[Cite as State v. Dimuzio, 2011-Ohio-420.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
VS.                                              )          CASE NO. 10 MA 90
                                                 )
JAMES A. DIMUZIO,                                )                OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 01CR146A

JUDGMENT:                                        Reversed
                                                 Sentence Vacated

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Charles E. Dunlap
                                                 3855 Starr’s Centre Dr., Suite A
                                                 Canfield, Ohio 44406




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                 Dated: January 24, 2011
[Cite as State v. Dimuzio, 2011-Ohio-420.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, James Dimuzio, appeals from a Mahoning County
Common Pleas Court judgment denying his motion to terminate the balance of his
sentence for assault.
        {¶2}     On December 17, 2004, appellant pleaded no contest to a charge of
assault, a first-degree misdemeanor in violation of R.C. 2903.13(A). The trial court
found him guilty. On February 17, 2005, the trial court sentenced appellant to six
months in jail and ordered him to pay a $1,000 fine, plus costs.
        {¶3}     On March 9, 2010, appellant filed a motion to terminate sentence.
Appellant alleged that as of that date he had served 84 days of his 180-day
sentence, leaving a balance of 96 days. The motion further alleged that appellant’s
sentence was continually interrupted by housing restrictions, i.e. jail overcrowding.
Thus, appellant asked the court to terminate the balance of his sentence since he
had been waiting for over five years to serve it.          Appellant relied on the Ohio
Supreme Court case of State v. Zucal (1998), 82 Ohio St.3d 215.
        {¶4}     Plaintiff-appellee, the State of Ohio, filed a memorandum in opposition.
It conceded that the facts set out in appellant’s motion were correct and that the law
set out in Zucal was correct. However, it argued that the court should not grant the
motion because while appellant had attempted to serve his jail sentence only to be
turned away due to overcrowding, appellant had not paid his fine in full and had not
paid his court costs.
        {¶5}     The trial court overruled appellant’s motion on April 26, 2010.
        {¶6}     On April 28, 2010, appellant filed a renewed motion to terminate
sentence. Appellant now stated that he had paid all costs current as of April 27,
2010. He also attached a receipt from the clerk of courts showing payment in full.
        {¶7}     This time, the state did not file a memorandum in opposition.
        {¶8}     On May 5, 2010, however, the trial court once again denied appellant’s
motion finding that the state was opposed to it.
        {¶9}     Appellant filed a timely notice of appeal on May 26, 2010. The trial
court granted a stay of appellant’s sentence pending this appeal.
                                                                              -2-


       {¶10} Appellant raises a single assignment of error, which states:
       {¶11} “THE COURT ERRED BY DENYING DEFENDANT’S MOTION OF
APRIL 28, 2010.”
       {¶12} Appellant argues that the balance of his sentence must be vacated
because five years has elapsed since his sentencing date of February 17, 2005. He
points out that he has paid all fines and court costs as of April 27, 2010.
       {¶13} The state has filed a confession of judgment in this matter. It concedes
that the trial court’s decision must be reversed.
       {¶14} Both parties rely on Zucal, 82 Ohio St.3d 215, in support. In Zucal, the
Ohio Supreme Court held:
       {¶15} “1. In convictions involving misdemeanor offenses, a delay in execution
of sentence resulting from jail overcrowding that exceeds five years from the date
that sentence is imposed is unlawful.
       {¶16} “2. Any sentence resulting from a conviction of a misdemeanor offense
that is not completed within five years from the date of sentencing must be vacated.”
Id. at paragraphs one and two of the syllabus.
       {¶17} Based on Zucal’s authority, appellant’s assignment of error has merit.
       {¶18} For the reasons stated above, the trial court’s judgment is hereby
reversed and the remainder of appellant’s sentence is hereby vacated.


Waite, P.J., concurs.
DeGenaro, J., concurs.
