State v. Massie , 2019 Ohio 2464 ( 2019 )

[Cite as State v. Massie, 2019-Ohio-2464.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 2018-CA-3 and
: 2018-CA-5
v. :
: Trial Court Case Nos. 2017-CRB-4293
ALLAN W. MASSIE, JR. : and 2017-CRB-4227
:
Defendant-Appellant : (Criminal Appeal from Municipal Court)
:
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OPINION
Rendered on the 21st day of June, 2019.
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MARC T. ROSS, Atty. Reg. No. 0070446, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
KAREN S. MILLER, Atty. Reg. No. 0071853, P.O. Box 341274, Beavercreek, Ohio 45434
Attorney for Defendant-Appellant
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WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Allan W. Massie, Jr., appeals from a judgment of the
Clark County Municipal Court, which imposed maximum, consecutive sentences after he
pled guilty to two counts of theft. Massie claims the trial court erred in imposing
maximum, consecutive sentences and in failing to afford him his right to allocution at
sentencing. Massie further contends that he has been denied his right to a meaningful
appeal since there is no record of the plea and sentencing hearing available for this court
to review. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On December 27, 2017, Massie pled guilty to two counts of first-degree
misdemeanor theft in violation of R.C. 2913.02(A)(1). One count was charged under
Clark M.C. No. 2017-CRB-4227 and the other count was charged under Clark M.C. No.
2017-CRB-4293. The trial court accepted Massie’s guilty pleas and sentenced him to
180 days in jail for each theft offense. The trial court ordered the 180-day jail sentences
to be served consecutively to each other and consecutively to another 180-day jail
sentence that was imposed in a third, unrelated case that is not part of this appeal, Clark
M.C. No. 2017-CRB-2546. Massie appealed from the judgments in all three cases. The
appeals in Case Nos. 2017-CRB-4227 and 2017-CRB-4293 were consolidated, while the
appeal in Case No. 2017-CRB-2546 was dismissed.
{¶ 3} On January 5, 2018, Massie’s trial counsel filed a request for the clerk of
court to transmit the record on appeal to this court. In response to the request, the trial
court’s official court reporter filed a statement indicating that there was no recording of
Massie’s December 27, 2017 plea and sentencing hearing due to a malfunction of the
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court’s digital recording device. Over the next three months, no action was taken by
Massie to file the record on appeal.
{¶ 4} On April 4, 2018, Massie was appointed appellate counsel. Upon being
appointed, Massie’s appellate counsel filed an additional request for the court reporter to
prepare a transcript of the trial court proceedings. However, no other action was taken
to file the record on appeal. As a result, on May 31, 2018, this court issued an order for
Massie to show cause why his appeal should not be dismissed for his failure to file the
record on appeal.
{¶ 5} On June 18, 2018, Massie’s appellate counsel responded to the show cause
order and indicated that the record on appeal had not been filed because there was no
transcript of the proceedings due to the malfunction of the trial court’s recording device.
Massie’s counsel also requested a 30-day extension to file a statement of the proceedings
in lieu of a transcript as permitted by App.R. 9(C) and (D).
{¶ 6} On June 28, 2018, this court granted the requested 30-day extension and
found that the show cause order had been satisfied. Massie was therefore ordered to
file the record on appeal on or before July 13, 2018. Massie, however, did not meet the
stated deadline. As a result, on August, 13, 2018, this court filed another order for
Massie to show cause why his appeal should not be dismissed. A month later, the clerk
of court filed a notice indicating that the record on appeal had been filed.
{¶ 7} After the record on appeal was filed, Massie’s counsel requested a 20-day
extension to file an appellate brief. This court granted the requested extension and
ordered Massie to file his appellate brief on or before October 22, 2018. Massie,
however, did not meet that deadline either. Because Massie failed to file an appellate
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brief by the stated deadline, on November 5, 2018, this court filed a notice of intent to
remove Massie’s appellate counsel. In the notice, we gave Massie’s counsel 14 days to
either file a brief or to show cause in writing why the matter should be not dismissed for
the failure to file a brief.
{¶ 8} On November 16, 2018, Massie’s counsel filed a response indicating that the
delay in filing a brief was due to there being no transcript of Massie’s plea and sentencing
hearing. In the response, counsel once again requested additional time to prepare a
statement of what transpired at the plea and sentencing hearing. Approximately three
weeks later, on December 4, 2018, this court sustained the requested extension and gave
Massie 30 days to file his appellate brief.
{¶ 9} Despite this extension, no statement or brief was ever filed. Rather, on
January 15, 2019, counsel filed in this court a “Motion to Modify Sentence/Motion for
Remand.” As part of that motion, counsel asked this court for an order modifying the trial
court’s sentence and releasing Massie from jail. Alternatively, counsel asked this court
for an order remanding the matter to the trial court “for further proceedings.” The motion
also indicated that counsel could not formulate an App.R. 9(C) or (D) statement of the
proceedings after communicating with the prosecutor, Massie’s defense counsel, and the
trial court.
{¶ 10} On January 28, 2019, this court overruled the “Motion to Modify
Sentence/Motion for Remand” and removed appellate counsel from Massie’s case. In
doing so, we noted that the appeal had been pending for more than a year with very little
progress on the record issue. We also noted that despite multiple extensions, the case
had remained in limbo, and that new appellate counsel would be appointed to Massie.
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{¶ 11} On February 1, 2019, this court appointed Massie with a new appellate
counsel. Shortly after the appointment, Massie’s new counsel filed an appellate brief.
Massie’s counsel also filed a motion to expedite the appeal on grounds that the appeal
was at risk of becoming moot since Massie was scheduled to be released from jail on
April 18, 2019. In the motion, Massie’s counsel explained that the appeal had lingered
for over a year due to prior counsel’s repeated requests for continuances and efforts to
create a record.
{¶ 12} On March 15, 2019, we overruled Massie’s motion to expedite his appeal.
Even an expedited schedule at that point would not have had the case submitted before
Massie’s release on April 18, 2019. The appeal was then submitted for this court’s
review on June 4, 2019, without the benefit of a transcript or an App.R. 9(C) or (D)
statement. In support of his appeal, Massie raises three assignments of error for review.
First Assignment of Error
{¶ 13} Under his first assignment of error, Massie contends the trial court erred in
imposing maximum, consecutive jail sentences for his theft offenses in Case Nos. 2017-
CRB-4227 and 2017-CRB-4293. According to Massie, the sentences imposed by the
trial court were excessive in light of his offenses. There is, however, no dispute that
Massie has already served the sentences at issue and was released from jail during the
pendency of this appeal.
{¶ 14} “[I]f an individual has already served his sentence and is only questioning
whether or not the sentence was correct, there is no remedy that can be applied that
would have any effect in the absence of a reversal of the underlying conviction.” (Citation
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omitted.) State v. Dixon, 2d Dist. Miami No. 2018-CA-8, 2019-Ohio-299, ¶ 14. “ ‘Once
a person has served the sentence imposed, in the absence of a challenge to the
underlying conviction, there is neither a collateral disability nor a loss of civil rights that
can be remedied by a modification of the length of that sentence.’ ” Id., quoting State v.
Wright, 8th Dist. Cuyahoga No. 83781, 2004-Ohio-4077, ¶ 19. (Other citation omitted.)
“In other words, there is no justiciable issue remaining for resolution.” Id.
{¶ 15} In this case, because Massie has already completed his jail time, we have
no ability to provide him with any meaningful relief on his challenge to the length of his
sentences. Simply put, “[w]e cannot restore to him any of the time he spent in jail on this
conviction.” State v. MacConnell, 2d Dist. Montgomery No. 25437, 2013-Ohio-4947, ¶ 9.
Consequently, Massie’s first assignment of error has been rendered moot by the
completion of his jail sentences. See, e.g., State v. Ingledue, 2d Dist. Clark No. 2018-
CA-47, 2019-Ohio-397, ¶ 10; State v. Johnson, 2d Dist. Montgomery No. 27140, 2017-
Ohio-4323, ¶ 9; State v. Robinson, 2d Dist. Montgomery Nos. 26712, 26713, 2016-Ohio-
3277, ¶ 4.
{¶ 16} Massie’s first assignment of error is overruled as moot.
Second Assignment of Error
{¶ 17} Under his second assignment of error, Massie contends the trial court erred
by failing to afford him the right to allocution as required by Crim.R. 32(A)(1). “The plain
language of Crim.R. 32(A)(1) imposes a mandatory duty upon the trial court to
unambiguously address the defendant and provide him or her with the opportunity to
speak before sentencing.” (Citation omitted.) State v. Collier, 2d Dist. Clark Nos. 2006
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CA 102, 2006 CA 104, 2007-Ohio-6349, ¶ 92. This rule applies to both misdemeanor
and felony convictions. State v. Cantrell, 2d Dist. Champaign No. 2014-CA-19, 2015-
Ohio-1936, ¶ 4, citing Collier at ¶ 92.
{¶ 18} “Where the record shows that the court did not afford the right of allocution,
and where this is the only error in the record, the finding of guilt is not reversed, but instead
the cause is remanded to the trial court for the sole purpose of resentencing.” (Citation
omitted.) State v. Conkle, 2d Dist. Montgomery Nos. 24161, 24163, 2012-Ohio-1772,
¶ 41. Accord Cantrell at ¶ 4. Therefore, if the trial court failed to afford Massie his right
to allocution, the failure would not affect his conviction. Massie’s relief would be limited
to a resentencing.
{¶ 19} In arguing that he was not afforded the right to allocution, Massie notes that
there is no transcript of the sentencing hearing for this court to review. Massie, however,
overlooks the fact that it was his duty to provide a complete record for appeal. State v.
Thompson, 2d Dist. Montgomery No. 22984, 2010-Ohio-1680, ¶ 235; Knapp v. Edwards
Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384 (1980). Although no transcript
was available in this case, “App.R. 9 provides a process by which a statement of the
evidence may be created to cure the defect of the lack of an entire transcript[.]” State v.
Lewis, 2d Dist. Montgomery No. 23850, 2011-Ohio-1411, ¶ 28.
{¶ 20} App.R. 9(C) provides that “[i]f no recording of the proceedings was made,
* * * the appellant may prepare a statement of the evidence or proceedings from the best
available means, including the appellant’s recollection.” The rule requires the appellant
to serve the statement on the appellee and the appellee may thereafter serve the
appellant with any objections or proposed amendments to the statement. The statement
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and any objections or proposed amendments must then be submitted to the trial court for
settlement and approval before it is certified as the record on appeal.
{¶ 21} In addition, App.R. 9(D) provides that the parties “may prepare and sign a
statement of the case showing how the issues raised in the appeal arose and were
decided in the trial court[.]” The agreed statement contemplated in App.R. 9(D) also
needs to be approved by the trial court before it is certified as the record on appeal.
{¶ 22} In this case, we provided Massie with multiple extensions of time to file a
statement as permitted by App.R. 9(C) or (D), yet Massie never filed such a statement.
Massie contends that he was unable to comply with App.R. 9(C) or (D) because none of
the parties have any recollection as to what transpired at his plea and sentencing hearing.
Massie asserts that his appellate counsel attempted, without success, to contact the
public defender and prosecutor who handled his case. Massie also claims the
prosecutor’s office had no files on his case.
{¶ 23} Even if Massie’s claims are true, and even if the trial court had failed to
afford Massie his right to allocution, the allocution issue is rendered moot because Massie
has completed his jail sentences. As previously discussed, “ ‘[t]his court cannot grant
relief to an appellant who has served his sentence if the underlying conviction is not at
issue.’ ” State v. Bair, 2d Dist. Champaign No. 2011-CA-8, 2011-Ohio-6798, ¶ 6, quoting
State v. Johnson, 11th Dist. Lake No. 2005-L-208, 2007-Ohio-780, ¶ 7. (Other citations
omitted.) Because the allocution error does not affect Massie’s conviction, only his
sentence, this court cannot grant Massie any relief since his sentence has already been
completed. Contrast Cantrell, 2d Dist. Champaign No. 2014-CA-19, 2015-Ohio-1936, at
¶ 5 (finding the issue of allocution was not rendered moot by defendant serving his 30-
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day jail sentence where the trial court had suspended 150 days, which were still subject
to allocution since the defendant had yet to pay his fine and complete his community
control).
{¶ 24} Massie’s second assignment of error is overruled as moot.
Third Assignment of Error
{¶ 25} Under his third assignment of error, Massie contends that he has been
denied the right to a meaningful appeal because there is no transcript of his plea and
sentencing hearing for this court to review. However, as noted above, it was Massie’s
duty to complete the record on appeal and he failed to use the mechanisms provided in
App.R. 9(C) or (D) to make a record when there is no transcript available. See State v.
Skaggs, 53 Ohio St. 2d 162, 163, 372 N.E.2d 1355 (1978) (appellant has the burden to
show the relevance of omissions in the record and to use the provisions of App.R. 9).
Accord State v. Rayburn, 4th Dist. Gallia No. 89 CA 14, 1990 WL 127037, *1 (Aug. 22,
1990).
{¶ 26} Even when taking into account Massie’s explanation for not complying with
App.R. 9(C) and (D), the fact remains that Massie was not prejudiced by this court’s
inability to review a transcript of the proceedings. This is because all the claims raised
in Massie’s appeal are moot as a result of the completion of Massie’s sentence. We
stress that Massie did not challenge his conviction on appeal or even allege that the lack
of a transcript prevented him from challenging his conviction. Rather, Massie only
challenged aspects of his already-completed sentence and specifically requested this
court to vacate his sentence. Because any claim pertaining to Massie’s sentence is now
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moot, a transcript of the change of plea and sentencing hearing would not have advanced
Massie’s appeal in any respect. For this reason, Massie’s claim that he was denied a
meaningful appeal as a result of there being no transcript lacks merit.
{¶ 27} We note that Massie also claims he was prejudiced by his first appellate
counsel’s inability to provide this court with an App.R. 9(C) or (D) statement after the
passage of almost nine months. The present appeal, however, is not the correct avenue
for Massie to raise complaints with regard to his first appellate counsel’s performance.
“ ‘When an appeal is taken from a final judgment, only the judgment appealed from is
brought before the appellate court, and upon review, the appellate court will affirm, modify
or reverse the judgment appealed from.’ ” State v. White, 2018-Ohio-2573, 115 N.E.3d
878, ¶ 25 (2d Dist.), quoting In re J.L., 2d Dist. Montgomery No. 26938, 2016-Ohio-5649,
¶ 19. Therefore, this court only has jurisdiction to affirm, modify or reverse Massie’s
judgment of conviction and sentence. The performance of Massie’s appellate counsel is
not part of this court’s review on direct appeal.
{¶ 28} Massie’s third assignment of error is overruled.
Conclusion
{¶ 29} Having overruled all assignments of error raised by Massie, the judgment
of the trial court is affirmed.
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DONOVAN, J. and HALL, J., concur.
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Copies sent to:
Marc T. Ross
Karen S. Miller
Hon. Denise L. Moody