Cleveland v. Brown

[Cite as Cleveland v. Brown, 2024-Ohio-1782.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, :

No. 113084

v. :

ARLIN BROWN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: DISMISSED

RELEASED AND JOURNALIZED: May 9, 2024

Criminal Appeal from the Cleveland Municipal Court

Case No. 2022-CRB-009440

Appearances:

Mark Griffin, Cleveland Director of Law, Aqueelah A.

Jordan, Chief Prosecuting Attorney, and Michael Ferrari,

Assistant Prosecuting Attorney, for appellee.

Leif B. Christman, for appellant.

FRANK DANIEL CELEBREZZE, III, J.:

Arlin Brown (“Brown”) brings the instant appeal challenging the trial

court’s judgment dated July 11, 2023, that reduced one of Brown’s community-

control sanctions. After a thorough review of the relevant facts and law, this court

dismisses the appeal for lack of a final, appealable order.

I. Factual and Procedural History

On November 6, 2022, the city of Cleveland (“Cleveland”) charged

Brown with domestic violence in violation of R.C. 2919.25, a first-degree

misdemeanor, and unlawful restraint in violation of Cleveland Codified Ordinances

621.08, a third-degree misdemeanor. The charges stemmed from an altercation in

downtown Cleveland, where Brown was accused of shoving the victim, his then-wife,

to the ground, dragging the victim to their shared vehicle, and refusing to allow her

to leave. The victim sustained an abrasion.

One day later, Brown pled not guilty to both charges and was placed on

court-supervised release. The court also entered a no-contact order forbidding

contact with the victim. At a pretrial on November 30, 2022, Cleveland and Brown

entered into a plea agreement. The domestic violence charge was amended to

assault in violation of R.C. 2903.13, and the unlawful restraint charge was nolled.

Brown pled guilty to the assault charge and was referred for a presentence

investigation.

On December 13, 2022, Brown filed a motion asking the court to lift the

no-contact order. In the motion, Brown argued that “the alleged victim * * * is in

agreement with lifting the No Contact Order and alleges that she is not in any threat

of physical harm or danger and would request that the No Contact Order be lifted.”

On December 21, 2022, the trial court sentenced Brown. At the hearing,

Brown’s counsel asked that the court refrain from sentencing Brown to jail time,

noting that Brown had been attending classes at North Star Neighborhood Reentry,

shares seven children with the victim, is employed and supports the children, and

that Brown had “been a law-abiding citizen for approximately the last 20 years.” (Tr.

5, 12/21/2022.)

The trial court took issue with Brown’s claim that he had been a law-

abiding citizen for the past 20 years. The court cited offenses for underage

possession, drug paraphernalia, falsification, breaking and entering, tampering with

records, receiving stolen property, numerous traffic offenses, menacing, and

obstruction of justice. The court noted that the most recent offense occurred in

2010.

The court sentenced Brown to 180 days in jail, all of which were

suspended; fines and costs; and three years of community-control supervision. His

community-control supervision included the following specific conditions: (1)

complete parenting classes, (2) domestic intervention education and training

(“DIET”), (3) 60 hours of community work service, (4) abide by the existing no-

contact order, and (5) “alcohol/drug screen follow recomm, no contact w/

victim/children until court approval.”

On January 17, 2023, Attorney Leif Christman (“Christman”) entered a

notice of appearance on behalf of Brown and immediately filed a motion to “modify

conditions of probation,” asking the court to lift the no-contact order as it applied to

Brown’s children and remove the requirement that he complete a parenting class.

Brown argued that these sanctions relating to his children were unrelated to the

underlying offense that was not committed in the presence of or against the children.

On February 28, 2023, at a virtual hearing on the motion, Christman

explained that he believed these sanctions were “afield of the court’s power.” (Tr. 6,

2/28/23.) The trial court countered that

[t]he Probation Report indicates that he has violated the No Contact

Order already.

As of January 23rd of this year there’s a new police report from Grafton,

Ohio for telecommunications harassment.

***

It says that the Victim had 20 screenshots of him contacting her and

the children no sooner than he was placed on probation.

In addition, he’s having other people contact her on his behalf.

What I should be doing is putting him in jail. That’s what I should be

doing * * *.

(Tr. 7-8, 2/28/23.)

At the hearing, Brown, through Christman, also argued that a three-

year no-contact order with his children was unreasonable, and the court clarified

that the no-contact order was not for three years and that the court would lift the

order earlier if Brown complied with the terms of his community control. The court

denied the motion to modify community control and set a community-control

progress hearing for March 9, 2023.

At the March 9 hearing, Brown, through Christman, verbally renewed

his motion to modify the terms of community control, which the court rejected

again, explaining that (1) the no-contact order was not for a definite period of three

years, but only until further notice of the court; (2) Brown had already violated the

no-contact order; and (3) the victim had separately filed a civil protection order in

another court, so she did not feel comfortable lifting the no-contact order.

