Cleveland v. Schornstein Holdings, L.L.C.

[Cite as Cleveland v. Schornstein Holdings, L.L.C., 2016-Ohio-7479.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 103741

CITY OF CLEVELAND
PLAINTIFF-APPELLEE

vs.

SCHORNSTEIN HOLDINGS, L.L.C.
DEFENDANT-APPELLANT

JUDGMENT:
REVERSED AND REMANDED

Criminal Appeal from the
Cleveland Municipal Court
Case No. 2013 CRB 37740

BEFORE: McCormack, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: October 27, 2016
ATTORNEY FOR APPELLANT

Dexter W. Clark
West Park Professional Offices
13735 Puritas Avenue
Cleveland, OH 44135

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law
City of Cleveland Law Department

Carolyn M. Downey
Assistant Law Director
601 Lakeside Ave., Room 106
Cleveland, OH 44114
TIM McCORMACK, J.:

{¶1} Defendant-appellant Schornstein Holdings, L.L.C. (“the landlord”) appeals

from a judgment of the Housing Division of Cleveland Municipal Court that fined the

landlord $230,000 for failing to maintain its rental property in violation of previously

imposed community control sanctions. The community control sanctions were imposed

by the housing court one year ago after the landlord was found guilty of health code

violations regarding the rental property. We take notice of the housing court’s most

challenging and often arduous mandate in bringing the housing stock in Cleveland’s most

distressed neighborhoods into compliance through the imposition of remedies and

sanctions on the property owners. While we note the housing court’s intent, it is this

court’s reviewing duty to ensure that fundamental and essential due process is followed,

the foundation of that being adequate notice to the defendant. After a review of

applicable law and the record before us, we are required to reverse the trial court’s

judgment and remand this case.

Background

{¶2} This case involves a two-unit rental house located at Daisy Avenue in

Cleveland owned by the landlord, Schornstein Holdings. On July 10, 2013, the city of

Cleveland served the landlord with a notice of violation that required the rental house to

be brought into compliance with the city’s codified ordinances by July 17, 2013. (It is

unclear from the record what the nature of the violation was.) The landlord failed to

comply with the notice by that deadline.
 {¶3} Thereafter, on December 6, 2013, the city of Cleveland filed a criminal

complaint against the landlord, charging it with a health code violation. The complaint

stated that the city had previously served a notice of violation dated July 10, 2013. By

July 17, 2013, the landlord failed to comply with the notice. The complaint alleged that

the landlord violated Cleveland Codified Ordinances (“C.C.O.”) 211.01. The period of

violation was identified to be from July 18, 2013, through September 2, 2013. The

complaint stated:

(a) 203.03 No person shall fail or refuse to comply with any lawful order
issued by the commissioner of environment or any authorized city officer or
employee in enforcement of this Health Code (to wit: Violation Notice
dated July 10, 2013)

(b) 211.01 Failure to discontinue any premise or place to become vermin

or rodent infested. (Bed Bugs)

{¶4} The complaint also included the following citation to C.C.O. 201.99, which

provides penalties for health code violations:

Penalty: Section 201.99 of Codified Ordinances: Whoever violates any

provision of this Health Code, where another penalty is not otherwise

provided, is guilty of a minor misdemeanor on a first offense and shall be

fined not more than one hundred fifty dollars ($150.00); on a second or

subsequent offense, such person is guilty of a misdemeanor of the first

degree and shall be fined not more than one thousand dollars ($1,000.00) or

imprisoned not more than six (6) months, or both. Each day of a continuing

violation or non-compliance constitutes a separate offense.
 {¶5} On April 2, 2014, the landlord pleaded no contest to the charges. In the

judgment entry, which was a standardized form, the trial court found the landlord guilty

and imposed a fine of $2,000, with $1,800 suspended. The form entry indicated that the

defendant was placed on “inactive” community control and a box for “CC [community

control] warnings given” was checked.

