Cleveland v. Kushlak

[Cite as Cleveland v. Kushlak, 2022-Ohio-4402.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 111254
v. :
ANTHONY KUSHLAK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: December 8, 2022
Criminal Appeal from the Cleveland Municipal Court
Housing Division
Case No. 2020-CRB-007383
Appearances:
Mark Griffin, Cleveland Director of Law, and Nathaniel P.
Hall, Assistant Director of Law, for appellee.
Michela Huth, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Anthony Kushlak (“Kushlak”), appeals a
January 20, 2022 order of the Cleveland Municipal Court, Housing Division
(“Housing Court”), modifying his community control sanctions. For the following
reasons, we vacate the judgment and remand for further proceedings.
I. Procedural History
On July 21, 2020, the city of Cleveland (“city”) filed a five-count
complaint, in Cleveland M.C. No. 2020-CRB-007383, alleging Kushlak violated
Cleveland Codified Ordinances (“C.C.O.”) 203.03 by failing to comply with an order
of the Cleveland Department of Public Health to clean up trash littering the ground
around the exterior of his house, keep sufficient trash containers to dispose of it, and
abate the conditions that attract rodents and other vermin to his property.1 Each
count of the complaint corresponded to a day that Kushlak was out of compliance
with the order.2
On May 10, 2021, Kushlak pled no contest to, and the municipal court
found him guilty of, all five counts and ordered a presentence-investigation report.
On June 28, 2021, the municipal court sentenced Kushlak to three-year community
control sanctions on each count, to be served concurrently with community control
sanctions imposed on Count 1. The court issued a handwritten judgment entry the
same day and a typewritten judgment entry the following day. In the typewritten
judgment entry dated June 29, 2021, but journalized more than a week later on July
1The city subsequently filed four more cases (Cleveland M.C. Nos. 2020-CRB-
013409, 2020-CRB-013846, 2021-CRB-003173, 2021-CRB-003172) that included eleven
additional counts, but these counts were dismissed.
2 C.C.O. 201.99 provides that the first violation of any section of the Health Code,
including a violation of C.C.O. 203.03, is a minor misdemeanor, and any subsequent
violation is a first-degree misdemeanor.
8, 2021, the court identified Kushlak’s case as a “hoarding case” and imposed the
following conditions:
(a) On or before Thursday, July 1, 2021, [Kushlak] must remove the
trash from the driveway, place the trash in the trash bins[,] and
move the trash bins onto the front lawn to be picked up by the City
of Cleveland.
(b) The Cleveland Animal Protective League is ordered to remove
animals located at [Kushlak’s residence] on or before Friday, July
30, 2021.
(c) [Kushlak] must grant the Cleveland Animal Protective League with
access to the property on or before Friday, July 30, 2021.
(d) Department of Health Inspector Alan Mancuso and Department of
Building and Housing Inspector Michael Shockley are ordered to
conduct an inspection of the property * * * on or before July 28,
2021.
(e) [Kushlak] has 30 days to get things in order to begin cleaning up.
[Kushlak] must grant Inspectors Mancuso and Shockley access to
the property for the completion of their inspections. The
inspections should be done no sooner than AND no later than July
28, 2021.
(f) [Kushlak] must coordinate with Community Work Service to clean
the property[,] including the garage[,] of all junk and debris on or
before August 30, 2021.
(g) [Kushlak] must continue to coordinate and cooperate with the
Benjamin Rose Institute on Aging.
(h) The Benjamin Rose Institute on Aging is required to provide the
Court with a report on [Kushlak’s] progress at the next hearing on
September 16, 2021[,] at 3:00 p.m.
(i) [Kushlak] must appear in court for the next hearing on September
16, 2021[,] at 3:00 p.m.
(Emphasis sic.) (Judgment Entry, July 8, 2021.)3
The court included among the sanctions for any violation of these
conditions “a definite jail term authorized for the original offense” and “community
control up to five years in total.” The court identified the original offense — a
violation of C.C.O. 203.03 — as a first-degree misdemeanor, punishable by “a jail
term of up to 18 months” and “five years of community control.”
On July 13, 2021, the city filed an unopposed motion requesting
modification and clarification of the July 8, 2021 Judgment Entry.4 The city argued
that the entry misidentified Kushlak’s initial violation (Count 1) as a first-degree
misdemeanor and imposed three-year community control sanctions on that count
even though the relevant sentencing ordinance, C.C.O. 201.99, provides that a first
offense is a minor misdemeanor and any subsequent offense is a first-degree
misdemeanor. The city therefore requested that Count 1 be amended to reflect that
it was a minor misdemeanor and that Kushlak’s sentence be imposed on the
remaining counts. The city also argued that the court improperly imposed a
condition of Kushlak’s community control sanctions on Department of Health
Inspector Alan Mancuso (“Inspector Mancuso”) and Department of Building and
Housing Inspector Michael Shockley (“Inspector Shockley”) in paragraphs (d) and
(e) of the entry and requested that these conditions be amended to remove the
3 The docket entry does not include the hearing date and time in paragraph (h) or
the entirety of paragraph (g).
