Cleveland v. Go Invest Wisely, L.L.C. ( 2011 )

[Cite as Cleveland v. Go Invest Wisely, L.L.C., 2011-Ohio-3461.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95178, 95179, 95180, 95181, 95182, and 95447
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
GO INVEST WISELY, LLC
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeals from the
Cleveland Municipal Court
Case Nos. 2009 CRB 36813, 2009 CRB 41034, 2009 CRB 041015,
2009 CRB 041014, 2009 CRB 41011, and 2009 CRB 033908
BEFORE: Stewart, J., Blackmon, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: July 14, 2011
ATTORNEY FOR APPELLANT
James J. Costello
Powers Friedman Linn, PLL
23240 Chagrin Boulevard, Suite 180
Cleveland, OH 44122
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
BY: Katherine S. Zvomuya
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, OH 44117-1077
MELODY J. STEWART, J.:
{¶ 1} Defendant-appellant, Go Invest Wisely, LLC, appeals from
misdemeanor convictions entered on no contest pleas in six consolidated
housing court cases relating to its failure to remedy code violations on
properties that it owns in the city of Cleveland. The court found that Go
Invest Wisely’s violations were continuing, so it applied certain
organizational enhancements to punish each day in which the code violations
went unremedied. This resulted in fines on the six individual properties
ranging from $14,000 to $25,000, for a total of $139,000. Go Invest Wisely
challenges these fines, claiming, among other things, that the city could not
impose fines for continuing violations when the citations did not charge
continuing violations.
I
{¶ 2} Go Invest Wisely purchased homes in distressed residential
areas, made repairs to the houses, and entered into land contracts with
tenants, all with the hope of showing a profit. The business model failed.
The 2008 mortgage industry collapse resulted in thousands of home
foreclosures in the city, leading to vacant houses and depressed housing
prices. With no hope of turning a profit on the houses it owned, it appears
that Go Invest Wisely simply abandoned its houses. These houses continued
to deteriorate to the point where some of them were demolished by the city as
health and safety hazards.
{¶ 3} All of the houses involved in these consolidated cases were cited
for building code violations. The city charged Go Invest Wisely under several
parts of its residential housing code relating to, among other things, sanitary
facilities, connection of fixtures, heating facilities, electrical facilities, and
general maintenance requirements. When these violations went
unremedied, the city issued new citations for failure to comply with the
earlier notice of violations. Go Invest Wisely ultimately submitted a written
no contest plea in which it acknowledged that “[t]he ordinances it has been
charged with violating are listed on the Complaints the City filed with the
Court ***.” (Emphasis sic.) It further acknowledged that the maximum
penalties for the alleged offenses were stated in various city ordinances and
that it had reviewed and understood them.
{¶ 4} The court accepted the no contest pleas and found Go Invest
Wisely guilty on all counts. When sentencing, the court noted that
organizational and continuing violation penalties were available under the
city code. For example, in 2009 CRB 36813, the court found 23 separate
continuing violations extending for 78 days, leading to a potential fine of
$4,584,000. The court did not impose the maximum fine, however, and in
the six cases imposed fines totaling $139,000.
II
{¶ 5} Go Invest Wisely first complains that the court erred by fining it
for continuing violations because the complaints did not specifically charge
that the violations were, in fact, continuing.
{¶ 6} All six of the complaints were written on a Cleveland Municipal
Court Housing Division standardized form that contained the following
language:
{¶ 7} “[Y]ou did commit the following violation(s):
{¶ 8} “(1) Failure to comply with the order of the Director of Building
and Housing, a misdemeanor of the first degree, in violation of the following
section(s): ___ Building 3103.25(e), ___ Housing 367.99(a), ___ Zoning
327.99(a) as stated in the violation notice dated ___ and attached here to and
made a part hereof ***.”
{¶ 9} In each of the complaints, one or more of these blank spaces were
checked. The citation was appended to the notice of violation of building and
housing ordinances that contained a detailed recital of the nature of the
violation and the date by which Go Invest Wisely had to comply. Go Invest
Wisely maintains on appeal that the standardized form did not specifically
mention that there were continuing noncompliance violations, so it could only
be charged with a single count of noncompliance.
{¶ 10} In Cleveland v. Whitmore, 8th Dist. No. 84405, 2005-Ohio-4393,
we addressed and rejected a similar argument that a citation referring to
continuing violations was not specific enough to give notice of what had been
charged, finding that Whitmore’s failure to make this objection to the trial
court constituted a waiver of the right to argue the matter on appeal. Id. at
¶20. This holding is consistent with Crim.R. 12(C)(2), which states that any
“defenses or objections based on defects in the indictment, information or
complaint” must be raised before trial.
