State v. Sharifi , 2019 Ohio 1837 ( 2019 )

[Cite as State v. Sharifi, 2019-Ohio-1837.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
SAMUEL D. SHARIFI, : Case No. 18 CAA 08 0064
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
15 CR I 03 0131
JUDGMENT: Dismissed
DATE OF JUDGMENT: May 10, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O'BRIEN MICHAEL R. DALSANTO
Delaware County Prosecuting Attorney 33 West Main Street, Suite 109
Newark, Ohio 43055
By: RYAN STICKEL
Assistant Prosecuting Attorney
140 N. Sandusky St., 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 18 CAA 08 0064 2
Baldwin, J.
{¶1} Samuel Sharifi appeals the decision of the Delaware County Court of
Common Pleas determining that he had violated the terms and conditions of community
control and imposing a sentence of twelve months. Appellee is the State of Ohio.
STATEMENT OF FACTS AND THE CASE
{¶2} The facts leading to appellant’s conviction and incarceration are not relevant
to the resolution of this appeal and are therefore omitted.
{¶3} Appellant was convicted of burglary in violation of R.C. 2911.12(B), a felony
of the fourth degree. He entered a guilty plea and was admitted into an intervention in
lieu of conviction program only to be terminated from that program and subjected to three
years of community control. After being placed in community control, the state filed a
motion requesting that the trial court revoke community control. After a hearing on the
motion, the trial court found that appellant violated the terms of the community control
and that the violations were not technical violations. Appellant was sentenced to twelve
months in prison and given credit for 141 days on August 1, 2018.
{¶4} Appellant committed acts that violated the terms of his community control,
all of which were related to an automobile accident that occurred on March 17, 2018.
Detective Brook Wilson was called to the scene of a fatal accident involving appellant.
Detective Wilson testified that he concluded appellant was at fault for the accident based
upon his reconstruction of the accident, appellant’s blood alcohol content of .094 grams
by weight of alcohol per one hundred milliliters of whole blood and the presence of a
marijuana metabolite in the appellant’s blood, the defendant driving the wrong way down
a one way street and vague answers given by appellant at the scene. Criminal charges
Delaware County, Case No. 18 CAA 08 0064 3
were filed against appellant arising from this accident. Appellant’s blood test also revealed
cocaine metabolites in his blood at the time of the accident. The accident occurred
between 2:00 AM and 2:30 AM, past appellant’s curfew of 10:00 PM.
{¶5} Appellant failed to report the accident or his police contact until April 3,
2018, and failed to disclose the details of the accident, did not disclose that his blood had
been tested and he denied alcohol use at a meeting with his probation officer. Appellant
admitted possession of marijuana and was in possession during this meeting.
{¶6} Appellant subsequently admitted to not informing his probation officer of
police contact immediately or as soon as possible after the contact, that he consumed
alcohol on April 3, that he had possession of marijuana and that he violated curfew all of
which were violations of the terms of his community control. The trial court found that
appellant violated the terms of the community control and that the violations were not
technical violations. Appellant was sentenced to twelve months in prison and given credit
for 141 days on August 1, 2018.
{¶7} Appellant filed a timely appeal and submitted one assignment of error:
{¶8} “I. THE TRIAL COURT ERRED IN FINDING THAT THE APPELLANT'S
COMMUNITY CONTROL VIOLATION WAS NON-TECHNICAL IN.”
STANDARD OF REVIEW
{¶9} “The privilege of probation rests upon the probationer's compliance with the
probation conditions and any violation of those conditions may properly be used to revoke
the privilege.” State v. Ohly, 166 Ohio App. 3d 808, 2006-Ohio-2353, 853 N.E.2d 675 (6th
Dist.), ¶ 19, quoting State v. Bell, 66 Ohio App. 3d 52, 57, 583 N.E.2d 414 (5th Dist. 1990).
