State v. Ross

2019 Ohio 323

• Court: Ohio Court of Appeals
• Decided: February 4, 2019
• Docket: 18CA011284
• Status: Published

Opinion

[Cite as State v. Ross, 2019-Ohio-323.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO C.A. No. 18CA011284

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE MICHAEL ROSS COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO Appellant CASE No. 05CR069222

DECISION AND JOURNAL ENTRY

Dated: February 4, 2019

TEODOSIO, Presiding Judge.

{¶1} Defendant-Appellant, Michael Ross, appeals a judgment of the Lorain County

Court of Common Pleas that denied his motion to vacate and terminate void post-release control,

restitution, fines and costs. This Court affirms.

I.

{¶2} In 2009, after a jury found Mr. Ross guilty of multiple offenses, the trial court

sentenced him to a total of nine and a half years in prison. The court also imposed five years of

post-release control and ordered Mr. Ross to pay $377,000 in restitution. On appeal, this Court

upheld the jury’s verdict but reversed Mr. Ross’s sentence because the trial court had incorrectly

increased the level of some of the offenses and had not analyzed whether any of the offenses

were allied. State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶ 74. On remand,

the trial court corrected the offense level of the relevant counts, merged others that it found were

allied, and resentenced Mr. Ross to a total of nine years imprisonment. On appeal, this Court 2

reversed again because the trial court had improperly changed Mr. Ross’s sentence for offenses

that were not challenged in his first appeal and that the trial court had determined were not allied.

State v. Ross, 9th Dist. Lorain Nos. 14CA010601 and 14CA010602, 2015-Ohio-3399, ¶ 9.

{¶3} On remand, the trial court entered an order that purported to sentence Mr. Ross to

six months on two offenses that it had previously determined were allied. It subsequently

entered an order explaining that, because Mr. Ross’s new aggregate sentence was 6 years, he

would be released on November 18, 2015. Mr. Ross attempted to appeal the trial court’s orders,

but this Court dismissed his appeal because the orders did not comply with the requirements for a

judgment of conviction under Crim.R. 32(C). Meanwhile, Mr. Ross was released from prison on

November 18, 2015. In September 2016, the trial court issued a judgment entry that listed Mr.

Ross’s sentence for each count number and sentenced him to a total of six years. The judgment

entry also imposed five years of post-release control and ordered Mr. Ross to pay $377,000 in

restitution. Mr. Ross attempted to appeal, but this Court dismissed the appeal because it

concluded that the judgment entry did not satisfy the requirements of Crim.R. 32(C).

Specifically, the judgment entry did not include the fact of the conviction with respect to each

count. On remand, the trial court entered a judgment entry in February 2017 that was similar to

the one it had previously entered, but this time it named the offense related to each count in

addition to the sentence imposed for each count. It also explained again that Mr. Ross’s total

sentence was six years, that he was subject to five years of post-release control, and that he had

to pay $377,000 in restitution.

{¶4} Mr. Ross attempted to appeal the trial court’s February 2017 judgment entry, but

this Court dismissed his appeal because the judgment entry still did not state the fact of the

conviction for each count. Back in the trial court, Mr. Ross moved to vacate and terminate his 3

post-release control, arguing that the court had incorrectly imposed a five-year term instead of

three. He also argued that, since he had already been released from prison, it was too late for the

trial court to correct the mistake. He further argued that the court should vacate its restitution

order and hold a hearing on the amount of restitution, fines, and costs he must pay. The trial

court subsequently entered a judgment entry that amended its February 2017 judgment entry

nunc pro tunc to correct the length of Mr. Ross’s post-release control. Mr. Ross did not appeal

the court’s entry. In February 2018, the trial court denied Mr. Ross’s motion to vacate and

terminate his post-release control, restitution, fines and costs. Mr. Ross has appealed the denial

of his motion, assigning two errors.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN SENTENCING MR. ROSS TO A POST RELEASE TERM OF 5 YEARS FOR A F-2 CONVICTION

{¶5} In his first assignment of error, Mr. Ross argues that the trial court’s attempt to

impose post-release control on him is void because it failed to advise him of the consequences of

violating post-release control. He also argues that it is too late for the court to correct the error

because he has already been released from prison. Upon review of the record, however, we

conclude that this issue is moot.

{¶6} A case is moot if it involves “no actual genuine controversy which can definitely

affect the parties’ existing legal relationship.” Harris v. City of Akron, 9th Dist. Summit No.

24499, 2009-Ohio-3865, ¶ 7. “‘A moot case is one which seeks to get a judgment * * * upon

some matter which, when rendered, for any reason cannot have any practical legal effect upon a

then-existing controversy.’” Id., quoting Culver v. City of Warren, 84 Ohio App. 373, 393 (7th

Dist.1948). Regarding criminal cases, the Ohio Supreme Court has held that, “[w]here a 4

defendant, convicted of a criminal offense, has * * * 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.” State v. Wilson, 41 Ohio St.2d 236 (1975), syllabus.

