[Cite as Lakewood v. Smyczek, 2020-Ohio-271.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF LAKEWOOD, :
Plaintiff-Appellee, :
No. 108369
v. :
ALEXANDER P. SMYCZEK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: January 30, 2020
Criminal Appeal from the Lakewood Municipal Court
Case Nos. 2018 CRB 00815 and 2018 CRB 00886
Appearances:
Brian Corrigan, Prosecuting Attorney, City of Lakewood
and Andrew N. Fleck, Assistant Prosecuting Attorney, for
appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
Francis Cavallo, Assistant Public Defender, for appellant.
MARY EILEEN KILBANE, J.:
Defendant-appellant Alexander P. Smyczek appeals from the trial
court’s judgment finding him in violation of the terms of his probation. For the
reasons that follow, we dismiss this appeal as moot.
Facts
Smyczek was charged originally on July 5, 2018, for multiple
misdemeanor offenses related to the violation of a no-contact order with the victim
in this case. Contingent on Smyczek’s plea, the city asked the court to nolle and
dismiss the remaining counts, and Smyczek entered a plea of no contest to Count 1
of telecommunications harassment, a first-degree misdemeanor, and to Count 2 of
violation of a protection order, also a first-degree misdemeanor. On August 9, 2018,
he was sentenced to 180 days in jail for the telecommunications harassment count.
He was also sentenced to two years of community-control supervision with 180 days
of jail suspended for the violation of a protection order.
On November 13, 2018, the trial court was made aware of potential
contact by Smyczek with the victim. That contact would have potentially constituted
a violation of Smyczek’s probation, and the trial judge set a hearing for December
20, 2018. At that hearing, two key pieces of evidence were presented: 1) testimony
from the victim that she had been visited by a friend of Smyczek and 2) a letter the
victim received from one of Smyczek’s fellow inmates in Cuyahoga County jail.
Witnesses gave further testimony regarding both. At the conclusion of the hearing,
the trial court found that the defendant had violated the terms of his probation and
imposed the suspended sentence of 180 days consecutive to the jail time Smyczek
was still serving.
Intent on appealing the finding of a probation violation, Smyczek
moved the trial court to assign counsel for appeal. Upon the consent of the
Cuyahoga County Public Defender, an attorney from that office was assigned as
counsel for the defendant on March 12, 2019. With counsel, Smyczek filed a motion
for a delayed appeal, which was granted by this court on April 10, 2019. In an
attempt to preserve his case for appeal, Smyczek also filed a motion for stay of
execution on April 18, 2019, which was denied. Following an extension requested
by his counsel, Smyzcek filed his brief in this case on July 10, 2019 — after his release
from jail.
Law and Analysis
In his brief, Smyczek argues that the trial court erred in finding that
he had violated the terms of his community control. He raises the following three
assignments of error for our review.
Assignment of Error No. 1
Appellant was denied the effective assistance of counsel in his trial.
Assignment of Error No. 2
There was insufficient evidence produced at trial to support a finding
of guilt on all counts.
Assignment of Error No. 3
The trial court erred by finding the defendant guilty against the
manifest weight of the evidence.
Before we can address his three assignments of error, we must
determine whether his appeal is moot. For the following reasons, we determine it
is.
When a misdemeanant voluntarily completes the sentence for that
offense, the appeal from that conviction is moot “unless the defendant has offered
evidence from which an inference can be drawn that he or she will suffer some
collateral legal disability or loss of civil rights stemming from that conviction.” State
v. Golston, 71 Ohio St.3d 224, 226, 643 N.E.2d 109 (1994). A collateral disability is
an adverse legal consequence of a conviction or judgment that survives despite the
court’s sentence having been satisfied or served. In re S.J.K., 114 Ohio St.3d 23,
2007-Ohio-2621, 867 N.E.2d 408, ¶ 10. Without some collateral consequence to
address — when a defendant is no longer serving his sentence — there is no remedy
this court may provide. State v. Santiago, 8th Dist. Cuyahoga No. 101612, 2015-
Ohio-1301, ¶ 9.
Even when a defendant does not serve his sentence voluntarily, there
must be some collateral consequence to address if the sentence has concluded. In
Cleveland Hts. v. Lewis, 129 Ohio St. 3d 389, 2011-Ohio-2673, 953 N.E.2d 278, the
Ohio Supreme Court considered what it meant to serve a sentence voluntarily. They
held that:
[t]he completion of a sentence is not voluntary and will not moot an
appeal if the circumstances surrounding it demonstrate that the
appellant neither acquiesced in the judgment nor abandoned the right
to appellate review, that the appellant has a substantial stake in the
judgment of conviction, and that there is subject matter for the
appellate court to decide.
Id. at syllabus.
There can also be other “real and significant” collateral consequences
of any misdemeanor conviction. Id. at ¶ 29-34 (Lanzinger, J., concurring). Even
though the defendant in Lewis completed his sentence, his misdemeanor conviction
itself was sufficient subject matter for an appellate court to address. The probation
violation in this case is easily distinguishable.
Here, Smyczek did not serve his violation sentence voluntarily; he
contested the charges at his hearing, filed a stay of execution to this court that was
denied, and appealed the conviction. However, there is nothing in the record or
appellant’s brief that suggests that any collateral consequences exist in this case. See
J.M. v. D.H., 8th Dist. Cuyahoga No. 108303, 2020-Ohio-108, ¶ 2. As a result, with
Smyczek having completed his sentence, there is no remedy this court may provide.
His appeal is moot.
Appeal dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, P.J., and
MICHELLE J. SHEEHAN, J., CONCUR
Lakewood v. Smyczek
Combined Opinion