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CITY OF CLEVELAND v. PENTAGON REALTY (2019)

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Court of Appeals of Ohio, Eighth District, Cuyahoga County.

CITY OF CLEVELAND, Plaintiff-Appellee, v. PENTAGON REALTY, L.L.C., Defendant-Appellant.

No. 108146

Decided: September 19, 2019

Barbara A. Langhenry, Cleveland Director of Law, and William H. Armstrong, Jr., Assistant Director of Law, for appellee. Lieberman, Dvorin, & Dowd, L.L.C., Pepper Pike, David M. Dvorin, Cleveland, Andrew K. Shibley, and Brad A. Straka, for appellant.

JOURNAL ENTRY AND OPINION

{¶1} Defendant-appellant Pentagon Realty, L.L.C. (“Pentagon”), appeals the community control sanctions ordered by the Cleveland Municipal Court, Housing Division. Because we find the additional conditions of providing past tax returns and past monthly bank statements are not reasonably related to the goals of community control in this case, we reverse the court's order as it relates to these conditions.

Procedural History and Substantive Facts

{¶2} On July 10, 2018, plaintiff-appellee city of Cleveland (“Cleveland”) filed a criminal complaint against Pentagon in the Cleveland Municipal Court, Housing Division, alleging that between June 14, 2018, and June 25, 2018, Pentagon, the owner or “person in control” of the commercial property located at 17801 Euclid Avenue, Cleveland, Ohio, “refuse[d], neglect[ed], or failed to comply” with a notice of code violations under Cleveland Codified Ordinances (“C.C.O.”) 3103.25. The notice of violations included: general maintenance requirements, C.C.O. 3101.10(A); maintenance of exterior property areas, C.C.O. 3101.10(E); and damaged buildings, C.C.O. 3101.10(F). According to the notice of violations attached to the complaint, the violations included parking lot holes in the asphalt, garbage, and debris “throughout [the] property,” and broken and boarded windows.

{¶3} On October 31, 2018, Pentagon withdrew its initial not guilty plea and entered a plea of no contest to 12 counts of failure to comply, which are first-degree misdemeanors. The trial court accepted the plea and found Pentagon guilty of all charges of failure to comply under C.C.O. 3103.25 for 12 days of noncompliance, from June 14, 2018, through June 25, 2018. Pentagon faced a possible sentence of a $5,000 fine and up to five years of community control sanctions for each offense.

{¶4} On December 5, 2018, the court sentenced Pentagon to two years inactive community control on each count, to be served concurrently, fined Pentagon $500 on Count 1, and imposed court costs. The conditions of community control included Pentagon's duties to abide by the law; comply with the court's local rules, which included keeping all properties owned by Pentagon and located within the cities of Cleveland and Bratenahl “in good repair and in compliance with local codes”; and report to and cooperate with the assigned community control officer. The trial court also ordered additional conditions of community control as follows:

1) Enter into a payment plan for property taxes for all properties in Cleveland and Bratenahl by January 5, 2019;

(2) Provide tax returns for 2015, 2016, and 2017 by January 5, 2017; and

(3) Provide monthly bank statements from January 2017 to present by January 5, 2019.

{¶5} On December 21, 2018, Pentagon paid the $500 fine and court costs. However, on January 7, 2019, the trial court issued a notice to Pentagon of potential community control violations concerning Pentagon's failure to provide the court its tax returns and monthly bank statements.

{¶6} Pentagon now appeals the trial court's conditions of community control sanctions. Pentagon contends that the conditions requiring Pentagon to disclose its tax returns and monthly bank statements are contrary to the overriding purposes of misdemeanor sentencing set forth in R.C. 2929.21 and are contrary to the guidelines of community control. Pentagon did not appeal the court's additional condition requiring Pentagon to enter a payment plan for the payment of property taxes for all of its properties in Cleveland and Bratenahl.

