Cleveland v. Meehan , 2014 Ohio 2265 ( 2014 )

[Cite as Cleveland v. Meehan, 2014-Ohio-2265.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100202
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
MICHAEL MEEHAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2012 CRB 032364
BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Jones, J.
RELEASED AND JOURNALIZED: May 29, 2014
FOR APPELLANT
Michael P. Meehan, pro se
3416 West 159th Street
Suite 100
Cleveland, Ohio 44111
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
BY: William H. Armstrong, Jr.
Assistant Director of Law
City of Cleveland
Room 106 - City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Michael Meehan appeals his sentence from the
Cleveland Municipal Court. For the following reasons, we affirm.
{¶2} Meehan was the owner of a home located on East 130th Street in Cleveland,
Ohio. On July 18, 2011, a notice of violation was issued for Meehan’s property that
cited 12 Cleveland ordinance violations and required Meehan to remedy the violations by
August 17, 2011. On August 22, 2012, a complaint was issued charging Meehan with
failing to comply with the prior notice, a misdemeanor of the first degree, as well as 12
ordinance violations due to Meehan’s failure to remedy the previously noticed violations.
{¶3} On January 24, 2013, Meehan entered a plea of no contest to the complaint.
Although Meehan represented to the trial court that he had remedied some of the
violations, he admitted that other defects remained. The trial court reiterated Meehan’s
duty to remedy the outstanding violations and Meehan stated that he believed he could
bring the property into compliance within 90 days. The city prosecutor indicated it
would be satisfied with Meehan’s proposed timetable and the trial court imposed a $4,000
fine with the caveat that if he brought the property into compliance by April 24, 2013, 90
percent of the fine would be suspended.1
The trial court’s original plea and sentencing entry failed to delineate the specific counts to
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which Meehan pleaded no contest and the associated sentences. We remanded for correction of this
matter which the trial court accomplished with a detailed sentencing grid explaining that Meehan
pleaded no contest to all 13 charges and detailing the specific fines associated therewith. For
purposes of this appeal and the arguments presented by Meehan, it is unnecessary to delve into the
individual counts and fines, the total of which amount to $4,000.
{¶4} The trial court held a hearing on the matter on June 13, 2013. Meehan
informed the court that he had sold the property in February but did not know if the
purchaser had followed through on remedying the outstanding violations. The city
requested a continuance to investigate the condition of the property which the court
allowed.
{¶5} On June 20, 2013, the city reported that the property had been boarded up
three times since it had been sold in February and that no permits had been pulled by the
new property owner. The court explained that although Meehan, by selling the property,
had relieved himself of any future responsibility for violations involving the property, he
remained responsible for the past violations. The court found that Meehan had failed to
remedy the outstanding violations as contemplated at sentencing either through his own
efforts or by selling the property to a “beneficial owner” that the court defined as “one
that would then take it and correct the violations and be a responsible owner.” As a
result of Meehan’s failure to meet the conditions, the court indicated its intent to execute
on the full $4,000 fine. At the request of Meehan, the trial court allowed his fine to be
converted to 400 hours of court work service.2
{¶6} Meehan appeals and his first assignment of error provides:
The trial court’s decision in imposing Appellant’s fine was improper,
arbitrary and capricious because it was based on a “beneficial owner”
The city sought to recover $1,249.50 in costs associated with work it had performed at the
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property during Meehan’s ownership and the trial court provided that it would reduce Meehan’s hours
of court work service in conjunction with any amount he paid upon the filing of a motion.
theory, put forth by the City-Appellee, which is neither defined nor
referenced in the City’s Housing Code Ordinances.
{¶7} Trial courts enjoy broad discretion in imposing sentences for
misdemeanors. State v. Hughley, 8th Dist. Cuyahoga Nos. 92588 and 93070,
2009-Ohio-5824, ¶ 7, citing Cleveland v. Jurco, 8th Dist. Cuyahoga No. 88702,
2007-Ohio-4305, ¶ 18. The trial court’s decision in this regard will not be disrupted
absent an abuse of discretion. Id., citing State v. Frazier, 158 Ohio App.3d 407,
2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15 (1st Dist.). To constitute an abuse of
discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶8} 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). A trial
court’s evaluation of mitigating factors, and the weight to be given thereto, falls within
the trial court’s sentencing discretion. Cleveland v. Franklin Inn, Ltd., 8th Dist.
Cuyahoga No. 84576, 2005-Ohio-508, ¶ 18, citing State v. Bey, 85 Ohio St.3d 487, 709
N.E.2d 484 (1999).
