State v. Nixon

2019 Ohio 4321

Opinion

[Cite as State v. Nixon, 2019-Ohio-4321.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NOS. 2019-P-0021 - vs - : 2019-P-0022

DAVID A. NIXON, :

Defendant-Appellant. :

Criminal Appeals from the Portage County Court of Common Pleas, Case Nos. 2016 CR 00394 and 2016 CR 00496.

Judgment: Appeals dismissed.

Victor V. Vigluicci, Portage County Prosecutor and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellee).

David A. Nixon, 143 Fell Avenue, Northfield, Ohio 44067 (Defendant-Appellant).

THOMAS R. WRIGHT, P.J.

{¶1} Appellant, David A. Nixon, appeals the February 11, 2019, judgment

overruling his motion to vacate his unlawful sentence and the underlying September 7,

2018 decision revoking his judicial release and imposing a one-year sentence. For the

following reasons, we dismiss the appeals as moot.

{¶2} In April 2019, we reversed and vacated the trial court’s April 4, 2018 nunc

pro tunc decision in which the trial court attempted to make necessary consecutive

findings that were absent from the court’s original sentencing decision because it was an improper use of a nunc pro tunc. State v. Nixon, 11th Dist. Portage No. 2018-P-0040,

2019-Ohio-1502, ¶ 26. As a result of our decision, the court’s original April 10, 2017

sentencing decision continued to govern Nixon’s sentence. Id. at ¶ 6.

{¶3} Before we issued our opinion vacating the April 4, 2018 nunc pro tunc,

however, the trial court revoked Nixon’s judicial release based on his failure to appear at

a status hearing. The September 7, 2018 judgment revoking Nixon’s judicial release finds

a violation of his conditions and states that the court “amends the original prison sentence

to a total of Twelve (12) months.” The judgment also states that Nixon “shall serve a term

of imprisonment of Twelve (12) months to be served for each offense of Domestic

Violence and a Protective Order, of which shall run concurrent to one another, or until

such time as he is otherwise legally released. * * * The Court finds the parties stipulated

that the Defendant shall receive NO credit for time served previously in jail and prison

and no credit for time served after judicial release and no credit for time served awaiting

transport to prison.”

{¶4} Nixon did not timely appeal the September 7, 2018 judgment, but he

subsequently moved to vacate his void sentence and then timely appealed the decision

denying that motion as well as the underlying September 7, 2018 judgment. The state

did not file a cross appeal and does not allege that Nixon has served less time in prison

than required.

{¶5} Nixon raises four assignments of error and the foundation for each is that

the trial court erred in “amending” his sentence upon revoking his judicial release instead

of imposing his remaining term with credit for time served consistent with R.C.

2929.20(K). His assigned errors assert:

2 {¶6} “[1.] The trial court committed prejudicial error by denying defendant-

appellant’s motion to vacate unlawful, unconstitutional sentence it imposed upon the

revocation of judicial release. Defendant-appellant did demonstrate an infringement of his

constitutional rights as to render the trial court’s judgment and sentence a nullity or void.

(T.D. 145).

{¶7} “[2.] The trial court acted contrary to law when it improperly modified the

defendant-appellant’s sentence upon the revocation of judicial release, rather than simply

re-imposing the original sentence that was suspended by judicial release, with credit for

time served prior to the revocation in compliance with R.C. 2929.20. (T.d. 131).

{¶8} “[3.] The trial court committed prejudicial error when it amended defendant-

appellant’s sentence on Portage CP No. 2016 CR 00496, State v. Nixon (September 7,

2018) and imposed a one (1) year prison term, violating defendant-appellant’s rights in

the Fifth and Fourteenth Amendments to the U.S. Constitution to be free from twice being

put in jeopardy for the same offense. (T.d. 131).

{¶9} “[4.] Defendant-appellant was denied effective assistance of counsel as

guaranteed by the Sixth and Fourteenth Amendments to the U.S. Constitution and Article

One, Section 2, 10, and 16 of the Constitution where counsel for defendant-appellant

negotiated a plea agreement that was contrary to law and void and then refused to file

any motions with the court to correct the sentencing errors. (T.d. 131).”

{¶10} Regardless of the trial court’s alleged error in amending or modifying

Nixon’s sentence when it revoked his judicial release, the Ohio Department of

Rehabilitation and Correction website confirms that Nixon was released from prison on

August 13, 2019 and that he is now under the supervision of the Adult Parole Authority.

3 https://appgateway.drc.ohio.gov/OffenderSearch/Search/Details/A694305 (accessed

Sept. 9, 2019). State ex rel. Brown v. Ohio Dept. of Rehab. & Corr., 139 Ohio St.3d 433,

2014-Ohio-2348, 12 N.E.3d 1187, ¶ 2, fn. 1, citing Pewitt v. Lorain Correctional Inst., 64

Ohio St.3d 470, 1992-Ohio-91, 597 N.E.2d 92 (1992) (“[A]n event that causes a case to

become moot may be proved by extrinsic evidence.”)

{¶11} Because Nixon’s assigned errors challenge only the trial court’s sentencing

decision and not his underlying convictions, the court’s errors, if any, are moot since he

has already been released from prison, and we can grant him no relief. State v.

Henderson, 2d Dist. Montgomery No. 27559, 2018-Ohio-608, ¶ 20 (finding appeal

moot where appellant completed his prison sentence and there was no available remedy);

State v. Rhymer, 12th Dist. Butler No. CA2018-01-014, 2018-Ohio-2669, ¶ 9; State v.

McConnell, 143 Ohio App.3d 219, 2001-Ohio-2129, 757 N.E.2d 1167, (3d Dist.) (remedy

for court’s error in sentencing following revocation of judicial release is to reverse and

remand for resentencing and reinstatement of original prison term) State v. Filous, 4th

Dist. Athens No. 16CA16, 2017-Ohio-7203, 95 N.E.3d 573, ¶ 26 (“because Appellant has

now already completed his prison sentence, the trial court is without jurisdiction to correct

his sentence.”).

{¶12} Appeals dismissed.

CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., concur.