[Cite as State v. Feister,

.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 2018 AP 01 0005 JASON K. FEISTER : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas County Court of Common Pleas, Case No. CR 040094

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: June 13, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMANDA MILLER JASON KEISTER Assistant Prosecuting Attorney C/O Correctional Reception Center 125 E. High Avenue 11271 State Rte. 762 New Philadelphia, OH 44663 Orient, OH 43146 [Cite as State v. Feister,

.]

Gwin, P.J.

{¶1} Appellant Jason K. Feister [“Feister”] appeals the trial court’s January 17,

2018 Judgment Entry of Sentencing after a no contest plea in the Tuscarawas County

Court of Common Pleas.

Facts and Procedural History

{¶2} On May 1, 2017, a summons on indictment in case number 2017 CR 04

0094 containing one count obstructing official business, a felony of the fifth degree, and

one count resisting arrest, a misdemeanor of the second degree, was issued for Feister.

{¶3} On May 11, 2017, Feister failed to appear for arraignment and a warrant

upon indictment was issued on May 15, 2017.

{¶4} On May 16, 2017, Feister was apprehended on the warrant and arraigned

on May 23, 2017. Feister entered a plea of not guilty and the previously posted bond was

continued with the added terms of a GPS ankle monitor and pre-trial supervision through

the Tuscarawas County Community Corrections Program.

{¶5} On June 19, 2017, the first pre-trial was conducted and a trial date of

October 11, 2017 was docketed.

{¶6} On September 15, 2017, Feister violated the terms of his pre-trial

supervision by removing his GPS ankle monitor, fleeing from New Philadelphia Police

Officers and receiving new, unrelated misdemeanor charges.

{¶7} On October 3, 2017, the trial court cancelled the trial scheduled to proceed

on October 11, 2017. On October 11, 2017, Feaster’s bond was revoked and the cash

bond released back to the bondsman. The trial court also docketed the jury trial for

November 28, 2017. Tuscarawas County, Case No. 2018 AP 01 0005 3

{¶8} On November 28, 2017, Feister entered a no contest plea and was found

guilty of one count of obstructing official business, a felony of the fifth degree, after the

state dismissed count two, resisting arrest, in the instant case. A pre-sentence

investigation was ordered and sentencing scheduled for January 10, 2018.

{¶9} On January 3, 2018, Feister filed a pro se motion to withdraw his guilty plea.

On January 10, 2017, Feister testified in support of his motion to withdraw his no contest

plea. The trial court denied his motion and moved forward to sentencing. The trial court

imposed an eight month term of incarceration in the Tuscarawas County Jail to be run

consecutive to the terms imposed by the New Philadelphia Municipal Court in case

number CRB 1701103 A,B,C.

{¶10} Feister was given thirty-four days of jail credit for the dates of Feister's initial

arrest (April 2 to April 4, 2017), for the time of his arrest until his arraignment when he

was released (May 16 to May 23, 2017), and for the time from his arrest for violating the

conditions of release until the forfeiture hearing (September 15 to October 10, 2017). The

trial court made specific findings that all other jail time served was pursuant to the specific

sentences imposed by the New Philadelphia Municipal Court as previously outlined.

{¶11} On January 23, 2017, Feister filed this timely direct appeal in the above-

captioned case.

{¶12} On April 17, 2017, Feister filed a pro se motion to modify the sentence

imposed based, in part, on R.C. 2929.16. The state did not object to Feister’s motion

finding merit in that argument. On May 1, 2018, the trial court held a hearing on Feister’s

motion to modify the sentence. At the beginning of the hearing, Feister moved to withdraw

his motion to modify which was granted. The state then moved, orally, to modify Feister's Tuscarawas County, Case No. 2018 AP 01 0005 4

sentence as it was contrary to R.C. 2929.16 and, therefore, void. The trial court found

that the sentence imposed on January 17, 2018 was void as it exceeded the permitted

local terms of incarceration proscribed in R.C. 2929.16. Judgment Entry, Defendant’s

Motion to Modify Sentence Granted in Part; Re-sentencing, filed May 1, 2018. The trial

court reasoned that it retained jurisdiction over a void sentence. Accordingly, the trial

court vacated the January 17, 2018.

