State of Ohio, Plaintiff-Appellant, v. Daniel R. Marcum, Defendant-Appellee.
No. 15AP-421 (C.P.C. No. 15CR-210)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
December 15, 2015
[Cite as State v. Marcum, 2015-Ohio-5237.]
LUPER SCHUSTER, J.
(REGULAR CALENDAR)
Rendered on December 15, 2015
Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellant.
Yeura R. Venters, Public Defender, and Timothy E. Pierce, for appellee.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Plaintiff-appellant, State of Ohio, appeals from a judgment of the Franklin County Court of Common Pleas sentencing defendant-appellee Daniel R. Marcum in connection with Marcum‘s conviction for possession of heroin. For the reasons that follow, we reverse and remand for resentencing.
I. Facts and Procedural History
{¶ 2} On January 16, 2015, Marcum was indicted on a single count of fourth-degree felony possession of heroin, a violation of
{¶ 3} The state filed a timely appeal.
II. Assignment of Error
{¶ 4} The state assigns the following error for our review:
The sentence imposed is contrary to law.
III. Discussion
{¶ 5} The state‘s single assignment of error generally argues the sentence imposed upon Marcum was contrary to law. In support of its assignment of error, the state argues the sentence was contrary to law because the trial court failed to obtain and review a presentence investigation report before imposing a community control sanction, the trial court failed to impose at least one year of community control or a valid prison term, the trial court erroneously imposed both a prison term and community control, and the trial court erroneously backdated the effective date of the driver‘s license suspension mandated by
A. Justiciable Controversy
{¶ 6} Because it concerns this court‘s jurisdiction, we must first determine whether this appeal is moot. Generally, courts will not resolve issues that are moot. See, e.g., In re L.W., 168 Ohio App.3d 613, 2006-Ohio-644, ¶ 11 (10th Dist.). The
{¶ 7} “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. Golston, 71 Ohio St.3d 224 (1994), syllabus (distinguishing mootness test for felony conviction appeal from misdemeanor conviction appeal). However, a defendant‘s appeal of a sentence already served is moot. See, e.g., State v. Duff, 10th Dist. No. 04AP-901, 2005-Ohio-2299, ¶ 12. Such an appeal is moot because “there is no remedy that can be applied that would have any effect in the absence of a reversal of the underlying conviction.” Id. A sentence that has already been completed cannot be lessened or negated in any meaningful way. But the same reasoning does not apply when the state is the party appealing a sentence, as is the case here, because the state‘s challenge to the leniency of a sentence can result in an effective remedy. Scheerer v. Munger, 281 P.3d 491 (Ariz.App.2012).
{¶ 8} Further, because the state timely appealed Marcum‘s sentence, Marcum has “no legitimate expectation of finality in a sentence that remains subject to direct review.” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, ¶ 16, citing State v. Roberts, 119 Ohio St.3d 294, 2008-Ohio-3835, ¶ 16, citing United States v. DiFrancesco, 449 U.S. 117, 136 (1980). Pursuant to Roberts, when there is no legitimate expectation of finality in a sentence that remains subject to direct review, the defendant may be resentenced even after the defendant is released from prison. See id. at ¶ 27-29 (a timely appeal placed the defendant “on notice that his sentence was subject to being overturned,” and, thus,
{¶ 9} Marcum argues we must dismiss on mootness grounds based on this court‘s decision in State v. Gray, 10th Dist. No. 89AP-511 (Mar. 13, 1990). In Gray, this court dismissed as moot the state‘s appeal from a trial court‘s decision sua sponte dismissing two traffic related offenses and reducing the defendant‘s charge of driving while under the influence of alcohol to the minor misdemeanor charge of reckless operation of a motor vehicle. In Gray, the state did not request a stay of enforcement of the sentence and the defendant served her sentencing obligations soon after the state initiated its appeal.
{¶ 10} To begin its analysis, the Gray court noted that the appeal implicated the “dual issues of double jeopardy and mootness.” Id. at 2. As to the double jeopardy issue, the court determined that, because all charges were “finally determined” as a result of the court‘s acceptance of the defendant‘s pleas, the Double Jeopardy Clauses of the Ohio and United States Constitutions prohibited the state from relitigating either the dismissed charges or the reduction of the driving under the influence charge to reckless operation of a motor vehicle. Id. at 2.
{¶ 11} As to the issue of mootness, this court cited the following statement in State v. Berndt, 29 Ohio St.3d 3 (1987): “This court has held that ‘[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, 41 Ohio St.2d 236 (1975), syllabus. The Gray court stated the standard for determining mootness of a defendant‘s appeal “should apply to an appeal by the prosecution.” Id. at 3. According to Marcum, in view of this statement, this case is moot. We are unpersuaded.
{¶ 12} Gray involved an appeal of the trial court‘s decision to sua sponte dismiss and reduce charges, not a challenge to the leniency of a sentence. Additionally, the Supreme Court of Ohio has since permitted the imposition of a harsher prison sentence on a defendant after a successful appeal by the state, even though the defendant had been released from prison after serving the prison sentence previously imposed. See Roberts at ¶ 29. Lastly, we note the Gray court did not recognize the substantive distinction between
{¶ 13} Because this appeal is not moot, there remains a justiciable controversy.
B. Presentence Investigation Report Requirement
{¶ 14} The state argues the sentence imposed on Marcum was contrary to law because the trial court imposed a community control sanction without first obtaining and reviewing a presentencing investigation report. We agree.
{¶ 15}
{¶ 16} Marcum argues Amos, which involved two consolidated appeals from the Eighth District Court of Appeals, is inapplicable because the lead opinion of Justice O‘Neill is only supported by three Justices who concurred in judgment only. As such, Marcum contends the lead opinion is not controlling authority. We are unpersuaded by this argument. In Amos, the Supreme Court reversed the judgment of the court of appeals in State v. Amos, 8th Dist. No. 97719, 2012-Ohio-3954, which had affirmed the defendant‘s sentence of 30 days in jail with full credit for time served, a $150 fine, and driver‘s license suspension of six months. The Supreme Court also affirmed the judgment of the court of appeals in State v. Richmond, 8th Dist. No. 97531, 2012-Ohio-3946. In Richmond, the court vacated both the defendant‘s sentence of 30 days in jail with full credit for time served and a $200 fine, and remanded the matter to the trial court. In both Amos and Richmond, the sentencing occurred without the consideration of a
{¶ 17} Although the Supreme Court‘s decision in Amos is fractured, three Justices agreed with the judgment as set forth in Justice O‘Neill‘s lead opinion. The sole holding of the Supreme Court was a “trial court acts contrary to law when it imposes a sentence of one or more community-control sanctions on a felony offender without first ordering and reviewing a presentence investigation report.” Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, ¶ 16. Thus, even though the three concurring Justices apparently did not agree with the lead opinion‘s reasoning leading to the resolution of the matters, the import of the judgment of the majority is clear—it is reversible error for a trial court to impose a community control sanction on a felony offender without first ordering and considering a presentence investigation report.
{¶ 18} Because the trial court imposed a community control sanction on Marcum without first ordering and reviewing a presentence investigation report, it acted contrary to law and the matter must be remanded for resentencing. Accordingly, we sustain the state‘s single assignment of error. Because this matter must be remanded for resentencing, it is unnecessary to address the state‘s remaining arguments.
IV. Disposition
{¶ 19} Having sustained the state‘s single assignment of error, we reverse the judgment of the Franklin County Court of Common Pleas and remand this matter to that court for resentencing in accordance with law and consistent with this decision.
Judgment reversed; cause remanded.
SADLER and HORTON, JJ., concur.