{¶ 11} The record does not show that Go Invest Wisely raised any
objection in the trial court to the form or substance of the citation, so it has
waived the right to argue any defect on appeal.
III
{¶ 12} Go Invest Wisely next argues that the separate continuing
violations were allied offenses of similar import so the punishments for each
individual offense should have merged for purposes of sentencing.
{¶ 13} Allied offenses are those that, despite being different offenses, are
“so allied in nature as to constitute, for all intents and purposes, the
commission of a single offense.” State v. White, 8th Dist. No. 92972,
2010-Ohio-2342, ¶20. As we earlier noted, the city’s ordinances make each
day for which a violation is not remedied a separate offense. Separate
offenses can be individually punished, so they are not allied offenses of
similar import. See Akron v. Bilder (Apr. 15, 1992), 9th Dist. No. 14988.
IV
{¶ 14} Finally, Go Invest Wisely argues that the collective sentences
imposed were excessive, disproportionate, and contrary to law. It argues
that the court failed to take into consideration the applicable statutory
criteria for imposing misdemeanor sentences and further failed to consider
whether Go Invest Wisely had the ability to pay the fines.
{¶ 15} The guidelines for misdemeanor sentencing are substantially
similar to those applied in felony sentencing. The court must be guided by
the purposes of misdemeanor sentencing, which are “to protect the public
from future crime by the offender and others and to punish the offender.”
See R.C. 2929.21(A). When determining the appropriate sentence, the court
must consider the factors listed in R.C. 2929.22(B), including the nature and
circumstances of the offense or offenses and whether the circumstances
indicate that the offender has a history of persistent criminal activity and
poses a substantial risk of reoffending. See R.C. 2929.22(B)(1). The courts
have broad discretion in misdemeanor sentencing. State v. Hughley, 8th
Dist. Nos. 92588 and 93070, 2009-Ohio-5824, ¶7, citing Cleveland v. Jurco,
8th Dist. No. 88702, 2007-Ohio-4305, ¶18.
{¶ 16} Go Invest Wisely has been a defendant in a number of housing
division cases. All of these cases are related in some form or another with Go
Invest Wisely’s failure to keep the houses it owns in a habitable and safe
condition. Some violations have been so extensive that they have resulted in
the demolition of houses; in other cases, adjoining property owners have
noticed increased drug activity in the vacant houses, causing them to live in
fear. Go Invest Wisely appeared to have just walked away from its
investment, leaving it to the city to deal with vacant and deteriorating
housing that blighted neighborhoods.
{¶ 17} Go Invest Wisely was a repeat offender that found it easier to
abandon certain properties than comply with the law, thus indicating that it
posed a substantial risk of reoffending. It is plain that the court intended to
send a harsh message to Go Invest Wisely, yet the fines that the court
imposed were well below the maximum allowed by law.1 For example, in
2009 CRB 36813, the court noted that it could potentially impose a fine of
$4,584,000 for 23 different violations that extended over 78 days, but only
imposed a fine of $25,000. With the fines all falling well below the applicable
statutory limits, we cannot say that the court abused its discretion by
imposing sentence as it did. Finally, Go Invest Wisely argues that the court
made no determination of its ability to pay the fines. R.C. 2929.18(A)(4)
authorizes a trial court to impose financial sanctions, including a fine, upon
an offender. Before doing so, the court must consider the offender’s present
and future ability to pay the amount of the sanction or fine. R.C.
2929.19(B)(6). There are no express factors that must be considered or
Go Invest Wisely complains in its third assignment of error that the court erred as matter of
1
law by imposing sentences for first-degree misdemeanors on counts that were actually minor
misdemeanors. After the completion of briefing, we remanded the case to the court to resolve
certain finality issues associated with the sentences. On remand, the court sua sponte acknowledged
that “certain charges in 2009 CRB 41011 and 2009 CRB 41014 were minor misdemeanor offenses
rather than first-degree misdemeanors.” It amended the sentences for those counts to reflect that
specific findings that must be made, State v. Martin, 140 Ohio App.3d 326,
338, 2000-Ohio-1942, 747 N.E.2d 318, and the court “may hold a hearing if
necessary to determine whether the offender is able to pay the sanction or is
likely in the future to be able to pay it.” See R.C. 2929.18(E). If the court
chooses not to have a hearing, we look to the totality of the record to see if the
ability to pay requirement has been satisfied. See State v. Lewis, 8th Dist.
No. 90413, 2008-Ohio-4101.
