North Royalton v. Baker, 56792

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: THOMAS J. PARRINO; NAHRA, P.J., and JOHN F. CORRIGAN; THOMAS J. PARRINO
• Citation: 65 Ohio App.3d 644,584 N.E.2d 1308
• Parties: CITY OF NORTH ROYALTON, Appellee, v. BAKER, Appellant. *
• Docket Number: No. 56792,56792
• Decision Date: 18 December 1989

Page 644

65 Ohio App.3d 644

584 N.E.2d 1308

CITY OF NORTH ROYALTON, Appellee, v. BAKER, Appellant. ^*

No. 56792.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Dec. 18, 1989.

Dennis A. Rademaker, Director of Law, and Thomas F. Greve, Asst. Director of Law, Cleveland, for appellee.

Peter Onysko, Cleveland, for appellant.

THOMAS J. PARRINO, Judge.

Defendant, Ronald P. Baker, was charged with violating North Royalton Ordinance 961.10, placing a monument on a grave in violation of the size restrictions. On October 26, 1988, the trial court found defendant guilty of violating North Royalton Ordinance 961.10. Defendant voluntarily paid his fine of $50 and court costs on November 15, 1988. Defendant filed a timely notice of appeal assigning four errors. ¹ Appellee, city of North Royalton, filed a motion to dismiss defendant's appeal on grounds that it was moot. Defendant filed a brief in opposition to the city's motion to dismiss.

Defendant's deceased wife was buried in the North Royalton cemetery. Prior to her death, defendant's wife had asked defendant to place a statue of the Virgin Mary on her grave. Shortly after her death, defendant placed such a statue on her grave. The superintendent of the cemetery, Ed Swim, informed defendant the statue was in violation of North Royalton Code 961.10, which limits the size of monuments. Defendant's statue measures three feet in height and has a sixteen-by-sixteen-inch concrete foundation with a twenty-four-inch base below the ground. Defendant has been maintaining the statue including weatherizing it by means of plastic and using acrylic spray to protect it.

The defendant made no inquiries of the city before installing the statue. A letter was issued from the North Royalton Law Department to the defendant advising him to remove the statue within thirty days. After the thirty-day period, the city filed the case sub judice against defendant. Defendant was found guilty and ordered to pay a fine of $50.

In response to appellee's pending motion to dismiss this appeal, defendant contends that he will suffer collateral legal disabilities and therefore this court may not rule in favor of plaintiff's motion to dismiss. There is a civil suit filed by appellee in the Cuyahoga County Court of Common Pleas which has been stayed pending this appeal, seeking a mandatory injunction ordering removal of the statue. Defendant contends he will not be able to contest the issue of constitutionality of the statute, as it will be considered barred by res judicata. Therefore, defendant claims his inability to argue this issue constitutes a collateral legal disability.

Defendant also contends that if he were to prevail in this appeal, he would file a civil action, pursuant to Section 1983, Title 42 U.S.Code, for malicious prosecution and a deprivation of defendant's civil rights. However, if the motion to dismiss is granted, defendant will be denied this opportunity and this would be a collateral legal disability.

Finally, defendant contends that he will continue to maintain the statue, exposing him to further prosecution with increased penalties. Defendant claims that further prosecution under an enhanced penalty is also a collateral legal disability. Defendant's arguments are unpersuasive.

"[W]here a defendant, convicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an appeal is moot when no evidence is offered from which an inference can be drawn that the defendant will suffer some collateral disability or loss of civil rights from such judgment or conviction." State v. Wilson (1975), 41 Ohio St.2d 236, 70 O.O.2d 431, 325 N.E.2d 236, syllabus. The burden of presenting evidence that he has such a "substantial stake in the judgment of conviction" is upon the defendant. Id. at 237, 70 O.O.2d at 432, 325 N.E.2d at 237. Thus, this appeal is moot unless appellee has at some point in this proceeding offered evidence from which an inference can be drawn that appellee will suffer some collateral legal disability or loss of civil rights." State v. Berndt (1987), 29 Ohio St.3d 3, 4, 29 OBR 173, 174, 504 N.E.2d 712, 713.

The initial issue for this court to determine is the definition of "collateral legal disability." It must be different from a loss of civil rights since this is set out as a alternative consequence to prevent mootness. However, in Berndt, supra, at 4, 29 OBR at 174, 504 N.E.2d at 713, the court also stated:

"The only discussion therein that could even arguably be characterized as a claim of collateral disability is appellee's statement that the existence of this conviction will enhance his penalty in the event he is again convicted of the same offense. However, this cannot fairly be described as a collateral disability within the meaning of Wilson, supra, since no such disability will exist if appellee remains within the confines of the law."

In State v. Wilson (1975), 41 Ohio St.2d 236, 237, 70 O.O.2d 431, 432, 325 N.E.2d 236, 237, the court reviewed a line of cases in which mootness was not proper:

"There have been a number of cases decided in which the serving of a sentence did not render a case moot because the conviction, if allowed to stand, would result in collateral disabilities such as a loss of civil rights. United States v. Morgan (1954), 346 U.S. 502 [74 S.Ct. 247, 98 L.Ed. 248]; Byrnes v. United States (C.A.9, 1969), 408 F.2d 599; Carafas v. LaVallee (1968), 391 U.S. 234 [88 S.Ct. 1556, 20 L.Ed.2d 554] (under state law as a result of conviction defendant could not engage in certain businesses, could not serve as an official of a labor union, could not vote in elections, could not serve as a juror); Cordle v. Woody (D.C.Va.1972), 350 F.Supp. 479 (prisoner was eligible for parole on another sentence and misdemeanor conviction might have adverse effect on granting of such parole); Street v. New York (1969), 394 U.S. 576 [89 S.Ct. 1354, 22 L.Ed.2d 572], n. 3 (defendant's employer had instituted proceedings which might result in suspending defendant from work without pay if conviction stood); Fiswick v. United States, supra, 329 U.S. 211 [67 S.Ct. 224, 91 L.Ed. 196] (conviction of an alien could weaken his defense to a deportation proceeding and subject him to the loss of certain civil rights); Avon v. Popa (1953), 96 Ohio App. 147, 150 [54 O.O. 226, 227, 121 N.E.2d 254, 255] (it appeared that the fine and costs were paid involuntarily, as under duress to prevent imprisonment)."

Black's Law Dictionary defined "collateral" as follows:

"By the side; at the side; attached upon the side. Not lineal, but upon a parallel or diverging line. Additional or auxiliary; supplementary, co-operating; accompanying as a secondary fact, or acting as a secondary agent. Related to, complimentary; accompanying as a co-ordinate." Black's Law Dictionary (5 Ed.Rev.1979) 237.

It appears that a collateral legal disability implies a separate and distinct consequence from the original criminal pros...