I respectfully dissent from the conclusion reached in the majority opinion because I believe this appeal is moot. The record before us reflects that at the sentencing hearing conducted on May 18, 1995, defense counsel twice objected to statements made to the court by the mother of a victim who had been sexually molested.
The sordid facts reveal that the forty-two-year-old defendant, employed as a security officer at the juvenile detention center, had performed consensual fellatio on the witness's son, who was a resident in that facility. The trial judge at the sentencing hearing first gave defendant's counsel an opportunity to address the court, then the defendant, and then the defendant's brother. Next, the trial judge afforded the victim's mother an opportunity to address the court in accordance with R.C. 2943.041(A), which stated:
"In any case in which a person is charged with a violation of * * * [R.C.] 2907.03 * * * the court shall * * * inform the victim or representative family member that he is entitled to make a statement relative to the victimization and, if applicable, the sentencing of the offender, and the court,subject to any reasonable terms and conditions it imposes, shall permit the victim or representative family member, if he so desires, personally to make such a statement. * * *" (Emphasis added.)
In an effort to permit uninterrupted completion of the victimization statement, the trial judge initially directed counsel to have a seat and advised him that it was not the time to object. However, defense counsel objected again, a second time. Clearly, these objections preserved counsel's position and protected the record for purposes of appellate review. When counsel again interrupted the victim impact statement presentation and objected, albeit politely, the judge made a citation of summary contempt, imposed a $250 fine, and advised counsel of increasing amounts of fines for successive objections.
The record before us reflects that counsel returned to the courtroom that afternoon to purge the contempt, but instead began to explain why he had objected. The court had initially indicated that it would vacate the contempt order, but when counsel failed to purge, the court stated, "You pay the $250 before you leave."
The record before us is silent as to who, when, or how that fine was paid, but the docket sheet reflects that the clerk of courts received $250 on May 18, 1995 and issued receipt No. 252678 therefor. *Page 482
In accordance with State v. Berndt (1987), 29 Ohio St. 3d 3,29 OBR 173, 504 N.E.2d 712, I believe that this appeal is moot. The court stated:
"`[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.' State v. Wilson (1975), 41 Ohio St. 2d 236, 70 O.O.2d 431, 325 N.E.2d 236, syllabus. The burden of presenting evidence that he has such a `substantial stake in the judgment of conviction' is upon the defendant. Id. at 237, 70 O.O.2d at 432, 325 N.E.2d at 237. Thus, this appeal is moot unless appellee has at some point in this proceeding offered evidence from which an inference can be drawn that appellee will suffer some collateral legal disability or loss of civil rights." Berndt, 29 Ohio St.3d at 4, 29 OBR at 174,504 N.E.2d at 713.
In this case, as in Berndt, the record does not demonstrate any claim of collateral disability or loss of civil rights emanating from the contempt.
Detailed in State v. Wilson (1975), 41 Ohio St. 2d 236, 70 O.O.2d 431, 325 N.E.2d 236, are collateral disabilities which would affect the issue of mootness: inability to engage in business, ineligibility to serve as labor union official, inability to vote in election, disqualification from jury service, adverse impact upon granting of parole, suspension from work without pay, adverse impact on deportation proceeding, and an appearance that the fine was paid involuntarily as under duress to prevent imprisonment. None of those are evidenced in the matter presented to us. Without this evidence the law, consistently applied to other offenders, states that this appeal should be declared moot.
Further, the Supreme Court recently restricted the test for mootness outlined in Wilson and Berndt, holding that it applied only to appeals from misdemeanor convictions, due to collateral disabilities which apply to felony convictions: jury service disqualification, holding an office of honor, trust, or profit (R.C. 2961.01); engaging in certain occupations or professions (R.C. 4738.07[D], 4751.10[D] and 4947.03); and the effect on one's reputation and economic and social opportunities in society. See State v. Golston (1994), 71 Ohio St. 3d 224,643 N.E.2d 109. The Golston court, discussing the social effects of a felony conviction, stated at 227, 643 N.E.2d at 111, "[T]he same stigma does not ordinarily attach to those who have been convicted of misdemeanor offenses."
Moreover, the fact that this appellant is an attorney charges him with knowledge of the law in this regard; to properly preserve his right to appeal, he should have sought a stay of execution of sentence and filed an appeal, as all other litigants are required to do. This was not done in this case. Instead, he chose to first pay the fine and then appeal. Under the case authority cited herein, he thereby assumed the burden of offering evidence to permit an inference of a loss *Page 483 of civil rights or some collateral disability. An attorney should be held to the same standard as any other litigant who may or may not be knowledgeable that an appeal from a judgment of conviction in a misdemeanor case is moot where a defendant who voluntarily satisfied judgment fails to offer evidence of a collateral legal disability or loss of civil rights.
Based upon this case authority, I would dismiss this appeal as moot.