{¶ 18} The issue of fines was apparently the subject of pretrial
negotiations. The city’s assistant prosecuting attorney told the court that
the city desired a total fine of $76,000 in accordance with what she had
recommended at an earlier pretrial conference. Go Invest Wisely did not
object to the fine recommended by the city, but told the court that it had only
$100,000 “in the bank at this time[,]” had no income for the previous four
months, and had debt “of somewhere around $1.8 million dollars.” Despite
its claimed financial difficulties, Go Invest Wisely did not ask the court to
waive all fines, but merely to consider mitigating the fines. The court did
mitigate the fines, imposing only a fraction of what it could have imposed
under the relevant ordinances. On the record before us, we find no
compelling justification for finding that the court had to conduct a hearing on
Go Invest Wisely’s ability to pay the fines ordered by the court.
they were minor misdemeanors, so this argument is now moot.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cleveland
Municipal Court 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.
MELODY J. STEWART, JUDGE
PATRICIA ANN BLACKMON, P.J., CONCURS
FRANK D. CELEBREZZE, JR., J., CONCURS
WITH SEPARATE CONCURRING OPINION
FRANK D. CELEBREZZE, JR., J., CONCURRING:
{¶ 19} I concur with the majority opinion, but write separately to
address an argument raised by Go Invest Wisely in its brief and at oral
arguments. Addressing the third assignment of error, the majority correctly
points out that Go Invest Wisely may be punished for each day as individual
violations of the housing code and that these offenses are not allied offenses of
similar import. However, Go Invest Wisely also argued that the individual
code violations it was cited for should merge with the condemnation
violations.
{¶ 20} Go Invest Wisely was charged with and convicted of violating
C.C.O. 369.06 (sanitary facilities), 369.07 (connection of fixtures), 369.09
(connection of heating facilities), 369.12 (electrical facilities), 369.13 (general
maintenance), 369.14 (foundations), 369.15 (maintenance of exterior walls
and roof), 369.16 (maintenance of interior walls and roof), and 369.19
(secondary appurtenant structures), along with violations of C.C.O. 369.21
(condemnation).
{¶ 21} The condemnation provision, C.C.O. 369.21(a), states that “[a]ny
dwelling * * * building or structure determined by the Commissioner of
Housing to have any of the following defects shall be condemned as unfit for
human habitation:
{¶ 22} “(1) One which is so damaged, decayed, dilapidated, unsanitary,
unsafe or vermin-infected that it creates a hazard to the health, welfare or
safety of the occupants or of the public;
{¶ 23} “(2) One which lacks illumination, ventilation or sanitary
facilities adequate to protect the health or welfare of the occupants or of the
public; or
{¶ 24} “(3) One which, because of its general condition or location is
unsanitary or otherwise dangerous to the health, safety or welfare of the
occupants or of the public.”
{¶ 25} This ordinance is an exceptional provision limited to situations
where code violations threaten the “health, welfare or safety of the occupants
or public.” The other provisions under which appellant was cited do not have
similar qualifying language. For example, C.C.O. 369.07 states:
{¶ 26} “(a) All plumbing fixtures in a dwelling structure shall be
supplied with running water from the Municipal water supply system.
{¶ 27} “(b) Every dwelling unit shall have an adequate supply of running
hot water properly connected to all plumbing fixtures requiring hot water.
{¶ 28} “(c) All plumbing fixtures in a dwelling structure shall be so
designed and installed as to prevent contamination of the water supply
system.”
{¶ 29} “[A] defendant can be convicted and sentenced on more than one
offense if the evidence shows that the defendant’s conduct satisfies the
elements of two or more disparate offenses.” State v. Williams, 124 Ohio
St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶36 (Lanzinger, J., concurring in
part and dissenting in part). See, also, State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061.
{¶ 30} Here, Go Invest Wisely’s failure to maintain adequate hot water
and plumbing connections does not lead to a violation of C.C.O. 367.21 —
sanitary facilities that endanger the health and safety of the occupants or the
public. The same is true for the other housing code violations. It is the
abandonment aspect of appellant’s actions that leads to the condemnation
charges.
{¶ 31} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, ¶67, Justice O’Connor’s concurring opinion set forth that
“offenses are of ‘similar import’ when the underlying conduct involves similar
criminal wrongs and similar resulting harm.” Here the various individual
code violations represent harm caused to the present and future occupants,
but the condemnation provision represents harm caused to the community in
having a blighted home in the neighborhood. Therefore, the offenses are not
allied, and Go Invest Wisely’s argument that the convictions for other code
violations should merge with the condemnation convictions is not
well-founded.