[Cite as State v. Baldwin,
2023-Ohio-3265.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2022AP120056
:
BRET BALDWIN :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County
Court of Common Pleas, Case No.
2020CR010012
JUDGMENT: DISMISSED
DATE OF JUDGMENT ENTRY: September 13, 2023
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
RYAN D. STYER DAVID V. PATTON
TUSCARAWAS CO. PROSECUTOR 34194 Aurora Road, Ste. 242
KRISTINE W. BEARD Solon, OH 44139
125 E. High St.
New Philadelphia, OH 44663
Tuscarawas County, Case No. 2022AP120056 2
Delaney, J.
{¶1} Appellant Bret Baldwin appeals from the December 8, 2022 Judgment Entry of
the Tuscarawas County Court of Common Pleas overruling his Motion to Modify
Sentencing Order. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose from the trial court’s decision prohibiting appellant from
consuming THC in any form as a condition of supervision on community control, which
has now been terminated.
{¶3} In May 2020, appellant was convicted of felony domestic violence, having
weapons while under disability, abduction, and disrupting public services. He was
sentenced to a 4-year term of community control with conditions, including a prohibition
against consuming “THC in any form.”1
{¶4} On February 17, 2021, appellant filed a motion to modify the terms and
conditions of community control to permit him to lawfully use medical marijuana and the
trial court overruled the motion.
{¶5} Appellant appealed from the trial court’s entry overruling his motion to
modify. In State v. Baldwin, 5th Dist. Tuscarawas No. 2021 AP 06 0013, 2021-Ohio-
4602, at ¶ 19, we found the trial court erred in treating appellant's motion to modify as a
petition for postconviction relief, reversed the judgment, and remanded the matter to the
trial court for its consideration of the motion’s merits.
1
“THC” is delta-9 tetrahydrocannabinol, a psychoactive cannabinoid in the cannabis
plant.
Tuscarawas County, Case No. 2022AP120056 3
{¶6} The trial court held an evidentiary hearing on March 7, 2022, and overruled
the motion to modify by judgment entry dated December 8, 2022.
{¶7} Appellant instituted the instant appeal from the trial court’s decision on
December 30, 2022.
{¶8} On January 20, 2023, the trial court released appellant from community
control sanctions and terminated supervision.2 Appellant was discharged from
community control supervision and all civil rights were restored.
{¶9} Appellant now raises eleven assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER THE
CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF THE EIGHTH AMENDMENT TO
THE U.S. CONSTITUTION.”
{¶11} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
2 The trial court retained jurisdiction to terminate appellant’s community-control
sanction after the filing of the notice of appeal because the termination entry is not
inconsistent with the issue before us [use of medical marijuana during term of community
control]. See, State v. Johnson, 4th Dist. Hocking No. 20CA11, 2022-Ohio-1511, ¶ 10.
Upon filing of a notice of appeal, the trial court loses jurisdiction except to act in aid of the
appeal. State ex rel. Special Prosecutors v. Judges, Court of Common Pleas,
55 Ohio
St.2d 94, 97,
9 O.O.3d 88,
378 N.E.2d 162 (1978). The trial court retains jurisdiction over
issues not inconsistent with the appellate court's jurisdiction to reverse, modify, or affirm
the judgment appealed from. In re S.J.,
106 Ohio St.3d 11,
2005-Ohio-3215,
829 N.E.2d
1207, ¶ 9.
Tuscarawas County, Case No. 2022AP120056 4
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER THE
CRUEL AND UNUSUAL PUNISHMENT CLAUSE OF OHIO CONSTITUTION, ARTICLE
I, SECTION 9.”
{¶12} “III. THE TRIAL COURT’S ORDER DENYING DEFENDANT’S MOTION
TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH THAT DEFENDANT MAY
LAWFULLY USE MEDICAL MARIJUANA WHILE ON PROBATION FAILS THE
RATIONAL BASIS TEST AND, THEREFORE, THE DEFENDANT HAS THE RIGHT TO
DO SO UNDER THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION.”
{¶13} “IV. THE TRIAL COURT’S ORDER DENYING DEFENDANT’S MOTION
TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH THAT DEFENDANT MAY
LAWFULLY USE MEDICAL MARIJUANA WHILE ON PROBATION FAILS THE
RATIONAL BASIS TEST AND, THEREFORE, THE DEFENDANT HAS THE RIGHT TO
DO SO UNDER THE EQUAL PROTECTION CLAUSE OF THE OHIO CONSTITUTION.”
{¶14} “V. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT HE BE
PERMITTED TO DO SO UNDER THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION.”
{¶15} “VI. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
Tuscarawas County, Case No. 2022AP120056 5
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE FUNDAMENTAL FAIRNESS REQUIRES THAT HE BE
PERMITTED TO DO SO UNDER THE DUE COURSE OF LAW CLAUSE OF THE OHIO
CONSTITUTION.”
{¶16} “VII. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE THE DEFENDANT HAS THE RIGHT TO DO SO UNDER OHIO
CONSTITUTION, ARTICLE I, SECTION 21(B)’S RIGHT TO PURCHASE HEALTH
CARE.”
{¶17} “VIII. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE THE COMMUNITY CONTROL SANCTION STATUTES (R.C.
AND 2929.17) ARE UNCONSTITUTIONAL AS APPLIED TO THE DEFENDANT.”
