[Cite as State v. Clinton , 2022
- Ohio
- 717.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO Plaintiff

- Appellee

v. JOSHUA CLINTON Defendant

- Appellant : : : : : : : : : : Appellate Case No. 29267 Trial Court Case No. 2019

- CR

- 684 (Criminal Appeal from Common Pleas Court )

. . . . . . . . . . . O P I N I O N Rendered on the 11th day of March , 2022

.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384 , Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff

- Appellee TRAVIS KANE, Atty. Reg. No. 0088191, 130 West Second Street, Suite 460, Dayton, Ohio 4540 2 Attorney for Defendant

- Appellant

. . . . . . . . . . . . .- 2

-

WELBAUM , J.

{¶ 1} Defendan t
- appellant, Joshua Cl inton , appeals from the judgment of the Montgomery County Court of Common Pleas sentencing him to serve 120 day s in jail as a sanction for violating his community control sanctions . On November 15, 2021, Clinton’s appellate counsel filed a brief under the authority of Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any meritorious claims to present on appeal. On November 18 , 2021, this court n otified Clinton that his counsel had found no meritorious claims to prese nt on appeal and granted Clinton 60 days to file a pro se brief assignin g any errors for review. Clinton , however , did not file a pro se brief. {¶ 2} Because Clinton completed his 120

- day jail sentence , and because the trial
court subsequently terminated Clinto n’s community control sanctions, all arguments related to Clinton’s sanction for violating community control are moot

. T here are also no other issues with arguable merit for Clinton to advance on appea l. Therefore , Clinton’s appeal is wholly frivolous and will be dismissed as moot

.

Facts and Course of Proceedings {¶ 3} On April 1, 2019, a Montgomery County grand jury indicted Clinton for one count of abduction in violation of R.C. 2905.02(A)(2), a felony of the third degree. On June 25, 2019, Clinton pled no contest to the indicted charge. The trial court thereafter accepted Clin ton’s no contest plea, found Clinton guilty, and imposed a sentence of- 3

-

community control sanctions not to exceed five years

. As part of the sentence, t he trial
court also ordered Clinton to pay a $ 250 supervision fee and court costs in the amount of $467 . Clinton satisfied these financial obligation s by perform ing 57 hours of community service and by making a payment of $250. {¶ 4} On June 1, 2021, Clinton’s probation officer filed a notice with the trial court asserting that Clinton had violated a condition of his community control sanctions that required him to ref rain from violating any law. Specifically, it was alleged that on May 15, 2021, the City of Kettering Police Department charged Clinton with operating a vehicle under the influence of alcohol an d failure to control after Clinton crashed his vehicle into

a tree

. {¶ 5} On Octo ber 1, 2021, Clinton appeared before the trial court and admitted to violating his community control sanctions

. Based on Clinton’s admission, the trial court found that Clinton had violated t he terms and conditions of his community control and ordered Clinton to serve 120 da ys in jail as a sanction for his violation

. T he trial court also ordered Clinton’s c ommunity con trol sanctions to be terminated once Clinton completed the 120

- day jail term

. In the corresponding termination entry, the trial court waived all associated court co sts and fees

. {¶ 6} Clinton thereafter appealed fro m the 120

- day jail term imposed for his community control violation

. As previously discussed, Clinton’s appellate counsel filed

an Anders brief asserting the absence of any meritorio us claims to present on appeal.

Standard of Review- 4

- {¶ 7} Pursuant to Anders , 386 U.S. 738 , 87 S.Ct. 1396, 18 L.Ed.2d 493, this court must conduct an independent review of the record to determine if the appeal at issue is wholly frivolo us. Anders at 744. “ Anders equates a frivolous appeal with one that presents issues lacking in arguable merit.” State v. Marbury , 2d Dist. Montgomery No. 19226, 20 03

- Ohio

- 3242, ¶ 8. “An issue lacks arguable merit if, on the facts and law involved, no r esponsible contention can be made that it offers a basis for reversal.” Id ., citing State v. Pullen , 2d Dist. Montgomery No. 19232, 2002

- Ohio

- 6788, ¶ 4. {¶ 8} If we determine the appeal is frivolous, we may grant counsel’s request to withdraw and then dismiss t he appeal without violating any constitutional requirements, or we can proceed to a decision on the merits if state law requires it. State v. McDaniel , 2d Dist. Champaign No. 2010 CA 13, 2011

- Ohio

- 2186, ¶ 5, citing Anders at 744. However, “[i]f we find that any issue presented or which an independent analysis reveals is not wholly frivolous, we must appoint different appellate counsel to represent the defendant.” Marbury at ¶ 7, citing Pullen

.

