[Cite as Cleveland v. Go Invest Wisely, L.L.C., 2011-Ohio-3461.]

 

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

Nos. 95178, 95179, 95180, 95181, 95182, and 95447 

CITY OF CLEVELAND 

PLAINTIFF-APPELLEE

vs. 

GO INVEST WISELY, LLC

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 
Criminal Appeals from the 

Cleveland Municipal Court 

Case Nos. 2009 CRB 36813, 2009 CRB 41034, 2009 CRB 041015, 

2009 CRB 041014, 2009 CRB 41011, and 2009 CRB 033908 

BEFORE: Stewart, J., Blackmon, P.J., and Celebrezze, J. 

RELEASED AND JOURNALIZED: July 14, 2011 

 

ATTORNEY FOR APPELLANT

James J. Costello 

Powers Friedman Linn, PLL 

23240 Chagrin Boulevard, Suite 180 

Cleveland, OH 44122 

ATTORNEYS FOR APPELLEE

Robert J. Triozzi 

Director of Law 

BY: Katherine S. Zvomuya 

Assistant Director of Law 

City of Cleveland 

601 Lakeside Avenue, Room 106 

Cleveland, OH 44117-1077 

MELODY J. STEWART, J.: 

{¶ 1} Defendant-appellant, Go Invest Wisely, LLC, appeals from 

misdemeanor convictions entered on no contest pleas in six consolidated 
housing court cases relating to its failure to remedy code violations on 

properties that it owns in the city of Cleveland. The court found that Go 

Invest Wisely’s violations were continuing, so it applied certain 

organizational enhancements to punish each day in which the code violations 

went unremedied. This resulted in fines on the six individual properties 

ranging from $14,000 to $25,000, for a total of $139,000. Go Invest Wisely 

challenges these fines, claiming, among other things, that the city could not 

impose fines for continuing violations when the citations did not charge 

continuing violations. 

 I 

{¶ 2} Go Invest Wisely purchased homes in distressed residential 

areas, made repairs to the houses, and entered into land contracts with 

tenants, all with the hope of showing a profit. The business model failed. 

The 2008 mortgage industry collapse resulted in thousands of home 

foreclosures in the city, leading to vacant houses and depressed housing 

prices. With no hope of turning a profit on the houses it owned, it appears 

that Go Invest Wisely simply abandoned its houses. These houses continued 

to deteriorate to the point where some of them were demolished by the city as 

health and safety hazards. 

{¶ 3} All of the houses involved in these consolidated cases were cited 

for building code violations. The city charged Go Invest Wisely under several 
parts of its residential housing code relating to, among other things, sanitary 

facilities, connection of fixtures, heating facilities, electrical facilities, and 

general maintenance requirements. When these violations went 

unremedied, the city issued new citations for failure to comply with the 

earlier notice of violations. Go Invest Wisely ultimately submitted a written 

no contest plea in which it acknowledged that “[t]he ordinances it has been 

charged with violating are listed on the Complaints the City filed with the 

Court ***.” (Emphasis sic.) It further acknowledged that the maximum 

penalties for the alleged offenses were stated in various city ordinances and 

that it had reviewed and understood them. 

{¶ 4} The court accepted the no contest pleas and found Go Invest 

Wisely guilty on all counts. When sentencing, the court noted that 

organizational and continuing violation penalties were available under the 

city code. For example, in 2009 CRB 36813, the court found 23 separate 

continuing violations extending for 78 days, leading to a potential fine of 

$4,584,000. The court did not impose the maximum fine, however, and in 

the six cases imposed fines totaling $139,000. 

 II 

{¶ 5} Go Invest Wisely first complains that the court erred by fining it 

for continuing violations because the complaints did not specifically charge 

that the violations were, in fact, continuing. 
{¶ 6} All six of the complaints were written on a Cleveland Municipal 

Court Housing Division standardized form that contained the following 

language: 

{¶ 7} “[Y]ou did commit the following violation(s): 

{¶ 8} “(1) Failure to comply with the order of the Director of Building 

and Housing, a misdemeanor of the first degree, in violation of the following 

section(s): ___ Building 3103.25(e), ___ Housing 367.99(a), ___ Zoning 

327.99(a) as stated in the violation notice dated ___ and attached here to and 

made a part hereof ***.” 

{¶ 9} In each of the complaints, one or more of these blank spaces were 

checked. The citation was appended to the notice of violation of building and 

housing ordinances that contained a detailed recital of the nature of the 

violation and the date by which Go Invest Wisely had to comply. Go Invest 

Wisely maintains on appeal that the standardized form did not specifically 

mention that there were continuing noncompliance violations, so it could only 

be charged with a single count of noncompliance. 

{¶ 10} In Cleveland v. Whitmore, 8th Dist. No. 84405, 2005-Ohio-4393, 

we addressed and rejected a similar argument that a citation referring to 

continuing violations was not specific enough to give notice of what had been 

charged, finding that Whitmore’s failure to make this objection to the trial 

court constituted a waiver of the right to argue the matter on appeal. Id. at 
¶20. This holding is consistent with Crim.R. 12(C)(2), which states that any 

“defenses or objections based on defects in the indictment, information or 

complaint” must be raised before trial. 

{¶ 11} The record does not show that Go Invest Wisely raised any 

objection in the trial court to the form or substance of the citation, so it has 

waived the right to argue any defect on appeal. 

 III 

{¶ 12} Go Invest Wisely next argues that the separate continuing 

violations were allied offenses of similar import so the punishments for each 

individual offense should have merged for purposes of sentencing. 

{¶ 13} Allied offenses are those that, despite being different offenses, are 

“so allied in nature as to constitute, for all intents and purposes, the 

commission of a single offense.” State v. White, 8th Dist. No. 92972, 

2010-Ohio-2342, ¶20. As we earlier noted, the city’s ordinances make each 

day for which a violation is not remedied a separate offense. Separate 

offenses can be individually punished, so they are not allied offenses of 

similar import. See Akron v. Bilder (Apr. 15, 1992), 9th Dist. No. 14988. 

 IV 

{¶ 14} Finally, Go Invest Wisely argues that the collective sentences 

imposed were excessive, disproportionate, and contrary to law. It argues 

that the court failed to take into consideration the applicable statutory 
criteria for imposing misdemeanor sentences and further failed to consider 

whether Go Invest Wisely had the ability to pay the fines. 

{¶ 15} The guidelines for misdemeanor sentencing are substantially 

similar to those applied in felony sentencing. The court must be guided by 

the purposes of misdemeanor sentencing, which are “to protect the public 

from future crime by the offender and others and to punish the offender.” 

See R.C. 2929.21(A). When determining the appropriate sentence, the court 

must consider the factors listed in R.C. 2929.22(B), including the nature and 

circumstances of the offense or offenses and whether the circumstances 

indicate that the offender has a history of persistent criminal activity and 

poses a substantial risk of reoffending. See R.C. 2929.22(B)(1). The courts 

have broad discretion in misdemeanor sentencing. State v. Hughley, 8th 

Dist. Nos. 92588 and 93070, 2009-Ohio-5824, ¶7, citing Cleveland v. Jurco, 

8th Dist. No. 88702, 2007-Ohio-4305, ¶18. 

{¶ 16} Go Invest Wisely has been a defendant in a number of housing 

division cases. All of these cases are related in some form or another with Go 

Invest Wisely’s failure to keep the houses it owns in a habitable and safe 

condition. Some violations have been so extensive that they have resulted in 

the demolition of houses; in other cases, adjoining property owners have 

noticed increased drug activity in the vacant houses, causing them to live in 

fear. Go Invest Wisely appeared to have just walked away from its 
investment, leaving it to the city to deal with vacant and deteriorating 

housing that blighted neighborhoods. 

{¶ 17} Go Invest Wisely was a repeat offender that found it easier to 

abandon certain properties than comply with the law, thus indicating that it 

posed a substantial risk of reoffending. It is plain that the court intended to 

send a harsh message to Go Invest Wisely, yet the fines that the court 

imposed were well below the maximum allowed by law.1 For example, in 

2009 CRB 36813, the court noted that it could potentially impose a fine of 

$4,584,000 for 23 different violations that extended over 78 days, but only 

imposed a fine of $25,000. With the fines all falling well below the applicable 

statutory limits, we cannot say that the court abused its discretion by 

imposing sentence as it did. Finally, Go Invest Wisely argues that the court 

made no determination of its ability to pay the fines. R.C. 2929.18(A)(4) 

authorizes a trial court to impose financial sanctions, including a fine, upon 

an offender. Before doing so, the court must consider the offender’s present 

and future ability to pay the amount of the sanction or fine. R.C. 

2929.19(B)(6). There are no express factors that must be considered or 

 1

Go Invest Wisely complains in its third assignment of error that the court erred as matter of 

law by imposing sentences for first-degree misdemeanors on counts that were actually minor 

misdemeanors. After the completion of briefing, we remanded the case to the court to resolve 

certain finality issues associated with the sentences. On remand, the court sua sponte acknowledged 

that “certain charges in 2009 CRB 41011 and 2009 CRB 41014 were minor misdemeanor offenses 

rather than first-degree misdemeanors.” It amended the sentences for those counts to reflect that 
specific findings that must be made, State v. Martin, 140 Ohio App.3d 326, 

338, 2000-Ohio-1942, 747 N.E.2d 318, and the court “may hold a hearing if 

necessary to determine whether the offender is able to pay the sanction or is 

likely in the future to be able to pay it.” See R.C. 2929.18(E). If the court 

chooses not to have a hearing, we look to the totality of the record to see if the 

ability to pay requirement has been satisfied. See State v. Lewis, 8th Dist. 

No. 90413, 2008-Ohio-4101. 

