Opinion

City of Cleveland Heights v. Lewis

  • 187 Ohio App. 3d 786
  • 933 N.E.2d 1146
Court
Ohio Court of Appeals
Filed
May 19, 2010
Status
Published
Author
Cooney
On the bench
Blackmon, Boyle, Celebrezze, Cooney, Dyke, Gallagher, Jones, Kilbane, McMonagle, Rocco, Stewart, Sweeney
Cited by
18 cases
Authority
More cited than 14.6%

failure to obey an officer’s request or refusal to provide information does not render one guilty of obstruction

How later courts described this case

  • failure to obey an officer’s request or refusal to provide information does not render one guilty of obstruction

Written by the judges who cited it.

The opinion

Colleen Conway Cooney, Judge,

dissenting.

{¶ 47} I respectfully dissent. I would dismiss the within appeal as moot because Lewis has completed his sentence, including six months’ probation.

{¶ 48} App.R. 8 provides:

(A) Discretionary right of court to release pending appeal. The discretionary right of the trial court or the court of appeals to admit a defendant in a criminal action to bail and to suspend the execution of his sentence during the pendency of his appeal is as prescribed by law.

(B) Release on bail and suspension of execution of sentence pending appeal from a judgment of conviction. Application for release on bail and for suspension of execution of sentence after a judgment of conviction shall be *797 made in the first instance in the trial court. Thereafter, if such application is denied, a motion for bail and suspension of execution of sentence pending review may be made to the court of appeals or to two judges thereof. The motion shall be determined promptly upon such papers, affidavits, and portions of the record as the parties shall present and after reasonable notice to the appellee.

{¶ 49} The majority correctly notes that Lewis was denied a stay by the trial court. However, our record shows he failed to request a stay from our court during the six months he was on probation. Therefore, I would find that Lewis voluntarily completed his sentence and his appeal is moot.

{¶ 50} Two districts have followed this principle. The majority has cited the well-reasoned opinion in Dayton v. Huber, 2d Dist. No. 20425, 2004-Ohio-7249 , 2004 WL 3561217 . However, the Seventh District has also held that an appellant must seek a stay at the court of appeals to preserve his issues on appeal. See Carroll Cty. Bur. of Support v. Brill, 7th Dist. No. 05CA818, 2005-Ohio-6788 , 2005 WL 3489763 , ¶ 20, 30, 33.

{¶ 51} Two of the eases from this court on which the majority relies are easily distinguishable. A stay was denied by both the trial court and the court of appeals in Cleveland v. Townsend, Cuyahoga App. No. 87006, 2006-Ohio-6265 , 2006 WL 3446220 . And Cleveland v. Burge, Cuyahoga App. No. 83713, 2004-Ohio-5210 , 2004 WL 2340079 , involved a conviction for assault that by its very nature carried obvious collateral consequences.

{¶ 52} While I agree with this court’s analysis in Broadview Hts. v. Krueger, Cuyahoga App. No. 88998, 2007-Ohio-5337 , 2007 WL 2875156 , a defendant who is given a fine and costs and asked “Can you pay today?” does not have much choice but to pay that day, at the trial court’s urging. 7 Under that circumstance, clearly a defendant has not “voluntarily” paid or served his or her sentence. But when the defendant has time and opportunity to comply with App.R. 8 and seek a stay pending appeal, after filing a notice of appeal and before the sentence is completed, he must do so in order to demonstrate he did not voluntarily serve his sentence. That is the scenario presented in the instant case.

. The trial court in Krueger denied the defendant’s request for a stay pending appeal, stating, “What’s to appeal? You just pled no contest.” Krueger paid her fine to the Parma Municipal Court that day. Id. at ¶ 4.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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