State v. Johnson , 2022 Ohio 179 ( 2022 )

[Cite as State v. Johnson, 2022-Ohio-179.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 2021 CA 0011
CHARLES JOHNSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2015 CR 432
JUDGMENT: Dismissed
DATE OF JUDGMENT ENTRY: January 25, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP GLORIA L. SMITH
PROSECUTING ATTORNEY GLORIA L. SMITH, LLC
VICTORIA MUNSON 670 Meridian Way
ASSISTANT PROSECUTOR # 188
38 South Park Street Westerville, Ohio 43082
Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0011 2
Wise, John, J.
{¶1} Defendant-Appellant Charles Johnson (“Appellant”) appeals his sentence
at his resentencing hearing on January 28, 2020. Appellee is the State of Ohio. The
relevant facts leading to this appeal are as follows.
STATEMENT OF THE FACTS AND CASE
{¶2} On September 11, 2015, Appellant was convicted by a jury of felonious
assault and aggravated burglary.
{¶3} On September 16, 2015, the trial court sentenced Appellant to eight years
for the felonious assault and six years for the aggravated burglary to be served
consecutively. The trial court also ordered Appellant to pay restitution of $6,140.
{¶4} On October 14, 2015, Appellant filed a Notice of Appeal arguing ineffective
assistance of counsel.
{¶5} On November 15, 2015, the trial court amended its sentence ordering
Appellant to pay restitution totaling $15,287.74.
{¶6} On May 13, 2016, this Court overruled Appellant’s sole assignment of error
of ineffective assistance of counsel.
{¶7} On March 16, 2020, Appellant filed a pro se motion to correct the November
15, 2015 sentencing entry.
{¶8} On March 24, 2020, Appellee filed a response conceding that Appellant only
owed $6,140 of restitution.
{¶9} On January 28, 2021, the trial court held a resentencing hearing. At the
hearing, the trial court continued Appellant’s prison sentence, but altered the restitution
to $6,140.
Richland County, Case No. 2021 CA 0011 3
ASSIGNMENT OF ERROR
{¶10} Appellant timely filed a notice of appeal. He herein raises the following four
Assignments of Error:
{¶11} “I. APPELLANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT THE
RESENTENCING HEARING UNDER THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION.
{¶12} “II. APPELLANT WAS DENIED THE RIGHT OF NOTICE AND AN
OPPORTUNITY TO BE HEARD AT THE RE-SENTENCING HEARING IN VIOLATION
OF THE DUE PROCESS CLAUSES OF THE OHIO AND UNITED STATES
CONSTITUTION.
{¶13} “III. THE TRIAL COURT ABUSED ITS DISCRETION DURING THE
RESENTENCING HEARING.
{¶14} “IV. THE SENTENCE IS CONTRARY TO LAW AND IS NOT SUPPORTED
BY THE RECORD.”
The Mootness Doctrine
{¶15} Because it concerns this Court’s jurisdiction, we must first determine
whether the appeal is moot.
{¶16} “Mootness is a jurisdictional question because the Court ‘is not empowered
to decide moot questions or abstract propositions.” State v. Feister, 5th Dist. Tuscarawas
No. 2018 AP 01 0005, 2018-Ohio-2336, ¶18 quoting United States v. Alaska S.S. Co.,
253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San
Pablo & Tulare R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893); Accord,
North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Because
Richland County, Case No. 2021 CA 0011 4
mootness is a jurisdictional question, the question of mootness is one that must be
addressed even if the parties do not raise it. North Carolina v. Rice, 404 U.S. 244, 246,
92 S.Ct. 402, 30 L.Ed.2d 413 (1971).
{¶17} Ohio courts have long exercised judicial restraint in cases that are not actual
controversies. Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372 (1970). In
Bradley v. Ohio Dept. of Job and Family Services, 10th Dist. Franklin No. 10AP-567, 2011-
Ohio-1388, ¶10, the Tenth District Court of Appeals stated:
The doctrine of mootness is rooted in the ‘case’ or ‘controversy’
language of Section 2, Article III of the United States Constitution and in the
general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991),
74 Ohio App.3d 788, 791, 600 N.E.2d 736. “While Ohio has no constitutional
counterpart to Section 2, Article III, the courts of Ohio have long recognized
that a court cannot entertain jurisdiction over a moot question.” Id. “It has
been long and well established that it is the duty of every judicial tribunal to
decide actual controversies between parties legitimately affected by specific
facts and to render judgments which can be carried into effect. It has
become settled judicial responsibility for courts to refrain from giving
opinions on abstract propositions and to avoid the imposition by judgment
of premature declarations or advice upon potential controversies.” Fortner
v. Thomas (1970), 22 Ohio St.2d 13, 14, 257 N.E.2d 371. Therefore, an
issue is moot when it has no practical significance, being instead merely
hypothetical or academic.
Richland County, Case No. 2021 CA 0011 5
{¶18} Although the mootness doctrine has exceptions, none apply in the case at
bar. In re Appeal of Suspension of Huffner from Circleville High School, 47 Ohio St.3d 12,
546 N.E.2d 1308 (1989), paragraph one of the syllabus (noting the two exceptions to the
mootness doctrine are when “the issues are capable of repetition, yet evading review” or
the case “involves a matter of public or great general interest”).
{¶19} “An appeal is perfected upon the filing of a written notice of appeal. R.C.
2505.04. Once a case has been appealed, the trial court loses jurisdiction except to take
action in aid of the appeal.” State ex rel. Special Prosecutors v. Judges, Court of Common
Pleas (1978), 55 Ohio St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162.
{¶20} In the case sub judice, on September 16, 2015, the trial court sentenced
Appellant to fourteen years in prison, five years of mandatory post release control, and
restitution in the amount of $6,140.
{¶21} On October 14, 2015, Appellant filed a Notice of Appeal divesting the trial
court of its jurisdiction in this matter.
{¶22} On November 25, 2015, the trial court, lacking jurisdiction, amended the
amount of restitution in its September 16, 2015 Sentencing Entry to order Appellant to
pay restitution of $15,287.74.
{¶23} Thus, because the trial court did not have the jurisdiction to amend
Appellant’s sentence on November 25, 2015, the amended sentence is vacated and the
original sentence from the trial court’s sentencing entry on September 16, 2015 is
reinstated.
{¶24} As this appeal arises from the trial court’s disposition of a Motion to Correct
a vacated sentence, we dismiss the appeal as moot.
Richland County, Case No. 2021 CA 0011 6
{¶25} For the foregoing reasons, the appeal of the judgment of the Court of
Common Pleas of Richland County, Ohio, is dismissed.
By: Wise, John, J.
Gwin, P. J., and
Wise, Earle, J., concur.
JWW/br 0119