Court of Appeals of Ohio, Eighth District, Cuyahoga
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.
Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
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.
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
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.
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.
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
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.
Law and Analysis
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 ...