State v. Berndt, No. 86-228

• Court: United States State Supreme Court of Ohio
• Writing for the Court: DOUGLAS; MOYER; HERBERT R. BROWN; MOYER, C.J., and WRIGHT; Doyle
• Citation: 29 OBR 173,504 N.E.2d 712,29 Ohio St.3d 3
• Decision Date: 04 March 1987
• Docket Number: No. 86-228
• Parties: , 29 O.B.R. 173 The STATE of Ohio, Appellant, v. BERNDT, Appellee

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29 Ohio St.3d 3 504 N.E.2d 712, 29 O.B.R. 173 The STATE of Ohio, Appellant,
v.
BERNDT, Appellee. No. 86-228. Supreme Court of Ohio March 4, 1987. Syllabus by the Court

Where the appellate court hears and decides an appeal that is moot, the judgment of the appellate court will be reversed and the trial court's judgment reinstated, as if the appeal had been dismissed.

Terry L. Lewis, Kettering, for appellant.

Daniel J. O'Brien, Dayton, for appellee.

DOUGLAS, Justice.

Although the state presents arguments relating solely to the denial of appellee's motion to vacate his plea of guilty, this ruling was not appealed and is therefore not properly before this court. For the following reasons, we hold that the court of appeals should have dismissed the appeal from the judgment of conviction on the basis that it was moot. Accordingly, we reverse the judgment of that court and reinstate the judgment of the trial court.

This court has held that "[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.

A thorough review of the record reveals that appellee has offered no such evidence. Nowhere can there be found any reference to a claim of collateral disability or loss of civil rights resulting from his conviction.

Appellee's brief below is directed solely to matters such as the trial court's failure to comply with Crim.R. 11(E), its allegedly erroneous acceptance of appellee's waiver of counsel, and the failure of police to advise him of his Miranda rights. 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,

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supra, since no such disability will exist if appellee remains within the confines of the law.

In his brief to this court, appellee again makes no mention of any claimed disability or loss of civil rights stemming from this conviction. Thus, the appeal is moot under Wilson, supra. See, also, Oakwood v. Sexton (1983), 10 Ohio App.3d 160, 10 OBR 213, 461 N.E.2d 22.

Based on the foregoing, we hold that where the appellate court hears and decides an appeal that is moot, the judgment of the appellate court will be reversed and the trial court's judgment reinstated, as if the appeal had been dismissed. In the [504 N.E.2d 714] instant cause, the court of appeals should have dismissed appellee's appeal from the trial court's judgment of conviction since that appeal was moot. Therefore, the judgment of the court of appeals reversing the trial court's decision and remanding for further proceedings is hereby reversed, and the judgment of the trial court is reinstated.

Judgment reversed.

SWEENEY, LOCHER and HOLMES, JJ., concur.

MOYER, C.J., and WRIGHT and Herbert R. BROWN, JJ., dissent.

HERBERT R. BROWN, J., dissenting.

I must respectfully dissent from (1) the determination by the majority that the appeal is moot, (2) the holding that an appeal from a conviction founded upon a plea of guilty does not raise the lawfulness of that plea and (3) the suggestion that the trial judge's failure to inform the defendant of three of the five requirements imposed upon him by Traf.R. 8(D) before a defendant enters a plea of guilty can be ignored simply because the defendant thereafter serves a short jail sentence.

In all three respects, the majority has acted sua sponte upon a basis not suggested in the briefs submitted by appellant or appellee. In overturning the unanimous ruling by the court of appeals below, the majority misreads the record and misapplies well-established legal precedent.

The majority, in finding this appeal moot, relies upon its determination that under State v. Wilson (1975), 41 Ohio St.2d 236, 70 O.O.2d 431, 325 N.E.2d 236, appellee completed his sentence and thus may not attack his conviction. The record reflects that appellee was fined $150, sentenced to three days of incarceration, and that his driver's license was suspended for sixty days. The fine and jail term have been satisfied but the trial court rendered an order staying execution of the remainder of appellee's license suspension. ² Consequently, appellee's sentence was not completed. The

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syllabus to Wilson, supra, does not apply and this appeal should not be dismissed as moot.

Although this alone eliminates the foundation for the majority determination, I believe that Wilson was incorrectly applied to the facts of this case, for a second reason. The court in Wilson held at 237, 70 O.O.2d at 432, 325 N.E.2d at 237, that "[t]he issue of mootness of a criminal case arises only if it is shown that there is no possibility that any collateral legal consequences will be imposed upon the basis of the challenged conviction." (Emphasis added.) Accordingly, appellee's case is not moot if, from the record in these proceedings, an inference can be drawn that appellee will suffer some collateral disability or loss of civil rights from the judgment of conviction.

The United States Supreme Court has ruled that the "mere release of the prisoner does not mechanically foreclose consideration of the merits" challenging his conviction. Sibron v. New York (1968), 392 U.S. 40, 51, 88 S.Ct. 1889, 1896-1897, 20 L.Ed.2d 917 (case not moot since defendant could not appeal case before completion of sentence, and the conviction could be used for impeachment and sentencing purposes in future criminal proceedings); Carafas v. LaVallee (1968), 391 U.S. 234, 237, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (as a result of conviction, state law would preclude defendant from serving as an official of a [504...