Cleveland v. Aeon Fin., L.L.C. , 2016 Ohio 4559 ( 2016 )

[Cite as Cleveland v. Aeon Fin., L.L.C., 2016-Ohio-4559.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 103235, 103236, 103532, and 103533
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
AEON FINANCIAL, L.L.C., ET Al.
DEFENDANTS-APPELLANTS
JUDGMENT:
VACATED IN PART, REVERSED IN PART
AND REMANDED
Criminal Appeal from the
Cleveland Municipal Court Housing Division
Case Nos. 2013 CRB 005631, 2014 CRB 016711, and 2014 CRB 029277
BEFORE: Blackmon, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: June 23, 2016
-i-
ATTORNEYS FOR APPELLANT
Gretchen A. Holderman
Richard G. Lillie
Lillie & Holderman Associates
75 Public Square
Suite 1313
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William H. Armstrong
Anthony W. Scott
Assistant Directors of Law, Cleveland
City of Cleveland – Law Department
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
PATRICIA ANN BLACKMON, J.:
{¶1} Aeon Financial, L.L.C., et al., (“Aeon”) appeals from multiple sentences imposed
by the Cleveland Municipal Court Housing Division (“Housing Court”) for code violations
regarding properties in the city of Cleveland (“Cleveland”). Aeon assigns the following errors
for our review:
I. Financial penalty of $50,000.00 for failure to comply with community control
requirements is impermissible under law.
II. Financial penalty of $50,000.00 for failure to comply with community control
requirements is excessive.
III. Community control sanctions penalty was not based upon evidence before
the court.
IV. Appellant’s sentences in Case Nos. 2014-CRB-016711 and
2014-CRB-029277 are contrary to the statutory purpose of misdemeanor
sentencing.
{¶2} Having reviewed the record and pertinent law, we vacate the $50,000 penalty,
vacate the $5,000 fine, and modify the fine to $500 in Case No. 2013 CRB 005631; vacate the
$5,000 fine, modify the fine to $500 in Case No. 2014 CRB 029277; reverse the $5,000 fine, and
remand for resentencing in Case No. 2014 CRB 016711. The apposite facts follow.
{¶3} Aeon purchased tax certificates from the Cuyahoga County treasurer’s office for
multiple properties located in Cleveland. After paying the delinquent taxes, Aeon acquired title
to the properties, many of which needed to be cleaned up, boarded up, or demolished.
Cleveland cited Aeon for numerous municipal code violations, and starting in March 2013, filed
associated criminal complaints in Housing Court. This appeal concerns three of Aeon’s
Housing Court cases, in which Aeon pled no contest to the code violations, and the Housing
Court imposed fines and/or sentenced Aeon to community control sanctions (“CCS”).
Facts and Procedural History of Case No. 2013 CRB 005631
{¶4} On September 19, 2013, Aeon pled no contest to one count of “Building Code
Violation,” listed on the docket as a minor misdemeanor, associated with the property located at
881 Thornhill Drive. Aeon was fined $5,000, with $4,500 suspended, and ordered to pay the
fine by October 1, 2013. Aeon was also sentenced to one year of inactive probation and ordered
“to maintain” the property.
{¶5} On June 16, 2015, the Housing Court magistrate found Aeon to be in violation of
its CCS and imposed a $50,000 sanction against Aeon. The Housing Court adopted the
magistrate’s decision on the same day. On June 24, 2015, Aeon filed objections to the
magistrate’s decision, and on July 8, 2015, Aeon appealed the $50,000 sanction. On September
16, 2015, the Housing Court overruled Aeon’s objections to the magistrate’s decision and
affirmed its own ruling. On September 23, 2015, Aeon appealed this journal entry.
