[Cite as State v. Schafer, 2014-Ohio-5814.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

CITY OF AKRON                                         C.A. No.      27194

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DIANA SCHAFER                                         AKRON MUNICIPAL COURT
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   12 CRB-10527

                                  DECISION AND JOURNAL ENTRY

Dated: December 31, 2014



        CARR, Judge.

        {¶1}     Appellant, Diana Schafer (a.k.a. Diana Bland), appeals the judgment of the Akron

Municipal Court. This Court affirms in part and reverses in part.

                                                 I.

        {¶2}     On September 26, 2012, Schafer was charged with ten counts of violating various

housing code provisions set forth in Chapter 150 of the Akron Municipal Code. Schafer initially

pleaded not guilty to the charges in the complaint. Thereafter, Schafer entered into a plea

agreement with the City where she pleaded guilty to three housing code violations in exchange

for the dismissal of the remaining seven counts. The parties further agreed that a significant

portion of the sentence would be suspended if Schafer addressed certain issues with her home.

With respect to the first count, the trial court imposed a $500 fine and 60 days in jail, with $400

of the fine and the entire jail sentence suspended on the condition that Schafer address specified

issues on the interior and exterior of her property. In regard to the two remaining counts, Schafer
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received a fine of $500 and 60 days in jail for each count, but those penalties were suspended,

and the charges would be dismissed, on the condition that she complied with the terms set forth

with respect to count one. After imposing sentence, the trial court held the sentence in abeyance

to provide an opportunity for Schafer to meet the various conditions.

       {¶3}    Almost a year later, after numerous continuances, the parties appeared for a status

hearing on November 20, 2013. The trial judge found that Schafer had failed to make the

necessary repairs despite the benefit of multiple continuances. Schafer received a fine of $1500.

Instead of imposing jail time, the trial court placed Schafer on probation for six months and

ordered her satisfy the previously established conditions during that time.

       {¶4}    On appeal, Schafer raises one assignment of error.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL [COURT] VIOLATED SCHAFER’S DUE PROCESS RIGHTS BY
       INCREASING HER SENTENCE BEYOND THAT EXPRESSED IN THE
       PLEA AGREEMENT, WHICH INDUCED HER PLEA.

       {¶5}    In her sole assignment of error, Schafer argues that the trial court increased her

sentence beyond the terms expressed in the plea agreement. Specifically, Schafer contends that

she was never put on notice that her sentence could be greater than a $100 fine. This Court

disagrees.

       {¶6}    The Supreme Court of Ohio has recognized that the “[p]rinciples of contract law

are generally applicable to the interpretation and enforcement of plea agreements.” State v.

Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 50. “When either party to the plea bargain

breaches the agreement, the non-breaching party ‘is entitled to either rescission or specific

performance of the plea agreement.’” State v. West, 9th Dist. Lorain No. 04CA008554, 2005-
                                                 3


Ohio-990, ¶ 29, quoting State v. Bonner, 4th Dist. Defiance No. 4-04-05, 4-04-06, 4-04-07,

2004-Ohio-6043, ¶ 16. “It is fundamental that the law will not reward a breaching party.” West

at ¶ 30, citing Wooster v. Entertainment One, Inc., 158 Ohio App.3d 161, 2004-Ohio-3846, ¶ 66

(9th Dist.).

        {¶7}      A review of the record reveals that the trial court did not increase Schafer’s

sentence. As noted above, Schafer entered into a plea agreement where she pleaded guilty to

three of the counts and the remaining seven charges were dismissed. The terms of the plea

agreement were set forth at a hearing on November 27, 2012. Pursuant to the agreement, the

trial court imposed a $500 fine and 60 days in jail with respect to count one, with $400 of the

fine and the entire jail sentence suspended on the condition that Schafer obey all laws for one

year, complete interior repairs to her house by February 1, 2013 with inspection and approval,

and complete exterior repairs to the house by July 1, 2013 with inspection and approval. With

respect to the second and third counts, Schafer received a fine of $500 and 60 days in jail for

each count, but those penalties were suspended on the condition that she complied with the

conditions set forth with respect to count one. While the trial court’s November 27, 2012 journal

entry conveyed the terms of the sentence, the trial court created some confusion at the hearing by

stating at one point that the case would be dismissed if Schafer made the repairs to her properties

by the specified deadlines. However, any possible issues that could have arisen from that

misstatement do not come into play here because Schafer did not comply with the terms of the

plea agreement. After accepting Schafer’s guilty plea and imposing sentence on November 27,

2012, the trial court held the sentence in abeyance to provide Schafer an opportunity to satisfy

the conditions.
                                                  4


       {¶8}    The trial court issued a journal entry on March 27, 2013, indicating that while

Schafer had made progress on the interior of her home, there remained additional work to be

done. The trial court then ordered that Schafer complete all interior and exterior repairs by July

1, 2013. When the parties appeared for a status conference on November 20, 2013, Schafer had

yet to make the mandated repairs. At that time, Schafer received a total fine of $1500 and was

placed on probation for six months, during which time she was ordered to satisfy the previously

established conditions.

       {¶9}    Under these circumstances, Schafer cannot prevail on her argument that the trial

court increased her sentence. Both at the November 27, 2012 hearing and in the sentencing entry

journalized on the same day, Schafer was put on notice that she would receive a $500 fine and a

60-day jail term for each offense if she did not bring her property into compliance with the

housing code. While the trial court held the sentence in abeyance in order to give Schafer

adequate time to satisfy the stipulated conditions, there is no dispute that Schafer failed to bring

her house up to code. As Schafer failed to satisfy the terms of the agreement, she was not

entitled to the benefit of the imposition of a lesser sentence.

       {¶10} Schafer’s assignment of error is overruled.

       {¶11} However, this Court has discovered that this matter must be remanded to correct

an error in the January 9, 2014 judgment entry. Though the trial court stated at the November

20, 2013 hearing that Schafer would receive a $500 fine for each of the three offenses, the

January 9, 2014 entry indicates that Schafer received a $1500 fine pursuant to count one.

Section 150.99(D) of the Akron Codified Ordinances specifies that any person guilty of a

housing code violation “shall be guilty of a misdemeanor of the third degree and shall be fined
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not more than five hundred dollars * * *” for each violation. As the $1500 fine on count one is

erroneous, we are compelled to remand this matter for the trial court to impose a lawful sentence.

                                                III.

       {¶12} Schafer’s sole assignment of error is overruled. The judgment of the Akron

Municipal Court is affirmed in part and reversed in part and the cause remanded for the trial

court to impose a fine in accordance with the statutory limit.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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BELFANCE, P. J.
MOORE, J.
CONCUR.


APPEARANCES:

JOSEPH S. KODISH and CEDRIC COLVIN, Attorneys at Law, for Appellant.

CHERI B. CUNNINGHAM, Director of Law, and JOHN R. YORK, Assistant Director of Law,
for Appellee.
