State v. Gaskins ( 2012 )


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  • [Cite as State v. Gaskins, 
    2012-Ohio-2699
    .]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    STATE OF OHIO,                                   )
    )
    PLAINTIFF-APPELLEE,                      )
    )
    V.                                               )         CASE NO. 11 MA 4
    )
    ROGER GASKINS,                                   )               OPINION
    )
    DEFENDANT-APPELLANT.                     )
    CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Mahoning County
    Area Court #5, Mahoning County, Ohio
    Case No. 10CRB371
    JUDGMENT:                                        Reversed
    Conviction vacated
    APPEARANCES:
    For Plaintiff-Appellee                           Attorney Mark R. Fortunato
    3296 Stones Throw Avenue
    Poland, Ohio 44514
    For Defendant-Appellant                          Roger Gaskins, Pro-se
    143 S. Elm Street
    Columbiana, Ohio 44408
    JUDGES:
    Hon. Gene Donofrio
    Hon. Joseph J. Vukovich
    Hon. Cheryl L. Waite
    Dated: June 12, 2012
    [Cite as State v. Gaskins, 
    2012-Ohio-2699
    .]
    DONOFRIO, J.
    {¶1}     Defendant-appellant, Roger Gaskins, appeals from a Mahoning County
    Area Court #5 judgment affirming his conviction for failing to comply with the City of
    Canfield Property Maintenance Code.
    {¶2}     Appellant owns rental property in the City of Canfield at 22 Hood Drive.
    On June 20, 2010, Joseph Warino, the City Manager, issued a citation stating that
    appellant violated the city’s property maintenance code ordinance “by allowing
    conditions of exterior property areas [to] deteriorate the appearance of the
    neighborhood.” Exactly when appellant received this notice is not entirely clear.
    {¶3}     The matter proceeded in the Mayor’s Court. The Mayor found appellant
    guilty of the alleged violation.
    {¶4}     Appellant appealed the Mayor’s decision to the trial court. There he
    argued that the city failed to provide him with notice of the alleged violation.
    {¶5}     The matter proceeded to a de novo trial. The court found that the city
    provided appellant with proper notice as to the existence of the alleged property
    maintenance code violation and that appellant’s wife provided appellant’s residential
    address to the city where further notice was sent. As such, the court found that the
    city was entitled to assess the lawn cutting costs against appellant’s Hood Drive
    property. It ordered that upon the city’s recoupment of the lawn cutting costs, the
    underlying minor misdemeanor citation would be dismissed.
    {¶6}     Appellant filed a timely notice of appeal on January 3, 2011.
    {¶7}     Appellant raises two assignments of error, the first of which states:
    THE TRIAL COURT VIOLATED APPELLANT’S RIGHT
    TO     DUE       PROCESS        UNDER   THE   U.S.   AND     OHIO
    CONSTITUTIONS BY FINDING THAT THE CITY OF CANFIELD
    HAD      ISSUED        THE    PROPER    NOTICE   REQUIRED         TO
    SUBJECT           THE        DEFENDANT-APPELLANT       TO       THE
    REQUIREMENTS OF THE CITY’S PROPERTY MAINTENANCE
    ORDINANCE.
    {¶8}     Canfield City Ordinance 1387.21, titled “NOTICE OF VIOLATION:
    -2-
    LEGAL SERVICE,” provides in pertinent part:
    (a) Whenever the City Manager or other designated official
    finds any dwelling structure or premises, or any part thereof, to
    be in violation of the provisions of this Code, the City Manager or
    other designated official shall give or cause to be given or mailed
    to the owner, agent or operator of such structure or premises a
    written notice stating the violation. Such notice shall order the
    owner, agent or operator within the stated reasonable time but
    not less than five days, to repair or improve the structure or
    premises concerned. Such delivery or mailing shall be deemed
    legal service of notice. Upon receipt of a written objection within
    the stated time period, the City Manager or other designated
    official may extend the time for compliance until such objection
    has been considered. In the event of non-compliance after five
    days, or any extension thereof granted by the City Manager, the
    City may pursue remedial action * * *.
    (b) If the owner or other person having charge of the land is a
    nonresident of the City whose address is known, the notice shall
    be sent to that address by certified mail. If the address of the
    owner or other person having charge of the land is unknown, it is
    sufficient to publish the notice once in a newspaper of general
    circulation in the County. (Emphasis added.)
    {¶9}   Appellant argues that because he does not reside within the Canfield
    city limits, the City Manager was required to serve him notice by certified mail. He
    states that his residence, while it does have a Canfield mailing address, is outside the
    city limits. He claims that he did not receive proper notice. Had he received proper
    notice, appellant states, he would have cut his grass immediately. Instead, he claims
    he was denied the opportunity to rectify the problem with the Hood Drive grass and
    -3-
    was instead subject to the instant case against him.
    {¶10} Appellant further argues that the City Manager’s notice that was sent to
    “Amanda Gaskins” at his Lisbon Street address was not sufficient. First, he points
    out that the notice must be sent to the property owner or to a person having charge
    of the property. He states that his wife, Amanda Frost, neither owns nor is in charge
    of the Hood Drive property.      Second, he notes that the notice was not sent by
    certified mail. And third, he points out that the City Manager testified the notice was
    sent to Amanda Gaskins on the same day that he sent the crew to mow the grass,
    thereby depriving appellant of the opportunity to remedy the situation.
    {¶11} Pursuant to the city’s ordinance, if the owner of the property at issue
    resides outside the city limits, the City Manager must give notice of a citation by
    either certified mail or publication. If the owner resides within the city limits, notice
    may be sent by regular mail.
    {¶12} As to the issue of service of the citation, City Manager Joseph Warino
    stated that he first sent a letter to 22 Hood Drive, but there was no response. (Tr. 8).
    Warino stated that he waited approximately one month and then dispatched a crew
    to cut the grass. (Tr. 8). That same day, Warino stated, appellant’s wife called and
    asked Warino to provide her with a copy of the notice to another address. (Tr. 8).
    Subsequently, Warino stated, he mailed a copy to the address provided by
    appellant’s wife, 10534 Lisbon Road. (Tr. 9).
    {¶13} Warino agreed with appellant that appellant was not a resident of the
    city at the Hood Drive address. (Tr. 11-12). He also testified that he did not publish a
    notice in any newspapers. (Tr. 12).
    {¶14} Appellant testified the notice that was sent to Lisbon Road was sent to
    “Amanda Gaskins” and it was not sent by certified mail. (Tr. 13). He stated that his
    wife’s name is “Amanda Frost” and she does not own or maintain the Hood Drive
    property. (Tr. 13). Appellant testified that the Lisbon Road address is a Canfield
    mailing address located in Green Township. (Tr. 13).
    {¶15} Given the above evidence, the city did not issue appellant proper notice
    -4-
    of the citation.   Appellant testified that while his mailing address is a Canfield
    address, it is actually located in Green Township. And Warino agreed that appellant
    was not a city resident at the Hood Drive address. Thus, the city should have given
    notice to appellant by certified mail or by publication.
    {¶16} Appellant apparently received notice at some point. Although he takes
    issue with the fact that notice was sent to his wife, who does not own the Hood Drive
    property, and the fact that the notice was sent by regular mail, he must have received
    it because he appeared in the Mayor’s Court to defend himself. However, this notice
    was too late. Warino testified that he sent the notice to Lisbon Road on the same
    day he dispatched crews to cut the Hood Drive grass. Thus, appellant was denied
    the five-day opportunity to remedy the problem himself or to object to the citation.
    {¶17} Moreover, the city seems to admit that it did not provide notice in
    accordance with the ordinance. In its brief, it states that the notice “was sufficient,
    hypertechnicalities aside” and “any technical error by the City” cannot be considered
    fundamental. (Appellee’s Brief p. 9).
    {¶18} The notice ordinance sets out how notice is to be given. The city was
    required to technically follow its own ordinance. It failed to do so.
    {¶19} Accordingly, appellant’s first assignment of error has merit.
    {¶20} Appellant’s second assignment of error states:
    THE TRIAL COURT ERRED BY MAKING A FINDING OF
    GUILTY THAT WAS MANIFESTLY AGAINST THE WEIGHT OF
    THE EVIDENCE.
    {¶21} Due to the merit of appellant’s first assignment of error, his second
    assignment of error is now moot.
    {¶22} For the reasons stated above, the trial court’s judgment is hereby
    -5-
    reversed and appellant’s conviction is vacated.
    Vukovich, J., concurs.
    Waite, P.J., concurs.
    

Document Info

Docket Number: 11 MA 4

Judges: Donofrio

Filed Date: 6/12/2012

Precedential Status: Precedential

Modified Date: 3/3/2016