State v. Grant

[Cite as State v. Grant, 2016-Ohio-7857.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-150608
C-150609
Plaintiff-Appellee, : TRIAL NOS. C-13TRD-30279B
C-13TRD-30279D
vs. :
ADAM GRANT, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 23, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
STAUTBERG, Judge.
{¶1} Defendant-appellant Adam Grant appeals the Hamilton County
Municipal Court’s revocation of his community control for nonpayment of
restitution, fines, and court costs. In two assignments of error, Grant asserts (1) that
the trial court erred in revoking his community control and imposing a six-month jail
sentence, and (2) that the trial court lacked jurisdiction to revoke his community
control. For the reasons below, we affirm the judgment of the trial court.
Background
{¶2} Grant was charged with a marked lanes violation and failing to stop
after an accident. In September 2013, he pleaded no contest to both charges. The
Hamilton County Municipal Court found Grant guilty, sentenced him to 180 days,
which were suspended, and placed him on two years’ community control. The trial
court also imposed fines, restitution, and a two-year driver’s license suspension.
{¶3} On January 14, 2014, the trial court found Grant guilty of violating his
community control for committing another driving offense and for failing to pay his
financial obligations. At that time, Grant was awaiting sentencing on a fifth-degree
felony in the Hamilton County Court of Common Pleas. Defense counsel therefore
requested that the trial court continue Grant’s community control revocation hearing
until after his felony sentencing on January 28, 2014. The trial court granted Grant’s
request and continued the case until January 30, 2014.
{¶4} At that January 30 hearing, defense counsel informed the trial court
that the court of common pleas had sentenced Grant to three years’ community
control and to treatment at River City Correctional Center. Following the hearing,
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the trial court found that Grant had violated his community control, but continued
him on community control.
{¶5} In August 2015, the Hamilton County Probation Department,
Municipal Court Division, filed another violation against Grant for nonpayment of
his court-ordered financial obligations. Grant pleaded no contest to the violation. At
his revocation hearing on October 2, 2015, defense counsel informed the trial court
that Grant was on probation for a felony conviction, had been in treatment, and had
lost his job and was unable to pay. The trial court found Grant guilty of the violation,
terminated his community control, imposed a six-month jail sentence, and remitted
the court costs.
{¶6} Grant filed a motion to stay his sentence, but the motion was denied.
Grant timely appealed and now asserts two assignments of error, which we will
address out of order.
A. Jurisdiction Pursuant to R.C. 2951.022
{¶7} In his second assignment of error, Grant contends that the trial court
“patently lacked jurisdiction” to decide his community control violation. Grant
argues that under R.C. 2951.022, only the Hamilton County Court of Common
Pleas—and not the Hamilton County Municipal Court—could supervise Grant’s
community control, and therefore, had jurisdiction to hear and decide his
community control violation.
{¶8} R.C. 2951.022 sets forth a framework for determining which court
should supervise an offender who has been placed on community control by more
than one court. A “concurrent supervision offender” is “any offender who has been
sentenced to community control for one or more misdemeanor violations or has been
placed under a community control sanction * * * and who is simultaneously subject
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OHIO FIRST DISTRICT COURT OF APPEALS
to supervision by * * * one or more courts of common pleas * * * and one or more
municipal courts * * *.” R.C. 2951.022(A)(1). Grant argues that “a concurrent
supervision offender shall be supervised by the court of conviction that imposed the
longest possible sentence of incarceration and shall not be supervised by any other
court.” R.C. 2951.022(B)(1).
{¶9} Both Grant and the state cite State v. Beeler, 4th Dist. Ross No.
14CA3454, 2015-Ohio-668, in support of their respective positions. Beeler
addressed the question of which of two municipal courts in different counties had
jurisdiction to conduct a concurrent offender’s community control violation hearing.
That court found that R.C. 2951.022 did not squarely address the allocation of
responsibility for supervision in such circumstances, and that the statute did not
otherwise divest either municipal court of jurisdiction for determining community
control violations.
{¶10} The facts and circumstances of Grant’s concurrent supervision are
different than those in Beeler. Jurisdiction refers to the court’s statutory or
constitutional authority to hear a case, and encompasses jurisdiction over the subject
matter and over the person. Pratts v. Hurley, 102 Ohio St. 3d 81, 2004-Ohio-1980,
806 N.E.2d 992, ¶ 11. Subject matter jurisdiction goes to the power of the court to
adjudicate the merits of a case, and therefore, it cannot be waived and may be
challenged at any time. Id. Jurisdiction may also refer to the court’s exercise of its
jurisdiction over a particular case, which refers to the court’s authority to determine
a specific case within that class of cases that is within its subject matter jurisdiction.
Id. at ¶ 12. “If a court acts without [subject matter] jurisdiction, then any
proclamation by that court is void.” Id. at ¶ 11. But if the trial court lacks jurisdiction
over a particular case, then the judgment is voidable. Id. at ¶ 12. “A voidable
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sentence is one that a court has jurisdiction to impose, but was imposed irregularly
or erroneously.” State v. Payne, 114 Ohio St. 3d 502, 2007-Ohio-4642, 873 N.E.2d
306, ¶ 27.
{¶11} Municipal courts are statutorily created and their subject matter
jurisdiction is set by statute, which includes the jurisdiction to revoke an offender’s
community control upon a violation pursuant to R.C. 2929.25. R.C. 1901.01; see
State v. Lovelace, 2012-Ohio-3797, 975 N.E.2d 567, ¶ 23 (1st Dist.); City of
Cleveland v. Kutash, 8th Dist. Cuyahoga No. 99509, 2013-Ohio-5124, ¶ 10.
Therefore, the trial court in this case had subject matter jurisdiction over Grant, and
we must determine whether the trial court had jurisdiction over this particular case.
We review jurisdictional questions de novo. See Dikong v. Ohio Supports, Inc.,
2013-Ohio-33, 985 N.E.2d 949, ¶ 9 (1st Dist.). To reverse a voidable judgment, we
must find error prejudicial to Grant. App.R. 12(D); see Deutsche Bank Natl. Trust
Co. v. Smith, 1st Dist. Hamilton No. C-140514, 2015-Ohio-2961, ¶ 20.
{¶12} Grant argues that the trial court lost jurisdiction over his case when he
was convicted of a felony and placed on community control by the common pleas
court, because the trial court was no longer “the court of conviction that imposed the
longest possible sentence of incarceration.” See R.C. 2951.022(B)(1). The state
argues that because of the limited record before this court, Grant cannot
demonstrate that he was a concurrent supervision offender or that the trial lacked
jurisdiction.
{¶13} The record before us shows that Grant was a concurrent supervision
offender under R.C. 2951.022(A)(1)(c), as he was on community control at the same
time to both the municipal court and the court of common pleas. But on the state of
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this record, we are unable to determine which “court of conviction * * * imposed the
longest possible sentence of incarceration.” See R.C. 2951.022(B)(1).
{¶14} The record in this case has no information regarding the possible
sentence of incarceration for Grant’s felony conviction. The facts demonstrate that
the trial court sentenced Grant on his misdemeanor convictions to 180 days’
incarceration, suspended those days, and ordered him to serve two years’ community
control. The record also shows that Grant was convicted of a fifth-degree felony by
the court of common pleas, which may carry a sentence of 6, 7, 8, 9, 10, 11, or 12
months’ incarceration. R.C. 2929.14(A)(5). Although we are aware of the possible
sentence permitted by statute, the record before us does not affirmatively set forth
Grant’s longest possible sentence of incarceration for his felony conviction.
{¶15} While it is likely that the court of common pleas imposed a longer
possible sentence of incarceration, we cannot tell from the record before us. The
sentencing entry from the common pleas case would demonstrate whether the trial
court had jurisdiction in this case, but that was not made a part of the record. See
State v. Brooks, 103 Ohio St. 3d 134, 2004-Ohio-4746, 814 N.E.2d 837, paragraph
two of the syllabus (holding that a trial court sentencing an offender to community
control must notify the offender of the specific prison term that may be imposed for a
violation at the time of sentencing); R.C. 2929.15(B).
{¶16} Because Grant has not demonstrated error by reference to matters in
the record, we must presume the regularity of the proceedings. See State v.
Gonzales, 151 Ohio App. 3d 160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 21 (1st Dist.).
Therefore, in the absence of a showing of which court imposed the longest possible
sentence of incarceration, we cannot say the trial court did not have jurisdiction over
this case. We overrule Grant’s second assignment of error.
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B. Community Control Revocation
{¶17} In Grant’s first assignment of error, he argues that the trial court erred
in revoking his community control and imposing a six-month jail sentence. In
support, he argues that the trial court erred when it revoked his community control
for nonpayment of his financial obligations without first determining whether his
failure to pay was willful and not the result of indigence.
{¶18} Grant is correct that in order for a court to revoke a defendant’s
community control for nonpayment of financial obligations, such as court costs, fees,
and restitution, and sentence the defendant to a term of imprisonment, the
defendant’s “failure must have been willful and not the result of indigence.” See
State v. Dockery, 187 Ohio App. 3d 798, 2010-Ohio-2365, 933 N.E.2d 155, ¶ 14 (1st
Dist.), quoting State v. Douthard, 1st Dist. Hamilton Nos. C-000354 and C-000355,
2001 Ohio App. LEXIS 2895 (June 29, 2001); see also State v. Rudin, 1st Dist.
Hamilton No. C-110747, 2012-Ohio-2643, ¶ 9. The trial court must inquire into the
reason for the defendant’s failure to pay a financial obligation, as well as make those
findings on the record. Rudin at ¶ 9, citing Bearden v. Georgia, 461 U.S. 660, 672,
103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983).
{¶19} However, before we address the merits of this assignment of error, we
must determine whether the issue is moot.
{¶20} When the issues in a case are no longer “live” or the parties lack a
cognizable interest in the outcome, the case is moot. State ex rel. Gaylor, Inc. v.
Goodenow, 125 Ohio St. 3d 407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 10, citing Los
Angeles Cty. v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979). “The
concept of mootness on appeal is that there is no meaningful remedy that the
appellate court can provide in the event of a reversal.” State v. Carr, 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-140172, 2015-Ohio-2529, ¶ 9, citing State v. Portis, 2d Dist. Clark
No. 2010-CA-95, 2011-Ohio-2429, ¶ 18. Once a defendant has served the sentence of
incarceration that is challenged on appeal, there is no way that this court can give
him back the time served. Id. “We have no duty to decide an assignment of error
that is moot in the sense that the court cannot provide the appellant with any
meaningful relief.” Carr at ¶ 9, citing Miner v. Witt, 82 Ohio St. 237, 92 N.E. 21
(1910).
{¶21} We are mindful of the body of case law that holds that an appeal is not
moot when the sentence has been completely served “if the circumstances
surrounding it demonstrate that the appellant neither acquiesced in the judgment
nor abandoned the right to appellate review, that the appellant has a substantial
stake in the judgment of conviction, and that there is subject matter for the appellate
court to decide.” City of Cleveland Hts. v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-
2673, 953 N.E.2d 278, paragraph one of the syllabus. We note that Grant had moved
for a stay, but it was denied, so Grant did not abandon his right to appellate review.
Nevertheless, even if we were to conclude that the trial court erred in revoking
Grant’s community control and sentencing him to a term of incarceration without
inquiring into the reasons for his nonpayment of his financial obligations, we cannot
provide him with any meaningful relief in the form of an order affecting the
imposition of the term of incarceration. See Carr at ¶ 10; see, e.g., State v. Ealy, 2d
Dist. Montgomery No. 25736, 2014-Ohio-1535, ¶ 11. In his appeal, Grant is not
challenging his original conviction, the order of restitution, or the imposition of
fines. Grant is also not challenging the trial court’s determination of a violation of
his community control. Rather, Grant is only challenging the revocation of his
community control and six-month jail sentence on the ground the trial court did not
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find that his nonpayment of his financial obligations was willful. Grant is
challenging his period of incarceration, and we cannot restore to him any of that time
served. See State v. Tidd, 2d Dist. Montgomery No. 24922, 2012-Ohio-4982, ¶ 12;
Ealy at ¶ 11.
{¶22} Therefore, his first assignment of error is moot.
Conclusion
{¶23} We overrule Grant’s second assignment of error because he is unable
to demonstrate error under R.C. 2951.022, when the sentencing entry from the court
of common pleas was not a part of the record before us. Grant’s first assignment of
error is moot because he has already served his sentence of incarceration for the
community control violation, and there is no meaningful remedy that we can
provide. We therefore affirm the judgment of the trial court.
Judgment affirmed.
MOCK, J., concurs.
CUNNINGHAM, P.J., concurs in judgment only.
Please note:
This court has recorded its own entry this date.
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