[Cite as State v. Johnson, 2017-Ohio-4323.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 27140
                                                    :
 v.                                                 :   T.C. NO. 16CRB2842
                                                    :
 BRIAN K. JOHNSON                                   :   (Criminal Appeal from
                                                    :    Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                Rendered on the ___16th ___ day of _____June_____, 2017.
                                      ...........

MATTHEW KORTJOHN, Atty. Reg. No. 0083743, Assistant City Prosecutor, 335 W.
Third Street, Rm. 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

MISTY M. CONNORS, Atty. Reg. No. 0075457, 3973 Dayton-Xenia Road, Beavercreek,
Ohio 45432
      Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.

        {¶ 1} Defendant-appellant Brian K. Johnson appeals his conviction for one count

of assault, in violation of R.C. 2903.13, a misdemeanor of the first degree. Johnson filed
                                                                                        -2-


a timely notice of appeal with this Court on June 3, 2016. Initially, we note that since

Johnson has completed serving the imposed jail sentence, there is no relief which we can

provide on the issues raised in his appeal. This renders his appeal moot.

       {¶ 2} After a bench trial held on May 17, 2016, Johnson was found guilty of one

count of assault. The trial court imposed a sentence of 180 days in jail, the maximum

sentence for a misdemeanor of the first degree.          Johnson also received credit for

fourteen days already served, for an aggregate sentence of 166 days in jail. The record

establishes that the trial court did not impose fines or court costs.

       {¶ 3} It is from this judgment that Johnson now appeals.

       {¶ 4} Johnson presents the following assignments of error on appeal:

       {¶ 5} “THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY WITH THE

SENTENCING CRITERIA FOR MISDEMEANORS SET FORTH IN R.C. 2929.22.”

       {¶ 6} “DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT

IMPOSED [THE] MAXIMUM SENTENCE FOR [A] MISDEMEANOR OFFENSE

WITHOUT CONSIDERING THE APPROPRIATE STATUTORY CRITERIA.”

       {¶ 7} “DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT

BASED ITS SENTENCING ON STATEMENTS MADE BY THE PROSECUTOR THAT

WERE NOT SUPPORTED BY TESTIMONY OR EVIDENCE ON THE RECORD.”

       {¶ 8} In the instant case, the record establishes that Johnson was booked into the

Montgomery County Jail on May 5, 2016. Having been sentenced to 180 days in jail,

Johnson’s sentence would have been scheduled for completion before the parties even

finished their briefing in this appeal.   In arguing that the appeal is moot, the State

represented in its brief that Johnson “has finished serving his jail sentence” and had been
                                                                                        -3-


“released from the jail on October 15, 2016,” with the reason listed for his release being

“time served.” Appellant did not file a reply brief arguing to the contrary.1

       {¶ 9} Johnson's assignments of error are directed to the jail sentence only. Even

if one of the assignments of error has merit, because Johnson has finished serving his

jail sentence, we cannot provide any meaningful remedy. See State v. Robinson, 2d

Dist. Montgomery No. 26712, 26713, 2016-Ohio-3277, ¶ 4.          “We cannot restore to him

any of the time he spent in jail on this conviction.” State v. MacConnell, 2d Dist.

Montgomery No. 25437, 2013–Ohio–4947, ¶ 9. Consequently, this appeal is moot. See

id.; State v. Kinnison, 2d Dist. Darke No. 2010 CA 1, 2011–Ohio–6324, ¶ 7; State v.

Money, 2d Dist. Clark No. 2009 CA 119, 2010–Ohio–6225, ¶ 25.

       {¶ 10} Because this appeal is moot, it is dismissed.

                                         .............

FROELICH, J. and WELBAUM, J., concur.

Copies mailed to:

Matthew Kortjohn
Misty M. Connors
Hon. Deirdre E. Logan




This Court has confirmed that Johnson was released from the Montgomery County Jail
1

on October 15, 2016, and is therefore, no longer an inmate.
