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