“Because a community control revocation hearing is not a criminal trial, the state does not
Delaware County, Case No. 18 CAA 08 0064 4
have to establish a violation with proof beyond a reasonable doubt.” State v. Wolfson, 4th
Dist. Lawrence No. 03CA25, 2004-Ohio-2750, 2004 WL 1178724, ¶ 7; see, also, State v.
Payne, 12th Dist. Warren No. CA2001-09-081, 2002 WL 649403; Instead, the state need
only present “substantial” proof that a defendant willfully violated the community control
conditions. State v. Hylton, 75 Ohio App. 3d 778, 782, 600 N.E.2d 821 (4th Dist. 1991).
“The test ordinarily applied is highly deferential to the decision of the trial court and is akin
to a preponderance of the evidence burden of proof. See State v. Alderson, 4th Dist.
Meigs No. 98CA12, 1999 WL 713594 (Aug. 31, 1999). Accordingly, the court's conclusion
must be sustained if there is competent credible evidence to support it. Id.” State v. Hayes,
6th Dist. Wood No. WD–00–075, 2001 WL 909291 (Aug. 10, 2001). Additionally, the
“[d]etermination of the credibility of the witnesses is for the trier of fact.” Ohly, supra at ¶
19. See also, State v. Brank, 5th Dist. Tusc. No. 2006AP 090053, 2007-Ohio-919, 2007
WL 657704.
{¶10} Once a trial court finds that a defendant violated community control
conditions, it possesses discretion to revoke the defendant's community control. In that
event, appellate courts should not reverse trial court decisions unless a court abused its
discretion. Wolfson, supra at ¶ 8.
{¶11} Thus, “the appropriate review in this matter is twofold. First, we review the
record to determine whether there is some competent credible evidence to support the
court's finding that [the defendant] violated the terms of probation or community control.
If so, then we review the sanction under the more deferential abuse of discretion standard.
In the Matter of C.M.C., 4th Dist. Washington No. 09CA15, 2009–Ohio–4223, ¶ 17.” State
v. Amos, 4th Dist. Gallia No. 15CA5, 2016-Ohio-917, ¶ 9.
Delaware County, Case No. 18 CAA 08 0064 5
{¶12} An abuse of discretion exists where the reasons given by the court for its
action are clearly untenable, legally incorrect, or amount to a denial of justice, or where
the judgment reaches an end or purpose not justified by reason and the evidence.
Tennant v. Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, 2014 WL 602264, ¶ 35;
In re Guardianship of S.H., 9th Dist. Medina No. 13CA0066-M, 2013-Ohio-4380, 2013
WL 5519847, ¶ 9; State v. Firouzmandi, 5th Dist. Licking No. 2006-CA-41, 2006-Ohio-
5823, 2006 WL 3185175, ¶ 54.
{¶13} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St. 3d 182, 552 N.E.2d 180,
certiorari denied (1990), 498 U.S. 881, 111 S. Ct. 228, 112 L. Ed. 2d 183. Reviewing courts
should accord deference to the trial court's decision because the trial court has had the
opportunity to observe the witnesses' demeanor, gestures, and voice inflections which
cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St. 3d 71,
523 N.E.2d 846(1988).
ANALYSIS
{¶14} The trial court imposed a twelve month sentence and gave appellant credit
for 141 days, leaving 224 days to be served. Appellant’s sentence expired on March 14,
2019 and should no longer be incarcerated for this offense, rendering the assignment of
error moot.
{¶15} “Mootness is a jurisdictional question because the Court 'is not empowered
to decide moot questions or abstract propositions.” 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
Delaware County, Case No. 18 CAA 08 0064 6
Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 92, 30 L. Ed. 2d 244(1971). Because
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. at 246, 92
S. Ct. 92, 30 L. Ed. 2d 244.
{¶16} Ohio courts exercise 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). No
actual controversy exists where a case has been rendered moot by an outside event. “It
is not the duty of the court to answer moot questions, and when, pending proceedings in
error in this court, an event occurs without the fault of either party, which renders it
impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v.
