[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
Cleveland v. Zingale
Combined Opinion