CITY OF CLEVELAND v. PARAMOUNT LAND HOLDINGS, LLC
No. 95448
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 7, 2011
2011-Ohio-3383
Criminal Appeal from the Cleveland Municipal Court Case Nos. 08-CRB-37072, 08-CRB-41885, 09-CRB-03590, 09-CRB-04261, 09-CRB-27014, 09-CRB-30186, 09-CRB-35426, and 09-CRB-44396
JUDGMENT: REVERSED AND REMANDED
BEFORE: E. Gallagher, J., Boyle, P.J., and Cooney, J.
RELEASED AND JOURNALIZED: July 7, 2011
ATTORNEYS FOR APPELLANT
Richard G. Lillie
Gretchen A. Holderman
Lillie & Holderman
75 Public Square
Suite 1313
Cleveland, Ohio 44113-2001
ATTORNEYS FOR APPELLEE
Robert J. Triozzi
Director of Law
Karyn J. Lynn
Assistant Director of Law
City of Cleveland
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
{1} Paramount Land Holdings, LLC (hereinafter referred to as “Paramount“), appeals from the decision of the Cleveland Municipal Court, Housing Division. Paramount argues the trial court failed to comply with
{2} Throughout 2008 and 2009, the city of Cleveland filed the following cases against Paramount: 08-CRB-37072, 08-CRB-41885,
{3} During the pretrial, the city made recommendations that Paramount pay $500 for each of the six minor misdemeanor cases for a total of $3,000 and $10,000 for Case No. 08-CRB-37072. The city prosecutor requested that Case No. 09-CRB-03590 be dismissed as it related to the same property as Case No. 08-CRB-37072. Additionally, as the city had already demolished the structure on this property, it also recommended that the fine of $10,000 be suspended by 90 percent if and when Paramount reimbursed the city for the costs of demolition.
{4} On March 18, 2010, Paramount‘s manager, George Kastanes, appeared in court via telephone for a change of plea hearing. Paramount provided the court with a corporate resolution indicating its authorization for
{5} In a June 18, 2010 journal entry, the trial court found Paramount guilty of all charges. The trial court also issued its decision on sentencing in written format that same day. At that time, the court sentenced Paramount to a $1,000 fine on each of the six minor misdemeanor cases, a $400,000 fine for the charges contained in Case No. 08-CRB-37072, and a $653,000 fine for the charges contained in Case No. 09-CRB-03590.
{6} Paramount appeals, raising the six assignments of error attached in the appendix to this opinion.
{7} In its first, second, and third assignments of error, Paramount attacks the validity of the court‘s March 18, 2010 plea hearing. Specifically, Paramount alleges the trial court failed to actually take the no-contest plea, failed to inform Paramount of the effect of the no-contest plea, and failed to make a finding of guilt based on an explanation of circumstances. Because these assignments of error are interrelated and involve the same standard of
{8} A review of the March 18, 2010 transcript reveals that the trial court failed, in many respects, to comply with
{9} The procedure set forth in
{10} It is clear that in all cases, i.e., petty misdemeanor offenses, serious misdemeanor offenses, and felonies, the judge must inform the defendant of the effect of his or her plea. Watkins; Buckwald. Both Paramount and the city of Cleveland agree that all charges against Paramount were petty misdemeanor offenses.
{11} Primarily, we note that the transcript lacks any indication that the trial court ever took a no contest plea from Paramount. During the hearing, the court addressed the issue of a no contest plea on two occasions, but only in the context of what the court expected Paramount to do — not with respect to what it actually did. Neither Paramount nor its attorney ever entered a plea of no contest.
“Court: We have a case here in Cleveland and the authorization is fine, but if there is a change from not guilty to no contest, we have to do what we call ‘Wanzo’ because it‘s named after Mary [sic] Wanzo, the defendant. * * * [B]ut the only thing missing is that you
understand that the corporation, not you personally, but the corporation in the criminal cases that are before us would be entering a plea of no contest, which is not an admission of guilt, but an admission that the violations did exist; and the corporation would be giving up its right to a jury trial; right against self-incrimination; right for compulsory process and right to have the City prove their case beyond a reasonable doubt; and that Mr. Hayman then will work on the case as outlined in your authorization. * * * So I just need to — that the corporation, both corporations Paramount Land Holdings and Interstate know their rights and knowingly and willingly give them up, and have authorized Mr. Hayman to act in their behalf today? “Mr. Kastanes: That would be correct.” Tr. 2-3.
