State v. Studer

[Cite as State v. Studer, 

.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 13CA60
                                               :
BRENDA STUDER                                  :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Mansfield Municipal
                                                   Court Case No. 2011-CRB-1654



JUDGMENT:                                          APPEAL DISMISSED




DATE OF JUDGMENT ENTRY:                            February 10, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

MICHAEL J. KEMERER                                 THOMAS L. MASON
ASSISTANT LAW DIRECTOR                             MASON, MASON, & KEARNS
CITY OF MANSFIELD                                  P.O. Box 345
30 North Diamond St.                               153 West Main St.
Mansfield, OH 44902                                Ashland, OH 44805
Richland County, Case No. 13CA60                                                      2

Delaney, J.

       {¶1} Appellant Brenda Studer appeals from the June 11, 2013 Judgment Entry

of the Mansfield Municipal Court. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant’s conviction is not necessary

to our disposition of this appeal.

       {¶3} Appellant was convicted upon trial by jury of disorderly conduct, resisting

arrest, and two counts of animal cruelty in the Mansfield Municipal Court. Appellant

directly appealed from her convictions and sentences, raising 14 assignments of error.

We sustained three of appellant’s assignments of error and remanded the matter to the

trial court, finding she should have been convicted of disorderly conduct as a minor

misdemeanor rather than as a fourth-degree misdemeanor.             We overruled the

remaining assignments of error. Mansfield v. Studer, 5th Dist. Richland Nos. 2011-CA-

93, 2011-CA-94, 

, appeal not allowed, 

, 2013-

Ohio-902, 

, reconsideration denied, 

, 2013-

, 

.

       {¶4} On April 2, 2013, appellant filed a motion to dismiss in the trial court,

arguing the trial court did not have subject matter jurisdiction. The trial court held a

hearing and overruled appellant’s motion by Judgment Entry dated June 11, 2013.

       {¶5} Appellant subsequently appealed from the trial court’s June 11, 2013

judgment entry.

       {¶6} On August 8, 2013, appellant died, as evidenced by a copy of a death

certificate appended to appellee’s brief as Attachment 2.
Richland County, Case No. 13CA60                                                              3


       {¶7} Neither party has moved this Court to substitute a party for appellant.

       {¶8} Appellant raises one assignment of error:

                                ASSIGNMENT OF ERROR

       {¶9} “I.    THE     TRIAL    COURT       ERRED      BY    NOT     DISMISSING       THE

APPELLANT’S CONVICTION WHERE THE CHARGING INSTRUMENT WAS NOT

SWORN.”

                                         ANALYSIS

       {¶10} Because we find the within appeal to be moot in light of appellant’s death,

we dismiss this appeal for the following reasons.

       {¶11} App.R. 29(A) states in pertinent part: “If a party dies after a notice of

appeal is filed or while a proceeding is otherwise pending in the court of appeals, the

personal representative of the deceased party may be substituted as a party on motion

filed by the representative, or by any party, with the clerk of the court of appeals. ….”

       {¶12} The Ohio Supreme Court construed App.R. 29(A) in the context of a

criminal appeal thusly:

              When a criminal defendant-appellant dies while his appeal is

              pending and, subsequently, within a reasonable time, a personal

              representative of the decedent is appointed, that representative

              may be substituted as a party on motion by the decedent’s

              representative or the state under the then existing style of the case,

              and the court of appeals shall proceed to determine the appeal.

              Absent such a motion, filed within a reasonable time by the

              state, for substitution of a party, the court of appeals may
Richland County, Case No. 13CA60                                                     4


              dismiss the appeal as moot, vacate the original judgment of

              conviction and dismiss all related criminal proceedings,

              including the original indictment. (App.R. 29[A], construed and

              applied).

              State v. McGettrick, 

, 

, paragraph

              one of the syllabus. (Emphasis added.)

        {¶13} In the instant case, no motion has been made for substitution of a party.

Furthermore, we find the matter of appellant’s subject-matter jurisdiction argument

moot.

        {¶14} We therefore dismiss this appeal. Mesaros v. Mesaros, 5th Dist. Stark

No. 2007CA00284, 

.

                                    CONCLUSION

        {¶15} The appeal is dismissed as moot.

By: Delaney, J. and

Wise, P.J.

Baldwin, J., concur.