[Cite as Univ. Hts. v. Univ. Realty USA, L.L.C., 2022-Ohio-3034.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CITY OF UNIVERSITY HEIGHTS, :

Plaintiff-Appellee, :

No. 110728

v. :

UNIVERSITY REALTY USA, LLC, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: September 1, 2022

Civil Appeal from the Shaker Heights Municipal Court

Case No. 19CRB01016

Appearances:

Nicola, Gudbranson & Cooper, LLC, and Michael E. 

Cicero, for appellee. 

Friedman & Nemecek, L.L.C., Eric C. Nemecek, and 

Mary K. Walsh, for appellant. 

ANITA LASTER MAYS, P.J.:

Defendant-appellant, University Realty USA, LLC (“University 

Realty”), appeals the trial court’s imposition of fines and asks this court to vacate the 
sentence and remand the matter to the trial court for a new sentencing hearing. We 

affirm the trial court’s decision.

I. Facts and Procedural History

University Realty was operating a synagogue out of a single-family 

residence in the city of University Heights. On September 6, 2019, plaintiff-appellee 

city of University Heights (the “city”) filed five violations against University Realty, 

alleging that University Realty violated several University Heights Codified 

Ordinances (“UHCO”). The counts included two counts in violation of UHCO 

1280.11, Home Occupations Regulated; one count in violation of UHCO 1420.03, 

Review of Plans; one count in violation of UHCO 1420.02, Payment of Filing Fee 

required; and UHCO 1274.04(a), Parking Facilities. 

On May 12, 2021, University Realty pleaded no contest to each of the 

counts, and the trial court found University Realty guilty of each violation and 

scheduled a sentencing hearing for June 23, 2021. On May 28, 2021, the city 

amended the violations to one count in violation of UHCO 1420.02, Payment of 

Filing Fee Required; one count in violation of UHCO 1274.04(a), Parking Facilities; 

and one count in violation of UHCO 1250.02, Permitted Uses. Each violation was 

committed for 187 days, totaling 561 total counts.

On June 23, 2021, a hearing was held and the city was permitted to 

amend the violations postconviction. On July 8, 2021, a sentencing hearing was 

held, and the court’s docket reflects that University Realty was found guilty on all 
three counts of the amended complaint. University Realty requested that the court 

consider a fine that was a fraction of the statutory maximum amount and suggested 

a fine of $25,000. After considering the evidence and counsel’s arguments, the trial 

court imposed the following sentence on the violation of UHCO 1420.02 count: the 

court fined University Realty $1,000 a day from February 1, 2019, to February 20, 

2019, and placed University Realty on four years of probation. The daily fine and 

probation were suspended from February 21, 2019, through August 7, 2019. On the 

violation of UHCO 1250.02, the trial court fined University Realty $5,000 a day 

from February 1, 2019, through February 6, 2019, and placed them on four years of 

probation. The daily fine and probation were suspended from February 7, 2019,

through August 7, 2019. On the violation of UHCO 1274.04(a), the trial court fined 

University Realty $2,500 a day from February 1, 2019, through February 6, 2019, 

and placed them on four years of probation. The $2,500 daily fine and the four years 

of probation were suspended from March 10, 2019, through August 7, 2019.

University Realty was fined $1,590,000 in total. However, fines of 

$1,525,000 were suspended. The total amount of fines assessed to University Realty 

was $65,000,

1 $40,000 more than University Realty requested. Additionally, costs 

of $66,730 were assessed to University Realty. University Realty filed this appeal, 

assigning two errors for our review:

1 The city’s brief incorrectly states that the total costs assessed to University Realty 

was $50,000. However, the journal entry states that the costs assessed were $65,000.
I. The sentencing court committed an abuse of discretion by 

imposing almost $1.6 million in fines for misdemeanor 

convictions without considering, and in contravention of, the 

sentencing factors set forth in R.C. 2929.22; and

II. The sentence is contrary to law because the trial court imposed 

fines that exceeded the maximum amounts permitted under 

local ordinance and the Ohio Revised Code.

II. Sentencing Factors

A. Standard of Review

“A trial court enjoys broad discretion in imposing sentence on a 

misdemeanor offense.” Lakewood v. Dobra, 8th Dist. Cuyahoga No. 106001, 2018-

Ohio-960, ¶ 8, citing Cleveland v. Meehan, 8th Dist. Cuyahoga No. 100202, 2014-

Ohio-2265, ¶ 7. “The sentence imposed by the trial court will not be disturbed on 

appeal absent an abuse of this discretion.” Id. 

An abuse of discretion connotes more than an error in law or 

judgment; rather it implies that the trial court’s attitude is unreasonable, arbitrary 

or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 

1140 (1983). More recent decisions have held that “[a] court abuses its discretion 

when a legal rule entrusts a decision to a judge’s discretion and the judge’s exercise 

of that discretion is outside the legally permissible range of choices.” State v. 

Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 19. An abuse of 

discretion may also be found “where a trial court ‘applies the wrong legal standard, 

misapplies the correct legal standard, or relies on clearly erroneous findings of fact.’” 
Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, 892 N.E.2d 454, ¶ 15

(8th Dist.).

“In fashioning a misdemeanor sentence, a trial court must consider 

the overriding purposes of misdemeanor sentencing ‘to protect the public from 

future crime by the offender and others and to punish the offender.’” Dobra at ¶ 9,

quoting R.C. 2929.21. “The trial court must also consider all factors enumerated in 

R.C. 2929.22(B).” Id.

“This court has held that the trial court’s failure to consider these 

factors constitutes an abuse of discretion.” Id. at ¶ 10, citing Maple Hts. v. Sweeney, 

8th Dist. Cuyahoga No. 85415, 2005-Ohio-2820, ¶ 7. “However, the trial court is 

not required to make factual findings on the record related to these factors.” Id.,

citing id. at ¶ 8. “Indeed, ‘when a misdemeanor sentence is within the statutory 

limits, the trial court is presumed to have considered the required factors [under 

R.C. 2929.22], absent a showing to the contrary by the defendant.’” Id., quoting id.

B. Law and Analysis

In University Realty’s first assignment of error, they argue that the 

trial court abused its discretion by imposing a fine of almost $1.6 million without 

considering the sentencing factors set forth in R.C. 2929.22. R.C. 2929.22(B) states:

(1) In determining the appropriate sentence for a misdemeanor, 

the court shall consider all of the following factors:

(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and 

the offense or offenses indicate that the offender has a 

history of persistent criminal activity and that the 

offender’s character and condition reveal a substantial 

risk that the offender will commit another offense;

(c) Whether the circumstances regarding the offender and 

the offense or offenses indicate that the offender’s 

history, character, and condition reveal a substantial risk 

that the offender will be a danger to others and that the 

offender’s conduct has been characterized by a pattern of 

repetitive, compulsive, or aggressive behavior with 

heedless indifference to the consequences;

(d) Whether the victim’s youth, age, disability, or other 

factor made the victim particularly vulnerable to the 

offense or made the impact of the offense more serious;

(e) Whether the offender is likely to commit future crimes in 

general, in addition to the circumstances described in 

divisions (B)(1)(b) and (c) of this section;

(f) Whether the offender has an emotional, mental, or 

physical condition that is traceable to the offender’s 

service in the armed forces of the United States and that 

was a contributing factor in the offender’s commission of 

the offense or offenses; and

(g) The offender’s military service record.

(2) In determining the appropriate sentence for a misdemeanor, in 

addition to complying with division (B)(1) of this section, the 

court may consider any other factors that are relevant to 

achieving the purposes and principles of sentencing set forth in 

section 2929.21 of the Revised Code.

Although the trial court assessed $1,590,000 in fines, it suspended all 

but $65,000. In its journal entry, the trial court did not make factual findings on 

the record or incorporate its findings in its journal entry that it considered the 
required factors under R.C. 2929.22. However, the trial court is not required to 

make the factual findings on the record if the sentence is within the statutory limits.

See State v. Thompson, 8th Dist. Cuyahoga No. 107524, 2019-Ohio-1777, ¶ 26. 

University Realty has not demonstrated that the trial court did not consider the 

required factors under R.C. 2929.22 before sentencing. The fact that the trial court 

suspended $1,540,000 in fines and also suspended the probationary period is 

reflective of the trial court’s consideration of the required factors. University Realty 

requested that the trial court impose fines that were a fraction of the statutory 

permissible amount. The record reveals that the trial court obliged.

University Realty also argued that the trial court did not consider 

their ability to pay the fine under R.C. 2929.22(F). However, University Realty’s 

reliance on R.C. 2929.22(F) is misplaced because this portion of the statute has not 

existed since 2004. Additionally, University Realty requested that the trial court 

impose a $25,000 fine, which suggests that there is an ability to pay.

Therefore, University Realty’s first assignment of error is overruled.

III. Sentence Contrary to Law

A. Standard of Review

“Ordinarily, courts of appeal review misdemeanor sentences for an 

abuse of discretion.” Cleveland v. Jaber, 8th Dist. Cuyahoga No. 109648, 2021-

Ohio-1486, ¶ 10, citing S. Euclid v. Bickerstaff, 8th Dist. Cuyahoga No. 107526, 

2019-Ohio-2223, ¶ 11. “However, when a misdemeanor sentence for financial 

sanctions is imposed above the statutory maximum, those sentences are deemed to 
be contrary to law.” Id., citing Cleveland v. Aeon Fin., L.L.C., 8th Dist. Cuyahoga 

No[s]. 103235, [103236, 103532, and 103533], 2016-Ohio-4559, ¶ 31.

B. Law and Analysis

In University Realty’s second assignment of error, they contend that 

the sentence imposed by the trial court is contrary to law because the trial court 

imposed fines that exceeded the maximum amounts permitted under local 

ordinances and the Ohio Revised Code. At sentencing, the trial court assessed 

$1,590,000 in fines, and it suspended all but $50,000 in total. 

