[Cite as Cleveland v. Daniels, 2018-Ohio-4773.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106136




                                        CITY OF CLEVELAND

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                        TYRONE M. DANIELS

                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                                     AFFIRMED IN PART;
                                 VACATED IN PART; REMANDED




                                      Criminal Appeal from the
                             Cleveland Municipal Court Housing Division
                                     Case No. 2017 CRB 009378

        BEFORE: Celebrezze, J., McCormack, P.J., and Jones, J.

        RELEASED AND JOURNALIZED: November 29, 2018
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender
By:    John T. Martin
       Cullen Sweeney
Assistant Public Defenders
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
City of Cleveland
Director of Law
By:     Kortney Mosley
Assistant Director of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114-1077

FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Tyrone Daniels (“appellant”), brings this appeal challenging

his conviction and the trial court’s sentence for failure to comply with an order of the city of

Cleveland’s Building Department.      Specifically, appellant argues that his no contest plea was

invalid, there was no factual basis to support his conviction, he was deprived of his constitutional

right to counsel, and the trial court erred in convicting him of 42 separate offenses. After a

thorough review of the record and law, we affirm appellant’s conviction, vacate appellant’s

sentence, in part, and remand the matter for further proceedings consistent with this opinion.

                              I.   Factual and Procedural History

       {¶2} Appellant is the owner of a duplex located in Cleveland, Ohio. In December 2016,
a city of Cleveland housing inspector inspected the duplex and observed several interior and

exterior maintenance violations. On January 3, 2017, appellant was issued a notice of violation

that ordered appellant to comply with the abatement of the violations by February 3, 2017. On

March 16, 2017, the housing inspector once again inspected the duplex and found that the

violations were not abated.

       {¶3} Thereafter, the city of Cleveland filed a criminal complaint charging appellant with

failure to comply with the building department’s order, a first-degree misdemeanor in violation

of Cleveland Codified Ordinance (“C.C.O.”) Section 3103.25(e). On June 8, 2017, appellant,

appearing before the trial court pro se, entered a plea of no contest to 42 counts of failure to

comply constituting the 42 days in which he did not comply with the abatement of the violations,

in accordance with C.C.O. Section 367.99 that states, “[e]ach day of a continuing violation [of

the housing code] shall be deemed a separate offense.” The trial court accepted appellant’s no

contest plea and made a finding of guilt on the 42 counts.

       {¶4} Thereafter, at the sentencing hearing on July 13, 2017, appellant requested a

continuance so that he could retain counsel, and sentencing was continued to allow him to retain

counsel. On July 20, 2017, at the rescheduled sentencing hearing, appellant notified the trial

court that he was unable to retain counsel, and requested court-appointed counsel.          The

sentencing hearing was continued to August 3, 2017. On that day, the trial court sentenced

appellant, present with court-appointed counsel, to a three-day jail term and placed him on

community control sanctions for a period of three years.

       {¶5} On August 16, 2017, appellant filed the instant appeal challenging the trial court’s

judgment. He assigns five errors for review:

       I. There was no factual basis to support the conviction for the offense alleged in
         the complaint.

         II. [Appellant] never entered a plea of no contest in this case at the end of the
         plea colloquy.

         III. [Appellant] was deprived of the assistance of counsel prior to entering his
         plea of no contest.

         IV. The plea was not valid because [appellant] was misinformed about the
         potential penalties.

         V. [Appellant] can only be convicted of one first-degree misdemeanor.

         {¶6} For ease of discussion, we address appellant’s individual assignments of error out of

order.

                                      II.   Law and Analysis

                                     A. Waiver of Counsel

         {¶7} In his third assignment, appellant argues that the trial court violated his Sixth

Amendment right to counsel.          More specifically, he argues that the trial court made

misstatements of law pertaining to the effect of his no contest plea and because of these

misstatements, his no contest plea was not knowingly, intelligently, and voluntary entered.

