State v. Lowery
| Citation | 2016 Ohio 7701 |
| Decision Date | 09 November 2016 |
| Docket Number | Case No. 16CA3533 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. MYRA R. LOWERY, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT ENTRY
APPEARANCES:
Aaron M. McHenry, Chillicothe, Ohio, for Appellant.
Sherri K. Rutherford, City of Chillicothe Law Director, and Benjamin A. Sigall, City of Chillicothe Assistant Law Director, Chillicothe, Ohio, for Appellee.
{¶1} Myra R. Lowery appeals from the entry of sentence on violation of community control of the Chillicothe Municipal Court filed January 29, 2016. Appellant contends the trial court erred by exercising jurisdiction over Appellant contrary to R.C. 2951.022. Upon review, we find Appellant has served the jail sentence imposed and there is no relief which can now be afforded to her. As such, the matter is moot and we decline to consider her arguments. Accordingly, we dismiss this appeal.
{¶2} In February 2015, Appellant was convicted of assault in the Chillicothe Municipal Court. On February 27, 2015, she was sentenced to a fine, court costs, a jail term, and as part of her sentence, she was placed on community control for two years.
{¶3} On November 17, 2015, Appellant's probation officer filed a complaint alleging a violation of the terms of community control. On January 29, 2016, the Chillicothe Municipal Court held a hearing on the alleged violation. During the hearing, Appellant's counsel moved to dismiss the complaint, arguing the municipal court had no jurisdiction in the matter because Appellant was also on community control in the Ross County Common Pleas Court. The trial court denied Appellant's motion.
{¶4} At the conclusion of the revocation hearing, the trial court found Appellant had violated the terms of her community control and sentenced her to 30 days in jail, with credit for 2 days served. The entry of sentence dated January 29, 2016 also provides that Appellant's community control sanction, set forth in the previous entry of sentence dated February 27, 2015, was to remain in effect until February 27, 2017. This timely appeal followed.
{¶5} The decision whether to revoke probation is within the trial court's discretion. State v. Beeler, 4th Dist. Ross No. 14CA3454, 2015-Ohio-668, ¶ 6; State v. Johnson, 7th Dist. Mahoning No. 09-MA-94, 2010-Ohio-2533, ¶ 10; State v. Ritenour, 5th Dist. Tuscarawas No. 2006AP-0002, 2006-Ohio-4744, at ¶ 37. Thus, a reviewing court will not reverse a trial court's decision absent an abuse of discretion. Johnson, supra; State v. Dinger, 7th Dist. Carroll No. 04CA814, 2005-Ohio-6942, at ¶ 13. Abuse of discretion connotes more than an error of law or judgment; it implies that the court's attitude is arbitrary, unreasonable, or unconscionable. Johnson, supra; State v. Maurer, 15 Ohio St.3d 239, 253, 473 N.E.2d 768 (1984).
{¶6} Ordinarily, we would utilize the above standards in considering an appeal of a trial court's ruling on a community control revocation. However, Appellant's sole assignment of error raises a jurisdictional question. Whether a court has jurisdiction is a question of law which is reviewed de novo. Cleveland v. Kutash, 8th Dist. Cuyahoga No. 99509, 2013-Ohio-5124, ¶ 8; Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136, ¶ 4-5.
{¶7} "* * * Jurisdiction * * * is the 'right and power to * * * apply the law' ". State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-2455,¶15, quoting The American Heritage Dictionary, Second College Edition (1982), 694. "Subject-matter jurisdiction" is used when referring to a court's authority to act. Cleveland v. Persaud, 6 N.E.3d 701, (Feb. 10, 2014), ¶ 16. "Subject-matter jurisdiction" of a court connotes the power to hear and decide a case upon its merits, and defines the competency of a court to render a valid judgment in a particular action. Id. A judgment rendered by a court lacking subject-matter jurisdiction is void. Kutash, supra; Patton v. Diemer, 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three of the syllabus.
{¶8} The judicial power of the state is vested in 'such other courts inferior to the supreme court as may from time to time be established by law.' Section 1, Article IV, Ohio Constitution. Rode, supra, at ¶ 16. The constitution gives the General Assembly the power to provide for municipal courts and their jurisdiction. Rode, supra; Behrle v. Beam, 6 Ohio St.3d 41, 42, 451 N.E.2d 237 (1983). Unlike Courts of Common Pleas, which are created by the Ohio Constitution and have statewide subject-matter jurisdiction, municipal courts are statutorily created, and their subject matter jurisdiction is set by statute. Kutash, supra, at ¶ 10. Municipal courts, as they exist today in Ohio, were established in 1951 with the enactment of R.C. Chapter 1901. Id. Rode, supra.
{¶9} It has long been the rule in Ohio that the criminal procedure in the state is also regulated entirely by statute. State v. Boone, 1995 WL 39293, *2; Munic. Court v. State, ex rel. Platte, 126 Ohio St. 102 (1933). Matters involving probation are governed by R.C. Chapter 2951. Id. The Supreme Court of Oho has recently discussed the issue of subject-matter jurisdiction within the context of community control violations, in State ex rel. Hemsley v. Unruh, 128 Ohio St.3d 307, 2011-Ohio-226, 943 N.E.2d 1014. See State v. Meyer, 9th Dist. Summit No. 26999, 18 N.E.3d 805, 2014-Ohio-3705, ¶ 12.
{¶10} Appellant argues, pursuant to R.C. 2951.022, the trial court erred by exercising jurisdiction over her to conduct the revocation hearing. At the time of her alleged violation, she had been sentenced by the Chillicothe Municipal Court to community control and was also subject to the supervision of the Ross County Court of Common Pleas. As a result, pursuant to the statute, Appellant was to be supervised by the court which had imposed the longest possible sentence of incarceration, i.e., in this matter, the Ross County Court of Common Pleas.
{¶11} Furthermore, Appellant acknowledges that R.C. 2951.022(B)(3) provides that courts in the same county may enter into an agreement to allow for the supervision of concurrent supervision offenders in a way other than provided for by the statute. However, Appellant points out the record herein does not include any agreement that would permit the deviation. As such, Appellant concludes the Chillicothe Municipal Court did not have jurisdiction to revoke her probation.
{¶12} R.C. 2951.022(A), supervision of concurrent supervision offender, provides:
{¶13} The statute further provides:
{¶14} The State of Ohio, while agreeing that R.C. 2951.022 controls the case in this matter, argues that an agreement governing concurrent supervision offenders between the Ross County Common Pleas Court and the Chillicothe Municipal Court was in effect at the relevant time. The State has attached a copy of the agreement as Exhibit A to its brief. The agreement states in pertinent part at paragraph 4:
The State concludes because the agreement was in place, the trial court did have subject-matter jurisdiction over Appellant.1 2
{¶15} However, our resolution of Appellant's appeal does not necessitate analysis of the jurisdictional question. The docketing statement filed in the appellate record indicates no stay of sentence was granted by the trial court and no stay was requested from the court of appeals. The pleading docket accompanying the appellate record does not show any request for stay was filed in the trial court.3 It appears that Appellant has long since served her 30-day jail sentence imposed on January 29, 2016. As such, there is no relief which this court can now provide to her. Her sole assignment of error is rendered moot.
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