[Cite as State v. Sobczak, 2019-Ohio-330.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, : CASE NO. 2018-P-0017 - vs - :
JENNIFER E. SOBCZAK, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division. Case No. 2016 CRB 00630 R.
Judgment: Appeal dismissed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Wesley A. Johnston, P.O. Box 6041, Youngstown, OH 44501 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Jennifer E. Sobczak, appeals from a January 23, 2018 entry of
the Portage County Municipal Court, Ravenna Division, imposing ten days of a previously
suspended jail sentence. Appellant also takes issue with the trial court’s oral denial of
her pro se motion to withdraw her guilty plea. The appeal is dismissed as moot.
{¶2} On March 30, 2016, appellant orally pled guilty in case No. 2016 CRB 00630
R to one count of obstructing official business, a second-degree misdemeanor in violation
of R.C. 2921.31. Multiple other charges against appellant were dismissed pursuant to her plea agreement with the prosecuting attorney. An additional stipulation of the written
plea agreement, as discussed at the plea hearing, was that appellant would be persona
non grata at the Mantua Police Department, except for legal business, for three months.
{¶3} In its sentencing entry, the trial court fined appellant $100.00 plus court
costs and sentenced her to 90 days in jail, suspended on the conditions that she complete
30 hours of community work service and commit no violation of law for one year. The
trial court issued a nunc pro tunc entry on May 6, 2016, stating it “inadvertently omitted
provision that Defendant persona non grata from Mantua Police Dept. for 90 days unless
bona fide legal business beginning 5/6/16 for 90 days. [Sic.]”
{¶4} On June 1, 2017, the state of Ohio moved to impose sentence on the basis
that appellant violated the conditions of her suspended sentence on October 2, 2016, by
committing the offenses of resisting arrest and obstructing official business.
{¶5} On September 19, 2017, appellant filed a motion, by and through counsel,
to withdraw her guilty plea in the underlying case. Appellant alleged (1) her appointed
counsel was not provided the opportunity to investigate the charge before she entered
the plea and (2) her plea was not entered voluntarily because she felt coerced and
threatened. The State responded in opposition. Following a hearing, the trial court denied
the motion on December 14, 2017.
{¶6} Appellant filed two pro se motions on January 22, 2018: a second motion to
withdraw her guilty plea and a motion to dismiss imposition of sentence. As grounds,
appellant alleged her persona non grata status with the Mantua Police Department should
have expired but that it is still in effect, which is a violation of her plea agreement.
{¶7} On January 23, 2018, the trial court held a hearing on the State’s motion to
impose sentence, at which it orally denied both of appellant’s pro se motions. The trial
2 court imposed 10 days of appellant’s suspended jail sentence, which she has since
served.
{¶8} On February 21, 2018, appellant filed a pro se notice of appeal and
requested court-appointed counsel from the trial court. On March 6, 2018, Attorney Eli
Heller was appointed by the trial court to represent appellant for purposes of appeal.
{¶9} As of May 8, 2018, appointed counsel had not filed an appellate brief. A
magistrate’s order was issued instructing counsel to either file a merit brief or show cause
as to why the appeal should not be dismissed for failure to prosecute. Appellant then
filed a pro se motion requesting new court-appointed counsel. A magistrate’s order was
issued granting the pro se motion and appointing Attorney Wesley A. Johnston to
represent appellant for purposes of appeal.
{¶10} In the meantime, however, Attorney Heller filed an appellate brief, pursuant
to Anders v. California, 386 U.S. 738 (1967), submitting he had found no non-frivolous
issues to raise on appeal. Although new counsel had been appointed and instructed to
file a merit brief, Attorney Heller’s Anders brief was never stricken from the appellate
record.
{¶11} Attorney Heller presented two possible issues for review: (1) whether the
court should have granted appellant’s motion to withdraw her plea and (2) whether the
court erred when it imposed a 10-day jail sentence. The former argument is also raised
in the merit brief filed by Attorney Johnston as appellant’s sole assignment of error: “The
trial court erred when it denied Appellant’s motion for withdrawal of guilty plea after
sentencing. Said denial constituted an abuse of discretion.”
