Cleveland v. CollinsCleveland v. Collins
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
v. : No. 107814
JAWAN COLLINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED AND VACATED
RELEASED AND JOURNALIZED: August 15, 2019
Criminal Appeal from the Cleveland Municipal Court
Housing Division
Case No. 2018 CRB 011497
Appearances:
Barbara A. Langhenry, City of Cleveland Director of Law,
and Kortney S. Mosley, Assistant Director of Law, for
appellee.
Rick L. Ferrara, for appellant.
SEAN C. GALLAGHER, P.J.:
Appellant Jawan Collins (“appellant”) appeals his conviction for
“failure to comply with an order of the Cleveland Building Department” in violation
of Section 3103.25(e) of the Cleveland Codified Ordinances (“C.C.O. 3103.25(e)”), a
his “no contest” plea because he was not served with the violation notice for the
subject property and the city’s explanation of circumstances did not demonstrate
that he received proper notice. The city of Cleveland (“the City”) has withdrawn its
merit brief and conceded the error, which is evident in the record. We reverse the
trial court’s judgment and vacate appellant’s conviction and sentence.
{¶ 2} On July 13, 2018, a complaint was filed against David Collins, who is
related to appellant,1 for violating C.C.O. 3103.25(e), which provides as follows:
No person shall refuse, neglect or fail to comply with any stop work
order issued under the provisions of this Building Code; nor refuse,
neglect or fail to comply with a notice to repair, rehabilitate or demolish
a building or other structure declared to be unsafe under the provisions
of this Building Code; nor refuse, neglect or fail to comply with a notice
requiring the abatement or removal of a violation or requiring
compliance with any provision of this Building Code or any rule or
regulation thereunder within the time limit set forth in such notice; nor
maintain a use or occupancy prohibited by this Building Code; nor
refuse, neglect or fail to maintain stair enclosures, stairways, fire
escapes, exit passageways or other required means of egress in a safe
and usable condition as required by OBC or this Building Code.
{¶ 3} The complaint alleged that “DAVID COLLINS, [as] the owner or
person in control” of the identified single-family residence “did refuse, neglect, or
fail to comply with a notice * * * requiring the abatement or removal of a violation
or requiring compliance with any provision of the Cleveland Building Code or any
rule or regulation thereunder within the time limit set forth[.]” Each day of
noncompliance constituted a separate offense. Attached to the complaint was a copy
showing David Collins owned the property. The notice identified exterior
maintenance violations and required all violations to be corrected by the compliance
date of June 2, 2018.
{¶ 4} At the arraignment, the City moved to amend the complaint to name
appellant as the defendant in the case, appellant consented to the amendment, and
the trial court granted the motion. Appellant proceeded to enter a plea of no contest.
{¶ 5} The City then placed the following proffer on the record:
On May 1st, 2018, the city inspected [the identified property] and found
exterior maintenance violations. A violation notice was issued on
May 3rd, 2018. The city proffers the deed as proof of ownership, signed
green card as proof of service, as well as the photographs taken on the
reinspection date of June 2nd, 2018, finding that the property was out
of compliance for 23 days. To date, the property has been brought into
compliance according to the inspector.
{¶ 6} Appellant informed the trial court that he did not receive the notice;
that he believed the property was in compliance; and that had he received the notice,
the violations would have been taken care of right away. He also indicated that he
had been going to the property weekly to cut the grass and maintain the home.
{¶ 7} The trial court proceeded to make a finding of guilt. At sentencing,
the trial court imposed five years of active community control with a number of
terms and conditions, along with ordering 200 hours of community work service.
{¶ 8} Appellant timely filed this appeal. Under his sole assignment of error,
he claims the trial court erred by entering a finding of guilt on his plea of no contest
to a written record.
{¶ 9} Appellant argues that where there is a plea of no contest to a
misdemeanor offense,
offense or else the trial court must explain what circumstances give rise to the
finding of guilt. Appellant claims that there was no explanation of circumstances on
the record that met all elements of the offense, in that there is no evidence to show
that appellant ever received notice of the violations so that he could comply. He
states that the prosecutor’s statement prior to the finding of guilt “did not include
that Jawan Collins received notice of the problems, or performed or failed to
perform any act whatsoever.” Appellant also contends that the trial court did not
refer to anything in the record to support its finding of guilt.
{¶ 10}
misdemeanor offense, the plea “shall constitute an admission of the truth of the facts
alleged in the complaint” and the judge “may make a finding of guilty or not guilty
from the explanation of the circumstances of the offense.” The Supreme Court of
Ohio has determined that the requirement for an explanation of circumstances “is a
procedural protection” accorded by
St.3d 470, 2018-Ohio-5024, 122 N.E.3d 151, ¶ 19. As the Supreme Court recognized,
“both Crim.R. 11 and the current version of
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
“Thus, the explanation-of-circumstances requirement is best understood as
providing a level of procedural protection to the defendant. It allows the court to
find a defendant not guilty when the facts of the case do not rise to the level of a
criminal violation.” (Emphasis added.) Id. at ¶ 20.
{¶ 11} In this case, the uncontested facts do not rise to the level of a criminal
violation. The complaint alleged a failure to comply with a notice of violations that
was sent to “David Collins.” The City’s explanation of circumstances did not
demonstrate that proper notice was ever issued to appellant, and the City has
conceded the error on appeal. We are cognizant that the trial judge in this instance
did not have the benefit of the Giordano decision at the time of the plea, but we have
to follow the precedent of the Supreme Court of Ohio. Accordingly, we reverse the
trial court’s judgment and vacate appellant’s conviction and sentence.
{¶ 12} Judgment reversed; conviction and sentence vacated.
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 issue out of this court directing the
municipal court to carry this judgment into execution.
of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR