City of Cleveland Heights v. Lewis

[Cite as Cleveland Hts. v. Lewis, 

129 Ohio St.3d 389

, 

2011-Ohio-2673

.]




        CITY OF CLEVELAND HEIGHTS, APPELLANT, v. LEWIS, APPELLEE.
    [Cite as Cleveland Hts. v. Lewis, 

129 Ohio St.3d 389

, 

2011-Ohio-2673

.]
Criminal procedure — Mootness of misdemeanor appeal after sentence is served.
     (No. 2010-1203 — Submitted March 23, 2011 — Decided June 8, 2011.)
       CERTIFIED by the Court of Appeals for Cuyahoga County, No. 92917,
                       

187 Ohio App.3d 786

, 

2010-Ohio-2208

.
                                  __________________
                               SYLLABUS OF THE COURT
1. The completion of a sentence is not voluntary and will not make an appeal
        moot if the circumstances surrounding it demonstrate that the appellant
        neither acquiesced in the judgment nor abandoned the right to appellate
        review, that the appellant has a substantial stake in the judgment of
        conviction, and that there is subject matter for the appellate court to
        decide.
2. The expiration of an inactive period of probation during the pendency of an
        appeal does not render the appeal moot because the misdemeanant failed
        to file a motion for stay in the appellate court where the misdemeanant
        unsuccessfully sought a stay of execution from the trial court to prevent an
        intended appeal from being declared moot and subsequently filed a notice
        of appeal to challenge the conviction.
                                  __________________
        O’DONNELL, J.
        {¶ 1} The Eighth District Court of Appeals certified that a conflict exists
between its decision in this case and decisions of the Second and Seventh District
Courts of Appeals on the following question: “Whether an appeal is rendered
moot when a misdemeanor defendant serves or satisfies his sentence after
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unsuccessfully moving for a stay of execution in the trial court, but without
seeking a stay of execution in the appellate court.”
       {¶ 2} The Second District Court of Appeals in Dayton v. Huber,
Montgomery App. No. 20425, 

2004-Ohio-7249

, 

2004 WL 3561217

, and the
Seventh District Court of Appeals in Carroll Cty. Bur. of Support v. Brill, Carroll
App. No. 05 CA 818, 

2005-Ohio-6788

, 

2005 WL 3489763

, concluded that when
a trial court denies a stay of execution of sentence, an appellant must also seek a
stay in the appellate court to avoid a determination that the appeal is moot upon
completion of the sentence. In its conflicting decision in this case, the Eighth
District Court of Appeals held that an appellant who has been denied a stay of
execution in the trial court is not required to seek an additional stay in the
appellate court to prevent the matter from becoming moot upon completion of the
sentence pending appeal.
       {¶ 3} Strong evidence of intent to challenge the criminal charge exists in
the instant case because appellee, Warren Lewis, elected to be tried on the matter
in the trial court, and the trial resulted in a conviction on only one count and a
sentence consisting of a fine, court costs, a suspended three-day jail term, and a
period of inactive probation. Thereafter, he sought a stay of execution of sentence
to avoid the appeal becoming moot, but the trial court denied the stay. Lewis then
paid the fine and costs and filed a notice of appeal, but did not seek a stay from
the appellate court.     These circumstances demonstrate that Lewis neither
acquiesced in the judgment nor abandoned his right to appeal and thus did not
voluntarily complete the sentence pending appeal. Accordingly, Lewis had a
substantial interest in the appeal, and the appellate court had subject matter to
decide, and the appeal did not become moot.
       {¶ 4} Accordingly, we answer the certified question in the negative and
affirm the judgment of the Eighth District Court of Appeals.
                           Facts and Procedural History




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                                January Term, 2011