The court explained that there “wouldn’t be any reason for [it] to

change an order that he’s not abiding by already” and stated that it was going to take

Brown “into custody today,” due to the violation. (Tr. 6.) Brown objected, noting

that he had not received proper notice of the violation and that he was not provided

with documentation reflecting these violations so that he could adequately prepare

for a community-control-sanctions-violation hearing.

The trial court agreed with Brown and continued the matter, but

remanded Brown to jail for seven days and set the continued community-control-

sanctions-violation hearing for March 14, 2023. Brown was processed and taken

into custody at the close of the hearing.

On March 10, 2023, Brown filed a “motion for immediate bail pending

further proceedings.” The motion argued that Brown is a train bridge operator for

Norfolk Southern Railroad and was at risk of losing his job, which would “devastate

his ability to provide financial support for his seven children.”

On March 14, 2023, the court held the violation hearing where

Christman relayed that he had been in contact with Brown’s employer and hoped

that Brown could make his shift tonight, so that he could remain employed. The

court discussed Brown’s disobedience of the no-contact order and acknowledged

that Brown had successfully completed the parenting portion of community control.

The court released Brown from jail and stated that it was not going to

consider modifying or amending the no-contact order because Brown and the victim

were beginning divorce proceedings, which often involve no-contact orders,

visitation with children, and custody of children. The court noted that “there’s a

protection order being requested through Domestic Relations Court. * * * I’m not

gonna lift the no contact order until Domestic Relations Court tells me what they’re

doing.” (Tr. 5-6, 3/14/2023.) The trial court clarified that “it doesn’t make [sense]

for me to lift it and then for you to violate [the Domestic Relations Court’s] order, if

there’s one in place or will be one in place.” (Tr. 6, 3/14/2023.) The court noted,

however, that if it lifted the no-contact order, “[y]ou will not have any contact with

[the victim], it will be through [a] third-party.” (Tr. 6, 3/14/2023.)

The court scheduled a virtual hearing for April 12, 2023. There is no

transcript of this hearing, but the record indicates that Brown did not appear. The

trial court issued a failure to appear warrant and set bond at $50,000.

Unbeknownst to the court, Christman had filed an affidavit of

disqualification in the Ohio Supreme Court on April 5, 2023, which is why Brown

and Christman had not appeared for the hearing. Christman sought to disqualify

the trial judge from this matter. In accepting the affidavit of disqualification, the

Ohio Supreme Court ordered that “[e]xcept as provided in R.C. 2701.03(D)(2)

through (4), [the trial court] is deprived of any authority to preside in the proceeding

until the Chief Justice rules on the affidavit.” The docket indicates that the trial court

did not receive the affidavit of disqualification until April 14, 2023, after the warrant

was issued. As a result, Brown filed a motion to quash the outstanding warrant,

which the trial court granted and recalled the warrant.

In June 2023, the Ohio Supreme Court denied Christman’s affidavit

of disqualification, noting that “Christman has failed to establish that [the trial

judge] is biased or prejudiced against him or Brown or that the judge cannot be

impartial and open-minded in Brown’s case.”

On July 11, 2023, the court held a community-control-sanctions-

violation hearing. The allegations of the alleged violation are not part of the record,

and it does not even appear that a violation was discussed. Nonetheless, at the

hearing, Brown presented documents from his divorce proceedings, indicating that

the civil protection order had been voluntarily dismissed by the victim and that the

parties had finalized an agreement for shared parenting of the children.

As for Brown’s compliance with community control, it was discussed

that Brown had been able to maintain his employment, which was necessary to make

his child support payments. He had also begun completing DIET and planned to

complete his community service hours after completing DIET. Brown, through

counsel, asked that the court “continue Mr. Brown on supervision and that he be

allowed to continue on the path that he’s established here.” (Tr. 5, 7/11/2023.)

The court responded that Brown “can have third party visitation with

[his] children. That means you contact somebody else to visit with them. The no

contact order, regarding [his] wife or soon to be ex-wife remains in effect.” (Tr. 5,

7/11/2023). The trial court journalized the same, lifting the no-contact order to

allow third-party contact with the children.

On August 15, 2023, Brown filed a notice of appeal from the order

that the trial court journalized after the July 11, 2023 hearing, asserting one error

for our review:

The trial court erred in re-imposing, and denying Mr. Brown’s motion

to eliminate, a probation condition restricting contact with his

children.

II. Law and Analysis

After Brown filed the instant appeal, this court asked the parties to

brief whether the trial court’s order following the July 11, 2023 hearing was a final,

appealable order.

Our appellate jurisdiction is limited to reviewing judgments and

orders that are final, appealable orders. See Ohio Constitution, Article IV, Section

3(B)(2). R.C. 2505.02(B) defines the types of orders that are final, appealable

orders. In criminal cases, the sentencing entry typically constitutes the final order

from which a party may appeal. See, e.g., Columbus v. Taylor, 39 Ohio St.3d 162,

165, 529 N.E.2d 1382 (1988); State v. Hunt, 47 Ohio St.2d 170, 174, 351 N.E.2d 106

(1976); State v. Chamberlain, 177 Ohio St. 104, 107, 202 N.E.2d 695 (1964). This

judgment must be appealed within thirty days. App.R. 4(B).

