# City of Cleveland Heights v. Lewis

> Ohio Court of Appeals · May 19, 2010 · 187 Ohio App. 3d 786

URL: https://www.frixlaw.com/law-library/cases/6699913

## Case

- **Full name:** CITY OF CLEVELAND HEIGHTS v. LEWIS
- **Court:** Ohio Court of Appeals
- **Decided:** May 19, 2010
- **Citations:** 187 Ohio App. 3d 786; 933 N.E.2d 1146
- **Precedential status:** Published
- **Opinion:** Concurrence by McMonagle
- **Judges:** Blackmon, Boyle, Celebrezze, Cooney, Dyke, Gallagher, Jones, Kilbane, McMonagle, Rocco, Stewart, Sweeney
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6699913

## Opinion text

Christine T. McMonagle, Judge,
concurring.
{¶ 40} I concur in the majority opinion in this case, but write separately to emphasize my belief that any criminal conviction, whether felony or misdemean- or, results in a “collateral disability.” See my dissent in State v. McGrath, 8th Dist. No. 85046, 2005-Ohio-4420 , 2005 WL 2046419 . I would hold it appropriate to review any timely filed appeal from a criminal conviction without necessity of alleging or proving a “collateral disability” resulting from the conviction.
{¶ 41} For instance, in the recent case of State v. Robinson, 1st Dist. Nos. C-081084 and C-081141, 2010-Ohio-543 , 2010 WL 571943 , ¶ 23, the appellate court held that “conviction for a minor-misdemeanor violation of R.C. 2925.11 [marijuana possession] creates a disability prohibiting the possession of a firearm or dangerous ordnance, even though the conviction may not constitute a ‘criminal record’ for background checks involved in licensing.” (Emphasis added.) Penalties escalate for subsequent OVI-offense convictions, see R.C. 4511.99, to say nothing of insurance rates. Misdemeanor-assault convictions are not expungeable. R.C. 2953.31. Any misdemeanor conviction prevents a subsequent request for expungement, whether felony or misdemeanor. Chillicothe v. Herron (1982), 3 Ohio App.3d 468 , 3 OBR 549, 445 N.E.2d 1171 . 1 Under the Adam Walsh Act, *795 many misdemeanor sex offenses result in labeling and reporting requirements. R.C. 2929.23. All applicants for the Ohio Bar examination must report any misdemeanor convictions; indeed, a misdemeanor conviction could form the basis of a suspension from the practice of law. Disciplinary Counsel v. Gross (1984), 11 Ohio St.3d 48 , 11 OBR 195, 463 N.E.2d 382 . In short, there is a palpable collateral disability to any misdemeanor conviction.
{¶ 42} In 1975, when the Ohio Supreme Court decided State v. Wilson (1975), 41 Ohio St.2d 236 , 70 O.O.2d 431 , 325 N.E.2d 236 , the court recognized numerous instances where convictions resulted in disabilities: under state law, as a result of a conviction, a defendant could not engage in certain businesses, serve as an official of a labor union, vote in elections, or serve as a juror. 2 Even in eases in which a disability might occur, courts have decided that cases should not be rendered moot on appeal. 3
{¶ 43} Nonetheless, the law that has evolved essentially states that felons may obtain the ear of the appellate court even if they complete their sentence before appellate review; misdemeanants may not unless they specifically show a “collateral disability” resulting from their conviction, or jump through the “request for stay” hoops (either one or two, depending upon whether one “sides with” the majority or the dissent in this matter). I think it is time for the courts to review this issue. Many, if not all of the disabilities mentioned above, e.g., the effect of a minor misdemeanor conviction upon the right to possess firearms, the prohibition against expungement of certain offenses, etc., came into law well beyond the time for appeal of the conviction had run.
{¶ 44} Again, while I believe that any criminal conviction creates collateral disabilities and hence upon timely request should be reviewed by appellate courts, we are asked to address here only whether one or two requests for stay are necessary in order to preserve appellate review for misdemeanants.
{¶45} The issue has been framed as one of the “voluntariness” of the defendant’s serving his sentence. 4 Both the majority and the dissent would hold *796 that a defendant who completes his sentence and does not request a stay in either the trial or the appellate court, absent a showing upon the record that the defendant was forced to serve his sentence before he could reasonably file a request for stay, 5 has rendered his appeal moot. The majority would simply hold that a request for stay made (and denied) in the trial court before the sentence is served is sufficient evidence that the sentence was involuntarily served. The dissent would hold that unless the request for stay was repeated to the appellate court before the sentence was served, it would be presumed the sentence was served voluntarily. I concur with the majority that “once is enough.” Actually, as articulated herein, I believe that “once is more than enough.”
{¶ 46} While it is true, of course, that stays of misdemeanor sentences are rarely granted by trial courts, 6 I believe that a request for stay is sufficient indicia that any sentence subsequently served is being served involuntarily. Accordingly, I would review the merits of this matter.
Blackmon, Boyle, Gallagher, Kilbane, Rocco, and Stewart, JJ., concur in the foregoing opinion.
. "In order for one to be a 'first offender’ as such term is defined in R.C. 2953.31, and entitled to expungement under R.C. 2953.32, the applicant must be a person with no other criminal convictions, including traffic offenses.” Id. at syllabus.
. United States v. Morgan (1954), 346 U.S. 502 , 74 S.Ct. 247 , 98 L.Ed. 248 ; Byrnes v. United States (C.A.9, 1969), 408 F.2d 599 ; Carafas v. LaVallee (1968), 391 U.S. 234 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 .
. Cordle v. Woody (D.C.Va.1972), 350 F.Supp. 479 (prisoner was eligible for parole on another sentence and a misdemeanor conviction might have an adverse effect on granting parole); Street v. New York (1969), 394 U.S. 576 , 89 S.Ct. 1354 , 22 L.Ed.2d 572 (defendant's employer instituted proceedings that might result in suspending the defendant from work without pay if the conviction stood); Fiswick v. United States (1946), 329 U.S. 211 , 67 S.Ct. 224 , 91 L.Ed. 196 (conviction of an alien could weaken a defense to deportation proceedings).
. {¶ a} I note with some amusement that Black's Law Dictionary (5th Ed.1979) 1413 defines “voluntary” as follows: “Unconstrained by interference; unimpelled by another’s influence; *796 spontaneous, acting of one's self * * * proceeding from the free and unrestrained will of the person.”
{¶ b} What jail sentence and/or monetary fine could accordingly, ever be termed "voluntarily served?”
{¶ c} In short, people pay fines and serve sentences because they believe something much worse will happen if they do not. This is duress and coercion (albeit legal), not a voluntary act.
. Presumably a three-day sentence issued on a Friday afternoon that culminated in "Officer, take him away.”
. If only for the difficulty in a trial court's tracking a case in order to ascertain whether an appeal was actually filed and actually prosecuted to conclusion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6699913. Public record. Not legal advice.