[Cite as State v. Baldwin , 2023

- Ohio

- 3265.]

COURT OF APPEALS

TUSCARAWAS COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

:

: Hon. William B. Hoffman, P.J.

Plaintiff

- Appellee : Hon. John W. Wise, J.

: Hon. Patricia A. Delaney, J.

- vs

- :

: Case No. 2022AP120056

:

BRET BALDWIN :

:

:

Defendant

- Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County

Court of Common Pleas, Case No.

2020CR010012

JUDGMENT: DISMISSED

DATE OF JUDGMENT ENTRY:

APPEARANCES: September 13, 2023

For Plaintiff

- Appellee: For Defendant

- Appellant:

RYAN D. STYER DAVID V. PATTON

TUSCARAWAS CO. PROSECUTOR 34194 Aurora Road, Ste. 242

KRISTINE W. BEARD Solon, OH 44139

125 E. High St.

New Philadelphia, OH 44663Tuscarawas County, Case No. 2022AP120056 2

Delaney, J.

{¶1} Appellant Bret Baldwin appeals from the December 8, 2022 Judgment Entry of

the Tuscarawas County Court of Common Pleas overruling his Motion to Modify

Sentencing Order. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose from the trial court’s decision prohibiting appellant from

consuming THC in any form as a condition of supervision on community control, which

has now been terminated.

{¶3} In May 2020, appellant was convicted of felony domestic violence, having

weapons while under disability, abduction, and disrupting public services. He was

sentenced to a 4

- year term of community control with conditions, including a prohibition

against consuming “THC in any form.” 1

{¶4} On February 17, 2021, appellant filed a motion to modify the terms and

conditions of community control to permit him to lawfully use medical marijuana and the

trial court overruled the motion.

{¶5} Appellant appealed from the trial court’s entry overruling his motion to

modify. In State v. Baldwin

, 5th Dist. Tuscarawas No. 2021 AP 06 0013, 2021

- Ohio

4602, at ¶ 19, we found the trial court erred in treating appellant's motion to modify as a

petition for postconviction relief, reversed the judgment, and remanded the matter to the

trial court for its consideration of the motion’s merits.

1 “THC” is delta

- 9 tetrahydrocannabinol, a psychoactive cannabinoid in the cannabis

plant.Tuscarawas County, Case No. 2022AP120056 3

{¶6} The trial court held an evidentiary hearing on March 7, 2022, and overruled

the motion to modify by judgment entry dated December 8, 2022.

{¶7} Appellant instituted the instant appeal from the trial court’s decision on

December 30, 2022.

{¶8} On January 20, 2023, the trial court released appellant from community

control sanctions and terminated supervision. 2 Appellant was discharged from

community control supervision and all civil rights were restored.

{¶9} Appellant now raises eleven assignments of error:

ASSIGNMENTS OF ERROR

{¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER THE

CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE EIGHTH AMENDMENT TO

THE U.S. CONSTITUTION.”

{¶11} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

2 The trial court retained jurisdiction to terminate appellant’s community

- control

sanction after the filing of the notice of appeal because the termination entry is not

inconsistent with the issue before us [use of medical marijuana during term of community

control]. See, State v. Johnson

, 4th Dist. Hocking No. 20CA11, 2022

- Ohio

- 1511, ¶ 10.

Upon filing of a notice of appeal, the trial court loses jurisdiction except to act in aid of the

appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas

, 55 Ohio

St.2d 94, 97, 9 O.O.3d 88, 378 N.E.2d 162 (1978). The trial court retains jurisdiction over

issues not inconsistent with the appellate court's jurisdiction to reverse, modify, or affirm

the judgment appealed from. In re S.J.

, 106 Ohio St.3d 11, 2005

- Ohio

- 3215, 829 N.E.2d

1207, ¶ 9.Tuscarawas County, Case No. 2022AP120056 4

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER THE

CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF OHIO CONSTITUTION, ARTICLE

I, SECTION 9.”

{¶12} “III. THE TRIAL COURT’S ORDER DENYING DEFENDANT’S MOTION

TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH THAT DEFENDANT MAY

LAWFULLY USE MEDICAL MARIJUANA WHILE ON PROBATION FAILS THE

RATIONAL BASIS TEST AND, THEREFORE, THE DEFENDANT HAS THE RIGHT TO

DO SO UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH

AMENDMENT TO THE U.S. CONSTITUTION.”

{¶13} “IV. THE TRIAL COURT’S ORDER DENYING DEFENDANT’S MOTION

TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH THAT DEFENDANT MAY

LAWFULLY USE MEDICAL MARIJUANA WHILE ON PROBATION FAILS THE

RATIONAL BASIS TEST AND, THEREFORE, THE DEFENDANT HAS THE RIGHT TO

DO SO UNDER THE EQUAL PROTECTION CLAUSE OF THE OHIO CONSTITUTION.”

{¶14} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT HE BE

PERMITTED TO DO SO UNDER THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION.”

{¶15} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCHTuscarawas County, Case No. 2022AP120056 5

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT HE BE

PERMITTED TO DO SO UNDER THE DUE COURSE OF LAW CLAUSE OF THE OHIO

CONSTITUTION.”

{¶16} “VII. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER OHIO

CONSTITUTION, ARTICLE I, SECTION 21(B)’S RIGHT TO PURCHASE HEALTH

CARE.”

