[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. 

JAMES A. DIMUZIO, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 10 MA 90 

OPINION 

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. 
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{¶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.