Lakewood v. Calanni

[Cite as Lakewood v. Calanni, 2013-Ohio-5590.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99966
CITY OF LAKEWOOD
PLAINTIFF-APPELLEE
vs.
CHARLES CALANNI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART;
REVERSED IN PART
Criminal Appeal from the
Lakewood Municipal Court
Case Nos. 2012 CRB 01849, 2012 CRB 01850, 2012 CRB 01851,
2012 CRB 01852, 2012 CRB 01853, 2012 CRB 01854, 2012 CRB 01855,
2012 CRB 01856, 2012 CRB 01857, 2012 CRB 01858, 2012 CRB 01859,
2012 CRB 01860, 2012 CRB 01861, 2012 CRB 01862, 2012 CRB 01863,
2012 CRB 01864, 2012 CRB 01865, 2012 CRB 01866, 2012 CRB 01867,
2012 CRB 01868, 2012 CRB 01869, 2012 CRB 01870,
2012 CRB 01871, 2012 CRB 01872, and 2012 CRB 01873
BEFORE: Blackmon, J., Boyle, P.J., and Jones, J.
RELEASED AND JOURNALIZED: December 19, 2013
-i-
ATTORNEY FOR APPELLANT
John B. Gibbons
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Pamela L. Roessner
Chief Prosecutor
City of Lakewood
12650 Detroit Avenue
Lakewood, Ohio 44107
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Charles Calanni (“Calanni”) appeals from the Lakewood
Municipal Court’s imposition of court costs and assigns the following two errors for our
review:
I. The trial court erred in the underlying case by assessing multiple court
cost amounts for each underlying conviction.
II. The trial court erred in the underlying case by seizing Charles Calanni’s
valid Ohio Driver’s license when the sole purpose of said seizure was to
compel the immediate payment of court costs.
{¶2} Having reviewed the record and pertinent law, we affirm the trial court’s
decision as to the imposition of court costs, but reverse the trial court’s ordering Calanni
to forfeit his driver’s license. The apposite facts follow.
{¶3} Calanni is the owner of Calanni Enterprises, Inc., which is a car repair shop
located on Madison Road in Lakewood, Ohio. Calanni was charged with 25 building
code violations pursuant to Lakewood Cod. Ord. 1306.99 that occurred over a five-month
period from May 9, 2012 to October 2, 2012. The charges arose from Calanni’s repeated
failure to comply with the Lakewood Zoning Code regarding the parking of vehicles at
his business. The zoning code that is the basis for the charges was unsuccessfully
challenged by Calanni in two prior cases that were affirmed by this court. Lakewood v.
Calanni, 8th Dist. Cuyahoga No. 96844, 2012-Ohio-699, and Lakewood v. Calanni, 8th
Dist. Cuyahoga No. 95610, 2011-Ohio-3465.
{¶4} As part of a plea bargain, Lakewood dismissed 15 of the charges, and
Calanni pled no contest to the remaining ten charges. Court costs were not assessed for
the dismissed charges, but Calanni was ordered to pay fifty dollars in fines (out of a
possible $1,000) for each of the ten charges to which he pled, along with court costs for
each violation. The court costs amounted to approximately $115 for each case. Because
of Calanni’s past refusal to pay the fines or court costs, the trial court held Calanni’s
driver’s license as bond to induce Calanni to pay.
{¶5} Calanni filed a motion to modify judgment in which he contested the
imposition of court costs for each of the ten charges he pled to and also contested the trial
court’s holding of his driver’s license as bond. In a four-page opinion, the trial court
denied Calanni’s motion.
Court Costs
{¶6} In his first assigned error, Calanni argues the trial court erred by assessing
court costs for each of the ten charges. Specifically, Calanni argues the charges were
part of a series of acts and should have been assigned one case number with one court
cost imposed. He also argues that all of the counts alleged the same conduct, thus
minimal costs were incurred because the trial court did not have to perform extensive
work on each violation.
{¶7} Calanni contends that the cases were consolidated under one case number,
however, the record does not show that this in fact occurred. Calanni filed a
consolidated motion to dismiss instead of filing 25 separate motions. However, this
appears to be because he did not want to file 25 separate motions to dismiss. Calanni
never requested, and the court never ordered, that the cases be consolidated.
{¶8} Due to the failure of Calanni to request a consolidation of the complaints
prior to being sentenced, we conclude the trial court did not err by refusing to consolidate
the cases after judgment. Calanni should have objected to the multiple cases prior to
entering his plea. It is only after the fact that Calanni sought to place the cases under one
case number. Crim.R. 12 and R.C. 2941.29, both require defects in the complaint or
indictment to be raised by motion before the commencement of trial or the objections are
waived. Calanni’s attempt to consolidate after the sentences were entered was too late to
raise an objection. State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d
270, ¶ 40. Thus, we can only reverse regarding this assigned error if there is plain error.
{¶9} We conclude plain error did not occur. Calanni pleaded guilty to violating
Lakewood Cod. Ord. 1306.99 in ten separate cases. Lakewood Cod. Ord. 1306.99
provides as follows:
Whoever refuses, neglects, or fails to comply with an order to stop work
issued under the provisions of this Code or other applicable Codes of the
City; or refuses, neglects, or fails to comply with a notice to repair,
rehabilitate, or demolish a building or other structure declared to be unsafe
under the provisions of this Code, or refuses, neglects, or fails to comply
with a notice requiring that abatement or removal of a violation or requiring
compliance with any provisions of this Code or other applicable Codes or
any rule or regulation hereunder within the time limit set forth in such
notice, or maintains a use or occupancy prohibited by this Code; shall be
guilty of a misdemeanor and upon conviction thereof shall be fined not less
than twenty-five dollars ($25.00) nor more than one-thousand dollars
($1,000) for a first offense, and for a second or subsequent offense shall be
guilty of a misdemeanor of the first degree. Each day such violation
occurs or continues shall constitute a separate offense. (Emphasis added.)
{¶10} Thus, pursuant to the language in the ordinance, each day that Calanni
refused to comply with the parking plan constituted a separate offense.
{¶11} R.C. 2947.23 creates a mandatory duty to impose court costs in all criminal
cases. Middleburg Hts. v. Quinones, 120 Ohio St.3d 534, 2008-Ohio-6811, 900 N.E.2d
1005, paragraph two of the syllabus. R.C. 2937.23(D)(1) defines the term “case” as:
“Case” means a prosecution of all of the charges that result from the same
act, transaction, or series of acts or transactions and that are given the same
case type designator and case number under Rule 43 of the Rules of
Superintendence for the Courts of Ohio or any successor to that rule.
{¶12} Sup.R. 43 provides:
Where as a result of the same act, transaction, or series of acts or
transactions, a defendant is charged with a felony or felonies and a
misdemeanor or misdemeanors, including traffic offenses, the defendant
shall be assigned separate case numbers, for the felony or felonies and one
for each other type of offense.
{¶13} Thus, where a defendant is charged with different level offenses arising out
of the same act, they each are assigned their own case number. If the offenses are all one
level and arise out of a same act or series of acts or transactions, they should be assigned
one number.
{¶14} In the instant case, each complaint cites to the same ordinance that was
violated. However each complaint alleges a different date of noncompliance over a
five-month period. The trial court found that these offenses did not arise out of a series
of acts or transactions, but were “separate, daily acts of intentional disregard by the
defendant over a span of many months.” Journal entry, May 30, 2013, page 2. We
agree. Due to the sporadic nature regarding when the citations were issued, it appears
each violation was an individual act. The cases that he pled to were committed weeks
and sometimes months apart. Although on appeal Calanni argues the parking violations
concerned the same cars, there is no evidence of this in the record.
{¶15} Calanni also argues that because the violations concerned the same conduct,
additional work was not necessary for all of the cases; therefore, no additional court costs
were incurred. However, as the trial court stated in its opinion:
The record shows, however, that each case was created based upon a
separate criminal complaint. Each complaint was separately served upon
the defendant. Each entry of appearance, motion, response brief and court
orders were separately entered on all twenty-five cases. Thus, considerable
work was required on each case by the clerk of court.
Journal entry, May 30, 2013, page 3.
{¶16} Thus, administrative work was necessary to maintain each file, increasing
the work load as a result.
{¶17} Accordingly, Calanni’s first assigned error is overruled.
