Cleveland v. Go Invest Wisely, L.L.C. , 2011 Ohio 3047 ( 2011 )

[Cite as Cleveland v. Go Invest Wisely, L.L.C., 2011-Ohio-3047.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 95172, 95173, 95174, 95175
95176, and 95177
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
GO INVEST WISELY, L.L.C.
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case Nos. 2009-CRB-007531, 2009-CRB-012839,
2009-CRB-006408, 2009-CRB-001719, 2009-CRB-023357,
and 2009-CRB-025957
BEFORE: Celebrezze, J., Blackmon, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: June 23, 2011
ATTORNEY FOR APPELLANT
James J. Costello
Powers Friedman Linn, P.L.L.
23240 Chagrin Boulevard
Suite 180
Cleveland, Ohio 44122
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
Katherine S. Zvomuya
Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, Go Invest Wisely, L.L.C. (“GIW”), appeals the finding
of the Cleveland Municipal Court Housing Division that GIW violated
conditions of probation and the imposition of a portion of fines that had
previously been suspended after GIW pled no contest to six complaints
charging various building and housing code violations. GIW now argues that
the trial court ignored the purposes and principles of misdemeanor
sentencing in imposing $65,000 in fines.
{¶ 2} GIW is a company that buys and sells real estate for investment
purposes. It purchased several properties in Cleveland, Ohio, including the
six properties involved in the instant appeal.1 City of Cleveland (the “City”)
inspectors found various housing and building code violations during
inspections of a number of GIW’s properties in 2009, and the City filed
complaints in the Cleveland Municipal Court Housing Division after GIW
failed to remedy the violations in a timely manner.
{¶ 3} GIW agreed to plead no contest on December 15, 2009 and was
sentenced by the trial court on December 31, 2009. The trial court imposed
fines as follows: $20,000 with $18,500 suspended in 2009-CRB-007531;
$20,000 with $19,000 suspended in 2009-CRB-006408 and a deposit of $5,000
to be placed with the court for anticipated demolition costs; $25,000 with
$23,500 suspended in 2009-CRB-001719; $20,000 with $19,000 suspended in
2009-CRB-012839; $20,000 with $19,000 suspended in 2009-CRB-023357;
and $20,000 with $18,500 suspended in 2009-CRB-025957. These fines
totaled $125,000, with all but $7,500 suspended. The trial court also placed
GIW on two years of active probation. GIW was required to file with the
trial court twice per month a list of the properties it owned in Cleveland and
These properties are: 721 East 159 Street; 12315 Ashbury Avenue; 4281 East 131 Street;
1 ht ts
4132 East 112 Street; 13309 Ferris Avenue; and 9410 Nelson Avenue.
ht
current photographs of the properties. 2 The trial court also advised GIW
that it was required to obtain permits to board and secure any vacant
properties and required GIW to submit those permits to the court.
{¶ 4} At a status conference on February 3, 2010, the trial court
ordered GIW to bring permits for each of the boarded properties to the
February 22, 2010 status conference. GIW failed to obtain those permits in a
timely fashion. GIW also failed to remedy various safety conditions the trial
court felt were particularly hazardous, including removal of a refrigerator
that was left in the side yard at 1258 East 146th Street. The probation officer
supervising GIW submitted to the court a notice of probation violation on
March 24, 2010.
{¶ 5} At an April 6, 2010 probation violation hearing, the trial court
found that GIW had violated several conditions of probation. GIW had failed
to submit various lists of properties, even after the trial court granted it
extensions of time, and had failed to provide a sufficient number of
photographs or, in some cases, any photographs of the subject premises.
The trial court’s order required GIW to submit “not later than 3:00 p.m. on the first and third
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Friday of each month * * * a list of all properties for which it is the actual or record owner, containing
the (a) address; (b) permanent parcel number; (c) whether the property is currently under purchase
agreement; (d) whether the property is subject to a land contract; (e) the name and address of the
purchaser under the purchase agreement or land contract; (f) whether the land contract has been
recorded and, if so, the date of recordation; (g) whether there is an open notice of violation on the
property[; and] * * * a sufficient number of clearly labeled photographs of each property on the
submitted list(s) from which the Court can view all four sides of the primary structure, as well as any
GIW also failed to paint the boards it used to secure the doors and windows of
vacant properties a neutral color in compliance with building and housing
code requirements.
{¶ 6} At the April 20, 2010 sentencing hearing, the trial court found
GIW in violation of the terms of probation and ordered into execution $65,000
of the fines that the trial court had previously suspended. 3 GIW timely
appealed and requested a stay of the sentence pending appeal.
Law and Analysis
{¶ 7} GIW presents one assignment of error, claiming that “[t]he trial
court erred in sentencing [it] to fines that were excessive, disproportionate,
and contrary to law.” GIW limits its argument on appeal to the proper
application of R.C. 2929.22 and the trial court’s failure to consider the factors
therein. GIW does not argue that the fines are excessive in violation of Ohio
and federal constitutions, or that the fines imposed are outside the bounds
that may be imposed for a misdemeanor under Cleveland ordinance or Ohio
law. Therefore, we will limit our review accordingly. GIW argues
exclusively that the trial court abused its discretion when it ordered fines into
appurtenant structures.”
These fines consisted of $8,500 in 2009-CRB-007531; $11,000 in 2009-CRB-001719;
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$9,000 in 2009-CRB-012839; $9,000 in 2009-CRB-023357; $8,500 in 2009-CRB-025957; and
$19,000 in 2009-CRB-006408.
execution based on an improper reason, in contravention of the purposes of
misdemeanor sentencing set forth in R.C. 2929.22.