Law and Analysis {¶ 9} “Under th e mootness doctrine, American courts will not decide cases in which there is no longer an actual legal controversy between the parties.” (Citations omitted.) Cyran v. Cyran , 152 Ohio St.3d 484, 20 18

- Ohio

- 24, 97 N.E.3d 487, ¶ 9. Thus, a case is moot “whe n parties ‘ lack a legally cog nizable interest in the outcome [.] ’ ” Id ., quoting Powell v. McCormack

, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). {¶ 10} “An appeal attacking an already

- served felony sentence is moot when there- 5

-

is no indication that the sentence, as opposed to the conviction, will cause the defendant to suffer some collateral disability or loss of civil rights.” State v. Ingledue , 2d Dist. Clark No. 2018

- CA

- 47, 2019

- Ohio

- 397 , ¶ 10. “A collateral disability is an adverse legal

conse quence of a conviction or judgment that survives despite th e court’ s sentence having been satisfied or served.” (Citation omitted.) In re S.J.K. , 114 Ohio St.3d 23,
2007

- Ohio

- 2621, 867 N.E.2d 408, ¶ 10. “For example, a person may be subject to further penalties or disabilities under state or federal law even after a judgment has been satisfied.” (Citation omitted.) Id

. {¶ 11} This court has explained that there is no collateral disability or loss of civil rights under circumstances “ where defen dants challenge their sentences and not their convictions , have already completed their sentences, and have not been sentenced to [ post
- release control ]

. ” State v. Hatfield, 2d Dist. Champaign No. 2017

- CA

- 36, 2019

- Ohio

- 3291, ¶ 15 , citing State v. Ambriez , 6th D ist. Lucas No. L

- 04

- 1382, 2005

- Ohio

- 5877, ¶ 10, State v. Blivens , 11th Dist. Lake No. 98

- L

- 189, 1999 WL 960955, *3 (Sept. 30, 1997), and Ingledue at ¶ 10. In such situations , “there is no remedy we can afford” and therefore the appeal is moot. Hatfield a t ¶ 1 7. {¶ 12} In State v. Oglesby , 2d Dist. Montgomery No. 28218, 2020

- Ohio

- 394, we held that an appeal from an order modify ing community control sanctions was moot under circumstances where the trial court imposed a 12

- month jail sentence as a sanction for a community control violation, and where the off ender completed the jail sentence and subsequently had his community control sanctions terminated by the trial court. Id. a t ¶ 10

- 13. In that situation, we found that “ there is no relief that we can provide related to- 6

-

[the offender’s] sentence[,]” and that “ ‘ “[w]e cannot restore to him any of the time he spent in jail on his conviction.” ’ ” Id. at ¶ 10, quoting State v. Johnson , 2d Dist. Montgomery No. 27140, 2017

- Ohio

- 4323, ¶ 9, quoting State v. MacConnell , 2d Dist. Montgomery No. 25437, 2013

- Ohio

- 4947, ¶ 9. {¶ 13} In this case, the record indicates that the 120

- day jail sen tence imposed for Clinton’s community control violation was completed by Clinton on January 29, 2022. The record also indicates that the trial court terminated Clint on’s community control as

“ incomplete ” on February 2, 2022. The record further indicates that the trial court waived

a ll costs and fees in the matter. T herefore, Clinton is no longer subject to any penalties or disabilities di rectly relating to the conviction

. Accordingly , any argument rela ted to the sanction that Clinton received for violating his community control is moot, as th ere is no remedy available to Clinton on appeal

. {¶ 14} We note that in conducting our Anders review, we independently reviewed the transcript of the October 1, 2021 hearing, which confirmed that Clinton admitted to violating his community control sanctions and that the trial court imposed a 120

- day jail
sentence for the violation. The transcript of Clinton’s original sente ncing hear ing, which took place on July 23, 2019, was not made a part of the record on appeal. That transcript would have been relevant to determine whether the trial court gave the required notifica tions under R.C. 2929.19(B)(4) at the original sentencing hearing, which concern
t he sanctions that a trial court can impose for a community control violation

. Compliance with R.C. 2929.19(B)(4) is a prerequisite to imposing a prison term for a community control violation. State v. Howard , 162 Ohio St.3d 314, 2020

- Ohio

- 3195, 165 N.E.3d- 7

-

1088, ¶ 13, citing State v. Brooks , 103 Ohio St.3d 134, 2004

- Ohio

- 4746, 814 N.E.2d 837, ¶ 29. {¶ 15} When the record on appeal does not contain t ranscripts from all on - the

record proceedings in the trial court , this court would normally reject t he Anders brief and order the appointment of new counsel to supplement the rec ord with the missing transcript

. See State v. Roberts , 2d Dist. Clark No. 2018

- CA

- 8, 2020

- Ohio

- 3391, ¶ 6; State v. Fitzgerald

, 2d Dist. Champaign No. 2018

- CA

- 45, 2020

- Ohio

- 1525, ¶ 5. However, in this case, even if the original sentencing hearing transcript had been made a part of the r ecord on appeal , and even if the transcript revealed some form of error in the sentence , the m atter would still be moot given that C linton is no longer subject to any
pena lties or disabilities dir ectly relating to the sentence

. A s previously discussed , Clinton already completed the 120

- day jail sentence imposed by the trial court for his community control violation , had his community control terminated by the trial court, and was not required to pay any fees or costs in relation to his comm unity control violation. Furthermore, o ur independent review of t he record did not reveal any potentially

mer itorious appellate issues that are unrelated to Clinton’s sentence. Accordingly, there

are no non - frivolous issues for Clinton to advance on appeal. {¶ 16} For the foregoing reasons, Clinton’s appeal is dismissed as moot

.

. . . . . . . . . . . . .

TUCKER , P. J. and EPLEY , J. , concur.- 8

-

Copies sent to: Mathias H. Heck, Jr. Andrew T. French Travis Kane Joshua Clinton Hon. Mary Katherine Huffman