State v. Lowery

[Cite as State v. Lowery, 2016-Ohio-7701.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
STATE OF OHIO, :
: Case No. 16CA3533
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
MYRA R. LOWERY, :
:
Defendant-Appellant. : Released: 11/09/16
_____________________________________________________________
APPEARANCES:
Aaron M. McHenry, Chillicothe, Ohio, for Appellant.
Sherri K. Rutherford, City of Chillicothe Law Director, and Benjamin A.
Sigall, City of Chillicothe Assistant Law Director, Chillicothe, Ohio, for
Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Myra R. Lowery appeals from the entry of sentence on violation
of community control of the Chillicothe Municipal Court filed January 29,
2016. Appellant contends the trial court erred by exercising jurisdiction
over Appellant contrary to R.C. 2951.022. Upon review, we find Appellant
has served the jail sentence imposed and there is no relief which can now be
afforded to her. As such, the matter is moot and we decline to consider her
arguments. Accordingly, we dismiss this appeal.
Ross App. No. 16CA3533 2
FACTS
{¶2} In February 2015, Appellant was convicted of assault in the
Chillicothe Municipal Court. On February 27, 2015, she was sentenced to a
fine, court costs, a jail term, and as part of her sentence, she was placed on
community control for two years.
{¶3} On November 17, 2015, Appellant’s probation officer filed a
complaint alleging a violation of the terms of community control. On
January 29, 2016, the Chillicothe Municipal Court held a hearing on the
alleged violation. During the hearing, Appellant’s counsel moved to dismiss
the complaint, arguing the municipal court had no jurisdiction in the matter
because Appellant was also on community control in the Ross County
Common Pleas Court. The trial court denied Appellant’s motion.
{¶4} At the conclusion of the revocation hearing, the trial court found
Appellant had violated the terms of her community control and sentenced
her to 30 days in jail, with credit for 2 days served. The entry of sentence
dated January 29, 2016 also provides that Appellant’s community control
sanction, set forth in the previous entry of sentence dated February 27, 2015,
was to remain in effect until February 27, 2017. This timely appeal
followed.
Ross App. No. 16CA3533 3
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S MOTION TO DISMISS HER
COMPLAINT FOR VIOLATION OF PROBATION.”
A. STANDARD OF REVIEW
{¶5} The decision whether to revoke probation is within the trial
court’s discretion. State v. Beeler, 4th Dist. Ross No. 14CA3454, 2015-
Ohio-668, ¶ 6; State v. Johnson, 7th Dist. Mahoning No. 09-MA-94, 2010-
Ohio-2533, ¶ 10; State v. Ritenour, 5th Dist. Tuscarawas No. 2006AP-0002,
2006-Ohio-4744, at ¶ 37. Thus, a reviewing court will not reverse a trial
court’s decision absent an abuse of discretion. Johnson, supra; State v.
Dinger, 7th Dist. Carroll No. 04CA814, 2005-Ohio-6942, at ¶ 13. Abuse of
discretion connotes more than an error of law or judgment; it implies that the
court’s attitude is arbitrary, unreasonable, or unconscionable. Johnson,
supra; State v. Maurer, 15 Ohio St.3d 239, 253, 473 N.E.2d 768 (1984).
{¶6} Ordinarily, we would utilize the above standards in considering
an appeal of a trial court’s ruling on a community control revocation.
However, Appellant’s sole assignment of error raises a jurisdictional
question. Whether a court has jurisdiction is a question of law which is
reviewed de novo. Cleveland v. Kutash, 8th Dist. Cuyahoga No. 99509,
Ross App. No. 16CA3533 4
2013-Ohio-5124, ¶ 8; Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416,
2002-Ohio-2480, 768 N.E.2d 1136, ¶ 4-5.
B. LEGAL ANALYSIS
{¶7} “* * * Jurisdiction * * * is the ‘right and power to * * * apply the
law’ ”. State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-
2455,¶15, quoting The American Heritage Dictionary, Second College
Edition (1982), 694. “Subject-matter jurisdiction” is used when referring to
a court’s authority to act. Cleveland v. Persaud, 6 N.E.3d 701, (Feb. 10,
2014), ¶ 16. “Subject-matter jurisdiction” of a court connotes the power to
hear and decide a case upon its merits, and defines the competency of a court
to render a valid judgment in a particular action. Id. A judgment rendered
by a court lacking subject-matter jurisdiction is void. Kutash, supra; Patton
v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three of the
syllabus.
{¶8} The judicial power of the state is vested in ‘such other courts
inferior to the supreme court as may from time to time be established by
law.’ Section 1, Article IV, Ohio Constitution. Rode, supra, at ¶ 16. The
constitution gives the General Assembly the power to provide for municipal
courts and their jurisdiction. Rode, supra; Behrle v. Beam, 6 Ohio St.3d 41,
42, 451 N.E.2d 237 (1983). Unlike Courts of Common Pleas, which are
Ross App. No. 16CA3533 5
created by the Ohio Constitution and have statewide subject-matter
jurisdiction, municipal courts are statutorily created, and their subject matter
jurisdiction is set by statute. Kutash, supra, at ¶ 10. Municipal courts, as
they exist today in Ohio, were established in 1951 with the enactment of
R.C. Chapter 1901. Id. Rode, supra.
{¶9} It has long been the rule in Ohio that the criminal procedure in
the state is also regulated entirely by statute. State v. Boone, 1995 WL
39293, *2; Munic. Court v. State, ex rel. Platte, 126 Ohio St. 102 (1933).
Matters involving probation are governed by R.C. Chapter 2951. Id. The
Supreme Court of Oho has recently discussed the issue of subject-matter
jurisdiction within the context of community control violations, in State ex
rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d
1014. See State v. Meyer, 9th Dist. Summit No. 26999, 18 N.E.3d 805,
2014-Ohio-3705, ¶ 12.
{¶10} Appellant argues, pursuant to R.C. 2951.022, the trial court
erred by exercising jurisdiction over her to conduct the revocation hearing.
At the time of her alleged violation, she had been sentenced by the
Chillicothe Municipal Court to community control and was also subject to
the supervision of the Ross County Court of Common Pleas. As a result,
pursuant to the statute, Appellant was to be supervised by the court which
Ross App. No. 16CA3533 6
had imposed the longest possible sentence of incarceration, i.e., in this
matter, the Ross County Court of Common Pleas.
{¶11} Furthermore, Appellant acknowledges that R.C. 2951.022(B)(3)
provides that courts in the same county may enter into an agreement to allow
for the supervision of concurrent supervision offenders in a way other than
provided for by the statute. However, Appellant points out the record herein
does not include any agreement that would permit the deviation. As such,
Appellant concludes the Chillicothe Municipal Court did not have
jurisdiction to revoke her probation.
{¶12} R.C. 2951.022(A), supervision of concurrent supervision
offender, provides:
“(1) ‘[C]oncurrent supervision offender’ means any offender
who has been sentenced to community control for one or more
misdemeanor violations or has been placed under a community
control sanction pursuant to section 2929.16, 2929.17, 2929.18,
or 2929.20 of the Revised Code and who is simultaneously
subject to supervision by any of the following:
***
(c) One or more courts of common pleas in this state and one or
more municipal courts or county courts in this state.”
{¶13} The statute further provides:
“(B)(1) Except as otherwise provided in divisions (B)(2), (3),
and (4) of this section, a concurrent supervision offender shall
be supervised by the court of conviction that imposed the
Ross App. No. 16CA3533 7
longest possible sentence of incarceration and shall not be
supervised by any other court.
***
3) Separate courts within the same county may enter into an
agreement or adopt local rules of procedure specifying,
generally, that concurrent supervision offenders will be
supervised in a manner other than that provided for in divisions
(B)(1) and (2) of this section. The judges of the various courts
of this state having authority to supervise a concurrent
supervision offender may by local rule authorize the chief
probation officer of that court to manage concurrent supervision
offenders under such terms and guidelines as are consistent
with division (C) of this section.”
{¶14} The State of Ohio, while agreeing that R.C. 2951.022 controls
the case in this matter, argues that an agreement governing concurrent
supervision offenders between the Ross County Common Pleas Court and
the Chillicothe Municipal Court was in effect at the relevant time. The State
has attached a copy of the agreement as Exhibit A to its brief. The
agreement states in pertinent part at paragraph 4:
“[I]t is agreed between the Ross County Common Pleas Court
and the Chillicothe Municipal Court that offenders under
concurrent supervision in our courts will be supervised other
than provided for in R.C. 2951.022(B)(1) and (2). Specifically,
either court that imposes a community control sanction will
continue to supervise the offender and will enforce its own
orders for as long as the offender is under supervision by that
court.”
Ross App. No. 16CA3533 8
The State concludes because the agreement was in place, the trial court did
have subject-matter jurisdiction over Appellant.1 2
{¶15} However, our resolution of Appellant’s appeal does not
necessitate analysis of the jurisdictional question. The docketing statement
filed in the appellate record indicates no stay of sentence was granted by the
trial court and no stay was requested from the court of appeals. The
pleading docket accompanying the appellate record does not show any
request for stay was filed in the trial court.3 It appears that Appellant has
long since served her 30-day jail sentence imposed on January 29, 2016. As
such, there is no relief which this court can now provide to her. Her sole
assignment of error is rendered moot.
“In State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975),
the Ohio Supreme Court held that ‘[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.’ Bartkwiok v.
