State v. Choice

2012 Ohio 197

• Court: Ohio Court of Appeals
• Decided: January 20, 2012
• Docket: 24622
• Status: Published

Opinion

[Cite as State v. Choice, 2012-Ohio-197.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 24622

v. : T.C. NO. 10CR3028/1

ANTHONY D. CHOICE : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

..........

OPINION

Rendered on the 20th day of January , 2012.

LAURA M. WOODRUFF, Atty. Reg. No. 0084161, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

WILMER J. DECHANT, JR., Atty. Reg. No. 0085084, 257 Regency Ridge Drive, Centerville, Ohio 45459 Attorney for Defendant-Appellant

DONOVAN, J.

{¶ 1} Defendant-appellant Anthony D. Choice appeals his conviction and sentence

for one count of assault, in violation of R.C. 2903.13(A), a misdemeanor of the first degree; 2

and one count of criminal damaging, in violation of R.C. 2909.06(A)(1), a misdemeanor of

the third degree. Choice filed a timely notice of appeal with this Court on May 4, 2011.

I

{¶ 2} On November 19, 2010, Choice was indicted for one count of robbery

(physical harm), in violation of R.C. 2911.02(A)(2), a felony of the second degree, and one

count of theft of a firearm, in violation of 2913.02(A)(1), a felony of the third degree. On

April 13, 2011, the charges against Choice were amended by a Bill of Information to one

count of assault, a first degree misdemeanor, and one count of criminal damaging, a second

degree misdemeanor. Choice subsequently pled guilty to both misdemeanor counts at a

hearing held on April 14, 2011. At the plea hearing, the trial court stated that it was

inclined to sentence Choice to community control sanctions on both counts if he maintained

good behavior and refrained from committing other crimes.

{¶ 3} Prior to his sentencing hearing on May 2, 2011, Choice was charged with

aggravated burglary and a weapons offense. At the sentencing hearing, the trial court

determined that the new charges constituted a violation. Thus, the trial court refused to

sentence Choice to community control sanctions as agreed upon at the plea hearing.

Thereupon, Choice orally moved to withdraw his guilty pleas. The trial court overruled

Choice’s motion to withdraw and sentenced him to a term of 180 days in jail for the assault

offense and ninety days in jail for the criminal damaging offense, the sentences to be served

concurrently.

{¶ 4} It is from this judgment that Choice now appeals.

II 3

{¶ 5} Choice advances the following assignments of error:

{¶ 6} “THE TRIAL COURT ERRED BY NOT HOLDING A HEARING AFTER

DEFENDANT’S MOTION TO WITHDRAW HIS PLEA BEFORE SENTENCE WAS

IMPOSED.”

{¶ 7} “THE COURT CREATED A MANIFEST INJUSTICE BY FAILING TO

CONDUCT A HEARING ON DEFENDANT’S MOTION TO WITHDRAW HIS GUILTY

PLEA.”

{¶ 8} Upon review, we find it unnecessary to address the merits of Choice’s appeal.

As we noted in City of Dayton v. Elifritz (Feb. 6, 2004), Montgomery App. No. 19603,

2004-Ohio-455, it is well settled that “where a criminal defendant, convicted of a

misdemeanor, voluntarily satisfies the judgment imposed on him or her for that offense, an

appeal from the conviction is moot unless the defendant has offered evidence from which an

inference can be drawn that he or she will suffer some collateral legal disability or loss of

civil rights stemming from that conviction.” State v. Golston (1994), 71 Ohio St.3d 224, 226,

643 N.E.2d 109, citing State v. Wilson (1975), 41 Ohio St.2d 236, 325 N.E.2d 236, and State

v. Berndt (1987), 29 Ohio St.3d 3, 504 N.E.2d 712.

{¶ 9} There is no evidence in the record that Choice filed a motion to stay his

sentence pending the appeal in this matter, and there is no journal entry either denying or

staying execution of his sentence. As previously noted, the trial court ordered Choice to

begin his aggregate 180-day sentence on May 2, 2011, placing his release date sometime in

early November, 2011. Pursuant to a termination entry filed on May 6, 2011, Choice

received fifty-six days of jail-time credit, actually placing his release date in early 4

September, 2011. Accordingly, we find that Choice has completed his jail sentence.

Nothing in the record suggests that he has suffered some collateral legal disability or loss of

civil rights as a result of his misdemeanor convictions for assault and criminal damaging.

Thus, we dismiss the present appeal as moot.

Appeal dismissed.

FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Laura M. Woodruff Wilmer J. Dechant, Jr. Hon. Timothy N. O’Connell