Cleveland v. Shevchenko , 2018 Ohio 4323 ( 2018 )


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  • [Cite as Cleveland v. Shevchenko, 
    2018-Ohio-4323
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 106718
    CITY OF CLEVELAND
    PLAINTIFF-APPELLEE
    vs.
    VITA SHEVCHENKO
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cleveland Municipal Court
    Case No. 2017 TRD 027752
    BEFORE: S. Gallagher, J., McCormack, P.J., and Blackmon, J.
    RELEASED AND JOURNALIZED: October 25, 2018
    ATTORNEY FOR APPELLANT
    Paul A. Mancino, Jr.
    Mancino, Mancino & Mancino
    75 Public Square Building, Suite 1016
    Cleveland Ohio 44113-2098
    ATTORNEYS FOR APPELLEE
    Barbara A. Langhenry
    City of Cleveland
    Director of Law
    By: Katherine L. Keefer
    Assistant City Prosecutor
    1200 Ontario Street, 8th Floor
    Cleveland, Ohio 44113
    SEAN C. GALLAGHER, J.:
    {¶1} Vita Shevchenko parked an unregistered vehicle on a vacant lot and was charged
    with four violations of the Cleveland Codified Ordinances — displaying an expired vehicle
    registration, failure to transfer the vehicle registration within 30 days of acquiring title, moving
    an unsafe vehicle, and parking on a vacant lot. Shevchenko was found guilty of the minor
    misdemeanors, and the court imposed $25 fines on all four counts, one sixth of the maximum
    penalty for each. There is no dispute that Shevchenko failed to register her vehicle according to
    the law and that she illegally parked her vehicle on a vacant lot. The only assigned errors in this
    appeal are procedural challenges to the manner in which the proceedings were initiated.
    {¶2} On the day of the infractions, Shevchenko was issued two uniform traffic tickets,
    used to enforce moving and nonmoving traffic violations of the Cleveland Codified Ordinances
    (“C.C.O.”). Shevchenko claims that the use of a uniform traffic ticket was not the appropriate
    mechanism to initiate the criminal action for violating the local ordinance prohibiting the parking
    of vehicles on vacant lots. According to her, the city was required to initiate the proceedings by
    filing a complaint under Crim.R. 3. In the alternative, Shevchenko claims that the traffic tickets
    were defective because the ticketing officer inadvertently indicated that Shevchenko was
    operating the vehicle at the time of the offense, instead of indicating that the vehicle was parked,
    which it undisputedly was.   We find no merit to this appeal.
    {¶3} Traf.R. 3(C) provides that the uniform traffic ticket must be used in all moving
    violation cases, but its use for parking and equipment violations is optional in each local
    jurisdiction, and under division (A) of that rule, the uniform traffic ticket shall constitute the
    complaint and summons in any ensuing action.      We must assume for the sake of this appeal that
    the city opted to use the uniform traffic ticket for equipment violations and that the registration
    and safety violations issued in this case are considered “equipment” or “parking” violations, as
    partially demonstrated by the fact that the officers used the process in this case. No one is
    disputing that overall assumption or has provided an argument otherwise, although the city
    claims that the assumption is true. App.R. 16(A)(7).
    {¶4} In addition to Traf.R. 3(C), under C.C.O. 451.241(e), any violation of the criminal
    prohibition against parking vehicles on a vacant lot that is a minor misdemeanor, such as the
    violation in this case, may be enforced “by the issuance of a citation in compliance with Rule 4.1
    of the Ohio Rules of Criminal Procedure.” Crim.R. 4.1(C) provides that in minor misdemeanor
    cases, law enforcement officers may issue a citation that contains the name and address of the
    defendant, describes the offense charged, gives the numerical designation of the applicable
    statute or ordinance, states the name of the law enforcement officer who issued the citation, and
    orders the defendant to appear at the time and place stated in the citation.
    {¶5} Shevchenko’s reliance on Crim.R. 3 is misplaced. The case was properly initiated
    through the issuance of the uniform traffic tickets that otherwise complied with the law.
    {¶6} With respect to Shevchenko’s alternative argument, that the officer circled the word
    “operated,” indicating that the infraction occurred while Shevchenko was operating the vehicle,
    instead of circling the word “parked,” we find no error. The sole argument presented focuses on
    whether amending the ticket to read “parked” instead of “operated” constituted a material
    variance that could not be corrected by amendment.
    {¶7} In the same context it has been held that amending the traffic citation from “parked”
    to “operated” is nonconsequential and does not constitute a material variance of the allegations.
    Garfield Hts. v. Allison, 8th Dist. Cuyahoga No. 68735, 
    1995 Ohio App. LEXIS 5206
    , 4 (Nov.
    22, 1995). As that panel noted, a traffic ticket may be amended under Crim.R. 7(D) as long as
    the identity of the charge remains unchanged. 
    Id.,
     citing Akron v. Jaramillo, 
    97 Ohio App.3d 51
    , 53, 
    646 N.E.2d 212
     (9th Dist.1994); State v. Jackson, 
    78 Ohio App.3d 479
    , 481-482, 
    605 N.E.2d 426
     (2d Dist.1992); Cleveland Hts. v. Perryman, 
    8 Ohio App.3d 443
    , 445, 
    457 N.E.2d 926
     (8th Dist.1983); see also State v. Elliott, 5th Dist. Licking No. 2011-CA-00064,
    
    2012-Ohio-771
    , ¶ 31. In Allison, the ticket was amended from “parked” to “operated,” but the
    identity of the violations and the pertinent statutory section or ordinance remained the same. 
    Id.
    Because of those facts, the conviction was affirmed.
    {¶8} In this case, the explanation of the nature of the violations and the identification of
    the ordinances as stated in the citation put Shevchenko on notice as to the nature of the charged
    offenses and the relevant ordinances. Further, she was aware that the vehicle was parked
    because she was present at the time the tickets were issued. Amending the citation from
    “operated” to “parked” had no effect on the nature of the charges nor on Shevchenko’s defense,
    and we find no meaningful difference between these facts and those considered in Allison. The
    amendment of the traffic citation to reflect that the vehicle was parked and not being operated
    when the citations were issued was not in violation of Crim.R. 7(D).
    {¶9} The convictions are affirmed.
    It is ordered that appellee recover from 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 municipal court to
    carry this judgment into execution. Case remanded to the trial court for further proceedings.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    SEAN C. GALLAGHER, JUDGE
    TIM McCORMACK, P.J., and
    PATRICIA ANN BLACKMON, J., CONCUR
    

Document Info

Docket Number: 106718

Citation Numbers: 2018 Ohio 4323

Judges: Gallagher

Filed Date: 10/25/2018

Precedential Status: Precedential

Modified Date: 10/25/2018