Maples Hts. v. Mohammad

[Cite as Maples Hts. v. Mohammad, 2019-Ohio-4577.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF MAPLE HEIGHTS, :
Plaintiff-Appellee, :
No. 108060
v. :
RASHID MOHAMMAD, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: November 7, 2019
Criminal Appeal from the Garfield Heights Municipal Court
Case No. CRB 1802301
Appearances:
Consolo Law Firm Co., L.P.A., Frank Consolo, City of
Maple Heights Law Director, and Horace F. Consolo, for
appellee.
Rashid Mohammad, pro se.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Rashid Mohammad, pro se, appeals from his
conviction following a no contest plea for misdemeanor building code violations
under Chapter 1490 of the Maple Heights Codified Ordinances. Because we find the
record does not demonstrate that Mohammad was properly advised of his
Crim.R. 11 rights, we reverse the judgment and vacate the conviction.
Procedural History and Substantive Facts
On October 22, 2018, the city of Maple Heights filed a complaint
against Mohammad for several building code violations under Maple Heights
Codified Ordinances 1490 et seq. The complaint concerned violations on Eastwood
Avenue property, including inoperable plumbing; damaged flooring, walls, and
ceiling; inoperable windows; and garage and parking disrepairs that occurred on or
about September 14, 2017.
On December 17, 2018, the court held a hearing on the matter. At the
onset of the hearing, Mohammad indicated that he wished to plead no contest. At
the prosecutor’s request, an individual from the building department identified as
Ms. King read the 25 violations into the record. Thereafter, what transpired was a
somewhat perplexing hearing where multiple people, sometimes identified in the
transcript as “speaker,” presented information that was oftentimes noted on the
transcript as “unintelligible.” The individuals addressed previous cases as well as
current violations, resulting in the trial judge expressing confusion.
Nonetheless, what we have discerned from the transcript is that
Mohammad was the property manager at the time of the violations, not the owner.
His counsel stated that Mohammad “I guess * * * admits that there are, in fact, the
violations.”1 Counsel also advised the court that he learned from his client that
Mohammad obtained quotes to make the necessary repairs and had relayed this
information to the owner, but the owner “just didn’t want to pay.” According to
counsel, “there is money in escrow waiting, but the contractors want money
upfront,” and Mohammad asserted that he “can’t front the money [to a contractor]
for a property [he doesn’t] own.” When the court asked Mohammad why he did not
walk away from the job when the owner refused to make the repairs, Mohammad
advised the court that he did and the owner has hired a new property manager. A
speaker, presumably the prosecutor, asserted that Mohammad has claimed on more
than one occasion that he was no longer the property manager, that Mohammad
promised documentation regarding his status as property manager, and that
Mohammad “has refused to take responsibility for any of the conditions on the
property.”
At some point during the hearing, the owner of the property came
forward and identified himself. He acknowledged that the violations existed and
stated that he “take[s] full responsibility.” He also advised the court that (1) he had
hired a contractor, who would begin making the necessary repairs on December 20,
2018; and (2) Mohammad was no longer the property manager. Mohammad then
attempted to explain to the court that two of the violations were invalid, stating that
1Although not part of the record, we note that during the oral argument,
Mohammad advised the panel that his trial counsel was provided by the owner of the
property and Mohammad had not retained counsel himself.
he registered the rental property in accordance with the city ordinances and the
violation concerning the parking lot was improper because the parking lot is leased.
The court then immediately proceeded to sentencing, without finding
Mohammad guilty, and stated as follows:
Mr. Mohammad, this is what we’re going to do: Your fine is going to be $500
[and] costs. You have until January 28, 2019, to do all the repairs. If you are
not able to do it, he’d better get it done by January 28, because somebody is
going to jail. So it’s either going to be you, sir, or him [presumably the owner
of the property].
Mohammad now appeals.
No Contest Plea
In his sole assignment of error, Mohammad contends that the trial
court “erred in granting appellee’s demand for fixing building violation[s].”
Mohammad essentially disputes the facts supporting the offenses. Specifically, he
asserts that there are “made up lists” of violations that contain different dates and
are “very confusing”; 17 of the 25 violations had been repaired prior to the date of
the hearing; he is not the owner of the property; and the city was aware that
Mohammad was no longer “manager on record” for the property at issue. Plaintiff-
appellee, city of Maple Heights, contends that Mohammad’s appeal is without merit
because the appeal challenges the sufficiency of the facts of the underlying charge to
which Mohammad entered a plea of no contest.
Mohammad pleaded no contest to the failure to comply with
numerous building and house code violations, which are first-degree
misdemeanors, punishable by a maximum sentence of six months.
R.C. 2929.24(A)(1). Because the maximum confinement is six months, the failure
to comply is a petty offense. See Solon v. Bollin-Booth, 8th Dist. Cuyahoga
No. 97099, 2012-Ohio-815, ¶ 14, citing Crim.R. 2(C) and 2(D) (defining a petty
offense).
Crim.R. 11(E) governs pleas entered in petty offense cases, such as this
case. “In misdemeanor cases involving petty offenses[,] the court 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). Thus, a trial court must “advise the defendant, either orally or in
writing, of the effect of the specific plea being entered.” Cleveland v. Tittl, 8th Dist.
Cuyahoga No. 105193, 2017-Ohio-9156, ¶ 7, citing State v. Jones, 116 Ohio St. 3d 211,
2007-Ohio-6093, 877 N.E.2d 677, paragraph one of the syllabus and ¶ 23.
As stated in Crim.R. 11(B)(2), concerning the “effect of” a no contest
plea, “the plea of no contest is not an admission of defendant’s guilt, but is an
admission of the truth of the facts alleged in the indictment, information, or
complaint, and the plea or admission shall not be used against the defendant in any
subsequent civil or criminal proceeding.” The trial court must therefore advise an
offender, either orally or in writing, and prior to accepting the individual’s no contest
plea, of the language contained in Crim.R. 11(B)(2). Bollin-Booth at ¶ 17, citing
Jones at ¶ 23. And we look to the record to determine whether the trial court
complied with Crim.R. 11(B)(2). Tittl at ¶ 9.
Additionally, R.C. 2937.07 provides that when an accused pleads no
contest to a misdemeanor offense, the plea “shall constitute an admission of the
truth of the facts alleged in the complaint” and the judge or magistrate “may make a
finding of guilty or not guilty from the explanation of the circumstances of the
offense.” As the Supreme Court noted, “both Crim.R. 11 and the current version of
R.C. 2937.07 make clear, a plea of no contest is an admission by the defendant to
the facts alleged in the complaint. In the ordinary case — that is, when the complaint
properly alleges the elements of a crime — such an admission provides sufficient
evidence for a conviction.” Girard v. Giordano, 155 Ohio St. 3d 470,
2018-Ohio-5024, 122 N.E.3d 151, ¶ 17; Cleveland v. Collins, 8th Dist. Cuyahoga No.
107814, 2019-Ohio-3280, ¶ 10.
Here, defense counsel advised the court that the parties had reached
a resolution and the prosecutor advised the court that Mohammad will be entering
a plea. Thereafter, the following discourse transpired:
Court: A plea of no contest?
Counsel: Yes, your Honor.
Court: Okay. Mr. Mohammad, then the charge is a building
code violation. It carries a penalty of up to six months
in jail, up to $1,000 fine.
If you plead no contest, you’ll be convicted. I’ll
listen to what everyone has to say. Then you’ll be
sentenced, and your case will be over today.
If you disagree with that, we’ll set this for trial. And
Mr. — well, it is set for trial.
Counsel: It is set for trial, yes, so we’ll proceed.
Court: We’ll proceed to trial. So do you want to plea[d] no
contest, or got to trial?
Mohammad: No contest.
Court: Pardon?
Mohammad: (Unintelligible.)
Court: Well, but you’d have to agree that — are you — Mr.
Mohammad, do you believe that these building code
violations exist?
Mohammad: I’m sorry?
Court: Yes, that they’re there, that there are truly building
code violations?
Mohammad: Yes. (Unintelligible.)
Court: Okay. And they haven’t been repaired, so I’ll accept
that plea. I’m going to ask you to sign this form that
says that, and then I’m going to listen to everybody
here.
The record contains a “Change of Plea” form and a “Statement of
Rights.” The Change of Plea form, which includes a statement acknowledging that
the accused understands the constitutional rights he is waiving, as explained by the
court, and knowingly enters a plea, is signed by Mohammad and dated December 17,
2018, the date of the hearing. The Statement of Rights, however, which contains its
own signature line under the acknowledgment that the accused has read and
understands his rights and that the same were explained to him in open court, bears
no signature or date; rather, it is completely blank. This document contains the
pertinent Crim.R. 11(B)(2) language that “a plea of no contest is not an admission of
my guilt as charged, but is an admission of the truth of the facts alleged in the
complaint and that such plea cannot be used against me in any future civil or
criminal proceedings.”
We cannot presume that Mohammad saw, much less read, the
“Statement of Rights” or the Crim.R. 11(B)(2) language contained therein, especially
since the trial court referenced only one form in its request that Mohammad “sign
this form that says that,” and Mohammad in fact signed one form — the change of
plea. And although the court asks Mohammad, “Do you believe these building code
violations exist * * * that there are truly building code violations,” the court does not
explicitly advise Mohammad at the hearing prior to accepting his plea that his no
contest plea “shall constitute an admission of the truth of the facts alleged in the
complaint” or that his “plea or admission shall not be used against [him] in any
subsequent civil or criminal proceedings.”
Based on the foregoing record, we cannot find the trial court advised
Mohammad of the effect of his no contest plea under Crim.R. 11(B)(2). We therefore
vacate his conviction and sentence. Cleveland v. O’Donnell, 2018-Ohio-390, 106
N.E.3d 192, ¶ 12 (8th Dist.) (finding a trial court’s failure to make any mention of
the Crim.R. 11(B)(2) language regarding the effect of a no contest plea to a petty
misdemeanor offense is a complete failure to comply with Crim.R. 11(E), requiring
the plea to be vacated); see also Bollin-Booth, 8th Dist. Cuyahoga No. 97099, 2012-
Ohio-815 (finding that a trial court abuses its discretion and commits reversible
error in denying a defendant’s motion to withdraw his petty misdemeanor no
contest plea where he did not file a direct appeal, but the record of the plea hearing
shows that the defendant was not advised of the effect of his plea).
Judgment reversed and remanded for further proceedings consistent
with this opinion.
It is ordered that appellant recover of said appellee 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
Garfield Heights 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.
______________________________
MICHELLE J. SHEEHAN, JUDGE
PATRICIA ANN BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR