State v. Romanko , 2017 Ohio 739 ( 2017 )

[Cite as State v. Romanko, 2017-Ohio-739.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104158
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ZORYANA ROMANKO
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-583903-A
BEFORE: E.A. Gallagher, P.J., Stewart, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: March 2, 2017
APPELLANT
Zoryana Romanko, pro se
Inmate No. W090252
Northeast Pre-Release Center
2675 E. 30th Street
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Edward Brydle
Assistant Prosecuting Attorney
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Zoryana Romanko appeals the trial court’s imposition of
consecutive sentences after the case was remanded for the trial court to consider whether
consecutive sentences were appropriate under R.C. 2929.14(C)(4) and, if so, to make the
findings required by the statute. For the reasons that follow, we affirm.
Procedural and Factual Background
{¶2} Romanko used her position as a housekeeper to steal jewelry, antiques and
treasured heirlooms from families for whom she worked then sell the items to local
pawnbrokers. Over a twenty-two-month period, Romanko conducted 139 transactions
with pawnbrokers selling, in exchange for payments totaling more than $69,000. As
part of a plea agreement, Romanko pled guilty to two counts of burglary and one count of
grand theft in Cuyahoga C.P. No. CR-14-583903 and one count of burglary in Cuyahoga
C.P. No. CR-14-585536. Romanko also agreed to pay a total of $13,150 in restitution to
three of her victims.
{¶3} In Case No. CR-14-583903, Romanko was sentenced to two-year concurrent
prison terms on each of the burglary counts and 18 months on the grand theft count which
was to be served consecutively to the sentences imposed on the burglary counts. In Case
No. CR-14-585536, Romanko was sentened to two years in prison on the burglary count,
to be served consecutively to the sentences imposed in Case No. CR-14-583903, resulting
in an aggregate prison sentence of five-and-one-half years. The trial court also imposed
three years of mandatory postrelease control and ordered the payment of $13,150 in
restitution and costs.
{¶4} Romanko appealed her convictions and sentences to this court, arguing, as
her sole assignment of error, that the trial court had erred in imposing consecutive
sentences without making the statutory findings required under R.C. 2929.14(C). This
court agreed and remanded the case for resentencing “for the limited purpose of
considering whether consecutive sentences are appropriate under R.C. 2929.14(C)(4) and,
if so, to make the findings required by the statute.” State v. Romanko, 8th Dist.
Cuyahoga No. 101921, 2015-Ohio-4759, ¶ 11 (“Romanko I”).
{¶5} At the resentencing hearing, the trial judge heard from defense counsel,
Romanko and the state. She then announced that, based upon (1) her review of this
court’s opinion in Romanko I, the presentence investigation report and the transcript from
the initial sentencing hearing and (2) her consideration of “what everyone has said here
today” and “the purposes and principles of the Ohio Revised Code Sections regarding
sentencing,” she had determined that “the original sentence was appropriate” under R.C.
2929.14(C)(4). Accordingly, in Case No. CR-14-583903, Romanko was sentenced to
two-year concurrent prison terms on each of the burglary counts and 18 months on the
grand theft count which was to be served consecutively to the sentences on the burglary
counts. In Case No. CR-14-585536, Romanko was sentenced to two years in prison on
the burglary count to be served consecutively to the sentences imposed in Case No.
CR-14-583903.
{¶6} The trial court then proceeded to state the findings in support of its
imposition of consecutive sentences as follows:
THE COURT: Now, I make the following findings to support the sentences
I just gave, the consecutive sentences.
I find that consecutive sentences are necessary to protect the public from
future crime. * * *
[T]here is no reason for me to believe that had you not been caught, that
you would not have continued on this crime spree.
The best indicator of your future behavior is your past behavior, and I think
it’s necessary to protect the public from future crime by you.
Now, this is an alternative, but I find this as well. I also find it’s necessary
to punish you, the offender, someone who violates the trust of people, who
let you into their home, need to be severely punished.
People need to be confident in the security of their home.
I also note that it’s not just the financial, which is truly a significant
number, but also the emotional damage that you caused each and every one
of these offenders, coin collections of a family, broaches, wedding rings,
and, in the one instance, the [sic] one family was expecting to use the
proceeds from these items to care for their elderly mother.
I also find it’s not disproportionate to the seriousness of your conduct, and
to the danger you pose to the public.
You got two years on each of the burglary counts. Each is a separate
victim.
To get the minimum, it cannot be considered disproportionate.
And you also pose a danger to the public, a danger to their security, a
danger to their possessions, and possessions that mean so very much to
them.
And you did this over a significant period of time.
And, actually, I did count the numbers of the victims. It’s nine. I see that
in my notes, now, and I checked this several times.
And I also find that at least two of the multiple offenses were committed as
part of one or more courses of conduct.
This is a course of conduct of you accepting a job and being paid for it, and,
in addition, to being paid for it, robbing these people.
It was a course of conduct for you to go from home to home and victim to
victim, taking their belongings.
I also find that the harm caused by two or more of the multiple offenses you
committed were so great, I’m sorry, was so great or unusual that no single
prison term for any of the offenses committed as matter of any of these
courses of conduct adequately reflect the seriousness of the Defendant’s
conduct.
I must repeat. This is very serious conduct. You took advantage of these
people. You went into their home. You tricked them. They thought of
you as their family, as their friend.
And when you had them in that vulnerable position, you robbed them of
things that were just the very most important things to them, short of the
lives and well-being of their family.
But you took things that were so very important to them, and they’re never
going to get them back.
Forget that they’re not being financially made whole, they are not
emotionally, psychologically being made whole, and that’s offered by the
victims who came in and testified at the time of the original sentence.
The Prosecutor amended the burglary counts to include all victims. Each
is a separate home, each is a separate trust relationship that you so seriously
violated. And you must be held accountable for these.
So my sentence stands.
{¶7} The trial court incorporated its findings into its February 25, 2016 journal
entry as follows:
FIND: CONSECUTIVE SENTENCE IS NECESSARY TO PROTECT
PUBLIC FROM FUTURE CRIME OR PUNISH OFFENDER AND NOT
DISPROPORTIONATE TO THE SERIIOUSNESS [sic] OF
OFFENDER’S CONDUCT AND TO THE DANGER THE OFFENDER
POSES TO THE PUBLIC. AT LEAST TWO (2) OF THE MULIPLE
[sic] OFFENES [sic] COMMITTED AS PART OF ONE OR MORE
COURSES OF CONDUCT AND THE HARM CAUSED BY TWO OR
MORE OF THE MULITIPLE OFFENESE [sic] SO COMMITTED WAS
SO GREAT OR UNUSUAL THAT NO SINGLE PRISON TERM FOR
ANY OF THE OFFENSES COMMITETED [sic] AS PART OF ANY OF
THE COURSES OF CONDUCT ADEQUATELY REFLECTS THE
SERIOUSNESS OF THE OFFENDER’S CONDUCT. THE HISTORY OF
CRIMINAL CONDUCT DEMONSTRATES CONSECUTIVE
SENTENCES ARE NECESSARY TO PROTECT THE PUBLIC FROM
FUTURE CRIME BY THE OFFENDER.
{¶8} Once again, Romanko appealed the trial court’s imposition of consecutive
sentences.
{¶9} After filing the appeal, Romanko’s appellate counsel submitted a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.1396, 18 L.Ed.2d 493 (1997) and
moved for leave to withdraw as counsel pursuant to Loc.App.R. 16(C) and 44(B),
indicating that “a thorough review of the record reveals that an appeal would be wholly
frivolous.”
Law and Analysis
{¶10} Anders “sets forth a procedure for ensuring that an indigent defendant’s
right to counsel on appeal is honored when his attorney asserts that the appeal is without
merit.” State v. Taylor, 8th Dist. Cuyahoga No. 101368, 2015-Ohio-420, ¶ 6. If counsel
thoroughly reviews the record and concludes, “after a conscientious examination of it,”
that an appeal is “wholly frivolous,” counsel may advise the court of that fact and request
permission to withdraw from the case. Anders at 744. Counsel’s request to withdraw
must “be accompanied by a brief referring to anything in the record that might arguably
support the appeal.” Id. Counsel must also furnish a copy of the brief to his or her
client in sufficient time to allow the client to file his or her own brief, pro se. Id. The
appellate court “then proceeds, after a full examination of all the proceedings, to decide
whether the case is wholly frivolous.” Id. If the appellate court determines that an
appeal would be “wholly frivolous,” i.e., that there are no appealable issues of arguable
merit, “it may grant counsel’s request to withdraw and dismiss the appeal * * *.” Id.;
see also Loc.App.R. 16(C). If, however, the court finds “any of the legal points
arguable on their merits,” it must afford the appellant assistance of counsel to argue the
appeal before deciding the merits. Anders at 744.
{¶11} In this case, counsel filed a motion to withdraw, detailing the basis for her
belief that an appeal would be wholly frivolous in accordance with Anders. Appellate
counsel identified the potential arguments that could be raised related to the resentencing
as required by Anders and explained why she believed those arguments were not
meritorious. Specifically, she addressed whether the trial court had fulfilled its
obligations on remand to determine whether consecutive sentences were appropriate and,
if so, to make the requisite findings supporting the imposition of consecutive sentences
under R.C. 2929.14(C)(4). She concluded that the trial court did so. She further
indicated that Romanko had been “effectively represented by counsel” at the resentencing
hearing and “afforded all of her constitutional and statutory rights.” A copy of the
motion was served on Romanko.
{¶12} Romanko filed a pro se brief in which she raised the following five
assignments of error for review:
Assignment of Error 1: The trial court erred because it did not make the
findings required by R.C. 2929.14(C)(4), BEFORE imposing consecutive
sentences.
Assignment of Error 2: The trial court erred because it failed to make
consider [sic] the purposes and principles of felony sentencing under R.C.
2929.11 and the seriousness and recidivism findings [under] R.C. 2929.12;
and imposed consecutive sentences that are not supported by evidence on
the record and are contrary to law.
Assignment of Error 3: The defendant’s Sixth Amendment right to the
effective assistance of counsel under the United States Constitution was
violated in that both trial counsel and appellate counsel rendered ineffective
assistance of counsel.
Assignment of Error 4: The trial court abused its discretion in ordering
restitution by the defendant without considering her present and future
ability to pay and contrary to the law under R.C. 2929.18(A).
Assignment of Error 5: The trial court erred to the prejudice of the
defendant in failing to merge her convictions for burglary with the
associated theft offense. The charge of burglary should not have stood
because the defendant did not ‘‘trespass’ as required in the statute. The
failure to merge the theft with the respective burglaries is in violation of the
mandate contained R.C. 2941.25, the Double Jeopardy Clause of the Fifth
Amendment of the United States Constitution and Article [O]ne, section 10
of the Ohio Constitution.
{¶13} We have examined and considered the potential arguments identified by
appointed counsel and the arguments raised in Romanko’s pro se brief. In addition, we
have conducted an independent review of the record from the resentencing, including the
transcript from the resentencing hearing, to determine if any arguably meritorious issues
exist. Anders, 386 U.S. at 744, 87 S.Ct.1396, 18 L.Ed.2d 493. We find no arguably
meritorious issue.
Scope of Appeal from a Resentencing Following Remand
{¶14} As an initial matter, we note that an appeal from a resentencing following a
remand from a successful appeal is limited to those issues that arise from the
resentencing. As this court previously stated in State v. Hicks, 8th Dist. Cuyahoga No.
104676, 2016-Ohio-8062, “[t]he Ohio Supreme Court has made this proposition clear”:
The doctrine of res judicata establishes that “a final judgment of conviction
bars a convicted defendant who was represented by counsel from raising
and litigating in any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have
been raised by the defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.” State v. Perry, 10 Ohio
St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. The
scope of an appeal from a new sentencing hearing is limited to issues that
arise at the new sentencing hearing. See State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 40. The doctrine of res judicata
does not bar a defendant from objecting to issues that arise at the
resentencing hearing or from the resulting sentence.
Hicks at ¶ 8, quoting State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d
381, ¶ 30. Thus, in this appeal, Romanko may only raise issues that arise from her
resentencing. Hicks at ¶ 8, citing Wilson at ¶ 33.
Trial Court’s Imposition of Consecutive Sentences
{¶15} Only Romanko’s first two assignments of error relate to her resentencing.
In her first assignment of error, Romanko argues that the trial court’s imposition of
consecutive sentences is contrary to law because the trial court made the findings
supporting its imposition of consecutive sentences after it announced it would be
imposing consecutive sentences. She contends that under R.C. 2929.14(C)(4), the trial
court had to make the findings supporting the imposition of consecutive sentences first,
then announce its decision to impose consecutive sentences. In her second assignment
of error, Romanko contends that the record fails to support the findings made by the trial
court when imposing consecutive sentences. Specifically, she argues that the trial court
“failed to make the statutory findings of seriousness and recidivism under R.C.
2929.12(B)(C)(D) & (E),” that “[t]here are no statutory or non-statutory factors under
R.C. 2929.12 tending to show Ms. Romanko is likely to commit future crimes” and that
the concepts of rehabilitation and recidivism do not support sentencing a
“forty-two-year-old, first-time, non-violent offender” to five years in prison. She also
contends that, because there was no evidence that any of her victims suffered any
“physical harm,” the record does not support the trial court’s finding under R.C.
2929.14(C)(4)(b) that “the harm * * * was so great or unusual that no single prison term *
* * adequately reflects the seriousness” of her conduct.
{¶16} As this court explained in State v. Johnson, 8th Dist. Cuyahoga No. 102449,
2016-Ohio-1536, there are two ways a defendant can challenge consecutive sentences on
appeal:
First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the necessary findings required by R.C.
2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 8th Dist.
Cuyahoga No. 99387, 2014-Ohio-2527, ¶ 16, 15 N.E.3d 892. Second, the
defendant can argue that the record does not support the findings made
under R.C. 2929.14(C)(4). See R.C. 2953.08(G)(2)(a); Nia.