4 The motion was docketed the next day, July 14, 2021.
sanctions from both inspectors. The city noted that the entry also improperly
imposed conditions on the Cleveland Animal Protective League (“APL”) and the
Benjamin Rose Institute on Aging (“Benjamin Rose”) in paragraphs (b) and (h), but
recognizing that they were not parties to the matter and not represented by the city,
the city had no authority to object on their behalf. The city further noted that
Kushlak was already under community control sanctions with the Cleveland
Municipal Court, General Division, which had issued an order permitting Kushlak
to keep eight cats and two dogs on his property, and the Housing Court had no
authority to amend this order as it had done in paragraph (b) of the entry. Finally,
the city requested that the court clarify paragraph (e) of the entry to specify the
nature, extent, and duration of the inspection.
On July 20, 2021, the court granted the city’s unopposed motion and
issued an amended judgment entry, journalized July 22, 2021, identifying Kushlak’s
first offense as a minor misdemeanor; imposing three-year community control
sanctions on the subsequent counts, to be served concurrently with each other; and
modifying the additional conditions of Kushlak’s community control as follows:
(a) On or before Thursday, July 1, 2021, [Kushlak] must remove the
trash from the driveway, place the trash in the trash bins[,] and
move the trash bins onto the front lawn to be picked up by the City
of Cleveland.
(b) [Kushlak] must permit Department of Public Health Inspector and
Department of Building and Housing Inspector access to the
property so that they can conduct an inspection of the property * * *
on or before August 6, 2021.
(c) [Kushlak] is ordered to get things in order and clean up the property
so that it is ready for the inspection on August 6, 2021.
(d) The Cleveland Animal Protective League inspection of the property
should be conducted after the Department of Building and Housing
Inspector has conducted an interior inspection of the property.
(e) [Kushlak] must coordinate with Community Work Service to clean
the property[,] including the garage[,] of all junk and debris on or
before August 30, 2021.
(f) [Kushlak] must continue to coordinate and cooperate with the
Benjamin Rose Institute on Aging.
(g) The Benjamin Rose Institute on Aging is required to provide the
Court with a report on [Kushlak’s] progress at the next hearing on
September 16, 2021[,] at 3:00 p.m.
(h) [Kushlak] must appear in court for the next hearing on September
16, 2021[,] at 3:00 p.m.
(Emphasis sic.) (Amended Judgment Entry, July 22, 2021.)5
The status hearing scheduled for September 16, 2021, in the amended
judgment entry was continued to September 20, 2021. At this hearing, the
municipal court reviewed a community control status report written by Deputy
Chief Housing Court Specialist Darlene English (“Deputy Chief English”), which
stated that Kushlak had moved some of the trash to a neighbor’s lawn for pick up
but had not cleaned up the exterior of his property, discontinued working with a
Benjamin Rose social worker, and started treatment at the U.S. Department of
Veteran Affairs (“VA”). The court also heard testimony from Inspectors Mancuso
and Shockley, who testified that Kushlak had not complied with the court’s
inspection orders. The court found that Kushlak had violated conditions of his
community control sanctions, sentenced him to 15 days in jail, and ordered him to
5 Paragraphs (g) and (h) are missing from the docket entry.
undergo a psychological evaluation, issuing a handwritten judgment entry
journalized the same day, September 20, 2021, that included the court’s findings
and sentence.
On September 24, 2021, the court issued a typewritten judgment
entry journalized the following day that included a section titled “Terms of
Community Control Modified.” The court modified the terms of Kushlak’s
community control sanctions as follows:
[Kushlak] is sentenced to fifteen (15) days in jail for failing to comply
with any of the Court Orders issued by this Court on July 22, 2021.
While incarcerated, [Kushlak] must complete a psychological
evaluation prior to his release from jail. The results of the psychological
evaluation must be made available to Deputy Chief Specialist English.
The terms of community control [are] active and [are] set to expire on
May 17, 2023 [sic].
[Kushlak] is informed that [the general community control conditions
provided by R.C. 2929.25(C)(2) and Loc.R. 2.18 of the Cleveland
Municipal Court, Housing Division, still apply.]
As additional conditions of community control, the Court orders the
following:
(a) Pursuant to the Order of July 22, 2021, [Kushlak] must remove the
trash from the driveway, place the trash in the trash bins[,] and
move the trash bins onto the front lawn to be picked up by the City
of Cleveland.
(b) Pursuant to the Order of July 22, 2021, the Department of Public
Health Inspector Alan Mancuso is permitted to conduct an exterior
inspection of the property[.]
(c) Pursuant to the Order of July 22, 2021, the Department of Building
and Housing Inspector Michael Shockley is permitted to conduct an
interior inspection of the property[.]
(d) Pursuant to the Order of July 22, 2021, [Kushlak] is ordered to allow
Community Work Service to clean the property[.]
(e) Pursuant to the Order of July 22, 2021, [Kushlak] must continue to
coordinate and cooperate with his mental health provider which is
currently the United States Department of Veteran Affairs.
(f) [Kushlak] must appear in court for the next hearing on October 25,
2021[,] at 1:00 p.m.
