[Cite as State v. Pope, 2014-Ohio-2864.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.      13CA0031-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MITCHELL A. POPE                                    MEDINA MUNICIPAL COURT
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   12CRB01015

                                 DECISION AND JOURNAL ENTRY

Dated: June 30, 2014



        WHITMORE, Judge.

        {¶1}     Appellant, Mitchell A. Pope, appeals from the March 15, 2013 Judgment Entry

and Sentence of the Medina Municipal Court. This Court affirms.

                                                I

        {¶2}     In July 2012, Pope was charged with menacing by stalking, in violation of R.C.

2903.211(A)(1), and aggravated menacing, in violation of R.C. 2903.21(A). Pursuant to a pre-

trial agreement, Pope pled no contest to an amended charge of persistent disorderly conduct in

violation of R.C. 2917.11(A) and the remaining charges were dismissed.

        {¶3}     On March 15, 2013, following a presentence investigation, the court sentenced

Pope to 30 days in jail with 20 days suspended. The court also fined Pope $250.00 and placed

him on 5 years of probation. The court set various probation conditions including that Pope was

“[n]ot to own or possess any firearms or ammunition or any other weapon,” and authorized the
                                                2


Medina City Police Department to secure those items. Additionally, as part of his probation, the

court indicated that Pope was to serve 60 days on house arrest.

       {¶4}    On April 8, 2013, Pope filed a notice of appeal from the “judgment entered in this

action on March 15, 2013.” Pope raises two assignments of error for our review.

                                                II

                                Assignment of Error Number One

       THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
       SENTENCING HIM TO 30 DAYS IN JAIL, 60 DAYS OF HOUSE ARREST, 5
       YEARS PROBATION, AND MAXIMUM FINES IN VIOLATION OF OHIO
       LAW AND THE APPELLANT’S RIGHT TO DUE PROCESS OF LAW, AND
       HIS RIGHT AGAINST IMPOSITION OF EXCESSIVE SENTENCES SET
       FORTH IN THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE
       U.S. CONSTITUTION AND ARTICLE I, SECTION 9 OF THE OHIO
       CONSTITUTION.

       {¶5}    As a preliminary matter, we address the State’s argument that this assignment of

error is moot1. “An appeal from a misdemeanor conviction becomes moot when a defendant has

voluntarily satisfied the judgment imposed upon him.” (Emphasis sic.) State v. Sanders, 9th Dist.

Summit No. 23504, 2007-Ohio-2898, ¶ 11, quoting State v. Tolbert, 9th Dist. Summit No.

21203, 2003-Ohio-2160, ¶ 6. When a defendant’s motion to stay execution of his sentence is

denied, we cannot say the sentence was voluntarily served. Sanders at ¶ 11. In the present

matter, Pope moved the trial court to stay execution of his sentence and that motion was denied.

Therefore, this appeal is not moot, and we turn to the arguments raised by Pope.

       {¶6}    In his first assignment of error, Pope contends the sentence imposed by the trial

court was “outside the statutory limits.” Pope also argues that the trial court failed to consider

the factors in R.C. 2929.22(B) regarding misdemeanor sentences.

1
  The State also alleges that Pope failed to object to the sentence before the trial court. The
parties have not provided this Court with a transcript of the sentencing hearing; therefore, we are
unable to ascertain whether Pope objected below.
                                                  3


       {¶7}    A trial court generally has discretion in sentencing. State v. Schneider, 9th Dist.

Wayne No. 09CA0026, 2009-Ohio-6025, ¶ 6. “Unless a sentence is contrary to law, we review

challenges to misdemeanor sentencing for an abuse of discretion.” Id. An abuse of discretion

indicates that the trial court was unreasonable, arbitrary, or unconscionable in its ruling.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶8}    Pope pled no contest and was found guilty of persistent disorderly conduct, in

violation of R.C. 2917.11(A). Persistent disorderly conduct is a fourth degree misdemeanor.

R.C. 2917.11(E)(3)(a). The maximum jail term for a fourth degree misdemeanor is 30 days.

R.C. 2929.24(A)(4). The maximum fine for a fourth degree misdemeanor is $250.00. R.C.

2929.28(A)(2)(a)(iv). Community control sanctions for a misdemeanor can be imposed for a

duration “not exceed[ing] five years.” R.C. 2929.25(A)(2).

       {¶9}    The trial court sentenced Pope to 30 days in jail with 20 days suspended, a

$250.00 fine, and probation for 5 years including 60 days of house arrest. Standing alone, none

of these sanctions exceed the statutory maximums. Therefore, Pope appears to be arguing that it

is the combination of sanctions that are “outside the statutory limits.”

       {¶10} When sentencing for a misdemeanor, R.C. 2929.22(A) permits a trial court to

“impose on the offender any sanction or combination of sanctions under sections 2929.24 to

2929.28 of the Revised Code.” A court is authorized to impose a maximum jail sentence,

suspend a portion of that sentence, and order a term of probation. State v. Coryell, 9th Dist.

Summit No. 24338, 2009-Ohio-1984, ¶ 28-29. R.C. 2929.25(A)(1)(b) provides a trial court may

“[i]mpose a jail term under section 2929.24 of the Revised Code * * *, suspend all or a portion

of the jail term imposed, and place the offender under a community control sanction or

combination of community control sanctions.”
                                                 4


       {¶11} While the trial court sentenced Pope to the maximum jail term permitted under

R.C. 2929.24 for his offense, the trial court suspended a portion of that sentence. Therefore, the

trial court was authorized pursuant to R.C. 2929.25(A)(1)(b) to impose community control

sanctions.

       {¶12} As a part of his probation, the trial court placed Pope under house arrest for 60

days. Community control sanctions can be residential under R.C. 2929.26, nonresidential under

R.C. 2929.27, or financial under R.C. 2929.28. See R.C. 2929.25(A)(1)(b); see also State v.

Cowen, 167 Ohio App.3d 233, 2006-Ohio-3191, ¶ 25 (2d Dist.). The residential sanctions of

confinement to a halfway house or community-based correctional facility can “not [ ] exceed the

longest jail term available for the offense.” R.C. 2929.26(A)(1); see also Cowen at ¶ 27. House

arrest, by contrast, is a nonresidential sanction under R.C. 2929.27(A)(2). Unlike 2929.26(A)(1),

R.C. 2929.27 does not limit the term of a “nonresidential” sanction to the jail term available for

the offense. “[I]f the legislature intended for a sentence of [house arrest] to be the equivalent of

a jail term, then it could have inserted the same limitation in R.C. 2929.27, but it did not.”

Cowen at ¶ 27. Thus, a term of house arrest may exceed the maximum jail term, as long as the

total community control sanctions do not exceed 5 years.

       {¶13} The judgment entry in this case indicates that the house arrest is a portion of the 5

year probation, and not in addition to it. Therefore, the trial court did not abuse its discretion by

imposing the house arrest.

       {¶14} Pope additionally argues that the trial court did not consider the factors in R.C.

2929.22(B) when sentencing him. “A trial court is presumed to have considered the factors set

forth in R.C. 2929.22 ‘absent an affirmative showing to the contrary.’” State v. Endress, 9th

Dist. Medina No. 08CA0011-M, 2008-Ohio-4498, ¶ 4, quoting State v. Smith, 9th Dist. Wayne
                                                5


No. 05CA0006, 2006-Ohio-1558, ¶ 21. Accord Coryell, 2009-Ohio-1984, at ¶ 16. When a

presentence investigation report is ordered, “[w]e presume that the court utilized the information

in the report when issuing its sentence.” Coryell at ¶ 19. Accord State v. Chavers, 9th Dist.

Wayne No. 07CA0065, 2008-Ohio-3199, ¶ 11.

       {¶15} Pope has not provided this Court with a transcript of his sentencing hearing or a

copy of the presentence investigation report. As a result, “we cannot properly review the

underlying facts of this case * * * [and] have no choice but to presume the validity of the trial

court’s sentence.” Chavers at ¶ 11.

       {¶16} Pope’s first assignment of error is overruled.

                               Assignment of Error Number Two

       THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
       ORDERING THE SEIZURE OF HIS WEAPONS, AMMUNITION AND
       RELATED ITEMS IN VIOLATION OF OHIO LAW AND THE
       APPELLANT’S RIGHT TO DUE PROCESS OF LAW, AND HIS RIGHT
       AGAINST IMPOSITION OF EXCESSIVE SENTENCES AND RIGHT TO
       BEAR ARMS.

       {¶17} In his second assignment of error, Pope argues that the court improperly ordered

his weapons and related items seized “post-sentence.” Pope provides the following chronology:

               On June 10, 2013, the lower court ordered, post-sentence, the City of
       Medina Police Department to enter and search the Appellant’s residence and
       secure all firearms, ammunition, and any other weapons at his residence. On June
       13, 2013, the Appellant’s residence was breached and various items * * * were
       seized.

              On June 20, 2013, the lower court ordered that the items be placed and
       secured in the property room at the Medina City Police Department. The
       Appellant has demanded return of his property to no avail.

       {¶18} A notice of appeal “shall designate the judgment, order or part thereof appealed

from.” App.R. 3(D). “An appellate court ‘is without jurisdiction to review a judgment or order
                                                6


that is not designated in the appellant’s notice of appeal.’” Chavers, 2008-Ohio-3199 at ¶ 14,

quoting State v. Dixon, 9th Dist. Summit No. 21463, 2004-Ohio-1593, ¶ 7.

       {¶19} Pope designated the March 15, 2013 judgment entry as the order he was

appealing. That entry provided that, as a condition of his probation, Pope was “[n]ot to own or

possess any firearms or ammunition or any other weapon.” Pope has not challenged whether this

prohibition was a valid condition of his probation.

       {¶20} According to Pope, the Medina City Police entered and searched his residence on

June 13, 2013, pursuant to an order dated June 10, 2013. Then, on June 20, 2013, according to

Pope, the court ordered that the items removed from his residence be placed and secured in the

Medina City Police Department’s property room.

       {¶21} Pope did not designate the June 10, 2013 or the June 20, 2013 order in his notice

of appeal to this Court. See App.R. 3(D). In addition, Pope did not file a motion seeking to

amend his notice of appeal under App.R. 3(F). Neither the June 10, 2013 nor the June 20, 2013

order was included in the record on appeal to this Court.

       {¶22} As Pope’s second assignment of error concerns orders that he did not appeal, we

are without jurisdiction to review it.

                                                III

       {¶23} Pope’s first assignment of error is overruled, and we lack jurisdiction to address

his second assignment of error. The judgment of the Medina Municipal Court is affirmed.

                                                                           Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 7


       We order that a special mandate issue out of this Court, directing the Medina Municipal

Court, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     BETH WHITMORE
                                                     FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

DAVID N. PATTERSON, Attorney at Law, for Appellant.

GREGORY A. HUBER, Law Director, and RICHARD BARBERA, Assistant Prosecuting
Attorney, for Appellee.
