[Cite as State v. Bailey, 2016-Ohio-5158.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :  C.A. CASE NO. 26882
                                                   :
 v.                                                :  T.C. NO. 14CR1502
                                                   :
 JOHN B. BAILEY                                    :  (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :
                                              ...........

                                             OPINION

                    Rendered on the ___29th___ day of ___July____, 2016.

                                              ...........

MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 W. Monument Avenue, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1} John B. Bailey appeals from a judgment of the Montgomery County Court of

Common Pleas, which revoked his community control and sentenced him to 12 months

in prison. Bailey has completed serving the imposed prison sentence, and there is

no relief which we can provide on the issues raised in his appeal. Accordingly, this
                                                                                        -2-


appeal will be dismissed as moot.

      {¶ 2} In June 2014, Bailey pled guilty to having weapons while under disability, a

third-degree felony. In exchange for the plea, the State dismissed a charge of carrying

a concealed weapon.      The trial court subsequently sentenced Bailey to community

control for a period not to exceed five years and notified Bailey that, if he violated the

conditions of his community control, the court could sentence him to a longer term under

the same restrictions, could impose more restrictive sanctions, or impose a prison term

of 36 months. Bailey did not appeal from his conviction and sentence.

      {¶ 3} On October 4, 2014, Bailey’s community control officer notified the trial court

that Bailey had been cited in the Franklin and Dayton municipal courts for various traffic

offenses. The probation officer did not recommend any action by the court at that time.

      {¶ 4} In March 2015, Bailey’s community control officer informed the court that

Bailey’s whereabouts had been unknown since February 24. The trial court found Bailey

to be an absconder, suspended the community control period, and issued a capias for his

arrest. On March 16, the trial court reinstated Bailey to community control, with an

additional requirement that Bailey successfully complete the MonDay program.

      {¶ 5} In September 2015, Bailey was ordered to appear before the court on

allegations that he had violated his community control sanctions when he was

unsuccessfully discharged from the MonDay program. The allegation specified: “On

September 10, 2015, you [Bailey] were unsuccessfully discharged from their program

following an incident involving you[r] leaving a community service work site for a period

of time without permission, during which time your whereabouts were unknown.”

      {¶ 6} A hearing on the alleged community control violation was held on October 8,
                                                                                        -3-


2015. At the beginning of the hearing, defense counsel requested a continuance on the

ground that she had been unable to reach anyone from the MonDay program prior to the

hearing. She further indicated that she had not received the termination summary from

MonDay, which the State had received. The court overruled the request and proceeded

with an evidentiary hearing on the revocation petition.

       {¶ 7} The only witness for either party was Linda Toops of the Montgomery County

Adult Probation Department, who was supervising Bailey. Toops testified about the

conditions of Bailey’s community control and stated that Bailey had violated the terms of

his community control by being unsuccessfully discharged from the MonDay program.

Toops indicated that she was notified by MonDay that Bailey’s whereabouts were

unknown during a period of time while he was at a community service worksite.

       {¶ 8} At the conclusion of the revocation hearing, the trial court found that Bailey

had violated the terms of his community control. The court revoked his community

control and sentenced him to 12 months in prison, with 195 days of jail time credit. On

October 15, 2015, the trial court filed a judgment entry consistent with its orally-imposed

sentence.

       {¶ 9} Bailey appeals from the revocation of his community control. In his first

assignment of error, he claims that he was denied his right to due process, because he

did not receive the termination summary and had no opportunity to speak with anyone

from MonDay prior to the revocation hearing. Bailey further states that he was denied

his right to confront and cross-examine adverse witnesses, because he was unable to

cross-examine anyone from the MonDay program at the hearing.              Bailey’s second

assignment of error claims that his attorney at the revocation hearing rendered ineffective
                                                                                           -4-


assistance, because she did not object to Toops’s hearsay testimony regarding the

information provided by individuals from the MonDay program.

        {¶ 10} Bailey did not seek a stay of his sentence either in the trial court or in this

court. Thus, before we address the merits of his assignments of error, we must consider

whether his appeal of the revocation of his community control is moot.

        “Generally, ‘[w]here a defendant, convicted of a criminal offense, has

        voluntarily paid the fine or completed the sentence for that offense, an

        appeal is moot when no evidence is offered from which an inference can be

        drawn that the defendant will suffer some collateral disability or loss of civil

        rights from such judgment or conviction.’ ” “However, because a person

        convicted of a felony has a ‘substantial stake in the judgment of conviction’

        that survives satisfaction of the judgment, ‘an appeal challenging a felony

        conviction is not moot even if the entire sentence has been satisfied before

        the matter is heard on appeal.’ ”

(Citations omitted.) State v. Wright, 2d Dist. Montgomery No. 26471, 2015-Ohio-3919,

¶ 24.

        {¶ 11} According to the record, Bailey was conveyed to the Ohio Department of

Rehabilitation and Corrections on October 14, 2015. Given that Bailey had accrued 195

days of jail time credit prior to sentencing (October 8, 2015), and several additional days

before being conveyed to prison, Bailey would have completed his prison sentence by

March 26, 2016.       A review of the ODRC website reflects that Bailey is no longer

incarcerated, nor is he subject to post-release control.

        {¶ 12} Bailey’s assignments of error raise procedural errors at the revocation
                                                                                       -5-


hearing. Bailey’s appeal is not related to his underlying conviction, he did not seek a

stay of the prison sentence imposed upon the revocation of his community control, he

has served that prison sentence, and there is no indication that Bailey is on post-

release control or is subject to collateral liability. Because Bailey has finished serving

the prison sentence that resulted from the revocation of his community control, we

cannot provide any meaningful remedy, even if we were to find that one or both of his

assignments of error has merit. See Wright at ¶ 27.

      {¶ 13} Bailey’s appeal will be dismissed as moot.

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

FAIN, J. and WELBAUM, J., concur.

Copies mailed to:

Michele D. Phipps
Sean Brinkman
Hon. Mary L. Wiseman