(Emphasis sic.) (Judgment Entry, Sept. 25, 2021.) The same day the court issued
its judgment entry, Kushlak filed a motion to mitigate his jail sentence due to health
concerns he was experiencing after serving several days in jail. The court did not
rule on the motion until after Kushlak had served the sentence, however, stating that
the motion was filed on September 24 but not journalized until October 25, 2021.
The next month, following an October 25, 2021 status hearing, the
court issued another entry signed the same day but journalized two days later, again
modifying the terms and conditions of Kushlak’s community control:
The terms of community control [are] active and [are] set to expire on
May 17, 2023 [sic].
[And as] additional conditions of community control, the Court orders
the following:
(a) [Kushlak] is ordered to permit the Department of Public Health
Inspector Alan Mancuso to conduct an exterior inspection of the
property * * * on November 5, 2021[,] at 9:00 AM.
(b) [Kushlak] is ordered to permit the Department of Public Health
Inspector Alan Mancuso to conduct an exterior inspection of the
garage * * * on November 5, 2021[,] at 9:00 AM.
(c) [Kushlak] is ordered to permit the Department of Building and
Housing Inspector Michael Shockley to conduct an interior
inspection of the property * * * on November 5, 2021[,] at 9:00 AM.
(d) [Kushlak’s] Attorney, Tina Tricarichi[,] must be present on the
property with [Kushlak] for the inspections that are to be completed
on November 5, 2021[,] at 9:00 AM.
(e) [Kushlak] is ordered to permit representatives from Councilman
[Anthony] Brancatelli’s Office and Deputy Chief Specialist English
to assist him with removing the branches from his backyard during
the week of October 25, 2021.
(f) [Kushlak] is ordered to remove all trash and open containers from
the property[.]
(g) [Kushlak] is ordered not feed any outside animals.
(h) [Kushlak] is ordered to continue to coordinate and cooperate with
his mental health provider[,] which is currently the United States
Department of Veteran Affairs.
(i) All previous orders issued by this Court remain in full force and
effect.
(j) [Kushlak] must appear in court for the next hearing on November
8, 2021[,] at 1:30 p.m.
(Emphasis sic.) (Judgment Entry, Oct. 27, 2021.)
Two weeks later, the court issued an “extended entry” dated
November 5, 2021, and journalized the same day, modifying the entry issued on
October 27, 2021. The November 5 entry amended the term of Kushlak’s
community control appearing in earlier entries to reflect a June 28, 2024 expiration
date and modified the conditions of his community control to include an interior
inspection of the garage scheduled for November 8, 2021, at 9:00 a.m. The entry
also ordered Kushlak to appear at the next status hearing scheduled at 1:30 p.m., the
same day as the inspection. The court issued the November 5 entry without a
hearing.
On November 8, 2021, Kushlak’s attorney filed a written objection to
the November 5 entry and requested a hearing. Kushlak argued that the court
modified the October 27, 2021 entry without a hearing and notified Kushlak less
than a day before Inspector Mancuso was scheduled to inspect the interior of
Kushlak’s garage. Kushlak requested that the order be held in abeyance until a
hearing could be held on the modified condition. The court did not rule on Kushlak’s
objection. In addition, on November 8, 2021, the court issued a nunc pro tunc order
journalized more than a month later on December 15, 2021, revising the July 8, 2021
entry to reflect the dates of Kushlak’s offenses from August 26-30, 2019, to October
26-30, 2019.
On November 9, 2021, the court issued another entry, journalized the
following day, again modifying the conditions of Kushlak’s community control:
(a) [Kushlak] is ordered to arrange an intake appointment with
Benjamin Rose Institute on Aging to obtain treatment for hoarding
and work with [his] doctors at the Department of Veteran Affairs.
(b) [Kushlak] is given one (1) week to remove and discard [all] of the
perishable and nonperishable food and beverage items from the
interior of the garage[.]
(c) [Kushlak] is ordered to clean and remove items from the interior of
the house and garage * * * with the assistance of the Court
Community Service. [Kushlak is to] make significant improvement
with the cleaning and removing of property prior to the next hearing
date of December 13, 2021.
(d) All previous orders issued by this Court remain in full force and
effect.
(e) [Kushlak] must appear in-person at court for the next hearing on
December 13, 2021[,] at 1:30 p.m.
(Emphasis sic.) (Judgment Entry, Nov. 10, 2021.)
On December 13, 2021, the court held another status hearing and
based on a written report and testimony, issued another entry dated December 28,
2021, and journalized January 8, 2022, that included the following community
control conditions:
[Kushlak] is ordered to permit Court Community Service onto the
property so that it can clean the property[.]
[Kushlak] is ordered to clean and remove items from the interior of the
house and garage * * * with the assistance of Court Community Service.
[Kushlak] is ordered to permit the Department of Building and
Housing Inspector Michael Shockley to inspect the interior of the
property[.]
[Kushlak] is ordered to permit the Department of Public Health
Inspector Alan Mancuso to inspect the exterior of the property[.]
[Kushlak] is ordered to make up his missed December doctor’s
appointment with Dr. Biggie and continue to meet Dr. Biggie for his
regularly scheduled doctor appointments.
Deputy Chief Housing Specialist English is ordered to contact [the]
Benjamin Rose Institute on Aging to see if [Kushlak] can begin services
with them again.
