State v. CummingsState v. Cummings
Judgment: Appeal dismissed.
Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024 (For Plaintiff-Appellee).
Gary L. Cummings, pro se, P.O. Box 1, Conneautville, PA 16406 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Gary L. Cummings appeals from a judgment of the Chardon Municipal Court which found him guilty of operating his vehicle in violation of two traffic statutes. Mr. Cummings claims the acting judge did not have authority to hear his case; the trial court did not properly arraign him, and the trial court lacked subject matter jurisdiction because the traffic statutes at issue are only regulatory in nature. For the following reasons, we dismiss the appeal as moot.
{¶2} Substantive Facts and Procedural History
{¶4} On June 28, 2010, Mr. Cummings filed a “Motion to Dismiss for Lack of Subject Matter Jurisdiction,” claiming
{¶5} On July 2, 2010, Judge Mark J. Hassett of the Chardon Municipal Court appointed Attorney Daniel E. Bond as an acting judge for the court from July 12, 2010 to July 16, 2010 “to conduct all affairs before the Court, and to conclude, if necessary, any proceedings in which [Bond] participated that are pending,” while he attended a juridical conference and took vacation time.
{¶6} On July 13, 2010, Mr. Cummings, pro se, appeared before Acting Judge Bond for the hearing on his motion to dismiss. The transcript of the hearing reflects that at the beginning of the hearing Mr. Cummings questioned whether the acting judge was a “fully qualified judge in the state of Ohio” and asked if he had an oath on file. The acting judge affirmed that he was a fully qualified judge in the state of Ohio but was not sure if he had an oath on file. Mr. Cummings raised objections for the record to the acting judge‘s authority to preside over the matter before the hearing took place.
{¶8} On July 19, 2010, Mr. Cummings appeared briefly before Judge Hassett, back from the judicial conference. The docket reflects that on that day, the court sent Mr. Cummings a notice informing him he was to appear for trial by “magistrate” in the traffic matter.
{¶9} On July 20, 2010, Mr. Cummings filed a “Request for Findings of Fact and Conclusions of Law,” and also an “Objection to Trial by Magistrate.” On July 21, 2010, the trial took place before Acting Judge Bond.
{¶10} On July 23, 2010, Mr. Cummings filed an “Objection to All Findings of Daniel E. Bond and Motion to Void Same” and “Objection to Trial Held July 21, 2010 for Lack of Due Process and Motion to Void Same.” On July 26, 2010, he refiled the documents he had already filed on July 23, 2010, and filed another “Motion to Dismiss for Lack of Subject Matter Jurisdiction.”
{¶12} On August 20, 2010, Acting Judge Bond overruled all the motions and requests by Mr. Cummings. On the same day, he issued a judgment finding Mr. Cummings guilty of the traffic violations as alleged in the citation.
{¶13} On August 31, Mr. Cummings filed a “Dispute of Magistrate‘s Judgment, Motion to Void Same and Motion to Dismiss.” Acting Judge Bond denied the motion, and, after a sentencing hearing on September 8, 2010, imposed a $75 fine, plus costs and fees, for Mr. Cummings’ conviction of violating
{¶14} Appeal
{¶15} On appeal, Mr. Cummings, pro se, raises the following assignments of error for our review:
{¶16} “[1.] The trial court committed prejudicial error in allowing a Magistrate or Acting Judge to preside in this matter over Appellant‘s verbal and written objections and demands for an actual duty [sic] oathed Judge.
{¶17} “[2.] The trial court committed prejudicial error in its failure to arraign Appellant in any capacity and entering a plea of not guilty on Appellant‘s behalf in his absence and without his knowledge or consent, thus sending him to trial in violation of his right to due process.
{¶19} The law is well-established that once the fine is paid or the sentence is completed for a conviction, the appeal from the conviction is moot, unless evidence is offered to show that the defendant will “suffer some collateral disability or loss of civil rights” from the conviction. State v. Berndt (1987), 29 Ohio St.3d 3, 4.
{¶20} In Berndt, the defendant was convicted of operating a motor vehicle while under the influence of alcohol, pursuant to a guilty plea. He was sentenced to six months’ incarceration and imposed a $1,000 fine, of which all but three days and $150 were suspended. He voluntarily completed his sentence and paid his fine. Thereafter he then filed a motion to vacate his guilty plea, which was overruled by the trial court. He then filed a notice of appeal from the judgment of conviction.
{¶21} Upon appeal, the court of appeals reversed and remanded, holding that the trial court failed to advise the defendant of his right to bail and other rights, in violation of Traf.R. 8(D). The state appealed to the Supreme Court of Ohio. The Supreme Court of Ohio reversed the court of appeals, stating the following:
{¶22} “[W]here 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.” Id. at 4, quoting State v. Wilson (1975), 41 Ohio St.2d 236, syllabus. “The burden of presenting evidence that he has such a ‘substantial stake in the judgment of conviction’ is upon the defendant.” Id., citing Wilson at 237. “Thus, this appeal is moot unless
{¶23} The mootness doctrine is consistently applied by the appellate courts in Ohio when entertaining an appeal where the appellant has completed the sentence or paid the fine. See, e.g. State v. Krohn (Oct. 18, 1996), 11th Dist. No. 96-G-1970, 1996 Ohio App. LEXIS 4608; State v. Finch, 2nd Dist. No. 23441, 2010-Ohio-4393, ¶10; City of Garfield Heights v. McElroy, 8th Dist. No. 82706, 2003-Ohio-6621, ¶5.
{¶24} In this case, Mr. Cummings voluntarily paid the fines in full on the day the court imposed the fines after a sentencing hearing. Our review of the record does not indicate he presented any evidence to show he may suffer some collateral legal disability or loss of civil rights as a result of the misdemeanor conviction. Under these circumstances, we must dismiss his appeal as moot.
{¶25} Mr. Cummings could have avoided a finding of mootness by seeking a stay in either the trial court or the appellate court. City of Dayton v. Huber, 2nd Dist. No. 20425, 2004-Ohio-7249, ¶7 (citations omitted). Instead of availing himself of the available procedure, however, Mr. Cummings voluntarily paid the fines.
{¶26} We are aware that Mr. Cummings is a pro se litigant in this matter. However, the fact that he is proceeding pro se does not entitle him to ignore the
{¶27} The appeal is dismissed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.
concur.