[Cite as Fostoria v. Flinders, 2020-Ohio-4263.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
CITY OF FOSTORIA,
PLAINTIFF-APPELLEE, CASE NO. 13-20-02
v.
CARL W. FLINDERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Tiffin-Fostoria Municipal Court
Trial Court No. CRB 1901031
Judgment Affirmed
Date of Decision: August 31, 2020
APPEARANCES:
Cindy Wolph for Appellant
Charles R. Hall, Jr. for Appellee
Case No. 13-20-02
SHAW, P.J.
{¶1} Defendant-appellant, Carl W. Flinders (“Flinders”), brings this appeal
from the December 10, 2019 judgment of the Tiffin-Fostoria Municipal Court
ordering Flinders to pay a $50 fine after Flinders entered a plea of no contest to, and
was convicted of, a violation of Fostoria Codified Ordinance 1107.02(A)(1), a
minor misdemeanor. On appeal, Flinders argues that there was insufficient evidence
presented to convict him, that the trial court erred by denying Flinders’ motion for
a continuance of a pretrial hearing, that the trial court erred when it issued a bench
warrant for Flinders’ failure to appear at a pretrial hearing, and that the trial court
committed judicial misconduct.
Background
{¶2} On September 19, 2019, Flinders was charged with a violation of
Fostoria Codified Ordinance Section 1107.02(a)(1), a minor misdemeanor. The
cited provision reads as follows:
(a) Zoning Certificate Required.
(1) No building or structure1 shall be erected, constructed,
enlarged, converted, moved, added to, or altered2; nor shall any
building, structure, or land be established or changed in use
without a certificate there for [sic] issued by the Zoning Inspector
in conformity with the provisions of this Zoning Code.
1
For reference, in the “Definitions” section of the zoning portion of Fostoria Codified Ordinances,
1106.01(144), “Structure” is defined to “include buildings, manufactured homes, walls, fences, swimming
pools, signs, and the like.” (Emphasis added.) “Structure” is also defined as anything constructed or erected,
the use of which requires a location on the ground or an attachment to a fixed location in the ground.
2
Fostoria Codified Ordinance 1106.01(11) defines “Alteration” as “any change, addition or modification in
construction, occupancy or use.” (Emphasis added.)
-2-
Case No. 13-20-02
The complaint alleged that Flinders was attempting to construct a fence on his
property without a permit to construct it, despite being advised that he needed a
permit. The complaint further alleged that Flinders had told the zoning inspector
that he did not need a permit.
{¶3} On October 15, 2019, Flinders was arraigned and he appeared with his
attorney. Flinders was informed of the minimum and maximum possible penalties
for the minor misdemeanor he was charged with and he entered a plea of not guilty.
A trial was ordered to be set within thirty days.
{¶4} On October 22, 2019, Flinders’ attorney filed a “Motion for Leave to
Submit Answer to Complaint, Affirmative Defense, and Counterclaim One Day
Late.” The referenced “Answer” was filed that same day. The “Answer” treated
the “Complaint” against Flinders essentially as though it was a civil matter. The
“Answer” stated that “The Complaint is presented in one rather lengthy paragraph”
so Flinders responded to individual sentences within that paragraph as if they had
been numbered statements/paragraphs. (Doc. No. 9). Flinders’ “Answer” then went
through each sentence of the Complaint individually, admitting or denying the
statements therein. For example, sentence three of the criminal complaint read “Our
office had not received an application for a permit to construct a fence at that
location.” Flinders’ response in his “Answer” was, “Defendant admits he had/has
not submitted any application for a permit to construct a fence at that location.” (Id.)
-3-
Case No. 13-20-02
{¶5} After responding to each sentence in the Complaint, Flinders asserted
“affirmative defenses.” He argued that his neighbors were calling the zoning office
due to prior animosity. Flinders also alleged that there was already a fence on his
property previously and he was simply replacing it, not constructing a brand new
fence. The trial court set the matter for a hearing on the filings of Flinders’ attorney
on November 7, 2019.
{¶6} On November 4, 2019, Flinders’ attorney filed a handwritten “Motion
to Reschedule Hearing.” The motion stated that the attorney was currently in the
ICU at the Toledo Hospital where she had been a patient since November 2, 2019,
and it was unknown when she would be discharged. The attorney requested leave
to reschedule once she knew her discharge date, indicating she would contact the
court when that occurred. (Doc. No. 11). The trial court summarily denied the
motion to reschedule on November 5, 2019.
{¶7} Flinders did not appear for the November 7, 2019 hearing, so a bench
warrant was issued for his failure to appear.
{¶8} On November 27, 2019, Flinders’ attorney filed another “Answer to
Complaint, Affirmative Defense, and Memorandum in Support.”3 (Emphasis sic.)
(Doc. No. 14). Similar to his prior “Answer,” Flinders treated the matter as though
it was civil, responding to each sentence individually. In this new “Answer,” he
3
It is unclear at what point prior to this the attorney was released from the hospital as this was the next
relevant filing in the record.
-4-
Case No. 13-20-02
provided exhibits with pictures showing that there had been a fence on the property
previously and that the fence was almost complete when he was cited for
erecting/replacing the fence. Flinders contended that he was not in violation of the
city ordinance because the codified ordinance did not specifically include replacing
a fence in the list of things that required a permit.
{¶9} Another hearing was held on December 10, 2019. At the beginning of
the hearing, the trial court addressed Flinders and explained that Flinders did not
come for his pretrial/plea hearing so a bench warrant was issued for him. The trial
court then addressed Flinders’ attorney, asking if she was licensed in the State of
Ohio, and she indicated she was. The trial court then stated that the matter was a
criminal proceeding not civil, so the trial court was “curious about some of your
pleadings here” because they did not “make a lot of sense.” (Dec. 10, 2019, Tr. at
3). The trial court asked Flinders’ attorney how Flinders wished to plead, and she
stated that Flinders wanted to enter a plea of no contest.
{¶10} The trial court addressed Flinders, asking if he understood that “by
entering a plea of no contest, you’re admitting the truth of the facts as alleged on the
face of the ticket or the complaint?” (Id. at 4). Flinders responded in the affirmative.
Flinders also indicated he was aware of the minimum and maximum possible
penalties.
-5-
Case No. 13-20-02
{¶11} The trial court then had a discussion with Flinders’ attorney about her
filings in this case, and about her absence at the prior hearing. Flinders’ attorney
emphasized that she was in the ICU, but the trial court stated she probably needed
to pass on the case if she was incapacitated, or, in the alternative, had someone cover
for her. The trial court stated it did not want to “ever see some filings like this
again[.]” (Id. at 7).
{¶12} The trial court then asked if Flinders’ attorney wanted to say anything
about the facts. Flinders’ attorney stated she had reviewed “a ton of stuff” and she
thought “replacement” was not included in the Fostoria Codified Ordinance related
to zoning. (Dec. 10, 2019, Tr. at 8). She claimed she also looked into the State
Board of Building Codes and “replace” was absent. (Id.) She felt the absence of
“replace” in those areas was significant. (Id.) Flinders’ attorney then argued that
Flinders had a fence on his property previously and he was simply replacing it.
When the neighbors made claims that a fence was never on the property, Flinders
had pictures from a prior realtor in 2012 showing that a fence was present and that
Flinders was replacing the same fence in the same fence line. (Id. at 9).
{¶13} After the argument of Flinders’ attorney, the trial court proceeded to
read some of the things that were included in the record regarding Flinders’ fence
construction and his lack of a permit. When Flinders’ attorney challenged some of
the issues presented by the trial court, the trial court asked why her client was
-6-
Case No. 13-20-02
entering a “no contest” plea if he was challenging the facts. She responded that “We
were advised that this was a frivolous thing and we just needed to do for judicial
efficiency[.]” (Id. at 10).
{¶14} The trial court responded, “I don’t know. If I was in handcuffs, I don’t
think it would be frivolous.” (Id. at 11).
{¶15} Flinders then requested to make a statement, which he did, and a
conversation ensued afterward, reading as follows.
[FLINDERS]: Last year, in 2018, I put up the east side and the
north side of the fence. That’s when the first falls – calls come in
[from the neighbors]. I came up and seen [zoning inspector] and
I explained to him what I was doing. And I put the other half up
this year because it was a monetary issue. I’m on disability. He
said, no problem. I heard nothing more out of it. Okay. Then
I’m out, I stopped in here when I paid my water bill and I say, I
said, I’m going to let you know I’m going to finish that fence. He
said, you need a permit. I said, why do I need a permit this year?
Can I say what he said?
THE COURT: Well, it’s supposed to be within a 12-month period
of time that you get the fence erected.
MR. FLINDERS: Well, I was within 12 months.
THE COURT: So if you’re going – I don’t know, he’s back there
shaking his head.
MR. FLINDERS: It was, it was this fall. It was last fall to this
fall.
THE COURT: Yeah, it wasn’t fall yesterday. Okay.
MR. FLINDERS: I put it up last fall.
-7-
Case No. 13-20-02
THE COURT: Was it within 12 months.
MR. FLINDERS. Yes, it was.
THE COURT: Was it?
MR. FLINDERS: Yes.
THE COURT: I’m looking at him. No.
[Zoning Inspector]: No.
THE COURT: He says no.
(Tr. at 11-12).
{¶16} Following this dialogue, the trial court stated, “Based upon my review
of the reports, the statements in open court, and your plea of no contest, there will
be a finding of guilty.” (Id. at 12-13). The trial court asked for the prosecutor’s
recommendation, and the prosecutor indicated that this entire case was over a $25
permit, then recommended a $50 fine. Flinders and his attorney had nothing to say
regarding punishment and a $50 fine was imposed. A judgment entry
memorializing Flinders’ sentence was filed that same day. It is from this judgment
that he appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
The trial court erred in convicting appellant when there was
insufficient evidence to prove beyond a reasonable doubt that he
violated the charge of which he was found guilty, “Failure to
Obtain a Zoning Certificate.” The prosecutor presented no
evidence to justify or explain why appellant was required to
obtain the permit he was convicted for not having obtained.
-8-
Case No. 13-20-02
Assignment of Error No. 2
The court abused its discretion when it denied attorney’s motion
for good cause, which was faxed from the ICU, and requested the
hearing be rescheduled.
Assignment of Error No. 3
The trial court erred when it subsequently issued a warrant on
appellant for failing to appear by himself while attorney was
hospitalized after the motion was denied.
Assignment of Error No. 4
The trial court erred by committing judicial misconduct in
violation of Jud. Cond. Rules 1.2, Promoting Confidence in the
Judiciary; 2.2 Impartiality and Fairness; 2.3, Bias, Prejudice, and
Harassment (B); and 2.6, Ensuring the Right to Be Heard (A).
{¶17} We elect to address some of the assignments of error together, and out
of the order in which they were raised.
First Assignment of Error
{¶18} In Flinders’ first assignment of error he argues that there was
insufficient evidence presented to convict him. He argues that the prosecution did
not establish through any explanation of circumstances that the Fostoria Codified
Ordinances, specifically the zoning section, actually required him to have a permit
to build a fence.
{¶19} Importantly, Flinders entered a no contest plea to, and was convicted
of, a minor misdemeanor. Pursuant to R.C. 2937.07, “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
-9-
Case No. 13-20-02
offense, and the judge or magistrate may base a finding on the facts alleged in the
complaint.” (Emphasis added.); accord City of Girard v. Giordano, 155 Ohio St.3d
470, 2018-Ohio-5024, ¶ 13 (“The statute further provides that
no explanation of circumstances is required for a plea of no contest to
a minor misdemeanor.”) Thus, in this case, the trial court needed to look no further
than the face of the complaint, which stated that “on or about September 13, 2019
[Flinders] did unlawfully erect, construct, enlarge, convert, move, add to, or alter a
structure without a certificate issued by the Zoning Inspector and in conformity with
the Zoning Code.” (Doc. No. 1). This establishes the essential elements of a
violation of Fostoria Codified Ordinance 1107.02(a)(1).
{¶20} Even if the trial court did need to look beyond the face of the complaint
in this matter, the definitions in the zoning section of the Fostoria Codified
Ordinances establish that “structures” include fences and that “alterations” would
encompass any changes. See Fostoria Codified Ordinance 1106.01(144);
1106.01(11). Therefore even though “replace” was not explicitly listed under
1107.02(a)(1), making any changes to a fence would readily fall within the ambit of
the ordinances by the definitions given and would require a permit.
Notwithstanding this point, Flinders admitted at his plea hearing that he did not get
a permit to build his fence. For all of these reasons we cannot find that there was
-10-
Case No. 13-20-02
insufficient evidence presented to convict Flinders. Therefore, his first assignment
of error is overruled.
Fourth Assignment of Error
{¶21} In Flinders’ fourth assignment of error, he argues that the trial judge
violated various codes of judicial conduct. However, The Board of Commissioners
on Grievances and Discipline of the Supreme Court of Ohio has exclusive
jurisdiction over the alleged misconduct of judges. Barton v. Barton, 2d Dist.
Greene No. 2015-CA-53, 2016-Ohio-5264, ¶ 31, citing Brown v. Weidner, 3d Dist.
Seneca No. 13-06-08, 2016-Ohio-6852, ¶¶ 17-18. Therefore the proper method to
raise such allegations is by a grievance filed before the Board, not in a brief filed
before this Court.4 Barton at ¶ 31, citing Madison Cty. Bd. Of Commrs. V. Bell, 12th
Dist. Madison No. CA2005–09–036, 2007–Ohio–1373, ¶ 15. For these reasons
Flinders’ fourth assignment of error is overruled.
Second and Third Assignments of Error
{¶22} In Flinders’ second assignment of error, he argues that the trial court
erred by denying his motion for a continuance. In his third assignment of error, he
argues that the trial court erred when it issued a bench warrant for Flinders’ failure
to appear at the November 7, 2019 hearing.
4
In suggesting the proper venue for these claims to be filed we are making no comment on their validity.
Moreover, we note that Flinders makes numerous claims that are outside of the record on appeal regarding
judicial statements and statements made by the prosecutor, and we would not be able to consider them in any
event.
-11-
Case No. 13-20-02
Standard of Review
{¶23} The grant or denial of a continuance is within the sound discretion of
the trial judge and we will not reverse a determination regarding a continuance
absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 68 (1981). An
abuse of discretion is a decision that is arbitrary, capricious, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶24} The Supreme Court of Ohio has created a list of factors to be
considered in evaluating a motion for continuance, which includes: the length of
delay requested, whether other continuances have been requested and received;
inconvenience to litigants, witnesses, and the trial court; whether the delay is for
legitimate reasons or dilatory, purposeful, or contrived; whether the defendant
contributed to the circumstances giving rise to the request, and any other relevant
factors. Unger, supra, at 68.
Analysis
{¶25} In this case, after arraignment on October 15, 2019, a pretrial/potential
change-of-plea hearing was scheduled for November 7, 2019.
{¶26} On October 22, 2019, Flinders’ attorney filed a fifteen page “Answer
to Complaint, Affirmative Defense, and Counterclaim” to the criminal complaint.
The trial court made a note to set the matter for a hearing on Flinders’ filing, and
the matter was assigned for a hearing at the same time the hearing was previously
-12-
Case No. 13-20-02
scheduled: November 7, 2019. The hearing was “Re: Documents filed by Def
Atty.” (Doc. No. 10).
{¶27} On November 4, 2019, Flinders’ attorney filed a handwritten “Motion
to Reschedule Hearing,” requesting an indefinite continuance as she was in the ICU
in the hospital and was uncertain when she would get out. The trial court summarily
denied the motion the next day.
{¶28} The matter proceeded to the scheduled hearing on November 7, 2019.
Neither Flinders nor his attorney were present for the hearing and a bench warrant
was issued for Flinders due to his failure to appear.
{¶29} The next document filed in the record is a revised “Answer to
Complaint, Affirmative Defense, and Memorandum in Support” filed November
27, 2019. Thereafter, on December 10, 2019, the matter proceeded to a change-of-
plea hearing.
{¶30} Flinders now argues on appeal that it was error for the trial court to
deny the motion for continuance when his attorney was in the hospital. Although
the trial court summarily denied the motion for a continuance, it provided some
potential explanation at the change-of-plea hearing, indicating that if Flinders’
attorney was unable to represent him due to her health, she should not have taken
the case. As the scheduled November 7, 2019 hearing was not a final hearing, the
-13-
Case No. 13-20-02
trial court also suggested that Flinders’ attorney could have gotten someone to cover
for her.
{¶31} In addition to the trial court’s statements, we emphasize that in
Flinders’ attorney’s request for a continuance, she requested essentially an indefinite
delay in the case for a minor misdemeanor. She did not know herself when, or
presumably even if, she’d be able to represent Flinders again. Although being in
the hospital is undoubtedly a fair reason to request a continuance, based on the facts
and circumstances of this case we cannot find that the trial court abused its discretion
in denying it.
{¶32} Moreover, “a defendant must show that she or he was prejudiced by
the trial court’s failure to grant a requested continuance.” State v. Curtis, 7th Dist.
Belmont No. 18 BE 0007, 2019-Ohio-499, ¶ 27, citing State v. Myers, 154 Ohio
St.3d 405, 2018-Ohio-1903. Here, after the hearing that Flinders missed, his
attorney filed another “answer” to the complaint and was able to argue the issues at
the December 10, 2019, hearing if she had chosen to do so, or Flinders could have
proceeded to a trial on the merits. Instead, Flinders elected to plead no contest. We
cannot find any prejudice here. Thus Flinders’ second assignment of error is
overruled.
{¶33} Finally, Flinders argues in his third assignment of error that the trial
court erred by issuing a bench warrant for Flinders’ failure to appear at the
-14-
Case No. 13-20-02
November 7, 2019 hearing. However, there is nothing in the record excusing
Flinders from the hearing and his request for a continuance was denied. Flinders
did, in fact, fail to appear for the hearing. Any statement made to Flinders by his
trial counsel that Flinders did not need to attend the hearing—which would be
outside of our record—would not be binding upon the trial court. Therefore his
third assignment of error is overruled.
Conclusion
{¶34} For the foregoing reasons the assignments of error are overruled and
the judgment of the Tiffin-Fostoria Municipal Court is affirmed.
Judgment Affirmed
PRESTON, J., concur.
WILLAMOWSKI, J., concurs in Judgment Only.
/jlr
-15-