[Kushlak] is ordered to refra[in] from feeding the outside animals.
All previous orders issued by this Court remain in full force and effect.
[Kushlak] must appear in-person at court for the next hearing on
January 10, 2022[,] at 3:00 p.m.
(Emphasis sic.) (Judgment Entry, Jan. 8, 2022.)
On January 10, 2022, the court held a status hearing at which
Kushlak, his attorney, the city prosecutor, Inspectors Shockley and Mancuso, and
Chief Housing Court Specialist Belinda Gest (“Chief Gest”) appeared. Chief Gest
appeared in place of Deputy Chief English and testified that she had learned from
Deputy Chief English that the interior of the property was never inspected and
learned from Kushlak that he made progress on cleaning out the interior of his
garage. (Status Hearing, Jan. 10, 2022, tr. 3.) Kushlak testified that he discarded
some of the perishables from the interior of his garage. (Status Hearing, Jan. 10,
2022, tr. 15.)
Inspectors Mancuso and Shockley testified that they arrived to
inspect the property earlier that morning but were unable to reach Kushlak to take
pictures of the house and garage interiors. (Status Hearing, Jan. 10, 2022, tr. 8-9).
Inspector Mancuso testified that there were still items littering the exterior of the
property, behind the house and alongside the garage and garbage cans. (Status
Hearing, Jan. 10, 2022, tr. 9.) Kushlak testified that he was not home earlier that
day because he had to appear in the Cuyahoga County Court of Common Pleas for a
different matter. (Status Hearing, Jan. 10, 2022, tr. 10.) The court stated that it had
ordered the inspection to be completed in mid-December and Kushlak had not
complied. (Status Hearing, Jan. 10, 2022, tr. 10). The court ordered Kushlak to
permit Chief Gest and Inspectors Mancuso and Shockley to inspect and photograph
the exterior and interior of the house and garage on January 13, 2022, at 9:30 a.m.,
and advised Kushlak that he would be in contempt and that he would “serve time” if
he did not cooperate during the inspection. (Status Hearing, Jan. 10, 2022, tr. 18.)
On January 13, 2022, the court issued a judgment entry journalized
the following week on January 20, 2022, in which it again modified the conditions
of Kushlak’s community control as follows:
(a) [Kushlak] is ordered to permit Court Community Service onto the
property so that it can clean the property[.]
(b) [Kushlak] is ordered [to] coordinate with Court Community
Services to assi[s]t them with cleaning and removing items from the
house and garage[.]
(c) [Kushlak] is ordered to coordinate with his Councilwoman Rebecca
Maurer to obtain a garbage dumpster to remove all trash from the
property[.]
(d) [Kushlak] is ordered to p[er]mit the Department of Building and
Housing Inspector Michael Shockley, Department of Public Health
Inspector Alan Mancuso[,] and Chief Housing Specialist Belinda
Gest access to the property * * * for an inspection of the exterior and
interior of the property on January 13, 2022[,] at 9:30 AM.
(e) [Kushlak] is ordered to permit the Department of Building and
Housing Inspector Michael Shockley and Department of Public
Health Inspector Alan Mancuso to inspect the exterior and interior
of the garage[.]
(f) [Kushlak] is ordered to clean the laundry detergent boxes, all trash
and debris from the exterior of the property[.] [Kushlak] is ordered
to ensure that the property remains maintained, cleaned[,] and free
of all hazards.
(g) [Kushlak] is ordered to contact Dr. Biggie from the Veteran Affairs
Hospital and must remain in regular consistent contact with his
doctor for his mental health treatment.
(h) All previous orders issued by this court remain in full force and
effect.
(i) [Kushlak] must appear in-person at court for the next hearing on
January 24, 2022[,] at 3:30 PM.
(Judgment Entry, Jan. 20, 2022.)
The next status hearing was held on January 24, 2022, at which
Kushlak, his attorney, the city prosecutor, Deputy Chief English, and Inspectors
Mancuso and Shockley appeared. Deputy Chief English testified that Kushlak
permitted Inspectors Mancuso and Shockley to inspect and photograph the
property’s exterior and the garage and house interiors on January 13, 2022, but
Kushlak had not removed all perishables from the garage interior because it was a
large job, he needed assistance, and the parties were coordinating with the Old
Brooklyn CDC to obtain a dumpster and with Court Community Service to assist in
the cleanup. (Status Hearing, Jan. 24, 2022, tr. 3-4.)
Kushlak asked whether he would be reimbursed if any valuables were
discarded during the cleanup. (Status Hearing, Jan. 24, 2022, tr. 5.) The court
replied that Kushlak had already been advised to remove any valuables and return
them once the property was cleaned. (Status Hearing, Jan. 24, 2022, tr. 5.)
