[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
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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
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“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.