Cleveland v. Cornely

2021 Ohio 3459

Opinion

[Cite as Cleveland v. Cornely, 2021-Ohio-3459.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, : No. 110088 v. :

JOHN P. CORNELY, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: September 30, 2021

Criminal Appeal from the Cleveland Municipal Court Case No. 2018-CRB-17558

Appearances:

Ohio Crime Victim Justice Center, and Elizabeth A. Well and Diva Edel, for intervening appellees H.C. and E.C.

Jay F. Crook, Attorney at Law, L.L.C., and Jay F. Crook, for appellant.

Cullen Sweeney, Cuyahoga County Public Defender, and John T. Martin, Erika B. Cunliffe, and Michael Wilhelm, Assistant Public Defenders, urging reversal for amicus curiae Cuyahoga County Public Defender. LISA B. FORBES, J.:

Appellant John P. Cornely (“Cornely”) appeals the trial court’s

decision and order extending his community-control sanctions for two years. After

reviewing the law and pertinent facts of the case, we reverse.

I. Procedural History

On January 22, 2019, Cornely pled guilty to one count of domestic

violence. On February 19, 2019, he was sentenced to 180 days in jail with 180 days

suspended upon the completion of three years of community-control sanctions. The

community-control sanctions required that he have no contact with his wife, M.C.

On September 28, 2020, M.C. filed an emergency motion to show

cause with the trial court alleging that Cornely violated the no-contact order of his

community-control sanctions. M.C. claimed “[o]n September 25, 2020 Defendant

John P. Cornely, by and through attorney Samuel Lauricla, sent to [her]

undersigned counsel a Notice of Special Meeting of Members * * *.” Cornely and

M.C. are the sole members of Mabel Property L.L.C., the business entity that was the

subject of the notice.

On October 6, 2020, the trial court held a hearing on M.C.’s motion.

The prosecutor for the city of Cleveland was present, but explained “the City has no

position, regarding [M.C.’s] motion.” The prosecutor clarified that the city does

pursue matters where it perceives a violation of community-control sanctions

occurred, but the city considered M.C.’s motion to present a civil issue, not a

criminal one. At the hearing, the court heard no testimony. However, counsel for both M.C. and Cornely argued. Both lawyers stated that the notice went from

Cornely’s attorney to M.C.’s attorney. Cornely’s attorney explained repeatedly that

divorce proceedings between M.C. and Cornely were ongoing. From the bench, the

court found that Cornely was in violation of the no-contact order and extended his

community-control sanctions for two additional years.

In an October 6, 2020 journal entry — which is the entry attached to

Cornely’s notice of appeal — the trial court did not find that Cornely violated his

community-control sanctions (the “first October 6 journal entry”). Nevertheless, the

journal entry extended Cornely’s community-control sanctions for two additional

years and reiterated that he is to have “no contact.” An October 8, 2020 journal

entry note explained Cornely “may only have contact with victims atty [sic] to

resolve business or divorce issues.” The trial court’s record contains a different

version of the journal entry dated October 6, 2020, which finds Cornely in violation

of his community-control sanctions and specifically states “defendant may only have

contact w/victim’s atty [sic] to resolve business or divorce issues” (the “second

October 6 journal entry”).

II. Law and Analysis

In his sole assignment of error, Cornely argues:

The trial court committed reversible error by holding a final hearing on an alleged probation violation when no violation wa[s] filed for by the state of Ohio, Mr. Cornely was not given adequate time to prepare for the hearing, the evidence was not authenticated, no sworn testimony was taken, Mr. Cornely was not given the opportunity to cross examine his accusers and there was no written findings as to the basis for the violation. “We review a trial court’s decision finding a violation of community

control for an abuse of discretion.” State v. Swails, 8th Dist. Cuyahoga No. 100480,

2014-Ohio-3711, ¶ 12. A court abuses its discretion when it acts unreasonably,

arbitrarily, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

Here, because Cornely was initially sentenced to 180 days in jail,

which was suspended, along with three years of community-control sanctions,

R.C. 2929.25(D) applies. “A court can extend or impose more restrictive sanctions

within the community control sanction imposed on a suspended jail sentence only

if the offender violates the terms of community control.” (Emphasis added.) Bay

Village v. Barringer, 8th Dist. Cuyahoga No. 102432, 2015-Ohio-4079, ¶ 8, citing

R.C. 2929.25(D). That is, the trial court has jurisdiction to alter Cornely’s

community-control sanctions if it finds that he violated the terms of his existing

community-control sanctions. See Barringer (finding that the trial court lacked

jurisdiction to modify the defendant’s community-control sanctions absent a finding

of a violation when he was sentenced to a suspended jail term and community-

control sanctions); Walton Hills v. Olesinski, 8th Dist. Cuyahoga No. 109032,

2020-Ohio-5618, ¶ 26 (holding that a trial court lacks jurisdiction to alter a final

sentence under R.C. 2929.25(A)(1)(b) of community-control sanctions when it did

not find that the defendant violated the community-control sanctions).

We note that the journal entry Cornely appealed from, the first

October 6 journal entry, did not include a finding that Cornely violated the terms of his community-control sanctions. The trial court’s journal entry states that a

community-control violation hearing was held, it states that probation was extended

for two years, but it does not state that Cornely was found to be in violation of his

community-control sanctions. It is well established that a court speaks through its

journal entries. State ex rel. Worcester v. Donnellon, 49 Ohio St.3d 117, 118, 551

N.E.2d 183 (1990). Because the first October 6 journal entry did not find Cornely in

violation of his community-control sanctions, on the basis of that aspect of the

record, the trial court lacked jurisdiction to extend his community-control

sanctions. See Olesinski.

In a somewhat unusual turn of events, the trial court’s record includes

a different version of the October 6, 2020 journal entry that is similar to the first.

We see no explanation in the record for this second journal entry. The second

October 6, 2020 journal entry does include a finding that Cornely violated his

community-control sanctions. Even under this second October 6 journal entry, the

finding that Cornely violated his community-control sanctions was improper for two

reasons.

First, the question of whether Cornely violated his community-

control sanctions was not properly before the court. The court did not follow the

proper procedures as enumerated in R.C. 2929.25(D)(1). The statute makes clear

that an alleged violation must be brought before the court by specific enumerated

entities and people. Subsection (D)(1) states: [I]f the offender violates any of the conditions of the sanctions, the public or private person or entity that supervises or administers the program or activity that comprises the sanction shall report the violation directly to the sentencing court or to the department of probation or probation officer with general control and supervision over the offender. If the public or private person or entity reports the violation to the department of probation or probation officer, the department or officer shall report the violation to the sentencing court.

Here, the court held a community-control sanctions violation hearing

on M.C.’s motion to show cause, which alleged that Cornely was in contempt of the

court’s no-contact order. At the hearing, M.C.’s attorney stated that a purpose of the

motion to show cause was to ask the court “to find [Cornely] to be a probation

violator * * *.” “This court long ago held that the ‘proper procedure for punishing

an offender for violation of probation is * * * not a contempt hearing.’” Cleveland v.

Serrano, 8th Dist. Cuyahoga Nos. 109754, 109755, and 109857, 2021-Ohio-1586, ¶

28, quoting Shaker Hts. v. Hairston, 8th Dist. Cuyahoga No. 74435, 1998 Ohio App.

LEXIS 5955, 13 (Dec. 10, 1998). Because the alleged violation did not come before

the court through the statutorily enumerated entities or people and because M.C.’s

motion is based in civil contempt, the court improperly held a community-control

sanctions violation hearing.

Second, the court’s finding that Cornely violated the terms of his

community-control sanctions is unreasonable and arbitrary. The only allegation

leveled by M.C. was that Cornely’s attorney delivered to M.C.’s attorney a notice

related to a meeting of the owners of a limited liability company owned by M.C. and

Cornely. The court made it clear that this is an approved manner of communication. At the hearing, the court said to Cornely: “No contact means just that.

* * * [M.C.] has an attorney * * * if you wanna have communication with her,

Attorney Cornely, then you fully are aware that you should’ve sent that

correspondence to her attorney and not to her * * *.” Further, when Cornely asked

the court whether his attorney was permitted to contact M.C.’s attorney, the court

responded, “Clearly, attorney, that’s how things work.” Additionally, the second

October 6 journal entry and the October 8, 2020 journal entry note state that

Cornely may contact M.C.’s attorney “to resolve business or divorce issues.”

We find that the trial court erred in finding that lawyer-to-lawyer

communication was in violation of Cornely’s no-contact order with M.C. By the

court’s own statements, lawyer-to-lawyer communication is proper and permissible,

even under the no-contact order. Because the trial court’s finding was inconsistent

with its own no-contact order and its statements at the hearing, we find that the

court acted unreasonably and arbitrarily in finding Cornely in violation of his

community-control sanctions and in extending his community-control sanctions for

two years.

Cornely’s assignment of error is sustained. The trial court’s order

extending Cornely’s community-control sanctions for two years is vacated.

Judgment reversed. The extension of community-control sanctions

is vacated, and the case is remanded to the trial court for the purpose of denying

M.C.’s motion to show cause consistent with this opinion.

It is ordered that appellant recover of 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 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.

LISA B. FORBES, JUDGE

MARY J. BOYLE, A.J., and ANITA LASTER MAYS, J., CONCUR