         {¶8} The Sixth and Fourteenth Amendments to the United States Constitution guarantee

that persons brought to trial in any state or federal court must be afforded the right to the

assistance of counsel before they can be validly convicted and punished by imprisonment. See

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Gideon v. Wainwright, 372

U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).     “Although a defendant may eloquently express a

desire to represent himself, a trial court must still satisfy certain parameters to ensure that the

defendant’s waiver of the constitutional right to counsel is made knowingly, intelligently, and

voluntarily.”   State v. Moore, 2012-Ohio-1958, 970 N.E.2d 1098, ¶ 43 (8th Dist.).             “To
establish an effective waiver of the right to counsel, the trial court must make a sufficient inquiry

to determine whether the defendant fully understands and intelligently relinquishes that right.”

Garfield Hts. v. Williams, 8th Dist. Cuyahoga No. 102279, 2016-Ohio-381, ¶ 11, citing State v.

Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph two of the syllabus.

       {¶9} Pursuant to Crim.R. 44(A), a defendant is entitled to counsel “unless the defendant,

after being fully advised of his right to assigned counsel, knowingly, intelligently, and voluntarily

waives his right to counsel.” In order for the waiver of the right to counsel to be valid, it must

be made “‘with an apprehension of the nature of the charges, the statutory offenses included

within them, the range of allowable punishments thereunder, possible defenses to the charges and

circumstances in mitigation thereof, and all other facts essential to a broad understanding of the

whole matter.’” Gibson at 377, quoting Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316,

92 L.Ed. 309 (1948).      Accord State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816

N.E.2d 227, ¶ 40.

       {¶10} Further, Crim.R. 44 differentiates between serious offenses and petty offenses. A

petty offense is defined as “a misdemeanor other than a serious offense.” Crim.R. 2(D). A

serious offense “means any felony, and any misdemeanor for which the penalty prescribed by law

includes confinement for more than six months.”              Crim.R. 2(C).       Pursuant to R.C.

2929.24(A)(3), the maximum term of imprisonment for a misdemeanor of the first degree is “not

more than one hundred and eighty days.” Therefore, the charges against appellant were petty

offenses governed by Crim.R. 44(B) and (C).

       {¶11} Regarding petty offenses, Crim.R. 44 provides in relevant part:

       (B) Counsel in petty offenses. Where a defendant charged with a petty offense is
       unable to obtain counsel, the court may assign counsel to represent him. When a
       defendant charged with a petty offense is unable to obtain counsel, no sentence of
       confinement may be imposed upon him, unless after being fully advised by the
       court, he knowingly, intelligently, and voluntarily waives assignment of counsel.

       (C) Waiver of counsel. Waiver of counsel shall be in open court and the advice
       and waiver shall be recorded as provided in Rule 22. In addition, in serious
       offense cases the waiver shall be in writing.

       {¶12} In considering the above analysis, we note that the trial court engaged in the

following exchange with appellant at the change of plea hearing:

       THE COURT: * * * [h]ow do you plea?

       [APPELLANT]:       No contest.

       THE COURT: No contest? And there are certain rights that you would be
       waiving with a no contest plea. I’m going to make sure that you understand what
       those rights are as well as what the nature of charge and the maximum penalty.

       ***

       Sir, by entering a no contest plea, there are certain rights that you are waiving.
       You’re waiving the right to a trial. And that’s a trial either to me as the judge or
       to a jury. So do you understand you’re waiving your right to a trial?
       [APPELLANT]: Yes.

       THE COURT: There are certain rights that you have, that you would have at
       trial that you’re also waiving with a no contest plea. You’re waiving your right
       to have an attorney present with you. Do you understand that?

       [APPELLANT]:       Yes.

       THE COURT:       And do you wish to proceed without an attorney?

       [APPELLANT]:       Yes.

