CITY OF CLEVELAND v. GO INVEST WISELY, L.L.C.
Nos. 95172, 95173, 95174, 95175, 95176, and 95177
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
June 23, 2011
[Cite as Cleveland v. Go Invest Wisely, L.L.C., 2011-Ohio-3047.]
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED; Criminal Appeal from the Cleveland Municipal Court Case Nos. 2009-CRB-007531, 2009-CRB-012839, 2009-CRB-006408, 2009-CRB-001719, 2009-CRB-023357, and 2009-CRB-025957
ATTORNEY FOR APPELLANT
James J. Costello
Powers Friedman Linn, P.L.L.
23240 Chagrin Boulevard
Suite 180
Cleveland, Ohio 44122
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
Katherine S. Zvomuya
Assistant Director of Law
City of Cleveland
Department of Law
601 Lakeside Avenue
Room 106
Cleveland, Ohio 44114-1077
FRANK D. CELEBREZZE, JR., J.:
{1} Appellant, Go Invest Wisely, L.L.C. (“GIW“), appeals the finding of the Cleveland Municipal Court Housing Division that GIW viоlated conditions of probation and the imposition of a portion of fines that had previously been suspended after GIW pled no contest to six complaints charging various building and housing code violations. GIW now argues that the trial court ignored the purposes and principles of misdemeanor sentencing in imposing $65,000 in fines.
{3} GIW agreed to plead no contest on December 15, 2009 and was sentenced by the trial court on December 31, 2009. The trial court imposed fines as follows: $20,000 with $18,500 suspended in 2009-CRB-007531; $20,000 with $19,000 suspended in 2009-CRB-006408 and a deposit of $5,000 to be placed with the court for anticipated demolition costs; $25,000 with $23,500 suspended in 2009-CRB-001719; $20,000 with $19,000 suspended in 2009-CRB-012839; $20,000 with $19,000 suspended in 2009-CRB-023357; and $20,000 with $18,500 suspended in 2009-CRB-025957. These fines totaled $125,000, with all but $7,500 susрended. The trial court also placed GIW on two years of active probation. GIW was required to file with the trial court twice per month a list of the properties it owned in Cleveland and
{4} At a status conference on February 3, 2010, the trial court ordered GIW to bring permits for еach of the boarded properties to the February 22, 2010 status conference. GIW failed to obtain those permits in a timely fashion. GIW also failed to remedy various safety conditions the trial court felt were partiсularly hazardous, including removal of a refrigerator that was left in the side yard at 1258 East 146th Street. The probation officer supervising GIW submitted to the court a notice of probation violation on March 24, 2010.
{5} At an April 6, 2010 probatiоn violation hearing, the trial court found that GIW had violated several conditions of probation. GIW had failed to submit various lists of properties, even after the trial court granted it extensions of time, and had failed to provide a sufficient number of photographs or, in some cases, any photographs of the subject premises.
{6} At the April 20, 2010 sentencing hearing, the trial court found GIW in violation of the terms of probation and ordered into execution $65,000 of the fines that the trial court had previously suspended.3 GIW timely appealed and requested a stay of the sentence pending appeal.
Law and Analysis
{7} GIW presents one assignment of error, claiming that “[t]he trial court erred in sentencing [it] to fines that were еxcessive, disproportionate, and contrary to law.” GIW limits its argument on appeal to the proper application of
Misdemeanor Sentencing
{8} Much like the factors applicable to felony sentencing embodied in
{9} Pertinent factors include: (a) the nature of the offense, (b) whether there is a history of persistent criminal activity and a substantial risk that the offender will commit another offense; (c) whether there is a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences; and (d) whether the offender is likely to commit future crimes in general.
{11} GIW claims the sole reason the trial court ordered into execution suspended fines was the lawful sale of some of the subject properties. However, the record discloses that GIW violated the terms of its probation in a number of ways.
{12} In its April 20, 2010 judgment entry, the trial court stated, “[a]t the April 6, 2010 hearing, Defendant acknowledged that it violated probation by failing to comply with the March 8, 2010 order. Defendant attempted to obtain the required permits on the morning of March 23, 2010, while the status hearing was in progress. As a result, it was unable to produce the pеrmits at the status hearing that day. Defendant also acknowledged that it did not address the three issues at the four specified properties.”
{13} The trial court then set forth the reason for ordering into execution a portion of the previously suspended fines, stating:
{14} “The Court in these cases previously sentenced defendant to fines totaling $125,000.00, suspending all but $7500.00 of the fines, as recommended by the City. Defendant paid the portion of the fine executed in each case, albeit after an extension of the time to pay.
{15} “The Court ordered an additional sanction in Case No. 2009 CRB 006408, regarding property located at 12315 Ashbury. The Ashbury property is one in a series of connеcted row houses in serious disrepair. Defendant owns one, but not all, of the houses. The City was in the process, as Defendant was aware, of completing condemnations or securing permission to raze the row of houses, due to their condition. * * * Then, aware of the demolition plan, defendant sold the property in a package with others, setting back the City‘s attempt to abate this nuisance through demolition, and ensuring that a health and safety hazard remains in the community for an extended period of time, while the new owner is located, and, if necessary, cited.
{16} “Defendant acknowledges that it has sold at least sixty of its Cleveland properties since the imposition of probation, not to individual owner occupants, but to out of state business entities, in the form of bulk sales. The sale of the properties did not violate the express terms of the probation order.
{17} “The probation order required defendant to submit property photographs and lists to the Court, beginning December 2009. Defendant immediately sought additional time to submit photographs and lists, then followed that request with the submission of incоmplete and mislabeled photographs. While defendant was maintaining to the Court that the requirement that it view and photograph its properties was ‘unduly burdensome,’ it was, at the same time, constructing deals to sell its Cleveland properties to other bulk property dealers. There is nothing in the record to indicate that defendant attempted to verify that these purchasers would become beneficial owners. There is no indicatiоn as of yet that they have. Defendant now represents to the Court that it owns two Cleveland properties.
{18} “Defendant has not submitted to the Court any evidence that it has made repairs to any Cleveland property it owns.”
{19} In crafting GIW‘s sentence, the trial court set forth a long history of noncompliance with Cleveland‘s building and housing codes and the terms and conditions of probation. GIW admitted to violating probation. The trial court found that the probation violations illustrated a defiance to remedy building and housing code violations, including such public hazards as a refrigerator with its doors attached abandoned in the yard of one of the properties. The triаl court noted the safety hazard this constituted to children in the neighborhood and found that GIW had done nothing to
{20} One of the primary gоals in cases involving building and housing code violations is correction of the violations to bring the property into compliance with the codes. Lakewood v. Krebs, 150 Ohio Misc.2d 1, 2008-Ohio-7083, 901 N.E.2d 885, ¶ 19. The fact that GIW sold the Ashbury property when it knew it was to be razed further illustratеs GIW‘s contempt for the purpose of the Cleveland housing code, and the frustration of that purpose is a proper consideration for the trial court under
{21} More importantly, GIW admittedly failed to remedy any cоde violations and at various times violated almost every term of its probation. The court ordered a portion of the suspended fines into execution for these reasons. The trial court did not abuse its discretion in sо ordering. GIW‘s assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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.
FRANK D. CELEBREZZE, JR., JUDGE
PATRICIA A. BLACKMON, P.J., and MELODY J. STEWART, J., CONCUR