{¶18} “IX. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE THE TRIAL COURT’S SENTENCING ORDER VIOLATES THE
DEFENDANT’S STATUTORY RIGHT TO USE MEDICAL MARIJUANA PURSUANT TO
R.C. 3796.22(A)(1).”
Tuscarawas County, Case No. 2022AP120056 6
{¶19} “X. THE TRIAL COURT ERRED AS A MATTER OF LAW IN DENYING
DEFENDANT’S MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS SUCH
THAT DEFENDANT MAY LAWFULLY USE MEDICAL MARIJUANA WHILE ON
PROBATION BECAUSE THE TRIAL COURT’S COMMUNITY CONTROL SANCTIONS
REGARDING MEDICAL MARIJUANA FAIL TO SATISFY ANY OF THE TALLY
FACTORS.”
{¶20} “XI. THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO
OBEY THE APPELLATE COURT’S REMAND ORDER TO DECIDE THE DEFENDANT’S
MOTION TO MODIFY COMMUNITY CONTROL SANCTIONS ON THE MERITS.”
ANALYSIS
I. – XI.
{¶21} Appellant argues the trial court erred in overruling the motion to modify
terms of his community control in order to permit him to use medical marijuana. Appellee
moves us to dismiss the appeal, arguing the matter is moot because appellant’s
community-control supervision has now been terminated. We agree with appellee and
therefore dismiss the appeal for the following reasons.
{¶22} Appellant’s appeal arises not from his original convictions, but from an
attempt to modify a term of his community-control sanction, which has now been
terminated. See, State v. Tidd, 2nd Dist. Montgomery No. 24922, 2012-Ohio-4982, ¶ 12
[… any meaningful relief that this court could provide would be the reversal of the …
sentence which defendant already completed].
{¶23} We agree with appellee that the question of appellant’s lawful use of
medical marijuana during his term of probation is moot. “ ‘It is not the duty of the court to
Tuscarawas County, Case No. 2022AP120056 7
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.’ ” State ex rel. Gaylor, Inc. v. Goodenow, 125
Ohio St.3d 407,
2010-Ohio-1844,
928 N.E.2d 728, ¶ 10, quoting Miner v. Witt,
82 Ohio
St. 237,
92 N.E. 21 (1910), syllabus. “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.”
State v. Wilson,
41 Ohio St.2d 236,
325 N.E.2d 236 (1975), syllabus.
{¶24} Appeals arising from community-control issues tend to expire with the term
of community control, especially as here where the defendant suffers no collateral
disability. The mootness doctrine has been applied to appeals from a trial court's decision
to revoke community control. “An appeal from the revocation of community control is moot
where the defendant has served the jail or prison sentence imposed, and there is no
indication that the defendant is on post-release control or is subject to collateral liability.”
State v. Moughler, 2d Dist. Champaign No. 2017-CA-11, 2018-Ohio-1055, ¶ 7; see also,
State v. Johnson, 4th Dist. Hocking No. 20CA11,
2022-Ohio-1511, ¶ 9 [defendant’s
underlying community-control sanction terminated by trial court during pendency of
appeal].
{¶25} We are not authorized to opine on appellant’s use of medical marijuana at
this point. This appeal is limited to the trial court's decision overruling his motion to modify
a term of his probation. “Mootness is a jurisdictional question because the Court ‘is not
empowered to decide moot questions or abstract propositions.’ ” State v. Battigaglia, 5th
Tuscarawas County, Case No. 2022AP120056 8
Dist. Stark No. 2020CA00157, 2021-Ohio-2758, ¶ 11, citing State v. Feister, 5th Dist.
Tuscarawas No. 2018 AP 01 0005,
2018-Ohio-2336, ¶ 28, internal citations omitted. Ohio
courts have long exercised judicial restraint in cases that are not actual controversies.
Battigaglia, supra, citing Fortner v. Thomas,
22 Ohio St.2d 13, 14,
257 N.E.2d 371, 372
(1970).
{¶26} The Ohio Supreme Court has interpreted a “justiciable matter” to mean the
existence of an actual controversy, a genuine dispute between adverse parties. State v.
Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, ¶ 45, citing State ex rel.
Barclays Bank PLC v. Hamilton Cty. Court of Common Pleas,
74 Ohio St.3d 536, 542,
660 N.E.2d 458 (1996). In order for a justiciable question to exist, the “threat” to a party's
position “must be actual and genuine and not merely possible or remote.”
Wolfe, supra,
citing M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C.,
2014-Ohio-2537,
14 N.E.3d 1054,
¶ 17, citing Mid–Am. Fire & Cas. Co. v. Heasley,
113 Ohio St.3d 133,
2007-Ohio-1248,
863 N.E.2d 142, ¶ 9.
{¶27} In the instant case, the appellant has been released from community control
and his civil rights have been restored. The requested relief would provide no rights or
relief to appellant because the case is concluded; the issues presented to this Court are
moot. State v. McCauley, 5th Dist. Tuscarawas No. 2022AP100043, 2023-Ohio-2133, ¶
15. Accordingly, the appeal is dismissed.
Tuscarawas County, Case No. 2022AP120056 9
CONCLUSION
{¶28} For the foregoing reasons, appellee’s motion is granted and the appeal is
dismissed as moot.
By: Delaney, J.,
Hoffman, P.J. and
Wise, J., concur.
