State v. Downie

918 N.E.2d 218, 183 Ohio App. 3d 665
CourtOhio Court of Appeals
DecidedAugust 28, 2009
DocketNo. 07 MA 214
StatusPublished
Cited by18 cases

This text of 918 N.E.2d 218 (State v. Downie) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Downie, 918 N.E.2d 218, 183 Ohio App. 3d 665 (Ohio Ct. App. 2009).

Opinion

Waite, Judge.

{¶ 1} Appellant, William Downie, appeals his convictions and sentences in Youngstown Municipal Court in four consolidated cases for eight violations of the Youngstown Housing Code.

{¶ 2} On or about July 7, 2006, appellant was served with three separate but identical complaints. Each complaint alleged two violations of the Youngstown [669]*669Housing Code, misdemeanors of the third degree, based upon appellant’s failure to maintain the exterior-structure and exterior-property areas on three properties located on Fifth Avenue. Appellant was represented by attorney Alden Chevlen on those cases.

{¶ 3} On October 8, 2006, appellant pleaded no contest to all six charges and was found guilty. Apparently, appellant’s no-contest plea was based on an agreement with the prosecutor. As a part of the plea agreement, appellant authorized the city to demolish the structures on the three properties and agreed to “repay the City of Youngstown for all its expenses and costs in demolishing, testing, and abating said structures within one year of the date of [the] entry or six months following completion of demolition whichever was later.” Although the written plea agreements were a part of the record, the audiotape recording of the plea hearing could not be found.

{¶ 4} On October 27, 2006, appellant was served with a fourth complaint, alleging the same two violations as asserted in the original complaints but regarding a property on Brentwood Avenue. On December 5, 2006, appellant appeared without counsel, entered a plea of no contest to both charges in the fourth complaint, and was found guilty. Appellant agreed to pay the demolition costs of the Brentwood Avenue property directly. During the plea colloquy, the trial court inquired, “Do you understand you are also waiving your right to have a lawyer with you?” Appellant replied, “Correct.” The foregoing exchange represents the entire colloquy on the subject of self-representation.

{¶ 5} On March 1, 2007, the trial court conducted a sentencing hearing on the Brentwood Avenue case. Appellant advised the trial court that demolition was scheduled and that approximately half of the cost of demolition had been paid. The trial court continued the hearing to March 22, 2007. On that date, appellant informed the trial court that the demolition was scheduled to proceed, and the trial court continued the hearing to April 12, 2007.

{¶ 6} The Fifth Avenue structures were demolished on or about April 9, 2007, and the Brentwood Avenue structure was demolished at about the same time. At a status hearing on April 12, 2007, counsel for the city acknowledged that a final bill had not been sent to appellant regarding the Fifth Avenue properties. Because as part of the plea agreement appellant agreed to pay for costs associated with the demolition of these properties within a designated time period, counsel for the city suggested that the sentencing hearing be scheduled after the deadline set forth in the plea agreement. The trial court was also informed that attorney Chevlen had moved out of state. Thus, appellant was to find new counsel to represent him in the Fifth Avenue matter.

{¶ 7} Despite the city’s suggestion to continue the hearing beyond the deadline identified in the plea agreement, the trial court consolidated the cases and [670]*670scheduled the combined sentencing hearing for May 3, 2007. At the end of the April status hearing, when discussing the possibility that appellant might receive a sentence of probation for the charges relating to the Fifth Avenue properties on the condition that appellant repaid the city in full pursuant to his plea agreement, counsel for the city observed, “I think he is hoping for a little more. If we get paid in full, he is going to get a dismissal.”

{¶ 8} Appellant’s new counsel, Michael Hoza, appeared on his behalf at the May 3, 2007 sentencing hearing. Hoza acknowledged that appellant had received receipts for “asbestos removal and demolition” on the Fifth Avenue properties in the approximate amount of $35,000 and requested a continuance of the sentencing hearing until October 10, 2007, the deadline for paying the demolition costs provided as a part of the plea agreement, in order that appellant could “dispose of the property and pay the city back.” The sentencing hearing was rescheduled for October 18, 2007. The record reflects that counsel for the city stated that he would prefer to have the demolition funds paid on the Fifth Avenue properties prior to the October 18th hearing, so that the parties could “avoid the actual coming back.” Hoza responded, “We’re working on it.” Appellant confirmed at the hearing that he was unrepresented on the Brentwood Avenue case.

{¶ 9} At the sentencing hearing on October 18, 2007, the city informed the trial court that the structure on Brentwood Avenue had been demolished at appellant’s expense, but that the city had not been paid for the demolition of the structures on Fifth Avenue pursuant to the agreed plea within the time frame identified in the plea agreement. Appellant raised no objection at the hearing as to the $35,000 bill he received from the city. The only time that appellant’s counsel referred to the bill was in reference to his client’s inability to simply “write a check” for such a large amount of money.

{¶ 10} Appellant requested additional time to sell the Fifth Avenue properties in order to comply with the terms of the plea agreement. When appellant’s counsel suggested that appellant could enter a payment plan with the city while he looked for a buyer, the trial court responded, “Well, that’s a civil matter. I am working on the sentencing right now. That is a civil matter. You can continue to work with City [sic] on that.”

{¶ 11} At sentencing, appellant’s counsel explained that appellant would lose his job if he were incarcerated, which would negatively affect his ability to pay the demolition costs pursuant to the agreement. The trial court proceeded to sentence appellant to eight 60-day prison terms, with 30 days of each term suspended, to be served consecutively, and eight $100 fines, one for each of the eight violations in the complaints. The trial court placed appellant on five years of reporting probation until fines and costs are paid and ordered that restitution [671]*671be made for demolition, since appellant had failed to pay pursuant to his plea deal.

{¶ 12} The trial court stayed appellant’s sentence until December 20, 2007, when appellant was instructed to appear in court with “a toothbrush” and “a good story convincing [the trial judge] why [appellant] shouldn’t go to jail now.” This timely appeal followed. Although appellant filed a motion to stay his sentence pending appeal, the docket does not reflect whether that motion was granted.

{¶ 13} Appellant contends that his conviction on the Brentwood Avenue violations should be reversed because his waiver of counsel in that matter was not knowingly or intelligently made. He further argues that the order of repayment in the Fifth Avenue cases should be vacated and the matters remanded to the trial court for a hearing. In the alternative, appellant asserts that the amount of repayment should be modified because the trial court only ordered appellant to repay the city for “demolition” in its judgment entries, and the $35,000 bill includes the cost of asbestos testing and removal.

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Cite This Page — Counsel Stack

Bluebook (online)
918 N.E.2d 218, 183 Ohio App. 3d 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downie-ohioctapp-2009.