Cleveland v. Sabetta , 2021 Ohio 4426 ( 2021 )

[Cite as Cleveland v. Sabetta, 2021-Ohio-4426.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 110095
v. :
DOMINIC V. SABETTA, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: DISMISSED
RELEASED AND JOURNALIZED: December 16, 2021
Criminal Appeal from the Cleveland Municipal Court
Case No. 19-CRB-012200
Appearances:
Barbara A. Langhenry, Cleveland Director of Law,
Aqueelah A. Jordan, Chief Prosecuting Attorney, and
Brittany C. Barnes, Assistant City Prosecutor, for appellee.
Robert A. Dixon, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Dominic Sabetta (“Sabetta”) appeals the trial
court’s denial of his motion to modify the condition of community control sanctions
that restricted visitation with his minor daughter to the Safe and Sound Community
Center (“Safe and Sound”).1 For the reasons set forth below, we dismiss the appeal.
Procedural and Factual History2
In July 2018, the court issued a civil protection order against Sabetta,
with C.C., the mother of the parties’ minor daughter, as well as C.C.’s mother, as
protected persons. In October 2018, the Cuyahoga County Juvenile Court, which was
presiding over Sabetta’s application to determine custody, ordered that Sabetta’s
visitation with his daughter take place at Safe and Sound.
In April 2019, Sabetta and C.C. reached an interim parenting visitation
agreement. Pursuant to the agreement, Sabetta would have parenting time with their
daughter and the visits would be supervised by Sabetta’s sister. In addition, any
licensed, insured, sober paternal family member could accompany Sabetta to pick up
daughter from mother’s home. Further, at the end of the visit, mother would pick up
daughter from Sabetta’s home and a paternal family member would walk the daughter
to the mother’s car. On April 24, 2019, the juvenile court adopted the parties’ interim
visitation agreement and supervised visitation at Safe and Sound ceased.
1The supervised visitation center, a program of the Domestic Violence Center, is a
neutral place where children and their nonresidential parent(s) can experience parenting
time or exchange in the presence of a third person who is responsible for observing and
ensuring the safety of those present.
2Before the inception of the underlying case, which is the subject of the instant
appeal, Sabetta filed an application to determine custody of his daughter in the Cuyahoga
County Juvenile Court. Because of the simultaneous impact of the two cases on each
other, relevant facts from the matter in the juvenile court will be referenced throughout
this opinion.
On June 16, 2019, Cleveland Police arrested Sabetta upon a complaint by
C.C., who alleged that at the end of one of Sabetta’s scheduled parenting times, Sabetta
came outside, banged on her car’s window, and yelled at her while she waited for their
daughter to be brought to her by a paternal family member. On July 25, 2019, based
on the complaint, the city of Cleveland (“the City”) charged Sabetta with the violation
of a civil protection order.
On October 10, 2019, at his arraignment, Sabetta pled not guilty to the
charge. On November 26, 2019, after a series of pretrials had been conducted, Sabetta
pled no contest to an amended charge of attempted violation of a protection order.
Thereafter, the trial court referred Sabetta to the probation department for the
preparation of a presentence investigation report.
On December 16, 2019, at Sabetta’s sentencing hearing, the trial court
imposed a fine of $150, suspended a 90-day jail sentence, and placed him on three
years of active community control sanctions. The community control sanctions
including the conditions that Sabetta have no contact with C.C. and that visitation
with their daughter take place only at Safe and Sound. Sabetta was also required to
participate in the Domestic Intervention Education and Training Program (“D.I.E.T.
Program”) and attend parenting classes, as well as complete 100 hours of community
service by December 16, 2020.
On January 21, 2020, Sabetta, who had not taken a direct appeal, filed a
motion to modify, which sought the removal of the condition that required visitations
with his daughter only at Safe and Sound. As grounds for the request, Sabetta
indicated that on January 6, 2020, an attorneys’ conference had been conducted, in
the juvenile court, regarding custody of the parties’ daughter. At that time, the
juvenile court ruled that Sabetta’s parenting time should resume no later than
January 13, 2020, and that he should have no less than six hours of parenting time
with his daughter. The six hour of parenting time would occur every Sunday as
outlined in the parties’ visitation agreement the juvenile court previously adopted.
Sabetta further noted that the juvenile court’s ruling conflicted with the
trial court’s ruling at the time he was sentenced. Sabetta offered that he was seeking
the trial court’s permission to follow the juvenile court’s ruling that he could resume
contact with his daughter. On January 25, 2020, the trial court denied Sabetta’s
motion to modify.
On September 14, 2020, Sabetta filed a second motion to modify, which
again sought the removal of the condition requiring supervised visitation with his
daughter only at Safe and Sound. In support of the request, Sabetta noted he paid all
fines and court costs; completed the D.I.E.T. program, comprised of 16 classes;
completed the parenting program, comprised of nine classes; and satisfied most of the
community work service hours.