Inspector Shockley testified that he had inspected and photographed the parts of the
interior that he could reach but could not reach the mechanicals or other rooms
because they were impassable. (Status Hearing, Jan. 24, 2022, tr. 11-12.) He noted
the presence of insects near, and a foul odor emanating from, the bathroom but
could not locate its source because the bathroom was blocked. (Status Hearing,
Jan. 24, 2022, tr. 11.) Inspector Mancuso testified that he had inspected and
photographed the property’s exterior and garage interior and noted that the exterior
was still littered with debris; the garage interior was full of items and infested with
rodents; and Kushlak had not disposed of any garbage bags stored in and alongside
his trash cans, even though trash collection was scheduled that day. (Status
Hearing, Jan. 24, 2022, tr. 13-15.)
The court asked Kushlak’s attorney to address Kushlak’s repeated
failure to comply with orders to clean up his property. Kushlak’s attorney argued
that Kushlak’s noncompliance resulted from his mental illness and jailing him
would not resolve the issue. (Status Hearing, Jan. 24, 2022, tr. 16.) The court then
stated that
[a]s soon as we line this [dumpster] up, as soon as we line court
community workers up, we’re getting movement to clean this property
one way or the other, whether he’s there or whether he’s in jail while
they’re doing it. This property’s under the jurisdiction of this Court. So
it’s better to work with court resources than to work against it.
(Status Hearing, Jan. 24, 2022, tr. 18.) The court ordered Kushlak to place garbage
bags on the tree lawn for the next collection day, January 27, 2022, and an
inspection the day after to ensure the trash was removed. (Status Hearing, Jan. 24,
2022, tr. 23.) These orders were signed the same day as the hearing and journalized
two days later on January 26, 2022.6
The next status hearing was held on February 2, 2022, at which
Kushlak, his attorney, the city prosecutor, Deputy Chief English, Jayme Bauer of the
Old Brooklyn CDC (“Bauer”), and Inspectors Shockley and Mancuso appeared.
Chief English testified that Kushlak had disposed of the garbage bags piled beside
the trash cans but could not take the trash cans to the tree lawn because they were
6 The court also issued a judgment entry dated January 26, 2022, but this judgment
entry was not journalized until March 2, 2022.
stuck the driveway with ice. Chief English also testified that Court Community
Service was scheduled to assist in cleanup on February 14, 2022. (Status Hearing,
Feb. 2, 2022, tr. 3-4.) Inspector Mancuso testified that he and Inspector Shockley
arrived with a police escort but Kushlak did not answer the door. (Status Hearing,
Feb. 2, 2022, tr. 4-5.) Kushlak stated that he was not home at the time of the
inspection. (Status Hearing, Feb. 2, 2022, tr. 6.) The court stated that it could just
have the inspectors enter the house and garage whether or not Kushlak is there.
(Status Hearing, Feb. 2, 2022, tr. 11). Instead, the court ordered Kushlak to move
all the trash in his garbage cans to the tree lawn by February 10, 2022, the following
week’s trash collection day, and to permit Inspectors Shockley and Mancuso and
Chief Gest to enter and inspect the property the next day to confirm that the trash
was removed. (Status Hearing, Feb. 2, 2022, tr. 18-19, 21.)
The court’s orders were incorporated, in part, into a handwritten
judgment entry dated February 2, 2022, and journalized February 11, 2022. A
typewritten judgment entry dated February 3, 2022, and journalized February 16,
2022, modified the conditions of Kushlak’s community control as follows:
(a) [Kushlak] is ordered to continue to meet with Dr. Biggie for his
regularly scheduled doctor appointments.
(b) [Kushlak] is ordered to ensure that all of the trash on the exterior of
the property is put in trash bins and placed on the tree lawn for the
City of Cleveland to remove on Thursday, February 10, 2022.
(c) [Kushlak] is ordered to permit the Department of Building and
Housing Inspector Michael Shockley and the Department of Public
Health Inspector Alan Mancuso access to the interior and exterior
of the property and the garage on Friday, February 11, 2022[,]
between 9 and 10 a.m. to ensure that all trash was removed from the
exterior of the property[.]
(d) [Kushlak’s] Attorney, Tina Tricarichi[,] and Deputy Chief Housing
Specialist English are ordered to be present on the property * * * on
February 11, 2022[,] between 9 and 10 a.m. to ensure that the
Inspectors are able to properly inspect the exterior and interior of
the house and garage.
(e) [Kushlak’s] failure to comply with the orders of this Court may
result in a contempt finding and possible jail time.
(f) All previous orders issued by this Court remain in full force and
effect.
(g) Court Community Service is scheduled to clean the property * * * on
Monday, February 14, 2022. As such, [Kushlak] is ordered as part
of his sentence of community control to consent to Court
Community Services, the Bailiffs, and the Housing Specialist of this
Court, to take any and all necessary actions to abate the nuisance at
the property[.]
(h) [Kushlak] is ordered not to interfere with any action taken by Court
Community Services during the clean-out.
(i) Court Community Services representatives may remove all items
from the exterior and interior of the property[.] Court Community
Service representative[s] shall have no obligation to judge the value
of any items and no obligation to preserve them, to sort them[,] or
to care for them in any way, but may discard them immediately.
(j) [Kushlak] may not remove items on any day when Court
Community Service representatives are present without the consent
of the representatives. If [Kushlak] comes to the property when
Court Community Service representatives are present, he is ordered
not to interfere in any way with them. The Housing Court Bailiffs
shall prevent [Kushlak] from interfering and, if [Kushlak] resists
them, they may bring him before the Court for an immediate
contempt hearing.
(k) [Kushlak] is ordered to appear in-person at court for the next
hearing on February 28, 2022[,] at 2:30 p.m.
(Emphasis sic.) (Judgment Entry, Feb. 16, 2022.)
On February 9, 2022, Kushlak appealed the municipal court’s
January 20, 2022 judgment. The same day, Kushlak filed a motion to stay execution
of the court’s January 20 and February 3, 2022 judgments. On February 11, 2022,
this court sua sponte issued a temporary stay to allow the city to respond to
Kushlak’s motion. On February 25, 2022, this court granted Kushlak’s motion,
clarifying that it concerned the February 3, 2022 judgment permitting the city to
enter the property and dispose of items without consideration of their value and with
no obligation to preserve them. This court found that because the municipal court
had not journalized the February 3, 2022 order prior to the stay, the order was
without force and effect and the city had no authority to follow any mandate issued
in the order.
Having appealed the municipal court’s January 20, 2022 judgment,
Kushlak now raises the following nine assignments of error for review:
Assignment of Error I: The trial court abused its discretion in finding
that [Kushlak] was in violation of his community control conditions,
without indicating which sentencing entry applied.
Assignment of Error II: The trial court erred and abused its discretion
in adding additional community control conditions despite the fact that
the November 8, 2021 Judgment Entry and Order Nunc Pro Tunc was
not journalized.
Assignment of Error III: The trial court erred and abused its discretion
in adding community control conditions to its January 20, 2022
Judgment Entry, which had expired by the time the January 20, 2022
Judgment was Journalized.
Assignment of Error IV: The trial court violated [Kushlak’s] due
process rights when it modified his sentence and imposed additional
community control conditions, without providing him with notice of
the alleged violations.
Assignment of Error V: The trial court violated [Kushlak’s] due process
rights when it imposed additional community control conditions
without providing him with a written statement of the evidence it relied
upon and the reasons for revoking probation.
Assignment of Error VI: The trial court violated [Kushlak’s] due
process rights when it imposed additional community control
conditions based upon [Kushlak’s] failure to abide by the prior
modified additional community conditions set forth in the January 8,
2022 Judgment Entry.
Assignment of Error VII: The trial court violated [Kushlak’s] due
process rights when the housing specialist (probation officer)
presented non-direct testimony.
Assignment of Error VIII: The trial court violated [Kushlak’s] due
process rights when it failed to hold a preliminary hearing.
Assignment of Error IX: The trial court’s January 20, 2022 Judgment
impermissibly increased the punishment, thus violating double
jeopardy restrictions.
II. Law and Analysis
A. Judgment Entries
In his first three assignments of error, Kushlak argues that the
municipal court abused its discretion when it (1) found that he violated the
conditions of his community control without indicating which sentencing entry
applied, (2) added community control conditions in its November 8, 2021 entry and
nunc pro tunc order without journalizing it, and (3) added community control
conditions to its January 20, 2022 judgment entry that had expired before the
judgment entry was journalized.
“[I]n cases involving building, housing, or health code violations, the
primary goal is to bring the property into compliance, rather than punish the
defendant for the misconduct.” Cleveland v. Schornstein Holdings, L.L.C., 2016-
Ohio-7479, 73 N.E.3d 889, ¶ 19 (8th Dist.). “To achieve that goal, the housing court
is vested with broad authority to fashion appropriate punishment to bring about
compliance.” Id.When sentencing a misdemeanor offender, a court has discretion to
impose any sanction or combination of sanctions authorized by R.C. 2929.24 to
2929.28. R.C. 2929.22(A). Except for a minor misdemeanor, a court may impose
community control sanctions and any conditions of release under the community
control sanctions the court considers appropriate. R.C. 2929.25(A)(1)(a). If the
court sentences the offender to community control sanctions under
R.C. 2929.25(A)(1)(a), “the court retains jurisdiction over the offender for the
duration of the period of community control” and
in the court’s sole discretion and as the circumstances warrant, may
modify the community control sanctions or conditions of release
previously imposed, substitute a community control sanction or
condition of release for another community control sanction or
condition of release previously imposed, or impose an additional
community control sanction or condition of release.
R.C. 2929.25(B).
If the offender violates any condition of the community control
sanctions, the sentencing court may impose “one or more” of the following: (1) a
longer period of community control provided that it does not exceed five years; (2)
a more restrictive community control sanction; (3) a combination of community
control sanctions, including a jail term. R.C. 2929.25(D)(2).
A trial court’s imposition of community control under R.C. 2929.25 is
reviewed for an abuse of discretion. Cleveland v. Grunt, 2018-Ohio-4109, 112
N.E.3d 973, ¶ 5 (8th Dist.). “Abuse of discretion,” which is “‘commonly employed to
justify an interference by a higher court with the exercise of discretionary power by
a lower court, implies not merely error of judgment, but perversity of will, passion,
prejudice, partiality, or moral delinquency.’” Johnson v. Abdullah, 166 Ohio St.3d
427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35, quoting Black's Law Dictionary 11 (2d
Ed.1910). “[A]bsent from this definition is any indication that the abuse-of-
discretion standard applies when a court is making a determination of law.” Id. A
trial court “lack[s] the discretion to make errors of law, particularly when the trial
court’s decision goes against the plain language of a statute or rule.” Id. at ¶ 39.
