State v. Williams

• Decision Date: 05 June 1992
• Docket Number: No. 60323,60323
• Parties: The STATE of Ohio, Appellee, v. WILLIAMS, Appellant. *
• Court: Ohio Court of Appeals

Page 542

80 Ohio App.3d 542

609 N.E.2d 1307

The STATE of Ohio, Appellee, v. WILLIAMS, Appellant. ^*

No. 60323.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided June 5, 1992.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Atty., Cleveland, and John A. Clough, Asst. Prosecuting Atty., Cleveland, for appellee.

Paul Mancino, Jr., Cleveland, for appellant.

JAMES D. SWEENEY, Judge.

Defendant-appellant, Montell Williams, was charged under the drug law in violation of R.C. 2925.11, and of possession of criminal tools in violation of R.C. 2923.24. On July 10, 1990, the jury returned a verdict of guilty, and on July 24, 1990, the judge sentenced appellant to a term of six months' incarceration on each count, to run concurrently. Appellant was also ordered to pay costs.

Appellant timely filed his appeal, and set forth eight assignments of error. No stay of execution of sentence pending appeal is indicated in the record. Absent any contrary facts in the record, this court presumes regularity and assumes the appellant completed his sentence.

The Supreme Court set forth the test for mootness under these circumstances in State v. Berndt (1987), 29 Ohio St.3d 3, 4, 29 OBR 173, 174, 504 N.E.2d 712, 713:

"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."

Appellant in the case sub judice has not presented any evidence from which an inference can be drawn that he will suffer some collateral legal disability or loss of civil rights. Therefore, this appeal is dismissed as moot.

This cause is dismissed.

Appeal dismissed.

FRANCIS E. SWEENEY, J., concurs.

DYKE, P.J., dissents.

DYKE, Presiding Judge, dissenting.

I respectfully dissent. The law does not compel this court to dismiss the appeal of a felony conviction as moot.

The two cases in which the Ohio Supreme Court has set forth its test for mootness where the appellant has served his or her sentence are State v. Wilson (1975), 41 Ohio St.2d 236, 70 O.O.2d 431, 325 N.E.2d 236, and State v. Berndt (1987), 29 Ohio St.3d 3, 29 OBR 173, 504 N.E.2d 712. Both of these cases are factually distinct from the case at issue here.

Wilson was an appeal from a first degree misdemeanor conviction. The appellant was convicted of carrying a concealed weapon, a three-inch straight razor, under R.C. 2923.12. By the time his appeal reached the appellate court he had paid his fines and court costs.

The appellant in State v. Berndt was convicted of operating a motor vehicle while under the influence of alcohol. The trial court sentenced the appellant to six months' incarceration and a fine of $1,000. The sentence was then suspended except for three days of incarceration and $150 of the fine. He had served his sentence and paid his fine before his appeal reached the appellate court. Driving under the influence of alcohol is a first degree misdemeanor. R.C. 4511.19 and 4511.99.

The appellant herein was convicted of a fourth degree felony offense under R.C. 2923.24, possession of criminal tools. The difference between misdemeanor and felony convictions is a factually and legally relevant distinction.

The previous cases in which this court dismissed the appeals as moot were not based upon felony convictions.

State v. Pence (Apr. 28, 1988), Cuyahoga App. No. 53918, unreported, 1988 WL 39314, was an appeal from an assault conviction under R.C. 2903.13, carrying a six-month suspended sentence and a fine of $500, $450 of which was also suspended. Appellant served his one-year probation and paid the $50 fine and costs. Assault is a first degree misdemeanor. R.C. 2903.13(C). Pence's appeal was dismissed as moot.

State v. Andrews (Oct. 27, 1988), Cuyahoga App. No. 54573, unreported, 1988 WL 114497, was an appeal from a conviction for carrying a concealed weapon, in violation of R.C. 2923.12. This offense is a first degree misdemeanor unless the weapon is a firearm, under certain conditions, or a dangerous ordnance, or if the offender has previously been convicted of violating this section or any violent offense. There is nothing in this court's opinion to indicate that the facts were such in Andrews to render the offense a third degree felony under R.C. 2923.12(D). However, it is safe to assume that Andrews was convicted of a misdemeanor based upon the sentence of one year, suspended. R.C. 2929.11 mandates a minimum sentence of two years, thirty months, three years, or four years for third degree felony convictions. Under R.C. 2929.21 the maximum definite term of incarceration for a first degree misdemeanor is six months. Andrews was not sentenced to a definite term of any length.

State v. Tell (Aug. 23, 1990), Cuyahoga App. No. 56971, unreported, 1990 WL 121322, involved a conviction under R.C. 2923.12, carrying a concealed weapon, a loaded gun. Tell is ambiguous as to whether the conviction was based upon a misdemeanor or felony. On the one hand, the opinion states that the firearm was loaded, a condition which would render the offense a third degree felony. On the other hand, the sentence given to Tell was one year of probation, indicating that the offense was likely a misdemeanor. Either the gun was not really loaded, or was inoperable, or Tell was missentenced. If we are to presume regularity in the proceeding and sentencing, then this court must assume that the offense of which he was convicted is a misdemeanor. In that case, Berndt and Wilson apply to render his appeal moot.

One other case has been cited by our court in support of the mootness rule. State v. Julious (Feb. 6, 1985), Hamilton App. No. C-840372, unreported, 1985 WL 9310, was an appeal from a conviction under R.C. 2925.03(A)(2), trafficking in drugs. Julious was sentenced to concurrent terms of sixty days incarceration and sixty days probation. Given the wide range of penalties based upon different kinds of drugs a defendant can be charged with trafficking, we can only assume that the drug involved was marijuana based upon the term of Julious's sentence. Trafficking in marijuana constitutes a felony of the fourth degree unless the amount involved is twenty grams or less. Because the minimum term for a fourth degree felony is one half, one, one and a half or two years, the presumption arises that the amount involved was less than twenty grams. If that was the case, the offense would constitute a minor misdemeanor, or a third degree misdemeanor for a subsequent offense. R.C. 2925.03(E)(5). The maximum sentence for a third degree misdemeanor is sixty days.

Because of the misdemeanor offenses involved, all of the cases cited fell within the law as set forth by Wilson and Berndt. In the case at issue here, the conviction on appellant's record is for a felony offense. This fact places him in a different position than those appellants who carry only convictions for misdemeanors.

The Supreme Court in Wilson requires that before an appeal is dismissed as moot there be "no possibility that any collateral legal consequences will be imposed upon the basis of the challenged conviction." State v. Wilson, 41 Ohio St.2d at 237, 70 O.O.2d at 432, 325 N.E.2d at 237. Based upon this language, the issue of mootness would not even arise in this case. A convicted felon faces known legal consequences based upon his felony conviction.

For example, Ohio's Revised Code mandates stiffer sentencing guidelines for convicted felons. R.C. 2941.142 mandates actual incarceration for certain felonies. R.C. 2941.143 prohibits a court from sentencing anyone to an indefinite term unless he or she has a prior conviction for an offense of violence or he or she has caused physical harm or made a threat of physical harm to any person with a deadly weapon during the offense currently charged. Under R.C. 2929.12 the court considers the factors listed in determining the minimum term of imprisonment for a felony. One of the factors listed is the offender's history. Depending upon the charge, anyone with a felony conviction on his or her record faces greater legal consequences if he or she ever faces another conviction than someone who has a misdemeanor on record.

Under Evid.R. 609(A), the present law is Ohio allows the use of a prior conviction to impeach a witness "only if the crime (1) was punishable by death or imprisonment in...