State v. Smith , 2020 Ohio 6645 ( 2020 )

[Cite as State v. Smith, 2020-Ohio-6645.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28794
:
v. : Trial Court Case No. 2018-CR-2978
:
DAMON B. SMITH : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 11th day of December, 2020.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. No. 0080433, P.O. Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Damon B. Smith appeals from his conviction for disorderly conduct, a fourth-
degree misdemeanor. He was sentenced to community control, which was immediately
terminated. No fine was imposed and court costs were waived. His appellate counsel filed
a brief under the authority of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493 (1967), asserting the absence of any non-frivolous issues for appeal and asking
permission to withdraw as counsel. By entry filed August 27, 2020, we notified Smith
that his counsel found no meritorious claims to present on appeal and granted him 60
days to file a pro se brief assigning any errors for review. He has not filed a brief.
I. Procedural History
{¶ 2} Smith was indicted on September 17, 2018 on one count of violation of a
protection order, a fifth-degree felony due to a prior conviction for that offense.
Considerable delay ensued while Smith appealed his prior conviction. That appeal was
dismissed as moot on September 6, 2019. State v. Smith, 2d Dist. Montgomery No.
27981, 2019-Ohio-3592. The Ohio Supreme Court declined to accept that case for review
on February 12, 2020.
{¶ 3} On April 9, 2020, a bill of information was filed charging Smith with one count
of disorderly conduct as a fourth-degree misdemeanor. On April 22, 2020, Smith
appeared in court with counsel, was fully advised of his rights regarding the bill of
information, and waived those rights and agreed to enter a no contest plea to the
information. After a complete Crim.R. 11 colloquy, Smith knowingly, intelligently and
voluntarily pled no contest to the charge of disorderly conduct “by making unreasonable
noise or an offensively coarse utterance, gesture, or display or communicating
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unwarranted and grossly abusive language to any person and the offender persisted in
this disorderly conduct after reasonable warning or request to desist.” Bill of Information
p. 1. See also R.C. 2917.11(A)(2) and E(3)(a). With apparent agreement and
understanding of all concerned, the original charge was dismissed, Smith was
immediately sentenced to community control, community control was then
administratively terminated, no fine was imposed and court costs were waived.
Potential Assignment of Error
{¶ 4} Smith’s attorney’s brief suggests that a potential assignment of error could
be whether the record contained evidence in support of the disorderly conduct charge.
The brief states that Smith’s plea “was unrelated to the offense that occurred,” which was
the indicted charge of violation of a protective order. Nonetheless, counsel concluded this
potential assignment of error did not have arguable merit. We agree.
{¶ 5} R.C. 2937.07 provides that a trial court accepting a no contest plea in a
misdemeanor case is required to hear an “explanation of the circumstances of the
offense” and then determine whether the facts are sufficient to convict on the
misdemeanor offense. See State v. Adams, 2d Dist. Montgomery No. 22493, 2009-Ohio-
2056, ¶ 14. In this case, separate and apart from the bill of information which specified
the disorderly conduct charge, the State provided to the court a two-page police report
detailing the event in question. The court made a “finding of guilt based on the facts in
the bill of information, the plea itself, as well as the incident report.” Transcript of
Plea/Sentencing at 13. Accordingly, R.C. 2937.07 has been satisfied and the suggested
potential assignment of error has no merit and would be frivolous.
II. Analysis
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{¶ 6} We have performed our duty to independently conduct a thorough and
complete examination of all the proceedings to decide whether this appeal is wholly
frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988), citing
Anders, 386 U.S. at 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493.
{¶ 7} Our review included scrutiny of the entire record, including the docketed
filings, and the plea and sentencing hearing transcripts. We agree with appointed
counsel's assessment that there are no appealable issues with arguable merit. The trial
court conducted a thorough and complete Crim.R. 11 plea hearing and concluded that
Smith knowingly, voluntarily, and intelligently waived his rights and entered his plea.
There is no evidence to the contrary.
III. This appeal is moot
{¶ 8} In Smith’s previous case, we stated:
“The role of courts is to decide adversarial legal cases and to issue
judgments that can be carried into effect.” Cyran v. Cyran, 152 Ohio St. 3d
484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9, citing Fortner v. Thomas, 22 Ohio
St.2d 13, 14, 257 N.E.2d 371 (1970). “Under the mootness doctrine,
American courts will not decide cases in which there is no longer an actual
legal controversy between the parties.” Id., citing In re A.G., 139 Ohio St. 3d
572, 2014-Ohio-2597, 13 N.E.3d 1146, ¶ 37. “Thus, when parties ‘lack a
legally cognizable interest in the outcome,’ a case becomes moot.” Id.,
quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S. Ct. 1944, 23
L. Ed. 2d 491 (1969).
“It is well settled that ‘where a criminal defendant, convicted of a
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misdemeanor, voluntarily satisfies the judgment imposed upon him or her
for that offense, an appeal from the conviction is moot unless the defendant
has offered evidence from which an inference can be drawn that he or she
will suffer some collateral legal disability or loss of civil rights stemming from
that conviction.’ ” City of Dayton v. Elifritz, 2d Dist. Montgomery No. 19603,
2004-Ohio-455, ¶ 4, quoting State v. Golston, 71 Ohio St. 3d 224, 226, 643
N.E.2d 109 (1994), citing State v. Wilson, 41 Ohio St. 2d 236, 325 N.E.2d
236 (1975), and State v. Berndt, 29 Ohio St. 3d 3, 504 N.E.2d 712 (1987).
State v. Smith, 2d Dist. Montgomery No. 27981, 2019-Ohio-3592, ¶ 8-9.
{¶ 9} Smith does not offer any indication that his disorderly conduct conviction will
result in a collateral disability or loss of civil rights. Further, our independent review reveals
no collateral consequence or loss of civil rights. Therefore, the appeal is moot.
Conclusion
{¶ 10} Although ordinarily we would find that Smith’s appeal is frivolous on the
merits, the appeal is entirely moot and is also frivolous for that reason. We grant counsel’s
request to withdraw. Smith’s appeal is dismissed as moot.
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TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Kirsten Knight
Hon. Steven K. Dankof