State v. Harris , 2012 Ohio 1304 ( 2012 )

[Cite as State v. Harris, 2012-Ohio-1304.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 51
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
TERRANCE HARRIS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Youngstown
Municipal Court of Mahoning County,
Ohio
Case No. 10 CRB 1231
JUDGMENT: Dismissed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Joseph Macejko
Youngstown City Prosecutor
Atty. Bassil Ally
Assistant Prosecuting Attorney
26 S. Phelps Street
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Richard Hura
WPA Memorial Building
132 S. Broad Street, Suite 204B
Canfield, Ohio 44406
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 21, 2012
[Cite as State v. Harris, 2012-Ohio-1304.]
WAITE, P.J.
{¶1} Appellant Terrance Harris appeals from his conviction on a probation
violation in Youngstown Municipal Court. He was originally convicted on one count of
unauthorized removal, a first degree misdemeanor under Youngstown Municipal
Ordinance 545.23 (referring to the unauthorized removal of copper wiring, gutters,
fixtures, plumbing, etc., from a structure). A fine was imposed, and he was
sentenced to community control sanctions including the requirement to report daily to
the county jail for 90 days. He agreed to perform 74 hours of community service in
lieu of paying the fine. He failed to complete any of the community service or report
to the jail as ordered. Appellant stipulated to the probation violation, and the court
sentenced him to 150 days in jail. Appellant’s counsel on appeal has filed a no merit
brief and a request to withdraw as counsel pursuant to State v. Toney, 23 Ohio
App.2d 203, 262 N.Ed.2d 419 (7th Dist.1970).
{¶2} No appealable issues are apparent from the record of the case.
Appellant did not contest the probation violation, has completed his misdemeanor
sentence, and did not request a stay of his sentence. Therefore, the appeal is moot.
Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶23.
Further, the record reflects that Appellant was represented by counsel on the
probation violation, stipulated to the violation, had a full hearing regarding the
stipulation and sentence, and received a sentence within the statutory range for his
crime. For these reasons, counsel's motion to withdraw is sustained and this appeal
is dismissed.
-2-
{¶3} Appellant was cited on July 7, 2010, on one count of unauthorized
removal, a first degree misdemeanor punishable by up to 180 days in jail. He
entered a plea of no contest, and was sentenced on August 6, 2010, to community
control sanctions and a fine. The community control sanctions consisted of 90 days
of daily reporting to the Mahoning County jail (starting on August 9th and ending on
November 6th), and one year of intensive probation supervision. He also was
required to pay a $200 fine and reimburse costs of $100. These had to be paid by
October 31, 2010. He agreed to perform 74 hours of community service in lieu of
paying the fine.
{¶4} A notification of probation violation was filed on December 28, 2010. It
alleged that Appellant had not performed any hours of community service and had
not reported on a daily basis to the jail. A probable cause hearing was held on
January 24, 2011, and Appellant stipulated to the probation violation. Sentencing
took place on February 28, 2011. Appellant was represented by counsel in the
probation revocation proceedings. Appellant was permitted to explain why he
violated his probation, and he stated that he needed extra money and had obligations
that conflicted with his probation requirements. The court pointed out that Appellant
had more than six months to complete 90 days of daily reporting to the jail and to
perform a relatively few hours of community service, and he had completed neither.
The court revoked probation and imposed 150 days of jail time. This appeal
followed. Counsel filed a no merit brief on July 1, 2011, and Appellant was given
-3-
time to file any additional issues for appeal. Nothing further was filed. Appellant’s
sentence expired on July 28, 2011.
{¶5} Counsel is asking to withdraw pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and pursuant to our ruling in Toney,
supra. “ ‘It is well settled that an attorney appointed to represent an indigent criminal
defendant on his or her first appeal as of right may seek permission to withdraw upon
a showing that the appellant's claims have no merit. To support such a request,
appellate counsel must undertake a conscientious examination of the case and
accompany his or her request for withdrawal with a brief referring to anything in the
record that might arguably support the appeal. The reviewing court must then
decide, after a full examination of the proceedings, whether the case is wholly
frivolous.’ ” (Citations omitted.) State v. Odorizzi, 126 Ohio App.3d 512, 515, 710
N.E.2d 1142 (7th Dist.1998).