Facts and Procedural History of
Case Nos. 2014 CRB 016711 and 2014 CRB 029277
{¶6} On January 27, 2015, Aeon pled no contest to one unidentified “Building Code
Violation,” listed on the docket as a first-degree misdemeanor, associated with the property
located at 6808 Lorain Avenue. Aeon also pled no contest to a second unidentified “Building
Code Violation,” listed on the docket as a minor misdemeanor, associated with the property
located at 1378 Larchmont Road. The no contest pleas reflect one day of violation for each
count. 1 The Housing Court imposed a fine of $5,000 in each case, despite Cleveland’s
recommendation of a $500 fine per case.
{¶7} On February 24, 2015, Aeon filed a motion to modify sentence. On June 16,
2015, the Housing Court magistrate denied this motion. On June 24, 2015, Aeon filed
objections to the magistrate’s decision, and on July 8, 2015, Aeon appealed the denial of its
motion to modify sentence. On September 16, 2015, the court overruled the objections to the
magistrate’s decision. On September 23, 2015, Aeon appealed this journal entry. All of
Aeon’s aforementioned appeals were consolidated into this case for our review.
Transcript of Proceedings
{¶8} Pursuant to App.R. 9(B), “[t]he appellant shall order the transcript in writing and
shall file a copy of the transcript order with the clerk of the trial court.” Cleveland argues in its
appellate brief that Aeon failed to file a transcript in accordance with App.R. 9, and as a result,
this court must presume regularity and affirm the Housing Court proceedings. See Knapp v.
Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384 (1980).
{¶9} The Housing Court held a hearing on June 9, 2015 in all three cases that are the
subject of this appeal. At that hearing, the Housing Court denied Aeon’s motion to modify or
reduce sentence in Case Nos. 2014 CRB 016711 and 2014 CRB 029277, and imposed the
$50,000 sanction for CCS violations in Case No. 2013 CRB 005631. These actions were
memorialized in the magistrate’s decisions and journalized in Housing Court orders, from which
1
A separate offense may be charged for each day in which a code violation is not remedied. Cleveland v. Go Invest
Wisely, L.L.C., 8th Dist. Cuyahoga Nos. 95178, 95179, 95180, 95181, 95182, and 95447, 2011-Ohio-3461, ¶ 5-13.
In this case, however, Cleveland concedes that as part of Aeon’s plea, the parties agreed to a conviction for one day
of violation in each case.
Aeon appeals. Aeon filed the transcript from the June 9, 2015 hearing, and upon review, we
find that this complies with App.R. 9.
Final Appealable Order
{¶10} Cleveland also argues that this court lacks jurisdiction to hear this appeal as it
relates to Case Nos. 2014 CRB 016711 and 2014 CRB 029277, because Aeon did not appeal the
original sentences imposed by the trial court. Rather, Aeon appealed the Housing Court’s denial
of its motion to modify sentence. However, to the extent that Aeon’s sentence is void as being
contrary to law, “[t]he sentence may be reviewed at any time, on direct appeal or by collateral
attack.” State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 30. Upon
review, we determine that this court’s jurisdiction is proper.
Misdemeanor Sentencing
{¶11} Misdemeanor sentencing is governed by R.C. 2929.21 through 2929.28. Courts
have discretion to determine appropriate sentences for misdemeanor convictions within the
statutory limits. See Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955, 2015-Ohio-674.
“Unless a specific sanction is required to be imposed or is precluded from being imposed * * *, a
court that imposes a sentence upon an offender for a misdemeanor may impose on the offender
any sanction or combination of sanctions under sections 2929.24 to 2929.28 of the Revised
Code.” R.C. 2929.22.
First-Degree Misdemeanors
Case No. 2014 CRB 016711
{¶12} R.C. 2929.28 governs the fines a court may impose for misdemeanor offenses, and
R.C. 2929.31 increases the amount of the fine if the offender is an organization. Neither party
disputes that Aeon is an organization under the statute, and the maximum fine the court may
impose for a first-degree misdemeanor conviction against Aeon is $5,000. R.C. 2929.31(A)(8).
