State v. Forte

2013 Ohio 4707

• Court: Ohio Court of Appeals
• Decided: October 24, 2013
• Docket: 99572
• Status: Published

Opinion

[Cite as State v. Forte, 2013-Ohio-4707.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99572

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

MARTIN FORTE DEFENDANT-APPELLANT

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-565618

BEFORE: Boyle, P.J., Jones, J., and Blackmon, J.

RELEASED AND JOURNALIZED: October 24, 2013 ATTORNEY FOR APPELLANT

Rick L. Ferrara 2077 East 4th Street Second Floor Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Daniel T. Van Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, Ohio 44113 MARY J. BOYLE, P.J.:

{¶1} Defendant-appellant, Martin Forte, appeals the trial court’s imposition of a

$10,000 fine as part of his sentence for a single count of drug possession. The state

concedes the error. We reverse and remand for the trial court to vacate the imposition of

the fine.

Imposition of Fine Outside Statutory Authority

{¶2} On January 22, 2013, Forte pleaded guilty to an amended indictment of one

count of drug possession, in violation of R.C. 2925.11(A), a fourth-degree felony. Prior

to accepting Forte’s plea, the trial court properly advised Forte of the possible penalties

that a fourth-degree felony carried, which included a fine of “up to $5,000.” After

accepting Forte’s guilty plea, the trial court proceeded directly to sentencing, where the

trial court sentenced Forte on both the underlying case and another case — Cuyahoga

C.P. No. CR-561476. In Case No. CR-561476, Forte had been convicted of drug

trafficking, in violation of R.C. 2925.03(A)(2), with a juvenile specification, a felony of

the first degree, and drug possession, in violation of R.C. 2925.11, a second-degree

felony.

{¶3} In the underlying case, the trial court imposed 16 months in prison on the

single count of drug possession, to run concurrent with the four-year sentence that the

trial court imposed in Case No. CR-561476. The trial court, however, subsequently

imposed a “mandatory fine” of $10,000 in its journal entry setting forth Forte’s sentence

on the single count of drug possession in this case. But under R.C. 2929.18(A), the maximum fine that may be imposed for a fourth-degree felony is $5,000. Thus, the trial

court’s imposition of this fine on the fourth-degree felony is contrary to law. See State

v. Litteral, 3d Dist. Marion Nos. 9-12-08 and 9-12-45, 2012-Ohio-5335, ¶ 33

(recognizing that if the trial court imposes a fine beyond the statutory maximum fine,

such a sentence is contrary to law). The state concedes that the imposition of this fine

was error and agrees that the fine should be vacated. We further note that, based on the

trial judge’s announcement of Forte’s sentence at the sentencing hearing, it is clear that

the trial court’s imposition of the fine in the sentencing journal entry was not intended.

{¶4} Accordingly, we sustain Forte’s sole assignment of error.

{¶5} Judgment reversed and case remanded for the trial court to vacate the

$10,000 fine imposed.

It is ordered that appellant recover of appellee 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 common

pleas 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, PRESIDING JUDGE

LARRY A. JONES, SR., J., and PATRICIA ANN BLACKMON, J., CONCUR