Cleveland v. Harris , 2021 Ohio 305 ( 2021 )

[Cite as Cleveland v. Harris, 2021-Ohio-305.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 108677
v. :
ERNEST C. HARRIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: February 4, 2021
Criminal Appeal from the Cleveland Municipal Court
Housing Division
Case No. 2018 CRB 001309
Appearances:
Ernest C. Harris, pro se.
MARY EILEEN KILBANE, J.:
Defendant-appellant, Ernest C. Harris (“Harris”), appeals from the
decision of the Cleveland Municipal Housing Court that found him in violation of
the terms of his community control sanctions and ordered him to serve 180 days in
jail. For the reasons that follow, we dismiss the appeal as moot.
Factual History
Harris’s community control was originally imposed because a
property associated with Harris, 12826 Marston Avenue, was allegedly in violation
of Cleveland’s housing code. The property was in disrepair — boarded up,
dilapidated, and with multiple other violations. Harris was not paying taxes on the
property and multiple individuals were living in the house, many of whom allegedly
were using drugs. As a result, neighbors had complained and city officials had
gotten involved to petition the Cleveland Municipal Housing Court directly for relief.
However, the property in question does not legally belong to Harris; he does not
have legal title to the property and states that he does not always occupy the
property, instead often living in a homeless shelter. The property previously
belonged to Harris’s family members who are now deceased. The housing court still
imposed community control for the housing code violations, and later found Harris
to be in violation, in part, for not remedying the problems with the property.
On December 19, 2017, Harris was charged for failure to comply with
an order of the Cleveland Building Department, a first-degree misdemeanor
pursuant to Cleveland Codified Ordinances 3103.25(E). According to Harris, the
house had been condemned while he was serving a felony sentence. He returned to
the house to help a childhood friend take care of the property, but she passed away
before the charges were brought.
Harris disputed the charges from the start, and the case was
continued multiple times at Harris’s request. Harris finally appeared for a hearing
on August 30, 2018, at the Cleveland Municipal Housing Court. During the hearing,
the judge informed Harris that he was placing him on five years active community
control and that Harris was to address the multiple violations at the property. The
court was informed by concerned members of the community that multiple people
were living in the home and using drugs on the property. Harris admitted that
people lived in the home, and that he was attempting to help individuals returning
from prison reintegrate into society. Harris also informed the court that he did not
permanently live in the property. The judge informed Harris that he could not use
the property for a “reentry program,” because the property was not zoned for that
sort of facility.
In addition to maintenance of the property, the terms of Harris’s
community control included the requirement that Harris enter into a payment plan
by September 21, 2018, for property taxes, maintenance costs, and utilities. Harris
was also required to ask the court’s permission before allowing any person to stay at
the property. The court also sentenced Harris to 50 hours of court work service.
Finally, the court informed Harris that violation of the terms of his community
control sanctions could result in consequences, including up to 18 months in jail.
A status hearing was scheduled for September 27, 2018; Harris failed
to appear.
Harris was arrested on drug charges on January 16, 2019, and was
held until a community control violation hearing could be held. Harris appeared
before the housing court judge on January 23, 2019.
On January 23, 2019, plaintiff-appellee the city of Cleveland (“the
city”), informed the court that Harris was in violation of the terms of his community
control. Harris had failed to make any payments to the city for property taxes, he
had failed to complete any court community work service hours, and Harris had
allowed individuals to stay at his property without the court’s permission.
The court noted that Harris was convicted of 26 first-degree
misdemeanors and that the court could sentence Harris to up to 18 months in jail,
but the court chose not to. The court found that Harris had not complied with the
terms of his community control; as a result, the court sentenced Harris to 180 days
in jail.
Procedural History
Harris instituted this appeal pro se and requested the appointment of
counsel, which was granted on June 14, 2019. Counsel filed a motion for a limited
remand in order to address sentencing issues that placed the finality of the order in
this appeal in question. Specifically, the entry appealed imposed a blanket sentence
and did not reflect a separate sentence for each of the 26 counts of conviction. The
motion for limited remand was granted and the matter was returned to the
Cleveland Municipal Housing Court on November 11, 2019, for further proceedings.
The lower court was directed to conform the sentencing entry to what was imposed
in open court if separate sentences had been imposed on every count or conduct a
resentencing hearing.
In status updates to this court, counsel represented difficulty reaching
Harris. The docket further indicates that the remand proceedings were extended
due to the trial court’s difficulty perfecting service on Harris. On or about February
13, 2020, the Cleveland Municipal Housing Court terminated the term of
community control sanctions and the case was closed. On March 2, 2020, counsel
reported to this court that while the sentencing issue was not addressed, the trial
court had terminated the probation and closed the case. Counsel asserted there was
not a final, appealable order in this appeal and that completion of the sentence
rendered the instant appeal moot. On March 9, 2020, this court recognized that the
case was closed but allowed the appeal to proceed based on the authority that
termination of probation does not render an appeal moot when the appellant has
suffered a collateral disability or loss of civil rights, citing Lakewood v. Smyczek, 8th
Dist. Cuyahoga No. 108369, 2020-Ohio-271. The court set appellant’s brief deadline
for March 26, 2020. On that day, counsel for Harris filed a motion to continue again
reporting difficulty contacting Harris.
On December 20, 2019, a second attorney had entered an appearance
as “additional counsel” for Harris in this appeal. Both of Harris’s counsel filed
separate Anders briefs that are essentially identical in content. Both attorneys
indicated they had little to no contact with Harris despite diligent efforts to reach
him. Both attempted to determine Harris’s ownership status of property. Appellate
counsel were unable to determine whether Harris suffered collateral damage as a
result of his convictions and sentence in the Housing Court.
Both attorneys moved to withdraw from the case and the motions
were referred to this panel for review. Harris was permitted leave to file a pro se
brief by July 6, 2020. After being granted extensions of time, Harris filed a brief on
August 6, 2020.
There is no appellee brief in this case.
We initially note that the trial court did not address our jurisdictional
concerns on the remand and it remains unsettled whether the trial court ever
imposed separate sentences on each count of conviction. Nonetheless, the trial court
has terminated Harris’s probation and closed the case. Harris has already served
his 180 days in jail and Harris has not informed this court of any collateral
consequences stemming from his convictions and sentence. We cannot examine
whether Harris is suffering any collateral consequences resulting from his
community control. Although we are left with significant concerns as to the
troubling history of this case, there is no relief this court can grant to the narrow
question before us. We dismiss this appeal as moot.
Law and Analysis
Anders Briefs
This court has previously provided clear instruction on what a
compliant brief under Anders v. California, 386 U.S.738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967), requires:
We believe it self-evident that any motion to withdraw as counsel on
grounds that an appeal is wholly frivolous must contain a discussion of
why the appeal is frivolous. At all times, an Anders brief is to support
a motion to withdraw as counsel and, like any other movant, counsel,
in these circumstances bears the burden of showing why the motion
should be granted. The mere representation that an appeal is frivolous
is nothing more than a conclusion that does not carry the burden of
showing why the motion to withdraw as counsel should be granted. To
allow counsel to do nothing more than list potential assignments of
error begs the question of why those potential assigned errors are
frivolous.
It is for this reason that a conforming Anders brief must refer “to
anything in the record that might arguably support the appeal[.]”
McCoy, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440, supra. This is
the only way in which counsel can show that any argument raised on
appeal would lack any basis in law or fact. We therefore find that a
complying Anders brief must not only state any potential assignments
of error that the particular type of case might be expected to involve, it
must include a discussion citing relevant law and facts showing why
those potential assignments are frivolous.
State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 8-9.
Harris has two appellate attorneys on this case — one appointed by
this court to represent Harris as an indigent defendant and another attorney who
entered an appearance as additional counsel for Harris. Neither attorney strictly
complied with Anders requirements.
Counsel must supply this court with a brief that fully examines the
record and provides a thorough explanation as to anything in the record that
supports an argument on appeal. Anders at 744. Both briefs, effectively identical,
relayed that Harris has already served his sentence and stated the belief that there
were no collateral consequences as a result of his community control violation. Both
attorneys stated that Harris is not the owner of the property and therefore could not
suffer any collateral consequences. All of this was presented to the court in a few
short sentences. This level of analysis is insufficient.
While our examination of the record led to the same result counsel
believed it would, the purpose of appointed appellate counsel is to provide indigent
defendants with a full defense, even when submitting an Anders brief. That did not
occur here. Harris has potentially suffered a grave injustice. A casual examination
is insufficient for any indigent client, much less one in Harris’s unique
circumstances. Nonetheless, counsel’s motions to withdraw are rendered moot
based on our finding that the appeal is moot.
Harris’s pro se brief presents no assignments of error for our review.
Harris did not argue that he has suffered any collateral legal consequence as a result
of his community control violation.
Harris argued that he did not violate the terms of his community
control. We are unable to reach the more critical questions of whether Harris should
have been charged with community control in the first place. Our record is limited
to two brief transcripts of two different hearings: one where Harris was charged for
violations of Cleveland’s housing code and community control was imposed and
another hearing where Harris was sentenced to 180 days in jail for violating his
community control. Those transcripts and Harris’s pro se brief do not reveal much
about the underlying housing code violations.
A collateral consequence is an adverse legal consequence of a
conviction or judgment that survives despite the court’s sentence having been
satisfied or served. In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d
408, ¶ 10. Without some collateral consequence to address — when a defendant is
no longer serving his sentence — there is no remedy this court may provide. State
v. Santiago, 8th Dist. Cuyahoga No. 101612, 2015-Ohio-1301, ¶ 9.
We have previously found that violating probation does not
automatically create a collateral consequence, and that the appellant must provide
evidence of a collateral consequences. Smyczek, 8th Dist. Cuyahoga No. 108369,
2020-Ohio-271, ¶ 10. As Harris has not presented this court with any evidence of a
collateral consequence, has served his sentence, and the court has terminated his
probation, we find that there is no remedy we may provide. The appeal is dismissed
as moot. Counsel’s motions to withdraw are denied as moot.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
LARRY A. JONES, SR., P.J., and
LISA B. FORBES, J., CONCUR