{¶7} The most serious offense that Mr. Ross committed was a felony of the second

degree. It was not a sex offense. The term of post-release control for a felony of the second

degree that is not a sex offense is three years. R.C. 2967.28(B)(2). Mr. Ross was released from

prison on November 18, 2015, meaning that his term of post-release control expired on

November 18, 2018. The parties have not indicated that there are any proceedings currently

pending against Mr. Ross for an alleged violation of the terms and conditions of post-release

control. Mr. Ross also has not alleged that he will experience any collateral consequences of

having been subject to post-release control. Accordingly, the issue of whether the trial court

correctly imposed post-release control is moot. Mr. Ross’s first assignment of error is overruled

on that basis.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN ORDERING RESTITUTION WITHOUT HOLDING A HEARING TO DETERMINE THE AMOUNT OF THE LOSS.

{¶8} In his second assignment of error, Mr. Ross argues that the trial court should have

held a hearing before entering a restitution order. We conclude, however, that this issue is

premature because the trial court has not entered a final judgment of conviction that complies

with Crim.R. 32(C).

{¶9} In its original journal entry of conviction and sentence, the trial court ordered Mr.

Ross to pay $377,000 in restitution. Although this Court upheld the jury’s verdicts on appeal, we

reversed his sentence. Ross, 2012-Ohio-536, at ¶ 74. An order of restitution is “indisputably 5

part of the sentence.” State v. Danison, 105 Ohio St.3d 127, 2005-Ohio-781, ¶ 8; R.C.

2929.18(A)(1). In 2014, the trial court entered a new judgment entry of conviction and sentence

that again ordered Mr. Ross to pay $377,000 in restitution. This Court, however, reversed that

judgment entry as well. Ross, 2015-Ohio-3399, at ¶ 10.

{¶10} Since this Court’s 2015 decision, the trial court has not entered a valid judgment

of conviction under Crim.R. 32(C). According to the Ohio Supreme Court, a judgment of

conviction must set forth “(1) the fact of the conviction, (2) the sentence, (3) the judge’s

signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” State v.

Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, paragraph one of the syllabus. This Court has

already determined that the trial court’s September 2016 judgment entry did not meet the

requirements of Crim.R. 32(C) because it did not set forth the fact of the convictions. It has also

determined that the court’s February 2017, nunc pro tunc order did not correct the deficiency. In

November 2017, the trial court issued another nunc pro tunc order, but it only changed the length

of Mr. Ross’s post-release control from five years to three years. It did not attempt to add the

fact of Mr. Ross’s convictions to its September 2016 judgment entry.

{¶11} In his motion to vacate and terminate void post-release control, restitution, fines

and costs Mr. Ross asked the trial court to vacate its restitution order. The trial court could not

grant that relief, however, because it has not yet entered a valid judgment of conviction under

Crim.R. 32(C). Accordingly, because his argument is premature, Mr. Ross’s second assignment

of error is overruled.

III.

{¶12} Mr. Ross’s assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed. 6

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

THOMAS A. TEODOSIO FOR THE COURT

HENSAL, J. CONCURS.

CARR, J. CONCURRING IN JUDGMENT ONLY.

{¶13} While I agree with the majority’s conclusion that Ross’s first assignment of error

is moot, I write separately in regard to the second assignment of error. 7

{¶14} As noted by the majority, the trial court ordered Ross to pay $377,000 in

restitution in its initial sentencing entry. Though Ross raised numerous issues in his direct

appeal, including that he was sentenced to allied offenses, he did not challenge the trial court’s

restitution procedure. See State v. Ross, 9th Dist. Lorain No. 09CA009742, 2012-Ohio-536. The

trial court conducted an allied offenses analysis on remand and again sentenced Ross to a total of

nine years imprisonment. On appeal, this Court determined that the trial court erred when it

altered Ross’s sentences for offenses that it had determined were not allied offenses of similar

import and that had not previously been challenged in Ross’s first appeal. State v. Ross, 9th Dist.

Lorain Nos. 14CA010601, 14CA010602, 2015-Ohio-3399, ¶ 8-9. Notably, Ross did not

specifically challenge the trial court’s restitution order in that appeal.

{¶15} Ross now attempts to challenge the trial court’s order denying his motion to

vacate the restitution order. I would hold that because Ross had the opportunity to raise the

restitution issue in a prior proceeding and he failed to do so, he is now barred from raising that

issue under the doctrine of res judicata. See State v. Zhao, 9th Dist. Lorain No. 03CA008386,

2004-Ohio-3245, ¶ 7.

APPEARANCES:

MICHAEL ROSS, pro se, Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.