1. Amended Sentencing Entries
In his first assignment of error, Kushlak contends that the municipal
court sentenced him to community control on June 29, 2021, journalized the
sentencing entry on July 8, 2021, amended that sentencing entry on July 22, 2021,
and issued a nunc pro tunc order revising the sentencing entry on November 8,
2021. Kushlak maintains that these changes make it unclear which sentencing entry
the municipal court modified in its January 20, 2022 judgment entry.
In the July 22, 2021 sentencing entry, the court amended the July 8,
2021 sentencing entry to reflect that a first violation of the city’s Health Code,
including a violation of C.C.O. 203.03, is a minor misdemeanor and a second or
subsequent violation is a first-degree misdemeanor. C.C.O. 201.99. In the July 8
sentencing entry, the court had initially sentenced Kushlak to a three-year term of
community control on Count 1 of the complaint. Because Count 1 constituted
Kushlak’s first violation of C.C.O. 203.03, it was a minor misdemeanor and therefore
not subject to imposition of a community control term. R.C. 2929.25(A)(1)(a). The
court amended the sentencing entry to impose concurrent three-year terms of
community control on Counts 2, 3, 4, and 5 because these counts constituted the
second and subsequent offenses under C.C.O. 201.99 and, therefore, first-degree
misdemeanors for which the court could impose community control sanctions.
R.C. 2929.25(A)(1)(a). Contrary to Kushlak’s contention, the amended July 22,
2021 sentencing entry was the entry the court modified in later judgment entries.
Kushlak also maintains that the court’s November 8, 2021 nunc pro
tunc order entirely replaced the original sentencing entry. The only correction that
the court made to the original sentencing entry in the nunc pro tunc order was to
correct the date of the offenses to which Kushlak pled no contest. The original
sentencing entry stated that the offenses occurred August 26-30, 2019. The nunc
pro tunc order revised the date of the offenses to reflect that they occurred
October 26-30, 2019.
Crim.R. 36 authorizes the trial court to correct “[c]lerical mistakes in
judgments, orders, or other parts of the record, and errors in the record arising from
oversight or omission * * * at any time.” “A trial court may use a nunc pro tunc entry
to correct mistakes in judgments, orders, and other parts of the record so the record
speaks the truth.” State v. Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio-
1629, ¶ 7.
The court was authorized by Crim.R. 36 to issue a nunc pro tunc order
revising the sentencing entry to reflect the dates of Kushlak’s offenses. But the nunc
pro tunc order should have identified the July 22, 2021 amended sentencing entry,
not the July 8, 2021 original sentencing entry, as the entry needing to be corrected.
This, too, is a clerical mistake that can be corrected by an additional nunc pro tunc
order.
Because the court’s July 22, 2021 amended sentencing entry, as
corrected by the November 8, 2021 nunc pro tunc order, was the basis of any
subsequent modification the court made to the conditions of Kushlak’s community
control, we cannot say that the trial court’s nunc pro tunc order was so confusing or
unreasonable as to render any subsequent modification, including the January 20,
2022 modification, an abuse of the trial court’s discretion.
Therefore, Kushlak’s first assignment of error is overruled.
2. Journalization of Nunc Pro Tunc Order
In his second assignment of error, Kushlak argues that if the
November 8, 2021 nunc pro tunc order was never journalized, it is a nullity. Kushlak
admits, however, that if the order was journalized, his second assignment of error is
moot. Our review of the record indicates that the court’s nunc pro tunc order was
journalized on December 15, 2021.
Accordingly, Kushlak’s second assignment of error is overruled.
3. Belated Journalization
In his third assignment of error, Kushlak contends that the court
modified two conditions of his community control and ordered him to comply by
January 13, 2022, but journalized the modifications a week later in its January 20,
2022 judgment entry. Kushlak maintains that the conditions had to be journalized
to have any legal effect. The city concedes Kushlak’s argument, adding that it would
be improper for the municipal court to find Kushlak violated his community control
“based on an alleged failure to comply with a condition contained in an
unjournalized [j]udgment [e]ntry.” We agree and add that the January 20, 2022
judgment entry is not the only entry the court journalized after expiration of a
compliance deadline. Our review, however, is limited to the January 20, 2022
judgment entry.
“A docket is not the same as a journal.” State ex rel. White v. Junkin,
80 Ohio St.3d 355, 337-338, 686 N.E.2d 267 (1997). “It is the journal entries that
are signed by the judge, not the docket entries, that control.” State ex rel. Norris v.
Wainwright, 158 Ohio St.3d 20, 2019-Ohio-4138, 139 N.E.3d 867, ¶ 19, citing
Cleveland v. Gholston, 8th Dist. Cuyahoga No. 96592, 2011-Ohio-6164, ¶ 20, fn. 1.
