State v. MontavonState v. Montavon
Rendered on May 16, 2013
Ron O‘Brien, Prosecuting Attorney, and Laura R. Swisher, for appellee.
Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶ 1} Defendant-appellant, Thomas G. Montavon (“aрpellant“), appeals from a judgment of the Franklin County Court of Common Pleas denying his motion for jail-time credit. Because we conсlude that the assignments of error asserted in this appeal are moot, we sua sponte dismiss the appeal.
{¶ 2} In May 2007, appellаnt was indicted for possession of cocaine in Franklin County Court of Common Pleas Case No. 07CR-3672 (“the 2007 case“). Although the record is not befоre us, it appears that, at the time of the indictment in the 2007 case, appellant was under community control following a guilty plea оn a charge of possession of cocaine in Franklin County Court of Common Pleas Case No. 06CR-508 (“the 2006 case“). Ultimately, appellаnt stipulated to violating his probation in the 2006 case and
{¶ 3} Appellant was subsequently jailed on another charge, and the trial court terminated аppellant from probation in the 2006 case as unsuccessful and revoked his probation in the 2007 case. In April 2012, the trial court sentenсed appellant to 11 months of imprisonment in the 2007 case and granted 38 days of jail-time credit. Appellant later filed a motion for jаil-time credit, asserting that he was entitled to an additional 264 days of jail-time credit in the 2007 case. The trial court denied the motion for jail-timе credit, finding that the motion was not well-taken.
{¶ 4} Appellant appeals from the trial court‘s order denying his motion for jail-time credit, assigning two errors for this court‘s review:
[1.] Because the trial court ordered Mr. Montavon held for two different cases but only awarded jail-time crеdit for one of those cases, that court committed plain error in denying Mr. Montavon‘s motion for jail-time credit, failing to comply with the unаmbiguous mandate of Ohio law and denying him equal protection of the law.
[2.] Because Mr. Montavon was being held for two different pending cases, his trial counsel rendered ineffective assistance in failing to object to the court‘s crediting jail-time to only one of those cases, and the trial court committed plain error in refusing to address that ineffective assistance, in violation of his right to due process and to effective assistance of counsel.
{¶ 5} At oral argument, appellant‘s counsel indicated that appellant would complete the prison sentence imposed by the trial court in the 2007 case on Thursday, February 14, 2013. This release date appears to be consistent with the sentence of 11 months of imprisonment, with 38 days of jail-time credit imposed by the trial court at the April 23, 2012 resentencing hearing. We have not received any further information from appellant or the state regarding the status of appellant‘s incarсeration; therefore, for
{¶ 6} Generally, “[w]here a defendant, сonvicted of a criminal offense, has voluntarily paid the fine or completed the sentence for that offense, an apрeal 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.” State v. Wilson, 41 Ohio St.2d 236 (1975), syllabus. However, because a person convicted of a felony has a “substantiаl stake in the judgment of conviction” that survives satisfaction of the judgment, “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. As this court has previously notеd, the rationale underlying the Golston decision does not apply if an appeal solely challenges the length of a sentence rather than the underlying conviction. Columbus v. Duff, 10th Dist. No. 04AP-901, 2005-Ohio-2299, ¶ 12. “If an individual has already served his sentence and is only questioning whether or not the sentence was correct, there is no remedy that can be applied that would have any effect in the absence of a reversal of the underlying conviction.” Id.
{¶ 7} In this case, it appears that appellant has served his entire sentence. Although he was convicted of a felony оffense pursuant to his guilty plea, because appellant is not challenging the underlying conviction, the assignments of error asserted in this appeal are moot.
{¶ 8} A court may hear an appeal when a case is moot if the issues raised in the appeal are “capable of repetition, yet evading review.” State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165 (1988), paragraph one of the syllabus. Appellant urges us to rule on his assignments of error under this exception. However, “[t]his exception applies only in exceptional circumstances in which the following two factors are present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231 (2000). The first factor may be present in this case because appellant completed his sentence before resolution оf his appeal. However, appellant has failed to
{¶ 9} For the foregoing reasons, we conclude that appellant‘s two assignments of error are moot, and we sua sponte dismiss the appeal.
Appeal sua sponte dismissed.
KLATT, P.J., and SADLER, J., concur.
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