City of Cleveland v. Kushlak
| Docket Number | 111254 |
| Decision Date | 08 December 2022 |
| Citation | 203 N.E.3d 160 |
| Parties | City of CLEVELAND, Plaintiff-Appellee, v. Anthony KUSHLAK, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Mark Griffin, Cleveland Director of Law, and Nathaniel P. Hall, Assistant Director of Law, for appellee.
Michela Huth, Bolivar, for appellant.
JOURNAL ENTRY AND OPINION
{¶ 1} Defendant-appellant, Anthony Kushlak ("Kushlak"), appeals a January 20, 2022 order of the Cleveland Municipal Court, Housing Division ("Housing Court"), modifying his community control sanctions. For the following reasons, we vacate the judgment and remand for further proceedings.
{¶ 2} On July 21, 2020, the city of Cleveland ("city") filed a five-count complaint, in Cleveland M.C. No. 2020-CRB-007383, alleging Kushlak violated Cleveland Codified Ordinances ("C.C.O.") 203.03 by failing to comply with an order of the Cleveland Department of Public Health to clean up trash littering the ground around the exterior of his house, keep sufficient trash containers to dispose of it, and abate the conditions that attract rodents and other vermin to his property.1 Each count of the complaint corresponded to a day that Kushlak was out of compliance with the order.2
{¶ 3} On May 10, 2021, Kushlak pled no contest to, and the municipal court found him guilty of, all five counts and ordered a presentence-investigation report. On June 28, 2021, the municipal court sentenced Kushlak to three-year community control sanctions on each count, to be served concurrently with community control sanctions imposed on Count 1. The court issued a handwritten judgment entry the same day and a typewritten judgment entry the following day. In the typewritten judgment entry dated June 29, 2021, but journalized more than a week later on July 8, 2021, the court identified Kushlak's case as a "hoarding case" and imposed the following conditions:
(Emphasis sic.) (Judgment Entry, July 8, 2021.)3
{¶ 4} The court included among the sanctions for any violation of these conditions "a definite jail term authorized for the original offense" and "community control up to five years in total." The court identified the original offense — a violation of C.C.O. 203.03 — as a first-degree misdemeanor, punishable by "a jail term of up to 18 months" and "five years of community control."
{¶ 5} On July 13, 2021, the city filed an unopposed motion requesting modification and clarification of the July 8, 2021 Judgment Entry.4 The city argued that the entry misidentified Kushlak's initial violation (Count 1) as a first-degree misdemeanor and imposed three-year community control sanctions on that count even though the relevant sentencing ordinance, C.C.O. 201.99, provides that a first offense is a minor misdemeanor and any subsequent offense is a first-degree misdemeanor. The city therefore requested that Count 1 be amended to reflect that it was a minor misdemeanor and that Kushlak's sentence be imposed on the remaining counts. The city also argued that the court improperly imposed a condition of Kushlak's community control sanctions on Department of Health Inspector Alan Mancuso ("Inspector Mancuso") and Department of Building and Housing Inspector Michael Shockley ("Inspector Shockley") in paragraphs (d) and (e) of the entry and requested that these conditions be amended to remove the sanctions from both inspectors. The city noted that the entry also improperly imposed conditions on the Cleveland Animal Protective League ("APL") and the Benjamin Rose Institute on Aging ("Benjamin Rose") in paragraphs (b) and (h), but recognizing that they were not parties to the matter and not represented by the city, the city had no authority to object on their behalf. The city further noted that Kushlak was already under community control sanctions with the Cleveland Municipal Court, General Division, which had issued an order permitting Kushlak to keep eight cats and two dogs on his property, and the Housing Court had no authority to amend this order as it had done in paragraph (b) of the entry. Finally, the city requested that the court clarify paragraph (e) of the entry to specify the nature, extent, and duration of the inspection.
{¶ 6} On July 20, 2021, the court granted the city's unopposed motion and issued an amended judgment entry, journalized July 22, 2021, identifying Kushlak's first offense as a minor misdemeanor; imposing three-year community control sanctions on the subsequent counts, to be served concurrently with each other; and modifying the additional conditions of Kushlak's community control as follows:
(Emphasis sic.) (Amended Judgment Entry, July 22, 2021.)5
{¶ 7} The status hearing scheduled for September 16, 2021, in the amended judgment entry was continued to September 20, 2021. At this hearing, the municipal court reviewed a community control status report written by Deputy Chief Housing Court Specialist Darlene English ("Deputy Chief English"), which stated that Kushlak had moved some of the trash to a neighbor's lawn for pick up but had not cleaned up the exterior of his property, discontinued working with a Benjamin Rose social worker, and started treatment at the U.S. Department of Veteran Affairs ("VA"). The court also heard testimony from Inspectors Mancuso and Shockley, who testified that Kushlak had not complied with the court's inspection orders. The court found that Kushlak had violated conditions of his community control sanctions, sentenced him to 15 days in jail, and ordered him to undergo a psychological evaluation, issuing a handwritten judgment entry journalized the same day, September 20, 2021, that included the court's findings and sentence.
{¶ 8} On September 24, 2021, the court issued a typewritten judgment entry journalized the following day that included a section titled "Terms of Community Control Modified." The court modified the terms of Kushlak's community control sanctions as follows:
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