Cleveland v. Harris

2021 Ohio 305

• Court: Ohio Court of Appeals
• Decided: February 4, 2021
• Docket: 108677
• Status: Published

Opinion

[Cite as Cleveland v. Harris, 2021-Ohio-305.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, : No. 108677 v. :

ERNEST C. HARRIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: February 4, 2021

Criminal Appeal from the Cleveland Municipal Court Housing Division Case No. 2018 CRB 001309

Appearances:

Ernest C. Harris, pro se.

MARY EILEEN KILBANE, J.:

Defendant-appellant, Ernest C. Harris (“Harris”), appeals from the

decision of the Cleveland Municipal Housing Court that found him in violation of

the terms of his community control sanctions and ordered him to serve 180 days in

jail. For the reasons that follow, we dismiss the appeal as moot. Factual History

Harris’s community control was originally imposed because a

property associated with Harris, 12826 Marston Avenue, was allegedly in violation

of Cleveland’s housing code. The property was in disrepair — boarded up,

dilapidated, and with multiple other violations. Harris was not paying taxes on the

property and multiple individuals were living in the house, many of whom allegedly

were using drugs. As a result, neighbors had complained and city officials had

gotten involved to petition the Cleveland Municipal Housing Court directly for relief.

However, the property in question does not legally belong to Harris; he does not

have legal title to the property and states that he does not always occupy the

property, instead often living in a homeless shelter. The property previously

belonged to Harris’s family members who are now deceased. The housing court still

imposed community control for the housing code violations, and later found Harris

to be in violation, in part, for not remedying the problems with the property.

On December 19, 2017, Harris was charged for failure to comply with

an order of the Cleveland Building Department, a first-degree misdemeanor

pursuant to Cleveland Codified Ordinances 3103.25(E). According to Harris, the

house had been condemned while he was serving a felony sentence. He returned to

the house to help a childhood friend take care of the property, but she passed away

before the charges were brought.

Harris disputed the charges from the start, and the case was

continued multiple times at Harris’s request. Harris finally appeared for a hearing on August 30, 2018, at the Cleveland Municipal Housing Court. During the hearing,

the judge informed Harris that he was placing him on five years active community

control and that Harris was to address the multiple violations at the property. The

court was informed by concerned members of the community that multiple people

were living in the home and using drugs on the property. Harris admitted that

people lived in the home, and that he was attempting to help individuals returning

from prison reintegrate into society. Harris also informed the court that he did not

permanently live in the property. The judge informed Harris that he could not use

the property for a “reentry program,” because the property was not zoned for that

sort of facility.

In addition to maintenance of the property, the terms of Harris’s

community control included the requirement that Harris enter into a payment plan

by September 21, 2018, for property taxes, maintenance costs, and utilities. Harris

was also required to ask the court’s permission before allowing any person to stay at

the property. The court also sentenced Harris to 50 hours of court work service.

Finally, the court informed Harris that violation of the terms of his community

control sanctions could result in consequences, including up to 18 months in jail.

A status hearing was scheduled for September 27, 2018; Harris failed

to appear.

Harris was arrested on drug charges on January 16, 2019, and was

held until a community control violation hearing could be held. Harris appeared

before the housing court judge on January 23, 2019. On January 23, 2019, plaintiff-appellee the city of Cleveland (“the

city”), informed the court that Harris was in violation of the terms of his community

control. Harris had failed to make any payments to the city for property taxes, he

had failed to complete any court community work service hours, and Harris had

allowed individuals to stay at his property without the court’s permission.

The court noted that Harris was convicted of 26 first-degree

misdemeanors and that the court could sentence Harris to up to 18 months in jail,

but the court chose not to. The court found that Harris had not complied with the

terms of his community control; as a result, the court sentenced Harris to 180 days

in jail.

Procedural History

Harris instituted this appeal pro se and requested the appointment of

counsel, which was granted on June 14, 2019. Counsel filed a motion for a limited

remand in order to address sentencing issues that placed the finality of the order in

this appeal in question. Specifically, the entry appealed imposed a blanket sentence

and did not reflect a separate sentence for each of the 26 counts of conviction. The

motion for limited remand was granted and the matter was returned to the

Cleveland Municipal Housing Court on November 11, 2019, for further proceedings.

The lower court was directed to conform the sentencing entry to what was imposed

in open court if separate sentences had been imposed on every count or conduct a

resentencing hearing. In status updates to this court, counsel represented difficulty reaching

Harris. The docket further indicates that the remand proceedings were extended

due to the trial court’s difficulty perfecting service on Harris. On or about February

13, 2020, the Cleveland Municipal Housing Court terminated the term of

community control sanctions and the case was closed. On March 2, 2020, counsel

reported to this court that while the sentencing issue was not addressed, the trial

court had terminated the probation and closed the case. Counsel asserted there was

not a final, appealable order in this appeal and that completion of the sentence

rendered the instant appeal moot. On March 9, 2020, this court recognized that the

case was closed but allowed the appeal to proceed based on the authority that

termination of probation does not render an appeal moot when the appellant has

suffered a collateral disability or loss of civil rights, citing Lakewood v. Smyczek, 8th

Dist. Cuyahoga No. 108369, 2020-Ohio-271. The court set appellant’s brief deadline

for March 26, 2020. On that day, counsel for Harris filed a motion to continue again

reporting difficulty contacting Harris.

