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City of Mayfield Heights v. Barry

Court of Appeals of Ohio, Eighth District

August 15, 2013

CITY OF MAYFIELD HEIGHTS PLAINTIFF-APPELLEE
v.
DENVER BARRY DEFENDANT-APPELLANT

Criminal Appeal from the Lyndhurst Municipal Court Case No. 09 CRB 00397

ATTORNEY FOR APPELLANT Richard D. Eisenberg

ATTORNEYS FOR APPELLEE Dominic J. Vitantonio George J. Argie

BEFORE: Boyle, P.J., Blackmon, J., and McCormack, J.

JOURNAL ENTRY AND OPINION

MARY J. BOYLE, PRESIDING JUDGE

(¶ 1} This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 11.1.

(¶2} Defendant-appellant, Denver Barry, appeals the trial court's judgment resentencing him. He raises two assignments of error for our review:

[1.] The trial court committed prejudicial error by resentencing the defendant-appellant with an alleged correction, nunc pro tunc, of a portion of its sentencing order of August 24, 2010, the trial court having no jurisdiction to enter a nunc pro tunc or any other order.
[2.] Arguendo the trial court's change in sentence is void and prejudicial error since appellant-defendant's right to be present at all increases in sentence under Criminal Rule 43(A) was violated, even if the trial court had jurisdiction.

(¶ 3} After review, we dismiss the appeal for lack of a final appealable order.

Procedural History and Factual Background

(¶ 4} Barry, through his company April Management, Ltd., owns a two-acre parcel of land located at 1592 Lander Road ("the property") in the city of Mayfield Heights ("the city"). The northern edge of the property is bounded by ten parcels upon which there are single-family homes located on Mayland Avenue. Shortly after April Management purchased the property, Barry began making improvements to the single-family home that existed on his property. As the project progressed, neighbors from the adjacent properties complained to the city that Barry's property was littered with a collection of unsightly debris. They also complained that Barry used a backhoe to move dirt on the property, changed the grade of the soil, and caused water to accumulate into large pools that encroached into their backyards.

(¶ 5} In April 2009, the city charged Barry with two violations of the Mayfield Heights Codified Ordinances ("MHCO"). It charged Barry with a violation of MHCO 1389.04(A)(6), alleging that his property was littered with a collection of unsightly debris (the "debris charge, "), and with a violation of MHCO 559.04(c), alleging that Barry used a backhoe to move dirt on the property, changed the grade of the soil, and caused water to accumulate into large pools that encroached into his neighbor's backyards (the "watercourse charge").

(ΒΆ6} A jury found Barry guilty of both counts. On August 24, 2010, the trial court sentenced Barry. On the first count, the trial court sentenced him to a $1, 000 fine, $750 suspended pending compliance, 180 days in jail, suspended pending compliance, and to conditional probation for "6-months active" until compliance. On the second count, the trial court sentenced him to a $500 fine, $250 of the fine and costs suspended ...


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