State v. Weaver , 2011 Ohio 6163 ( 2011 )


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  • [Cite as State v. Weaver, 
    2011-Ohio-6163
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 96505
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    JAMES WEAVER
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case Nos. CR-539953 and 540025
    BEFORE: Sweeney, P.J., Keough, J., and E. Gallagher, J.
    RELEASED AND JOURNALIZED: December 1, 2011
    ATTORNEY FOR APPELLANT
    Rick L. Ferrara, Esq.
    2077 East Fourth Street
    Second Floor
    Cleveland, Ohio 44114
    ATTORNEYS FOR APPELLEE
    William D. Mason, Esq.
    Cuyahoga County Prosecutor
    By: Daniel South, Esq.
    Mary McGrath, Esq.
    Assistant Prosecuting Attorneys
    The Justice Center
    1200 Ontario Street
    Cleveland, Ohio 44113
    JAMES J. SWEENEY, P.J.:
    {¶ 1} Defendant-appellant James Weaver asserts two issues in this appeal: (1) that
    the trial court’s restitution order was an abuse of discretion, and (2) that the trial court
    erred by imposing consecutive sentences without making statutory findings. For the
    reasons that follow, we affirm.
    {¶ 2} This appeal involves defendant’s guilty pleas and the sentences he received
    in two separate cases: CR-540025 and CR-539953. 1 In these cases, defendant pleaded
    guilty to two counts of breaking and entering, vandalism, and theft, which exposed him to
    a maximum potential prison sentence of 48 months. As part of his guilty plea, defendant
    agreed to pay restitution to the victims in both cases but demanded a hearing. We note
    that at the plea hearing, the state sought restitution to North American Switchgear in the
    amount of $3,180 and $1,000 to Rent-A-Wreck. Both parties agreed to a restitution
    hearing and the matter was referred to probation for a pre-sentence investigation.
    {¶ 3} On November 1, 2010, the court held a sentencing hearing where it imposed
    a one-year concurrent prison sentence for each conviction in CR-540025 and also a
    one-year concurrent prison sentence for each conviction in CR-539953, but the trial court
    ordered the sentences from each case to run consecutively for an aggregate sentence of 24
    months. The court ordered defendant to pay $1,780 in restitution to American Switch-gear
    and $750 in restitution to Tim Bozak. Defendant objected and the matter was continued
    for a restitution hearing. On November 8, 2010, the court advised that “prior to coming on
    the bench I had the opportunity to review the entire case file, the presentence investigation
    report, * * *.” The state placed on the record its discussions with the victims, who had
    provided receipts to the probation department for the restitution sought. The state
    elaborated that the amounts involved a catalytic converter and installation in the amount of
    $750, and the other case involved a specialty door with various pieces of chain, “other
    pieces of scrap,” with damages totaling $1,780. The victims insisted the amounts were
    accurate. The defense maintained there was no damage to the catalytic converter, that there
    was no evidence as to whether the losses were covered by insurance, and otherwise
    disputed that any money had actually been expended by the victims. At the first hearing,
    1
    The record reflects that defendant was also sentenced on other matters that are
    the state had advised the court that defendant had cut off the converter with a sawzall such
    that it could not be put back on an automobile. After hearing arguments and reviewing the
    evidence, the court imposed the same restitution order. Defendant has appealed.
    {¶ 4} “Assignment of Error I: The trial court erred because it issued a restitution
    order without competent and credible evidence of economic harm.”
    {¶ 5} R.C. 2929.18(A)(1) provides in relevant part:
    {¶ 6} “Financial sanctions that may be imposed pursuant to this section include,
    but are not limited to, the following:
    {¶ 7} “(1) Restitution by the offender to the victim of the offender’s crime or any
    survivor of the victim, in an amount based on the victim’s economic loss. If the court
    imposes restitution, the court shall order that the restitution be made to the victim in open
    court, to the adult probation department that serves the county on behalf of the victim, to
    the clerk of courts, or to another agency designated by the court. If the court imposes
    restitution at sentencing, the court shall determine the amount of restitution to be made by
    the offender. If the court imposes restitution, the court may base the amount of restitution
    it orders on an amount recommended by the victim, the offender, a presentence
    investigation report, estimates or receipts indicating the cost of repairing or replacing
    property, and other information, provided that the amount the court orders as restitution
    shall not exceed the amount of the economic loss suffered by the victim as a direct and
    proximate result of the commission of the offense. If the court decides to impose
    not the subject of this appeal.
    restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor
    disputes the amount. All restitution payments shall be credited against any recovery of
    economic loss in a civil action brought by the victim or any survivor of the victim against
    the offender.”
    {¶ 8} We review court-ordered restitution for an abuse of discretion. “To establish
    the amount of restitution within a reasonable certainty, there must be some competent,
    credible evidence. Sufficient evidence of the amount of restitution may appear in the
    record. Where evidence of the appropriate amount of restitution does not appear in the
    record, an evidentiary hearing is required.” State v. Carrino (May 11, 1995), Cuyahoga
    App. No. 67696, citing State v. Warner (1990), 
    55 Ohio St.3d 31
    , 69, 
    564 N.E.2d 18
    .
    {¶ 9} Here, the court complied with the statute and held a restitution hearing when
    defendant disputed the amount. The state offered the receipts that were submitted by the
    victims to the probation department indicating the amounts of their respective economic
    harm. In opposition, defendant continued a generalized objection and did not present any
    evidence that would refute the amounts suggested by the victims, such as contrary
    estimates. The trial court’s restitution order was not an abuse of discretion. This
    assignment of error is overruled.
    {¶ 10} “Assignment of Error II: The trial court erred because it failed to state its
    justification for imposing consecutive sentences.”
    {¶ 11} The trial court imposed defendant’s sentence on November 8, 2010. At that
    time, the law in Ohio did not require it to make any statutory findings as a prerequisite to
    imposing consecutive sentences. State v. Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    ; State v. Hodge, 
    128 Ohio St.3d 1
    , 
    2010-Ohio-6320
    , 
    941 N.E.2d 768
    . Hodge
    held the following:
    {¶ 12} “1. The jury-trial guarantee of the Sixth Amendment to the United States
    Constitution does not preclude states from requiring trial court judges to engage in judicial
    fact-finding prior to imposing consecutive sentences. (Oregon v. Ice (2009), 
    555 U.S. 160
    ,
    
