COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71280 CITY OF CLEVELAND : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : : OPINION NICK KARIOTAKIS : : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 28, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 95-CRB-24014. JUDGMENT: DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Carolyn W. Allen Chief Prosecuting Attorney City of Cleveland Carol M. Skutnik Assistant City Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellee: George W. MacDonald, Esq. 848 Rockefeller Building Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., C.J.: Plaintiff-appellant City of Cleveland ("City") appeals from the granting of defendant-appellee Nick Kariotakis's petition for post-conviction relief pursuant to R.C. 2953.21, which the trial court treated as a motion for a new trial pursuant to Crim.R. 33(A)(6), and the vacating of defendant's conviction for Domestic Violence under Cleveland Codified Ordinance 609.07. For the reasons adduced below, we affirm. A review of the record on appeal indicates that defendant was convicted by a jury of the offense of domestic violence on February 23, 1996. He was sentenced to the following on March 19, 1996: (1) $1,000 fine plus court costs plus 180 days in jail; (2) $800 of the fine and 120 days were suspended; (3) active probation for 1 year on the condition that defendant receive domestic violence counseling and defendant to have no contact with the children until the domestic relations court addresses the issue of his visitation. On June 19, 1996, defendant filed his petition for post- conviction relief. This petition was based largely on the recanted testimony of a principal trial witness for the prosecution, namely, the thirteen-year-old daughter of the defendant, Jessica Kariotakis, who averred the following in her affidavit attached to the petition: My mother told me if I didn't lie when I testify aginst (sic) my father she would kill me. Ms. Scudnick (sic) [a prosecutor] told me to cry so they would belive (sic) me and she said to give them extra detial (sic) that is not true. So that the jury would side with my - 3 - mother. What happend (sic) at my house was that my mother was teasing my dad about taco bell and when he felt bad she went to stab him with a screwdriver and he took it from her before she could stab him and she told him to get out of the house. My father did not hit my mother, or put her face in the rug! he (sic) did not put the gun to her head. and (sic) she was throwing ashtrays and (sic) my father and little nicknaks (sic) at him. and (sic) I lied at the testimony of the trial. [explanatory note added.] The City filed a brief in opposition to post-conviction relief on July 3, 1996, arguing that the recanted testimony was not credible. Attached to this brief in opposition were the affidavits of prosecutor Skutnik and prosecutor department law clerk Heather Logan, which generally averred that they did not tell Jessica Kariotakis to lie, cry or embellish the truth. The court conducted an evidentiary hearing on the petition on July 16, 1996, at which time Jessica Kariotakis reiterated the averments made in her earlier affidavit, recanting her trial testimony as being perjured. Also at the hearing, Ms. Skutnik and Ms. Logan reiterated their earlier averments, and Mrs. Kariotakis testified that she never threatened or coerced her daughter to offer perjured testimony at the trial. The trial court granted the petition on July 24, 1996. Findings of fact and conclusions of law were filed by the trial court on August 5, 1996, which stated the following in pertinent part: 3. The Petitioner argued that the perjured testimony of one of the State's key witnesses, Jessica Kariotakis, violated the Petitioner's constitutional rights under the - 4 - Due Process Clause of the 14th Amendment of the U.S. Constitution. As to this final argument, the Court finds that the State's key witness Jessica Kariotakis, offered perjured testimony during the Defendant's jury trial which materially affected the outcome of the trial. In this connection, the remaining issue is whether the Court may grant this petition pursuant to R.C. 2953.21, or on alternate authority, based upon the recanted testimony of Jessica Kariotakis. Pursuant to R.C. 2953.21, the Petitioner must show a constitutional violation. In this case, the Petitioner failed to establish any misconduct on the part of the prosecutor or any other governmental authority. Thus, without violative state action, there can be no constitutional violation. Therefore, the Court is without authority to grant this petition based upon the statutory authority of R.C. 2953.21. See Napue v. Illinois (1958), 360 U.S. 264. However, in the alternative, the Court within its inherent authority, is empowered to treat this petition as a Crim.R. 33 Motion for New Trial based upon newly discovered evidence. See State v. Walker (1995), 101 Ohio App.3d 433. Therefore, based upon this Court's inherent authority and Crim.R. 33 Defendant Nick Kariotakis' Petition for Post Conviction Relief is deemed a Motion for New Trial and is granted. The Defendant's conviction of March 3, 1996 on the charge of Domestic Violence is vacated. The case shall be reset for trial. (Underscoring added.) This appeal followed offering one assignment of error for review. - 5 - I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY GRANTING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF AND VACATING THE DEFENDANT'S CONVICTION FOR DOMESTIC VIOLENCE. Prior to addressing the merits of this assignment, it is noted that the trial court's journal reflects that the fine and/or costs assessed against the defendant-appellant were paid as of May 9, 1996. Further, there is no indication that the sixty day period of incarceration was stayed or not served by the defendant. Accordingly, it must be presumed that the defendant served his sentence of incarceration. Also, the one year period of probation terminated under its own terms as of March 19, 1997. In short, the defendant, a misdemeanant, has served his entire sentence. Having voluntarily satisfied his entire sentence, and the record not demonstrating an inference that defendant will suffer a collateral legal disability or loss of civil rights stemming from the conviction, the appeal herein is moot. See State v. Golston (1994), 71 Ohio St.3d 224, 226-227, citing State v. Wilson (1975), 41 Ohio St.2d 236 and State v. Berndt (1987), 29 Ohio St.3d 3. Appeal dismissed as moot. - 6 - It is ordered that appellee recover of appellant his costs herein taxed. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. PATRICIA A. BLACKMON, J., and JOHN T. PATTON, J., CONCUR. JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .