[Cite as State v. Eleyet, 2018-Ohio-4879.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                        MIAMI COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-1
                                                   :
 v.                                                :   Trial Court Case Nos. 2017-CRB-2781
                                                   :                      2017-CRB-2785
 MICHAEL D. ELEYET                                 :                      2017-CRB-2787
                                                   :                      2017-CRB-2808
          Defendant-Appellant                      :
                                                   :   (Criminal Appeal from
                                                        Common Pleas Court)

                                              ...........

                                             OPINION

                           Rendered on the 7th day of December, 2018.

                                              ...........

LENEE BROSH, Atty. Reg. No. 0075642 and JARED B. CHAMBERLAIN, Atty. Reg. No.
0090785, Miami County Municipal Prosecutor’s Office, 201 West Main Street, Troy, Ohio
45373
      Attorney for Plaintiff-Appellee

SCOTT N. BLAUVELT, Atty. Reg. No. 0068177, 315 S. Monument Avenue, Hamilton,
Ohio 45011
      Attorney for Defendant-Appellant

                                             .............
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HALL, J.

          {¶ 1} Michael D. Eleyet appeals from his conviction and sentence following guilty

pleas in four consolidated misdemeanor cases.

          {¶ 2} In his sole assignment of error, Eleyet contends the trial court erred in

calculating jail-time credit at sentencing and in overruling a motion to correct jail-time

credit.

          {¶ 3} Eleyet asserts that he was ordered to serve an aggregate jail term of 330

days. He admits, however, that he now has served his sentence and has been released

from confinement. He recognizes this court’s case law holding that a challenge to jail-time

credit is moot once a defendant has served his sentence, even if a stay was requested

and denied. The reason is simple—we cannot restore to a defendant any time that he

improperly spent in jail. State v. MacConnell, 2d Dist. Montgomery No. 25437, 2013-Ohio-

4947, ¶ 9; see also State ex rel. Gordon v. Murphy, 112 Ohio St.3d 329, 2006-Ohio-6572,

859 N.E.2d 928, ¶ 6 (finding a jail-time-credit appeal moot where the defendant had been

released from confinement).

          {¶ 4} We note that whether an appeal is moot after a sentence has been served

has been treated differently depending on the circumstances. In Cleveland Hts. v. Lewis,

129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, the Ohio Supreme Court departed

from previous holdings that a misdemeanant’s appeal is moot when sentence has been

served and fine and costs voluntarily paid. Instead, the Lewis court held that “completion

of a sentence is not voluntary and will not make an appeal moot if the circumstances

surrounding it demonstrate that the appellant neither acquiesced in the judgment nor

abandoned the right to appellate review, that the appellant has a substantial stake in the
                                                                                          -3-


judgment of conviction, and that there is subject matter for the appellate court to decide.”

Id. at paragraph one of the syllabus. Critical to the Lewis holding, however, was the

determination that Lewis was challenging the finding of guilt itself, not just the sentence.

“[T]he appellate court could have provided redress of his claim that he had been

wrongfully convicted, notwithstanding the completion of the sentence.” Id. at ¶ 24. We

contrast Lewis with MacConnell, where we found the appeal moot when all three of

appellant’s assignments of error were directed to his completed jail sentence, not to the

conviction. Although we did not refer to Lewis, we noted that under the circumstances we

had “no ability to provide MacConnell any meaningful remedy on appeal.” Id. at ¶ 9. The

case here involves only an issue of jail time credit related to a completed sentence.

Therefore we believe that the MacConnell case applies rather than Lewis.

       {¶ 5} Notwithstanding the foregoing authority, Eleyet cites State v. Quinteros, 5th

Dist. Holmes No. 17CA002, 2017-Ohio-8825. In that case, the Fifth District addressed a

jail-time issue “in the interest of justice” despite recognizing that the issue was moot. Id.

at ¶ 9. More recently, however, the same court in State v. Lucas, 5th Dist. Guernsey No.

18 CA 10, 2018-Ohio-3227, declined to address a jail-time issue, reiterating “that an

appeal of a jail-time credit denial is moot where the defendant-appellant has completed

his prison sentence.” Id. at ¶ 9-11 (citing prior Fifth District cases).

       {¶ 6} Upon review, we decline to follow the Fifth District’s approach in Quinteros.

We are unpersuaded that the “interest of justice” favors resolution of an issue where there

is no remedy we can provide even if the appellant’s argument is correct. Consistent with

precedent from this court, the Ohio Supreme Court, and the Fifth District itself, we dismiss

Eleyet’s appeal as moot.
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                              .............



WELBAUM, P.J. and DONOVAN, J, concur.


Copies sent to:

Lenee Brosh
Jared B. Chamberlain
Scott N. Blauvelt
Hon. Gary A. Nasal
