City of Cleveland Heights v. Lewis

Decision Date08 June 2011
Docket NumberNo. 2010–1203.,2010–1203.
PartiesCITY OF CLEVELAND HEIGHTS, Appellant,v.LEWIS, Appellee.
CourtOhio Supreme Court

OPINION TEXT STARTS HERE

[Ohio St.3d 389] Syllabus of the Court

1. The completion of a sentence is not voluntary and will not make an appeal moot 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.

2. 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.

Kim T. Segebarth, Cleveland Heights Prosecuting Attorney, and Brendan D. Healy, Assistant Law Director, for appellant.

Kenneth D. Myers, Cleveland, for appellee.Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney and Nathaniel J. McDonald, Assistant Public Defenders, and Mark S. Gallagher, urging affirmance on behalf of amici curiae Cuyahoga County Public Defender, Ohio Association of Criminal Defense Lawyers, and Towards Employment.D. Jim Brady, urging affirmance on behalf of amicus curiae D. Jim Brady.

O'DONNELL, J.

{¶ 1} The Eighth District Court of Appeals certified that a conflict exists between its decision in this case and decisions of the Second and Seventh District Courts of Appeals on the following question: “Whether an appeal is rendered moot when a misdemeanor defendant serves or satisfies his sentence after unsuccessfully moving for a stay of execution in the trial court, but without seeking a stay of execution in the appellate court.”

{¶ 2} The Second District Court of Appeals in Dayton v. Huber, Montgomery App. No. 20425, 2004-Ohio-7249, 2004 WL 3561217, and the Seventh District Court of Appeals in Carroll Cty. Bur. of Support v. Brill, Carroll App. No. 05 CA 818, 2005-Ohio-6788, 2005 WL 3489763, concluded that when a trial court denies a stay of execution of sentence, an appellant must also seek a stay in the appellate [Ohio St.3d 390] court to avoid a determination that the appeal is moot upon completion of the sentence. In its conflicting decision in this case, the Eighth District Court of Appeals held that an appellant who has been denied a stay of execution in the trial court is not required to seek an additional stay in the appellate court to prevent the matter from becoming moot upon completion of the sentence pending appeal.

{¶ 3} Strong evidence of intent to challenge the criminal charge exists in the instant case because appellee Warren Lewis, elected to be tried on the matter in the trial court, and the trial resulted in a conviction on only one count and a sentence consisting of a fine, court costs, a suspended three-day jail term, and a period of inactive probation. Thereafter, he sought a stay of execution of sentence to avoid the appeal becoming moot, but the trial court denied the stay. Lewis then paid the fine and costs and filed a notice of appeal, but did not seek a stay from the appellate court. These circumstances demonstrate that Lewis neither acquiesced in the judgment nor abandoned his right to appeal and thus did not voluntarily complete the sentence pending appeal. Accordingly, Lewis had a substantial interest in the appeal, and the appellate court had subject matter to decide, and the appeal did not become moot.

{¶ 4} Accordingly, we answer the certified question in the negative and affirm the judgment of the Eighth District Court of Appeals.

Facts and Procedural History

{¶ 5} On June 21, 2008, Officer Duane Clayborn of the Cleveland Heights Police Department responded to a fight involving three female teenagers. After questioning each to determine who had started the fight, he ultimately decided to charge all three with disorderly conduct because of hostile responses he received from parents of the girls.

{¶ 6} When Warren Lewis arrived home from work, he noticed police cruisers parked in front of his house. His wife told him that his daughter had been attacked by two girls, and he saw the police talking to their parents down the street. Lewis and his wife approached the officers with a copy of a police report showing that his daughter had been attacked several days earlier by these same girls; Officer Clayborn, however, ordered Lewis and his wife to return to their home and told them that his daughter would also be charged in the incident.

{¶ 7} When Officer Clayborn approached Lewis for the information needed to file the charge against his daughter, Lewis refused to talk to him because, in his view, the officer had treated his daughter as an assailant rather than a victim. The officer then approached Lewis's wife, who had started to leave for work. According to Officer Clayborn, Lewis told his wife not to provide any information to him, but Lewis maintained that he told his wife only that the officer could not [Ohio St.3d 391] detain her. Officer Clayborn returned to Lewis and demanded his daughter's address, but Lewis refused to cooperate. Officer Clayborn then arrested Lewis and charged him with obstructing official business by “refus[ing] to give information on his daughter who was being charged” and for resisting arrest by allegedly struggling with the officer as he attempted to place Lewis in the patrol car.

{¶ 8} At a bench trial, the court acquitted Lewis of resisting arrest but convicted him of obstructing official business, and it sentenced him to a suspended term of three days in jail, placed him on inactive probation for six months, and imposed a $100 fine and court costs, which he paid.

{¶ 9} The next day, Lewis moved to stay execution of his sentence, stating that he intended to appeal the finding of guilt because it could affect his employment and arguing that “without a stay, or at least a request for a stay, the Court of Appeals could find the appeal moot.” The trial court nonetheless denied the stay.

{¶ 10} Lewis then appealed to the Eighth District Court of Appeals, but he did not seek a stay of execution of his sentence from the appellate court. Because he had paid his fine and costs, and due to the inactive status of his probation, he completed the sentence during the pendency of his appeal. Although neither Lewis nor the city of Cleveland Heights addressed whether the expiration of the term of probation rendered the appeal moot, the court of appeals raised that issue at oral argument. Cleveland Hts. v. Lewis, 187 Ohio App.3d 786, 2010-Ohio-2208, 933 N.E.2d 1146, ¶ 7–8.

{¶ 11} The appellate court sua sponte convened an en banc conference to consider the issue, and in its opinion, the court noted its prior holding that [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.” Id. at ¶ 10, quoting Oakwood v. Pfanner, Cuyahoga App. No. 90664, 2009-Ohio-464, 2009 WL 270500, ¶ 4, quoting Cleveland v. Martin, Cuyahoga App. No. 79896, 2002 WL 568302, *3. The Eighth District determined that although Lewis had not demonstrated a collateral consequence stemming from the conviction, he had not voluntarily served his sentence, because he had sought a stay in the trial court. As a result, the appellate court declined to require Lewis to seek an additional stay in the court of appeals in order to preserve the justiciability of his appeal.

{¶ 12} Regarding the merits of the appeal, the Eighth District reversed Lewis's conviction for obstructing official business because it was not supported by the evidence, in that Lewis had not taken affirmative action to impede the investigation and Officer Clayborn admitted that Lewis's refusal to answer his questions had not prevented him from performing his duties. Id. at ¶ 37–39.

[Ohio St.3d 392] {¶ 13} The appellate court then certified that its decision conflicted with decisions from the Second District in Dayton v. Huber, Montgomery App. No. 20425, 2004-Ohio-7249, 2004 WL 3561217, and from the Seventh District in Carroll Cty. Bur. of Support v. Brill, Carroll App. No. 05 CA 818, 2005-Ohio-6788, 2005 WL 3489763. We agreed to resolve the conflict.

Positions Regarding Mootness

{¶ 14} Cleveland Heights asserts that a misdemeanant voluntarily serves a sentence by not seeking a stay of execution in both the trial court and the appellate court. Thus, according to the city, Lewis's appeal became moot because he had paid the fine and court costs, the six-month period of inactive probation had expired during the pendency of his appeal, and Lewis had neither moved for a stay in the appellate court prior to completion of the sentence nor demonstrated the existence of any collateral consequences resulting from the conviction. For these reasons, the city urges that his conviction should be reinstated.

{¶ 15} Lewis contends that the appeal of a misdemeanor conviction is never rendered moot by serving the sentence, even if the defendant fails to allege that the conviction will subject him to a collateral consequence and even if he does not move for a stay in the trial court or in the appellate court. Lewis maintains that a misdemeanant who is tried by a judge or jury and is convicted does not voluntarily serve the sentence imposed, but rather does so by order of the court. Also, he points out that he did not accept his conviction or voluntarily serve his sentence, because he asked the trial court to stay execution of sentence and he appealed...

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