On December 20, 2019, a second attorney had entered an appearance

as “additional counsel” for Harris in this appeal. Both of Harris’s counsel filed

separate Anders briefs that are essentially identical in content. Both attorneys

indicated they had little to no contact with Harris despite diligent efforts to reach

him. Both attempted to determine Harris’s ownership status of property. Appellate

counsel were unable to determine whether Harris suffered collateral damage as a

result of his convictions and sentence in the Housing Court. Both attorneys moved to withdraw from the case and the motions

were referred to this panel for review. Harris was permitted leave to file a pro se

brief by July 6, 2020. After being granted extensions of time, Harris filed a brief on

August 6, 2020.

There is no appellee brief in this case.

We initially note that the trial court did not address our jurisdictional

concerns on the remand and it remains unsettled whether the trial court ever

imposed separate sentences on each count of conviction. Nonetheless, the trial court

has terminated Harris’s probation and closed the case. Harris has already served

his 180 days in jail and Harris has not informed this court of any collateral

consequences stemming from his convictions and sentence. We cannot examine

whether Harris is suffering any collateral consequences resulting from his

community control. Although we are left with significant concerns as to the

troubling history of this case, there is no relief this court can grant to the narrow

question before us. We dismiss this appeal as moot.

Law and Analysis

Anders Briefs

This court has previously provided clear instruction on what a

compliant brief under Anders v. California, 386 U.S.738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967), requires:

We believe it self-evident that any motion to withdraw as counsel on grounds that an appeal is wholly frivolous must contain a discussion of why the appeal is frivolous. At all times, an Anders brief is to support a motion to withdraw as counsel and, like any other movant, counsel, in these circumstances bears the burden of showing why the motion should be granted. The mere representation that an appeal is frivolous is nothing more than a conclusion that does not carry the burden of showing why the motion to withdraw as counsel should be granted. To allow counsel to do nothing more than list potential assignments of error begs the question of why those potential assigned errors are frivolous.

It is for this reason that a conforming Anders brief must refer “to anything in the record that might arguably support the appeal[.]” McCoy, 486 U.S. 429, 108 S.Ct. 1895, 100 L.Ed.2d 440, supra. This is the only way in which counsel can show that any argument raised on appeal would lack any basis in law or fact. We therefore find that a complying Anders brief must not only state any potential assignments of error that the particular type of case might be expected to involve, it must include a discussion citing relevant law and facts showing why those potential assignments are frivolous.

State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 8-9.

Harris has two appellate attorneys on this case — one appointed by

this court to represent Harris as an indigent defendant and another attorney who

entered an appearance as additional counsel for Harris. Neither attorney strictly

complied with Anders requirements.

Counsel must supply this court with a brief that fully examines the

record and provides a thorough explanation as to anything in the record that

supports an argument on appeal. Anders at 744. Both briefs, effectively identical,

relayed that Harris has already served his sentence and stated the belief that there

were no collateral consequences as a result of his community control violation. Both

attorneys stated that Harris is not the owner of the property and therefore could not

suffer any collateral consequences. All of this was presented to the court in a few

short sentences. This level of analysis is insufficient. While our examination of the record led to the same result counsel

believed it would, the purpose of appointed appellate counsel is to provide indigent

defendants with a full defense, even when submitting an Anders brief. That did not

occur here. Harris has potentially suffered a grave injustice. A casual examination

is insufficient for any indigent client, much less one in Harris’s unique

circumstances. Nonetheless, counsel’s motions to withdraw are rendered moot

based on our finding that the appeal is moot.

Harris’s pro se brief presents no assignments of error for our review.

Harris did not argue that he has suffered any collateral legal consequence as a result

of his community control violation.

Harris argued that he did not violate the terms of his community

control. We are unable to reach the more critical questions of whether Harris should

have been charged with community control in the first place. Our record is limited

to two brief transcripts of two different hearings: one where Harris was charged for

violations of Cleveland’s housing code and community control was imposed and

another hearing where Harris was sentenced to 180 days in jail for violating his

community control. Those transcripts and Harris’s pro se brief do not reveal much

about the underlying housing code violations.

A collateral consequence is an adverse legal consequence of a

conviction or judgment that survives despite the court’s sentence having been

satisfied or served. In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d

408, ¶ 10. Without some collateral consequence to address — when a defendant is no longer serving his sentence — there is no remedy this court may provide. State

v. Santiago, 8th Dist. Cuyahoga No. 101612, 2015-Ohio-1301, ¶ 9.

We have previously found that violating probation does not

automatically create a collateral consequence, and that the appellant must provide

evidence of a collateral consequences. Smyczek, 8th Dist. Cuyahoga No. 108369,

2020-Ohio-271, ¶ 10. As Harris has not presented this court with any evidence of a

collateral consequence, has served his sentence, and the court has terminated his

probation, we find that there is no remedy we may provide. The appeal is dismissed

as moot. Counsel’s motions to withdraw are denied as moot.

It is ordered that appellee recover from appellant costs herein taxed.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., P.J., and LISA B. FORBES, J., CONCUR