“[T]he court’s journal entry — rather than the reference to the entry set forth on the
computerized docket — controls.” Id., citing State v. Inscho, 2d Dist. Greene
No. 2018-CA-27, 2019-Ohio-809, ¶ 20. To be effective, the court’s judgment entry
must be journalized. Crim.R. 32(C); State v. Roscoe, 8th Dist. Cuyahoga No. 102191,
2015-Ohio-3876, ¶ 7. “To journalize a decision means that certain formal
requirements have been met, i.e., the decision is reduced to writing, a judge signs it,
and it is filed with the clerk so that it may become a part of the permanent record of
the court.” State v. McDowell, 150 Ohio App.3d 413, 2002-Ohio-6712, 781 N.E.2d
1057, ¶ 7 (7th Dist.). “Handwritten notations by a municipal judge on a case jacket
can rise to the dignity and finality of a ‘judgment’ when there is also evidence that it
has been filed with the clerk of the trial court.” Id., citing State ex rel. White at 337.
“A time-stamped date offers some evidence of its filing.” Id.Here, following the January 10, 2022 status hearing, the court issued
a written and signed judgment entry dated January 13, 2022, ordering Kushlak, in
part, to permit Inspectors Shockley and Mancuso and Chief Gest to enter the
property and inspect the property’s exterior and house and garage interiors on
January 13, 2022, at 9:00 a.m. This judgment entry was not journalized, however,
until a week later, as indicated by its time-stamped date of January 20, 2022. Any
modification of Kushlak’s community control that was required to be performed
prior to the judgment entry’s January 20, 2022 journalization is invalid.
Therefore, the trial court abused its discretion by ordering Kushlak to
comply with modified community control conditions that preceded the effective
date of its judgment.7
Kushlak’s third assignment of error is sustained.
7 We note that modifying or revoking a community control sanction without first
determining what caused the offender’s failure to comply has also been found to be an
abuse of the trial court’s discretion. State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-
Ohio-6524, ¶ 6.
B. Constitutional Questions
In his remaining six assignments of error, Kushlak argues that the
municipal court violated his constitutional rights in the January 20, 2022 judgment
entry, including his right to due process and protection against double jeopardy.
Specifically, Kushlak argues that the court could not modify his community control
conditions without providing him notice of a violation, a written statement
indicating the nature of the violation, and a preliminary hearing on the issue
(assignments of error Nos. 4, 5, 6, and 8). Kushlak also argues that the court violated
his right to due process by basing its decision, in part, on the testimony of Chief Gest,
who testified at the January 10, 2022 status hearing only to what she had learned
from Deputy Chief English, who was unavailable to testify (assignment of error
No. 7). Finally, Kushlak argues that the court violated his protection against double
jeopardy in the January 20, 2022 judgment entry by imposing more restrictive
community control conditions without first finding that he had violated the
conditions imposed by the court in the original sentence (assignment of error
No. 9).
“‘It is well settled that [appellate courts] will not reach constitutional
issues unless absolutely necessary.’” Cleveland v. Serrano, 2021-Ohio-1586, 172
N.E.3d 1112, ¶ 40 (8th Dist.), quoting State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-
4888, 814 N.E.2d 1201, ¶ 9. Accordingly, courts “should avoid reaching a
constitutional question when ‘other issues are apparent in the record which will
dispose of the case on its merits.’” In re D.S., 152 Ohio St.3d 109, 2017-Ohio-8289,
93 N.E.3d 937, ¶ 7, quoting Greenhills Home Owners Corp. v. Greenhills, 5 Ohio
St.2d 207, 212, 215 N.E.2d 403 (1966).
Because we have determined that the municipal court’s January 20,
2022 judgment entry is invalid for failure to timely journalize it, we need not reach
Kushlak’s due process and double jeopardy arguments. Therefore, Kushlak’s fourth,
fifth, sixth, seventh, eighth, and ninth assignments of error are moot.
App.R. 12(A)(1)(c).
III. Conclusion
On July 22, 2021, the municipal court amended its July 8, 2021
sentencing entry to reflect imposition of a concurrent three-year term of community
control on Counts 2, 3, 4, and 5 of the complaint, consistent with C.C.O. 201.99, the
ordinance under which Kushlak was sentenced. On November 8, 2021, the
municipal court issued a nunc pro tunc order correcting the July 22, 2021 sentencing
entry to reflect the dates of Kushlak’s offenses from August 26-30, 2019, to October
26-30, 2019. However, the nunc pro tunc entry misidentifies the July 8, 2021 entry,
not the July 22, 2021 entry, as the entry needing correction.
Further, in its January 20, 2022 judgment entry, the municipal court
ordered Kushlak to comply with several modified conditions of his community
control without journalizing the judgment entry. Prior to journalization, the
January 20, 2022 judgment entry is invalid.
Therefore, the January 20, 2022 judgment entry is vacated, and the
matter is remanded to the municipal court to hold a hearing to determine the status
of, not Kushlak’s compliance with, the conditions of his community control sanction,
and to correct nunc pro tunc the November 8, 2021 nunc pro tunc order to reflect
the change to the July 22, 2021 amended sentencing entry, not the July 8, 2021
original sentencing entry.
It is ordered that appellant recover from appellee 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.
_________________________
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and
LISA B. FORBES, J., CONCUR