[Cite as Cleveland v. Kushlak, 2022-Ohio-4402.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, :

No. 111254

v. :

ANTHONY KUSHLAK, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED

RELEASED AND JOURNALIZED: December 8, 2022

Criminal Appeal from the Cleveland Municipal Court

Housing Division

Case No. 2020-CRB-007383

Appearances:

Mark Griffin, Cleveland Director of Law, and Nathaniel P. 

Hall, Assistant Director of Law, for appellee. 

Michela Huth, for appellant. 

MARY J. BOYLE, J.:

Defendant-appellant, Anthony Kushlak (“Kushlak”), appeals a

January 20, 2022 order of the Cleveland Municipal Court, Housing Division 
(“Housing Court”), modifying his community control sanctions. For the following 

reasons, we vacate the judgment and remand for further proceedings. 

I. Procedural History

On July 21, 2020, the city of Cleveland (“city”) filed a five-count 

complaint, in Cleveland M.C. No. 2020-CRB-007383, alleging Kushlak violated 

Cleveland Codified Ordinances (“C.C.O.”) 203.03 by failing to comply with an order 

of the Cleveland Department of Public Health to clean up trash littering the ground 

around the exterior of his house, keep sufficient trash containers to dispose of it, and 

abate the conditions that attract rodents and other vermin to his property.1 Each 

count of the complaint corresponded to a day that Kushlak was out of compliance 

with the order.2

On May 10, 2021, Kushlak pled no contest to, and the municipal court 

found him guilty of, all five counts and ordered a presentence-investigation report. 

On June 28, 2021, the municipal court sentenced Kushlak to three-year community

control sanctions on each count, to be served concurrently with community control 

sanctions imposed on Count 1. The court issued a handwritten judgment entry the 

same day and a typewritten judgment entry the following day. In the typewritten 

judgment entry dated June 29, 2021, but journalized more than a week later on July 

1 The city subsequently filed four more cases (Cleveland M.C. Nos. 2020-CRB013409, 2020-CRB-013846, 2021-CRB-003173, 2021-CRB-003172) that included eleven 

additional counts, but these counts were dismissed. 

2 C.C.O. 201.99 provides that the first violation of any section of the Health Code, 

including a violation of C.C.O. 203.03, is a minor misdemeanor, and any subsequent 

violation is a first-degree misdemeanor. 
8, 2021, the court identified Kushlak’s case as a “hoarding case” and imposed the 

following conditions:

(a) On or before Thursday, July 1, 2021, [Kushlak] must remove the 

trash from the driveway, place the trash in the trash bins[,] and 

move the trash bins onto the front lawn to be picked up by the City 

of Cleveland. 

(b)The Cleveland Animal Protective League is ordered to remove 

animals located at [Kushlak’s residence] on or before Friday, July 

30, 2021. 

(c) [Kushlak] must grant the Cleveland Animal Protective League with 

access to the property on or before Friday, July 30, 2021. 

(d)Department of Health Inspector Alan Mancuso and Department of 

Building and Housing Inspector Michael Shockley are ordered to 

conduct an inspection of the property * * * on or before July 28, 

2021. 

(e)[Kushlak] has 30 days to get things in order to begin cleaning up. 

[Kushlak] must grant Inspectors Mancuso and Shockley access to 

the property for the completion of their inspections. The 

inspections should be done no sooner than AND no later than July 

28, 2021. 

(f) [Kushlak] must coordinate with Community Work Service to clean 

the property[,] including the garage[,] of all junk and debris on or 

before August 30, 2021. 

(g)[Kushlak] must continue to coordinate and cooperate with the 

Benjamin Rose Institute on Aging. 

(h)The Benjamin Rose Institute on Aging is required to provide the 

Court with a report on [Kushlak’s] progress at the next hearing on 

September 16, 2021[,] at 3:00 p.m. 

(i) [Kushlak] must appear in court for the next hearing on September 

16, 2021[,] at 3:00 p.m. 
(Emphasis sic.) (Judgment Entry, July 8, 2021.)

3

The court included among the sanctions for any violation of these 

conditions “a definite jail term authorized for the original offense” and “community 

control up to five years in total.” The court identified the original offense — a 

violation of C.C.O. 203.03 — as a first-degree misdemeanor, punishable by “a jail 

term of up to 18 months” and “five years of community control.” 

On July 13, 2021, the city filed an unopposed motion requesting 

modification and clarification of the July 8, 2021 Judgment Entry.

4 The city argued 

that the entry misidentified Kushlak’s initial violation (Count 1) as a first-degree 

misdemeanor and imposed three-year community control sanctions on that count

even though the relevant sentencing ordinance, C.C.O. 201.99, provides that a first 

offense is a minor misdemeanor and any subsequent offense is a first-degree 

misdemeanor. The city therefore requested that Count 1 be amended to reflect that 

it was a minor misdemeanor and that Kushlak’s sentence be imposed on the 

remaining counts. The city also argued that the court improperly imposed a 

condition of Kushlak’s community control sanctions on Department of Health 

Inspector Alan Mancuso (“Inspector Mancuso”) and Department of Building and 

Housing Inspector Michael Shockley (“Inspector Shockley”) in paragraphs (d) and 

(e) of the entry and requested that these conditions be amended to remove the 

3 The docket entry does not include the hearing date and time in paragraph (h) or 

the entirety of paragraph (g). 

4 The motion was docketed the next day, July 14, 2021. 
sanctions from both inspectors. The city noted that the entry also improperly 

imposed conditions on the Cleveland Animal Protective League (“APL”) and the 

Benjamin Rose Institute on Aging (“Benjamin Rose”) in paragraphs (b) and (h), but 

recognizing that they were not parties to the matter and not represented by the city, 

the city had no authority to object on their behalf. The city further noted that 

Kushlak was already under community control sanctions with the Cleveland 

Municipal Court, General Division, which had issued an order permitting Kushlak 

to keep eight cats and two dogs on his property, and the Housing Court had no 

authority to amend this order as it had done in paragraph (b) of the entry. Finally, 

the city requested that the court clarify paragraph (e) of the entry to specify the 

nature, extent, and duration of the inspection. 

On July 20, 2021, the court granted the city’s unopposed motion and 

issued an amended judgment entry, journalized July 22, 2021, identifying Kushlak’s 

first offense as a minor misdemeanor; imposing three-year community control 

sanctions on the subsequent counts, to be served concurrently with each other; and 

modifying the additional conditions of Kushlak’s community control as follows: 

(a) On or before Thursday, July 1, 2021, [Kushlak] must remove the 

trash from the driveway, place the trash in the trash bins[,] and 

move the trash bins onto the front lawn to be picked up by the City 

of Cleveland. 

(b)[Kushlak] must permit Department of Public Health Inspector and 

Department of Building and Housing Inspector access to the 

property so that they can conduct an inspection of the property * * * 

on or before August 6, 2021. 

(c) [Kushlak] is ordered to get things in order and clean up the property 

so that it is ready for the inspection on August 6, 2021. 
(d)The Cleveland Animal Protective League inspection of the property 

should be conducted after the Department of Building and Housing 

Inspector has conducted an interior inspection of the property. 

(e)[Kushlak] must coordinate with Community Work Service to clean 

the property[,] including the garage[,] of all junk and debris on or 

before August 30, 2021. 

(f) [Kushlak] must continue to coordinate and cooperate with the 

Benjamin Rose Institute on Aging. 

(g)The Benjamin Rose Institute on Aging is required to provide the 

Court with a report on [Kushlak’s] progress at the next hearing on 

September 16, 2021[,] at 3:00 p.m. 

(h)[Kushlak] must appear in court for the next hearing on September 

16, 2021[,] at 3:00 p.m.

(Emphasis sic.) (Amended Judgment Entry, July 22, 2021.)5

The status hearing scheduled for September 16, 2021, in the amended 

judgment entry was continued to September 20, 2021. At this hearing, the 

municipal court reviewed a community control status report written by Deputy 

Chief Housing Court Specialist Darlene English (“Deputy Chief English”), which 

stated that Kushlak had moved some of the trash to a neighbor’s lawn for pick up 

but had not cleaned up the exterior of his property, discontinued working with a 

Benjamin Rose social worker, and started treatment at the U.S. Department of 

Veteran Affairs (“VA”). The court also heard testimony from Inspectors Mancuso 

and Shockley, who testified that Kushlak had not complied with the court’s 

inspection orders. The court found that Kushlak had violated conditions of his 

community control sanctions, sentenced him to 15 days in jail, and ordered him to 

5 Paragraphs (g) and (h) are missing from the docket entry. 
undergo a psychological evaluation, issuing a handwritten judgment entry

journalized the same day, September 20, 2021, that included the court’s findings

and sentence. 

On September 24, 2021, the court issued a typewritten judgment

entry journalized the following day that included a section titled “Terms of 

Community Control Modified.” The court modified the terms of Kushlak’s 

community control sanctions as follows: 

[Kushlak] is sentenced to fifteen (15) days in jail for failing to comply 

with any of the Court Orders issued by this Court on July 22, 2021. 

While incarcerated, [Kushlak] must complete a psychological 

evaluation prior to his release from jail. The results of the psychological 

evaluation must be made available to Deputy Chief Specialist English. 

The terms of community control [are] active and [are] set to expire on 

May 17, 2023 [sic].

[Kushlak] is informed that [the general community control conditions 

provided by R.C. 2929.25(C)(2) and Loc.R. 2.18 of the Cleveland 

Municipal Court, Housing Division, still apply.]

As additional conditions of community control, the Court orders the 

following: 

(a) Pursuant to the Order of July 22, 2021, [Kushlak] must remove the 

trash from the driveway, place the trash in the trash bins[,] and 

move the trash bins onto the front lawn to be picked up by the City 

of Cleveland.

(b)Pursuant to the Order of July 22, 2021, the Department of Public 

Health Inspector Alan Mancuso is permitted to conduct an exterior 

inspection of the property[.]

(c) Pursuant to the Order of July 22, 2021, the Department of Building 

and Housing Inspector Michael Shockley is permitted to conduct an 

interior inspection of the property[.]
(d)Pursuant to the Order of July 22, 2021, [Kushlak] is ordered to allow 

Community Work Service to clean the property[.]

(e) Pursuant to the Order of July 22, 2021, [Kushlak] must continue to 

coordinate and cooperate with his mental health provider which is 

currently the United States Department of Veteran Affairs. 

(f) [Kushlak] must appear in court for the next hearing on October 25, 

2021[,] at 1:00 p.m.