{¶13} Feister was resentenced to an eight-month term of incarceration in the Ohio

Department of Rehabilitation and Corrections to be imposed immediately with credit for

the thirty-four (34) days of jail served as outlined in the January 17, 2018 sentencing entry.

Assignments of Error

{¶14} Feister raises one assignment of error,

{¶15} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED THE DEFENDANT

TO AN 8 MONTH RESIDENTIAL SEANCTION TO BE RESERVED AFTER A TERM OF

IMPRISONMENT IMPOSED FOR AN UNRELATED MISDEAMENAOR.”

Law and Analysis.

{¶16} Feister’s Notice of Appeal was filed in this case on January 23, 2018. The

notice appeals, “the order entered by [the trial court] on January 17, 2018.”

{¶17} However, the trial court held a re-sentencing hearing on April 30, 2018.

Feister was present and discharged his court-appointed attorney. At that hearing, the

trial court vacated the Sentencing Entry filed January 17, 2018. T. Resentencing Hearing,

Apr. 30, 2018 at 21. The trial court sentenced Feister to “a prison term of eight months

in the state penal institution of the Ohio Department of Correction for one count of

obstructing official business.”

The trial court granted Feister thirty-four days of credit Tuscarawas County, Case No. 2018 AP 01 0005 5

as previously calculated. The trial court did not impose the sentence consecutive to any

other case. The court incorporated these terms in the sentencing entry filed May 1, 2018.

The “mootness doctrine”.

{¶18} “Mootness is a jurisdictional question because the Court ‘is not empowered

to decide moot questions or abstract propositions.” United States v. Alaska S.S. Co.,

,

,

(1920), quoting California v. San Pablo &

Tulare R. Co.,

,

,

(1893); Accord, North

Carolina v. Rice,

,

,

(1971). Because

mootness is a jurisdictional question, the question of mootness is one that must be

addressed even if the parties do not raise it. North Carolina v. Rice,

,

,

.

{¶19} Ohio courts have long exercised judicial restraint in cases that are not actual

controversies. Fortner v. Thomas,

,

(1970). No

actual controversy exists where a case has been rendered moot by an outside event. “It

is not the duty of the court to answer moot questions, and when, pending proceedings in

error in this court, an event occurs without the fault of either party, which renders it

impossible for the court to grant any relief, it will dismiss the petition in error.” Miner v.

Witt,

,

(1910), syllabus; Tschantz v. Ferguson,

,

(1991).

{¶20} In Bradley v. Ohio Dept. of Job and Family Services our brethren from the

Tenth Appellate District observed,

“The doctrine of mootness is rooted in the ‘case’ or ‘controversy’

language of Section 2, Article III of the United States Constitution and in the Tuscarawas County, Case No. 2018 AP 01 0005 6

general notion of judicial restraint.” James A. Keller, Inc. v. Flaherty (1991),

,

. “While Ohio has no

constitutional counterpart to Section 2, Article III, the courts of Ohio have

long recognized that a court cannot entertain jurisdiction over a moot

question.”

“It has been long and well established that it is the duty of

every judicial tribunal to decide actual controversies between parties

legitimately affected by specific facts and to render judgments which can be

carried into effect. It has become settled judicial responsibility for courts to

refrain from giving opinions on abstract propositions and to avoid the

imposition by judgment of premature declarations or advice upon potential

controversies.” Fortner v. Thomas (1970),

,

. In other words, an issue is moot when it has no practical significance,

being instead merely hypothetical or academic.

10th Dist. Franklin No. 10AP-567,

, ¶11; Accord, Boncek v. Stewart, 9th

Dist. Summit No. 21054,

, ¶10. Although the mootness doctrine has

exceptions, none apply in the case at bar. See, e.g., In re Appeal of Suspension of Huffer

from Circleville High School,

,

(1989), paragraph one

of the syllabus(noting the two exceptions to the mootness doctrine are when “the issues

are capable of repetition, yet evading review” or the case “involves a matter of public or

great general interest”).

{¶21} A court may take judicial notice of mootness. “In fact, ‘an event that causes

a case to be moot may be proved by extrinsic evidence outside the record.’ Pewitt v.