{¶6} In Toney, we set forth the procedure to be used when counsel of record
determines that an indigent's appeal is frivolous:
{¶7} 3. Where a court-appointed counsel, with long and
extensive experience in criminal practice, concludes that
the indigent's appeal is frivolous and that there is no
assignment of error which could be arguably supported on
appeal, he should so advise the appointing court by brief
and request that he be permitted to withdraw as counsel of
record.
-4-
{¶8} 4. Court-appointed counsel's conclusions and
motion to withdraw as counsel of record should be
transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses,
pro se.
{¶9} 5. It is the duty of the Court of Appeals to fully
examine the proceedings in the trial court, the brief of
appointed counsel, the arguments pro se of the indigent,
and then determine whether or not the appeal is wholly
frivolous.
{¶10} 6. Where the Court of Appeals makes such an
examination and concludes that the appeal is wholly
frivolous, the motion of an indigent appellant for the
appointment of new counsel for the purposes of appeal
should be denied.
{¶11} 7. Where the Court of Appeals determines that an
indigent's appeal is wholly frivolous, the motion of court-
appointed counsel to withdraw as counsel of record should
be allowed, and the judgment of the trial court should be
affirmed. (Emphasis sic.) Id. at syllabus.
{¶12} The record reflects that this appeal is now moot. In a misdemeanor
case, an appeal is moot if the defendant has voluntarily served his sentence and
-5-
there is no indication that there are any collateral disabilities that might arise from the
conviction. Cleveland Hts. v. Lewis, supra, at ¶18, citing State v. Wilson, 41 Ohio
St.2d 236, 325 N.E.2d 236 (1975). The term “voluntarily” in this context means that
the defendant acquiesced in the judgment or abandoned the right to review. Id. at
¶21. Normally this means that the defendant did not contest the charges at trial or
file a motion for stay of execution of sentence with the trial court. Id. at ¶23.
Appellant voluntarily served his sentence in this case. He admitted to the probation
violation and served his sentence without attempting to stay execution of the
sentence. There has been no suggestion of any collateral consequences of the
conviction, and none are apparent in the record.
{¶13} Even if the appeal were not moot, we find no possible issues on appeal
that could be categorized as non-frivolous. The matter under review is a probation
violation proceeding revoking community control. A community control revocation
hearing is not a criminal trial, and the state does not have to establish a violation with
proof beyond a reasonable doubt. State v. Delaine, 7th Dist. No. 08 MA 257, 2010-
Ohio-609, ¶14; State v. Hylton, 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (1991).
Instead, the prosecution must present substantial proof that a defendant violated the
terms of his community control sanction. Id. at 782. The trial court’s decision in a
probation revocation proceeding is reviewed for abuse of discretion. State v. Brown,
7th Dist. No. 10 MA 34, 2010-Ohio-6603, ¶12. An abuse of discretion implies more
than an error of law or judgment; it connotes that the trial court's attitude was
-6-
unreasonable, arbitrary, or unconscionable. State v. Maurer, 15 Ohio St.3d 239, 253,
473 N.E.2d 768 (1984).
{¶14} Crim.R. 32.3(A) reads, in pertinent part, that “[t]he court shall not
impose a prison term for violation of the conditions of a community control sanction or
revoke probation except after a hearing at which the defendant shall be present and
apprised of the grounds on which action is proposed.”
{¶15} Revocation of probation implicates two due process requirements. The
trial court is first required to conduct a preliminary hearing to determine whether there
is probable cause to believe that the defendant has violated the terms of his
probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973);
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The court
is then required to hold a final hearing to determine whether probation should be
revoked. Brown, supra, at ¶15. These requirements apply to probation revocation
proceedings in municipal court as well as the court of common pleas. State v. Smith,
7th Dist. No. 01 CA 187, 2002-Ohio-6710.
{¶16} In this case, there were two hearings. At the first hearing, Appellant
stipulated to probable cause and openly admitted to the probation violation. He then
appeared at the sentencing hearing and attempted to explain why he had completely
failed to abide by the terms of probation. He was sentenced to less than the
maximum punishment allowable for a first degree misdemeanor. There is no abuse
of discretion indicated in the record of these hearings.
-7-
{¶17} Because Appellant has served his misdemeanor sentence and there
are no non-frivolous issues for review, we hereby grant counsel’s motion to withdraw
and the appeal is dismissed.
Donofrio, J., concurs.
Vukovich, J., concurs.