(Emphasis sic.) (Judgment Entry, Sept. 25, 2021.) The same day the court issued 

its judgment entry, Kushlak filed a motion to mitigate his jail sentence due to health 

concerns he was experiencing after serving several days in jail. The court did not 

rule on the motion until after Kushlak had served the sentence, however, stating that 

the motion was filed on September 24 but not journalized until October 25, 2021. 

The next month, following an October 25, 2021 status hearing, the 

court issued another entry signed the same day but journalized two days later, again 

modifying the terms and conditions of Kushlak’s community control:

The terms of community control [are] active and [are] set to expire on 

May 17, 2023 [sic].

[And as] additional conditions of community control, the Court orders 

the following:

(a)[Kushlak] is ordered to permit the Department of Public Health 

Inspector Alan Mancuso to conduct an exterior inspection of the 

property * * * on November 5, 2021[,] at 9:00 AM.

(b)[Kushlak] is ordered to permit the Department of Public Health 

Inspector Alan Mancuso to conduct an exterior inspection of the 

garage * * * on November 5, 2021[,] at 9:00 AM.

(c) [Kushlak] is ordered to permit the Department of Building and 

Housing Inspector Michael Shockley to conduct an interior 

inspection of the property * * * on November 5, 2021[,] at 9:00 AM. 
(d)[Kushlak’s] Attorney, Tina Tricarichi[,] must be present on the 

property with [Kushlak] for the inspections that are to be completed 

on November 5, 2021[,] at 9:00 AM.

(e)[Kushlak] is ordered to permit representatives from Councilman 

[Anthony] Brancatelli’s Office and Deputy Chief Specialist English 

to assist him with removing the branches from his backyard during 

the week of October 25, 2021. 

(f) [Kushlak] is ordered to remove all trash and open containers from 

the property[.]

(g)[Kushlak] is ordered not feed any outside animals. 

(h)[Kushlak] is ordered to continue to coordinate and cooperate with 

his mental health provider[,] which is currently the United States 

Department of Veteran Affairs. 

(i) All previous orders issued by this Court remain in full force and 

effect. 

(j) [Kushlak] must appear in court for the next hearing on November 

8, 2021[,] at 1:30 p.m. 

(Emphasis sic.) (Judgment Entry, Oct. 27, 2021.) 

Two weeks later, the court issued an “extended entry” dated 

November 5, 2021, and journalized the same day, modifying the entry issued on 

October 27, 2021. The November 5 entry amended the term of Kushlak’s 

community control appearing in earlier entries to reflect a June 28, 2024 expiration 

date and modified the conditions of his community control to include an interior 

inspection of the garage scheduled for November 8, 2021, at 9:00 a.m. The entry 

also ordered Kushlak to appear at the next status hearing scheduled at 1:30 p.m., the 

same day as the inspection. The court issued the November 5 entry without a 

hearing.
On November 8, 2021, Kushlak’s attorney filed a written objection to 

the November 5 entry and requested a hearing. Kushlak argued that the court 

modified the October 27, 2021 entry without a hearing and notified Kushlak less 

than a day before Inspector Mancuso was scheduled to inspect the interior of 

Kushlak’s garage. Kushlak requested that the order be held in abeyance until a 

hearing could be held on the modified condition. The court did not rule on Kushlak’s 

objection. In addition, on November 8, 2021, the court issued a nunc pro tunc order 

journalized more than a month later on December 15, 2021, revising the July 8, 2021 

entry to reflect the dates of Kushlak’s offenses from August 26-30, 2019, to October 

26-30, 2019. 

On November 9, 2021, the court issued another entry, journalized the 

following day, again modifying the conditions of Kushlak’s community control: 

(a)[Kushlak] is ordered to arrange an intake appointment with 

Benjamin Rose Institute on Aging to obtain treatment for hoarding 

and work with [his] doctors at the Department of Veteran Affairs. 

(b)[Kushlak] is given one (1) week to remove and discard [all] of the 

perishable and nonperishable food and beverage items from the 

interior of the garage[.]

(c) [Kushlak] is ordered to clean and remove items from the interior of 

the house and garage * * * with the assistance of the Court 

Community Service. [Kushlak is to] make significant improvement 

with the cleaning and removing of property prior to the next hearing 

date of December 13, 2021. 

(d)All previous orders issued by this Court remain in full force and 

effect. 

(e)[Kushlak] must appear in-person at court for the next hearing on 

December 13, 2021[,] at 1:30 p.m.
(Emphasis sic.) (Judgment Entry, Nov. 10, 2021.) 

On December 13, 2021, the court held another status hearing and 

based on a written report and testimony, issued another entry dated December 28, 

2021, and journalized January 8, 2022, that included the following community

control conditions: 

[Kushlak] is ordered to permit Court Community Service onto the 

property so that it can clean the property[.]

[Kushlak] is ordered to clean and remove items from the interior of the 

house and garage * * * with the assistance of Court Community Service. 

[Kushlak] is ordered to permit the Department of Building and 

Housing Inspector Michael Shockley to inspect the interior of the 

property[.]

[Kushlak] is ordered to permit the Department of Public Health 

Inspector Alan Mancuso to inspect the exterior of the property[.]

[Kushlak] is ordered to make up his missed December doctor’s 

appointment with Dr. Biggie and continue to meet Dr. Biggie for his 

regularly scheduled doctor appointments. 

Deputy Chief Housing Specialist English is ordered to contact [the] 

Benjamin Rose Institute on Aging to see if [Kushlak] can begin services 

with them again. 

[Kushlak] is ordered to refra[in] from feeding the outside animals.

All previous orders issued by this Court remain in full force and effect. 

[Kushlak] must appear in-person at court for the next hearing on 

January 10, 2022[,] at 3:00 p.m.

(Emphasis sic.) (Judgment Entry, Jan. 8, 2022.)

On January 10, 2022, the court held a status hearing at which

Kushlak, his attorney, the city prosecutor, Inspectors Shockley and Mancuso, and 
Chief Housing Court Specialist Belinda Gest (“Chief Gest”) appeared. Chief Gest 

appeared in place of Deputy Chief English and testified that she had learned from 

Deputy Chief English that the interior of the property was never inspected and

learned from Kushlak that he made progress on cleaning out the interior of his 

garage. (Status Hearing, Jan. 10, 2022, tr. 3.) Kushlak testified that he discarded 

some of the perishables from the interior of his garage. (Status Hearing, Jan. 10, 

2022, tr. 15.) 

Inspectors Mancuso and Shockley testified that they arrived to 

inspect the property earlier that morning but were unable to reach Kushlak to take 

pictures of the house and garage interiors. (Status Hearing, Jan. 10, 2022, tr. 8-9). 

Inspector Mancuso testified that there were still items littering the exterior of the 

property, behind the house and alongside the garage and garbage cans. (Status 

Hearing, Jan. 10, 2022, tr. 9.) Kushlak testified that he was not home earlier that 

day because he had to appear in the Cuyahoga County Court of Common Pleas for a 

different matter. (Status Hearing, Jan. 10, 2022, tr. 10.) The court stated that it had 

ordered the inspection to be completed in mid-December and Kushlak had not 

complied. (Status Hearing, Jan. 10, 2022, tr. 10). The court ordered Kushlak to 

permit Chief Gest and Inspectors Mancuso and Shockley to inspect and photograph 

the exterior and interior of the house and garage on January 13, 2022, at 9:30 a.m., 

and advised Kushlak that he would be in contempt and that he would “serve time” if 

he did not cooperate during the inspection. (Status Hearing, Jan. 10, 2022, tr. 18.) 
On January 13, 2022, the court issued a judgment entry journalized 

the following week on January 20, 2022, in which it again modified the conditions 

of Kushlak’s community control as follows: 

(a)[Kushlak] is ordered to permit Court Community Service onto the 

property so that it can clean the property[.]

(b)[Kushlak] is ordered [to] coordinate with Court Community 

Services to assi[s]t them with cleaning and removing items from the 

house and garage[.]

(c) [Kushlak] is ordered to coordinate with his Councilwoman Rebecca 

Maurer to obtain a garbage dumpster to remove all trash from the 

property[.]

(d)[Kushlak] is ordered to p[er]mit the Department of Building and 

Housing Inspector Michael Shockley, Department of Public Health 

Inspector Alan Mancuso[,] and Chief Housing Specialist Belinda 

Gest access to the property * * * for an inspection of the exterior and 

interior of the property on January 13, 2022[,] at 9:30 AM.

(e)[Kushlak] is ordered to permit the Department of Building and 

Housing Inspector Michael Shockley and Department of Public 

Health Inspector Alan Mancuso to inspect the exterior and interior 

of the garage[.]

(f) [Kushlak] is ordered to clean the laundry detergent boxes, all trash 

and debris from the exterior of the property[.] [Kushlak] is ordered 

to ensure that the property remains maintained, cleaned[,] and free 

of all hazards. 

(g)[Kushlak] is ordered to contact Dr. Biggie from the Veteran Affairs 

Hospital and must remain in regular consistent contact with his 

doctor for his mental health treatment. 

(h)All previous orders issued by this court remain in full force and 

effect. 

(i) [Kushlak] must appear in-person at court for the next hearing on 

January 24, 2022[,] at 3:30 PM. 

(Judgment Entry, Jan. 20, 2022.) 
The next status hearing was held on January 24, 2022, at which 

Kushlak, his attorney, the city prosecutor, Deputy Chief English, and Inspectors 

Mancuso and Shockley appeared. Deputy Chief English testified that Kushlak 

permitted Inspectors Mancuso and Shockley to inspect and photograph the 

property’s exterior and the garage and house interiors on January 13, 2022, but 

Kushlak had not removed all perishables from the garage interior because it was a 

large job, he needed assistance, and the parties were coordinating with the Old 

Brooklyn CDC to obtain a dumpster and with Court Community Service to assist in 

the cleanup. (Status Hearing, Jan. 24, 2022, tr. 3-4.) 

Kushlak asked whether he would be reimbursed if any valuables were 

discarded during the cleanup. (Status Hearing, Jan. 24, 2022, tr. 5.) The court 

replied that Kushlak had already been advised to remove any valuables and return 

them once the property was cleaned. (Status Hearing, Jan. 24, 2022, tr. 5.) 

Inspector Shockley testified that he had inspected and photographed the parts of the 

interior that he could reach but could not reach the mechanicals or other rooms 

because they were impassable. (Status Hearing, Jan. 24, 2022, tr. 11-12.) He noted 

the presence of insects near, and a foul odor emanating from, the bathroom but 

could not locate its source because the bathroom was blocked. (Status Hearing, 

Jan. 24, 2022, tr. 11.) Inspector Mancuso testified that he had inspected and 

photographed the property’s exterior and garage interior and noted that the exterior 

was still littered with debris; the garage interior was full of items and infested with 

rodents; and Kushlak had not disposed of any garbage bags stored in and alongside 
his trash cans, even though trash collection was scheduled that day. (Status 

Hearing, Jan. 24, 2022, tr. 13-15.) 

