State v. Carter

[Cite as State v. Carter, 2017-Ohio-2898.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-16-1099
Appellee Trial Court No. CRB14-11651
v.
Marcus J. Carter DECISION AND JUDGMENT
Appellant Decided: May 19, 2017
*****
David Toska, City of Toledo Chief Prosecutor, and
Henry Schaefer, Assistant Prosecutor, for appellee.
Laurel A. Kendall, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} This case is before the court following the April 12, 2016 judgment of the
Toledo Municipal Court which found him in violation of the terms of his probation and
sentenced him to 30 days of incarceration. For the foregoing reasons, we affirm.
{¶ 2} The relevant facts are as follows. Following a bench trial, on July 31, 2015,
appellant was convicted of house stripping and was sentenced to 180 days in jail with 90
days suspended and 90 days credit for time served. Appellant was also ordered to
perform 50 hours of community service, pay a $250 dollar fine, and pay restitution. On
appeal, we affirmed appellant’s conviction but remanded the matter for a hearing to
determine the amount of restitution. See City of Toledo v. Carter, 6th Dist. Lucas No. L-
15-1128, 2016-Ohio-3505.
{¶ 3} On January 28, 2016, appellant was called back into court on a probation
violation hearing. The matter was continued on multiple occasions with a hearing held
on April 12, 2016. Thereafter, the court found appellant guilty of the probation violation
and sentenced him to 30 days in jail. This appeal followed.
{¶ 4} Appellant raises two assignments or error for our review:
I. The court’s finding of a probation violation for appellant’s failure
to report for a meeting with his probation officer was against the manifest
weight when appellant was hospitalized at the time, and proof of his
hospitalization was available.
II. The court’s finding of a probation violation for appellant’s
failure to complete his community service by Sept. 28, 2015 was against
the manifest weight of the evidence when appellant’s probation ran until
April 21, 2016.
{¶ 5} Prior to addressing the delineated assignments of error, we must examine the
state’s argument that this appeal is moot because appellant has already served the
imposed 30-day jail term. The Supreme Court of Ohio addressed this issue in Cleveland
Heights v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278. In Lewis, the
2.
court examined whether an appeal by a misdemeanant1 who serves his sentence after
unsuccessfully moving to stay the sentence in the trial court but not seeking a stay in the
appellate court, is moot. The court answered in the negative holding:
The expiration of an inactive period of probation during the
pendency of an appeal does not render the appeal moot because the
misdemeanant failed to file a motion for stay in the appellate court where
the misdemeanant unsuccessfully sought a stay of execution from the trial
court to prevent an intended appeal from being declared moot and
subsequently filed a notice of appeal to challenge the conviction. Id. at
paragraph two of the syllabus.
{¶ 6} In reaching its holding, the court further acknowledged that the appellate
court could have provided redress in his case because the appellant’s assignment of error
related to his finding of guilt; appellant argued that he had been wrongly convicted. Id. at
¶ 24. The Lewis decision’s concurrences further noted that the collateral consequences of
a criminal conviction, felony or misdemeanor, can be significant. Id. at ¶ 28-36.
{¶ 7} While we agree with the Lewis’ concurrences that in today’s world a
misdemeanor conviction can have a negative impact on various aspects of life; appellate
districts, including ours, have found misdemeanor appeals moot where the defendant has
already served the sentence and did not request a stay. In Toledo v. Cowans, 6th Dist.
1
Appeals from felony convictions are not considered moot even if the entire sentence has
been satisfied. Lewis at ¶ 19, citing State v. Golston, 71 Ohio St.3d 244, 643 N.E.2d 109(1994).
3.
Lucas No. L-07-1332, 2008-Ohio-2989, we found that because the defendant failed to
request a stay of the sentence her appeal was moot. Id. at ¶ 9. We further noted that
appellant failed to demonstrate a “collateral disability or loss of civil rights” stemming
from the conviction. Id. Likewise, in a probation revocation case, we determined that
the appeal was moot because the appellant failed to show a collateral disability that
survived the completion of the sentence. State v. Leister, 6th Dist. Lucas No. L-89-328,
1990 Ohio App. LEXIS 4642 (Oct. 26, 1990). Accord State v. Farris, 1st Dist. Hamilton
No. C-150567, 2016-Ohio-5527; Lakewood v. Sclimenti, 8th Dist. Cuyahoga No. 101931,
2015-Ohio-1842; State v. Harris, 7th Dist. Mahoning No. 11 MA 51, 2012-Ohio-1304.
But see State v. Smith, 1st Dist. Hamilton Nos. C-150445, C-150446, 2016-Ohio-3521,
the appeal was not moot where appellant’s being subject to a ten-year registration
requirement following his child-enticement convictions was determined to be a collateral
disability.
{¶ 8} Reviewing the record of the probation violation proceedings, we note that
appellant failed to request a stay of his sentence in the trial court. Further, appellant
failed to argue the existence of a collateral disability. During the April 12, 2016
probation revocation hearing, following the court’s finding of a probation violation the
only mention of a potential collateral consequence was by appellant’s attorney who
stated:
[A]s far as the defendant’s current history, I think he is currently on
community control to Judge English. Judge English has been very clear
that he is to have no new charges. I believe thus far that requirement has
4.
been fulfilled. I think my client has a little bit of concern as to what this
might mean for Judge English. Thus far I don’t think this is going to
trigger any issue.
{¶ 9} Based on the foregoing and in light of the relevant case law, we must
conclude that appellant’s appeal is moot and his assignments of error are not well-taken.
On consideration whereof, we find that appellant was not prejudiced or prevented from
having a fair proceeding and the judgment of the Toledo Municipal Court is affirmed.
Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
5.