{¶9} Meehan takes issue with the trial court’s use of the term “beneficial owner,”
arguing that it is an undefined term in housing law and the trial court erred in imposing
the full fine after he sold the property as opposed to the suspended amount. We find no
merit to Meehan’s argument. The trial court fully explained to Meehan both at the plea
hearing and at the time of his sentencing that it was his duty to remedy the outstanding
property violations. Meehan himself suggested an acceptable time frame for remedying
the violations and the trial court offered to suspend 90 percent of Meehan’s fine if he
brought the property into compliance by April 24, 2013. Meehan failed to do so. The
trial court explained that whether Meehan accomplished the necessary repairs himself or
sold to a “beneficial owner” who made the repairs, the burden was his in order to receive
the suspended fine.3 Meehan’s suspended fine was specifically conditioned upon the
property being brought into compliance, not merely upon Meehan’s sale of the property.
Meehan offered no evidence at the third hearing to suggest that the property had been
brought into compliance by the new owner or to dispute the information offered by the
city.
{¶10} Although the sale foreclosed future liability for noncompliance from falling
upon Meehan, it did nothing to absolve him of the charges to which he pleaded no contest
Although uncommon, we note that this court has used the term “beneficial owner” in a
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similar manner. See, e.g., Cleveland v. Go Invest Wisely, L.L.C., 8th Dist. Cuyahoga Nos. 95172,
95173, 95174, 95175, 95176, and 95177, 2011-Ohio-3047, ¶ 17.
or for his failure to comply with the court’s fine suspension terms. Under these
circumstances, we cannot say that the trial judge abused his discretion in refusing to
impose the suspended fine and enforcing the full amount of the sentence.
{¶11} Meehan’s first assignment of error is overruled.
{¶12} Meehan’s second assignment of error states:
The trial court’s sentence, based on a phantom “beneficial owner” is against
the manifest weight of the evidence.
{¶13} We find no merit to this assignment of error. The proper standard of
review for a misdemeanor sentence is abuse of discretion, as discussed above, not
manifest weight. Furthermore, a defendant who pleads no contest cannot assign as error
that his conviction, based on the plea, was against the manifest weight of the evidence.
State v. Velez, 8th Dist. Cuyahoga No. 67595, 1995 Ohio App. LEXIS 1863 (May 4,
1995); State v. Hoopingarner, 5th Dist. Tuscarawas No. 10AP080030, 2011-Ohio-3040, ¶
8.
{¶14} Meehan’s second assignment of error is overruled.
{¶15} Meehan’s third assignment of error states:
The trial court’s bias in favor of the city and against Appellant is apparent
and requires reversal.
{¶16} This court has no jurisdiction to consider this assignment of error.
Pursuant to R.C. 2701.031(E), the presiding judge of the court of common pleas located
in the county in which the municipal court resides has the exclusive jurisdiction to
consider a complaint of judicial bias. Columbus Checkcashers, Inc. v. Guttermaster,
Inc., 10th Dist. Franklin Nos. 13AP-106 and 13AP-107, 2013-Ohio-5543, ¶ 33; State v.
Tripp, 3d Dist. Seneca No. 13-06-17, 2007-Ohio-1630, ¶ 19; State v. Hunter, 151 Ohio
App.3d 276, 2002-Ohio-7326, 783 N.E.2d 991, ¶ 17 (9th Dist.); Hardy v. Hardy, 8th Dist.
Cuyahoga No. 89905, 2008-Ohio-1925. The record reflects that Meehan has not filed an
affidavit of disqualification pursuant to R.C. 2701.031(B).
{¶17} Meehan’s third assignment of error is overruled.
{¶18} Meehan’s fourth assignment of error states:
The Court’s decision based on a phantom “beneficial owner” deprived
defendant of equal protection of state law guaranteed under the 14th
Amendment and due process under the 5th Amendment.
{¶19} In this assignment of error Meehan again challenges his sentence raising
issues previously addressed in the first assignment of error concerning the term
“beneficial owner” as well as advancing a nebulous equal protection argument against,
apparently, the general concept of judicial discretion in misdemeanor sentencing.
{¶20} Failure to raise at the trial court level the issue of the constitutionality of a
statute or its application, when the issue is apparent at the time of trial, constitutes a
waiver of such issue and a deviation from this state’s orderly procedure and, therefore,
need not be heard for the first time on appeal. Cleveland v. Taylor, 8th Dist. Cuyahoga
No. 99594, 2013-Ohio-4708, ¶ 7-8, citing State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d
277 (1986), syllabus. Although Meehan fails to explain what statute he believes violates
the Equal Protection Clause, we note that, in any event, he failed to raise an equal
protection argument below despite the trial court’s clear explanation of his remedial
duties at the first and second hearings.
{¶21} Because the record demonstrates that Meehan did not raise any
constitutional issues concerning his sentence and the remedial duties tied to the court’s
offer of a partial suspension of his fine, this court declines to address this assignment of
error.
{¶22} Meehan’s fourth assignment of error is overruled.
{¶23} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant 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 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.
EILEEN A. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, SR., J., CONCUR