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City of Lakewood v. Radostitz

Court of Appeals of Ohio, Eighth District, Cuyahoga

May 17, 2018


          Criminal Appeal from the Lakewood Municipal Court Case No. 2016 CRB 01662

          ATTORNEYS FOR APPELLANT Russell S. Bensing, James P. Sammon Kohrman Jackson & Krantz P.L.L.

          ATTORNEYS FOR APPELLEE Kevin M. Butler Law Director City of Lakewood Pamela L. Roessner Prosecuting Attorney Andrew N. Fleck Assistant City Prosecutor

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


          TIM McCORMACK, P.J.

         {¶1} Defendant-appellant Joseph Radostitz ("Joseph") appeals his sentence for one count of assault in violation of Lakewood Codified Ordinances 537.03, a first-degree misdemeanor. On appeal, Radostitz contends that the trial court abused its discretion when it imposed a sentence of five years of community control that included the condition that he have no contact with his minor children. The city of Lakewood did not oppose Radostitz's brief on appeal. Rather, it filed a notice advising the court that the city had "no opposition to resentencing." In its notice, the city consented to the remand "based on the stay granted" in this matter, "which has been functioning satisfactorily for all parties." Following an independent and thorough review of the record, we vacate in part and remand.

         Procedural and Substantive Background

         {¶2} In October 2016, Joseph Radostitz was charged in Lakewood Municipal Court with one count of domestic violence against his wife, Molly Radostitz ("Molly"), resulting from an altercation that occurred when Molly went to the home of her estranged husband to gather some of her belongings. According to the complaint filed by Molly, Joseph pushed Molly "to the ground several times during an altercation." Joseph explained at his sentencing that the altercation involved a "tussle" over the family pet.

         {¶3} At the initial plea hearing, Joseph entered a plea of not guilty, and the court imposed a domestic violence protection order, listing Molly and the couple's three minor children as protected persons. On December 22, 2016, however, the parties agreed to an amended charge of assault in violation of Lakewood Codified Ordinances 537.03, which is a first-degree misdemeanor. The trial court found Joseph guilty and scheduled the matter for sentencing.

         {¶4} Shortly thereafter, Joseph filed a motion to terminate the temporary protection order as it related to the children. In support of his motion, Joseph advised the court that prior to the altercation, he was separated from Molly and he was an involved father of their three children who fully exercised his rights under a temporary shared parenting agreement that was in place during the pendency of the divorce from Molly. Joseph requested termination of the protection order only as it related to the children, and he suggested "the use of third parties to transport the children so the temporary protection order in favor of his wife would be honored." In its opposition, the city noted its objection to a complete termination of the order but stated that Molly, the victim, had no objection to a modification of the protection order to allow Joseph's visitation with the children. The city noted its concerns that Joseph's motion did not name a specific third party "to handle the drop-offs or pick-ups, so that Defendant would not have contact with Molly * * *."

         {¶5} On January 26, 2017, the court held a hearing on defendant's motion. At the hearing, defense counsel advised the court that there was a pending divorce action between the parties that included a temporary custody plan approved by the domestic relations judge presiding over that matter. The trial court in this matter noted its concern about a modification of the protection order being in conflict with an order out of domestic relations court. The court also noted that its job was to ensure the "protection and safety of the people involved in this case, " including "the victim and the [couple's] children." Finding that Joseph failed to provide the court with a copy of the domestic relations order, the trial court denied Joseph's motion.

         {¶6} On February 22, 2017, the court proceeded to sentencing. At the sentencing hearing, the court stated that it had reviewed the presentence investigation report, the defendant' statement, and the police report. The court heard from the victim, who acknowledged the couple's shared parenting plan that existed prior to the assault, the defendant, and defense counsel. The court then sentenced Joseph to five years community control sanctions with the condition, among others, that he have no contact "with Molly * * * or her children."[1] After imposing sentence, the trial court indicated that Joseph's sentence was "subject to reconsideration after review of any court order from the domestic relations court."

         {¶7} On March 10, 2017, Joseph filed a "motion for modification of sentence relating to paternal visitation right only." In support, Joseph indicated that the incident with Molly and the family dog occurred outside the presence of the children; at the time of the incident, the couple was litigating custody of the children and visitation by the parents; he is very involved in the children's lives; he was a stay-at-home father for five years while Molly attended school and attained her teaching and master's degrees; and he has no prior criminal record. Joseph also asserted that because of the no-contact order, he had not seen his children since October 11, 2016.

         {¶8} Joseph attached to his motion a copy of a letter from Molly's counsel, stating that "Molly proposes that she will immediately join [Joseph] in seeking a termination of the protection order regarding the children"; plaintiffs motion to modify temporary allocation of parental rights, in which Molly stated that she believes it is in the best interest of her children to have visitation with their father; and a copy of the agreed judgment entry from the domestic relations court governing the temporary allocation of parental rights. The agreed entry, that was signed by all parties, counsel, and the domestic relations judge, provided that both parents are "designated shared custodians of the minor children." The agreement further provided that the parties entered into an agreed judgment entry regarding the temporary allocation of parental rights and "by this agreement, both parties agree to seek a modification of the temporary protection order so that the defendant may have contact with the minor children." Finally, the parties agreed that "[Joseph and Molly] shall have no communications or contact with ...

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