State v. Kinnison ( 2011 )

[Cite as State v. Kinnison, 2011-Ohio-6324.]
IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 1
v. : T.C. NO. 09CR100
HERMAN E. KINNISON II : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of December , 2011.
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R. KELLY ORMSBY III, Atty. Reg. No. 0020615, Prosecuting Attorney, Darke County
Courthouse, Third Floor, Greenville, Ohio 45331
Attorney for Plaintiff-Appellee
WILLIAM F. OSWALL JR., Atty. Reg. No. 0080597, 810 Sycamore Street, Fifth Floor,
Cincinnati, Ohio 45202
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} In October 2009, Herman E. Kinnison II pled guilty in the Darke County
Court of Common Pleas to one count of trafficking in marijuana, a fifth degree felony. At
the plea hearing, Kinnison also admitted that he violated his community control in another
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case by committing the trafficking offense.
{¶ 2} The plea agreement for the trafficking in marijuana charge provided that
“[t]he Defendant shall plead guilty as charged and shall be free to argue the appropriate
sentence. The State shall recommend a prison term of six (6) months, a fine of $250,
restitution, and court costs.” At the beginning of the plea hearing, defense counsel informed
the court that the State would recommend that Kinnison receive six months in prison for
both the community control violation and the trafficking in marijuana offense, to be served
concurrently. The trial court told Kinnison that “there was a frank discussion back in
chambers relatively blunt that community control sanctions wasn’t working out. *** [I]n this
case I entered [into] discussion with the two attorneys that if there was a guilty plea on Case
100 [the trafficking in marijuana charge], that the disposition on both of those cases would
be six months concurrent. ***”
{¶ 3} The trial court informed Kinnison that, if he entered a guilty plea, he would
serve “six months of incarceration starting today” and that “it was meant to be an agreement
or three-way binding contract between the defense, the State and the Court.” Kinnison
proceeded to plead guilty to trafficking in marijuana and to admit to the community control
violation. During the plea colloquy, Kinnison stated that he understood the “three-way
agreement” and that he could ask for his plea to be set aside if the court did not impose the
agreed sentence.
{¶ 4} After Kinnison entered his pleas, the trial court sentenced Kinnison to six
months in prison for trafficking in marijuana (to be served concurrently with the six-month
sentence for violating his community control), ordered him to pay restitution and court costs,
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and suspended his driver’s license for six months. Kinnison did not seek a stay of his
sentence.
{¶ 5} In this delayed appeal, Kinnison claims that the trial court “erred by imposing
a sentence that is not supported by the findings in the record.” He argues that, “[i]f the trial
court had known more about *** Kinnison and his lack of prior treatment[,] the court may
have been more inclined to community control sanctions and not the imposition of prison
time.” Kinnison relies on facts that he presented to the court in a motion for judicial
release, which was filed after Kinnison was sentenced and sent to prison.
{¶ 6} We need not address Kinnison’s argument, because we cannot reverse
Kinnison’s sentence and remand for resentencing. “This court cannot grant relief to an
appellant who has served his sentence if the underlying conviction is not at issue.” State v.
Johnson, Lake App. No. 2005-L-208, 2007-Ohio-780, ¶7. See, also, State v. Money, Clark
App. No. 2009 CA 119, 2010-Ohio-6225, ¶25; State v. Silvers, Clark App. No. 2009 CA19,
2010-Ohio-567, ¶4 (taking judicial notice that defendant’s name did not appear on the
ODRC website and overruling defendant’s challenge to his sentence as moot); State v.
Crockran, Clark App. No. 2005 CA 18, 2006-Ohio-3192, ¶7.
{¶ 7} Kinnison did not seek a stay of his prison sentence on the trafficking in
marijuana charge, and he was sent to prison in October 2009, as reflected by the Sheriff’s
Return on the Warrant to Convey Kinnison to prison and Kinnison’s subsequent motions for
judicial release. Kinnison’s six-month sentence was due to expire in April 2010. As of
this date, the Ohio Department of Rehabilitation and Correction’s website does not list him
as an inmate. Because Kinnison has completed his term of imprisonment, his challenge to
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his prison sentence is moot, and we must dismiss the appeal on that basis.
Appeal dismissed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
R. Kelly Ormsby III
William F. Oswall Jr.
Hon. Jonathan P. Hein