Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Municipal Court T.C. NO. 17-CRB-4712
MATTHEW KORTJOHN, Atty. Attorney for Plaintiff-Appellee
GAYLE MILLER, Atty. Attorney for Defendant-Appellant
1} Defendant-appellant Booker T. Washington appeals
his conviction and sentence for violation of a protection
order, in violation of R.C. 2919.27(A)(2), a misdemeanor of
the first degree. Washington filed a timely notice of appeal
with this Court on August 9, 2017.
2} On July 19, 2017, Washington was arrested and
taken into custody for violating a protection order. On July
20, 2017, the State filed a complaint in the Municipal Court
of Dayton against Washington for violating a protection
order. At his arraignment, Washington pled not guilty and the
case was set for a trial on August 1, 2017. Washington
remained in jail pending trial on a $7, 500.00 bond.
3} On the day his trial was to take place,
Washington pled guilty to one count of violation of a
protection order. The trial court initially ordered a
pre-sentence investigation report (PSI). However, after
Washington called the judge derogatory names and made
incendiary comments, the trial court sentenced him to 180
days in jail, giving him jail-time credit of fourteen days.
The trial court did not impose any community control
sanctions and waived court costs due to Washington's
4} As a result of the threats made to the municipal
court judge, Washington was indicted in the Montgomery County
Court of Common Pleas in Case No. 2017-CR-2412 for one count
of retaliation, in violation of R.C. 2921.05(A), a felony of
the third degree. On October 31, 2017, Washington pled guilty
to one count of retaliation, and the trial court sentenced
him to eighteen months in prison with ninety days of
jail-time credit. On November 21, 2017, Washington was
removed from the Montgomery County Jail and transferred to
prison to serve his sentence for retaliation.
5} Washington now appeals his conviction and
sentence for one count of violation of a protection order.
6} Washington's sole assignment of error is as
7} "THE TRIAL COURT ERRED IN REFERRING
DEFENDANT-APPELLANT TO THE PROBATION DEPARTMENT FOR A
PRE-SENTENCING INVESTIGATION, THEN IMMEDIATELY REVOKING THE
REFERRAL AND FORTHWITH SENTENCING DEFENDANT-APPELLANT TO THE
MAXIMUM SENTENCE, THEREBY VIOLATING HIS DUE PROCESS RIGHTS
AGAINST VINDICTIVE SENTENCING."
8} In State v. Berndt, the Ohio Supreme
Court held that "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." 29
Ohio St.3d 3, 4, 504 N.E.2d 712 (1987), quoting State v.
Wilson, 41 Ohio St.2d 236, 325 N.E.2d 236 (1975). The
burden of presenting evidence that has such a
"substantial stake in the judgment of conviction"
is upon the defendant. Wilson at 237, 325 N.E.2d at
9} "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. "[A]
collateral legal disability implies a separate and distinct
consequence from the original criminal prosecution, that is,
there must be some other effect, adverse to the defendant
beyond expected punishment for his current offense."
State v. McCarty, 2d Dist. Montgomery No. 20581,
2005-Ohio-4031, ¶ 4.
10} Further, a "collateral disability must be a
substantial, individualized impairment, and a purely
hypothetical statement about what might occur in the future
is not sufficient to give viability to an otherwise moot
appeal." State v. Moore, 2d Dist. Montgomery
No. 20772, 2005-Ohio-4518, ¶ 14, quoting State v.
Johnson,43 Ohio App.3d 1, 3, 538 N.E.2d 1082 (1st
Dist.1988). Upon review, we find that that Washington will
not suffer any collateral disability as a result of his
conviction for violation of a protection order.
Washington's conviction in the instant case involves a
misdemeanor, not a felony. Furthermore, Washington did not
request a stay of his sentence. Finally, Washington's
sentence for violation of a protection order merged into the
sentence imposed for his felony conviction in Case ...