Witt, 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson, 57 Ohio St. 3d
131, 133, 566 N.E.2d 655(1991).
{¶17} The Tenth Appellate District observed:
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
Delaware County, Case No. 18 CAA 08 0064 7
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. In other words,
an issue is moot when it has no practical significance, being instead merely
hypothetical or academic.
Bradley v. Ohio Dept. of Job and Family Services 10th Dist. Franklin No. 10AP-
567, 2011-Ohio-1388, ¶ 11.
{¶18} Although the mootness doctrine has exceptions, none apply in the case at
bar. See, e.g., In re Appeal of Suspension of Huffer 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} A court may take judicial notice of mootness. “An event that causes a case
to be moot may be proved by extrinsic evidence outside the record.” Pewitt v. Lorain
Correctional Inst. (1992), 64 Ohio St. 3d 470, 472, 1992-Ohio-91, 597 N.E.2d 92, 94.”
{¶20} Regarding the mootness of issues in criminal cases, the Ohio Supreme
Court has held,
A person convicted of a felony has a substantial stake in the
judgment of conviction which survives the satisfaction of the judgment
imposed upon him or her. Therefore, an appeal challenging a felony
conviction is not moot even if the entire sentence has been satisfied before
the matter is heard on appeal. (State v. Wilson (1975), 41 Ohio St. 2d 236,
70 O.O.2d 431, 325 N.E.2d 236, and State v. Berndt (1987), 29 Ohio St.3d
Delaware County, Case No. 18 CAA 08 0064 8
3, 29 OBR 173, 504 N.E.2d 712, distinguished; State v. Williams (1992), 80
Ohio App. 3d 542, 609 N.E.2d 1307, disapproved.).
State v. Golston, 71 Ohio St. 3d 224, 643 N.E.2d 109(1994), syllabus.
{¶21} The defendant in Golston was subject to post-release control. Golston was
meant to clarify the Ohio Supreme Court's decision in State v. Wilson, 41 Ohio St. 2d 236,
325 N.E.2d 236(1975), which held,
Where a defendant, convicted of a criminal offense, has voluntarily
paid the fine or completed the sentence for that offense, an appeal is moot
when no evidence is offered from which an inference can be drawn that the
defendant will suffer some collateral disability or loss of civil rights from such
judgment or conviction.
41 Ohio St.2d at syllabus, 325 N.E.2d 236. See also, State v. Ambriez, 6th Dist. Lucas
No. L-04-1382, 2005-Ohio-5877, ¶ 9.
{¶22} In this appeal, appellant challenges his sentence and not his conviction. In
its August 2, 2018 Judgment Entry that revoked Brock's community control, the trial court
sentenced Brock to “twelve months in prison” with credit for 141 days of jail time served
As noted above, appellant’s sentence concluded in March 2019. There is no indication
that appellant will suffer any collateral disability or loss of civil rights from the imposition
of the sentence in this case. In State v. Ambriez, the Court noted,
As in State v. Blivens, (Sept. 30, 1999), 11th Dist. No. 98-L-189, we
distinguish the instant case from Golston since appellant was not subjected
to post-release control. See also Id. at 2, 643 N.E.2d 109, stating “an appeal
challenging the actual felony conviction itself is not moot even if the entire
Delaware County, Case No. 18 CAA 08 0064 9
sentence has been satisfied before the matter is heard on appeal.” Here,
however, appellant only challenges the length of his sentence.
{¶23} Accordingly, the questions presented by this appeal are moot as the relief
sought can no longer be granted, and the appeal is hereby dismissed sua sponte. State
v. Brock, 5th Dist. Licking No. 18-CA-10, 2018-Ohio-3404, ¶¶ 19-26
{¶24} For the forgoing reasons, appellant’s assignment of error is found moot and
the appeal is dismissed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.