{¶17} “VIII. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE COMMUNITY CONTROL SANCTION STATUTES (R.C.

AND 2929.17) ARE UNCONSTITUTIONAL AS APPLIED TO THE DEFENDANT.”

{¶18} “IX. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE TRIAL COURT’S SENTENCING ORDER VIOLATES THE

DEFENDANT’S STATUTORY RIGHT TO USE MEDICAL MARIJUANA PURSUANT TO

R.C. 3796.22(A)(1).”Tuscarawas County, Case No. 2022AP120056 6

{¶19} “X. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING

DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH

THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON

PROBATION BECAUSE THE TRIAL COURT’S COMMUNITY CONTROL SANCTIONS

REGARDING MEDICAL MARIJUANA FAIL TO SATISFY ANY OF THE TALLY

FACTORS.”

{¶20} “XI. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO

OBEY THE APPELLATE COURT’S REMAND ORDER TO DECIDE THE DEFENDANT’S

MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS ON THE MERITS.”

ANALYSIS

I.

– XI.

{¶21} Appellant argues the trial court erred in overruling the motion to modify

terms of his community control in order to permit him to use medical marijuana. Appellee

moves us to dismiss the appeal, arguing the matter is moot because appellant’s

community

- control supervision has now been terminated. We agree with appellee and

therefore dismiss the appeal for the following reasons.

{¶22} Appellant’s appeal arises not from his original convictions, but from an

attempt to modify a term of his community

- control sanction, which has now been

terminated. See, State v. Tidd

, 2nd Dist. Montgomery No. 24922, 2012

- Ohio

- 4982, ¶ 12

[* * * any meaningful relief that this court could provide would be the reversal of the * * *

sentence which defendant already completed].

{¶23} We agree with appellee that the question of appellant’s lawful use of

medical marijuana during his term of probation is moot. “ ‘It is not the duty of the court toTuscarawas County, Case No. 2022AP120056 7

answer moot questions, and when, pending proceedings in error in this court, an event

occurs, without the fault of either party, which renders it impossible for the court to grant

any relief, it will dismiss the petition in error.’ ” State ex rel. Gaylor, Inc. v. Goodenow, 125

Ohio St.3d 407, 2010

- Ohio

- 1844, 928 N.E.2d 728, ¶ 10, quoting Miner v. Witt

, 82 Ohio

St. 237, 92 N.E. 21 (1910), syllabus. “Where 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.”

State v. Wilson

, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975), syllabus.

{¶24} Appeals arising from community

- control issues tend to expire with the term

of community control, especially as here where the defendant suffers no collateral

disability. The mootness doctrine has been applied to appeals from a trial court's decision

to revoke community control. “An appeal from the revocation of community control is moot

where the defendant has served the jail or prison sentence imposed, and there is no

indication that the defendant is on post

- release control or is subject to collateral liability.”

State v. Moughler

, 2d Dist. Champaign No. 2017

- CA

- 11, 2018

- Ohio

- 1055, ¶ 7; see also,

State v. Johnson

, 4th Dist. Hocking No. 20CA11, 2022

- Ohio

- 1511, ¶ 9 [defendant’s

underlying community

- control sanction terminated by trial court during pendency of

appeal].

{¶25} We are not authorized to opine on appellant’s use of medical marijuana at

this point. This appeal is limited to the trial court's decision overruling his motion to modify

a term of his probation. “Mootness is a jurisdictional question because the Court ‘is not

empowered to decide moot questions or abstract propositions.’ ” State v. Battigaglia

, 5thTuscarawas County, Case No. 2022AP120056 8

Dist. Stark No. 2020CA00157, 2021

- Ohio

- 2758, ¶ 11, citing State v. Feister

, 5th Dist.

Tuscarawas No. 2018 AP 01 0005, 2018

- Ohio

- 2336, ¶ 28, internal citations omitted. Ohio

courts have long exercised judicial restraint in cases that are not actual controversies.

Battigaglia

, supra, citing Fortner v. Thomas

, 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372

(1970).

{¶26} The Ohio Supreme Court has interpreted a “justiciable matter” to mean the

existence of an actual controversy, a genuine dispute between adverse parties. State v.

Wolfe

, 5th Dist. Licking No. 2020CA00021, 2020

- Ohio

- 5501, ¶ 45, citing State ex rel.

Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas

, 74 Ohio St.3d 536, 542,

660 N.E.2d 458 (1996). In order for a justiciable question to exist, the “threat” to a party's

position “must be actual and genuine and not merely possible or remote.” Wolfe

, supra,

citing M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C. , 2014

- Ohio

- 2537, 14 N.E.3d 1054,

¶ 17, citing Mid

– Am. Fire & Cas. Co. v. Heasley

, 113 Ohio St.3d 133, 2007

- Ohio

- 1248,

863 N.E.2d 142, ¶ 9.

{¶27} In the instant case, the appellant has been released from community control

and his civil rights have been restored. The requested relief would provide no rights or

relief to appellant because the case is concluded; the issues presented to this Court are

moot. State v. McCauley

, 5th Dist. Tuscarawas No. 2022AP100043, 2023

- Ohio

- 2133, ¶

15. Accordingly, the appeal is dismissed.Tuscarawas County, Case No. 2022AP120056 9

CONCLUSION

{¶28} For the foregoing reasons, appellee’s motion is granted and the appeal is

dismissed as moot.

By: Delaney, J.,

Hoffman, P.J. and

Wise, J., concur.