Cleveland v. Zingale

2017 Ohio 8232

• Court: Ohio Court of Appeals
• Decided: October 19, 2017
• Docket: 105763
• Status: Published

Opinion

[Cite as Cleveland v. Zingale, 2017-Ohio-8232.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 105763

CITY OF CLEVELAND PLAINTIFF-APPELLEE

vs.

LINDA L. ZINGALE DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED AND REMANDED

Criminal Appeal from the Cleveland Municipal Court Case No. 2016 TRC 025061

BEFORE: Blackmon, J., McCormack, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: October 19, 2017 -i-

ATTORNEYS FOR APPELLANT

Timothy Young Ohio Public Defender

By: Allen Vender Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry Director of Law City of Cleveland

By: Kimberly G. Barnett-Mills Katherine Maurath Assistant City Prosecutors The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

PATRICIA ANN BLACKMON, J.: {¶1} Defendant-appellant Linda L. Zingale (“Zingale”) appeals from the fine

imposed for her conviction for operating a vehicle while under the influence of alcohol or

drugs (“OVI”) and running a red light. Zingale assigns the following error for our

review:

The trial court erred when it imposed a greater fine in the sentencing entry than it imposed in open court[.]

{¶2} The city, pursuant to Loc.App.R. 16(B), has conceded the assigned error.

Our review of the record confirms that the fine imposed in the sentencing entry exceeds

the amount announced in open court, so we affirm the conviction, but we remand the case

for the limited purpose of issuing a nunc pro tunc sentencing entry to conform to the

sentence announced during the sentencing hearing.

{¶3} On July 15, 2016, Zingale was cited for running a red light and OVI in

Cleveland. Following a bench trial, she was found guilty of both offenses. During the

April 12, 2017 sentencing hearing, the trial court announced the following penalty for the

OVI charge:

Imposing the minimum mandatory $375 fine. Costs are waived. Two years

active probation, to include a substance abuse assessment. Follow any

recommendations that come from that. Also you will do substance abuse

testing. You will do the Driver’s Intervention Program. * * * You’re to

comply with all of those. License is suspended from the date of the offense,

7-15-16 for three years, until 7-14-19.

No fine was imposed for running a red light. {¶4} Thereafter, in its journalized sentencing order, the trial court imposed a

$1,075 fine for OVI, with $700 suspended, and a $50 fine for running a red light.

Crim.R. 43

{¶5} Under Crim.R. 43, a criminal defendant has the right to be present at every

stage of the criminal proceedings including the imposition of sentence and any

modification of a sentence. Crim.R. 43(A)(1). Therefore, “[a] trial court cannot impose

a sentence in the sentencing entry that differs from that it imposed at the sentencing

hearing.” State v. Vaughn, 8th Dist. Cuyahoga No. 103330, 2016-Ohio-3320, ¶ 18. See

also State v. Alvelo, 8th Dist. Cuyahoga No. 104422, 2017-Ohio-742, ¶ 35.

{¶6} The city of Cleveland concedes that the journalized sentence sets forth fines

for both offenses that are greater than the fines announced during the sentencing hearing.

Our independent review of the record also confirms that the fine imposed in Zingale’s

presence was $350 for OVI, and no fine for running a red light. Accordingly, we affirm

the convictions, but we remand the sentencing order for nunc pro tunc correction to

conform to the sentence announced in open court.

{¶7} Convictions affirmed. Case remanded for further proceedings consistent

with this opinion.

It is ordered that appellant recover of appellee its costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to 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.

PATRICIA ANN BLACKMON, JUDGE

TIM McCORMACK, P.J., and SEAN C. GALLAGHER, J., CONCUR