(Tr. 3-4.) The trial court then explained to appellant the maximum penalties, the waiver of the

right against self-incrimination, the waiver of cross-examination of witnesses and subpoenaing

witnesses, and the prosecution’s burden of proof.      Further, the trial court asked appellant:

“[d]o you understand that by entering a no contest plea you are not admitting guilt, but you are

admitting the truth of [the] facts that are alleged in the complaint?”       To which appellant
responded “yes.”1       (Tr. 5.)

        {¶13} Appellant takes issue with the trial court’s statement that “there are certain rights

that you have, that you would have at trial that you’re also waiving with a no contest plea * * *

you’re waiving your right to have an attorney present with you.” (Tr. 3.) Appellant argues that

this statement “undermines the validity of any waiver of the right to counsel.” Appellant’s brief

at 7.

        {¶14} In our review of the plea hearing transcript, the trial court did not engage in the

requisite colloquy to establish that appellant knowingly, intelligently, and voluntarily waived his

right to counsel. In particular, we note that the trial court failed to advise appellant of the

dangers of self-representation and did not encourage him to proceed with court-appointed

counsel. Further, the trial court did not review the elements of the charges or any defenses to

the charges. The trial court briefly explained trial procedures to appellant and questioned him

regarding his understanding of those procedures, but did not advise him that, if he elected to

proceed pro se, he would be held to the same standards as an attorney. Cleveland v. Anderson,

8th Dist. Cuyahoga No. 97787, 2013-Ohio-165, ¶ 10 (where this court noted that the trial court

did not engage in any colloquy with the defendant “advising him of the nature of the charge, the

statutory offense included within it, the range of allowable punishment, possible defenses to the

charge and circumstances in mitigation thereof, and all other facts essential to a broad

understanding of the matter”).           Accordingly, because the trial court did not engage in the

requisite colloquy, it did not obtain a valid waiver of the right to counsel from appellant.

        {¶15} Although appellant was represented by court-appointed counsel at the sentencing


1
  We note that the trial court did not obtain a written waiver of counsel form from appellant; however, because the
offenses were not serious offenses, the trial court was not required to obtain a written waiver from him pursuant to
Crim.R. 44.
hearing, this does not alleviate the fact that appellant was not represented by counsel at the plea

hearing.   Therefore, the trial court’s failure to obtain a valid waiver of appellant’s right to

counsel prohibits the trial court from imposing a sentence. See Lyndhurst v. Lasker-Hall, 8th

Dist. Cuyahoga No. 102806, 2016-Ohio-108, ¶ 14.           See also Parma v. Wiseman, 8th Dist.

Cuyahoga No. 102404, 2015-Ohio-4983; Lyndhurst v. Di Fiore, 8th Dist. Cuyahoga No. 93270,

2010-Ohio-1578; State v. Haag, 49 Ohio App.2d 268, 360 N.E.2d 756 (9th Dist.1976); Oakwood

v. Shackelford, 8th Dist. Cuyahoga No. 50062, 1986 Ohio App. LEXIS 5486 (Jan. 30, 1986).

However, notwithstanding the trial court’s failure to obtain a valid waiver of the right to counsel,

appellant is not entitled to have his entire conviction vacated. Lasker-Hall at ¶ 14.

       {¶16} Accordingly, because the trial court did not engage in the requisite colloquy to

establish that appellant knowingly, intelligently, and voluntarily waived his right to counsel, we

can only modify appellant’s sentence by vacating the portion of the sentence imposing jail time.

Id. at ¶ 14. As such, appellant’s third assignment of error is sustained in part.

                                      B.   No Contest Plea

       {¶17} In his second assignment of error, appellant argues that his plea of no contest was

invalid because he did not utter the words “no contest” at the end of the plea colloquy.

       {¶18} In support of his argument, appellant directs our attention to Cleveland v. Chappell,

8th Dist. Cuyahoga No. 104739, 2017-Ohio-4070. In Chappell, the defendant argued that his

plea was invalid because he “never formally stated on the record that he was pleading no

contest.” Id. at ¶ 10. This court explained that in order to formally tender a no contest plea, “a

criminal defendant must either do so by signing a writing reflecting an express plea, or orally,

either by saying, affirmatively, that he is pleading ‘no contest,’ or by responding affirmatively to

the trial court’s question, ‘are you pleading no contest,’ phrased in the present, unconditional
tense.” Id. at ¶ 12, quoting State v. Singleton, 169 Ohio App.3d 585, 2006-Ohio-6314, 863

N.E.2d 1114 (2d Dist.). This court concluded that the defendant himself did not formally tender

a no contest plea because his attorney stated that “[w]e’re going to withdraw the not guilty and

plead no contest, your Honor.” Chappell at ¶ 11.

       {¶19} In the instant matter, the trial court asked appellant during the change of plea

hearing, “how do you plea?” to which appellant responded “no contest.” (Tr. 3.) Then, after

explaining to appellant the penalties and waiver of rights, the trial court accepted his no contest

plea stating, “[s]ir, I’ll accept your no contest plea.”         (Tr. 6.)   The instant case is

distinguishable from Chappell because appellant formally tendered a no contest plea by orally

and affirmatively stating that he was pleading “no contest.”

       {¶20} Thus, in our review of the transcript, we find that appellant unequivocally entered a

plea of no contest. Accordingly, appellant’s second assignment of error is overruled.

                                           C.   Penalties

       {¶21} In appellant’s fourth assignment of error he argues that the plea was not valid

because he was misinformed about the potential penalties at the plea hearing. More specifically,

he argues that he could only have been convicted of one count of failure to comply, and the trial

court erred when it informed him of the penalties associated with the 42 counts.

       {¶22} In the instant matter, appellant was charged with a first-degree misdemeanor

offense, subject to a maximum sentence of 180 days. R.C. 2929.24(A)(1). Moreover, the

maximum fine with regards to a first-degree misdemeanor is $1,000. R.C. 2929.28(A)(2)(a)(i).

 At the plea hearing, the trial court stated the following:

       THE COURT: [E]ach day that the [c]ity alleges that your property was out of
       compliance is a separate offense, and is a first[-]degree misdemeanor. The
       maximum penalty of a first[-]degree misdemeanor is a $1,000.00 (thousand
       dollar) fine and 180 days in jail.

       So since the [c]ity is alleging 42 days out of compliance, the maximum potential
       penalty that you would face is $42,000.00 (thousand dollars) in fines and 18
       months in jail.

       Sir, do you understand that’s the maximum potential penalty?

       [APPELLANT]:        Yes.

(Tr. 3.)   Thus, the trial court properly informed appellant of the maximum penalties with

regards to the 42-count complaint. Accordingly, appellant’s argument here is without merit and

his fourth assignment of error is overruled.

                                D. Factual Basis for Conviction

       {¶23} In appellant’s first assignment of error, he argues that there was no factual basis to

support the convictions for the failure to comply offenses alleged in the complaint. Specifically,

appellant argues that there was no evidence that he violated the building code by making repairs

without a permit.

       {¶24} To this end, appellant argues that the explanation of circumstances did not

explicitly include any evidence that appellant made repairs without a building permit.

Appellant’s brief at 5.    In considering the explanation of circumstances pursuant to R.C.

2937.07, when a court finds a defendant guilty after he has entered a no contest plea, the record

must provide an “explanation of circumstances” that includes a statement of the facts supporting

all of the essential elements of the offense. Broadview Hts. v. Krueger, 8th Dist. Cuyahoga No.

88998, 2007-Ohio-5337, ¶ 10. Indeed, at the plea hearing, a housing inspector stated to the trial

court that “I didn’t see any evidence [that] any permits [were] pulled [for the repairs]. (Tr. 8.)

