CITY of CLEVELAND HEIGHTS v. LEWIS

Citation187 Ohio App.3d 786,933 N.E.2d 1146,2010 Ohio 2208
Decision Date19 May 2010
Docket NumberNo. 92917.,92917.
PartiesCITY OF CLEVELAND HEIGHTS, Appellee, v. LEWIS, Appellant.
CourtOhio Court of Appeals

OPINION TEXT STARTS HERE

Kim T. Segebarth, City of Cleveland Heights Prosecuting Attorney, for appellee.

Kenneth D. Myers, Cleveland, for appellant.

BLACKMON, Judge.

{¶ 1} Pursuant to Loc.App.R. 25.1, this court convened an en banc conference in accordance with McFadden v. Cleveland State Univ., 120 Ohio St.3d 54, 2008-Ohio-4914, 896 N.E.2d 672.

{¶ 2} Appellant, Warren Lewis, appeals his conviction for misdemeanor obstructing official business and assigns the following error for our review:

“I. The trial court erred by overruling appellant's Rule 29 motions and by finding appellant guilty of obstruction [sic] of official business.”

{¶ 3} Having reviewed the record and pertinent law, we reverse the trial court's decision and vacate Lewis's conviction. The apposite facts follow.

Procedural Facts

{¶ 4} The trial judge found Lewis guilty of obstructing official business and sentenced him to three days in jail and six months' inactive probation and ordered him to pay a $100 fine and court costs. The trial judge suspended the three-day jail sentence.

{¶ 5} The next day, Lewis moved the trial judge to stay execution of his sentence pending his appeal. The trial judge denied his motion to stay execution of the sentence.

{¶ 6} Lewis timely filed his appeal, and on March 4, 2009, he paid his fine and court costs. While his appeal was pending, he served his inactive probation, which ended in August 2009.

{¶ 7} In his appeal, Lewis failed to address whether his appeal was rendered moot because he had completed all aspects of his sentence and failed to allege any collateral disability. We do not gather from the record any inference of a collateral disability.

{¶ 8} During oral argument, this court raised the mootness issue with both parties. Lewis's attorney argued that the appeal was sustainable because Lewis asked the trial court for a stay of execution of his sentence before he paid the fine and court costs, but the trial court refused.

Mootness

{¶ 9} The initial issue before us is whether Lewis involuntarily served or satisfied all aspects of his sentence.

{¶ 10} In our most recent opinion on this issue, we held the following:

[U]nless one convicted of a misdemeanor seeks to stay the sentence imposed pending appeal or otherwise involuntarily serves or satisfies it, the case will be dismissed as moot unless the defendant can demonstrate a particular civil disability or loss of civil rights specific to him arising from the conviction.”

(Boldface omitted.) Oakwood v. Pfanner, Cuyahoga App. No. 90664, 2009-Ohio-464, 2009 WL 270500 ¶ 4, quoting Cleveland v. Martin, Cuyahoga App. No. 79896, 2002-Ohio-1652, ¶ 14, 2002 WL 568302, *3. See also Cleveland v. Pavlick, Cuyahoga App. No. 91232, 2008-Ohio-6164, 2008 WL 5050133.

{¶ 11} The facts show that Lewis failed to show a collateral disability, and we cannot infer the existence of one from this record. Consequently, in order for Lewis to avoid dismissal of his appeal, he has to show that his sentence was stayed or involuntarily satisfied. The record establishes that the trial court refused to stay execution of his sentence; consequently, Lewis's appeal can survive mootness and dismissal only if he involuntarily served or satisfied all aspects of his sentence. We conclude that his sentence was involuntarily served or satisfied.

{¶ 12} Several decisions from this court have spoken to the meaning of the phrase “unless otherwise involuntarily serves” and have held that a defendant does not voluntarily complete his sentence when he has moved for a stay of execution of the sentence and the stay has been denied by the trial court. Cleveland v. Burge, Cuyahoga App. No. 83713, 2004-Ohio-5210, 2004 WL 2340079; Cleveland v. Townsend, Cuyahoga App. No. 87006, 2006-Ohio-6265, 2006 WL 3446220; and Broadview Hts. v. Krueger, Cuyahoga App. No. 88998, 2007-Ohio-5337, 2007 WL 2875156.

{¶ 13} We have suggested that the very existence of an unsuccessful motion for stay results in the sustainability of the appeal. One court made the following observation: “In such a situation, the completion of the sentence would be involuntary, and the defendant would retain his or her right to appeal the underlying conviction and sentence.” State v. Blivens (Sept. 30, 1999), 11th Dist. No. 98-L-189, 1999 WL 960955, *2, citing State v. Harris (1996), 109 Ohio App.3d 873, 875, 673 N.E.2d 237. The situation in that case was an unsuccessful stay of execution in the trial court.

{¶ 14} At least one court has held that a defendant convicted of a misdemeanor must seek a stay of execution of the sentence in the appellate court to avoid dismissal of the appeal as moot. Dayton v. Huber, 2d Dist. No. 20425, 2004-Ohio-7249, 2004 WL 3561217.

{¶ 15} We decline to follow this ruling because the reasoning does not avoid the situation in which the defendant has no option but to pay the fine in order to avoid contempt of court or jail. For example, in Broadview Hts. v. Krueger, Cuyahoga App. No. 88998, 2007-Ohio-5337, 2007 WL 2875156, the trial court asked defendant, after he had denied her stay of execution of the sentence, whether she was prepared to pay the fine on that day. She paid the fine. The situation in Krueger placed the defendant in an automatic involuntary position.

{¶ 16} It could be argued, however, that Krueger should be narrowly read. But prior to Krueger, this court used the denial of a stay of execution as the bench mark for determining mootness. Townsend, Cuyahoga App. No. 87006, 2006-Ohio-6265, 2006 WL 3446220; Burge, Cuyahoga App. No. 83713, 2004-Ohio-5210, 2004 WL 2340079. In Townsend and Burge, we held that a defendant does not voluntarily complete the sentence when he has unsuccessfully moved for a stay of execution of his sentence. We believe that those cases are correct in light of State v. Wilson (1975), 41 Ohio St.2d 236, 70 O.O.2d 431, 325 N.E.2d 236.

{¶ 17} In Wilson, the defendant pleaded no contest after his motion to suppress a concealed weapon was denied. The trial court found him guilty, and he promptly paid the fine and costs. In Wilson, there was no doubt that the defendant intended to complete his sentence.

{¶ 18} This is not the case here. We can infer that Lewis did not intend to complete all aspects of his sentence, because he requested a stay of execution of his sentence; thus payment of the fine and costs, and completion of the inactive probation were involuntary. Accordingly, we will address the merits of his appeal.

Facts

{¶ 19} At trial, Officer Clayburn testified that on June 21, 2008, he was dispatched to Bainbridge Road on a call regarding a juvenile fight involving three girls. Clayburn testified that when he arrived on the scene, he spoke with the girls involved, including Lewis's daughter, who had an injury to her eye. Clayburn also spoke with several parents, including Lewis's wife.

{¶ 20} Clayburn testified that because he received conflicting versions from each party and could not tell who was the aggressor, he decided to charge all three girls. Clayburn advised the parents that all three girls would be charged, and he began gathering information from the respective parents about their child.

{¶ 21} Clayburn testified that as he was gathering the information, Lewis arrived and began talking with the other parents in a hostile manner. Clayburn testified that he asked Lewis to leave the scene, but he initially refused. Eventually, Lewis relented and walked back to his house.

{¶ 22} Clayburn testified that after he had gathered the information from the other parents, he went to Lewis's house to get information on Lewis's daughter. Clayburn testified that Lewis, who was standing on the porch, refused to give him any information, and he walked back into his house.

{¶ 23} Clayburn testified that he then approached Lewis's wife to obtain the information. Clayburn testified that Lewis's wife, a United States Postal Service worker, was seated in her postal vehicle when he approached. Clayburn stated that while he was talking with Lewis's wife, Lewis told his wife not to give him any information. Clayburn stated that Lewis's wife then indicated that she could not give him any information and then drove away.

{¶ 24} Clayburn testified that he again approached Lewis and told him that he needed the information. Clayburn testified about the ensuing events as follows:

Q. What happened next?

A. He was still upset. I then approached him and told him I needed the address and needed the information on his daughter. And if he didn't give me the information on the address, I would look for the address. I couldn't locate the address on the residence. And I told him I need the address. And he told me to find it myself.

Q. You mean the house itself had no number?

A. Right.

Q. It was on Bainbridge, but it had no number?

A. No.

Q. So you asked him for the daughter's information and he did not provide any information on the daughter?

A. Right.

Q. You asked him the address of the house and he said find it yourself?

A. Yes, more or less, figure it out yourself. That's what it was.

Q. What happened next?

A. At that point in time I advised him, I said, you are going to be arrested if you don't give me the information, because I need that information to complete the investigation and the charge. And he said you do what you have to do, arrest me. And I went over and I arrested him and placed him in handcuffs. He cooperated, placing his hands behind his back.

{¶ 25} Clayburn charged Lewis with obstructing official business and resisting arrest.

{¶ 26} Lewis testified that he is employed by the United States Postal Service as a letter carrier. Lewis testified that when he arrived on the scene, he learned from his wife that two girls, who had attacked their daughter two days earlier, had attacked her again. Lewis...

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