State v. Liao , 2015 Ohio 3770 ( 2015 )

[Cite as State v. Liao, 2015-Ohio-3770.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102454
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
SHIH-SIANG SHAWN LIAO
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-565303-A
BEFORE: Celebrezze, A.J., Jones, J., and Boyle, J.
RELEASED AND JOURNALIZED: September 17, 2015
ATTORNEY FOR APPELLANT
Kevin P. Shannon
75 Public Square
Suite 700
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
James A. Gutierrez
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:
{¶1} This cause came to be heard upon the accelerated calendar pursuant to
App.R. 11.1 and Loc.R. 11.1. Appellant, Shih-Siang Shawn Liao, appeals the one-year
sentence he received after pleading guilty to one count of aggravated theft, a
fourth-degree felony. For the reasons set forth below, appellant’s appeal is dismissed
because it is moot.
{¶2} On July 31, 2012, appellant was charged with one count of theft in violation
of R.C. 2913.02(A)(3), a third-degree felony. At the time he was charged, appellant was
serving an indefinite three- to nine-year prison sentence for grand larceny at a New York
state correctional facility. Appellant was extradited from New York on January 27,
2014. At his arraignment in the Cuyahoga County Court of Common Pleas on January
30, 2014, appellant entered a plea of not guilty.
{¶3} On April 22, 2014, appellant withdrew his original plea of not guilty and
entered a plea of guilty to the indictment. However, due to a change in the law, the theft
charge became a charge of aggravated theft, a felony of the fourth degree punishable by 6
to 18 months in prison and a possible fine of $5,000. On May 27, 2014, the trial court
sentenced appellant to one year in prison, which was to be served consecutively to his
New York sentence. Additionally, appellant was ordered to pay $100,000 in restitution
to the victim and court costs. Appellant remained in the Cuyahoga County jail from his
arraignment until June 8, 2014, at which point he was returned to the New York prison to
complete his sentence for the grand larceny conviction.
{¶4} Appellant returned to Cuyahoga County on September 3, 2014, to begin his
sentence in this case, and was committed to Trumbull Correctional Institution on
September 4, 2014. Between February and March 2015, the trial court granted appellant
a total of 164 days of jail-time credit for time spent in the Cuyahoga County jail and for
time spent in transit between correctional facilities. Accordingly, appellant completed
his sentence and was released from prison on April 8, 2015.
{¶5} This court granted appellant’s motion to file a delayed appeal on January 26,
2015. In his sole assignment of error, appellant asserts that the trial court erred by
imposing a consecutive sentence without making the appropriate findings required by
R.C. 2929.14(C).
I. Analysis
{¶6} Initially, we recognize that appellant has completed the sentence underlying
his appeal. In State v. Golston, 71 Ohio St. 3d 224, 643 N.E.2d 109 (1994), syllabus, the
Ohio Supreme Court held that “an appeal challenging a felony conviction is not moot
even if the entire sentence has been satisfied before the matter is heard on appeal.” The
Golston rule acknowledges that a convicted felon who has completed his sentence should
not suffer the collateral consequences associated with a felony conviction without being
afforded an opportunity to challenge that conviction. State v. Santiago, 8th Dist.
Cuyahoga No. 101612, 2015-Ohio-1301, ¶ 8. However, this court has held “that
principle is not served, and thus an appeal is moot , when * * * the appellant challenges
only his sentence, and his completion of his sentence leaves him without a remedy
affecting his conviction.” Id. Accordingly, because appellant only challenges the
appropriateness of the sentence he served to completion, and not his conviction or
collateral consequences, we are unable to provide the relief he seeks and his appeal is
moot.
{¶7} Appellant argues his appeal is not moot because the alleged sentencing error
is capable of repetition, yet evading review.
The “capable of repetition, yet evading review” doctrine was limited
to the situation where two elements combined: (1) the challenged action
was in its duration too short to be fully litigated prior to its cessation or
expiration, and (2) there was a reasonable expectation that the same
complaining party would be subjected to the same action again.