Law and Analysis

{¶7} In its sole assignment of error, Pentagon contends that the trial court's order that Pentagon provide the court with its 2015, 2016, and 2017 tax returns and provide the court with its monthly bank statements from January 2017 to the present is not reasonably related to the goals of community control sanctions. The city argues that “tax returns and bank statements” reflect the court's goal in ensuring good behavior.1

{¶8} The overriding purposes of misdemeanor sentencing are “to protect the public from future crime by the offender and others and to punish the offender.” R.C. 2929.21(A). And a misdemeanor sentence “shall be reasonably calculated to achieve the two overriding purposes of misdemeanor sentencing * * *.” R.C. 2929.21(B). 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.’ ” Cleveland v. Go Invest Wisely, L.L.C., 8th Dist. Cuyahoga Nos. 95172, 95173, 95174, 95175, 95176, and 95177, 2011-Ohio-3047, 2011 WL 2476428, ¶ 8, quoting State v. Downie, 183 Ohio App.3d 665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 45 (7th Dist.), citing In re Slusser, 140 Ohio App.3d 480, 487, 748 N.E.2d 105 (3d Dist.2000).

{¶9} Concerning building or housing code violation cases, the primary goal of the court is to correct the violation and bring the property into compliance with all building codes, rather than punish the defendant for misconduct. Cleveland v. Schornstein Holdings, L.L.C., 2016-Ohio-7479, 73 N.E.3d 889, ¶ 19 (8th Dist.), citing Go Invest Wisely, L.L.C. at ¶ 20; Lakewood v. Krebs, 150 Ohio Misc.2d 1, 2008-Ohio-7083, 901 N.E.2d 885, ¶ 19 (M.C.).

{¶10} To achieve this goal, trial courts have broad discretion in fashioning a sentence to determine the most effective way to bring about compliance. Schornstein Holdings, L.L.C.; see R.C. 2929.22(A). Therefore, unless a specific sanction is either required or precluded by law, a trial court may impose upon a misdemeanor offender any sanction or combination of sanctions under R.C. 2929.24 to 2929.28. Id. For a building code violation, other than for a minor misdemeanor, the penalties set forth by statute or ordinance may include fines, jail time, and community control sanctions for a maximum of five years. N. Olmsted v. Rock, 8th Dist. Cuyahoga No. 105566, 2018-Ohio-1084, 2018 WL 1447737, ¶ 32; R.C. 2929.25(A)(1) (community control sanctions permissible in all but minor misdemeanor cases). The court may impose one or more sanctions, and it may suspend all or some of a sanction. Krebs at ¶ 14, 15; R.C. 2929.25.

{¶11} Further, in ordering community control sanctions, a trial court has the discretion to “impose additional conditions aimed at preserving the interest of justice, protection of the community, and the rehabilitation of the offender.” Rock at ¶ 32, citing Krebs at ¶ 15. In cases involving an organizational entity, where the entity cannot be confined for failure to comply, “the housing court is empowered to tailor the amount of financial sanctions to compel compliance.” Schornstein Holdings, L.L.C. at ¶ 19; R.C. 2929.31 (providing that an organization such as a corporation, partnership, or joint venture can be convicted of any offense under certain circumstances, and because an organization cannot be jailed, a court may fine an organization up to $5,000 for a first-degree misdemeanor conviction); see R.C. 1.59 (stating that “person” includes an individual or a corporation, “as used in any statute, unless another definition is provided * * *”).

{¶12} We review the trial court's imposition of community control sanctions for an abuse of discretion. State v. Cooper, 2016-Ohio-8048, 75 N.E.3d 805, ¶ 31 (8th Dist.), citing State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, 814 N.E.2d 1201, ¶ 10. Notwithstanding this broad discretion, the trial court's discretion “is not limitless.” State v. White, 10th Dist. Franklin No. 14AP-1027, 2015-Ohio-3844, 2015 WL 5555222, ¶ 5, citing Talty at ¶ 11.

