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State v. Mitchell

Court of Appeals of Ohio, Eleventh District, Portage

November 6, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
JAMES E. MITCHELL, Defendant-Appellant.

         Civil Appeals from the Portage County Court of Common Pleas. Case No. 1993 CR 0294.

          Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor (For Plaintiff-Appellee).

          James E. Mitchell, pro se, Marion Correctional Institution, (Defendant-Appellant).

          OPINION

          TIMOTHY P. CANNON, J.

         {¶1} Appellant, James E. Mitchell, appeals from the November 17, 2016 and January 30, 2017 judgments of the Portage County Court of Common Pleas. In its November 17, 2016 judgment the trial court denied appellant's pro se Petition for Postconviction Relief/Motion to Withdraw Plea. In its January 30, 2017 judgment the trial court denied appellant's pro se Motion for Appointed Counsel, Motion to Disqualify, Motion for Judgment upon Multiple Claims, Motion for Findings of Fact and Conclusions, and Motion for Notice of Filing of Judgment(s). For the following reasons, the judgments of the trial court are affirmed.

         {¶2} On February 3, 1994, appellant entered written pleas of guilty to one count of Burglary, an aggravated felony of the second degree, and one count of Gross Sexual Imposition, a felony of the third degree. He filed a motion to withdraw his guilty pleas pursuant to Crim.R. 32.1 on June 1, 1994. In the motion, appellant argued his pleas were not entered voluntarily due to the circumstances surrounding the entry of his pleas, including pressure and coercion from his family. On June 28, 1994, the trial court held a hearing on appellant's motion and also held a sentencing hearing. On June 29, 1994, the trial court denied appellant's motion and sentenced him to three to fifteen years in prison for Burglary and two years in prison for Gross Sexual Imposition, to be served concurrently.

         {¶3} Appellant filed an appeal on July 18, 1994. His sole assignment of error challenged the denial of his presentence motion to withdraw his guilty pleas. State v. Mitchell, 11th Dist. Portage No. 94-P-0070, 1995 WL 411830, *1 (June 23, 1995). This court affirmed appellant's convictions. Id. at *3.

         {¶4} On November 14, 2016, appellant filed a pro se Petition for Postconviction Relief/Motion to Withdraw Plea. Appellant petitioned for postconviction relief pursuant to R.C. 2953.21, requesting the trial court vacate its judgment of conviction and sentence. Appellant also requested the trial court permit him to withdraw his guilty pleas pursuant to Crim.R. 32.1. Appellant requested an evidentiary hearing. On November 17, 2016, the trial court entered judgment and summarily denied appellant's "Petition for Postconviction Relief/Motion to Withdraw Plea."

         {¶5} On November 14, 2016, appellant also filed a Motion to Disqualify and a Motion for Appointment of Counsel. He requested the trial court disqualify the Portage County Prosecutor's Office from representing the state of Ohio during his postconviction proceeding.

         {¶6} On January 13, 2017, appellant filed a "Motion for Judgment upon Multiple Claims Pursuant to Ohio Civil Rule 54(B); Motion for Findings of Fact and Conclusions of Law Pursuant to Ohio Revised Coded 2953.21(C); Motion for Notice of Filing of Judgment(s) Pursuant to Ohio Civil Rule 58(B) [sic]." Appellant asserted the trial court failed to issue findings of fact and conclusions of law when it denied the petition for postconviction relief portion of his November 14, 2016 motion; the trial court failed to rule on each of the claims presented in his Petition for Postconviction Relief/Motion to Withdraw Plea, pursuant to Civ.R. 54(B), because the trial court did not "squarely address" his motion to withdraw plea; and the clerk of courts failed to perfect service of the trial court's November 17, 2016 judgment, pursuant to Civ.R. 58(B). With regard to the clerk's failure to perfect service, appellant alleged he was not served with the November 17, 2016 judgment until he contacted the court seeking notification of any rulings. Appellant requested the trial court (1) "properly account for all of the evidence offered in support of his motion to withdraw guilty plea, to further consider the motion after accounting for all of the evidence, and to 'squarely address' the evidentiary issues"; (2) issue findings of fact and conclusions of law on his claims for postconviction relief; and (3) endorse the judgment with a direction to the clerk to serve appellant pursuant to Civ.R. 58(B). The trial court summarily denied this motion on January 30, 2017, as well as the Motion to Disqualify and the Motion for Appointment of Counsel.

         {¶7} On February 3, 2017, appellant filed a notice of appeal from the trial court's November 17, 2016 judgment entry, and on February 22, 2017, appellant filed a notice of appeal from the trial court's January 30, 2017 judgment entry. On motion of appellant, the two appeals were consolidated.

         {¶8} Appellant raises nine assignments of error on appeal. Appellant's first seven assignments of error pertain to the trial court's November 17, 2016 judgment entry. The remaining two assignments pertain to the trial court's January 30, 2017 judgment entry.

         {¶9} Prior to addressing appellant's assignments of error, we first determine whether this court has jurisdiction to consider this appeal.

         {¶10} Appellee, the state of Ohio, argues appellant's entire consolidated appeal is moot because he completed his 15-year Portage County prison sentence in 2009 and failed to show he suffers any collateral disability or loss of civil rights from his convictions. In response, appellant argues a petitioner for postconviction relief is not required to be in custody or under sentence to be entitled to relief.

         {¶11} Appellee cites to State v. Wilson, 41 Ohio St.2d 236 (1975) in support of its argument. Wilson is inapplicable to the present case. In Wilson, the Supreme Court of Ohio held: "Where 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." Id. at syllabus. Subsequently, in State v. Golston, 71 Ohio St.3d 224 (1994), the Supreme Court narrowed the application of its holding in Wilson to appeals from misdemeanor convictions. Id. at 227. "[A] convicted felon, who has completed his or her sentence during the pendency of an appeal from the felony conviction, need not present evidence that he or she will suffer some collateral legal disability or loss of civil rights in order to maintain the appeal." Id.

         {¶12} The holding in Golston is not directly applicable to the present case because appellant did not complete his sentence during the pendency of his direct appeal. Appellant appeals the denial of a petition for postconviction relief he filed more than 22 years after he was originally convicted. However, a petitioner "does not have to be in custody or under sentence in order to seek postconviction relief in the form of vindication or removal of the stigma of a long sentence fully served." State v. Turpin, 19 Ohio App.2d 116 (5th Dist.1969), paragraph three of the syllabus; see also State v. Sherrills, 8th Dist. Cuyahoga No. 61882, 1992 WL 6060, *1 (Jan. 16, 1992), citing Turpin, supra, at 119. Accordingly, we conclude appellant's appeal from the trial court's denial of his postconviction petition is not moot.

         {¶13} Appellee next argues appellant's first seven assignments of error are not properly before this court because his appeal from the trial court's November 17, 2016 judgment entry was untimely filed. Appellant argues his appeal from the November 17, 2016 judgment is timely because the clerk of courts failed to serve him with a copy of the judgment entry as required by Civ.R. 58(B).

         {¶14} "Civ.R. 58(B) directs the clerk of courts to serve the parties with notice of the judgment within three days of entering judgment upon the journal. If Civ.R. 58(B) service does not occur within three days, the time to appeal does not begin to run until service is made and noted in the appearance docket." Eyajan v. Eyajan, 11th Dist. Ashtabula No. 2016-A-0071, 2017-Ohio-155, ¶5, citing Coles v. Lawyers Title Ins. Corp., 163 Ohio App.3d 659, 2005-Ohio-5360, ¶24 (6th Dist.). Service is complete when the clerk has (1) served the notice and (2) entered a "notation of the service in the appearance docket." Civ.R. 58(B).

         {¶15} "The failure of the clerk to serve notice does not affect the validity of the judgment or the running of the time for appeal except as provided in App.R. 4(A)." Id. App.R. 4(A) provides, in pertinent part:

(1) Subject to the provisions of App.R. 4(A)(3), a party who wishes to appeal from an order that is final upon its entry shall file the notice of appeal required by App.R. 3 within 30 days of that entry.
(3) In a civil case, if the clerk has not completed service of the order within the three-day period prescribed in Civ.R. 58(B), the 30-day [period] referenced in App.R. 4(A)(1) * * * [begins] to run on the ...

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