State v. Benson, s. 86AP-354

• Decision Date: 22 July 1986
• Docket Number: Nos. 86AP-354,86AP-355,s. 86AP-354
• Court: Ohio Court of Appeals
• Parties: , 29 O.B.R. 123 The STATE of Ohio, Appellee, v. BENSON, Appellant.

Page 109

29 Ohio App.3d 109

504 N.E.2d 77, 29 O.B.R. 123

The STATE of Ohio, Appellee, v. BENSON, Appellant.

Nos. 86AP-354, 86AP-355.

Court of Appeals of Ohio, Tenth District, Franklin County.

July 22, 1986.

Syllabus by the Court

A defendant convicted of a criminal offense must, where practicable, seek a stay of the fine or sentence in either the trial court or the appellate court in order to defeat a claim of mootness. However, where a defendant is unable to post bond prior to trial and, where, upon conviction his sentence is suspended for time served, his subsequent appeal of the completed sentence cannot be precluded on the basis of mootness.

Ronald J. O'Brien, City Atty., James J. Fais, City Prosecutor, and David E. Tingley, Columbus, for appellee.

James J. Kura, County Public Defender, and Allen V. Adair, Columbus, for appellant.

MOYER, Presiding Judge.

This matter is before us on a motion to dismiss the appeal of the defendant, Michael C. Benson, as moot, because Benson has completed the sentence imposed upon him by the trial court.

The controlling Ohio case is State v. Wilson (1975), 41 Ohio St.2d 236, 325 N.E.2d 736 . The syllabus states the law as follows:

"Where 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."

To retain his stake in a controversy and to preserve the right to appeal, a defendant convicted of a criminal offense must, where practicable, seek a stay of the fine or sentence in either the trial court or the appellate court. State v. Conliff (1978), 61 Ohio App.2d 185, 193, 325 N.E.2d 236 . If the defendant fails to seek a stay, and he voluntarily proceeds to pay his fine or serve out his sentence, then, pursuant to State v. Wilson, supra, any appeal from his conviction is moot unless the defendant can offer evidence "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."

Benson urges that by virtue of his criminal conviction he may suffer some collateral disability or loss of civil rights via enhanced penalties if he again violates R.C. 2905.05, or if he is convicted of another crime and is sentenced as a repeat offender. He contends, therefore, that he retains a substantial stake in the judgment of conviction that survives the satisfaction of judgment against him, and that his appeal is not moot. State v. Wilson, supra.

The acquisition of a criminal record by an adult has been held not to be a legal collateral disability per se. State v. Montgomery (Aug. 31, 1983), Hamilton App. No. C-820779, unreported, at 4, fn. 1; State v. Conliff, supra, 61 Ohio App.2d 185 at 192, 325 N.E.2d 236. However, federal cases interpreting St. Pierre v. United States (1943), 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199, and Fiswick v. United States (1946), 329 U.S. 211, 220-223, 67 S.Ct. 224, 229-230, 91 L.Ed. 196, upon which the rule in State v. Wilson, supra, is grounded, have found to the contrary. See Street v. New York (1969), 394 U.S. 576 579-580, at fn. 3, 89 S.Ct. 1354, 1359, at fn. 3, 22 L.Ed.2d 572 (a criminal conviction could be used to rebut character evidence in future criminal proceedings, and if later convicted of a felony, the defendant may be sentenced as an habitual criminal); Sibron v. New York (1968), 392 U.S. 40, 55-56, 88 S.Ct. 1889, 1898-1899, 20 L.Ed.2d 917 (a criminal conviction could be later used for impeachment and sentencing in future criminal proceedings). Cf. United States v. Morgan (1954), 346 U.S. 502, 512-513, 74 S.Ct. 247, 253, 98 L.Ed. 248 (although the term of sentence has been served, the results of the conviction may persist, e.g., subsequent convictions may carry heavier penalties).

We find it unnecessary to decide that precise issue because of the facts in the case before us. The...