City of Cleveland v. Interstate Investment Group , 194 Ohio App. 3d 833 ( 2011 )

[Cite as Cleveland v. Interstate Invest. Group, 194 Ohio App.3d 833, 2011-Ohio-3384.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95449
CITY OF CLEVELAND
APPELLEE,
v.
INTERSTATE INVESTMENT GROUP,
APPELLANT.
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cleveland Municipal Court
Housing Division
Case Nos. 08 CRB 42924, 09 CRB 02474, 09 CRB 04252,
09 CRB 23359, 09 CRB 24969, 09 CRB 29344, 09 CRB 30178,
09 CRB 30563, 09 CRB 37904, 09 CRB 44442
BEFORE: Boyle, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: July 7, 2011
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ATTORNEYS:
Lillie & Holderman, Richard G. Lillie, and Gretchen A. Holderman, for appellant.
Robert J. Triozzi, Cleveland Director of Law, and Karyn J. Lynn, Assistant
Director of Law, for appellee.
MARY J. BOYLE, Presiding Judge.
{¶ 1} Defendant-appellant, Interstate Investment Group (“Interstate”), appeals its
conviction and sentence in connection with ten separate criminal cases filed in Cleveland
Municipal Housing Court, alleging building, housing, and health-code violations.
Interstate raises six assignments of error, challenging its purported no-contest plea, the
trial court’s finding of guilt, and the trial court’s imposition of a total fine of
$11,948,000. Because we find that the record is devoid of Interstate’s ever actually
changing its not-guilty plea and entering a no-contest plea, we vacate the conviction and
sentence and remand for further proceedings.
Procedural History and Facts
{¶ 2} Interstate is a private, for-profit corporation based in Gilbert, South
Carolina, that buys and sells real estate. Throughout 2008 and 2009, appellee, the city
of Cleveland, cited Interstate for multiple building- and housing-code violations,
including issuing condemnation notices, as a result of the deteriorating and hazardous
conditions of the properties owned by Interstate. Despite being served with notice of
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the code violations, Interstate failed to correct the violations. The city subsequently
filed 18 cases — three minor-misdemeanor tickets and 15 multiple-count complaints for
failure to correct the violations.
{¶ 3} According to the record, Interstate failed to appear in court after being
properly cited and served with summons of the complaints. The trial court ultimately
held a contempt hearing on Interstate’s repeated failure to appear and entered a finding
of contempt, resulting in per diem fines totaling $450,000. On November 16, 2009,
Interstate subsequently appeared, through its counsel, and entered not-guilty pleas on all
the cases. Following the not-guilty pleas, the court set the matter for a court-supervised
pretrial with the parties.
{¶ 4} Through pretrial negotiations, the city recommended that Interstate pay
$500 for each of the three minor-misdemeanor cases, and in exchange for a plea of no
contest to the other cases, the city would dismiss all duplicate cases and recommend a
total of $150,000 in fines but agree to a 90 percent suspension of the fines after Interstate
remedied the violations and fully reimbursed the city for the costs it incurred in
demolishing the condemned properties.
{¶ 5} The court held a change-of-plea hearing on March 18, 2010. At this
hearing, the court allowed Interstate’s manager, George Kastanes, to appear in court via
video conferencing. Interstate also provided the court with an affidavit from Kastanes,
authorizing its attorney, Edward Hayman, to withdraw any previous plea of not guilty
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and to enter a plea on Interstate’s behalf. At the hearing, the court addressed Kastanes
first, stating the following:
{¶ 6} “We have a case here in Cleveland and the authorization is fine, but if
there is a change from not guilty to no contest, we have to do what we call ‘Wanzo’
because it’s named after Mary Wanzo, the defendant. And Mr. Hayman, of course, is
familiar because he’s a long time practitioner here in court, but the only thing missing is
that you understand that the corporation, not you personally, but the corporation in the
criminal cases that are before us would be entering a plea of no contest, which is not an
admission of guilt, but an admission that the violations did exist; and the corporation
would be giving up its right to a jury trial; right against self-incrimination; right for
compulsory process and right to have the City prove their case beyond a reasonable
doubt; and that Mr. Hayman then will work on the case as outlined in your authorization.
{¶ 7} “We’ll hear from the prosecutor; hear her recommendation, and it’s my
intention today not to issue a sentence, but to do a presentence report and work on this
with Mr. Hayman and the prosecution in trying to come up with a holistic solution to the
issues that are raised. So I just need to — in that the corporation, both corporations
Paramount Land Holdings and Interstate know their rights and knowingly and willingly
give them up, and have authorized Mr. Hayman to act in their behalf today?”
{¶ 8} After Kastanes answered in the affirmative, the court then proceeded to
hear from the prosecutor as to the city’s stated recommendation. The city gave a
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recommendation consistent with what the parties had discussed in pretrial negotiations.
