APPEAL Contempt sentence sent back for lawyer

The lawyer's troubles began when he failed to appear for a hearing.
YOUNGSTOWN -- The Seventh District Court of Appeals has affirmed the contempt-of-court ruling against attorney Richard Olivito of Boardman, but reversed the lawyer's 30-day jail sentence and an order that he undergo a mental health evaluation.
In a 14-page opinion, the appellate court sent the case back to Judge Robert P. Milich of Youngstown Municipal Court for imposition of a more reasonable sentence.
Olivito and his client had failed to appear for a hearing before the judge in September 2003. The lawyer was involved in a case in Warren, but he failed to call the Youngstown court to reschedule the matter.
The judge issued a warrant for the arrest of Olivito and his client for failure to appear. The judge said Olivito had breached his responsibility as an attorney.
A contempt hearing was set for October 2003, and the judge found Olivito in contempt. Judge Milich delayed sentencing until February 2004.
At that sentencing, the judge suspended Olivito's 30-day jail sentence until March 8, 2004, and ordered him to get a mental health evaluation.
On March 8, Olivito told the judge he did not get the evaluation because he never agreed to it. Judge Milich ordered the lawyer to be jailed, but he was released after spending five hours behind bars when the appellate court stayed his sentence pending appeal.
Olivito's appellate lawyer, Larry Zukerman of Akron, said the judge abused his discretion. He also said the finding of contempt did not meet the burden of proof beyond a reasonable doubt, and that the order mandating a mental health evaluation was not supported by any facts in the record.
Altered sentence
The appellate court ruled that the contempt finding was supported by the evidence. Olivito knew of the court order to appear and failed to do so.
The reviewing court, however, said there was nothing in the record or evident in the court's finding that demonstrated that a mental health evaluation was relevant or proper. Indeed, the record does not reflect "a history or indication of mental health issues," says the opinion written by Appellate Judge Joseph Vukovich. The appellate court reversed the mental health evaluation.
The record also shows nothing to substantiate the maximum 30-day jail sentence for first offenders, the appellate court ruled. In fact, the pre-sentence report ordered by Judge Milich and prepared by the probation department recommended no jail time or probation and a fine of $100 and costs.
"This sentence appears to be disproportionate to [Olivito's] act of forgetting to call the court to reschedule his hearing," Vukovich wrote.
The appellate court concluded the 30-day sentence was an abuse of discretion and sent the case back to the trial court to "formulate a more suitable sentence."