In addition, Sabetta noted that the condition of supervised visitation at
Safe and Sound had limited his contact with his daughter to one hour, every other
week, or to two hours per month. Sabetta also noted that because of the COVID-19
pandemic, Safe and Sound had been closed for three months. Consequently, Sabetta
added, he only had six hours of contact with his daughter in the preceding six months.
On October 13, 2020, the trial court held a hearing on the motion. The
City objected to the requested modification and argued that supervised visitation
should continue at Safe and Sound. The trial court denied the motion indicating it
will revisit the matter after the juvenile court made a final decision.
Sabetta now appeals and assigns the following sole error for review:
Assignment of Error
The lower court erred and abused its discretion and denied the appellant
due process of law by imposing a restriction upon appellant’s parental
visitation with his minor daughter as a condition of community control
sanctions.
Law and Analysis
In the sole assignment of error, Sabetta argues the trial court erred and
abused its discretion when it imposed restrictions upon his parental visitation with
his minor daughter, who was not a subject of the protection order and not a victim in
the charged violation of the protection order.
As an initial matter, we note our review in this appeal are limited to
issues pertaining to the trial court’s October 14, 2020 order denying Sabetta’s motion
seeking removal of the condition requiring supervised visitation with his daughter
only at Safe and Sound. The October 14, 2020 judgment entry is the order Sabetta
has timely appealed. App.R. 3(D) states, in pertinent part, that “[t]he notice of appeal
* * * shall designate the judgment, order or part thereof appealed from * * * .” Id.Although Sabetta timely filed a notice of appeal from the
October 14, 2020 judgment entry, the thrust of his sole assignment of error is that the
trial court violated his right to due process by imposing a condition of community
control that restricted his visitation with his minor daughter. The record indicates that
the trial court imposed this condition at a sentencing hearing in December 2019.
Because the sole assignment of error pertains to a purported due
process violation that predates the October 14, 2020 order denying Sabetta’s motion
to modify the specific community control condition, the issue is outside the scope of
the instant appeal. See State v. Davis, 8th Dist. Cuyahoga No. 104442, 2017-Ohio-
7713, ¶ 16.
Further, because Sabetta’s core argument, in the present appeal,
pertains to a purported due process violation flowing from the December 2019
imposition of the condition in his sentence, it is now untimely and barred by the
doctrine of res judicata. It is well established that res judicata bars the consideration
of issues that could have been raised on direct appeal. State v. Turner, 8th Dist.
Cuyahoga No. 106123, 2018-Ohio-2730, ¶ 6, citing State v. Saxon, 109 Ohio St.3d 176,
2006-Ohio-1245, 846 N.E.2d 824, ¶ 16-17.
In this matter, Sabetta could have challenged the imposition of this
condition on direct appeal. However, as previously indicated, Sabetta did not appeal
the December 2019 judgment. As such, Sabetta’s attempt to utilize the present appeal
to challenge the imposition of the community control condition is barred by res
judicata.
Finally, the record suggests that Sabetta is attempting to employ the
procedure of “bootstrapping” through this appeal challenging the trial court’s
judgment denying his motion seeking removal of the specific condition.
“Bootstrapping” is “the utilization of a subsequent order to indirectly
and untimely appeal a prior order that was never directly appealed.”
State v. Williamson, 8th Dist. Cuyahoga No. 102320, 2015-Ohio-5135,
¶ 9. Such attempt is “procedurally anomalous and inconsistent with
the appellate rules that contemplate a direct relationship between the
order from which the appeal is taken and the error assigned as a result
of that order” and is disfavored. Williamson, citing State v. Church, 8th
Dist. Cuyahoga No. 68590, 1995 Ohio App. LEXIS 4838 (Nov. 2, 1995);
Bd. of Health v. Petro, 8th Dist. Cuyahoga No. 104882, 2017-Ohio-
1164, ¶ 12 (noting this court's consistent declination to consider
bootstrapped claims).
State v. Bhambra, 8th Dist. Cuyahoga No. 105283, 2017-Ohio-8485, ¶ 12.
In this matter, as previously noted, Sabetta filed a notice of appeal from
the trial court’s October 14, 2020 judgment denying his motion to modify the
condition of community control. In the underlying motion, Sabetta argued that the
condition should have been removed because of his substantial compliance.
Yet, in the present appeal, Sabetta’s sole assignment of error states that
the trial court abused its discretion by imposing a condition that restricted the
parental visitation with his daughter. Indeed, Sabetta’s core argument and supporting
case law focuses solely on the propriety of the trial court’s imposition of the
complained-of condition, instead of its removal based on his substantial compliance.
As such, any errors relating to Sabetta’s sentencing should have been raised by a direct
appeal within thirty days of the entry of sentencing. See App.R. 4(A).
Because Sabetta’s present appeal amounts to an attempt at
bootstrapping a claim that is now time barred, we are without jurisdiction to consider
the appeal. See Bhambra at ¶ 13, citing State v. Cottrell, 8th Dist. Cuyahoga No.
95053, 2010-Ohio-5254, ¶ 20, and App.R. 4.
Appeal dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN T. GALLAGHER, J., CONCUR