“Court: And he has authorized you to enter a no contest plea in the cases that are before us. Now, I understand that there are duplicate cases, and do you have the spreadsheet based upon the no contest plea by Paramount and Interstate? Does the City move to dismiss the duplicate cases?” Tr. 4.
{12} These excerpts are the only references to Paramount‘s alleged plea of no contest. Immediately after the above, the court allowed the city to present its recommendations as to fines for each offense. The court, without taking any further action, entered a plea of no contest. While Mr. Kastanes, on behalf of Paramount, did execute a corporate resolution authorizing attorney Hayman to change its plea from not guilty to no contest, the trial court never actually asked Mr. Hayman or Mr. Kastanes whether they wanted to change the plea from not guilty to no contest. Accordingly, the court was without any authority to enter the plea of no contest.
{13} At its most basic level, the court failed to comply with
{14} Notwithstanding the foregoing, the court failed to inform Paramount of the effect of its no contest plea as required by
“The plea of no contest is not an admission of defendant‘s guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.”
Crim.R. 11(B)(2) .
{15} In Watkins, supra, the Ohio Supreme Court clarified that all that is required of a trial judge before accepting a plea to a petty misdemeanor offense under
{16} In State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, the Ohio Supreme Court interpreted the meaning of the “effect
{17} The Ohio Supreme Court stated that its prior cases “suggest” that
{18} A review of the record quoted above reveals that while the trial court did state “the corporation in the criminal cases that are before us
{19} Notwithstanding the court‘s failure to take a plea of no contest and its failure to comply with
“A plea to a misdemeanor offense of ‘no contest’ or words of similar import shall constitute an admission of the truth of the facts alleged in the complaint and that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense. If the offense to which the accused is entering a plea of ‘no contest’ is a minor misdemeanor, the judge or magistrate is not required to call for an explanation of the circumstances of the offense, and the judge or magistrate may base a finding on the facts alleged in the complaint.”
{20} Although all cases but Case Nos. 2008CRB37072 and 2009CRB03590 involved minor misdemeanors and, therefore, required no explanation of circumstances, the two cases cited involved multiple violations, including first degree misdemeanors, fourth degree misdemeanors, unclassified misdemeanors, and minor misdemeanors. Accordingly, Paramount alleges the court was required to base its finding of
{21} “Section 2937.07 confers a substantive right on the accused to be discharged by a finding of not guilty where the ‘explanation of circumstances’ that the statute requires fails to establish all of the elements of the offense,” or where no explanation of circumstances is made at all. State v. Keplinger (Nov. 13, 1998), Greene App. No. 98-CA-24; State v. Osterfeld, Montgomery App. No. 20677, 2005-Ohio-3180. The state bears the burden to ensure that an explanation of circumstances appears on the record before a conviction is entered. Osterfeld. Although
{22} In the present case, the record is devoid of any explanation of circumstances before the trial court found Paramount guilty. In opposition to this conclusion, the city suggests that the complaints and the tickets filed provide sufficient information to support a finding of guilt by the trial court. We disagree with the city‘s argument.
{23} The “explanation of circumstances” that
{24} A review of the record of the plea proceeding reveals that no explanation of circumstances of any kind concerning the charges facing Paramount was made before the court erroneously entered the no contest plea and found Paramount guilty.
{25} All in all, there was a complete failure on the part of the trial court to comply with
{26} Paramount‘s first, second, and third assignments of error are sustained. Our analysis of these assignments of error renders Paramount‘s remaining assignments of error moot.
{27} The judgment of the trial court is reversed and the case is
It is ordered that appellant recover of 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 lower 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.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
APPENDIX
Assignments of Error:
“I. The trial court committed reversible error in failing to have the defendant-appellant enter a valid plea, in violation of the United States and Ohio Constitutions and Ohio
Crim.R. 11 .”
“II. Defendant-appellant did not knowingly and voluntarily waive its constitutional rights with full knowledge of the maximum penalty included as required by Ohio
Crim.R. 11(C)(2)(a) .”“III. The trial court failed to make a finding of guilt based on an explanation of the circumstances of the offense in violation of Ohio
R.C. 2937.07 .”“IV. The trial court failed to advise the defendant-appellant that it had a right to confront witnesses against it.”
“V. The total fine of $1,059,000.00 is excessive, unrelated, and grossly disproportionate to the offense to which defendant-appellant pled no contest, and constitutes an excessive fine in violation of the defendant-appellant‘s rights as guaranteed by the Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution.”
“VI. The defendant-appellant‘s numerous/multiple convictions for building and housing code violations involved allied offenses of similar import, thus precluding the trial court‘s imposition of multiple sentences.”