       {¶25} Accordingly, we find appellant’s argument lacks merit, and his first assignment of

error is overruled.
                                           E.   Complaint

          {¶26} In appellant’s fifth assignment of error, he argues that there is only one count of

failure to comply alleged in the complaint and as such, the trial court erred when it found him

guilty of 42 separate counts of failure to comply.

          {¶27} In our review of the record, we note that the complaint states that

          [B]etween the dates of 2/3/2017 and 3/16/2017 you, TYRONE M DANIELS, the

          owner or person in control of property located at 4400 E 146th Street, Cleveland,

          Ohio did refuse, neglect or fail to comply with a notice (copy of notice attached

          and hereby incorporated into this complaint) requiring the abatement or removal

          of a violation or requiring compliance with any provision of the Cleveland

          Building Code or any rule or regulation thereunder within the time limit set forth

          in the attached notice in violation of Cleveland Codified Ordinance (C.C.O.) §

          3103.25(e), a first-degree misdemeanor under C.C.O. §3103.99(a) and in violation

          of C.C.O. § 367.99(a) an unspecified misdemeanor. Each day during which

          noncompliance or a violation continues shall constitute a separate offense C.C.O.

          §§ 3103.99(a) and 367.99(a).

Thus, appellant takes issue with the complaint, as drafted, and argues that it listed only one count

of failure to comply, and therefore, he can only be convicted of one count.

          {¶28} In support of his argument, appellant simply cites to Crim.R. 8(A) and argues that

given this rule, appellant can only be convicted of one count of failure to comply.   Crim.R. 8(A)

states:

          Two or more offenses may be charged in the same indictment, information or
          complaint in a separate count for each offense if the offenses charged, whether
          felonies or misdemeanors or both, are of the same or similar character, or are
       based on the same act or transaction, or are based on two or more acts or
       transactions connected together or constituting parts of a common scheme or plan,
       or are part of a course of criminal conduct.

(Emphasis added.)

       {¶29} However, we note that appellant failed to make this argument at the trial court and

as such, this failure constitutes a waiver of the right to argue the matter on appeal. Cleveland v.

Go Invest Wisely, L.L.C., 8th Dist. Cuyahoga Nos. 95178, 95179, 95180, 95181, 95182, and

95447, 2011-Ohio-3461, ¶ 10; Cleveland v. Whitmore, 8th Dist. Cuyahoga No. 84405,

2005-Ohio-4393, ¶ 20; Bedford v. Tisdale, 8th Dist. Cuyahoga No. 86209, 2006-Ohio-543, ¶ 31.

       {¶30} Furthermore, pursuant to Crim.R. 12(C)(2), “[d]efenses and objections based on

defects in the indictment, information, or complaint (other than failure to show jurisdiction in the

court or to charge an offense, which objections shall be noticed by the court at any time during

the pendency of the proceeding)” must be raised before trial.        In our review of the record, we

note that appellant failed to raise any objection in the trial court as to any defect in the drafting of

the complaint.    As such, appellant has waived the right to argue any defect on appeal. Go

Invest Wisely, L.L.C. at ¶ 10.

       {¶31} Accordingly, appellant’s fifth assignment of error is overruled.

                                          III.   Conclusion

       {¶32} After thoroughly reviewing the record, we find that although appellant did

expressly tender a plea of no contest, appellant did not knowingly, intelligently, and voluntarily

waive his right to counsel. We also find that there was a factual basis to support the conviction

for the failure to comply offense alleged in the complaint, and the trial court properly informed

appellant of the maximum penalties associated with the 42-count complaint.                   However,

appellant waived the right to argue any defect in the complaint because he failed to raise any
objection in the trial court. Accordingly, appellant’s conviction is affirmed, the trial court’s

sentence imposing jail time is vacated, and the matter is remanded for further proceedings

consistent with this opinion.

       {¶33} Conviction affirmed. This matter is remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of said 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.



