[Cite as Cleveland v. Robinson, 2020-Ohio-1030.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

CITY OF CLEVELAND,                                 :

                Plaintiff-Appellee,                :
                                                             No. 109273
                v.                                 :

JOVAN ROBINSON,                                    :

                Defendant-Appellant.               :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: REVERSED AND REMANDED
                RELEASED AND JOURNALIZED: March 19, 2020


                     Criminal Appeal from the Cleveland Municipal Court
                                  Case No. 19CRB019303


                                           Appearances:

                Barbara A. Langhenry, City of Cleveland Director of Law,
                and Karyn J. Lynn, Assistant Prosecutor, for appellee.

                Mark A. Stanton, Cuyahoga County Public Defender, and
                Cullen Sweeney, Assistant Public Defender, for appellant.


LARRY A. JONES, SR., J.:

                  Defendant-appellant, Jovan Robinson (“Robinson”), appeals from

the trial court’s judgment finding him guilty of contempt of court. Plaintiff-appellee,

the city of Cleveland (“the City”), has filed a brief conceding error. For the reasons

that follow, we reverse and remand.
Background

              In August 2019, Robinson was charged with domestic violence and

unlawful restraint and a warrant was issued for his arrest. That case was captioned

Cleveland v. Robinson, Cleveland M.C. No. 19CRB014665. He was arrested and

arraigned on the charges in early October 2019. Robinson was detained on bond,

but eventually the trial court modified the bond to a personal bond with GPS

monitoring and admitted him to the court-supervised release (“CSR”) program.

              The day following his release from detainment, Robinson was

arrested again for an alleged violation of the CSR program. The trial court released

him again on a personal bond with GPS monitoring, and ordered that he have no

contact with the alleged victim.

              In November 2019, the city filed a motion to show cause in Case No.

19CRB014665. In the motion, the city alleged that Robinson violated the trial court’s

no-contact order by calling the victim.

This Case: Criminal Complaint for Contempt

              Because of the show-cause motion, a criminal complaint was filed

against Robinson alleging that he committed contempt in violation of R.C. 2705.02

by contacting the alleged victim in violation of the court’s no-contact order and the

conditions of the CSR program. That case, Cleveland v. Robinson, Cleveland M.C.

No. 19CRB019303, is the case now at issue in this appeal.

              Both cases were scheduled to be heard on November 14, 2019. The

alleged victim failed to appear, the assistant prosecuting attorney indicated she had
been unable to get in contact with the alleged victim, and the underlying domestic

violence and unlawful restraint charges were dismissed.

              The trial court considered the city’s motion to show cause. No

evidentiary hearing was held, however. Rather, the court considered the city’s oral

argument; defense counsel stated that he did not “have any information about the

contempt that [he] could present at this time” and that Robinson denied the

allegations. At the conclusion of the hearing, the court found Robinson guilty of

contempt.

              Robinson filed this appeal, and in his sole assignment of error

contends that “the trial court erred and violated Jovan Robinson’s state and federal

due process rights when it convicted him of a crime without any evidence.” The City

has filed a brief conceding that the trial court “treated violations of its no contact

order based on jail calls as direct criminal contempt,” but because the “contempt did

not happen in front of the judge, the requirements of indirect criminal contempt

apply.”

Law and Analysis

              Contempt has been defined as the disregard for judicial authority.

State v. Flinn, 7 Ohio App.3d 294, 295, 455 N.E.2d 691 (9th Dist.1982). Contempt

may be either direct or indirect. In re Purola, 73 Ohio App.3d 306, 310, 596 N.E.2d

1140 (3d Dist.1991). Direct contempt occurs in the presence of the court and

disrupts the orderly administration of justice. Id. The alleged violation here did not
occur in the presence of the court and therefore direct contempt is not applicable in

this case.

               On the other hand, indirect contempt is “committed outside the

presence of the court but * * * also tends to obstruct the due and orderly

administration of justice.” In re Lands, 146 Ohio St. 589, 595, 67 N.E.2d 433 (1946).

Because the court generally has no personal knowledge of the alleged contemptuous

behavior, it must afford the accused procedural safeguards such as a written charge,

an adversary hearing, and the opportunity for legal representation.        See R.C.

2705.03; State ex rel. Seventh Urban, Inc. v. McFaul, 5 Ohio St.3d 120, 122, 449

N.E.2d 445 (1983); State v. Moody, 116 Ohio App.3d 176, 180, 687 N.E.2d 320 (12th

Dist.1996).

               “Contempt is further classified as civil or criminal depending on the

character and purpose of the contempt sanctions.” Purola at 311. Criminal and civil

contempt serve different ends within the judicial system, and are governed by

different rules. Civil contempt is designed to benefit the complainant and is

remedial in nature. Id. Thus, an individual charged with civil contempt must be

permitted to appear before the court and purge himself or herself of the contempt

by demonstrating compliance with the court’s order he or she is charged with

violating. Id. at 312.

               Criminal contempt, on the other hand, is usually characterized by

unconditional fines or prison sentences. Purola, 73 Ohio App.3d 306 at 311, 596

N.E.2d 1140. In the case of criminal contempt, there is no requirement that the
person charged be permitted to purge himself or herself of the contempt. See

generally Brown v. Executive 200, Inc., 64 Ohio St.2d 250, 416 N.E.2d 610 (1980).

The absence of an opportunity to purge oneself when charged with criminal

contempt is appropriate because the purpose of criminal contempt is punitive. Id.

at 254. “The standard of proof required in a criminal contempt proceeding is proof

of guilt beyond a reasonable doubt.”       Id. at syllabus.   “The most important

consequences arising from this classification of contempts is that many of the

significant constitutional safeguards required in criminal trials are also required in

criminal contempt proceedings.” State v. Kilbane, 61 Ohio St.2d 201, 205, 400

N.E.2d 386 (1980).

              The contempt allegation against Robinson was that he made calls

from jail to the victim in violation of the court’s no-contact order. That alleged

violation would amount to indirect contempt. Because this was in the nature of an

indirect contempt, Robinson was entitled to, but not afforded, the procedural

protections set forth in R.C. 2705.03. One of those protections is “an adversary

hearing,” which did not take place here.       State v. Dean, 2d Dist. Clark Nos.

2006CA61 and 2006CA63, 2007-Ohio-1031, ¶ 18.

              In light of the above, the trial court’s judgment finding Robinson in

contempt is reversed and the case is remanded for further proceedings consistent

with this opinion.

              Reversed and remanded.
      It is ordered that appellant recover from appellee 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

Cleveland 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.



LARRY A. JONES, SR., JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
