[Cite as State v. Collins, 2013-Ohio-5642.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

ABBOTT A. COLLINS, JR., 

 DEFENDANT-APPELLANT. 

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CASE NO. 12 MA 157 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown 

Municipal Court of Mahoning County, 

Ohio 

Case No. 12CRB394 

JUDGMENT: Dismissed 

APPEARANCES: 

For Plaintiff-Appellee Dana Lantz 

Prosecutor 

Kathleen Thompson 

Assistant Prosecutor 

26 S. Phelps Street, 4th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Andrew R. Zellers 

3810 Starrs Centre Drive 

Canfield, Ohio 44406 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: December 12, 2013 
[Cite as State v. Collins, 2013-Ohio-5642.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Abbott Collins, appeals from a Youngstown 

Municipal Court judgment convicting him of possession of drug paraphernalia 

following his no contest plea and the sentence that followed. 

{¶2} On March 1, 2012, appellant was issued citations for possession of an 

open container in a motor vehicle, a minor misdemeanor in violation of R.C. 4301.62, 

and possession of drug paraphernalia, a fourth-degree misdemeanor in violation of 

R.C. 2925.14. He initially entered a not guilty plea to the charges. 

{¶3} Appellant later changed his plea to no contest to the possession of drug 

paraphernalia charge. In exchange, plaintiff-appellee, the State of Ohio, dismissed 

the open container charge. 

{¶4} The trial court sentenced appellant to 30 days in jail and ordered him to 

pay a $100 fine plus costs. 

{¶5} This court granted appellant leave to file a delayed appeal on 

September 19, 2012. Appellant’s appointed counsel filed a brief titled as an Anders

brief. But because counsel listed assignments of error with three distinct issues for 

consideration and because appellant seeks relief through a remand and 

resentencing, this court stated in a judgment entry that we would construe appellant’s 

brief as a merit brief. 

{¶6} Appellant raises three assignments of error. Each of his assignments 

of error asserts that the trial court abused its discretion in sentencing him. His first 

assignment of error states: 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

SENTENCED THE DEFENDANT-APPELLANT TO A MAXIMUM 

SENTENCE DESPITE THE PRESENCE OF MITIGATING FACTORS 

AND ABSENT THE PRESENCE OF ANY AGGRAVATING FACTORS. 

{¶7} Appellant first argues that there were no aggravating factors present in 

this case in support of imposing the maximum sentence but instead there were 

several mitigating factors that the trial court failed to consider. 
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{¶8} Appellant’s second assignment of error states: 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

SENTENCED THE DEFENDANT-APPELLANT TO A MAXIMUM 

SENTENCE WHEN IT WAS NOT NECESSARY TO PUNISH, 

PROTECT THE PUBLIC AND DETER OTHERS, AND WOULD PLACE 

AN UNDUE BURDEN ON THE STATE TO INCARCERATE THE 

DEFENDANT-APPELLANT. 

{¶9} Next, appellant argues that the trial court’s “reasons” for imposing the 

maximum sentence are not supported by any facts or evidence in the record. 

Appellant goes on to argue the court should have focused on rehabilitating him and 

changing his behavior through a substance abuse program instead of sending him to 

jail for 30 days. And appellant asserts that incarcerating him places an undue burden 

on government resources. 

{¶10} Appellant’s third assignment of error states: 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

SENTENCED THE DEFENDANT-APPELLANT TO A MAXIMUM 

SENTENCE WHEN THE DEFENDANT-APPELLANT’S CONDUCT 

WAS NOT THE WORST FORM OF THE OFFENSE AND PRIOR 

SENTENCES WERE NOT DEEMED INEFFECTIVE IN DETERRING 

THE DEFENDANT-APPELLANT FROM COMMITTING FUTURE 

CRIMES. 

{¶11} Finally, appellant contends that there was no evidence that he 

committed the worst form of the offense so as to warrant a maximum jail sentence. 

{¶12} In each of appellant’s assignments of error he asserts the trial court 

should not have sentenced him to a maximum 30-day jail sentence. He does not 

take issue with the $100 fine. 

{¶13} Appellant has already completed his 30-day jail sentence. As of the 
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date of the writing of this opinion, he has yet to pay his $100 fine and his $70 court 

costs. He has not requested a stay of execution. 

{¶14} Appellant acknowledges that he has served his sentence in this case. 

But he states that he “still wishes to appeal this matter due to the fact he received the 

maximum incarceration for a fourth degree misdemeanor without the proper 

justification.” 

{¶15} This appeal is moot. If appellant’s assignments of error dealt with his 

conviction or asserted that his fine was an abuse of discretion, then his appeal would 

not be moot. But he only takes issue here with his 30-day jail sentence, which he has 

already completed. 

{¶16} Generally, when a defendant convicted of a misdemeanor has not 

moved for a stay of his sentence, and has completed the sentence and paid any fine 

or costs, his appeal is moot unless he is subject to a collateral legal disability 

stemming from the conviction. State v. Parrish, 2d Dist. Nos. 25050, 25032, ¶5. But 

when the defendant has yet to pay his fine and costs, the appeal is not moot because 

there is still some relief that can be granted on appeal. 

{¶17} In the present case however, appellant has only asserted that his 

maximum jail sentence was an abuse of discretion. He does not take issue with his 

underlying conviction or his fine. 

{¶18} We addressed a similar issue in State v. Verdream, 7th Dist. No. 02 CA 

222, 2003-Ohio-7284, dealing with an appeal of a felony sentence that had already 

been served. In that case, the appellant did not request a stay of execution of his 

felony sentence. His sentence was completed one month before we decided his 

appeal. We noted that an appeal challenging a felony conviction is not moot even if 

the entire sentence is served before the appeal is decided because of the adverse 

collateral disabilities that accompany a felony conviction even after the sentence has 

been completed. Id. at ¶13. But we then held: 

If an individual has already served his sentence and is only questioning 

whether or not the sentence was correct, there is no remedy that we 
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can apply that would have any effect in the absence of a reversal of the 

underlying conviction. State v. Beamon (Dec. 14, 2001), 11th Dist. 

Nos. 2000-L-160, 2001-Ohio-8712; see, also, State v. Moore (Sept. 19, 

20002), 7th Dist. No. 00AP0741. Appellant is not challenging the 

underlying conviction, and therefore, this appeal is now moot. 

Id. Consequently, we dismissed the appeal. 

{¶19} The present appeal is moot for the same reasons stated in Verdream. 

Appellant only questions whether his sentence was correct. Appellant does not 

challenge his underlying conviction or his fine. There is no remedy we can apply that 

would have any effect in this case. 

{¶20} For the above reasons, appellant’s appeal is dismissed. It is moot 

because appellant has fully served his jail sentence and his appeal deals only with 

sentencing issues. 

Waite, J., concurs. 

DeGenaro, P.J., concurs.