City of Cleveland Heights v. Lewis, No. 2010–1203.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: Syllabus of the Court
• Citation: 129 Ohio St.3d 389,953 N.E.2d 278,2011 -Ohio- 2673
• Docket Number: No. 2010–1203.
• Decision Date: 08 June 2011
• Parties: CITY OF CLEVELAND HEIGHTS, Appellant,v.LEWIS, Appellee.

129 Ohio St.3d 389
953 N.E.2d 278
2011 -Ohio- 2673

CITY OF CLEVELAND HEIGHTS, Appellant,
v.
LEWIS, Appellee.

No. 2010–1203.

Supreme Court of Ohio.

Submitted March 23, 2011.Decided June 8, 2011.

[953 N.E.2d 279]

[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,

[953 N.E.2d 280]

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, ¶...