In his supplemental briefing, Brown did not argue that the July 11,

2023 order fell into any of the R.C. 2505.02(B) categories. Instead, Brown

distinguished his case from State v. Ogle, 4th Dist. Hocking No. 14CA17, 2014-Ohio-

4868, and State v. Senk, 8th Dist. Cuyahoga No. 88524, 2007-Ohio-3414. Brown

also cited to Cleveland v. Cornely, 8th Dist. Cuyahoga No. 109556, 2021-Ohio-689,

that addresses a fact pattern similar to the fact pattern in the instant appeal. We

address each case in turn.

Ogle’s procedural posture indicates that Ogle had been sentenced to

community-control sanctions and sought to have them terminated as unlawfully

imposed, which the trial court overruled. Id. at ¶ 3. The Fourth District determined

that “Ogle’s motion to terminate her community control is an attempt to correct or

modify her sentence, and the denial of such motion is not a final, appealable order.”

Id. at ¶ 7. As a result, the Ogle Court dismissed the appeal for lack of a final,

appealable order. In so holding, the Ogle Court cited to cases from the Third, Fifth,

Eighth, Ninth, and Twelfth Districts that came to similar conclusions regarding the

denial of a motion to modify or terminate community-control sanctions. Id. at ¶ 6.

The Eighth District case that Ogle cites and that Brown distinguishes

his case from, Senk, was also a domestic-violence case. In Senk, defendant Senk was

sentenced to six months in prison, which were to be served consecutive to prison

terms imposed in two other felony cases. Id. at ¶ 3. Six years later, Senk filed a

“motion to correct improper sentence,” arguing that the trial court’s imposition of

consecutive sentences was improper. The trial court denied the motion, and Senk

appealed, which this court dismissed for lack of a final, appealable order. Id. at ¶ 18.

In so reasoning, this court explained that “it is evident that Senk is attempting to

attack his sentence collaterally by appealing the trial court’s denial of his motion to

correct sentence.” Id.

Finally, Brown directs us to Cornely. Cornely pled guilty to domestic

violence. Id. at ¶ 2. As in this case, Cornely was sentenced to community control,

DIET, 60 hours of community service, and ordered to maintain the court’s

previously imposed no-contact order against his wife and children. Id. at ¶ 5. As in

this case, Cornely filed a motion to terminate or modify the terms of the no-contact

order to allow him to see his children. Id. at ¶ 1. We, however, must address a key

distinction in Cornely.

The Ohio Supreme Court has intimated that taking judicial notice of

public court records available on the internet is permissible. State ex rel. Everhart

v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.2d 516, ¶ 8. A review of

the docket in Cornely indicates that the original sentencing entry that imposed the

community-control sanctions did not contain the fact of conviction necessary to

make the order final and appealable pursuant to State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, 958 N.E.2d 142. This court remanded Cornely to the Cleveland

Municipal Court to issue a final, appealable order. Thus, Cornely was a direct appeal

of the original sentence, which had not become a final, appealable order until this

court remanded it.

Here, Brown reads the order as reimposing community-control

sanctions. However, it is clear from the record that the trial court intended to

continue Brown’s community-control sanctions as originally imposed. The trial

court did not reimpose community control; it lessened the community-control

restrictions and allowed Brown to engage in “third party visitation” with his

children.

We also note that at the time of the July 11, 2023 hearing, there were

no pending motions before the trial court; the trial court denied Brown’s motion to

modify following the February 28 and March 9, 2023 hearings. Further, the motion

was not renewed at the July 11, 2023 hearing. In fact, Brown asked the court to

continue his community-control sanctions to allow him time to complete them —

which is exactly what the trial court did. Though no formal motion was made, Brown

presented documents from his divorce proceedings to the court, and the court was

persuaded that Brown was eligible to engage in third-party visitation with his

children. This is exactly what the trial court promised that it would do after

determining how the divorce proceedings were progressing because it did not want

to interfere with the domestic relations court’s jurisdiction.

Pursuant to Ogle and Senk, we find that the trial court’s July 11, 2023

order removing a portion of Brown’s sanction was not a final, appealable order that

we have jurisdiction to review.

Accordingly, we dismiss Brown’s appeal for lack of a final, appealable

order.

III. Conclusion

The trial court’s July 11, 2023 judgment was not a final, appealable

order from which Brown could appeal. This court therefore lacks jurisdiction to

consider Brown’s arguments stemming therefrom.

Accordingly, the appeal is dismissed.

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

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

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, JUDGE

EILEEN T. GALLAGHER, P.J., and

SEAN C. GALLAGHER, J., CONCUR