[Cite as State v. Harris, 2012-Ohio-1304.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 11 MA 51
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
TERRANCE HARRIS                               )
                                              )
        DEFENDANT-APPELLANT                   )

CHARACTER OF PROCEEDINGS:                          Criminal Appeal from the Youngstown
                                                   Municipal Court of Mahoning County,
                                                   Ohio
                                                   Case No. 10 CRB 1231

JUDGMENT:                                          Dismissed.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Joseph Macejko
                                                   Youngstown City Prosecutor
                                                   Atty. Bassil Ally
                                                   Assistant Prosecuting Attorney
                                                   26 S. Phelps Street
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Richard Hura
                                                   WPA Memorial Building
                                                   132 S. Broad Street, Suite 204B
                                                   Canfield, Ohio 44406

JUDGES:

Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
                                                   Dated: March 21, 2012
[Cite as State v. Harris, 2012-Ohio-1304.]
WAITE, P.J.


        {¶1}     Appellant Terrance Harris appeals from his conviction on a probation

violation in Youngstown Municipal Court. He was originally convicted on one count of

unauthorized removal, a first degree misdemeanor under Youngstown Municipal

Ordinance 545.23 (referring to the unauthorized removal of copper wiring, gutters,

fixtures, plumbing, etc., from a structure).     A fine was imposed, and he was

sentenced to community control sanctions including the requirement to report daily to

the county jail for 90 days. He agreed to perform 74 hours of community service in

lieu of paying the fine. He failed to complete any of the community service or report

to the jail as ordered. Appellant stipulated to the probation violation, and the court

sentenced him to 150 days in jail. Appellant’s counsel on appeal has filed a no merit

brief and a request to withdraw as counsel pursuant to State v. Toney, 23 Ohio

App.2d 203, 262 N.Ed.2d 419 (7th Dist.1970).

        {¶2}     No appealable issues are apparent from the record of the case.

Appellant did not contest the probation violation, has completed his misdemeanor

sentence, and did not request a stay of his sentence. Therefore, the appeal is moot.

Cleveland Hts. v. Lewis, 129 Ohio St.3d 389, 2011-Ohio-2673, 953 N.E.2d 278, ¶23.

Further, the record reflects that Appellant was represented by counsel on the

probation violation, stipulated to the violation, had a full hearing regarding the

stipulation and sentence, and received a sentence within the statutory range for his

crime. For these reasons, counsel's motion to withdraw is sustained and this appeal

is dismissed.
                                                                                   -2-

       {¶3}   Appellant was cited on July 7, 2010, on one count of unauthorized

removal, a first degree misdemeanor punishable by up to 180 days in jail.          He

entered a plea of no contest, and was sentenced on August 6, 2010, to community

control sanctions and a fine. The community control sanctions consisted of 90 days

of daily reporting to the Mahoning County jail (starting on August 9th and ending on

November 6th), and one year of intensive probation supervision.         He also was

required to pay a $200 fine and reimburse costs of $100. These had to be paid by

October 31, 2010. He agreed to perform 74 hours of community service in lieu of

paying the fine.

       {¶4}   A notification of probation violation was filed on December 28, 2010. It

alleged that Appellant had not performed any hours of community service and had

not reported on a daily basis to the jail. A probable cause hearing was held on

January 24, 2011, and Appellant stipulated to the probation violation. Sentencing

took place on February 28, 2011.      Appellant was represented by counsel in the

probation revocation proceedings.     Appellant was permitted to explain why he

violated his probation, and he stated that he needed extra money and had obligations

that conflicted with his probation requirements. The court pointed out that Appellant

had more than six months to complete 90 days of daily reporting to the jail and to

perform a relatively few hours of community service, and he had completed neither.

The court revoked probation and imposed 150 days of jail time.           This appeal

followed. Counsel filed a no merit brief on July 1, 2011, and Appellant was given
                                                                                      -3-

time to file any additional issues for appeal. Nothing further was filed. Appellant’s

sentence expired on July 28, 2011.

       {¶5}   Counsel is asking to withdraw pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and pursuant to our ruling in Toney,

supra. “ ‘It is well settled that an attorney appointed to represent an indigent criminal

defendant on his or her first appeal as of right may seek permission to withdraw upon

a showing that the appellant's claims have no merit. To support such a request,

appellate counsel must undertake a conscientious examination of the case and

accompany his or her request for withdrawal with a brief referring to anything in the

record that might arguably support the appeal.         The reviewing court must then

decide, after a full examination of the proceedings, whether the case is wholly

frivolous.’ ” (Citations omitted.) State v. Odorizzi, 126 Ohio App.3d 512, 515, 710

N.E.2d 1142 (7th Dist.1998).

       {¶6}   In Toney, we set forth the procedure to be used when counsel of record

determines that an indigent's appeal is frivolous:

              {¶7}   3. Where a court-appointed counsel, with long and

              extensive experience in criminal practice, concludes that

              the indigent's appeal is frivolous and that there is no

              assignment of error which could be arguably supported on

              appeal, he should so advise the appointing court by brief

              and request that he be permitted to withdraw as counsel of

              record.
                                                                             -4-

            {¶8}   4. Court-appointed counsel's conclusions and

            motion to withdraw as counsel of record should be

            transmitted forthwith to the indigent, and the indigent

            should be granted time to raise any points that he chooses,

            pro se.

            {¶9}   5. It is the duty of the Court of Appeals to fully

            examine the proceedings in the trial court, the brief of

            appointed counsel, the arguments pro se of the indigent,

            and then determine whether or not the appeal is wholly

            frivolous.

            {¶10} 6. Where the Court of Appeals makes such an

            examination and concludes that the appeal is wholly

            frivolous, the motion of an indigent appellant for the

            appointment of new counsel for the purposes of appeal

            should be denied.

            {¶11} 7. Where the Court of Appeals determines that an

            indigent's appeal is wholly frivolous, the motion of court-

            appointed counsel to withdraw as counsel of record should

            be allowed, and the judgment of the trial court should be

            affirmed. (Emphasis sic.) Id. at syllabus.

      {¶12} The record reflects that this appeal is now moot. In a misdemeanor

case, an appeal is moot if the defendant has voluntarily served his sentence and
                                                                                        -5-

there is no indication that there are any collateral disabilities that might arise from the

conviction. Cleveland Hts. v. Lewis, supra, at ¶18, citing State v. Wilson, 41 Ohio

St.2d 236, 325 N.E.2d 236 (1975). The term “voluntarily” in this context means that

the defendant acquiesced in the judgment or abandoned the right to review. Id. at

¶21. Normally this means that the defendant did not contest the charges at trial or

file a motion for stay of execution of sentence with the trial court.          Id. at ¶23.

Appellant voluntarily served his sentence in this case. He admitted to the probation

violation and served his sentence without attempting to stay execution of the

sentence. There has been no suggestion of any collateral consequences of the

conviction, and none are apparent in the record.

       {¶13} Even if the appeal were not moot, we find no possible issues on appeal

that could be categorized as non-frivolous. The matter under review is a probation

violation proceeding revoking community control. A community control revocation

hearing is not a criminal trial, and the state does not have to establish a violation with

proof beyond a reasonable doubt. State v. Delaine, 7th Dist. No. 08 MA 257, 2010-

Ohio-609, ¶14; State v. Hylton, 75 Ohio App.3d 778, 782, 600 N.E.2d 821 (1991).

Instead, the prosecution must present substantial proof that a defendant violated the

terms of his community control sanction. Id. at 782. The trial court’s decision in a

probation revocation proceeding is reviewed for abuse of discretion. State v. Brown,

7th Dist. No. 10 MA 34, 2010-Ohio-6603, ¶12. An abuse of discretion implies more

than an error of law or judgment; it connotes that the trial court's attitude was
                                                                                      -6-

unreasonable, arbitrary, or unconscionable. State v. Maurer, 15 Ohio St.3d 239, 253,

473 N.E.2d 768 (1984).

       {¶14} Crim.R. 32.3(A) reads, in pertinent part, that “[t]he court shall not

impose a prison term for violation of the conditions of a community control sanction or

revoke probation except after a hearing at which the defendant shall be present and

apprised of the grounds on which action is proposed.”

       {¶15} Revocation of probation implicates two due process requirements. The

trial court is first required to conduct a preliminary hearing to determine whether there

is probable cause to believe that the defendant has violated the terms of his

probation. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973);

Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The court

is then required to hold a final hearing to determine whether probation should be

revoked. Brown, supra, at ¶15. These requirements apply to probation revocation

proceedings in municipal court as well as the court of common pleas. State v. Smith,

7th Dist. No. 01 CA 187, 2002-Ohio-6710.

       {¶16} In this case, there were two hearings. At the first hearing, Appellant

stipulated to probable cause and openly admitted to the probation violation. He then

appeared at the sentencing hearing and attempted to explain why he had completely

failed to abide by the terms of probation.       He was sentenced to less than the

maximum punishment allowable for a first degree misdemeanor. There is no abuse

of discretion indicated in the record of these hearings.
                                                                                 -7-

      {¶17} Because Appellant has served his misdemeanor sentence and there

are no non-frivolous issues for review, we hereby grant counsel’s motion to withdraw

and the appeal is dismissed.


Donofrio, J., concurs.

Vukovich, J., concurs.
