State v. McCarty, 2005 Ohio 4031 (OH 8/5/2005), C.A. No. 20581.

• Decision Date: 05 August 2005
• Docket Number: C.A. No. 20581.
• Citation: 2005 Ohio 4031
• Parties: State of Ohio, Plaintiff-Appellee, v. Kevin McCarty, Defendant-Appellant.
• Court: Ohio Supreme Court

Page 1

2005 Ohio 4031

State of Ohio, Plaintiff-Appellee, v. Kevin McCarty, Defendant-Appellant.

C.A. No. 20581.

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on August 5, 2005.

Criminal Appeal from Municipal Court, T.C. Case No. 03 CRB 12649.

Andrew d. Sexton, Atty. Reg. No. 0070892, Assistant City Prosecutor, 335 W. Third Street, Room 372, Dayton, Ohio 45402, Attorney for Plaintiff-Appellee.

George A. Katchmer, Atty. Reg. No. 0005031, 17 S. St. Clair Street, Suite 320, Dayton, Ohio 45401, Attorney for Defendant-Appellant.

OPINION

FREDERICK N. YOUNG, J. (By assignment)

{¶ 1} Kevin McCarty is appealing from the decision of the trial court, which after a bench trial, found him guilty of one count of assault. He was sentenced to twenty days incarceration, which was suspended, and a fine of $100.00. On appeal, he raises the following sole assignment of error:

{¶ 2} "1. The court erred in convicting the appellant of assault since it held that the appellant's hands were a deadly weapon."

{¶ 3} As the appellee points out in its brief on appeal, however, the appellant's appeal is moot since he did pay his fine and all court costs and did not seek a stay of execution of the sentence. It is well settled that "where a criminal defendant, convicted of a misdemeanor, voluntarily satisfies the judgment imposed upon him or her for that offense, an appeal from the conviction is moot unless the defendant has offered evidence from which an inference can be drawn that he or she will suffer some collateral legal disability or loss of civil rights stemming from that conviction." City v. Elifritz (Feb. 6, 2004), Montgomery App. No. 19603, citing State v. Golston (1994), 71 Ohio St.3d 224.

{¶ 4} In Elifritz, the defendant's term of unsupervised probation expired. But even in the case sub judice where the term of unsupervised probation has not expired but is only conditional upon the defendant not committing any further crimes of violence within the following two years, the appeal is still moot. State v. Berndt (1987), 29 Ohio St.3d, where the Ohio Supreme Court held that no collateral disability "will exist if appellee remains within the confines of the law." Id. 5. This rule has been recognized as holding that a collateral legal disability implies a separate and distinct consequence from the original criminal prosecution, that is, there must be some other effect, adverse to the defendant beyond expected punishment for his current offense....