In the Matter of:
IAN NEINAST
:
:
:
Case No. TR20080510
MOTION TO STAY EXECUTION OF REMAINING
SENTENCE PENDING APPEAL
Now comes the defendant, Ian Neinast, and respectfully moves the Court to stay the execution of his remaining sentence pending the outcome of his appeal to the Fifth District Court of Appeals. Since the Magistrate’s Order specifies that his license to drive will be suspended for additional time if he has not completed the essay and traffic school by February 1, 2009, and since those are the components of his sentence that are under appeal, defendant requests that this escalation clause be stayed until a date 90 days after any ruling by the Court of Appeals upholding the sentence.
MEMORANDUM The Magistrate’s Order regarding sentencing contains an escalation clause that states that failing to complete the essay and traffic school by February 1, 2009 will result in a “90 day OL suspension.” A copy of that order is attached. The essay and traffic school have been appealed to the Fifth District Court of Appeals. However, should Ian complete his sentence before the appeal is decided, his appeal would become moot. See State v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109 (December 20, 1994) (“This court has held that where a criminal defendant, convicted of a misdemeanor, voluntarily satisfies the judgment imposed upon him or her for that offense, an appeal from the conviction is moot unless the defendant has offered evidence from which an inference can be drawn that he or she will suffer some collateral legal disability or loss of civil rights stemming from that conviction.”)
Thus, in order to maintain his appeal as of right, Ian cannot complete his sentence before the Court of Appeals issues its judgment. Furthermore, if the judgment is adverse to Ian and occurs after February 1, 2009, or so close to that date that he cannot reschedule the traffic school before that date, then requiring the 90 day OL sentence would effectively be punishing Ian for making his appeal as of right. Currently, the traffic school is requiring about a 2 month lead time for rescheduling.
Hence, Ian respectfully requests that this Court stay the execution of the escalation clause pending the judgment of the Court of Appeals, and that, should that judgment be adverse to Ian, that the escalation clause take effect 90 days from the date of that adverse judgment. A proposed entry to that effect is attached.
Respectfully submitted,
/s/ Ian A. Neinast
Ian A. Neinast
/s/ Robert A. Neinast
Robert A. Neinast (father)
8617 Ashford Lane
Pickerington, OH 43147
Phone: (614) 759-1601
CERTIFICATE OF SERVICE
I hereby certify that a copy of this Motion to Stay Execution of Remaining Sentence Pending Appeal was served, by hand delivery to the Prosecutor’s office, upon Erin R. McLaughlin, Assistant Prosecuting Attorney, Fairfield County Prosecutor’s Office, 201 S. Broad Street, Lancaster, OH, on November 18, 2008.
/s/ Robert A. Neinast
Robert A. Neinast