YOUNGSTOWN — Dan Mancuso was not leaving Judge John Durkin’s Mahoning County Common Pleas courtroom until he had voiced dissatisfaction with the nonprison sentence James Fortunato Jr. received in 2013, and the effort by Fortunato to have his record expunged.

At the end of the hearing, Durkin approved the expungement, which seals Fortunato’s conviction record from public view.

Dan Mancuso’s lengthy presentation included a photo of his son, Gino, on a table behind him and a “few moments of silence” in the courtroom. Gino died of a drug overdose in 2009 at age 21.

Fortunato pleaded guilty to reckless homicide, heroin trafficking and complicity to heroin possession for giving the dose of heroin to Gino Mancuso that killed him. Durkin had sentenced Mancuso to five years of probation, 200 hours of community service and a $500 fine and court costs.

Tuesday’s hearing also included Dan Mancuso holding a photo of his son’s grave and Mancuso recalling that Fortunato, 36, told the judge during Fortunato’s 2013 sentencing hearing that “many times I wish I could trade places” with Gino Mancuso.

Dan Mancuso stood facing Fortunato while holding the photo of the grave in Fortunato’s direction and said, “You can’t change places with Gino. Wish you could trade places?”

PROSECUTOR OPPOSED

Joe Maxin, assistant county prosecutor, told the judge the prosecutor’s office opposed expungement for Fortunato, saying, “There is a genuine and legitimate need to not seal the record in this case due to the nature of the crimes committed and the defendant’s involvement in Gino’s death. The public must be allowed to access these records to reveal the circumstances of Gino Mancuso’s death and the defendant’s involvement therein.”

Dan Mancuso recounted details of his son’s achievements — all A’s in his early education at St. Christine School, good athlete who played football, basketball and baseball, was a self-taught drummer who graduated from Austintown Fitch in 2006 with a 4.0 grade-point average, attended Carnegie-Mellon University majoring in computer science and was an intern at a large Chicago technology firm. His diploma was awarded posthumously.

Mancuso said if Fortunato “had one gram of guilt …. decency, you would not be filing this application for expungement.”

He added, “Why are you doing this to us? Why do you continue to haunt and now taunt, in this filing, our family? This is destructive and very hurtful to all of us.”

He read the definition of expunge in the dictionary: “‘To erase, to obliterate, to cancel.’ How dare you try to erase, obliterate and cancel Gino’s memory? The judge said Gino’s life should be remembered. Trying to have this expunged is just trying to pretend like it never happened.”

He acknowledged that Gino “made a poor choice. He was coerced by an acquaintance into doing something very foolish and very dangerous, and he paid the ultimate price for it with his life. He was a good person. He didn’t deserve to die.”

JUDGE’S POSITION

Mancuso expressed his dissatisfaction that Durkin did not require Fortunato to pay a big fine, frustration that Fortunato’s case took more than three years to be completed and that Durkin did not recuse himself from the case. Mancuso said the judge had a conflict because Fortunato’s father, Jim Fortunato, is the county purchasing director.

He said James Fortunato Jr. could have gotten up to six years in prison, but he “didn’t get a minute.”

The judge later said the relationship between he and Fortunato’s father did not require him to recuse himself. “It is nothing more than saying good morning and good afternoon if I see him,” the judge said.

As for the sentence and the expungement, the judge told Dan Mancuso, “While it is abundantly clear that you were and are unhappy with that sentence, it is what I believe statutorily to be appropriate at the time. But whether you liked it or didn’t, whether I was right or wrong, that does not factor in statutorily or legally at all in the decision I have to make today.”

He said the issue is whether Fortunato has ceased the behavior for which he was convicted. The judge said there is no evidence that Fortunato has any charges or convictions since Fortunato was sentenced in 2013.

Fortunato “has done everything that a court, a prosecutor, a probation officer, a counselor would ask for in an attempt to become rehabilitated,” the judge said.

Lisa Robinson, Fortunato’s attorney, said Fortunato started using prescription painkillers but turned to heroin because it was easier to get and cheaper. “Once he started injecting heroin, he very quickly became addicted,” she said.

“Through a miracle of a drug he was introduced to at (The Community Corrections Association in Youngstown), and the intervention of our Lord, he is drug-free and has been for over 10 years,” she said. He is now married with a child. He is a partner in two successful businesses, including one with Robinson’s husband, she said.

“Our business routinely hires people through CCA,” Robinson said. She said Fortunato spent seven months in jail, was homeless for a time and contracted hepatitis as a result of his drug addiction.

“If he was my son, I would be proud of him for what he has overcome,” she said.