In re Sullivan , 2022 Ohio 852 ( 2022 )

[Cite as In re Sullivan, 2022-Ohio-852.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: JAMES SULLIVAN. : APPEAL NO. C-210217
TRIAL NOS. M-210049
: M-210051
: O P I N I O N.
Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cause Remanded in Part; Appeal
Dismissed in Part
Date of Judgment Entry on Appeal: March 18, 2022
James Sullivan, pro se,
Joseph T. Deters, Hamilton County Prosecuting Attorney, Pamela J. Sears, Assistant
Prosecuting Attorney, and Christopher Sawyer, Assistant Prosecuting Attorney, for
Appellees.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Appellant James Sullivan raises six assignments of error for the court’s
review. For the following reasons, we lack jurisdiction to address Sullivan’s first,
second, third, fourth, and sixth assignments of error. However, his fifth assignment
of error, which appellees concede, is sustained.
Facts and Procedure
{¶2} On January 15, 2021, Sullivan was found in direct criminal contempt
of court and sentenced to three days in jail for “causing total disruption in the
courtroom, screaming and yelling in the courtroom.”1 After he was sentenced,
Sullivan was taken from the courtroom to be booked into the jail. During a search of
Sullivan’s person, a Hamilton County Sheriff’s Deputy found a body camera in
Sullivan’s pocket, which he believed to be recording. The deputy brought Sullivan
back into the courtroom and told the court:
[a]s I searched him, in his front left inner pocket there was a body
camera. I took it out. It was flashing green. When I got to it, he said,
that means it’s charged. I saw the flashing was off, and we brought it
right to you.
The court responded, “Just opened it up, looked through it. No password. He was
recording. 30 days. See you. We’ll write that up. And I’m confiscating the recording
device.” Sullivan was sentenced to an additional 30 days in jail for “illegally
recording video and audio with a body camera in violation of the Courthouse rules.”2
1 Case numbered M-210049
2 Case numbered M-210051
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Sullivan was released early for health reasons on February 4, 2021,
after contracting COVID-19 while incarcerated. After his release, he moved for the
return of his property.3 During a February 25, 2021 hearing, the court acknowledged
that a body camera and a cell phone were taken from Sullivan. In this appeal,
Sullivan claims that his walking cane also was taken and not returned. However,
Sullivan did not mention the cane at the February 25, 2021 hearing. On February 25,
2021, the court overruled his motion in a written entry.
{¶4} On March 31, 2021, Sullivan filed a notice of appeal “from the Court of
Common Pleas dismissing Mr. Sullivan[’s] claims entered on February 22, 2021.”4
On June 10, 2021, we sua sponte dismissed the appeal for lack of jurisdiction because
it was not timely filed. On June 14, 2021, Sullivan filed what we construed as
motions for reconsideration. On July 6, 2021, we granted reconsideration, finding
that the time for filing a notice of appeal had been tolled pursuant to App.R. 4(A)(3),
because Sullivan had not yet been served with the order denying his motion for the
return of his property. Accordingly, we held his appeal to have been timely filed and
vacated our June 10, 2021 dismissal order.
First, Second, Third, Fourth, and Sixth Assignments of Error
{¶5} Sullivan’s first assignment of error appears to claim that the initial
seizure of his cell phone violated his First and Fourth Amendment rights. His second
assignment of error appears to challenge the warrantless search and seizure of his
cell phone and his arrest. His third assignment of error claims that his due-process
3 There is no written motion for the return of his property in the record. However, a hearing was
held on February 25, 2021, during which Sullivan requested that his property be returned.
4 There is no February 22, 2021 entry in the record. This court assumes the notice of appeal is
referring to the February 25, 2021 entry overruling the motion to return property.
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OHIO FIRST DISTRICT COURT OF APPEALS
rights were violated during the contempt proceedings. His fourth assignment of
error also appears to challenge his contempt convictions by arguing that “Ohio’s
wiretapping law is a ‘one party consent’ law.” His sixth assignment of error alleges
that his rights under the Americans with Disabilities Act were violated during the
contempt proceedings and while he was serving his sentence at the Hamilton County
Justice Center.
{¶6} While Sullivan’s first, second, third, fourth, and sixth assignments of
error are not models of clarity, we interpret them to challenge the initial seizure of
his property and his January 15, 2021 criminal-contempt convictions. Sullivan did
not appeal his contempt convictions. Rather, Sullivan’s March 31, 2021 notice of
appeal in this case specifically stated that he is appealing “from the Court of
Common Pleas dismissing Mr. Sullivan[’s] claims entered on February 22, 2021.”