On the violation of the UHCO 1420.02 count, the court fined 

University Realty $1,000 a day from February 1, 2019, to February 20, 2019, and 

placed University Realty on four years of probation. The daily fine and probation 

were suspended from February 21, 2019, through August 7, 2019. On the violation 

of UHCO 1250.02, the trial court fined University Realty $5,000 a day for 

February 1, 2019, through February 6, 2019, and placed them on four years of 

probation. The daily fine and probation were suspended from February 7, 2019,

through August 7, 2019. On the violation of UHCO 1274.04(a), the trial court fined 

University Realty $2,500 a day from February 1, 2019, through February 6, 2019, 

and placed them on fours of probation. The $2,500 daily fine and the four years of 

probation were suspended from March 10, 2019, through August 7, 2019. 

University Realty contends that the trial court should have fined them 

$1,000 a day for the UHCO 1250.02 and 1274.04(a) violations instead of $2,500 a 

day, in accordance with UHCO 698.02(f)(B)(1)(a). However, at sentencing, the trial 
court determined that University Realty is a corporate entity for the purposes of 

sentencing under UHCO 606.09(a)(2), (3), and (4) and R.C. 2901.23, which applies 

because University Realty is an organization under the definition of the statute; 

they committed building and zoning code offenses; and these offenses are strict 

liability offenses. See N. Olmsted v. Rock, 8th Dist. Cuyahoga No. 105566, 2018-

Ohio-1084, ¶ 20. UHCO 606.09 and R.C. 2901.23 state:

(a) An organization may be convicted of an offense under any of the 

following circumstances:

(1) The offense is a minor misdemeanor committed by an 

officer, agent, or employee of the organization acting in 

its behalf and within the scope of the officer’s, agent’s, or 

employee’s office or employment, except that if the 

section defining the offense designates the officers, 

agents, or employees for whose conduct the organization 

is accountable or the circumstances under which it is 

accountable, those provisions shall apply.

(2) A purpose to impose organizational liability plainly 

appears in the section defining the offense, and the 

offense is committed by an officer, agent, or employee of 

the organization acting in its behalf and within the scope 

of the officer’s, agent’s, or employee’s office or 

employment, except that if the section defining the 

offense designates the officers, agents, or employees for 

whose conduct the organization is accountable or the 

circumstances under which it is accountable, those 

provisions shall apply.

(3) The offense consists of an omission to discharge a specific 

duty imposed by law on the organization.

(4) If, acting with the kind of culpability otherwise required 

for the commission of the offense, its commission was 

authorized, requested, commanded, tolerated, or 

performed by the board of directors, trustees, partners, 

or by a high managerial officer, agent, or employee acting 
in behalf of the organization and within the scope of such 

a board’s or person’s office or employment.

(b) If strict liability is imposed for the commission of an offense, a 

purpose to impose organizational liability shall be presumed, 

unless the contrary plainly appears.

(c) In a prosecution of an organization for an offense other than 

one for which strict liability is imposed, it is a defense that the 

high managerial officer, agent, or employee having supervisory 

responsibility over the subject matter of the offense exercised 

due diligence to prevent its commission. This defense is not 

available if it plainly appears inconsistent with the purpose of 

the section defining the offense.

(d) As used in this section, “organization” means a corporation for 

profit or not for profit, partnership, limited partnership, joint 

venture, unincorporated nonprofit association, estate, trust, or 

other commercial or legal entity. “Organization” does not 

include an entity organized as or by a governmental agency for 

the execution of a governmental program.

“R.C. 2929.28 governs the fines a court may impose for misdemeanor 

offenses, and R.C. 2929.31 increases the amount of the fine if the offender is an 

organization.” Aeon Fin., L.L.C., 8th Dist. Cuyahoga Nos. 103235, 103236, 103532, 

and 103533, 2016-Ohio-4559, at ¶ 12. Because University Realty is an organization 

under UHCO 606.09, UHCO 698.04(a)(1) applies, which states, in part:

(a) Regardless of the other penalties provided in Section 698.02, 

an organization convicted of an offense pursuant to 

Section 606.09 shall be fined by the court as follows:

(1) For a misdemeanor of the first degree, not more than five 

thousand dollars ($5,000.00).

University Realty was found guilty of 561 first-degree misdemeanor 

counts. The sentencing fines applied to each count. Thus, the trial court, in 
accordance with the statute, could have fined University Realty $2,805,000 instead 

of $50,000. Additionally, if the trial court accepted University Realty’s expectation 

of a fine of $1000 for each count, they would be responsible for $561,000, more than 

the $50,000 fined after the suspension of fines. We find that this sentence is within 

the statutory range. See Aeon Fin., L.L.C. at ¶ 13.

Therefore, University Realty’s second assignment of error is 

overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant 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 

Shaker 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.

________________________________

ANITA LASTER MAYS, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., CONCURS;

EILEEN T. GALLAGHER, J., CONCURS IN JUDGMENT ONLY