{¶6} The landlord failed to remedy its code violations. On March 17, 2015, the

court issued a notice of hearing for the landlord’s violation of community control

sanctions. The notice alleged the following violations: the fines were unpaid; the garage

needed painting and its door was not in place; the exterior siding required painting;

certain soffit and gutters were damaged; porch lattice was damaged; wood surrounding

the garage required repairs; and a trash can of debris was left at the front of the house.

The notice stated, “[s]hould the Court determine that the defendant has violated one or

more conditions of community control, the Court may execute upon the sentence initially

imposed in this case, or may modify the sentence imposed, including the imposition of

jail or additional community control sanctions.”

{¶7} On April 14, 2015, the magistrate held a community control violation

hearing. The magistrate found the landlord had violated its community control sanctions

by failing to maintain the subject property free of code violations. The magistrate

extended the landlord’s term of community control to April 2, 2016, and scheduled the

case for a determination of appropriate financial penalty for the violation of community

control sanctions.
 {¶8} On June 25, 2015, the magistrate held a hearing to sentence the landlord for

its violation of community control sanctions. The landlord’s counsel appeared on the

landlord’s behalf. The court’s housing specialist Debra Zeleny-Kukla reported that,

between March 11, 2015, and June 25, 2015, there was no significant improvement in the

condition of the property. The housing specialist also reported code violations for three

other properties owned by the landlord. The magistrate imposed a fine of $230,000 for

the landlord’s violation of its community control sanctions. The amount appeared to

represent the maximum fine of $5,000 for 46 counts of first degree misdemeanor — one

count for each day between July 18, 2013, and September 2, 2013 — for an

organizational defendant, pursuant to C.C.O. 601.99. That section enhances the penalties

for business entities and authorizes a maximum fine of $5,000 for a first-degree

misdemeanor for such an entity.

{¶9} Upon the landlord’s request, the magistrate subsequently issued a decision

providing the findings of fact and conclusions of law. The landlord objected to the

magistrate’s decision. The trial court overruled the objections and adopted the

magistrate’s decision.

Appeal

{¶10} On appeal, the landlord does not challenge the trial court’s judgment finding

it to have violated its community control sanctions. The landlord does though challenge

the $230,000 fine it received. Its three assignments of error state:

1. A Defendant’s fundamental right against Double Jeopardy under the
Fifth Amendment to the United States Constitution has been denied
 when the Court sentenced the Defendant to a $2,000 fine with $200
suspended and subsequently at a community control violation
hearing sentenced the Defendant to a $230,000 fine.

2. A Defendant’s fundamental right to confront witness against him
under the Sixth Amendment to the United States Constitution is
violated when at a community control violation hearing the Court
found the Defendant in violation based upon the unsworn testimony
of witness.

3. A Defendant’s fundamental right to Due Process of law under the
Fourteenth Amendment to the United States Constitution is denied
when a Court at a community control violation hearing imposes
penalties for alleged violations during time periods not even
mentioned in the original sentence order.

{¶11} For ease of discussion, we address the second assignment of error first.

The landlord argues its right of confrontation was violated when the magistrate permitted

the court’s compliance specialist to testify at the sentencing hearing without being sworn

in first.

{¶12} While Evid.R. 603 requires witnesses to be sworn in at trial, the rules of

evidence do not apply to criminal sentencing proceedings. Cleveland v. Halberg, 8th

Dist. Cuyahoga No. 67309, 1995 Ohio App. LEXIS 2159, 10 (May 25, 1995), citing

Evid.R. 101(C)(3). Furthermore, a criminal defendant’s Sixth Amendment right of

confrontation does not extend to sentencing hearings. State v. Robinson, 8th Dist.

Cuyahoga No. 98072, 2012-Ohio-5510, ¶ 5, citing Williams v. New York, 337 U.S. 241,

69 S.Ct. 1079, 93 L.Ed. 1337 (1949). The second assignment is without merit.

{¶13} Under the first assignment of error, the landlord claims its right against

double jeopardy was violated when the housing court imposed a fine of $2,000 with $200
suspended at original sentencing and later imposed a $230,000 fine at the community

control violation hearing. The Double Jeopardy Clause of the Fifth Amendment to the

United States Constitution, applicable to the states through the Fourteenth Amendment,

ensures that a defendant is not placed in jeopardy twice for the same offense. State v.