Lorain Correctional Inst. (1992),

,

,

, Tuscarawas County, Case No. 2018 AP 01 0005 7

94.” State ex rel. Nelson v. Russo,

,

,

(2000). Accord, Miner v. Witt,

, 239,

(1910).

{¶22} In the case at bar, the January 17, 2018, sentencing entry that imposed the

eight month local jail term consecutive to the jail terms he was then serving for several

separate unrelated municipal court convictions in November, 2017 has been vacated.

{¶23} R.C. 2929.41 states in relevant part,

(A) Except as provided in division (B) of this section, division (C) of

section 2929.14, or division (D) or (E) of section 2971.03 of the Revised

Code, a prison term, jail term, or sentence of imprisonment shall be served

concurrently with any other prison term, jail term, or sentence of

imprisonment imposed by a court of this state, another state, or the United

States. Except as provided in division (B)(3) of this section, a jail term or

sentence of imprisonment for misdemeanor shall be served concurrently

with a prison term or sentence of imprisonment for felony served in a state

or federal correctional institution.

(B)(1) A jail term or sentence of imprisonment for a misdemeanor

shall be served consecutively to any other prison term, jail term, or sentence

of imprisonment when the trial court specifies that it is to be served

consecutively or when it is imposed for a misdemeanor violation of section

2907.322, 2921.34, or 2923.131 of the Revised Code.

{¶24} Feister did not receive consecutive sentences in the May 1, 2018

sentencing entry. Accordingly, his argument concerning consecutive sentences is moot.

Jail-time credit. Tuscarawas County, Case No. 2018 AP 01 0005 8

{¶25} Feister appears to further argue that he is entitled to jail-time credit for time

spent in jail on separate, unrelated misdemeanor charges.

{¶26} “R.C. 2967.191 requires that jail credit be given only for the time the prisoner

was confined for any reason arising out of the offense for which he was convicted and

sentenced. It does not entitle a defendant to jail-time credit for any period of incarceration

which arose from facts which are separate and apart from those on which his current

sentence is based.”

{¶27} Ohio courts have repeatedly recognized that time spent serving a jail

sentence in another case will not be credited toward another felony case, even if the

felony was pending at the time of the service of the jail sentence. In Smith, supra, the

court rejected a claim for credit for serving a misdemeanor sentence while the felony

charge was pending. As the court in Smith stated: “[A]ppellant was incarcerated on a

prior misdemeanor criminal conviction which was completely unrelated to the offense for

which he was later sentenced by the trial court. Because the sentence in the municipal

court case did not arise out of the offense for which appellant was convicted in this case,

appellant is not entitled to additional jail-time credit.” Smith, 71 Ohio App.3d at 304,

.

{¶28} Similarly, the court rejected a claim for credit in State v. Logan,

,

(10th Dist., 1991) stating that, “Since defendant was

incarcerated on a prior unrelated conviction during the pendency of the present case, he

is not entitled to jail time credit.”

{¶29} In State v. Goehring, 6th Dist. No. OT-03-035,

, the

defendant sought credit for time he spent incarcerated after conviction in Municipal Court. Tuscarawas County, Case No. 2018 AP 01 0005 9

The appellate court affirmed the trial court’s ruling that the defendant “cannot under any

stretch of the imagination receive credit against his felony time for those days he spent

incarcerated in Municipal Court after sentence on separate and distinct matters.”

at ¶

5 (quoting trial court’s ruling). The Sixth District concluded that defendant “was not

entitled to jail-time credit after November 4, 2002, when he was convicted and sentenced

on the unrelated charges.” Id. at ¶ 11. Accord, State v. Marini, 5th Dist. Tuscarawas No.

09-CA-6,

.

{¶30} Under the foregoing analysis, Feister cannot receive double jail time credit

for confinement while serving the sentence imposed on the unrelated misdemeanor

charges. Such sentences arose out of unrelated cases.

{¶31} Feister’s sole assignment of error is overruled. The judgment of the

Tuscarawas County Court of Common Pleas is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. WILLIAM B. HOFFMAN

_________________________________ HON. EARLE E. WISE, JR.

WSG:clw 0604