Court of Appeals of Ohio, Eleventh District, Geauga
Criminal Appeals from the Chardon Municipal Court, Case Nos.
2018 CRB 00664 A and 2018 CRB 00664 B.
Jeffrey Holland and Danamarie Kristyna Pannella, Holland and
Muirden, For Plaintiff-Appellee.
Michela J. Huth, For Appellant.
Appellant, Karen Marcellino, filed appeals from the judgments
of the Chardon Municipal Court, denying her motions to
intervene and to prevent the forfeiture of property in the
underlying criminal proceedings. Appellee, the State of Ohio,
filed a Motion to Dismiss arguing that the appeals are moot.
For the following reasons, we dismiss the appeals as moot.
On February 21, 2019, Bianca Marcellino, Karen's
daughter, was found guilty of two counts of Cruelty to
Animals, following a trial at which testimony demonstrated
that Bianca had two horses in her possession which were not
properly fed and were severely emaciated. On March 1 and 4,
2019, Karen filed an Emergency Motion to Intervene and Motion
Demanding Return of Karen Marcellino's Property and an
Amended Emergency Motion, in which she alleged that she was
the owner of the two horses that had been seized from
Bianca's property and they should be returned to her. The
court denied both motions on March 4, 2019.
On March 5, Bianca was sentenced. As a "Term of
Community Control/Probation," the court ordered that she
"forfeits ownership of the two horses that are the
subject of this case to the Geauga Humane Society." On
the same date, Bianca filed a Motion for Stay, which was
Karen filed the present appeals from the lower court's
judgments denying her requests to intervene and for the
return of the horses.
The State filed a Motion to Dismiss on June 10, 2019.
Therein, the State contends that the appeals are moot since
the Geauga County Humane Society no longer possesses the
horses and the relief requested cannot be afforded. Attached
to the Motion is the affidavit of Humane Agent Christian
Courtwright, attesting that the ownership of the horses was
transferred to a third party on March 6, 2019.
Karen filed a motion in opposition on June 20, 2019, in which
she argues that "[e]vidence outside of the record shows
the horses are still under the control of Geauga County
Humane Society" and the lower court's judgment was an
invalid order of forfeiture.
"A case is moot when there is no longer a matter in
controversy or the parties have no legally cognizable
interest in the outcome." State v. Schormuller,
11th Dist. Lake No. 2012-L-124, 2013-Ohio-2043, ¶ 6.
"'Moot cases are dismissed * * * [when] [t]he
requested relief has been obtained, it serves no further
purpose, it is no longer within the court's power, or it
is not disputed.'" State v. Elersic, 11th
Dist. Lake No. 2001-L-130, 2002-Ohio-6696, ¶ 6, quoting
Wilkins v. Wilkinson, 10th Dist. Franklin No.
01AP-468, 2002 WL 47051, *4 (Jan. 15, 2002).
Here, the affidavit submitted by the State demonstrates that
the ownership of the forfeited horses has been transferred
from the Geauga County Humane Society to a third party. In
Schormuller, this court addressed a similar matter.
The defendant appealed from a trial court's order of
forfeiture of the animals following a conviction for Cruelty
to Animals. Since affidavit testimony established that the
judgment of forfeiture had been executed and the animals were
no longer in the custody of the Humane Society, the
"events * * * made it impossible for this court to grant
appellant the relief she was ultimately seeking."
Id. at ¶ 8. Thus, this court dismissed the
appeal as moot. Here, Karen's appeals are based on her
sole contention that the lower court did not follow proper
forfeiture proceedings and thus "the horses were not
subject to criminal forfeiture * * *." Such relief,
reversing a forfeiture order, cannot be afforded since the
horses are no longer available to be returned to her.
Although not applicable in the present matter, it is also
worth noting that an appeal can proceed in a misdemeanor case
where the sentence may have been served but the defendant has
sought a stay. State v. Jirousek,2013-Ohio-5267, 2
N.E.3d 981, ¶ 21-22 (11th Dist.). While Bianca did file
a motion for a stay, ...