Driver’s License as Bond
{¶18} In his second assigned error, Calanni argues that the trial court did not have
the authority to confiscate his driver’s license to force him to pay the fines and court
costs.
{¶19} The trial court confiscated Calanni’s driver’s license based on his past
behavior in prior cases where he refused to pay the fine or court costs. The trial court
informed Calanni that if he paid the fine and costs within two weeks, his license would be
returned to him. The trial court justified this action by relying on R.C. 2937.221,
2935.27, 4507.091, and 1901.44. The trial court’s reliance on these statutes is
misplaced.
{¶20} R.C. 2937.221 only applies when a defendant voluntarily gives the court his
or her license as bond. R.C. 2937.221 provides that a defendant “may post bond by
depositing the license with the arresting officer if the officer and person so choose, or
with the local court having jurisdiction if the court and person so choose.” Here, Calanni
was forced to hand over his license; therefore, R.C. 2937.221 does not apply.
{¶21} R.C. 2935.27 applies to situations where the defendant fails to appear or
“fails to comply with or satisfy any judgment of the court.” Therefore, the forfeiture of
the license can only occur after the defendant fails to comply with the court order. Here,
the trial court prematurely confiscated the license based on Calanni’s past behavior in
other cases. He had not failed to comply with the current court order at the time the
court confiscated the license.
{¶22} R.C. 4507.091 concerns advising the Registrar of the Bureau of Motor
Vehicles of an outstanding arrest warrant. There was no evidence that an outstanding
arrest warrant was at issue in the instant case.
{¶23} R.C. 1901.44, which was recently enacted in March 2013, allows the trial
court to block a license registration under the following circumstances:
(B) If a person is charged with an offense in municipal court and either fails
to appear in court at the required time and place to answer the charge or
pleads guilty to or is found guilty of the offense and fails within the time
allowed by the court to pay any fine or costs imposed by the court, unless
the court previously has given written notice to the person, the court shall
send the person a notice by ordinary mail at the person’s last known address
stating that there is a balance due, specifying the amount of the balance due,
and directing the person to contact the court clerk’s office within ten days
of the date of the notice. The notice shall include the sentence:
“WARNING: Failure to timely respond to this notice may result in the
blocking of your motor vehicle registration or transfer of registration!” To
avoid a block on the person’s motor vehicle registration or transfer of
registration, the person may enter into a written agreement with the court to
pay the balance due in installments or to perform community service in lieu
of payment. The agreement shall include the sentence: “WARNING:
Failure to comply with the payment schedule or to complete your
community service requirement may result in the blocking of your motor
vehicle registration or transfer of registration!”
{¶24} Thus, R.C. 1901.44 allows the court to block the defendant’s registration of
his or her vehicle, but only upon the defendant’s failure to appear or pay the fine or costs,
and only after given the requisite notice. Here, the trial court confiscated the license at
the same time that it entered the order. No notice was given. The statute also only
concerns the registration of the defendant’s vehicle, not the defendant’s driver’s license.
Finally, Calanni had not yet failed to pay; therefore, the trial court’s ordering the
forfeiture of Calanni’s license was premature.
{¶25} The City cites to Akron v. Wendell, 70 Ohio App.3d 35, 590 N.E.2d 380 (9th
Dist.1990), in support of its argument that the trial court properly confiscated the license.
However, in Wendell, the defendant paid the fine, and his license was returned to him.
Therefore, the court found the issue was moot. In the instant case, there is no indication
that the trial court returned Calanni’s license. In fact, in his appellate brief, Calanni
requests that this court order the return of his license.
{¶26} The City argues that Crim.R. 46 also gave the court the authority to
confiscate the license. However, Crim.R. 46 deals with bail. Bail is used to guarantee
the defendant’s appearance at court proceedings, not the payment of a fine or court
costs.
{¶27} Based on our reading of the above statutes and rules, the trial court erred by
ordering Calanni to forfeit his license. Accordingly, Calanni’s second assigned error is
sustained, and the trial court is ordered to return Calanni’s driver’s license.
{¶28} Judgment affirmed in part and reversed in part.
It is ordered that appellant and appellee equally share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to Lakewood 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.
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, SR., J., CONCUR