The court asked Kushlak’s attorney to address Kushlak’s repeated 

failure to comply with orders to clean up his property. Kushlak’s attorney argued 

that Kushlak’s noncompliance resulted from his mental illness and jailing him 

would not resolve the issue. (Status Hearing, Jan. 24, 2022, tr. 16.) The court then 

stated that 

[a]s soon as we line this [dumpster] up, as soon as we line court 

community workers up, we’re getting movement to clean this property 

one way or the other, whether he’s there or whether he’s in jail while 

they’re doing it. This property’s under the jurisdiction of this Court. So 

it’s better to work with court resources than to work against it. 

(Status Hearing, Jan. 24, 2022, tr. 18.) The court ordered Kushlak to place garbage 

bags on the tree lawn for the next collection day, January 27, 2022, and an 

inspection the day after to ensure the trash was removed. (Status Hearing, Jan. 24, 

2022, tr. 23.) These orders were signed the same day as the hearing and journalized 

two days later on January 26, 2022.

6

The next status hearing was held on February 2, 2022, at which 

Kushlak, his attorney, the city prosecutor, Deputy Chief English, Jayme Bauer of the 

Old Brooklyn CDC (“Bauer”), and Inspectors Shockley and Mancuso appeared. 

Chief English testified that Kushlak had disposed of the garbage bags piled beside 

the trash cans but could not take the trash cans to the tree lawn because they were 

6 The court also issued a judgment entry dated January 26, 2022, but this judgment 

entry was not journalized until March 2, 2022. 
stuck the driveway with ice. Chief English also testified that Court Community 

Service was scheduled to assist in cleanup on February 14, 2022. (Status Hearing, 

Feb. 2, 2022, tr. 3-4.) Inspector Mancuso testified that he and Inspector Shockley 

arrived with a police escort but Kushlak did not answer the door. (Status Hearing, 

Feb. 2, 2022, tr. 4-5.) Kushlak stated that he was not home at the time of the 

inspection. (Status Hearing, Feb. 2, 2022, tr. 6.) The court stated that it could just 

have the inspectors enter the house and garage whether or not Kushlak is there. 

(Status Hearing, Feb. 2, 2022, tr. 11). Instead, the court ordered Kushlak to move 

all the trash in his garbage cans to the tree lawn by February 10, 2022, the following 

week’s trash collection day, and to permit Inspectors Shockley and Mancuso and 

Chief Gest to enter and inspect the property the next day to confirm that the trash 

was removed. (Status Hearing, Feb. 2, 2022, tr. 18-19, 21.) 

The court’s orders were incorporated, in part, into a handwritten 

judgment entry dated February 2, 2022, and journalized February 11, 2022. A 

typewritten judgment entry dated February 3, 2022, and journalized February 16, 

2022, modified the conditions of Kushlak’s community control as follows: 

(a)[Kushlak] is ordered to continue to meet with Dr. Biggie for his 

regularly scheduled doctor appointments. 

(b)[Kushlak] is ordered to ensure that all of the trash on the exterior of 

the property is put in trash bins and placed on the tree lawn for the 

City of Cleveland to remove on Thursday, February 10, 2022. 

(c) [Kushlak] is ordered to permit the Department of Building and 

Housing Inspector Michael Shockley and the Department of Public 

Health Inspector Alan Mancuso access to the interior and exterior 

of the property and the garage on Friday, February 11, 2022[,] 
between 9 and 10 a.m. to ensure that all trash was removed from the 

exterior of the property[.]

(d)[Kushlak’s] Attorney, Tina Tricarichi[,] and Deputy Chief Housing 

Specialist English are ordered to be present on the property * * * on 

February 11, 2022[,] between 9 and 10 a.m. to ensure that the 

Inspectors are able to properly inspect the exterior and interior of 

the house and garage. 

(e)[Kushlak’s] failure to comply with the orders of this Court may 

result in a contempt finding and possible jail time. 

(f) All previous orders issued by this Court remain in full force and 

effect. 

(g)Court Community Service is scheduled to clean the property * * * on 

Monday, February 14, 2022. As such, [Kushlak] is ordered as part 

of his sentence of community control to consent to Court 

Community Services, the Bailiffs, and the Housing Specialist of this 

Court, to take any and all necessary actions to abate the nuisance at 

the property[.]

(h)[Kushlak] is ordered not to interfere with any action taken by Court 

Community Services during the clean-out. 

(i) Court Community Services representatives may remove all items 

from the exterior and interior of the property[.] Court Community 

Service representative[s] shall have no obligation to judge the value 

of any items and no obligation to preserve them, to sort them[,] or 

to care for them in any way, but may discard them immediately. 

(j) [Kushlak] may not remove items on any day when Court 

Community Service representatives are present without the consent 

of the representatives. If [Kushlak] comes to the property when 

Court Community Service representatives are present, he is ordered 

not to interfere in any way with them. The Housing Court Bailiffs 

shall prevent [Kushlak] from interfering and, if [Kushlak] resists 

them, they may bring him before the Court for an immediate 

contempt hearing.

(k)[Kushlak] is ordered to appear in-person at court for the next 

hearing on February 28, 2022[,] at 2:30 p.m.

(Emphasis sic.) (Judgment Entry, Feb. 16, 2022.) 
On February 9, 2022, Kushlak appealed the municipal court’s 

January 20, 2022 judgment. The same day, Kushlak filed a motion to stay execution 

of the court’s January 20 and February 3, 2022 judgments. On February 11, 2022, 

this court sua sponte issued a temporary stay to allow the city to respond to 

Kushlak’s motion. On February 25, 2022, this court granted Kushlak’s motion, 

clarifying that it concerned the February 3, 2022 judgment permitting the city to 

enter the property and dispose of items without consideration of their value and with 

no obligation to preserve them. This court found that because the municipal court 

had not journalized the February 3, 2022 order prior to the stay, the order was 

without force and effect and the city had no authority to follow any mandate issued 

in the order. 

Having appealed the municipal court’s January 20, 2022 judgment, 

Kushlak now raises the following nine assignments of error for review: 

Assignment of Error I: The trial court abused its discretion in finding 

that [Kushlak] was in violation of his community control conditions, 

without indicating which sentencing entry applied. 

Assignment of Error II: The trial court erred and abused its discretion 

in adding additional community control conditions despite the fact that 

the November 8, 2021 Judgment Entry and Order Nunc Pro Tunc was 

not journalized.

Assignment of Error III: The trial court erred and abused its discretion 

in adding community control conditions to its January 20, 2022

Judgment Entry, which had expired by the time the January 20, 2022 

Judgment was Journalized. 

Assignment of Error IV: The trial court violated [Kushlak’s] due 

process rights when it modified his sentence and imposed additional 

community control conditions, without providing him with notice of 

the alleged violations. 
Assignment of Error V: The trial court violated [Kushlak’s] due process 

rights when it imposed additional community control conditions 

without providing him with a written statement of the evidence it relied 

upon and the reasons for revoking probation. 

Assignment of Error VI: The trial court violated [Kushlak’s] due 

process rights when it imposed additional community control 

conditions based upon [Kushlak’s] failure to abide by the prior 

modified additional community conditions set forth in the January 8, 

2022 Judgment Entry. 

Assignment of Error VII: The trial court violated [Kushlak’s] due 

process rights when the housing specialist (probation officer) 

presented non-direct testimony. 

Assignment of Error VIII: The trial court violated [Kushlak’s] due 

process rights when it failed to hold a preliminary hearing. 

Assignment of Error IX: The trial court’s January 20, 2022 Judgment 

impermissibly increased the punishment, thus violating double 

jeopardy restrictions. 

II. Law and Analysis

A. Judgment Entries

In his first three assignments of error, Kushlak argues that the 

municipal court abused its discretion when it (1) found that he violated the 

conditions of his community control without indicating which sentencing entry 

applied, (2) added community control conditions in its November 8, 2021 entry and 

nunc pro tunc order without journalizing it, and (3) added community control 

conditions to its January 20, 2022 judgment entry that had expired before the 

judgment entry was journalized. 

“[I]n cases involving building, housing, or health code violations, the 

primary goal is to bring the property into compliance, rather than punish the 
defendant for the misconduct.” Cleveland v. Schornstein Holdings, L.L.C., 2016-

Ohio-7479, 73 N.E.3d 889, ¶ 19 (8th Dist.). “To achieve that goal, the housing court 

is vested with broad authority to fashion appropriate punishment to bring about 

compliance.” Id. 

When sentencing a misdemeanor offender, a court has discretion to 

impose any sanction or combination of sanctions authorized by R.C. 2929.24 to 

2929.28. R.C. 2929.22(A). Except for a minor misdemeanor, a court may impose 

community control sanctions and any conditions of release under the community

control sanctions the court considers appropriate. R.C. 2929.25(A)(1)(a). If the 

court sentences the offender to community control sanctions under 

R.C. 2929.25(A)(1)(a), “the court retains jurisdiction over the offender for the 

duration of the period of community control” and 

in the court’s sole discretion and as the circumstances warrant, may 

modify the community control sanctions or conditions of release 

previously imposed, substitute a community control sanction or 

condition of release for another community control sanction or 

condition of release previously imposed, or impose an additional 

community control sanction or condition of release.

R.C. 2929.25(B). 

If the offender violates any condition of the community control 

sanctions, the sentencing court may impose “one or more” of the following: (1) a 

longer period of community control provided that it does not exceed five years; (2) 

a more restrictive community control sanction; (3) a combination of community 

control sanctions, including a jail term. R.C. 2929.25(D)(2). 
A trial court’s imposition of community control under R.C. 2929.25 is 

reviewed for an abuse of discretion. Cleveland v. Grunt, 2018-Ohio-4109, 112 

N.E.3d 973, ¶ 5 (8th Dist.). “Abuse of discretion,” which is “‘commonly employed to 

justify an interference by a higher court with the exercise of discretionary power by 

a lower court, implies not merely error of judgment, but perversity of will, passion, 

prejudice, partiality, or moral delinquency.’” Johnson v. Abdullah, 166 Ohio St.3d 

427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35, quoting Black's Law Dictionary 11 (2d 

Ed.1910). “[A]bsent from this definition is any indication that the abuse-ofdiscretion standard applies when a court is making a determination of law.” Id. A

trial court “lack[s] the discretion to make errors of law, particularly when the trial 

court’s decision goes against the plain language of a statute or rule.” Id. at ¶ 39.

