[Cite as Cleveland v. Meehan, 2014-Ohio-2265.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                     No. 100202



                               CITY OF CLEVELAND
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                 MICHAEL MEEHAN
                                                       DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                      Criminal Appeal from the
                                     Cleveland Municipal Court
                                     Case No. 2012 CRB 032364

        BEFORE: E.A. Gallagher, J., Celebrezze, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: May 29, 2014
FOR APPELLANT

Michael P. Meehan, pro se
3416 West 159th Street
Suite 100
Cleveland, Ohio 44111


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
Director of Law
BY: William H. Armstrong, Jr.
Assistant Director of Law
City of Cleveland
Room 106 - City Hall
601 Lakeside Avenue
Cleveland, Ohio 44114
EILEEN A. GALLAGHER, J.:

       {¶1} Defendant-appellant Michael Meehan appeals his sentence from the

Cleveland Municipal Court. For the following reasons, we affirm.

       {¶2} Meehan was the owner of a home located on East 130th Street in Cleveland,

Ohio. On July 18, 2011, a notice of violation was issued for Meehan’s property that

cited 12 Cleveland ordinance violations and required Meehan to remedy the violations by

August 17, 2011. On August 22, 2012, a complaint was issued charging Meehan with

failing to comply with the prior notice, a misdemeanor of the first degree, as well as 12

ordinance violations due to Meehan’s failure to remedy the previously noticed violations.

       {¶3} On January 24, 2013, Meehan entered a plea of no contest to the complaint.

 Although Meehan represented to the trial court that he had remedied some of the

violations, he admitted that other defects remained.          The trial court reiterated Meehan’s

duty to remedy the outstanding violations and Meehan stated that he believed he could

bring the property into compliance within 90 days.              The city prosecutor indicated it

would be satisfied with Meehan’s proposed timetable and the trial court imposed a $4,000

fine with the caveat that if he brought the property into compliance by April 24, 2013, 90

percent of the fine would be suspended.1



        The trial court’s original plea and sentencing entry failed to delineate the specific counts to
       1


which Meehan pleaded no contest and the associated sentences. We remanded for correction of this
matter which the trial court accomplished with a detailed sentencing grid explaining that Meehan
pleaded no contest to all 13 charges and detailing the specific fines associated therewith. For
purposes of this appeal and the arguments presented by Meehan, it is unnecessary to delve into the
individual counts and fines, the total of which amount to $4,000.
       {¶4} The trial court held a hearing on the matter on June 13, 2013.                 Meehan

informed the court that he had sold the property in February but did not know if the

purchaser had followed through on remedying the outstanding violations.                   The city

requested a continuance to investigate the condition of the property which the court

allowed.

       {¶5} On June 20, 2013, the city reported that the property had been boarded up

three times since it had been sold in February and that no permits had been pulled by the

new property owner.      The court explained that although Meehan, by selling the property,

had relieved himself of any future responsibility for violations involving the property, he

remained responsible for the past violations. The court found that Meehan had failed to

remedy the outstanding violations as contemplated at sentencing either through his own

efforts or by selling the property to a “beneficial owner” that the court defined as “one

that would then take it and correct the violations and be a responsible owner.”               As a

result of Meehan’s failure to meet the conditions, the court indicated its intent to execute

on the full $4,000 fine. At the request of Meehan, the trial court allowed his fine to be

converted to 400 hours of court work service.2

       {¶6} Meehan appeals and his first assignment of error provides:

       The trial court’s decision in imposing Appellant’s fine was improper,

       arbitrary and capricious because it was based on a “beneficial owner”


          The city sought to recover $1,249.50 in costs associated with work it had performed at the
       2


property during Meehan’s ownership and the trial court provided that it would reduce Meehan’s hours
of court work service in conjunction with any amount he paid upon the filing of a motion.
      theory, put forth by the City-Appellee, which is neither defined nor

      referenced in the City’s Housing Code Ordinances.

      {¶7} Trial     courts   enjoy   broad    discretion   in    imposing   sentences   for

misdemeanors.     State v. Hughley, 8th Dist. Cuyahoga Nos. 92588 and 93070,

2009-Ohio-5824, ¶ 7, citing Cleveland v. Jurco, 8th Dist. Cuyahoga No. 88702,

2007-Ohio-4305, ¶ 18. The trial court’s decision in this regard will not be disrupted

absent an abuse of discretion.    Id., citing State v. Frazier, 158 Ohio App.3d 407,

2004-Ohio-4506, 815 N.E.2d 1155, ¶ 15 (1st Dist.).               To constitute an abuse of

discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

      {¶8} The guidelines for misdemeanor sentencing are substantially similar to

those applied in felony sentencing.     The court must be guided by the purposes of

misdemeanor sentencing, which are “to protect the public from future crime by the

offender and others and to punish the offender.”            See R.C. 2929.21(A). When

determining the appropriate sentence, the court must consider the factors listed in R.C.

2929.22(B), including the nature and circumstances of the offense or offenses and

whether the circumstances indicate that the offender has a history of persistent criminal

activity and poses a substantial risk of reoffending. See R.C. 2929.22(B)(1). A trial

court’s evaluation of mitigating factors, and the weight to be given thereto, falls within

the trial court’s sentencing discretion.      Cleveland v. Franklin Inn, Ltd., 8th Dist.
Cuyahoga No. 84576, 2005-Ohio-508, ¶ 18, citing State v. Bey, 85 Ohio St.3d 487, 709

N.E.2d 484 (1999).

        {¶9} Meehan takes issue with the trial court’s use of the term “beneficial owner,”

arguing that it is an undefined term in housing law and the trial court erred in imposing

the full fine after he sold the property as opposed to the suspended amount. We find no

merit to Meehan’s argument.      The trial court fully explained to Meehan both at the plea

hearing and at the time of his sentencing that it was his duty to remedy the outstanding

property violations.   Meehan himself suggested an acceptable time frame for remedying

the violations and the trial court offered to suspend 90 percent of Meehan’s fine if he

brought the property into compliance by April 24, 2013. Meehan failed to do so. The

trial court explained that whether Meehan accomplished the necessary repairs himself or

sold to a “beneficial owner” who made the repairs, the burden was his in order to receive

the suspended fine.3     Meehan’s suspended fine was specifically conditioned upon the

property being brought into compliance, not merely upon Meehan’s sale of the property.

Meehan offered no evidence at the third hearing to suggest that the property had been

brought into compliance by the new owner or to dispute the information offered by the

city.

        {¶10} Although the sale foreclosed future liability for noncompliance from falling

upon Meehan, it did nothing to absolve him of the charges to which he pleaded no contest


        Although uncommon, we note that this court has used the term “beneficial owner” in a
        3


similar manner. See, e.g., Cleveland v. Go Invest Wisely, L.L.C., 8th Dist. Cuyahoga Nos. 95172,
95173, 95174, 95175, 95176, and 95177, 2011-Ohio-3047, ¶ 17.
or for his failure to comply with the court’s fine suspension terms.         Under these

circumstances, we cannot say that the trial judge abused his discretion in refusing to

impose the suspended fine and enforcing the full amount of the sentence.

      {¶11} Meehan’s first assignment of error is overruled.

      {¶12} Meehan’s second assignment of error states:

      The trial court’s sentence, based on a phantom “beneficial owner” is against

      the manifest weight of the evidence.

      {¶13} We find no merit to this assignment of error. The proper standard of

review for a misdemeanor sentence is abuse of discretion, as discussed above, not

manifest weight. Furthermore, a defendant who pleads no contest cannot assign as error

that his conviction, based on the plea, was against the manifest weight of the evidence.

State v. Velez, 8th Dist. Cuyahoga No. 67595, 1995 Ohio App. LEXIS 1863 (May 4,

1995); State v. Hoopingarner, 5th Dist. Tuscarawas No. 10AP080030, 2011-Ohio-3040, ¶

8.

      {¶14} Meehan’s second assignment of error is overruled.

      {¶15} Meehan’s third assignment of error states:

      The trial court’s bias in favor of the city and against Appellant is apparent

      and requires reversal.

      {¶16} This court has no jurisdiction to consider this assignment of error.

Pursuant to R.C. 2701.031(E), the presiding judge of the court of common pleas located

in the county in which the municipal court resides has the exclusive jurisdiction to
consider a complaint of judicial bias. Columbus Checkcashers, Inc. v. Guttermaster,

Inc., 10th Dist. Franklin Nos. 13AP-106 and 13AP-107, 2013-Ohio-5543, ¶ 33; State v.

Tripp, 3d Dist. Seneca No. 13-06-17, 2007-Ohio-1630, ¶ 19; State v. Hunter, 151 Ohio

App.3d 276, 2002-Ohio-7326, 783 N.E.2d 991, ¶ 17 (9th Dist.); Hardy v. Hardy, 8th Dist.

Cuyahoga No. 89905, 2008-Ohio-1925. The record reflects that Meehan has not filed an

affidavit of disqualification pursuant to R.C. 2701.031(B).

       {¶17} Meehan’s third assignment of error is overruled.

       {¶18} Meehan’s fourth assignment of error states:

       The Court’s decision based on a phantom “beneficial owner” deprived

       defendant of equal protection of state law guaranteed under the 14th

       Amendment and due process under the 5th Amendment.

       {¶19} In this assignment of error Meehan again challenges his sentence raising

issues previously addressed in the first assignment of error concerning the term

“beneficial owner” as well as advancing a nebulous equal protection argument against,

apparently, the general concept of judicial discretion in misdemeanor sentencing.

       {¶20} Failure to raise at the trial court level the issue of the constitutionality of a

statute or its application, when the issue is apparent at the time of trial, constitutes a

waiver of such issue and a deviation from this state’s orderly procedure and, therefore,

need not be heard for the first time on appeal. Cleveland v. Taylor, 8th Dist. Cuyahoga

No. 99594, 2013-Ohio-4708, ¶ 7-8, citing State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d

277 (1986), syllabus. Although Meehan fails to explain what statute he believes violates
the Equal Protection Clause, we note that, in any event, he failed to raise an equal

protection argument below despite the trial court’s clear explanation of his remedial

duties at the first and second hearings.

         {¶21} Because the record demonstrates that Meehan did not raise any

constitutional issues concerning his sentence and the remedial duties tied to the court’s

offer of a partial suspension of his fine, this court declines to address this assignment of

error.

         {¶22} Meehan’s fourth assignment of error is overruled.

         {¶23} The judgment of the trial court is affirmed.

         It is ordered that appellee recover of appellant costs herein taxed.

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.

         A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
LARRY A. JONES, SR., J., CONCUR