The city also moved to nolle those cases that were duplicates, which the trial court
granted and dismissed.
{¶ 9} On March 23, 2010, a judgment entry was journalized, reflecting that on
March 18, 2010, Interstate appeared through its counsel and withdrew its plea of not
guilty and entered a plea of no contest and that the court then entered a finding of guilt.
This judgment entry was not signed by the trial judge. Consequently, on June 18, 2010,
the trial court entered another judgment entry and order, journalizing its finding of guilt
against Interstate. On this same day, the trial court also issued a detailed sentencing
order, imposing the maximum penalty allowed under law for each of the offenses in the
ten cases, for a total of $11,948,000.
{¶ 10} Interstate now appeals, raising six assignments of error, which are set forth
in the attached appendix.
No Contest Plea
{¶ 11} In its first assignment of error, Interstate argues that the trial court failed to
ever properly take a no-contest plea, and therefore its conviction and sentence cannot
stand. We agree.
{¶ 12} Initially, we note that a trial court’s obligations under Crim.R. 11 in
accepting a plea depend upon the level of offense to which the defendant is pleading.
State v. Watkins, 99 Ohio St.3d 12, 2003-Ohio-2419, 788 N.E.2d 635, ¶ 25.
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{¶ 13} For a petty offense, such as the offenses at issue in this case and defined in
Crim.R. 2(D) as “a misdemeanor other than [a] serious offense,” the court is instructed
that it “may refuse to accept a plea of guilty or no contest, and shall not accept such pleas
without first informing the defendant of the effect of the plea of guilty, no contest, and
not guilty.” Crim.R. 11(E). To satisfy the requirement of informing a defendant of
the effect of a plea, a trial court must inform the defendant of the appropriate language
under Crim.R. 11(B). State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d
677. Thus, “for a no contest plea, a defendant must be informed that the plea of no
contest is not an admission of guilt but is an admission of the truth of the facts alleged in
the complaint, and that the plea or admission shall not be used against the defendant in
any subsequent civil or criminal proceeding.” Id. at ¶ 23, citing Traf.R. 10(B)(2) and
Crim.R. 11(B)(2). Conversely, the trial court need not inform the defendant of the
maximum sentence and the right to a jury trial to satisfy this requirement. Id. at ¶ 22.
{¶ 14} Our review of the record reveals that Interstate never actually entered a
plea of no contest at the change-of-plea hearing on March 18, 2010. Indeed, the city
concedes that neither Kastanes nor Interstate’s attorney ever actually entered a no-contest
plea. We find that this omission is fatal to any subsequent finding of guilt, which is
also conspicuously missing from the transcript of the proceedings held on March 18.1
We note that prior to entering a guilty finding, the trial court never discussed any of the
1
circumstances regarding the stated violations in the seven cases involving first-degree misdemeanors,
as required under R.C. 2937.07.
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Indeed, we find that the applicable plea requirements set forth in Crim.R. 11(E)
necessitate that the defendant first communicate a plea of no contest to the court. The
failure first to obtain such a plea precludes a trial court from subsequently making a
guilty finding and entering a conviction. See Cleveland v. McCoy, 8th Dist. No. 90763,
2009-Ohio-2247.
{¶ 15} Accordingly, based on the record before us, we sustain the first assignment
of error, vacate the convictions and sentence, and remand for further proceedings. Our
disposition of the first assignment of error renders the remaining five moot.
Judgment reversed
and cause remanded.
COONEY and GALLAGHER, JJ., concur.
_________________
APPENDIX
Assignment of Error I
{¶ 16} “The trial court committed reversible error in failing to have the
defendant-appellant enter a valid plea, in violation of the United States and Ohio
constitutions and Ohio Criminal Rule 11.”
Assignment of Error II
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{¶ 17} “Defendant-appellant did not knowingly and voluntarily waive its
constitutional rights with full knowledge of the maximum penalty included as required
by Ohio Criminal Rule 11(C)(2)(a).”
Assignment of Error III
{¶ 18} “The trial court failed to make a finding of guilt based on an explanation of
the circumstances of the offense in violation of Ohio Revised Code Section 2937.07.”
Assignment of Error IV
{¶ 19} “The trial court failed to advise the defendant-appellant that it had a right
to confront witnesses against it.”
Assignment of Error V
{¶ 20} “The total fine of $10,948,000.00 is excessive, unrelated, and grossly
disproportionate to the offenses to which defendant-appellant pled no contest, and
constitutes an excessive fine in violation of the defendant-appellant’s rights as
guaranteed by the Eighth Amendment to the United States Constitution and Section 9
Article 1 of the Ohio Constitution.”
Assignment of Error VI
{¶ 21} “The defendant-appellant’s numerous/multiple convictions for building
and housing code violations involved allied offenses of similar import, thus precluding
the trial court’s imposition of multiple sentences.”