{¶13} A court may impose additional community control conditions as long as those conditions are “not * * * overbroad and [are] reasonably relate[d] to the goals of community control: ‘rehabilitation, administering justice, and ensuring good behavior.’ ” State v. Mahon, 8th Dist. Cuyahoga No. 106043, 2018-Ohio-295, 2018 WL 565512, ¶ 7, quoting Talty at ¶ 11. To determine whether a condition of community control is reasonably related to these goals, “courts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of [community control].” State v. Jones, 49 Ohio St.3d 51, 53, 550 N.E.2d 469 (1990). All three prongs of the Jones test must be satisfied for the reviewing court to find that the trial court did not abuse its discretion. Solon v. Broderick, 8th Dist. Cuyahoga No. 107043, 2018-Ohio-4900, 2018 WL 6433728, ¶ 8; White at ¶ 10.

{¶14} We find under the circumstances in this case that the trial court's additional community control conditions ordering Pentagon to provide its tax returns for 2015, 2016, and 2017, as well as its monthly bank statements from January 2017 to the present (which is purportedly December 2018, when the court imposed the sanctions) bear no relation to the goals of community control.

{¶15} The record demonstrates that the court imposed a payment plan for the payment of property taxes of all properties owned by Pentagon and a $500 fine as part of its sentence. There is nothing in the record indicating Pentagon lacked the financial means to pay the fine or make payments on its property taxes or that it had difficulty obtaining the means to pay the fine or make the payments. Nor is there anything in the record demonstrating that Pentagon's conviction for failure to comply was due to financial insolvency. Rather, the record shows that Pentagon did not challenge the court's imposition of a payment plan or the fine. Indeed, Pentagon paid the fine well before the ordered due date of January 11, 2019, and it addressed the underlying violations, bringing the property into compliance with city codes. Arguably, a property owner's present and future financial status could provide guidance to the court in fashioning the appropriate sentence to ensure that an offender could continue to maintain property in compliance with the city's codes. A property owner's past finances, however, is not evidence of its present financial means, particularly where the inability to pay was never an issue. Thus, Pentagon's past financial means is not reasonably related to Pentagon's convictions or the likelihood of its future criminality.

{¶16} The city argues that because the trial court ordered a payment plan for the payment of property taxes, we can infer that Pentagon is delinquent in its property taxes and therefore “there may be a financial issue that may prevent the land owner from fully complying with all of Cleveland's Codes.” We note, however, that the city's argument is pure speculation, and as we previously stated, there is no evidence in the record of Pentagon's financial insolvency. Furthermore, Pentagon had indeed brought its property into compliance and there is no evidence of its inability to do so in the future due to its lack of financial stability.

{¶17} In light of the foregoing, we must find the trial court abused its discretion in ordering Pentagon to provide its tax returns from 2015, 2016, and 2017, as well as its monthly bank statements from January 2017 to the present (presumably the date of the trial court's sentencing order). We find these additional community control conditions bear no reasonable relation to Pentagon's convictions for failure to comply, nor do they ensure Pentagon's future compliance with the city's building codes.

{¶18} Pentagon's sole assignment of error is sustained.

{¶19} Judgment reversed and remanded with instructions for the trial court to remove the additional conditions of community control consistent with this opinion.

FOOTNOTES

1.   The city also urges this court to “presume regularity” in the proceedings because Pentagon failed to provide a transcript of the sentencing hearing in which the court ordered the community control sanctions. “When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to those assigned errors, the court has no choice but to presume the validity of the lower court's proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). We note, however, that an appellant's failure to file a trial transcript bars appellate review “only when the appellant actually contests factual findings on appeal.” Mayfield Hts. v. Durr, 8th Dist. Cuyahoga No. 103856, 2016-Ohio-5249, 2016 WL 4141727, ¶ 4 (Stewart, J., dissenting). There is no factual dispute in the present case. Therefore, while it would have been beneficial, we do not find the sentencing transcript necessary for our resolution of Pentagon's sole assignment of error pertaining to the court's additional community control condition.

MICHELLE J. SHEEHAN, J.:

MARY EILEEN KILBANE, A.J., and MARY J. BOYLE, J., CONCUR

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