State v. Lewis

2023 Ohio 4651

Opinion

[Cite as State v. Lewis, 2023-Ohio-4651.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112608 v. :

ANDRE LEWIS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED RELEASED AND JOURNALIZED: December 21, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-675392-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Maryann Zaky, Assistant Prosecuting Attorney, for appellee.

Susan J. Moran, for appellant.

MICHAEL JOHN RYAN, J.:

Defendant-appellant, Andre Lewis, appeals his assault conviction. For

the reasons that follow, this appeal is moot and hereby dismissed.

Appellant was charged with one count of felonious assault and one

count of domestic violence. Appellant waived his right to a jury, and the case was tried to the bench. The state dismissed the domestic violence count prior to the start

of trial. The trial court acquitted appellant of felonious assault but found him guilty

of the lesser included offense of assault, a first-degree misdemeanor. The court

sentenced appellant to time served and waived all fines and costs.

On appeal, the appellant contends that his assault conviction is against

the manifest weight of the evidence. As an initial matter, however, we must

determine whether the appeal is moot. Based on the unique circumstances of this

case, we determine it is.

After initial appellate briefing was completed, we sua sponte ordered

the parties to provide additional briefing on whether the appeal was moot. In his

supplemental brief, appellant contends that his appeal is not moot because he did

not voluntarily serve his sentence.

In Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953

N.E.2d 278, the Ohio Supreme Court held:

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.

Id. at syllabus.

In Lewis, the defendant was convicted of obstructing official business

and sentenced to a suspended term of three days in jail, six months of inactive

probation, and $100 in fines and costs. The defendant filed a motion with the trial court to stay execution of his sentence, which the court denied. He paid his fines

and costs and completed his sentence. On appeal, this court, sitting en banc, held

that the offender was not required to seek an additional stay in the appellate court

to preserve his right to appeal. Cleveland Hts. v. Lewis, 187 Ohio App.3d 786, 2010-

Ohio-2208, 933 N.E.2d 1146, ¶ 7 (8th Dist.). The Ohio Supreme Court agreed,

reasoning that

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.

Lewis, 2011-Ohio-2673, at ¶ 23.

Courts have also held that a sentence is considered involuntarily served

if the defendant is jailed while his or her case was pending, and the defendant is

subsequently sentenced to a sentence of time served. See State v. Lewis, 8th Dist.

Cuyahoga No. 98621, 2013-Ohio-1187, ¶ 3 (defendant’s right to appeal was not

forfeited when 30-day sentence ordered by the court exceeded the time the

defendant had been held in confinement awaiting trial).

Appellant contends that his case is analogous to Lewis, 2013-Ohio-

1187, in that he did not voluntarily serve time. In its supplemental brief, the state

argues that this case is distinguishable from Lewis, 2013-Ohio-1187, because there

is no indication appellant served time awaiting trial. According to the state,

appellant was not arrested on scene. Appellant received a summons to appear, was arraigned, and was granted a $5,000 personal bond. The state argues that there is

no indication in the record that appellant was ever incarcerated “so the sentence he

received was completed as soon as it was imposed.” The state also notes that

appellant did not seek a stay of execution in either the trial court or this court.

This case is distinguishable from Lewis, 2013-Ohio-1187, and is also

distinguishable from Lewis, 2011-Ohio-2673. In Lewis, 2013-Ohio-1187, the court

imposed a 30-day jail sentence and court costs. In Lewis, 2011-Ohio-2673, the

defendant was given credit for time served, but placed on inactive probation and

ordered to pay a fine and costs.

In this case, the trial court waived all costs and fines and sentenced

appellant to time served. It would have been meaningless for appellant to seek a

stay when, for practical purposes, there was nothing to stay. The appellant is not

subject to any type of supervision and was not ordered to pay a fine or court costs.

Once the court imposed a sentence of “time served,” appellant was not subject to the

court’s control and thus there was no need to seek a stay.

That state also argued in its supplemental brief that the appeal is moot

because appellant’s misdemeanor assault conviction carries no collateral

consequences or disabilities. When a misdemeanant voluntarily completes the

sentence for that offense, the appeal from that 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.’” Lakewood v. Smyczek, 8th Dist. Cuyahoga No. 108369, 2020-Ohio- 271, ¶ 7, quoting State v. Golston, 71 Ohio St.3d 224, 226, 643 N.E.2d 109 (1994). A

collateral disability is an adverse legal consequence of a conviction or judgment that

survives despite the court’s sentence having been satisfied or served. Smyczek at id.,

citing In re S.J.K., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10.

In Smyczek, this court concluded that the appeal was moot even when

the appellant did not serve his sentence voluntarily, filed a stay of execution to this

court that was denied, and appealed the conviction. Id. at ¶ 10. This court reasoned

that there is nothing in the record or appellant’s brief that suggested that any

collateral consequences existed. Id.

Appellant has failed to show that his misdemeanor assault conviction

carries with it any collateral consequences or disabilities and there is nothing in the

record or appellate brief that suggests that any collateral consequences exist.

Therefore, based on the facts and circumstances of this case, the appeal is moot.

Appeal dismissed.

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.

________________________ MICHAEL JOHN RYAN, JUDGE

FRANK DANIEL CELEBREZZE, III, P.J., and LISA B. FORBES, J., CONCUR