Weinstein v. Bradford, 423 U.S. 147, 148-149, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975); see
also State ex rel. Beacon Journal Public Co. v. Donaldson, 63 Ohio St. 3d 173, 175, 586
N.E.2d 101 (1992).
{¶8} Here, appellant does not address either of these points, but instead contends
that his appeal is not moot because “sentencing issues raised in appeals of fourth and fifth
degree felonies are capable of repetition, yet evade review.” State v. Neville, 7th Dist.
Belmont No. 03 BE 68, 2004-Ohio-6840, ¶ 10, citing State v. Fox, 3d Dist. Wyandot No.
16-2000-17, 2001 Ohio App. LEXIS 795 (Mar. 6, 2001). Neville does not mandate that
we address the merits of appellant’s appeal solely because it involves a fourth-degree
felony sentencing issue. In fact, the Neville court stated that “a court may decide the
issues raised where the issues are capable of repetition, yet evade review.” Neville at ¶ 6,
10. (Emphasis added.)
{¶9} Because appellant has not evidenced how the “capable of repetition, yet
evading review” standard announced in Weinstein applies to the facts of this case, we
remain steadfast in maintaining that this appeal is moot. However, even if appellant
were to argue that the imposition of a consecutive sentence here was too short in duration
to be fully litigated prior to its expiration, he has failed to demonstrate a “reasonable
expectation” that he will be subjected to the same action in the future. Thus, we
conclude that appellant’s assigned error is moot.
{¶10} Moreover, even if we were to address the merits of appellant’s argument, we
would find that the trial court did not err in imposing a consecutive sentence. R.C.
2929.41(A) provides in pertinent part:
Except as provided in division (B) of this section, division (C) of section
2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a
prison term, jail term, or sentence of imprisonment shall be served
concurrently with any other prison term, jail term or sentence of
imprisonment imposed by a court of this state, another state, or the United
States.
The statute clarifies that a presumption of concurrent sentences exists unless one of the
many enumerated exceptions, such as R.C. 2929.41(B) or 2929.14(C), is met.
{¶11} As pertinent here, R.C. 2929.41(B)(2) states:
If a court of this state imposes a prison term upon the offender for the
commission of a felony and a court of another state or the United States also
has imposed a prison term upon the offender for the commission of a
felony, the court of this state may order that the offender serve the prison
term it imposes consecutively to any prison term imposed upon the offender
by the court of another state or the United States.
{¶12} Thus, R.C. 2929.14(B)(2) provides that an Ohio trial court may impose a
consecutive prison sentence for a felony conviction when another state court has already
imposed a prison term for a felony conviction. In this case, appellant had been convicted
in New York state for grand larceny for stealing property whose value exceeded fifty
thousand dollars, and was sentenced to an indefinite term of 3-to 9-years in prison. 1
Moreover, the record reflects that this court was aware that appellant was serving his
sentence at a New York state correctional facility at the time of his sentencing. This
information was contained within the presentence investigation report the trial court
ordered and had at its disposal during the sentencing hearing. Because R.C.
2929.14(B)(2) was applicable to the facts of this case, the trial court was not required to
make findings under R.C. 2929.14(C) in order to impose a consecutive sentence.
Accordingly, the trial court did not err when it ordered appellant to serve his sentence in
this state consecutively to the sentence he was currently serving in New York. However,
appellant’s assignment of error is moot because he completed his prison sentence.
{¶13} Case dismissed.
It is ordered that appellee recover of appellant costs herein taxed
The court finds there were reasonable grounds for this appeal.
1Grand larceny in the second degree, the applicable charge when the value of
stolen property exceeds fifty thousand dollars, is a class C felony. N.Y. Pen. Law
155.40.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
_________________________________________________________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
LARRY A. JONES, SR., J., and
MARY J. BOYLE, J., CONCUR