Opinion
No. 79541, Accelerated Docket.
Date of Announcement of Decision October 25, 2001.
CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-399530.
JUDGMENT: DISMISSED.
For Plaintiff-Appellee: William D. Mason, Esq., Cuyahoga County Prosecutor, Mary McGrath, Esq., Justice Center — Courts Tower, 1200 Ontario Street, Cleveland, OH 44113.
For Defendant-Appellant: Joshua W. Ferguson, Esq., Thompson, Hine Flory L.L.P., 3900 Key Center, 127 Public Square, Cleveland, OH 44114-1216.
JOURNAL ENTRY AND OPINION
Defendant-appellant, Matthew D. Pompei, appeals the decision of the Cuyahoga County Common Pleas Court sentencing him to concurrent six-month terms of imprisonment after being convicted of attempted drug possession and assault of a police officer. For the reasons that follow, we dismiss appellant's appeal.
A review of the record reveals that a two-count indictment was returned against appellant charging him with possession of drugs, in violation of R.C. 2925.11, and assault of a police officer, in violation of R.C. 2903.13(C)(3). The drug possession charge was amended to include attempt and, as amended, is classified as a first degree misdemeanor. Appellant entered a plea of guilty to this charge as well as to the assault charge, which is classified as a fourth degree felony. Appellant was thereafter sentenced to concurrent six-month terms of incarceration. The record does not support that execution of sentence was stayed pending appeal. To the contrary, the record reveals that appellant entered the Lorain Correctional Institution on March 28, 2001 and was due to be released on September 18, 2001.
Appellant is now before this court and assigns two errors for our review. Both errors, however, challenge the trial court's decision as it pertains to appellant's sentence only. Reiterating, it appears that appellant completed his sentence and was released in September 2001.
An appeal of a felony conviction is not moot where the appellant has completed his sentence because the criminal offender has a substantial stake in the judgment of conviction. State v. Golston (1994), 71 Ohio St.3d 224, syllabus. Appellant in this case, however, is not challenging his conviction for these offenses but rather is challenging the sentences imposed. Since the sentences have already been served and appellant released, the appeal is moot. See State v. Blivens (Sept. 30, 1999), Lake App. No. 98-L-189, unreported, 1999 Ohio App. Lexis 4647; see, also, State v. Bailey (Nov. 16, 2000), Cuyahoga App. No. 76685, unreported, 2000 Ohio App. Lexis 5336 (Kilbane, J., dissenting).
Appeal dismissed.
This appeal is dismissed.
It is, therefore, considered that said appellee recover of appellant their costs herein taxed.
It is ordered that a special mandate be sent to the Common Pleas Court directing said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., J. and TERRENCE O'DONNELL, J., CONCUR.