{¶ 18} The issue of fines was apparently the subject of pretrial 

negotiations. The city’s assistant prosecuting attorney told the court that 

the city desired a total fine of $76,000 in accordance with what she had 

recommended at an earlier pretrial conference. Go Invest Wisely did not 

object to the fine recommended by the city, but told the court that it had only 

$100,000 “in the bank at this time[,]” had no income for the previous four 

months, and had debt “of somewhere around $1.8 million dollars.” Despite 

its claimed financial difficulties, Go Invest Wisely did not ask the court to 

waive all fines, but merely to consider mitigating the fines. The court did 

mitigate the fines, imposing only a fraction of what it could have imposed 

under the relevant ordinances. On the record before us, we find no 

compelling justification for finding that the court had to conduct a hearing on 

Go Invest Wisely’s ability to pay the fines ordered by the court. 

 

they were minor misdemeanors, so this argument is now moot. 
Judgment affirmed. 

It is ordered that appellee recover of appellant its 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.

 

 

MELODY J. STEWART, JUDGE 

PATRICIA ANN BLACKMON, P.J., CONCURS 

FRANK D. CELEBREZZE, JR., J., CONCURS 

WITH SEPARATE CONCURRING OPINION 

FRANK D. CELEBREZZE, JR., J., CONCURRING: 

{¶ 19} I concur with the majority opinion, but write separately to 

address an argument raised by Go Invest Wisely in its brief and at oral 

arguments. Addressing the third assignment of error, the majority correctly 

points out that Go Invest Wisely may be punished for each day as individual 

violations of the housing code and that these offenses are not allied offenses of 
similar import. However, Go Invest Wisely also argued that the individual 

code violations it was cited for should merge with the condemnation 

violations. 

{¶ 20} Go Invest Wisely was charged with and convicted of violating 

C.C.O. 369.06 (sanitary facilities), 369.07 (connection of fixtures), 369.09 

(connection of heating facilities), 369.12 (electrical facilities), 369.13 (general 

maintenance), 369.14 (foundations), 369.15 (maintenance of exterior walls 

and roof), 369.16 (maintenance of interior walls and roof), and 369.19 

(secondary appurtenant structures), along with violations of C.C.O. 369.21 

(condemnation). 

{¶ 21} The condemnation provision, C.C.O. 369.21(a), states that “[a]ny 

dwelling * * * building or structure determined by the Commissioner of 

Housing to have any of the following defects shall be condemned as unfit for 

human habitation: 

{¶ 22} “(1) One which is so damaged, decayed, dilapidated, unsanitary, 

unsafe or vermin-infected that it creates a hazard to the health, welfare or 

safety of the occupants or of the public; 

{¶ 23} “(2) One which lacks illumination, ventilation or sanitary 

facilities adequate to protect the health or welfare of the occupants or of the 

public; or 
{¶ 24} “(3) One which, because of its general condition or location is 

unsanitary or otherwise dangerous to the health, safety or welfare of the 

occupants or of the public.” 

{¶ 25} This ordinance is an exceptional provision limited to situations 

where code violations threaten the “health, welfare or safety of the occupants 

or public.” The other provisions under which appellant was cited do not have 

similar qualifying language. For example, C.C.O. 369.07 states: 

{¶ 26} “(a) All plumbing fixtures in a dwelling structure shall be 

supplied with running water from the Municipal water supply system. 

{¶ 27} “(b) Every dwelling unit shall have an adequate supply of running 

hot water properly connected to all plumbing fixtures requiring hot water. 

{¶ 28} “(c) All plumbing fixtures in a dwelling structure shall be so 

designed and installed as to prevent contamination of the water supply 

system.” 

{¶ 29} “[A] defendant can be convicted and sentenced on more than one 

offense if the evidence shows that the defendant’s conduct satisfies the 

elements of two or more disparate offenses.” State v. Williams, 124 Ohio 

St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶36 (Lanzinger, J., concurring in 

part and dissenting in part). See, also, State v. Johnson, 128 Ohio St.3d 153, 

2010-Ohio-6314, 942 N.E.2d 1061. 
{¶ 30} Here, Go Invest Wisely’s failure to maintain adequate hot water 

and plumbing connections does not lead to a violation of C.C.O. 367.21 — 

sanitary facilities that endanger the health and safety of the occupants or the 

public. The same is true for the other housing code violations. It is the 

abandonment aspect of appellant’s actions that leads to the condemnation 

charges. 

{¶ 31} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 

N.E.2d 1061, ¶67, Justice O’Connor’s concurring opinion set forth that 

“offenses are of ‘similar import’ when the underlying conduct involves similar 

criminal wrongs and similar resulting harm.” Here the various individual 

code violations represent harm caused to the present and future occupants, 

but the condemnation provision represents harm caused to the community in 

having a blighted home in the neighborhood. Therefore, the offenses are not 

allied, and Go Invest Wisely’s argument that the convictions for other code 

violations should merge with the condemnation convictions is not 

well-founded.