeal is not moot where the
record demonstrates that the defendant was imprisoned pending the
outcome of the proceedings on the charges for which he was held, the
trial court sentenced the defendant to time served, and the defendant
did not otherwise voluntarily complete any other part of his sentence.
(Emphasis added.) Nelson at ¶ 6. In contrast, Farris had not served his entire
sentence and could have sought a stay of his sentence before he completed it.
Therefore, Nelson does not apply to this case.
{¶6} In the alternative, Farris argues that he will suffer collateral
consequences as a result of his conviction. But Farris has not cited any particular
consequence that he will actually suffer as a result of his conviction in this case. He
does argue that the conviction might impact his postrelease control that arose from a
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O HIO F IRST D ISTRICT C OURT OF A PPEALS
2005 conviction for robbery. But Farris has presented no evidence that he was
actually on postrelease control as a result of that conviction.
{¶7} Farris also argued generally that there are 199 separate statutory
consequences that could result from this conviction. But he has not demonstrated
that any of those will actually impact him. In fact, as a result of his 2005 robbery
conviction, he was already subject to all but one of those statutory consequences. And
the only one to which he was not already subject does not apply to him because it relates
to a child-custody statute and would only apply if “the victim of the [assault was] the
child [who is the subject of the custody proceedings], a sibling of the child, or another
child who lived in the parent's household at the time of the offense.” See R.C.
2151.419(A)(2). Since the victim of Farris’s assault was his father, that statutory
consequence would not apply.
{¶8} Since Farris has served his sentence in this case, and has not shown that
he did so involuntarily or that he will actually suffer a collateral consequence from his
conviction, we are without jurisdiction to consider his appeal. The appeal is dismissed.
Appeal dismissed.
HENDON, P.J., and CUNNINGHAM, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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