{¶13} In Case No. 2014 CRB 016711, Aeon pled no contest to a first-degree
misdemeanor, and the court imposed a $5,000 fine. We find that this sentence is within the
statutory range. In Aeon’s fourth assigned error, we are asked to review whether this maximum
fine is contrary to the purposes of misdemeanor sentencing.
{¶14} “The overriding purposes of misdemeanor sentencing are to protect the public from
future crime by the offender and to punish the offender.” R.C. 2929.21(A). In sentencing for a
misdemeanor, the “court shall consider the impact of the offense upon the victim and the need
for changing the offender’s behavior, rehabilitating the offender, and making restitution to the
victim of the offense, the public, or the victim and the public.” Id.
{¶15} Misdemeanor sentences “shall be reasonably calculated to achieve the two
overriding purposes of misdemeanor sentencing * * *, commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar offenses committed by similar offenders.” R.C. 2929.21(B).
{¶16} R.C. 2929.21(B)(1) lists factors that the court shall consider in determining an
appropriate misdemeanor sentence:
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the offense or offenses
indicate that the offender has a history of persistent criminal activity and that the
offender’s character and condition reveal a substantial risk that the offender will
commit another offense;
(c) Whether the circumstances regarding the offender and the offense or offenses
indicate that the offender’s history, character, and condition reveal a substantial
risk that the offender will be a danger to others and that the offender’s conduct has
been characterized by a pattern of repetitive, compulsive, or aggressive behavior
with heedless indifference to the consequences;
(d) Whether the victim’s youth, age, disability, or other factor made the victim
particularly vulnerable to the offense or made the impact of the offense more
serious;
(e) Whether the offender is likely to commit future crimes in general, in addition
to the circumstances described in divisions (B)(1)(b) and (c) of this section;
(f) Whether the offender has an emotional, mental, or physical condition that is
traceable to the offender’s service in the armed forces of the United States and
that was a contributing factor in the offender’s commission of the offense or
offenses;
(g) The offender’s military service record.
{¶17} In the case at hand, Aeon pled no contest to the first-degree misdemeanor on
January 27, 2015, and Cleveland agreed to recommend to the Housing Court that Aeon be fined
$500. However, the Housing Court imposed the maximum fine of $5,000 and advised Aeon to
pay the court costs and the cost of demolishing the two houses at 6808 Lorain Avenue and 1478
Larchmont Road, which are the subject of Case Nos. 2014 CRB 016711 and 2014 CRB 029277.
The Housing Court further advised Aeon that, when the costs were paid, Aeon should file a
motion to modify sentence requesting a reduction of the fine to $500.
{¶18} Aeon paid the court costs and the demolition costs, and on February 24, 2015, filed
its motion to modify sentence in Case Nos. 2014 CRB 016711 and 2014 CRB 029277. It does
not appear from the record that Cleveland opposed this motion. On June 9, 2015, the Housing
Court held a hearing on Aeon’s motion to modify sentence.
{¶19} We are mindful of the long-standing rule that “Ohio courts have no authority to
reconsider their own valid final judgments in criminal cases.” Brook Park v. Necak, 30 Ohio
App.3d 118, 120, 506 N.E.2d 936 (8th Dist.1986). This rule applies to sentencing: “Once a trial
court has carried into execution a valid sentence, the court no longer has the power to modify that
sentence absent statutory authority to do so. * * * Should a trial court retain jurisdiction to
modify an otherwise valid sentence ‘the defendant would have no assurance about the
punishment’s finality.’” (Citation omitted.) State v. Longmire, 11th Dist. Portage No.
2001-P-0014, 2002-Ohio-7153, ¶ 14-15.
{¶20} In the instant case, the Housing Court instructed Aeon to file a motion that the
court had no authority to grant. In the interests of justice, we will not penalize a party for
following a court’s instruction. Accordingly, we review the Housing Court’s $5,000 fine against
Aeon on its merits.
