[Cite as State v. McKinnon, 2013-Ohio-2324.]


                     IN THE COURT OF APPEALS OF OHIO
                        FOURTH APPELLATE DISTRICT
                              ROSS COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA3337
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
JOSEPH F. MCKINNON,            : ENTRY
                               :
    Defendant-Appellant.       : Released: 05/31/13
_____________________________________________________________
                         APPEARANCES:

Chase B. Bunstine, Chillicothe, Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C.
Marks, Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
_____________________________________________________________

McFarland, P.J.

        {¶1} Joseph F. McKinnon appeals from the judgment entry of the

Ross County Court of Common Pleas sentencing him to the maximum term

of six months (180 days) incarceration for a first degree misdemeanor theft.

Appellant contends the trial court erred by imposing the maximum sentence

because (1) the trial court’s reasoning did not comport with conditions for

maximum sentence, set forth in R.C. 2929.22(C); and (2) the Supreme Court

of Ohio’s decision in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845

N.E.2d 470, invalidated R.C. 2929.22(C), which was utilized by the trial
Ross App. No. 12CA3337                                                         2


court in sentencing Appellant. However, having reviewed the record, we

find Appellant has completed his sentence. Both assignments of error

challenge only the length of Appellant’s sentence. Because there is no issue

as to the validity of the underlying conviction, there is no relief which can be

granted Appellant. Therefore, we affirm the judgment of the trial court.

                                       FACTS

      {¶2} On April 25, 2010, Appellant was riding as a passenger in a

pickup truck driven by James Blevins. A Ross County Sheriff’s deputy

stopped the truck to investigate a reported theft from Tractor Supply

Company. Two stolen items with a total value of $559.98 were located in

the truck. Blevins admitted stealing the items. Blevins and Appellant were

arrested for grand theft. An employee of the Tractor Supply Company

identified the stolen property and two males she saw putting the property

into the pickup truck. The property was recovered.

      {¶3} Appellant was subsequently indicted for grand theft, a violation

of R.C. 2913.02(A)(1), and a felony of the fifth degree. On November 2,

2010, Appellant entered a guilty plea pursuant to plea negotiations. At the

time of Appellant’s plea, an individual convicted of a fifth degree felony

could be sentenced to a maximum of twelve months in prison. The State
Ross App. No. 12CA3337                                                          3


recommended a six-month prison sentence. The case was scheduled for

disposition on January 6, 2011.

      {¶4} Appellant failed to appear at the disposition hearing. He was

not again in custody until July 17, 2012. Between November 2, 2010 and

July 17, 2012, House Bill 86 was enacted. One of the effects of the

legislation was to amend R.C. 2913.02(A)(1), thereby making thefts under

$1,000.00 misdemeanors of the first degree instead of a felonies of the fifth

degree. As such, the maximum sentence for Appellant’s crime was now a

possible six months in jail.

      {¶5} Appellant was sentenced on July 27, 2012. The trial judge

ordered Appellant to serve six months in the Ross County Jail. The trial

court based its sentence on Appellant’s two previous felony convictions in

1999 (robbery and receiving stolen property) and his failure to appear in

January 2011. Appellant was also ordered to pay court costs. There was no

order of restitution.

      {¶6} McKinnon filed a timely appeal. According to the criminal

docketing statement filed with the appeal, the trial court did not stay

execution of the sentence and a stay was not requested in the court of

appeals.
Ross App. No. 12CA3337                                                           4




             I. THE TRIAL COURT ERRED BY SENTENCING
             APPELLANT TO THE MAXIMUM SENTENCE FOR
             A FIRST DEGREE MISDEMEANOR ON THE
             GROUNDS THAT APPELLANT’S CONVICTIONS
             FROM 1999 AND FAILURE TO SHOW UP AT
             DISPOSITION MADE IMPOSITION OF THE
             LONGEST JAIL TERM NECESSARY TO DETER
             APPELLANT FROM COMMITTING FUTURE
             CRIMES.

             II. THE TRIAL COURT ERRED BY SENTENCING
             APPELLANT TO THE MAXIMUM SENTENCE
             BECAUSE STATE OF OHIO V. BROOKS HELD
             THAT THE EFFECT OF THE OHIO SUPREME
             COURT’S DECISION IN STATE OF OHIO V.
             FOSTER INVALIDATED O.R.C. 2929.22(C),
             WHICH WAS CONSIDERED BY THE TRIAL
             COURT IN THIS MATTER IN DETERMINING
             THE APPROPRIATE SENTENCE FOR APPELLANT.

                    A. STANDARD OF REVIEW

      {¶7} “[W]e review a misdemeanor sentence for an abuse of

discretion.” State v. Knowlton, 4th Dist. No. 10CA31, 2012-Ohio-2350, 971

N.E.2d 395 (May 21, 2012), ¶ 28, citing State v. Leeth, 4th Dist. No.

05CA745, 2006-Ohio-3575, at ¶ 6, citing R.C. 2929.22(A). “An abuse of

discretion implies that a court’s ruling is unreasonable, arbitrary, or

unconscionable; it is more than an error in judgment.” Knowlton, supra;

Leeth at ¶6, citing State ex rel. Richard v. Seidner, 76 Ohio St. 3d 149, 151,

666 N.E.2d 1134 (1996). Ordinarily we would review Appellant’s sentence
Ross App. No. 12CA3337                                                        5


under this standard. However, for the reasons which follow, we find the

issues raised in this appeal to be moot.

                           B. LEGAL ANALYSIS

      {¶8} The overriding purposes of misdemeanor sentencing are to

protect the public from future crime by the offender and others and to punish

the offender. R.C. 2929.21(A). In his first assignment of error, Appellant

contends the trial court did not base the maximum jail sentence on the

available statutory considerations set forth in R.C. 2929.22(C). The relevant

portion provides as follows:

      “A court may impose the longest jail term authorized under
      section 2929.24 of the Revised Code only upon offenders who
      commit the worst forms of the offense or upon offenders whose
      conduct and response to prior sanctions for prior offenses
      demonstrates that the imposition of the longest jail term is
      necessary to deter the offender from committing a future
      crime.”

      {¶9} A trial court may impose a definite jail term of not more than

one hundred eighty days (six months) for a misdemeanor of the first degree.

R.C. 2929.24. Appellant complains of the trial court’s comments that

indicating he would have sentenced Appellant to more than six months “if

he were able to” and that the Appellant had “benefited by not showing up.”

In Appellant’s view, the trial court’s above statements, and others, were

contrary to the considerations of R.C. 2929.22(C). Appellant essentially
Ross App. No. 12CA3337                                                          6


argues (1) his theft conviction was not one of the “worst forms of the

offense” and (2) having lived a crime-free path as evidenced by the 11-year

gap between theft-related offenses, the maximum sentence was not

necessary to deter him from further crime.

       {¶10} Appellant’s second assignment of error asserts a proposition

of law borrowed from State v. Brooks, 7th Dist. No. 05MA31, 2006-Ohio-

410, that the Supreme Court of Ohio’s holding in State v. Foster, 109 Ohio

St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470, must be applied to invalidate R.C.

2929.22(C). Brooks discussed Foster at length. In Foster, the Court

decided, among other issues, that statutes requiring judicial findings prior to

imposition of maximum, non-minimum, or consecutive sentences violated

Sixth Amendment right to jury trial on facts relied upon in enhancing

sentence. The Brooks court compared R.C. 2929.22(C), the misdemeanor

sentencing statute, to the invalidated felony statute in Foster. The Brooks

court also discussed the Sixth Amendment right to jury trial, and stated “the

jury trial right of a petty offender is violated when the sentencing judge is

required by statute to make factual findings in order to impose a maximum

sentence where those certain maximum sentence facts were not determined

by a jury or admitted by the pleading defendant.” Appellant contends the

use of R.C. 2929.22(C) to determine his sentence and the factual findings
Ross App. No. 12CA3337                                                         7


regarding his prior record and failure to appear were facts not determined by

a jury. Appellant asks this court to vacate his sentence and remand for new

sentencing.

      {¶11} We find the issue raised in this case similar to that previously

considered in State v. Popov, 4th Dist. No. 10C26, 2011-Ohio-372. Popov

had been convicted of robbery and sentenced to a four-year prison term. He

was later granted early judicial release. Popov raised assignments of error

which related to the length of his sentence. He did not challenge the

underlying conviction. We noted Popov had been released from prison at the

time of the appeal. We held:

      “An appeal challenging a felony conviction is justiciable, i.e.,
      not moot, even if the defendant has served sentenced because
      the defendant ‘has a substantial stake in the judgment of
      conviction which survives the satisfaction of the judgment
      imposed upon him or her.’” Popov, ¶ 5, quoting State v.
      Golston, 71 Ohio St. 3d 224, 643 N.E. 2d 109, at paragraph one
      of the syllabus.

      “However, the same logic does not apply where the defendant
      is solely appealing the length of sentence.” Popov, ¶ 6. An
      appeal challenging only the length of a sentence becomes moot
      after the defendant has served the sentence.” Id., see State v.
      Adams, 8th Dist. No. 85267, 2005-Ohio-3837, at ¶ 5; see also
      State v. Howard, 4th Dist. No. 89CA1840, 1991 WL 28326,
      (Feb. 26,1991) at *3. “This is because when the defendant has
      served his punishment, ‘there is no collateral disability or loss
      of civil rights that can be remedied by a modification of the
      length of the sentence in the absence of a reversal of the
      underlying conviction.* * *[A]nd no relief can be granted * * *
      subsequent to the completion of the sentence if the underlying
Ross App. No. 12CA3337                                                            8


        conviction itself is not at issue.” State v. Bostic, 8th Dist. No.
        84842, 2005-Ohio-2184, at ¶ 22, quoting State v. Beamon, 11th
        Dist. No. 2000-L-160, 2001 WL 1602656, (Dec. 14, 2001) at
        *1.”

        {¶12} In the case sub judice, Appellant was sentenced on July 27,

2012 to a maximum six-month jail term. The record indicates he had been

in custody since July 17, 2012, due to his arrest on the warrant issued when

he failed to appear in January 2011. He was given credit for twenty days

previously served. The record also reflects Appellant did not request a stay

of execution in the trial court, nor in this court. It appears that Appellant’s

remaining 160 days of jail were served and completed on or about January 3,

2012.

        {¶13} As in Popov, Appellant has served his jail term and does not

challenge any aspect of the underlying theft conviction. He has suffered no

collateral disability or loss of civil rights that can be remedied because the

underlying conviction is not at issue. An appeal in Appellant’s favor on the

issue of maximum sentence would grant him no relief as he has already been

released from incarceration on this charge. Accordingly, we reject

Appellant’s assignments of error as moot.

                                                   JUDGMENT AFFIRMED.
Ross App. No. 12CA3337                                                                       9


                                JUDGMENT ENTRY
       It is ordered that the JUDGMENT BE AFFIRMED and costs herein be taxed to
Appellant.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Harsha, J.: Concurs in Judgment and Opinion.
Abele, J: Concurs in Judgment Only.
                                                       For the Court,

                                                       BY:     _______________________
                                                               Matthew W. McFarland
                                                               Presiding Judge




                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
