City of North Olmsted v. Rock

          Criminal Appeal from the Rocky River Municipal Court Case No. 2016 CRB 2047

          ATTORNEY FOR APPELLANT Wendy S. Rosett 16781 Chagrin Boulevard, Suite 304 Shaker Heights, Ohio 44120

          ATTORNEYS FOR APPELLEE Michael R. Gareau, Jr. Director of Law Bryan P. O'Malley Assistant Director of Law

          BEFORE: Blackmon, J., Boyle, P.J., and Keough, J.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE

         {¶1} Defendant-appellant, Kim M. Rock ("Rock"), appeals from the judgment of the Rocky River Municipal Court finding her guilty of failing to maintain her property in accordance with the requirements of the city's property maintenance code, and failing to comply with a notice to remove trash and debris from her property. She assigns the following errors for our review:

I. [Rock's] convictions on both counts were based upon insufficient evidence and were otherwise against the sufficiency and/or manifest weight of the evidence and not beyond a reasonable doubt contrary to Ohio law and the State and Federal Constitutions, particularly given the lack of argument, evidence or finding as to the mandatory mens rea.

II. The trial court erred to the prejudice of [Rock] by sentencing her to 60 days in jail, l0 days to be served, 4 years of probation, improper conditions, and fines in violation of Ohio law and [Rock's] right to due process of law, and her right against imposition of excessive sentences set forth in the Eighth and Fourteenth Amendments to the U.S. Constitution and Section 16, Article I of the Ohio Constitution.

         {¶2} Having reviewed the arguments of the parties and the pertinent law, we affirm the convictions, reverse the sentence in part, and remand for resentencing. The apposite facts follow.

         {¶3} In August 2016, Rock was charged with two violations of failing to maintain her property in accordance with the North Olmsted Building Code by failing to remove trash and debris, and failing to comply with notice of code violations, in violation of North Olmsted Code Sections 1363.105, 1363.302.1, and 1363.302.2.

         {¶4} Rock pled not guilty and the matter proceeded to a bench trial on March 1, 2017. The city's evidence demonstrated that in early May 2016, North Olmsted Building Inspector James McGaughey ("Inspector McGaughey") visited Rock's property, located on Mackenzie Road, and observed violations for a rusted trailer, accumulated trash and debris, and discarded materials. One week later, he returned to the property and took photographs depicting ongoing violations. On May 11, 2016, Inspector McGaughey spoke with Rock to further explain the violations. The following month, he again visited the property and spoke with her about the violations.

         {¶5} On June 13, 2016, Inspector McGaughey noted and photographed the ongoing violations. He issued Rock a Notice of Code Violations identifying that the trailer remained in the yard, and there was accumulated trash, debris, and discarded materials. The notice apprised Rock that she was to take corrective action by June 22, 2016, or she would face penalties identified in North Olmsted Code Section 1363, unless she administratively appealed.

          {¶6} When Inspector McGaughey returned to Rock's property on June 23, 2016, he noted continuing noncompliance. He photographed rubbish and various other items, including rusted metal, an aquarium, tarps, shelving, and wood. He sent Rock a second notice of Code Violations explaining that there was accumulated trash, debris, and discarded materials. The notice apprised Rock that she was to take corrective action by July 11, 2016.

         {¶7} Inspector McGaughey returned to the property on July 14, 2016, and met with Rock. According to McGaughey, the trailer was removed but rubbish and discarded materials violations needed to be removed, including various totes, discarded items and other clutter, including an aquarium, shelving, wood, and rubbish. He then gave her until July 26, 2017, to comply. On that date, he noted some improvement that "was still not sufficient."

         {¶8} McGaughey admitted that Rock had questions about the violations, and he stated that he met with her on the property and pointed out each item that had to be removed.

         {¶9} For her defense, Rock testified that she did not receive information concerning an appeal from the violations notice until after she was criminally cited. She further testified that she did understand the violation notices and did not understand the specifics of why she was cited. She explained that the items were in her yard as part of various furniture refinishing, home repair, gardening, and other seasonal projects. Rock stated that in response to her repeated inquiries seeking clarification, Inspector McGaughey either ignored her or referred her to the building code.

         {¶10} At the conclusion of the trial, the court found as follows:

1. The North Olmsted Building Department gave defendant notice on or about 5/02/16 alleging [specific] violations of North Olmsted Building Codes [and giving] defendant until 5/09/16 to abate the violation.

2. Defendant asked for and received more time to abate the violations.

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4. In a Notice of Code Violation dated 6/13/16 (Plaintiff's Exhibit 1), defendant was advised specifically as to items that had to be removed, including both the trash and debris and the discarded materials.

5. That notice (Plaintiff's Exhibit 1) gave defendant until 6/22/16 to correct the violations [and advised of appeal procedures].

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7. No appeal was filed per the detailed instructions [on the ...