1. Amended Sentencing Entries 

In his first assignment of error, Kushlak contends that the municipal 

court sentenced him to community control on June 29, 2021, journalized the 

sentencing entry on July 8, 2021, amended that sentencing entry on July 22, 2021, 

and issued a nunc pro tunc order revising the sentencing entry on November 8, 

2021. Kushlak maintains that these changes make it unclear which sentencing entry 

the municipal court modified in its January 20, 2022 judgment entry. 

In the July 22, 2021 sentencing entry, the court amended the July 8, 

2021 sentencing entry to reflect that a first violation of the city’s Health Code, 

including a violation of C.C.O. 203.03, is a minor misdemeanor and a second or

subsequent violation is a first-degree misdemeanor. C.C.O. 201.99. In the July 8 
sentencing entry, the court had initially sentenced Kushlak to a three-year term of 

community control on Count 1 of the complaint. Because Count 1 constituted 

Kushlak’s first violation of C.C.O. 203.03, it was a minor misdemeanor and therefore 

not subject to imposition of a community control term. R.C. 2929.25(A)(1)(a). The 

court amended the sentencing entry to impose concurrent three-year terms of 

community control on Counts 2, 3, 4, and 5 because these counts constituted the 

second and subsequent offenses under C.C.O. 201.99 and, therefore, first-degree 

misdemeanors for which the court could impose community control sanctions. 

R.C. 2929.25(A)(1)(a). Contrary to Kushlak’s contention, the amended July 22, 

2021 sentencing entry was the entry the court modified in later judgment entries. 

Kushlak also maintains that the court’s November 8, 2021 nunc pro 

tunc order entirely replaced the original sentencing entry. The only correction that 

the court made to the original sentencing entry in the nunc pro tunc order was to

correct the date of the offenses to which Kushlak pled no contest. The original 

sentencing entry stated that the offenses occurred August 26-30, 2019. The nunc 

pro tunc order revised the date of the offenses to reflect that they occurred 

October 26-30, 2019. 

Crim.R. 36 authorizes the trial court to correct “[c]lerical mistakes in 

judgments, orders, or other parts of the record, and errors in the record arising from 

oversight or omission * * * at any time.” “A trial court may use a nunc pro tunc entry 

to correct mistakes in judgments, orders, and other parts of the record so the record 
speaks the truth.” State v. Sandidge, 8th Dist. Cuyahoga No. 109277, 2020-Ohio1629, ¶ 7.

The court was authorized by Crim.R. 36 to issue a nunc pro tunc order 

revising the sentencing entry to reflect the dates of Kushlak’s offenses. But the nunc 

pro tunc order should have identified the July 22, 2021 amended sentencing entry, 

not the July 8, 2021 original sentencing entry, as the entry needing to be corrected. 

This, too, is a clerical mistake that can be corrected by an additional nunc pro tunc 

order. 

Because the court’s July 22, 2021 amended sentencing entry, as 

corrected by the November 8, 2021 nunc pro tunc order, was the basis of any 

subsequent modification the court made to the conditions of Kushlak’s community 

control, we cannot say that the trial court’s nunc pro tunc order was so confusing or 

unreasonable as to render any subsequent modification, including the January 20, 

2022 modification, an abuse of the trial court’s discretion. 

Therefore, Kushlak’s first assignment of error is overruled. 

2. Journalization of Nunc Pro Tunc Order

In his second assignment of error, Kushlak argues that if the 

November 8, 2021 nunc pro tunc order was never journalized, it is a nullity. Kushlak 

admits, however, that if the order was journalized, his second assignment of error is 

moot. Our review of the record indicates that the court’s nunc pro tunc order was 

journalized on December 15, 2021. 

Accordingly, Kushlak’s second assignment of error is overruled. 
3. Belated Journalization 

In his third assignment of error, Kushlak contends that the court 

modified two conditions of his community control and ordered him to comply by 

January 13, 2022, but journalized the modifications a week later in its January 20, 

2022 judgment entry. Kushlak maintains that the conditions had to be journalized 

to have any legal effect. The city concedes Kushlak’s argument, adding that it would 

be improper for the municipal court to find Kushlak violated his community control 

“based on an alleged failure to comply with a condition contained in an 

unjournalized [j]udgment [e]ntry.” We agree and add that the January 20, 2022 

judgment entry is not the only entry the court journalized after expiration of a 

compliance deadline. Our review, however, is limited to the January 20, 2022 

judgment entry. 

“A docket is not the same as a journal.” State ex rel. White v. Junkin, 

80 Ohio St.3d 355, 337-338, 686 N.E.2d 267 (1997). “It is the journal entries that 

are signed by the judge, not the docket entries, that control.” State ex rel. Norris v.

Wainwright, 158 Ohio St.3d 20, 2019-Ohio-4138, 139 N.E.3d 867, ¶ 19, citing 

Cleveland v. Gholston, 8th Dist. Cuyahoga No. 96592, 2011-Ohio-6164, ¶ 20, fn. 1. 