{¶21} At the June 9, 2015 hearing, Aeon’s counsel testified that as part of the plea, Aeon
agreed to pay the court costs and demolition costs, and Cleveland amended the charges to one
day of violation and recommended a $500 fine. According to Aeon’s counsel, “the City of
Cleveland laid out the terms of the agreement on the record, and the Court acknowledged the
parties [sic] agreement and proceeded to call the case for a plea * * *.” The Housing Court
accepted the plea, imposed the maximum fine of $5,000, and advised Aeon to file a motion to
modify sentence after it satisfied the requirements of the plea.
{¶22} Aeon presented evidence that the house on 6808 Lorain Avenue, which is the
property associated with Case No. 2014 CRB 016711, had been demolished, and Aeon paid the
demolition fees. Additionally, Aeon paid the court costs. Aeon also hired a contractor to
maintain other properties it owned in Cleveland, including “grass cutting, minor boarding up,
picking up debris, visiting properties on a regular basis, and notifying any authority if that’s
required regarding the condition of the properties.” Evidence was also presented that Aeon sold
a number of properties in Cleveland, and several other properties were “under contract and ready
to close.”
{¶23} Cleveland did not oppose Aeon’s motion to modify sentence, nor did it challenge
Aeon’s evidence or present any evidence of its own at the hearing.
{¶24} Aeon argues that its satisfaction of the requirements in the plea bargain, the
“considerable progress” it has made regarding other properties, and a reduced fine of $500 would
serve to “protect the public, * * * provide sufficient punishment * * * [and] serve the interest of
justice.”
{¶25} The Housing Court denied Aeon’s motion to modify sentence, finding that,
although the property at 6808 Lorain Avenue was “well taken care of, * * * there is no reason to
mitigate * * * given the general wholesale failure to be responsible property” owners.
Specifically, the Housing Court viewed pictures of Aeon’s other 37 properties and found a
property that needed its grass cut, a property with collapsed steps, a property with a sagging
porch, and a property that was missing roof shingles. The Housing Court concluded that the
“photographs show that the properties were not in good repair.” The Housing Court stated on
the record:
Your client has this responsibility, but just doesn’t care. It doesn’t visit the
properties. It doesn’t have a list of them. [It] doesn’t have a contractor that works
to repair them. It’s trying to go as cheap as it can to avoid paying any money to
make these repairs so it could have a better bottom line instead of a worst [sic]
one. Well that’s not what’s allowed. * * * I don’t think Aeon is going to do
anything until I begin to fine them enough that it is a wake up call.
{¶26} In overruling Aeon’s objections to the magistrate’s decision, the court found the
following regarding misdemeanor sentencing factors under R.C. 2929.22:
The magistrate’s knowledge that [Aeon] had violated the terms of its community
control sentence in the other case by failing to make repairs at three other
properties it owned was relevant to the question of whether [Aeon] was likely to
re-offend. The evidence that [Aeon] had failed to make repairs at 37 properties it
currently owned was also relevant to that issue. Both were aggravating factors
that the magistrate could properly consider.
{¶27} Upon review, we find that the Housing Court’s imposition of the maximum fine,
along with its denial of Aeon’s motion to modify sentence, is not supported by competent,
credible evidence in the record and is not in line with the statutory purpose of misdemeanor
sentencing. It is undisputed that Aeon paid for the demolition of the house at issue, as well as
the court costs. Aeon presented evidence that it hired a contractor who visited the properties,
which does not support the Housing Court’s finding that Aeon did not visit the properties or have
a contractor. The photographs of Aeon’s other properties show that most of them are well
maintained, which contradicts the Housing Court’s conclusion that Aeon “failed to make repairs
at 37 properties it currently owned * * *.” Furthermore, the Housing Court’s reference to Aeon
violating the terms of its CCS should not haven been taken into consideration, because, as noted
below, the CCS was not valid.
{¶28} The evidence in the record shows that Aeon was working with Cleveland to
maintain and/or sell its properties. The Housing Court acknowledged this at the hearing, stating,
“I understand that you’re trying, but you’re certainly not trying hard enough.” Aeon was serving
the statutory purpose of “protecting the public” by demolishing the house under the guise that it
would be “punished” with a $500.00 fine. Therefore, we find that the maximum fine of
$5,000.00 is not commensurate with Aeon’s conduct.
