State v. Wilson

• Decision Date: 26 March 1975
• Docket Number: No. 74-390,74-390
• Citation: 41 Ohio St.2d 236,325 N.E.2d 236,70 O.O.2d 431
• Parties: , 70 O.O.2d 431 The STATE of Ohio, Appellee, v. WILSON, Appellant.
• Court: Ohio Supreme Court

Page 236

41 Ohio St.2d 236

325 N.E.2d 236, 70 O.O.2d 431

The STATE of Ohio, Appellee, v. WILSON, Appellant.

No. 74-390.

Supreme Court of Ohio.

March 26, 1975.

Syllabus by the Court

Where 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.

Appellant was convicted of carrying a concealed weapon, a three-inch straight razor.

The matter came before the Hamilton County Municipal Court on a motion to suppress the evidence. After the trial court overruled the motion to suppress, the defendant, by his counsel, changed his plea from 'not guilty' to 'no contest.' The trial court found the defendant guilty, and assessed a fine and costs, which the defendant promptly paid. Defendant claimed he would enter the service of the United States Marine Corps the following day. Thereafter, defendant's counsel appealed this case to the Court of Appeals. The state moved to dismiss the appeal upon the ground that, defendant having paid the fine and costs, the question of his guilt of this charge became moot. The Court of Appeals sustained the state's motion and dismissed the appeal.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Thomas A. Luebbers, City Sol., Paul J. Gorman and J. Anthony Sawyer, Cincinnati, for appellee.

Graham, Schaeffer & Beck and Linder J. Beck, Cincinnati, for appellant.

STERN, Justice.

The sole question before this court is whether the payment of a fine and costs in a criminal case renders the conviction moot, so as to preclude review of attack on the conviction or sentence.

The 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. Cf. St. Pierre v. United States (1943), 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199; Fiswick v. United States (1946), 329 U.S. 211, 222, 67 S.Ct. 224, 91 L.Ed. 196. In the case at bar, appellant has failed to show that he has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed on him.

There have been a number of cases decided in which the serving of a sentence did not render a case moot because the conviction, if allowed to stand, would result in collateral disabilities such as a loss of civil rights. United States v. Morgan (1954), 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248; Byrnes v. United States (C.A.9, 1969), 408 F.2d 599; Carafas v. LaVallee (1968), 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (under state law as result of conviction defendant could not engage in certain businesses, could not serve as an official of a labor union, could not vote in elections, could not serve as a juror); Cordle v. Woody (D.C.Va.1972), 350 F.Supp. 479 (prisoner was eligible for parole on another sentence and misdemeanor conviction might have adverse effect on granting of such parole); Street v. New York (1969), 394 U.S. 576, n. 3, 89 S.Ct. 1354, 22 L.Ed.2d 572 (defendant's employer had instituted proceedings which might result in suspending defendant from work without pay if conviction stood); Fiswick v. United States, supra, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (conviction of an alien could weaken his defense to a deportation proceeding and subject him to the loss of certain civil rights); Avon v. Popa (1953), 96 Ohio App. 147, 150, 121 N.E.2d 254 (it appeared that the fine and costs were paid involuntarily, as under duress to prevent imprisonment).

The record in this case nowhere suggests that the defendant contended at the time of trial, or at any stage of the appellate proceedings, that the payment of the fine and costs would result in any collateral disability which would in any manner affect his civil rights.

At the time of trial, the trial court asked the defendant if the conviction in this case would prevent him from going into the military. No answer was made which would support any such claim. After the judgment assessing the fine and costs, the state's attorney, addressing defendant's counsel, asked:

'Mr. Sawyer: Mr. Beck, I don't know if you want to appeal the case, do you have any objection to releasing the knife to the custody of the police officer? Mr. Beck: 'No."

In defendant's memorandum filed in the Court of Appeals in opposition to the state's motion to dismiss the appeal on the basis of mootness, defendant's counsel made no mention of any claimed disability to his client as a result of the conviction.

On oral argument before this court, in response to a question from the bench, defendant's counsel stated that he has neither talked to nor seen the defendant since the trial in the Municipal Court.

It is our holding that where a defendant has voluntarily paid a fine in satisfaction of a judgment, evidence must be offered from which an inference can be drawn that he suffers some collateral disability apart from the sentence (in which event the defendant holds a sufficient stake in the judgment to raise a challenge thereto), in order for the defendant to have a right of appeal.

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and CORRIGAN and PAUL W. BROWN, JJ., concur.

HERBERT, J., concurs in the judgment.

CELEBREZZE and WILLIAM B. BROWN, JJ., dissent.

HERBERT, Justice (concurring in the judgment).

It seems to me that judicial notice can be taken of the 'collateral disability' which accompanies the acquisition by an adult of a criminal record, and that such harm is of sufficient magnitude to overcome a charge of mootness.

The facts here narrowly support an affirmance of the judgment upon the basis of a waiver of the right to appeal, made by this defendant through his retained counsel, and I would prefer that our holding in this case turn upon that hypostasis.

CELEBREZZE, Justice (dissenting).

The majority opinion states that: 'The 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...