While there is no entry in the record for February 22, 2021, we assume he is referring
to the trial court’s February 25, 2021 order overruling his motion for the return of his
property. In fact, we reinstated his appeal after our sua sponte dismissal because we
found that Sullivan was not served with a copy of that court order.
{¶7} “We have jurisdiction to review assignments of error stemming only
from the judgment subject of the notice of appeal.” State v. Thompkins, 10th Dist.
Franklin No. 07AP-74, 2007-Ohio-4315, ¶ 7; see State v. Marcum, 4th Dist. Hocking
No. 14CA13, 2014-Ohio-5373, ¶ 16, quoting State v. Walton, 4th Dist. Washington
No. 13CA9, 2014-Ohio-618, ¶ 6. Accordingly, because assignments of error one, two,
three, four, and six challenge Sullivan’s contempt convictions, and not the denial of
his motion to return property, we lack jurisdiction to address them. Therefore,
assignments of error one, two, three, four, and six are dismissed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Fifth Assignment of Error
{¶8} Sullivan’s fifth assignment of error essentially claims that the trial
court erred when it denied his motion for the return of his property. Appellees
concede that our recent case, State v. Hammock, 1st Dist. Hamilton No. C-200368,
2021-Ohio-3574, is dispositive of this assignment of error and agree that Sullivan’s
property must be returned to him. However, appellees ask “for this Court to order
that the offending recorded courthouse footage be deleted from the devices” before
they are returned.
{¶9} Sullivan was found in criminal contempt for violating Loc.R. 33 of the
Hamilton County Court of Common Pleas (“Loc.R. 33”). Loc.R. 33(D)(6) prohibits
the operation of cell phones or other recording devices in the courthouse, and
provides that individuals who violate the rule may be found in contempt and have
their devices confiscated. Loc.R. 33(D)(6) (rev. Jan. 1, 2022).
{¶10} In Hammock, we held that the punishment imposed for contempt
must be “reasonably commensurate with the gravity of the offense.” Hammock at ¶
19, quoting State v. Lowe, 1st Dist. Hamilton Nos. C-170494, C-170495, C-170498
and C-170505, 2018-Ohio-3916, ¶ 37, and State v. Kilbane, 61 Ohio St.2d 201, 400
N.E.2d 386 (1980), paragraph one of the syllabus. We held that destroying the
defendant’s cell phone was not commensurate with a conviction for direct criminal
contempt for recording courthouse proceedings, given the cost of the device and the
sensitive information contained therein, and because that punishment was not
contemplated in the rule. Hammock at ¶ 20.
{¶11} We are presented with similar circumstances here. Indefinitely
retaining Sullivan’s cell phone and body camera is not reasonably commensurate
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OHIO FIRST DISTRICT COURT OF APPEALS
with the gravity of the offenses for which he was convicted. Accordingly, the trial
court erred in denying Sullivan’s motion to return his property. Based on the record
before us, we are not persuaded that information on the devices must be deleted
before they are returned to Sullivan.
{¶12} Accordingly, Sullivan’s fifth assignment of error, which we have
construed to challenge the trial court’s denial of Sullivan’s motion to return property,
is sustained.
Conclusion
{¶13} Because we find that Sullivan’s first, second, third, fourth, and sixth
assignments of error challenge his underlying contempt convictions and not the
judgment subject of the notice of appeal, they are dismissed for lack of jurisdiction.
{¶14} We sustain Sullivan’s fifth assignment of error and reverse the trial
court’s judgment as to Sullivan’s motion for the return of his property. We remand
the cause to the trial court with instructions to return Sullivan’s cell phone, body
camera, and cane (if a cane was also confiscated).
{¶15} Because we are ordering the return of Sullivan’s property, we deny as
moot his pending motions, including: “Motion for Summary Judgment to Reverse
Conviction All Charges” (filed Jan. 13, 2022), “Motion for Spoliation of ESI” (filed
Jan. 13, 2022), “Motion for Summary Judgment to Dismiss All Charges 2935[.]05
Warrantless Search” (filed Jan. 13, 2022), “Motion for Summary Judgment to
Dismiss All Charges for Lack of Subject Matter Jurisdiction” (filed Jan. 13, 2022),
“Motion for Findings of Fact and Conclusions of Law” (filed Jan. 28, 2022) and
“Motion for Spoliation of ESI” (filed Feb. 1, 2022).
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgments reversed, cause remanded in part, and appeal dismissed in part.
ZAYAS, P. J., and BOCK, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion
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