State v. Forte ( 2013 )

[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