[Cite as Maples Hts. v. Mohammad, 2019-Ohio-4577.]

                             COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA

CITY OF MAPLE HEIGHTS,                               :

               Plaintiff-Appellee,                   :
                                                         No. 108060
               v.                                    :

RASHID MOHAMMAD,                                     :

               Defendant-Appellant.                  :


                             JOURNAL ENTRY AND OPINION

               JUDGMENT: REVERSED AND REMANDED
               RELEASED AND JOURNALIZED: November 7, 2019


              Criminal Appeal from the Garfield Heights Municipal Court
                                Case No. CRB 1802301


                                         Appearances:

               Consolo Law Firm Co., L.P.A., Frank Consolo, City of
               Maple Heights Law Director, and Horace F. Consolo, for
               appellee.

               Rashid Mohammad, pro se.



MICHELLE J. SHEEHAN, J.:

                 Defendant-appellant Rashid Mohammad, pro se, appeals from his

conviction following a no contest plea for misdemeanor building code violations

under Chapter 1490 of the Maple Heights Codified Ordinances. Because we find the
record does not demonstrate that Mohammad was properly advised of his

Crim.R. 11 rights, we reverse the judgment and vacate the conviction.

                     Procedural History and Substantive Facts

              On October 22, 2018, the city of Maple Heights filed a complaint

against Mohammad for several building code violations under Maple Heights

Codified Ordinances 1490 et seq. The complaint concerned violations on Eastwood

Avenue property, including inoperable plumbing; damaged flooring, walls, and

ceiling; inoperable windows; and garage and parking disrepairs that occurred on or

about September 14, 2017.

              On December 17, 2018, the court held a hearing on the matter. At the

onset of the hearing, Mohammad indicated that he wished to plead no contest. At

the prosecutor’s request, an individual from the building department identified as

Ms. King read the 25 violations into the record. Thereafter, what transpired was a

somewhat perplexing hearing where multiple people, sometimes identified in the

transcript as “speaker,” presented information that was oftentimes noted on the

transcript as “unintelligible.” The individuals addressed previous cases as well as

current violations, resulting in the trial judge expressing confusion.

              Nonetheless, what we have discerned from the transcript is that

Mohammad was the property manager at the time of the violations, not the owner.

His counsel stated that Mohammad “I guess * * * admits that there are, in fact, the
violations.”1 Counsel also advised the court that he learned from his client that

Mohammad obtained quotes to make the necessary repairs and had relayed this

information to the owner, but the owner “just didn’t want to pay.” According to

counsel, “there is money in escrow waiting, but the contractors want money

upfront,” and Mohammad asserted that he “can’t front the money [to a contractor]

for a property [he doesn’t] own.” When the court asked Mohammad why he did not

walk away from the job when the owner refused to make the repairs, Mohammad

advised the court that he did and the owner has hired a new property manager. A

speaker, presumably the prosecutor, asserted that Mohammad has claimed on more

than one occasion that he was no longer the property manager, that Mohammad

promised documentation regarding his status as property manager, and that

Mohammad “has refused to take responsibility for any of the conditions on the

property.”

              At some point during the hearing, the owner of the property came

forward and identified himself. He acknowledged that the violations existed and

stated that he “take[s] full responsibility.” He also advised the court that (1) he had

hired a contractor, who would begin making the necessary repairs on December 20,

2018; and (2) Mohammad was no longer the property manager. Mohammad then

attempted to explain to the court that two of the violations were invalid, stating that




      1Although not part of the record, we note that during the oral argument,
Mohammad advised the panel that his trial counsel was provided by the owner of the
property and Mohammad had not retained counsel himself.
he registered the rental property in accordance with the city ordinances and the

violation concerning the parking lot was improper because the parking lot is leased.

              The court then immediately proceeded to sentencing, without finding

Mohammad guilty, and stated as follows:

      Mr. Mohammad, this is what we’re going to do: Your fine is going to be $500
      [and] costs. You have until January 28, 2019, to do all the repairs. If you are
      not able to do it, he’d better get it done by January 28, because somebody is
      going to jail. So it’s either going to be you, sir, or him [presumably the owner
      of the property].

              Mohammad now appeals.

                                       No Contest Plea

              In his sole assignment of error, Mohammad contends that the trial

court “erred in granting appellee’s demand for fixing building violation[s].”

Mohammad essentially disputes the facts supporting the offenses. Specifically, he

asserts that there are “made up lists” of violations that contain different dates and

are “very confusing”; 17 of the 25 violations had been repaired prior to the date of

the hearing; he is not the owner of the property; and the city was aware that

Mohammad was no longer “manager on record” for the property at issue. Plaintiff-

appellee, city of Maple Heights, contends that Mohammad’s appeal is without merit

because the appeal challenges the sufficiency of the facts of the underlying charge to

which Mohammad entered a plea of no contest.

              Mohammad pleaded no contest to the failure to comply with

numerous     building   and    house    code   violations,   which    are     first-degree

misdemeanors,     punishable    by     a   maximum       sentence    of     six   months.
R.C. 2929.24(A)(1). Because the maximum confinement is six months, the failure

to comply is a petty offense.      See Solon v. Bollin-Booth, 8th Dist. Cuyahoga

No. 97099, 2012-Ohio-815, ¶ 14, citing Crim.R. 2(C) and 2(D) (defining a petty

offense).

               Crim.R. 11(E) governs pleas entered in petty offense cases, such as this

case. “In misdemeanor cases involving petty offenses[,] the court may refuse to

accept a plea of guilty or no contest, and shall not accept such pleas without first

informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”

Crim.R. 11(E). Thus, a trial court must “advise the defendant, either orally or in

writing, of the effect of the specific plea being entered.” Cleveland v. Tittl, 8th Dist.

Cuyahoga No. 105193, 2017-Ohio-9156, ¶ 7, citing State v. Jones, 116 Ohio St.3d 211,

2007-Ohio-6093, 877 N.E.2d 677, paragraph one of the syllabus and ¶ 23.

              As stated in Crim.R. 11(B)(2), concerning the “effect of” a no contest

plea, “the plea of no contest is not an admission of defendant’s guilt, but is an

admission of the truth of the facts alleged in the indictment, information, or

complaint, and the plea or admission shall not be used against the defendant in any

subsequent civil or criminal proceeding.” The trial court must therefore advise an

offender, either orally or in writing, and prior to accepting the individual’s no contest

plea, of the language contained in Crim.R. 11(B)(2). Bollin-Booth at ¶ 17, citing

Jones at ¶ 23. And we look to the record to determine whether the trial court

complied with Crim.R. 11(B)(2). Tittl at ¶ 9.
              Additionally, R.C. 2937.07 provides that when an accused pleads no

contest to a misdemeanor offense, the plea “shall constitute an admission of the

truth of the facts alleged in the complaint” and the judge or magistrate “may make a

finding of guilty or not guilty from the explanation of the circumstances of the

offense.” As the Supreme Court noted, “both Crim.R. 11 and the current version of

R.C. 2937.07 make clear, a plea of no contest is an admission by the defendant to

the facts alleged in the complaint. In the ordinary case — that is, when the complaint

properly alleges the elements of a crime — such an admission provides sufficient

evidence for a conviction.”        Girard v. Giordano, 155 Ohio St.3d 470,

2018-Ohio-5024, 122 N.E.3d 151, ¶ 17; Cleveland v. Collins, 8th Dist. Cuyahoga No.

107814, 2019-Ohio-3280, ¶ 10.

              Here, defense counsel advised the court that the parties had reached

a resolution and the prosecutor advised the court that Mohammad will be entering

a plea. Thereafter, the following discourse transpired:

      Court:    A plea of no contest?
      Counsel:  Yes, your Honor.
      Court:    Okay. Mr. Mohammad, then the charge is a building
                code violation. It carries a penalty of up to six months
                in jail, up to $1,000 fine.
                     If you plead no contest, you’ll be convicted. I’ll
                listen to what everyone has to say. Then you’ll be
                sentenced, and your case will be over today.
                     If you disagree with that, we’ll set this for trial. And
                Mr. — well, it is set for trial.
      Counsel:  It is set for trial, yes, so we’ll proceed.
      Court:    We’ll proceed to trial. So do you want to plea[d] no
                contest, or got to trial?
      Mohammad: No contest.
      Court:    Pardon?
      Mohammad: (Unintelligible.)
      Court:    Well, but you’d have to agree that — are you — Mr.
                Mohammad, do you believe that these building code
                violations exist?
      Mohammad: I’m sorry?
      Court:    Yes, that they’re there, that there are truly building
                code violations?
      Mohammad: Yes. (Unintelligible.)
      Court:    Okay. And they haven’t been repaired, so I’ll accept
                that plea. I’m going to ask you to sign this form that
                says that, and then I’m going to listen to everybody
                here.

              The record contains a “Change of Plea” form and a “Statement of

Rights.” The Change of Plea form, which includes a statement acknowledging that

the accused understands the constitutional rights he is waiving, as explained by the

court, and knowingly enters a plea, is signed by Mohammad and dated December 17,

2018, the date of the hearing. The Statement of Rights, however, which contains its

own signature line under the acknowledgment that the accused has read and

understands his rights and that the same were explained to him in open court, bears

no signature or date; rather, it is completely blank. This document contains the

pertinent Crim.R. 11(B)(2) language that “a plea of no contest is not an admission of

my guilt as charged, but is an admission of the truth of the facts alleged in the

complaint and that such plea cannot be used against me in any future civil or

criminal proceedings.”

              We cannot presume that Mohammad saw, much less read, the

“Statement of Rights” or the Crim.R. 11(B)(2) language contained therein, especially

since the trial court referenced only one form in its request that Mohammad “sign
this form that says that,” and Mohammad in fact signed one form — the change of

plea. And although the court asks Mohammad, “Do you believe these building code

violations exist * * * that there are truly building code violations,” the court does not

explicitly advise Mohammad at the hearing prior to accepting his plea that his no

contest plea “shall constitute an admission of the truth of the facts alleged in the

complaint” or that his “plea or admission shall not be used against [him] in any

subsequent civil or criminal proceedings.”

              Based on the foregoing record, we cannot find the trial court advised

Mohammad of the effect of his no contest plea under Crim.R. 11(B)(2). We therefore

vacate his conviction and sentence. Cleveland v. O’Donnell, 2018-Ohio-390, 106

N.E.3d 192, ¶ 12 (8th Dist.) (finding a trial court’s failure to make any mention of

the Crim.R. 11(B)(2) language regarding the effect of a no contest plea to a petty

misdemeanor offense is a complete failure to comply with Crim.R. 11(E), requiring

the plea to be vacated); see also Bollin-Booth, 8th Dist. Cuyahoga No. 97099, 2012-

Ohio-815 (finding that a trial court abuses its discretion and commits reversible

error in denying a defendant’s motion to withdraw his petty misdemeanor no

contest plea where he did not file a direct appeal, but the record of the plea hearing

shows that the defendant was not advised of the effect of his plea).

               Judgment reversed and remanded 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

Garfield Heights 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.



______________________________
MICHELLE J. SHEEHAN, JUDGE

PATRICIA ANN BLACKMON, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