        {¶ 5} On June 21, 2008, Officer Duane Clayborn of the Cleveland
Heights Police Department responded to a fight involving three female teenagers.
After questioning each to determine who had started the fight, he ultimately
decided to charge all three with disorderly conduct because of hostile responses
he received from parents of the girls.
        {¶ 6} When Warren Lewis arrived home from work, he noticed police
cruisers parked in front of his house. His wife told him that his daughter had been
attacked by two girls, and he saw the police talking to their parents down the
street. Lewis and his wife approached the officers with a copy of a police report
showing that his daughter had been attacked several days earlier by these same
girls; Officer Clayborn, however, ordered Lewis and his wife to return to their
home and told them that his daughter would also be charged in the incident.
        {¶ 7} When Officer Clayborn approached Lewis for the information
needed to file the charge against his daughter, Lewis refused to talk to him
because, in his view, the officer had treated his daughter as an assailant rather
than a victim. The officer then approached Lewis’s wife, who had started to leave
for work. According to Officer Clayborn, Lewis told his wife not to provide any
information to him, but Lewis maintained that he told his wife only that the
officer could not detain her. Officer Clayborn returned to Lewis and demanded
his daughter’s address, but Lewis refused to cooperate. Officer Clayborn then
arrested Lewis and charged him with obstructing official business by “refus[ing]
to give information on his daughter who was being charged” and for resisting
arrest by allegedly struggling with the officer as he attempted to place Lewis in
the patrol car.
        {¶ 8} At a bench trial, the court acquitted Lewis of resisting arrest but
convicted him of obstructing official business, and it sentenced him to a
suspended term of three days in jail, placed him on inactive probation for six
months, and imposed a $100 fine and court costs, which he paid.



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          {¶ 9} The next day, Lewis moved to stay execution of his sentence,
stating that he intended to appeal the finding of guilt because it could affect his
employment and arguing that “without a stay, or at least a request for a stay, the
Court of Appeals could find the appeal moot.” The trial court nonetheless denied
the stay.
          {¶ 10} Lewis then appealed to the Eighth District Court of Appeals, but he
did not seek a stay of execution of his sentence from the appellate court. Because
he had paid his fine and costs, and due to the inactive status of his probation, he
completed the sentence during the pendency of his appeal. Although neither
Lewis nor the city of Cleveland Heights addressed whether the expiration of the
term of probation rendered the appeal moot, the court of appeals raised that issue
at oral argument. Cleveland Hts. v. Lewis, 

187 Ohio App.3d 786

, 2010-Ohio-
2208, 

933 N.E.2d 1146, ¶ 7-8

.
          {¶ 11} The appellate court sua sponte convened an en banc conference to
consider the issue, and in its opinion, the court noted its prior holding that “ ‘
“[u]nless one convicted of a misdemeanor seeks to stay the sentence imposed
pending appeal or otherwise involuntarily serves or satisfies it, the case will be
dismissed as moot unless the defendant can demonstrate a particular civil
disability or loss of civil rights specific to him arising from the conviction.” ’ ”
Id. at ¶ 10, quoting Oakwood v. Pfanner, Cuyahoga App. No. 90664, 2009-Ohio-
464, 

2009 WL 270500

, ¶ 4, quoting Cleveland v. Martin, Cuyahoga App. No.
79896, 

2002 WL 568302

, *3. The Eighth District determined that although Lewis
had not demonstrated a collateral consequence stemming from the conviction, he
had not voluntarily served his sentence, because he had sought a stay in the trial
court. As a result, the appellate court declined to require Lewis to seek an
additional stay in the court of appeals in order to preserve the justiciability of his
appeal.
          {¶ 12} Regarding the merits of the appeal, the Eighth District reversed
Lewis’s conviction for obstructing official business because it was not supported


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                                January Term, 2011




by the evidence, in that Lewis had not taken affirmative action to impede the
investigation and Officer Clayborn admitted that Lewis’s refusal to answer his
questions had not prevented him from performing his duties. Id. at ¶ 37-39.
       {¶ 13} The appellate court then certified that its decision conflicted with
decisions from the Second District in Dayton v. Huber, Montgomery App. No.
20425, 

2004-Ohio-7249

, 

2004 WL 3561217

, and from the Seventh District in
Carroll Cty. Bur. of Support v. Brill, Carroll App. No. 05 CA 818, 2005-Ohio-
6788, 

2005 WL 3489763

. We agreed to resolve the conflict.
                          Positions Regarding Mootness
       {¶ 14} Cleveland Heights asserts that a misdemeanant voluntarily serves a
sentence by not seeking a stay of execution in both the trial court and the
appellate court. Thus, according to the city, Lewis’s appeal became moot because
he had paid the fine and court costs, the six-month period of inactive probation
had expired during the pendency of his appeal, and Lewis had neither moved for a
stay in the appellate court prior to completion of the sentence nor demonstrated
the existence of any collateral consequences resulting from the conviction. For
these reasons, the city urges that his conviction should be reinstated.
       {¶ 15} Lewis contends that the appeal of a misdemeanor conviction is
never rendered moot by serving the sentence, even if the defendant fails to allege
that the conviction will subject him to a collateral consequence and even if he
does not move for a stay in the trial court or in the appellate court. Lewis
maintains that a misdemeanant who is tried by a judge or jury and is convicted
does not voluntarily serve the sentence imposed, but rather does so by order of the
court. Also, he points out that he did not accept his conviction or voluntarily serve
his sentence, because he asked the trial court to stay execution of sentence and he
appealed the judgment of conviction. Further, he indicates that no decision of the
Eighth District Court of Appeals requires him to take the additional step of
seeking a stay in the appellate court in order to maintain his appeal and prevent it
from being declared moot.


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                              SUPREME COURT OF OHIO




       {¶ 16} Thus, we are called upon to clarify the law regarding a convicted
misdemeanant who unsuccessfully seeks a stay from the trial court and thereafter
pays the fine and costs while on inactive probation that expires during the
pendency of the appeal.
                              The Mootness Doctrine
       {¶ 17} At common law, courts considered appeals in criminal cases to be
moot if the appellant had completed the sentence prior to a ruling on the appeal on
the basis that if a sentence had been served, a favorable judgment could not
“operate to undo what has been done or restore to petitioner the penalty of the
term of imprisonment which he has served.” St. Pierre v. United States (1943),

319 U.S. 41, 42-43

, 

63 S.Ct. 910

, 

87 L.Ed. 1199

; see generally 7 Lafave, Isreal,
King & Kerr, Criminal Procedure (3d Ed.2007), Section 27.5(a).
       {¶ 18} In accordance with this rule, we held in State v. Wilson (1975), 

41 Ohio St.2d 236

, 

70 O.O.2d 431

, 

325 N.E.2d 236

, 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.” (Emphasis
added.) 

Id.

 at syllabus. Moreover, in State v. Berndt (1987), 

29 Ohio St.3d 3, 4

,
29 OBR 173, 

504 N.E.2d 712

, we determined that it is reversible error for an
appellate court to consider the merits of an appeal that has become moot after the
defendant has voluntarily satisfied the sentence, holding that “[w]here the
appellate court hears and decides an appeal that is moot, the judgment of the
appellate court will be reversed and the trial court's judgment reinstated, as if the
appeal had been dismissed.”
       {¶ 19} Nonetheless, recognizing the various statutory and societal
consequences attaching to a felony conviction, the court in State v. Golston
(1994), 

71 Ohio St.3d 224

, 

643 N.E.2d 109

, adopted a conclusive presumption
that “[a] person convicted of a felony has a substantial stake in the judgment of


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                                 January Term, 2011




conviction which survives the satisfaction of the judgment imposed upon him or
her. Therefore, an appeal challenging a felony conviction is not moot even if the
entire sentence has been satisfied before the matter is heard on appeal.”       

Id.

 at
syllabus. We thus limited the holdings in Wilson and Berndt to appeals from
misdemeanor convictions in which the appellant has voluntarily completed the
sentence and in which no collateral consequences resulted from the conviction.

Golston at 227

.
       {¶ 20} We have not yet considered what it means to “voluntarily”
complete a sentence for purposes of the mootness doctrine, and the question of
whether a misdemeanant must seek to stay execution of sentence both in the trial
court and in the appellate court to preserve the justiciability of the appeal in these
circumstances appears to be one of first impression for this court.
       {¶ 21} The Supreme Court of Louisiana, however, recently addressed a
similar issue in State v. Malone (La.2009), 

25 So.3d 113

, which is instructive.
The court noted that Louisiana had continued to follow the traditional rule that
“the satisfaction of the sentence renders the case moot so as to preclude review.”

Id. at 116

. However, it also explained that completion of the sentence is not
voluntary and will not moot the appeal if the circumstances show that the
appellant did not intend to “acquiesc[e] in the judgment, or abandon[] [the] right
to review.” 

Id. at 123-124

. The court further stated that seeking appellate review
prior to completing the sentence, moving for a stay of the sentence or for
postconviction bail, and making a record that the sentence has been completed
under protest each support a determination that the misdemeanant did not
voluntarily satisfy the sentence. 

Id. at 124-125

. Notably, the Supreme Court of
Louisiana emphasized: “The defendant could * * * have requested a stay of the
execution of the sentence pending appellate review * * *. Even if his request had
been denied, the completion of the sentence would have been involuntary, thus
indicating an intent to retain his right to appellate review.” 

Id. at 124

.



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                             SUPREME COURT OF OHIO




       {¶ 22} This analysis complements that employed by Ohio courts in
determining questions regarding mootness on appeal.
       {¶ 23} Thus, a misdemeanant who contests charges at trial and, after
being convicted, seeks a stay of execution of sentence from the trial court for the
purpose of preventing an intended appeal from being declared moot and thereafter
appeals the conviction objectively demonstrates that the sentence is not being
served voluntarily, because no intent is shown to acquiesce in the judgment or to
intentionally abandon the right of appeal. These circumstances also demonstrate
that the appellant has “a substantial stake in the judgment of conviction,” Wilson,

41 Ohio St.2d at 237

, 

70 O.O.2d 431

, 

325 N.E.2d 236

, so that there is “subject
matter for the court to decide.” In re S.J.K., 

114 Ohio St.3d 23

, 

2007-Ohio-2621

,

867 N.E.2d 408, ¶ 9

.
       {¶ 24} Here, Lewis contested the state’s case at trial. Although the court
acquitted him of resisting arrest, it convicted him of obstructing official business
for refusing to give the officer information about his daughter. Following his
conviction, Lewis paid the fine and costs imposed but unsuccessfully sought a
stay of execution from the trial court to prevent the intended appeal from
becoming moot. He then appealed his conviction, but the six-month term of
inactive probation expired during the pendency of that appeal. Notably, however,
Lewis’s sole assignment of error related to the court’s finding of guilt, and the
appellate court could have provided redress of his claim that he had been
wrongfully convicted, notwithstanding the completion of the sentence.
       {¶ 25} These facts demonstrate that Lewis neither acquiesced in the
judgment nor abandoned the right to appellate review. Therefore, it cannot be said
that he voluntarily completed the sentence imposed by the court, and his appeal
did not become moot, because the circumstances demonstrate that Lewis
maintained a substantial stake in the judgment of conviction and there is subject
matter for the appellate court to decide.
                                    Conclusion


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                                January Term, 2011




       {¶ 26} The completion of a sentence is not voluntary and will not moot an
appeal if the circumstances surrounding it demonstrate that the appellant neither
acquiesced in the judgment nor abandoned the right to appellate review, that the
appellant has a substantial stake in the judgment of conviction, and that there is
subject matter for the appellate court to decide. Thus, the expiration of an inactive
period of probation during the pendency of an appeal does not render the appeal
moot because the misdemeanant failed to file a motion to stay in the appellate
court where the misdemeanant unsuccessfully sought a stay of execution from the
trial court to prevent an intended appeal from being declared moot and
subsequently filed a notice of appeal to challenge the conviction.
       {¶ 27} Accordingly, we answer the certified question in the negative and
affirm the judgment of the Eighth District Court of Appeals.
                                                                  Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, CUPP, and MCGEE
BROWN, JJ., concur.
       LANZINGER, J., concurs in judgment only.
                               __________________
       LUNDBERG STRATTON, J., concurring.
       {¶ 28} While I concur in the majority’s decision, I write separately to
highlight the extent of the collateral consequences of a misdemeanor conviction in
today’s world.
       {¶ 29} Employment rights may be affected, including the ability to obtain
and maintain licenses for dozens of activities from teaching (R.C. 3319.31 and
3319.39(B)(1)), to practicing law (Gov.Bar R. 1), to auctioneering (R.C.
4707.02), to transporting inmates (Ohio Adm.Code 5120:1-1-35(G)), to
embalming (R.C. 4717.14), to cosmetology (Ohio Adm.Code 4713-1-07) to
operating bingo games (R.C. 2915.09) and everything in between.
       {¶ 30} In addition to affecting licensure and employment, misdemeanor
convictions also affect civil, political, and legal rights. This category of collateral


