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City of Cleveland v. Brown

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 19, 2019

CITY OF CLEVELAND, Plaintiff-Appellee,
v.
GRAIG A. BROWN, Defendant-Appellant.

          Criminal Appeal from the Cleveland Municipal Court Housing Division Case No. 2015 CRB 016131

          Barbara A. Langhenry, Cleveland Director of Law, and Kortney Mosley, Assistant Director of Law, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant

         ON RECONSIDERATION

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, J.

         {¶1} Pursuant to App.R. 26(A)(1)(a), defendant-appellant, Graig Brown, has filed an application for reconsideration of this court's opinion in Cleveland v. Brown, 8th Dist. Nos. 107939 and 108145, 2019-Ohio-4457. The city has not opposed Brown's application.

         {¶2} The general test regarding whether to grant a motion for reconsideration under App.R. 26(A)(1)(a) '"is whether the motion * * * calls to the attention of the court an obvious error in its decision or raises an issue for our consideration that was either not considered at all or was not fully considered by [the court] when it should have been."' State v. Dunbar, 8th Dist. No. 87317, 2007-Ohio-3261, ¶ 182, quoting Matthews v. Matthews, 5 Ohio App.3d 140, 143, 450 N.E.2d 278 (10th Dist. 1982).

         {¶ 3} Brown's motion raises an issue that we did not previously consider. Accordingly, we grant Brown's motion for reconsideration as to the second and third assignments of error. We vacate the earlier opinion and issue this opinion in its place. See App.R. 22(C); see also S.Ct.Prac.R. 7.01.

         {¶ 4} Brown appeals from the trial court's judgment that found him guilty of failing to furnish a certificate of disclosure in violation of Cleveland Codified Ordinances ("Cleveland Cod. Ord.") 367.12(c) and sentenced him to 180 days in jail, five years of community control, and a $1, 000 fine. We affirm Brown's conviction, but vacate his sentence and remand for a new sentencing hearing.

         I. Background

         {¶ 5} In July 2015, Brown was charged with two counts of failing to furnish a certificate of disclosure in connection with the transfer of property located at 3333 East 142nd Street, Cleveland, Ohio, in violation of Cleveland Cod. Ord. 367.12(c).

         {¶ 6} On October 29, 2018, Brown appeared before the Housing Court and entered a plea of no contest to one count of failing to furnish the required certificate of disclosure; the other count was dismissed. The court found Brown guilty and conditioned his release upon the posting of a $5, 000 bond and GPS monitoring. Brown was unable to post bond, and the case was set for sentencing three days later on November 1, 2018.

         {¶ 7} At the sentencing hearing, defense counsel moved to withdraw Brown's no contest plea. The trial court held a hearing on the motion to withdraw and then denied the motion. After hearing from a housing court specialist, members of the community, and counsel, the trial court sentenced Brown to 180 days in jail, five years of active community control, and a $1, 000 fine. This appeal followed.

         II. Law and Analysis

         A. Motion to Withdraw No Contest Plea

         {¶ 8} Immediately prior to sentencing, defense counsel informed the trial court that Brown wanted to withdraw his no contest plea. Counsel said that Brown felt his plea was a "rush to judgment," he had not had an opportunity to properly review all of the discovery in the case prior to pleading no contest, and "quite frankly, he only took the plea so he could get out of jail, and that didn't happen." (Nov. 1, 2018, tr. 2.) Counsel also argued that some of Brown's signatures on various documents attached to the presentence-investigation report had "different variations" that counsel asserted "raise[d] the issue of did Mr. Brown actually sign this deed or did someone else perpetrate Mr. Brown's ...


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