Cleveland v. Sabetta
2021 Ohio 4426
| Ohio Ct. App. | 2021Background
- In December 2019 Sabetta pled no contest to attempted violation of a protection order and was sentenced to 3 years of active community control; conditions included no contact with the protected person (C.C.) and that visitation with his minor daughter occur only at the Safe and Sound supervised-visitation center, plus program and service requirements.
- Earlier (April 2019) the juvenile court had adopted an interim parenting-time agreement that ended supervised visits at Safe and Sound and permitted supervised family-member pick-ups; in January 2020 the juvenile court ordered parenting time to resume with at least six hours per week per the agreement.
- Sabetta filed a motion to modify the Safe and Sound visitation condition in January 2020 (denied) and a second motion in September 2020 contending substantial compliance (completed programs, most community service) and that COVID closures had sharply limited his visits.
- The trial court held a hearing October 13, 2020, the City opposed modification, and the court denied the motion (stating it would revisit after the juvenile court made a final decision). Sabetta timely appealed the October 14, 2020 denial.
- On appeal Sabetta argued the original sentencing condition violated his due-process rights because his daughter was not a named victim of the protection-order offense and the juvenile court had authorized increased parenting time.
- The court of appeals dismissed the appeal for lack of jurisdiction, holding the challenge to the original sentencing condition was time-barred and barred by res judicata; Sabetta’s appeal amounted to an impermissible attempt to “bootstrap” an untimely direct appeal of the December 2019 sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred/abused discretion and violated due process by imposing a community-control condition restricting visitation with Sabetta’s minor daughter | The City argued supervised visitation at Safe and Sound should remain and opposed modification; the denial of modification was proper pending juvenile-court resolution | Sabetta argued the condition violated due process because the daughter was not a victim of the protection-order violation and the juvenile court had restored substantial parenting time; he also cited substantial compliance with sentence conditions | Appeal dismissed for lack of jurisdiction; the claim challenging imposition of the sentencing condition is time-barred and barred by res judicata and constitutes improper bootstrapping of an untimely direct appeal |
Key Cases Cited
- State v. Saxon, 846 N.E.2d 824 (Ohio 2006) (res judicata bars issues that could have been raised on direct appeal)