{¶12} In its responsive brief, the state of Ohio argues appellant’s entire appeal is
moot because (1) she has already served the 10 days imposed for violating the terms of
3 her suspended sentence; (2) the time period within which she was to complete her
community work service and pay the fine has expired; and (3) the one-year period during
which she was to have no violations of the law expired prior to the filing of this appeal.
We agree.
{¶13} “[W]here a criminal defendant, convicted of a misdemeanor, voluntarily
satisfies the judgment imposed upon 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, 71 Ohio St.3d 224, 226 (1994)
(emphasis sic), citing State v. Wilson, 41 Ohio St.2d 236 (1975), syllabus and State v.
Berndt, 29 Ohio St.3d 3, 4 (1987). “[I]t is reversible error for an appellate court to consider
the merits of an appeal that has become moot after the defendant has voluntarily satisfied
the sentence[.]” Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, ¶18, citing
Berndt, supra, at 4.
{¶14} “[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.” Id. at ¶23. “Conversely, when an appellant completes a misdemeanor sentence
without requesting a stay pending appeal and does not offer evidence from which an
appellate court could infer that the appellant would suffer collateral disability or loss of
civil rights stemming from the misdemeanor conviction, the appeal is moot.” State v.
Jirousek, 11th Dist. Nos. 2013-G-3128 & 2013-G-3130, 2013-Ohio-5267, ¶22 (emphasis
4 added), citing Lewis, supra, at ¶23, and State v. Jones, 9th Dist. Wayne No. 12CA0024,
2012-Ohio-6150, ¶52.
{¶15} Here, appellant did not request a stay of her sentence pending appeal. A
review of the record reveals no evidence from which we can infer appellant will suffer
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[Cite as State v. Sobczak, 2019-Ohio-330.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : MEMORANDUM OPINION
Plaintiff-Appellee, : CASE NO. 2018-P-0017 - vs - :
JENNIFER E. SOBCZAK, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division. Case No. 2016 CRB 00630 R.
Judgment: Appeal dismissed.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Wesley A. Johnston, P.O. Box 6041, Youngstown, OH 44501 (For Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Jennifer E. Sobczak, appeals from a January 23, 2018 entry of
the Portage County Municipal Court, Ravenna Division, imposing ten days of a previously
suspended jail sentence. Appellant also takes issue with the trial court’s oral denial of
her pro se motion to withdraw her guilty plea. The appeal is dismissed as moot.
{¶2} On March 30, 2016, appellant orally pled guilty in case No. 2016 CRB 00630
R to one count of obstructing official business, a second-degree misdemeanor in violation
of R.C. 2921.31. Multiple other charges against appellant were dismissed pursuant to her plea agreement with the prosecuting attorney. An additional stipulation of the written
plea agreement, as discussed at the plea hearing, was that appellant would be persona
non grata at the Mantua Police Department, except for legal business, for three months.
{¶3} In its sentencing entry, the trial court fined appellant $100.00 plus court
costs and sentenced her to 90 days in jail, suspended on the conditions that she complete
30 hours of community work service and commit no violation of law for one year. The
trial court issued a nunc pro tunc entry on May 6, 2016, stating it “inadvertently omitted
provision that Defendant persona non grata from Mantua Police Dept. for 90 days unless
bona fide legal business beginning 5/6/16 for 90 days. [Sic.]”
{¶4} On June 1, 2017, the state of Ohio moved to impose sentence on the basis
that appellant violated the conditions of her suspended sentence on October 2, 2016, by
committing the offenses of resisting arrest and obstructing official business.
{¶5} On September 19, 2017, appellant filed a motion, by and through counsel,
to withdraw her guilty plea in the underlying case. Appellant alleged (1) her appointed
counsel was not provided the opportunity to investigate the charge before she entered
the plea and (2) her plea was not entered voluntarily because she felt coerced and
threatened. The State responded in opposition. Following a hearing, the trial court denied
the motion on December 14, 2017.
{¶6} Appellant filed two pro se motions on January 22, 2018: a second motion to
withdraw her guilty plea and a motion to dismiss imposition of sentence. As grounds,
appellant alleged her persona non grata status with the Mantua Police Department should
have expired but that it is still in effect, which is a violation of her plea agreement.
{¶7} On January 23, 2018, the trial court held a hearing on the State’s motion to
impose sentence, at which it orally denied both of appellant’s pro se motions. The trial
2 court imposed 10 days of appellant’s suspended jail sentence, which she has since
served.
