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City of Cleveland v. Fano

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Apr 12, 2018
2018 Ohio 1407 (Ohio Ct. App. 2018)

Opinion

No. 106135

04-12-2018

CITY OF CLEVELAND PLAINTIFF-APPELLEE v. ILLEEN FANO DEFENDANT-APPELLANT

ATTORNEY FOR APPELLANT James C. Lynch Lynch & Lynch Co. L.P.A. P.O. Box 33189 North Royalton, Ohio 44133 ATTORNEYS FOR APPELLEE Barbara A. Langhenry City of Cleveland Director of Law BY: Patricia McGinty Aston Assistant Director of Law 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44114


JOURNAL ENTRY AND OPINION JUDGMENT: DISMISSED Criminal Appeal from the Cleveland Municipal Court
Case No. 2017 CRB 005266 BEFORE: E.A. Gallagher, A.J., Boyle, J., and Keough, J. ATTORNEY FOR APPELLANT James C. Lynch
Lynch & Lynch Co. L.P.A.
P.O. Box 33189
North Royalton, Ohio 44133

ATTORNEYS FOR APPELLEE

Barbara A. Langhenry
City of Cleveland Director of Law
BY: Patricia McGinty Aston
Assistant Director of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114 EILEEN A. GALLAGHER, A.J.:

{¶1} Defendant-appellant Illeen Fano appeals her convictions in Cleveland Municipal Court for several violations of building and housing codes. We dismiss this appeal due to a lack of a final appealable order.

{¶2} On March 15, 2017, a complaint was filed against Fano alleging that between the dates of April 7, 2016 and February 22, 2017, Fano failed to comply with a notice to repair, rehabilitate or demolish a property under her control or ownership in violation of Cleveland Codified Ordinances 3103.25(e). Pursuant to C.C.O. 3103.99, each day during which noncompliance continues constitutes a separate offense and each offense is a misdemeanor of the first degree. In this case, the city alleged that Fano was out of compliance for 322 days. On June 6, 2017, Fano entered a no contest plea to the charges. Without individually addressing any of the 322 offenses the trial court imposed a blanket sentence of three years of active community control sanctions, 300 hours of community work service and a $30,000 fine. The court further ordered Fano to place $30,000 in escrow for the potential costs to the city for demolishing any of Fano's properties that remained out of compliance.

{¶3} When it appears there is a jurisdictional defect in the appeal, the court must sua sponte determine its own jurisdiction before proceeding. Cleveland v. Lucas, 8th Dist. Cuyahoga No. 105521, 2018-Ohio-167, ¶ 11, citing Ohio Bd. of Motor Vehicle Repair v. Tintmasters Internatl., L.L.C., 10th Dist. Franklin Nos. 16AP-749, 16AP-864, and 16AP-865, 2017-Ohio-8002, ¶ 6. In Lucas, this court dismissed an appeal from the Cleveland Municipal Court due to a lack of a final appealable order under circumstances virtually identical to those presented here. Id. at ¶ 13.

{¶4} Under our holding in Lucas, the trial court's imposition of a blanket sentence for Fano's multiple violations of C.C.O. 3103.25(e) without imposing a specific sentence on each count violates State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, and State v. Dumas, 8th Dist. Cuyahoga No. 95760, 2011-Ohio-2926. Because individual sentences were not imposed at the sentencing hearing, a nunc pro tunc entry cannot remedy this omission. State v. Nave, 8th Dist. Cuyahoga Nos. 105286 and 105288, 2018-Ohio-485, ¶ 2. We find there is no final appealable order because the trial court's entry was not a final judgment of conviction because it lacks a sentence for each count and, therefore, we dismiss for want of jurisdiction.

{¶5} Accordingly, the appeal is dismissed.

It is ordered that appellee recover of 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 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. /s/_________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE MARY J. BOYLE, J., and
KATHLEEN ANN KEOUGH, J., CONCUR


Summaries of

City of Cleveland v. Fano

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
Apr 12, 2018
2018 Ohio 1407 (Ohio Ct. App. 2018)
Case details for

City of Cleveland v. Fano

Case Details

Full title:CITY OF CLEVELAND PLAINTIFF-APPELLEE v. ILLEEN FANO DEFENDANT-APPELLANT

Court:Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Date published: Apr 12, 2018

Citations

2018 Ohio 1407 (Ohio Ct. App. 2018)