“[T]he court’s journal entry — rather than the reference to the entry set forth on the 

computerized docket — controls.” Id., citing State v. Inscho, 2d Dist. Greene 

No. 2018-CA-27, 2019-Ohio-809, ¶ 20. To be effective, the court’s judgment entry 

must be journalized. Crim.R. 32(C); State v. Roscoe, 8th Dist. Cuyahoga No. 102191, 

2015-Ohio-3876, ¶ 7. “To journalize a decision means that certain formal 
requirements have been met, i.e., the decision is reduced to writing, a judge signs it, 

and it is filed with the clerk so that it may become a part of the permanent record of 

the court.” State v. McDowell, 150 Ohio App.3d 413, 2002-Ohio-6712, 781 N.E.2d 

1057, ¶ 7 (7th Dist.). “Handwritten notations by a municipal judge on a case jacket 

can rise to the dignity and finality of a ‘judgment’ when there is also evidence that it 

has been filed with the clerk of the trial court.” Id., citing State ex rel. White at 337. 

“A time-stamped date offers some evidence of its filing.” Id. 

Here, following the January 10, 2022 status hearing, the court issued 

a written and signed judgment entry dated January 13, 2022, ordering Kushlak, in 

part, to permit Inspectors Shockley and Mancuso and Chief Gest to enter the 

property and inspect the property’s exterior and house and garage interiors on 

January 13, 2022, at 9:00 a.m. This judgment entry was not journalized, however, 

until a week later, as indicated by its time-stamped date of January 20, 2022. Any 

modification of Kushlak’s community control that was required to be performed 

prior to the judgment entry’s January 20, 2022 journalization is invalid. 

Therefore, the trial court abused its discretion by ordering Kushlak to 

comply with modified community control conditions that preceded the effective 

date of its judgment.

7

Kushlak’s third assignment of error is sustained. 

7 We note that modifying or revoking a community control sanction without first 

determining what caused the offender’s failure to comply has also been found to be an 

abuse of the trial court’s discretion. State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-

Ohio-6524, ¶ 6.
B. Constitutional Questions 

In his remaining six assignments of error, Kushlak argues that the 

municipal court violated his constitutional rights in the January 20, 2022 judgment 

entry, including his right to due process and protection against double jeopardy. 

Specifically, Kushlak argues that the court could not modify his community control 

conditions without providing him notice of a violation, a written statement 

indicating the nature of the violation, and a preliminary hearing on the issue 

(assignments of error Nos. 4, 5, 6, and 8). Kushlak also argues that the court violated 

his right to due process by basing its decision, in part, on the testimony of Chief Gest, 

who testified at the January 10, 2022 status hearing only to what she had learned 

from Deputy Chief English, who was unavailable to testify (assignment of error 

No. 7). Finally, Kushlak argues that the court violated his protection against double 

jeopardy in the January 20, 2022 judgment entry by imposing more restrictive 

community control conditions without first finding that he had violated the 

conditions imposed by the court in the original sentence (assignment of error

No. 9). 

“‘It is well settled that [appellate courts] will not reach constitutional 

issues unless absolutely necessary.’” Cleveland v. Serrano, 2021-Ohio-1586, 172 

N.E.3d 1112, ¶ 40 (8th Dist.), quoting State v. Talty, 103 Ohio St.3d 177, 2004-Ohio4888, 814 N.E.2d 1201, ¶ 9. Accordingly, courts “should avoid reaching a 

constitutional question when ‘other issues are apparent in the record which will 

dispose of the case on its merits.’” In re D.S., 152 Ohio St.3d 109, 2017-Ohio-8289, 
93 N.E.3d 937, ¶ 7, quoting Greenhills Home Owners Corp. v. Greenhills, 5 Ohio 

St.2d 207, 212, 215 N.E.2d 403 (1966). 

Because we have determined that the municipal court’s January 20,

2022 judgment entry is invalid for failure to timely journalize it, we need not reach 

Kushlak’s due process and double jeopardy arguments. Therefore, Kushlak’s fourth, 

fifth, sixth, seventh, eighth, and ninth assignments of error are moot. 

App.R. 12(A)(1)(c).

III. Conclusion 

On July 22, 2021, the municipal court amended its July 8, 2021 

sentencing entry to reflect imposition of a concurrent three-year term of community 

control on Counts 2, 3, 4, and 5 of the complaint, consistent with C.C.O. 201.99, the 

ordinance under which Kushlak was sentenced. On November 8, 2021, the 

municipal court issued a nunc pro tunc order correcting the July 22, 2021 sentencing 

entry to reflect the dates of Kushlak’s offenses from August 26-30, 2019, to October 

26-30, 2019. However, the nunc pro tunc entry misidentifies the July 8, 2021 entry, 

not the July 22, 2021 entry, as the entry needing correction. 

Further, in its January 20, 2022 judgment entry, the municipal court 

ordered Kushlak to comply with several modified conditions of his community 

control without journalizing the judgment entry. Prior to journalization, the 

January 20, 2022 judgment entry is invalid. 

Therefore, the January 20, 2022 judgment entry is vacated, and the 

matter is remanded to the municipal court to hold a hearing to determine the status 
of, not Kushlak’s compliance with, the conditions of his community control sanction, 

and to correct nunc pro tunc the November 8, 2021 nunc pro tunc order to reflect 

the change to the July 22, 2021 amended sentencing entry, not the July 8, 2021 

original sentencing entry. 

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 be sent to said 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.

_________________________

MARY J. BOYLE, JUDGE

MARY EILEEN KILBANE, P.J., and

LISA B. FORBES, J., CONCUR