FRANK D. CELEBREZZE, JR., JUDGE

TIM McCORMACK, P.J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS WITH SEPARATE OPINION


LARRY A. JONES, SR., J., DISSENTING:

       {¶34} Respectfully, I dissent.    I find that the complaint failed to give Daniels sufficient

notice as to each of the charges as required by Crim.R. 3.

       {¶35} Appellate review of the validity of a complaint is de novo. Newburgh Hts. v.

Hood, 8th Dist. Cuyahoga No. 84001, 2004-Ohio-4236, ¶ 5.                 Crim.R. 3 sets forth the

requirements for a criminal complaint and provides:       “The complaint is a written statement of

the essential facts constituting the offense charged.   It shall also state the numerical designation

of the applicable statute or ordinance. It shall be made upon oath before any person authorized
by law to administer oaths.”

          {¶36} “‘The primary purpose of the charging instrument in a criminal prosecution is to

inform the accused of the nature of the offense with which he or she is charged.”’ Cleveland v.

Simpkins, 192 Ohio App.3d 808, 2011-Ohio-1249, 950 N.E.2d 982, ¶ 6 (8th Dist.), quoting

Akron v. Holland Oil Co., 146 Ohio App.3d 298, 765 N.E.2d 979 (9th Dist.2001); see also

Parma v. Mentch, 8th Dist. Cuyahoga No. 101222, 2014-Ohio-5690.

          {¶37} As the majority notes, an objection to an alleged defect in a complaint must

generally be raised prior to trial; when a defendant does not timely raise the issue, he or she has

waived that argument on appeal. Pursuant to Crim.R. 52(B), however, “[p]lain errors or defects

affecting substantial rights may be noticed although they were not brought to the attention of the

court.”    See State v. Mitchell, 12th Dist. Butler No. CA2010-05-107, 2011-Ohio-2465 (court

reviewed appellant’s claim of a defective indictment for plain error).

          {¶38} According to the city, the complaint in this case charged Daniels with 42 separate

violations of the city’s housing code; Daniels was purportedly charged with 42 counts of failing

to comply with one notice to correct eight violations on his property by February 2, 2017. Each

violation carried with it a potential penalty of a $1,000 fine, 180 days in jail, up to five years of

community control sanctions, and court costs.     Thus, the total maximum penalty the court could

have imposed was a fine of $42,000, an 18-month jail term, five years of community control

sanctions, and court costs. Even more troubling, Daniels proceeded pro se through the pretrial

process and plea hearing.

          {¶39} I would find that the complaint, on its face, did not inform Daniels that he was

being charged with 42 separate first-degree misdemeanor offenses. Although the complaint

stated that “(e)ach day during the noncompliance or a violation continues shall constitute a
separate offense,” the Cleveland Codified Ordinances do not permit courts or the city to

command perpetual compliance for all violations.                  See Cleveland v. Lucas, 8th Dist. Cuyahoga

No. 105521, 2018-Ohio-167, ¶ 6. Because C.C.O. 367.99(a) states that “[e]ach day during the

noncompliance or a violation continues shall constitute a separate offense” refers to future

conduct, it necessarily does not include the violations that Daniels was charged with in this case.

(Emphasis added.)2

         {¶40} When asked at oral argument why the city did not separately set forth each charge

in the complaint, the city stated that it was a matter of efficiency. We cannot ignore defects in a

charging document for the sake of expediency.

         {¶41} The complaint, as written, affected Daniels’s substantial rights because it failed to

notify him that he was being charged with 42 separate offenses. I would find that Daniels was

charged with a single violation of C.C.O. 3103.25(e). To hold otherwise denies Daniels due

process of law.

         {¶42} The complaint in this case charged Daniels with a single misdemeanor offense.                              I

would vacate his convictions and remand the case for proceedings on a single violation of C.C.O.

3103.25(e).




2
  I further note, as this court did in Lucas at ¶ 6, that C.C.O. 367.99(a) is a penalty section that “appears to define the
procedures for initiating new criminal charges against defendants * * * without regard for any applicable criminal
rule.”