{¶29} Accordingly, Aeon’s fourth assigned error is sustained and this matter is remanded
to the Housing Court for resentencing of the maximum fine.
Minor Misdemeanors
Case No. 2014 CRB 02927
{¶30} The maximum fine a court may impose for a minor misdemeanor conviction
against an organization is $1,000.00. R.C. 2929.31 (A)(12).
{¶31} In Case No. 2014 CRB 029277, Aeon pled guilty to a minor misdemeanor, and the
Housing Court imposed a $5,000.00 fine. This fine is outside the limits of the sentencing
statutes regarding minor misdemeanors, and is, therefore, contrary to law. “Crimes are statutory,
as are the penalties therefor, and the only sentence which a trial court may impose is that
provided for by statute. A court has no power to substitute a different sentence for that provided
for by statute or one that is either greater or lesser than that provided for by law.” Colegrove v.
Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964).
{¶32} Pursuant to R.C. 2953.08(G)(2)(a) and (b), this court, upon finding that a sentence
is clearly and convincingly contrary to law, “may increase, reduce, or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing court for
resentencing.” See also State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, 942 N.E.2d 332.
{¶33} Accordingly, Aeon’s fourth assigned error is sustained and the fine is modified to
$500.00, which is what the parties agreed to recommend to the Housing Court.
Minor Misdemeanors
Case No. 2013 CRB 005631
{¶34} In Case No. 2013 CRB 005631, Aeon pled guilty to a minor misdemeanor, and the
court imposed a fine of $5,000.00, with $4,500.00 suspended. As the maximum fine authorized
against organizations for minor misdemeanors is $1,000.00, this fine is contrary to law.
Pursuant to this court’s authority under R.C. 2953.08(G)(2), the fine is modified to $500.00,
which is the non-suspended portion of the fine the court imposed.
{¶35} Additionally, the Housing Court sentenced Aeon to one year of “inactive
probation,” also known as CCS, and subsequently fined Aeon $50,000.00 for violating the terms
of this CCS.
{¶36} In Lakewood v. Ryan, 8th Dist. Cuyahoga No. 94770, 2010-Ohio-5370, ¶ 14, this
court held that “in Ohio, community control sanctions are permissible in all but minor
misdemeanor cases.” R.C. 2929.25(A)(1) expressly states that CCS may be imposed “in
sentencing an offender for a misdemeanor, other than a minor misdemeanor * * *.” In Ryan, the
defendant was convicted of disorderly conduct, which is a minor misdemeanor, and the court
sentenced him to CCS for one year. Id. at ¶ 21. This court reversed, finding that “the trial court
imposed a sentence contrary to law.” Id. See also State v. McMullan, 3d Dist. Shelby No.
17-05-09, 2005-Ohio-4442, ¶ 7 (“the trial court lacked authority to impose any probationary
sentencing terms” for a minor misdemeanor; thus, the “probationary sentencing terms are
unenforceable”).
{¶37} Upon review, we find that the court lacked the authority to impose CCS for the
minor misdemeanor conviction in Case No. 2013 CRB 005631. See R.C. 2929.22 (a court has
broad discretion in misdemeanor sentencing “[u]nless a specific sanction is * * * precluded from
being imposed”). Consequently, the Housing Court lacked authority to penalize Aeon for
violating the improperly imposed CCS. Accordingly, the CCS and the $50,000.00 fine are
vacated.
{¶38} Aeon’s first assigned error is sustained, and its second and third assigned errors are
rendered moot under App.R. 12(A)(1)(c).
{¶39} Judgment vacated in part, reversed in part, and remanded for the limited purpose of
resentencing consistent with this opinion in Case No. 2014- CRB-016711.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cleveland Municipal Court Housing
Division 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.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR