City of Lakewood v. Krebs

2008 Ohio 7083, 150 Ohio Misc. 2d 1
CourtLakewood Municipal Court
DecidedOctober 6, 2008
DocketNos. 08 B 1085, 08 B 1516 and 08 B 1517
StatusPublished
Cited by6 cases

This text of 2008 Ohio 7083 (City of Lakewood v. Krebs) is published on Counsel Stack Legal Research, covering Lakewood Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Lakewood v. Krebs, 2008 Ohio 7083, 150 Ohio Misc. 2d 1 (Ohio Super. Ct. 2008).

Opinion

Cakroll, Judge.

{¶ 1} The defendant, John Krebs, was charged with failing to maintain rental properties in the city of Lakewood. In case No. 08 B 1085, the charge involved failure to permit inspection at 1369 Beach Parkway. In case No. 08 B 1516, the charges involve ten separate violations of the building and housing code at 1343 Beach Parkway. Case No. 08 B 1517 asserted 17 separate violations of the building and housing code at 1343 Beach Parkway.

{¶ 2} After attempts to serve the defendant with the summons and complaints, the defendant appeared in court and entered a plea of not guilty in all cases. The cases were scheduled for trial for September 15, 2008. Although the defendant sought a continuance of the trial, the motion was overruled with respect to two of [6]*6the three cases before the court. The defendant appeared with counsel on September 15, 2008, and withdrew his plea of not guilty and entered a plea of no contest in all three cases. Upon a factual basis set out by the prosecutor and building inspector, the defendant was found guilty in all three cases. Sentencing was scheduled for October 1, 2008.

{¶ 3} The defendant was present with counsel at the sentencing hearing. The prosecutor and building inspector were also present.

{¶ 4} The defendant is placed on five years’ community control supervision with a fine of $500 in case No. 08 B 1085, with a balance of $500 to be imposed for violation of community control supervision, along with $1,000 and 180 days in jail in case No. 08 B 1516 and $1,000 and 180 days in jail in case No. 08 B 1517, for a total of $2,500 and 12 months in jail for further violations and/or noncompliance with building, housing, health, and safety codes (hereinafter collectively referred to as “building codes”), or any other laws.

{¶ 5} As a condition of community control supervision, the defendant shall remain under house arrest with electronic monitoring at an apartment in one of the Beach Parkway buildings designated by the defendant, with work release between 8:00 a.m. and 6:30 p.m., Monday through Friday, for a minimum of 30 days. After expiration of the 30-day house arrest, the defendant may apply to the court for release. The defendant is required to appear at the probation department on October 6, 2008, for the house-arrest monitoring device. Judgment to be reduced to writing and served upon the defendant.

{¶ 6} Prior to being released from house arrest, the defendant must show full compliance with all building codes for all buildings owned or controlled by him, directly or indirectly, including common areas and individual suites, including but not limited to the following:

(1) 1342 Beach Parkway
(2) 1343 Beach Parkway
(3) 1369 Beach Parkway
(4) 1475 Roycroft Avenue
(5) 16607-09 Delaware Avenue

{¶ 7} The defendant shall not be released from house arrest without further court order.

Housing Code Enforcement Procedures

{¶ 8} In a criminal case, the prosecutor has complete discretion in deciding whether to bring a criminal charge, as well as the nature of the charge to bring. Failure to comply with building codes is a criminal offense. Under the Lakewood Codified Ordinances, such a violation is an unclassified misdemeanor, [7]*7carrying a fine ranging from $25 to $1,000. If the defendant has a prior conviction, the offense becomes a first-degree misdemeanor with a maximum fine of $1,000 and incarceration for up to six months. A failure to comply with the building codes is enhanced to a first-degree misdemeanor only if the complaint, as the charging instrument, contains the required language that the defendant has been previously convicted of a prior offense. Whether to include this language falls within the discretion of the prosecutor.

{¶ 9} In Lakewood v. Calanni, 127 Ohio Misc.2d 39, 2002-Ohio-7485, 805 N.E.2d 598, this court required the building department and the prosecutor to state with specificity in the complaint each building-code violation. A general statement that the defendant failed to comply with the code, without specificity, falls short of the adequacy of notice to satisfy the requirements of due process of law. Thus, whether a defendant is guilty of the violations set out in the complaint turns on the specific acts of omission or noncompliance on the date set out in the complaint.

{¶ 10} While the court has an interest in the building, health, and safety codes being followed, as with all criminal laws, it is not within the authority of the court to encourage the prosecutor to commence any criminal proceedings. See, e.g., Disciplinary Counsel v. Kiacz (2002), 94 Ohio St.3d 409, 763 N.E.2d 590.

{¶ 11} A judge is not a law-enforcement officer. A judge and a law-enforcement officer are separately defined, with separate duties and responsibilities. Crim.R. 2. See also R.C. 2901.01(A)(11). As the Supreme Court noted in Disciplinary Counsel v. Hoague (2000), 88 Ohio St.3d 321, 323, 725 N.E.2d 1108, “[a] judge who observes a crime outside the courtroom has only the power of an ordinary citizen.”

{¶ 12} The responsibility of a judge is to decide matters that have been submitted to the court by the parties. Disciplinary Counsel v. O’Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 13. It is axiomatic that a judge has no authority over a person or situation unless a case is properly filed and the court’s jurisdiction is invoked. Nor does a judge have any authority to decide the type or number of cases that will be filed with the court. Rather, a judge is limited in his or her authority to the cases that are filed with the court. Building-code cases are brought to the court either as a civil matter, such as rent deposit by a tenant, or as a criminal case filed by a prosecutor. The decision to file a criminal case lies within the sole discretion of the prosecutor.

{¶ 13} Once discretion is exercised by the prosecutor and a criminal proceeding is commenced, however, the control of the case shifts from the prosecutor to the court. In a criminal case, if a finding of guilt is made, whether [8]*8by plea, bench trial, or jury trial, it is the judge’s responsibility to determine the appropriate sanction.

Sentencing Guidelines and Procedure

{¶ 14} When a defendant is found guilty of a building-code violation, it is within the court’s discretion to determine the appropriate sanction. Although classified as criminal cases, building-code cases are different from other criminal cases because the focus is upon bringing the property into compliance rather than dealing with past misconduct. See, e.g., Cleveland v. Fogos (1995), 103 Ohio App.3d 39, 47, 658 N.E.2d 789. As stated earlier, the penalties set out by statute or ordinance include fines and, depending upon the nature of the charge, a jail sentence. The court may suspend some or all of either sanction and place the defendant on community control supervision/probation for a maximum of five years. R.C. 2929.25.

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Cite This Page — Counsel Stack

Bluebook (online)
2008 Ohio 7083, 150 Ohio Misc. 2d 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-lakewood-v-krebs-ohmunictlakewoo-2008.