Bartkwiok, 4th Dist. Vinton No. 04CA596, 2005-Ohio-5017,
1
Exhibit A was not made part of the record on appeal. Pursuant to App.R. 9(B), the record on appeal
“consists of (1) the original papers and exhibits to the same, filed in the case, (2) the transcript of
proceedings, if any, and (3) a certified copy of the docket and journal entries prepared by the clerk of the
trial court.” Further, the record can be supplemented only to add matters that were actually before the trial
court and therefore constitute part of the proceedings. Holmes v. Kreps, 32 Ohio St.2d 134, 290 N.E.2d 573(1972).
2
We also note that the trial judge in this matter referenced the agreement between the courts, presumably
State’s Exhibit A, when it overruled Appellant’s motion to dismiss.
3
An event that causes a case to become moot may be proved by extrinsic evidence. State v. Popov, 4th
Dist. Lawrence No. 10CA26, 2011-Ohio-372, at ¶ 4. See Miner v. Witt, 82 Ohio St. 237, 239, 92 N.E. 21(1910) (per curiam); see also Pewitt v. Lorain Correctional Inst., 64 Ohio St.3d 470, 472, 1992-Ohio-91,
597 N.E.2d 92 (per curiam); State v. McCall, 7th Dist. Mahoning No. 03 MA 82, 2004-Ohio-4026, at ¶ 7.
Ross App. No. 16CA3533 9
¶ 4. ‘The burden of proof is on the defendant to establish at
least an inference that he will suffer some collateral disability or
loss of civil rights.’ ” Bartkowiak, supra, quoting State v.
Berndt, 29 Ohio St.3d 3, 504 N.E.2d 712 (1987).
{¶16} In Bartkowiak, we applied the mootness doctrine within the
context of a civil contempt proceeding. Bartkowiak argued that the
collateral disability he would suffer was an increased penalty if the court
found him in contempt of court again in a subsequent proceeding. We
quoted Berndt, supra, further, wherein the Ohio Supreme Court held that:
“[I]ncreased future penalties are not a collateral disability to a
misdemeanor conviction because no such disability will exist if
the individual stays within the confines of the law. Cf. State v.
Golston , 71 Ohio St.3d 224, 643 N.E.2d 109 (1994) (due to
substantial adverse consequences of a felony conviction, appeal
of felony sentence is not moot even if entire sentence has been
served). Here, if Mr. Bartkowiak complies with the court's
orders, he will not be subject to a future contempt finding.”
{¶17} In State v. Bell, 2nd Dist. Montgomery No. 24665, 2011-Ohio-
6799, the appellate court pointed out that an appeal from a revocation of
community control sanctions and the subsequent imposition of an eight-
month prison sentence was moot, since the appellant in that case was not
appealing from the original conviction, and the appellate court could not
relieve Bell from the eight-month sentence that he had already completely
served. (Id. at ¶ 5) (Emphasis added.)
Ross App. No. 16CA3533 10
{¶18} In State v. Tidd, 2nd Dist. Montgomery No. 24922, 2012-Ohio-
4982, the appellate court considered whether there was a potential collateral
disability because if the defendant in that case were subsequently convicted
of a criminal offense, the sentencing court might be influenced by the fact
that the defendant had previously violated the terms of community control
sanctions. Id., ¶ 16. However, the appellate court rejected that proposition,
stating:
“We are not persuaded that the sentencing calculus employed
by a court in the future, in the event that an appellant should, in
the future, commit a criminal offense and be convicted and
sentenced, represents a collateral disability.”
{¶19} And in State v. Gearhart, 2nd Dist. Montgomery No.
22735, 2009-Ohio-1946, the appellate court applied the rule of
mootness announced in State v. Wilson, supra, and in State v. Berndt,
supra, observing:
“[The rule of mootness] was relaxed for appeals from felony
convictions, because: ‘The collateral legal consequences
associated with a felony conviction are severe and obvious.’
State v. Golston, supra, at 71 Ohio St.3d 227. ‘But the rule of
mootness remains good law, as far as we know, in appeals from
misdemeanor convictions, like the appeal before us.’ ” Gearhart,
supra, at ¶ 12.
{¶20} Here, the Appellant is not appealing her original conviction. She
has already served her 30-day jail sentence for violation of community
control. While her sanction of community control remains in effect until
Ross App. No. 16CA3533 11
February 2017, that is part of her original sentence which is not the subject
of this appeal. And, the Appellant has not demonstrated any inference of
collateral disability. Having served her jail sentence, there is no relief which
can be granted her. Therefore, we find Appellant’s argument regarding any
improper exercise of jurisdiction moot and we decline to consider it.
Accordingly, we dismiss Appellant’s sole assignment of error.
APPEAL DISMISSED.
Ross App. No. 16CA3533 12
JUDGMENT ENTRY
It is ordered that the APPEAL BE DISMISSED and costs be assessed
to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Chillicothe Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: _________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.