CITY OF CLEVELAND, Plaintiff-Appellee, v. PENTAGON REALTY, L.L.C., Defendant-Appellant.
No. 108146
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 19, 2019
[Cite as Cleveland v. Pentagon Realty, L.L.C., 2019-Ohio-3775.]
MICHELLE J. SHEEHAN, J.
Criminal Appeal from the Cleveland Municipal Court Housing Division Case No. 2018 CRB 011488
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: September 19, 2019
Appearances:
Barbara A. Langhenry, Cleveland Director of Law, and William H. Armstrong, Jr., Assistant Director of Law, for appellee.
Lieberman, Dvorin, & Dowd, L.L.C., David M. Dvorin, Andrew K. Shibley, and Brad A. Straka, for appellant.
MICHELLE J. SHEEHAN, J.:
{¶ 1} Defendant-appellant Pentagon Realty, L.L.C. (“Pentagon“), appeals the community control sanctions ordered by the Cleveland Municipal Court,
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
- 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
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.”
{¶ 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
{¶ 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;
{¶ 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, ¶ 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
{¶ 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
{¶ 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
{¶ 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.
It is ordered that appellant recover of said 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 Cleveland Municipal Court, Housing Division, 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.
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MICHELLE J. SHEEHAN, JUDGE
MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR