February 8, 2012
Mootness of Misdemeanor

by Justice Paul E. Pfeifer

For Warren Lewis, June 21, 2008, was not a particularly good day. That afternoon, Warren arrived home from work to find police cruisers parked in front of his house in Cleveland Heights. His wife told him that two neighborhood girls had attacked his teenage daughter. He saw the police talking to the other girls’ parents down the street.

Warren and his wife approached the officers with a copy of a police report that showed those same girls had attacked his daughter several days before. But the officers ordered Warren and his wife to return home and told them their daughter would also be charged in the incident.

When Officer Duane Clayborn later approached Warren for the information needed to file the charge against his daughter, Warren refused to talk to him. In his view, the officer had treated his daughter as an assailant rather than a victim. Warren’s wife offered no help either.

Officer Clayborn returned to Warren and demanded his daughter’s address. When Warren refused to cooperate, Officer Clayborn arrested him and charged him with obstructing official business by “refusing to give information on his daughter who was being charged” and for resisting arrest by allegedly struggling with Clayborn as he attempted to place Warren in the patrol car.

Warren was later acquitted of resisting arrest but convicted of obstructing official business. He was sentenced to a suspended term of three days in jail, placed on inactive probation for six months and had to pay a $100 fine and court costs.

The day after his bench trial, Warren filed a motion to stay execution of his sentence, stating that he intended to appeal the finding of guilty because it could effect his employment. He argued that “without a stay, or at least a request for a stay, the Court of Appeals could find the appeal moot.” But the trial court denied the stay.

When Warren filed his appeal, he did not seek a stay of his entire sentence from the court of appeals. Because he had paid his fine and court costs, and due to the inactive status of his probation, he had actually completed the sentence during the time that his appeal was pending. Did this make his appeal moot?

The court of appeals had considered a situation like this before in a similar case. In its prior finding it had held that unless a person convicted of a misdemeanor seeks to stay the sentence or otherwise involuntarily serves the sentence, the case will be dismissed as moot – unless the defendant can demonstrate that there are collateral consequences that resulted from the conviction.

In Warren’s case, the court of appeals determined that although he had not demonstrated such a loss stemming from the conviction, he had not voluntarily served his sentence because he had sought a stay in the trial court.  As a result, the court of appeals declined to require Warren to seek an additional stay with the appellate court, which meant that the court would accept his appeal.

After reviewing the case, the court of appeals reversed Warren’s conviction for obstructing official business because it wasn’t supported by the evidence. Warren hadn’t actually impeded the investigation and Officer Clayborn admitted that Warren’s refusal to answer his questions had not prevented him from performing his duties.

When Warren’s case came before us – the Ohio Supreme Court – for further review, Cleveland Heights argued that a person convicted of a misdemeanor voluntarily serves a sentence by not seeking a stay in both the trial court and the court of appeals.

Thus, according to the city, Warren’s appeal became moot because he had paid the fine and court costs, the six-month period of inactive probation had expired during the time the appeal was pending, and Warren had neither filed a motion for a stay in the court of appeals prior to completion of the sentence nor demonstrated the existence of any collateral consequences resulting from the convictions.

Warren, on the other hand, maintained that the appeal of a misdemeanor conviction is never rendered moot by serving the sentence, even if the defendant fails to allege that the conviction will subject him to collateral consequences and even if he doesn’t file a motion for a stay in the trial or appellate court.

Over the years, courts had come to consider appeals in criminal cases to be moot if the person filing the appeal had completed the sentence prior to a ruling on the appeal. In Ohio, that basic rule applied to both felony and misdemeanor convictions until the mid-1990s, when we limited the rule to apply only to misdemeanor convictions in which the person filing the appeal has voluntarily completed the sentence and in which no collateral consequences resulted from the conviction.

We had never had a case that asked us to consider what it meant to “voluntarily” complete a sentence for purposes of this rule, but the Supreme Court of Louisiana recently addressed a similar issue. That court explained that completion of the sentence is not voluntary and will not moot the appeal if the circumstances show that the person filing the appeal did not intend to “acquiesce in the judgment, or abandon the right to review.” And such actions as seeking a court of appeal review or moving for a stay prior to completing the sentence support a determination that the person did not voluntarily satisfy the sentence.

By a seven-to-zero vote we concluded that the completion of a sentence is not voluntary and will not moot an appeal if the circumstances surrounding it demonstrate that the person filing the appeal neither acquiesced in the judgment nor abandoned the right to review by a court of appeals.

The facts in Warren’s case demonstrate that he neither acquiesced in the judgment nor abandoned the right to an appeal. Therefore, it can’t be said that he voluntarily completed the sentence imposed by the court, and the court of appeals was correct in concluding that his appeal was not moot.

EDITOR'S NOTE: The case referred to is Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673. Case No. 2010-1203. Decided June 8, 2011. Majority opinion written by Justice Terrence O'Donnell.