Misdemeanor Sentencing
{¶ 8} Much like the factors applicable to felony sentencing embodied in
R.C. 2929.12, a trial court must consider the factors set forth in R.C. 2929.22
when imposing a misdemeanor sentence. Cleveland v. Franklin, Ltd.,
Cuyahoga App. No. 84576, 2005-Ohio-508, ¶15. “The overriding purposes of
misdemeanor sentencing are to punish the offender and to protect the public
from future crime by the offender and others. R.C. 2929.21(A). In order to
achieve these purposes, the sentencing court shall consider the impact of the
offense on the victim, the need to change the offender’s behavior, the need to
rehabilitate the offender, and the desire to make restitution to the victim
and/or the public.” State v. Downie, 183 Ohio App.3d 665, 2009-Ohio-4643,
918 N.E.2d 218, ¶45, citing In re Slusser, 140 Ohio App.3d 480, 487,
2000-Ohio-1734, 748 N.E.2d 105.
{¶ 9} Pertinent factors include: (a) the nature of the offense, (b)
whether there is a history of persistent criminal activity and a substantial
risk that the offender will commit another offense; (c) whether there is a
pattern of repetitive, compulsive, or aggressive behavior with heedless
indifference to the consequences; and (d) whether the offender is likely to
commit future crimes in general. R.C. 2929.22(B)(1).
{¶ 10} The trial court has broad discretion in crafting a sentence to
achieve these purposes. As such, this court is limited to reviewing whether
the trial court abused that discretion. State v. Frazier, 158 Ohio App.3d 407,
2004-Ohio-4506, 815 N.E.2d 1155, ¶15. “When the court’s sentence is within
the statutory limit, a reviewing court will presume that the trial judge
followed the standards in R.C. 2929.22, absent a showing to the contrary.”
Downie at ¶48.
{¶ 11} GIW claims the sole reason the trial court ordered into execution
suspended fines was the lawful sale of some of the subject properties.
However, the record discloses that GIW violated the terms of its probation in
a number of ways.
{¶ 12} In its April 20, 2010 judgment entry, the trial court stated, “[a]t
the April 6, 2010 hearing, Defendant acknowledged that it violated probation
by failing to comply with the March 8, 2010 order. Defendant attempted to
obtain the required permits on the morning of March 23, 2010, while the
status hearing was in progress. As a result, it was unable to produce the
permits at the status hearing that day. Defendant also acknowledged that it
did not address the three issues at the four specified properties.”
{¶ 13} The trial court then set forth the reason for ordering into
execution a portion of the previously suspended fines, stating:
{¶ 14} “The Court in these cases previously sentenced defendant to fines
totaling $125,000.00, suspending all but $7500.00 of the fines, as
recommended by the City. Defendant paid the portion of the fine executed in
each case, albeit after an extension of the time to pay.
{¶ 15} “The Court ordered an additional sanction in Case No. 2009 CRB
006408, regarding property located at 12315 Ashbury. The Ashbury
property is one in a series of connected row houses in serious disrepair.
Defendant owns one, but not all, of the houses. The City was in the process,
as Defendant was aware, of completing condemnations or securing permission
to raze the row of houses, due to their condition. * * * Then, aware of the
demolition plan, defendant sold the property in a package with others, setting
back the City’s attempt to abate this nuisance through demolition, and
ensuring that a health and safety hazard remains in the community for an
extended period of time, while the new owner is located, and, if necessary,
cited.
{¶ 16} “Defendant acknowledges that it has sold at least sixty of its
Cleveland properties since the imposition of probation, not to individual
owner occupants, but to out of state business entities, in the form of bulk
sales. The sale of the properties did not violate the express terms of the
probation order.
{¶ 17} “The probation order required defendant to submit property
photographs and lists to the Court, beginning December 2009. Defendant
immediately sought additional time to submit photographs and lists, then
followed that request with the submission of incomplete and mislabeled
photographs. While defendant was maintaining to the Court that the
requirement that it view and photograph its properties was ‘unduly
burdensome,’ it was, at the same time, constructing deals to sell its Cleveland
properties to other bulk property dealers. There is nothing in the record to
indicate that defendant attempted to verify that these purchasers would
become beneficial owners. There is no indication as of yet that they have.
Defendant now represents to the Court that it owns two Cleveland properties.
{¶ 18} “Defendant has not submitted to the Court any evidence that it
has made repairs to any Cleveland property it owns.”
{¶ 19} In crafting GIW’s sentence, the trial court set forth a long history
of noncompliance with Cleveland’s building and housing codes and the terms
and conditions of probation. GIW admitted to violating probation. The trial
court found that the probation violations illustrated a defiance to remedy
building and housing code violations, including such public hazards as a
refrigerator with its doors attached abandoned in the yard of one of the
properties. The trial court noted the safety hazard this constituted to
children in the neighborhood and found that GIW had done nothing to
remedy the various code violations, but instead, attempted to delay the
proceedings.
{¶ 20} One of the primary goals in cases involving building and housing
code violations is correction of the violations to bring the property into
compliance with the codes. Lakewood v. Krebs, 150 Ohio Misc.2d 1,
2008-Ohio-7083, 901 N.E.2d 885, ¶19. The fact that GIW sold the Ashbury
property when it knew it was to be razed further illustrates GIW’s contempt
for the purpose of the Cleveland housing code, and the frustration of that
purpose is a proper consideration for the trial court under R.C.
2929.22(B)(1)(c).
{¶ 21} More importantly, GIW admittedly failed to remedy any code
violations and at various times violated almost every term of its probation.
The court ordered a portion of the suspended fines into execution for these
reasons. The trial court did not abuse its discretion in so ordering. GIW’s
assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA A. BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR