State v. Phillips
| Decision Date | 15 April 2022 |
| Docket Number | 29087 |
| Citation | 2022 Ohio 1262 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. TESSE R. PHILLIPS Defendant-Appellant |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Trial Court Case No 2019-CR-582/1
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No 0069384, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee
THOMAS W. KIDD, JR., Atty. Reg. No. 0066359, Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant, Tesse R. Phillips, appeals from her conviction in the Montgomery County Court of Common Pleas after she pled guilty to one count of aggravated possession of drugs. Specifically, Phillips contends that the trial court erred by ordering her to pay a $130 appointed-counsel fee as part of her sentence. Phillips also contends that the trial court erred by ordering her to pay a $250 supervision fee without first considering her present and future ability to pay the fee. For the reasons outlined below, the portion of Phillips' sentence ordering her to pay a $130 appointed-counsel fee will be vacated. The judgment of the trial court will be affirmed in all other respects. The matter will be remanded to the trial court for purposes of ordering the appointed-counsel fee to be paid as a separate civil assessment.
{¶ 2} On April 3, 2019, a Montgomery County grand jury returned an indictment charging Phillips with one count of aggravated possession of drugs (methamphetamine) in violation of R.C. 2925.11(A), a felony of the fifth degree. Following her indictment, Phillips filed a motion requesting the trial court to consider Intervention in Lieu of Conviction ("ILC"). The trial court thereafter held an ILC hearing on October 13, 2020. During the ILC hearing, the trial court found that Phillips was eligible for ILC, and Phillips pled guilty to the indicted charge. The trial court then granted Phillips' request for ILC and withheld an adjudication of guilt on the condition that Phillips successfully complete her ILC plan.
{¶ 3} Five months after Phillips was placed on ILC, Phillips' probation officer filed a request for an ILC revocation hearing on grounds that Phillips had allegedly violated certain terms of her ILC plan. The trial court thereafter held an ILC revocation hearing, during which Phillips admitted to violating the terms of her ILC plan by refusing to complete the MonDay Program. Based on that admission, the trial court revoked Phillips' ILC.
{¶ 4} After revoking Phillips' ILC, the trial court sentenced Phillips for the aggravated possession of drugs offense to which she pled guilty. In doing so, the trial court imposed a term of community control with the only sanction being that Phillips serve six months in jail. The trial court ordered Phillips' community control to be terminated as unsuccessful once Phillips completed the six-month jail term. The trial court also ordered Phillips to pay "all costs previously ordered." Trans. (Mar. 24, 2021), p. 3. Specifically, the trial court ordered Phillips to pay $130 to the assigned-counsel-budget fund, a $250 supervision fee, and court costs. Phillips then appealed from her conviction.
{¶ 5} In proceeding with the appeal, Phillips' appellate counsel filed a brief under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any issues with arguable merit for appeal. On October 14, 2021, we rejected the Anders brief after finding at least two issues with arguable merit for appeal. We therefore appointed new appellate counsel to represent Phillips and ordered counsel to file a brief addressing the issues we identified, as well as any other issues that counsel deemed appropriate. Phillips' new counsel thereafter filed an appellate brief asserting two assignments of error for review. Both assignments of error challenge the portion of Phillips' sentence ordering her to pay a $130 appointed-counsel fee and a $250 supervision fee.
{¶ 6} While Phillips' Anders appeal was pending before this court, Phillips completed her six-month jail term, and the trial court issued an entry terminating Phillips' community control. Because Phillips completed her jail term and had her community control terminated, the State contends that the instant appeal is moot. Therefore, before reviewing Phillips' assignments of error, we will first address the State's mootness claim.
{¶ 7} The State argues that the instant appeal is moot because Phillips is not challenging her felony conviction but only her sentence, which the State claims Phillips has already served by virtue of the trial court terminating her community control. The State therefore asserts that this court can no longer provide any meaningful relief to Phillips on appeal. We, however, disagree.
{¶ 8} "As a general rule, when a convicted defendant '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. Muwwakkil, 2d Dist. Clark No. 2018-CA-37, 2018-Ohio-4443, ¶ 7, quoting State v. Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), syllabus. "A collateral disability is an adverse legal consequence of a conviction or judgment that survives despite the court's sentence having been satisfied or served." (Citation omitted.) In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10. "For example, a person may be subject to further penalties or disabilities under state or federal law even after a judgment has been satisfied." (Citation omitted.) Id.
{¶ 9} However," 'an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal[, ]' because '[a] person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed upon him or her.'" Muwwakkil at ¶ 8, quoting State v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109 (1994), syllabus; Cyran v. Cyran, 152 Ohio St.3d 484, 2018-Ohio-24, 97 N.E.3d 487, ¶ 9, citing Golston at 227 ().
{¶ 10} That said, "[t]he analysis is different * * * when the appeal relates not to a defendant's felony conviction but, instead, to an already-served sentence." State v. Ingledue, 2d Dist. Clark No. 2018-CA-47, 2019-Ohio-397, ¶ 9. This is because" '[i]f an individual has already served his [or her] sentence and is only questioning whether or not the sentence was correct, there is no remedy that can be applied that would have any effect in the absence of a reversal of the underlying conviction." '" State v. Wright, 2d Dist. Montgomery No. 26471, 2015-Ohio-3919, ¶ 25, quoting State v. Montavon, 10th Dist. Franklin No. 12AP-631, 2013-Ohio-2009, ¶ 6, quoting Columbus v. Duff, 10th Dist. Franklin No. 04AP-901, 2005-Ohio-2299, ¶ 12. Therefore, "[a]n appeal attacking an already-served felony sentence is moot when there is no indication that the sentence, as opposed to the conviction, will cause the defendant to suffer some collateral disability or loss of civil rights." Ingledue at ¶ 10, citing Wilson at 237-238 and Muwwakkil at ¶ 7.
{¶ 11} As previously noted, the State asserts that the instant appeal is moot because Phillips is only challenging her felony sentence, which the State claims Phillips has already served since the trial court terminated her community control. "[W]hen a trial court terminates or revokes a defendant's community control, it is implicit that the term of community control ends." State v. Filous, 2017-Ohio-7203, 95 N.E.3d 573, ¶ 10 (4th Dist.). Once community control is terminated, the trial court lacks jurisdiction to compel the defendant to pay court costs, fines, and restitution that were imposed as conditions of the defendant's community-control sentence. State v. Hostetter, 6th Dist. Sandusky No. 5-10-052, 2012-Ohio-5003, ¶ 7-8; State v. Parker, 1st Dist. Hamilton No. C-140179, 2015-Ohio-274, ¶ 7.
{¶ 12} In this case, the record indicates that the only community control sanction imposed by the trial court was a six-month jail term, as the trial court stated the following at Phillips' sentencing hearing: "I'm gonna sentence you to community control sanctions with the only sanction being that you'll serve six additional months or 180 days from today in jail, after which time your supervision will be terminated as unsuccessful." (Emphasis added.) Trans. (Mar. 24, 2021), p. 3. After making that statement, the trial court advised Phillips that it was also ordering her "to pay all costs as previously ordered." Id. These statements by the trial court indicate that the order for Phillips to pay previously imposed costs was not imposed as a community control sanction. This is also reflected in the corresponding termination entry, which imposed the costs as a "Financial Obligation" as opposed to a "Financial Sanction" that was imposed as a condition of Phillips' community control. See Termination Entry (Mar. 30, 2021).
{¶ 13} The previously imposed costs that the trial court ordered Phillips to pay included the $130 appointed-counsel fee and the $250 supervision fee. There is nothing in the record indicating that the trial court waived these financial obligations when it terminated Phillips' community control. Moreover, the record indicates that Phillips has not paid any of these financial obligations. Therefore,...
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