Gunnell, 132 Ohio St.3d 442, 2012- Ohio-3236, 973 N.E.2d 243, ¶ 25. However, when a

defendant violates the community control sanctions, the trial court is sanctioning that

misconduct, not the original underlying offense. State v. Hart, 4th Dist. Athens No.

13CA8, 2014-Ohio-3733, ¶ 23. When a defendant violates the terms of the community

control sanctions, R.C. 2929.25(D)(2) expressly authorizes the trial court to impose

penalties for the violation. 1 Double jeopardy was not implicated here. The first

assignment of error is overruled.

{¶14} While there was no double jeopardy violation, we find merit to the

landlord’s claim raised under the third assignment of error. As we explain in the

following, the housing court failed to provide adequate notice to the landlord in the

R.C. 2929.25(D)(2) states:
1

If an offender violates any condition of a community control sanction, the sentencing
court may impose upon the violator one or more of the following penalties:

(a) A longer time under the same community control sanction if the total time
under all of the community control sanctions imposed on the violator does not
exceed the five-year limit specified in division (A)(2) of this section;

(b) A more restrictive community control sanction;

(c) A combination of community control sanctions, including a jail term.
original sentencing entry regarding the consequences of a violation of the community

control sanctions and, therefore, improperly imposed the $230,000 fine.

{¶15} While the trial court is authorized to impose penalties for a violation of

community control sanctions, the court is required to provide notice of the consequences

of community control violations at the sentencing for the underlying offense. R.C.

2929.25(A)(3) states:

(3) At sentencing, if a court directly imposes a community control
sanction or combination of community control sanctions pursuant to
division (A)(1)(a) or (B) of this section, the court shall state the
duration of the community control sanctions imposed and shall
notify the offender that if any of the conditions of the community
control sanctions are violated the court may do any of the following:

(a) Impose a longer time under the same community control sanction if
the total time under all of the offender’s community control
sanctions does not exceed the five-year limit specified in division
(A)(2) of this section;

(b) Impose a more restrictive community control sanction under section
2929.26, 2929.27, or 2929.28 of the Revised Code, but the court is
not required to impose any particular sanction or sanctions;

(c) Impose a definite jail term from the range of jail terms authorized for
the offense under section 2929.24 of the Revised Code.

(Emphasis added.)

{¶16} The purpose of R.C. 2929.25(A)(3)’s notification requirement is to make the

offender aware of the possible consequences of violating community control sanctions

before any violation occurs. State v. Maxwell, 4th Dist. Ross No. 04CA2811,

2005-Ohio-3575. See also State v. Jordan, 8th Dist. Cuyahoga No. 80851,
2002-Ohio-5086, ¶ 38 (notice must be given to a defendant at sentencing when

community control sanctions are imposed; this is to ensure that the defendant is fully

aware of the possible consequences of violating the terms of the community control

sanctions).

{¶17} The landlord in the instant case was found guilty of violating the health code

and sentenced to pay a fine and community control sanctions in the judgment entry dated

April 2, 2014. Our review of the judgment entry, a bare-bone standardized form, reveals

multiple deficiencies. The form listed the charge against the landlord simply as “health

code violation,” without identifying the specific code. It did not specify the dates of

violations, nor the number of counts the landlord was convicted of. The judgment entry

stated a fine of $2,000, with $1,800 suspended, without indicating whether the fine was

for one count or for 46 counts. Furthermore, although a box for “CC warnings given”

was checked, there was no enumeration of the terms of the community control, or the

consequences of a violation of the terms. There was also no warning of a potential

maximum fine of $5,000 per count for a business entity, which would total $230,000 for

46 counts of first-degree misdemeanor.2

In the magistrate’s findings of fact, the magistrate stated: “the Court warned Defendant that a
2

violation of community control could lead to the Court imposing additional community control
sanctions, including a longer term of community control and a larger fine based on the original
charges, the maximum fine for a business entity violating C.C.O. 203.03 being $5,000 per day for a
maximum fine of 230,000.” The record, however, does not reflect that such notice or warning was
given; the journal entry only indicated “CC warnings given.” Because the transcript of the hearing is
not part of the record before us and the court speaks through its journal, State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, the magistrate’s finding that the court had given
 {¶18} We recognize the malignant effect that a poorly maintained dwelling has on

its neighboring community. Overall housing values in the neighborhood can decline

drastically if even one property is poorly maintained; moreover, “a poorly maintained

property can also create a trend of neglect, leading to a downward spiral in the

community.” Lakewood v. Krebs, 150 Ohio Misc.2d 1, 2008-Ohio-7083, 901 N.E.2d 885,

¶ 28. “‘If a window is broken and left unrepaired, people walking by will conclude that

no one cares and no one is in charge. Soon, more windows will be broken.’” Id.

quoting M. Gladwell, The Tipping Point (Little, Brown & Co. 2000).

{¶19} Therefore, in cases involving building, housing, or health code violations,

the primary goal is to bring the property into compliance, rather than punish the defendant

for the misconduct. Cleveland v. Go Invest Wisely, L.L.C., 8th Dist. Cuyahoga Nos.

95172, 95173, 95174, 95175, 95176, 95177, 2011-Ohio-3047, citing Krebs at ¶19. To

achieve the goal, the housing court is vested with broad authority to fashion appropriate

punishment to bring about compliance. Unlike an individual defendant, who could be

confined as a punishment for a lack of compliance, an organizational defendant, such as

such a notice is not supported by the record before us.

We also note that although C.C.O. 3103.99 provides that an organizational entity can be
subject to a fine of $5,000 per day for building code violations, the landlord here was charged with a
health code violation and the complaint against the landlord cited C.C.O. 201.99 for penalties for such
violations. That section provides that a person in violation of the health code could be subject to a
fine of $1,000 for each day of violation. The housing court’s judgment affirming the magistrate’s
decision, on the other hand, cited C.C.O. 601.99 for its authority to impose $5,000 per count on
business entities for each count of first-degree misdemeanors. The court’s authority under C.C.O.
601.99, however, was not referenced in the complaint.
the landlord here, cannot be incarcerated. The housing court is empowered to tailor the

amount of financial sanctions to compel compliance from an organizational entity.

{¶20} However, the trial court still must be bound within the boundaries of due

process. Here, the April 2, 2014 sentencing entry falls woefully short of what due

process requires to permit the housing court to impose a fine of $230,000, an

exponentially greater penalty 1,150 times the fine that the landlord originally received,

when the landlord violated its community control sanctions.3 The third assignment of

error is sustained.

{¶21} The judgment of the municipal court is reversed, and the matter is remanded

to the court for further proceedings 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 municipal

court to carry this judgment into execution.

In Cleveland v. U.S. Bank, N.A., 8th Dist. No. 104101, 2016-Ohio-7402, this court also
3

reversed a judgment of the housing court, but under a different analysis. In that case, the citation
against the landlord listed 22 building code violations under 15 different building code sections. The
landlord pleaded no contest to a single, unidentified building code violation, and the court’s judgment
gave no indication of which building code sections had been violated. Because it was unknown as to
which building code(s) the landlord violated, this court concluded that the housing court failed to state
“the fact of conviction” required by Crim.R. 32(C) as interpreted in State v. Lester, 130 Ohio St.3d
303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14, and therefore, the community control sanctions never
went into effect. U.S. Bank at ¶ 12-13. In the instant case, the complaint identified a single health
code violation (C.C.O. 211.01), so it was clear which code section the landlord violated here. In any
event, the landlord in the instant case does not challenge the validity of its community control
sanctions, nor its violation of the community control sanctions — it only challenges the amount of the
fine imposed.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________
TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY