Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
JOURNAL ENTRY AND OPINION
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.
and Substantive Background
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
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.
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
* * *."
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.
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." 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."
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.
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 ...