    129 S.Ct. 711
    , 
    172 L.Ed.2d 517
    , construed.)
    {¶ 13} “2. The United States Supreme Court’s decision in Oregon v. Ice (2009), 
    555 U.S. 160
    , 
    129 S.Ct. 711
    , 
    172 L.Ed.2d 517
    , does not revive Ohio’s former
    consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which
    were held unconstitutional in State v. Foster, 
    109 Ohio St.3d 1
    , 
    2006-Ohio-856
    , 
    845 N.E.2d 470
    .
    {¶ 14} “3. Trial court judges are not obligated to engage in judicial fact-finding
    prior to imposing consecutive sentences unless the General Assembly enacts new
    legislation requiring that findings be made.”
    {¶ 15} Contrary to defendant’s argument, Hodge did not automatically revive the
    statutes that were excised by Foster. Hodge is dispositive of this assignment of error,
    which is overruled.2
    Judgment affirmed.
    2
    We realize that the General Assembly subsequently enacted legislation that
    affected Ohio’s sentencing laws; however, those provisions did not take effect until
    It is ordered that appellee recover from appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution. The defendant’s conviction having been
    affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
    execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    JAMES J. SWEENEY, PRESIDING JUDGE
    KATHLEEN ANN KEOUGH, J., and
    EILEEN A. GALLAGHER, J. CONCUR
    September 30, 2011 (months after Weaver was sentenced) and were not raised or
    addressed in this appeal.
    

Document Info

Docket Number: 96505

Citation Numbers: 2011 Ohio 6163

Judges: Sweeney

Filed Date: 12/1/2011

Precedential Status: Precedential

Modified Date: 2/19/2016