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                              SUPREME COURT OF OHIO




consequences includes effects on qualifications for approval as an adoptive parent
(Ohio Adm.Code 5101:2-48-10) or foster caregiver (Ohio Adm.Code 5101:2-7-
02) and loss of rights related to firearms (R.C. 2923.13).
        {¶ 31} In addition to these direct consequences, there are also dozens of
provisions of the Ohio Revised Code that use a prior misdemeanor conviction to
enhance the severity of a later criminal charge or penalty.         Examples of
misdemeanors that can result in penalty enhancement include nonsupport (R.C.
2919.21(G)(1)), gambling (R.C. 2915.02(F) and 2915.03(B)), telecommunications
harassment (R.C. 2917.21(C)(2)), and election falsification (R.C. 3599.11(B)(2)
and (C)).
        {¶ 32} In addition to collateral consequences under state law, a
misdemeanor conviction can lead to many consequences under federal law, such
as loss of financial aid for education (Section 1091(r), Title 20, U.S.Code),
ineligibility for public housing (Sections 5.854, 5.855, and 960.203, Title 24,
C.F.R.), and effects on immigration status (Sections 1182(a)(2) and
1227(a)(2)(A)(iii), Title 8, U.S.Code) and government employment (Section
44936, Title 49, U.S.Code).
        {¶ 33} In addition to the government realm, collateral consequences can
also arise in the private realm. Because anyone may obtain the criminal history of
another under Ohio Adm.Code 109:5-1-01, private employers, landlords, insurers,
educational institutions, and others may obtain information on misdemeanor
convictions and use it in their decision-making processes.
        {¶ 34} Gone are the days when a misdemeanor conviction resulted in little
or no real collateral consequences. Rather, the collateral consequences resulting
from a misdemeanor conviction today are real and significant. Accordingly, I
concur in the judgment of the majority in holding that the completion of a
misdemeanor sentence will not make an appeal moot if the appellant sought a
stay.
        MCGEE BROWN, J., concurs in the foregoing opinion.


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                               January Term, 2011




                              __________________
       LANZINGER, J., concurring in judgment only.
       {¶ 35} I concur in judgment only.
       {¶ 36} We have never explicitly required that a misdemeanor appellant
must request a stay in the court of appeals to prevent a sentence from taking effect
before an appeal may be considered. App.R. 8(B) allows, but does not require, an
application for suspension of the execution of a sentence pending appellate
review. The completion of Lewis’s sentence of inactive probation may have
mooted the appellate court’s consideration of sentencing issues, but given the
facts of this case, it did not moot the consequences of his conviction. And as
detailed in the concurrence by Justice Lundberg Stratton, the collateral
consequences of a conviction can be significant.
                              __________________
       Kim T. Segebarth, Cleveland Heights Prosecuting Attorney, and Brendan
D. Healy, Assistant Law Director, for appellant.
       Kenneth D. Myers, for appellee.
       Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney
and Nathaniel J. McDonald, Assistant Public Defenders, and Mark S. Gallagher,
urging affirmance on behalf of amici curiae Cuyahoga County Public Defender,
Ohio Association of Criminal Defense Lawyers, and Towards Employment.
       D. Jim Brady, urging affirmance on behalf of amicus curiae D. Jim Brady.
                            ______________________




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