{¶8} On February 21, 2018, appellant filed a pro se notice of appeal and
requested court-appointed counsel from the trial court. On March 6, 2018, Attorney Eli
Heller was appointed by the trial court to represent appellant for purposes of appeal.
{¶9} As of May 8, 2018, appointed counsel had not filed an appellate brief. A
magistrate’s order was issued instructing counsel to either file a merit brief or show cause
as to why the appeal should not be dismissed for failure to prosecute. Appellant then
filed a pro se motion requesting new court-appointed counsel. A magistrate’s order was
issued granting the pro se motion and appointing Attorney Wesley A. Johnston to
represent appellant for purposes of appeal.
{¶10} In the meantime, however, Attorney Heller filed an appellate brief, pursuant
to Anders v. California, 386 U.S. 738 (1967), submitting he had found no non-frivolous
issues to raise on appeal. Although new counsel had been appointed and instructed to
file a merit brief, Attorney Heller’s Anders brief was never stricken from the appellate
record.
{¶11} Attorney Heller presented two possible issues for review: (1) whether the
court should have granted appellant’s motion to withdraw her plea and (2) whether the
court erred when it imposed a 10-day jail sentence. The former argument is also raised
in the merit brief filed by Attorney Johnston as appellant’s sole assignment of error: “The
trial court erred when it denied Appellant’s motion for withdrawal of guilty plea after
sentencing. Said denial constituted an abuse of discretion.”
{¶12} In its responsive brief, the state of Ohio argues appellant’s entire appeal is
moot because (1) she has already served the 10 days imposed for violating the terms of
3 her suspended sentence; (2) the time period within which she was to complete her
community work service and pay the fine has expired; and (3) the one-year period during
which she was to have no violations of the law expired prior to the filing of this appeal.
We agree.
{¶13} “[W]here a criminal defendant, convicted of a misdemeanor, voluntarily
satisfies the judgment imposed upon 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, 71 Ohio St.3d 224, 226 (1994)
(emphasis sic), citing State v. Wilson, 41 Ohio St.2d 236 (1975), syllabus and State v.
Berndt, 29 Ohio St.3d 3, 4 (1987). “[I]t is reversible error for an appellate court to consider
the merits of an appeal that has become moot after the defendant has voluntarily satisfied
the sentence[.]” Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, ¶18, citing
Berndt, supra, at 4.
{¶14} “[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.” Id. at ¶23. “Conversely, when an appellant completes a misdemeanor sentence
without requesting a stay pending appeal and does not offer evidence from which an
appellate court could infer that the appellant would suffer collateral disability or loss of
civil rights stemming from the misdemeanor conviction, the appeal is moot.” State v.
Jirousek, 11th Dist. Nos. 2013-G-3128 & 2013-G-3130, 2013-Ohio-5267, ¶22 (emphasis
4 added), citing Lewis, supra, at ¶23, and State v. Jones, 9th Dist. Wayne No. 12CA0024,
2012-Ohio-6150, ¶52.
{¶15} Here, appellant did not request a stay of her sentence pending appeal. A
review of the record reveals no evidence from which we can infer appellant will suffer
some collateral legal disability or loss of civil rights stemming from her misdemeanor
conviction of obstructing official business. Her main contention is that the prosecution
has breached its plea agreement because the Mantua Police Department continues to
treat her as persona non grata which is hindering her ability to volunteer at the police
station. The Mantua Police Department, however, was not party to the plea agreement,
and its alleged denial of her desire to volunteer at the police department is neither the
loss of a civil right nor a collateral disability. See In re S.J.K., 114 Ohio St.3d 23, 2007-
Ohio-2621, ¶10 (emphasis added and citation omitted) (defining “collateral disability” as
“an adverse legal consequence of a conviction or judgment that survives despite the
court’s sentence having been satisfied or served”).
{¶16} As the entire appeal is moot, it must be dismissed. See Berndt, supra, at 5
(“the court of appeals should have dismissed [defendant’s] appeal from the trial court’s
judgment of conviction since that appeal was moot”); see also State v. Cummings, 11th
Dist. Geauga No. 2010-G-2991, 2011-Ohio-3119.
{¶17} The appeal is dismissed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.