Ohio Cases April 04, 2019: State v. Kimbro

Case Description

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-626809-A

Appearances:

Mary Catherine Corrigan, for appellant .

Michael C. O'Malley, Prosecuting Attorney, and Kevin E. Bringman, Assistant Prosecuting Attorney, for appellee .

SEAN C. GALLAGHER, P.J.:

{¶ 1} Terrance Kimbro appeals the length of the sentence imposed for having weapons while under disability, a third-degree felony offense. Kimbro has served his prison sentence and is not under postrelease control. In the sole assignment of error, Kimbro requested appellate review of the length of the nine-

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month term of imprisonment and asked for modification of the sentence to a shorter term of incarceration. Kimbro did not challenge his guilty plea — in exchange for which the state nolled several other charges — or any other aspect of the final sentence. The sole argument presented is moot, and this appeal is dismissed.

{¶ 2} Generally, an appeal challenging a felony conviction is not mooted by the fact of the sentence being served because of the collateral consequences stemming from the fact of conviction. State v . Golston , 71 Ohio St.3d 224, 1994-Ohio-109, 643 N.E.2d 109, syllabus; State v . Ingledue , 2d Dist. Clark No. 2018-CA-47, 2019-Ohio-397, ¶ 8. However, when the defendant challenges the length of the sentence that is completed during the appellate review process, as opposed to challenging the fact of conviction itself, the mootness doctrine applies. Ingledue at ¶ 10, citing State v . Bedell , 11th Dist. Portage No. 2008-P-0044, 2009-Ohio-6031, ¶ 15, and State v . Corpening , 11th Dist. Ashtabula No. 2005-A-58, 2006-Ohio-5290, ¶ 6; State v . Moore , 8th Dist. Cuyahoga No. 106647, 2018-Ohio-4778, ¶ 27. When a defendant serves his prison sentence, any appellate review of the length of that sentence becomes advisory and there is no relief that can be afforded. Appellate courts generally avoid issuing advisory opinions. Dohme v . Eurand Am ., Inc ., 130 Ohio St.3d 168, 2011-Ohio-4609, 956 N.E.2d 825, ¶ 27, citing State ex rel . White v . Kilbane Koch , 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, ¶ 18, State ex rel Baldzicki v . Cuyahoga Cty . Bd . of Elections , 90 Ohio St.3d 238, 242, 2000-Ohio-67, 736 N.E.2d 893, and Egan v . Natl . Distillers & Chem . Corp ., 25 Ohio St.3d 176, 495 N.E.2d 904 (1986).

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{¶ 3} In this case, the parties filed appellate briefs before Kimbro's putative release date. The sole assignment of error presented in the appeal challenged the length of the nine-month term of imprisonment. Upon reviewing the case and noting that Kimbro had been credited with a significant period of time served, we sua sponte requested additional briefing to discuss the mootness issue. Kimbro's appellate counsel responded, confirming that Kimbro has been released from the nine-month prison term and that no postrelease control was imposed.

{¶ 4} In light of the fact that Kimbro has fully served the imposed term of incarceration he is challenging as being excessive, the sole issue advanced in this appeal is moot. There is no live case or controversy to be resolved, nor can we offer any relief from the length of the sentence already served. We again emphasize that Kimbro is not challenging the validity of the plea or any other aspect of his sentence. His sole challenge involves the length of the imposed prison term.

{¶ 5} For this reason, the appeal is dismissed and all pending motions are denied as moot.

It is ordered that appellee recover from appellant costs herein taxed.

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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

/s/ _________
SEAN C. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
KATHLEEN ANN KEOUGH, J., CONCUR