Johnson at ¶ 7. Pursuant to R.C. 2953.08(G)(2)(a), an appellate court may “increase,
reduce, or otherwise modify a sentence * * * or may vacate the sentence and remand the
matter to the sentencing court for resentencing” if it “clearly and convincingly” finds that
“the record does not support the sentencing court’s findings” under R.C. 2929.14(C)(4).
{¶17} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences,
the trial court must find that consecutive sentences are necessary to protect the public
from future crime or to punish the offender, that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public and that at least one of the following also applies:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
R.C. 2929.14(C)(4).
{¶18} The trial court must both make the statutory findings required for
consecutive sentences at the sentencing hearing and incorporate those findings into its
sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, syllabus. To make the requisite “findings” under the statute, “‘the [trial]
court must note that it engaged in the analysis’ and that it ‘has considered the statutory
criteria and specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26,
quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). A trial
court need not give a “talismanic incantation of the words of the statute” when imposing
consecutive sentences, “provided that the necessary findings can be found in the record
and are incorporated in the sentencing entry.” Bonnell at ¶ 37.
{¶19} In this case, the record shows that the trial court made the requisite
findings for imposing consecutive sentences under R.C. 2929.14(C)(4) at the resentencing
hearing and incorporated those findings into the journal entry attendant to that hearing.
The trial court expressly found that consecutive sentences are necessary to protect the
public from future crime and to punish Romanko, R.C. 2929.14(C)(4), that consecutive
sentences were not disproportionate to the seriousness of her conduct and the danger she
poses to the public, id., that at least two of the multiple offenses were committed as part
of a course of conduct and that the harm caused by two or more of those offenses was so
great or unusual that no single prison term for any of the offenses committed as part of
the course of conduct adequately reflects the seriousness of her conduct, R.C.
2929.14(C)(4)(b). There is nothing in R.C. 2929.14(C)(4) (or otherwise) that requires a
trial court to articulate its findings supporting the imposition of consecutive sentences
before announcing its decision to impose consecutive sentences at a sentencing hearing.
Accordingly, Romanko’s first assignment of error is meritless.
{¶20} The trial court’s findings under R.C. 2929.14(C)(4) are clearly supported
by the record. As the trial court stated at the resentencing hearing, nine victims were
involved, i.e., people who “thought of [Romanko] as their family, as their friend.” The
record reflects that Romanko took advantage of these individuals by going into their
homes, violating the trust they had bestowed upon her, “trick[ing] them” and robbing
them of the “things that were just the very most important things to them, short of the
lives and well-being of their famil[ies]” — “very serious conduct” from which the victims
would not ever be financially, emotionally or psychologically “made whole.” The
record further reflects that Romanko’s convictions did not arise from an isolated incident
but that Romanko used her position to steal from these families many, many times over a
22-month period. As the trial court found, Romanko’s crimes arose from a “course of
conduct” involving her “accepting a job and being paid for it, and, in addition, * * *
robbing these people” “go[ing] from home to home and victim to victim, taking their
belongings.”
{¶21} The fact that none of Romanko’s victims were shown to have suffered
“physical harm” did not preclude the trial court from imposing consecutive sentences
based on its finding under R.C. 2929.14(C)(4)(b). R.C. 2929.14(C)(4)(b) requires only
that the trial court find that “the harm caused” by two or more multiple offenses
committed by the defendant “was so great or unusual that no single prison term for any of
the offenses committed * * * adequately reflects the seriousness of the offender’s
conduct.” It does not require a finding that the defendant caused “physical harm” to any
victim.
{¶22} Here, the trial court found that Romanko’s victims suffered both significant
financial harm as well as psychological and emotional harm based on the nature of the
possessions Romanko stole and pawned, i.e., prized family heirlooms “that were so very
important to them [that] they’re never going to get * * * back,” and the manner in which
she stole from them, i.e., abusing a position of trust and stealing from them while in their
homes. Based on these facts, there is no arguably meritorious claim that the record
clearly and convincingly does not support the trial court’s findings under R.C.
2929.14(C)(4).
{¶23} Contrary to Romanko’s arguments, the trial court was not required “to make
* * * statutory findings of seriousness and recidivism under R.C. 2929.12(B)(C)(D) &
(E)” or to consider the factors set forth in R.C. 2929.12 when imposing consecutive
sentences. See R.C. 2929.14(C)(4); see also State v. Kirkman, 8th Dist. Cuyahoga No.
103683, 2016-Ohio-5326, ¶ 9 (“R.C. 2929.12 guides a sentencing judge’s discretion only
on individual counts[.] * * * R.C. 2929.12 is not statutorily applicable to consecutive
sentencing issues.”).1 Accordingly, Romanko’s second assignment of error is meritless.
Effective Assistance of Trial and Appellate Counsel
{¶24} In her third assignment of error, Romanko argues that both her trial counsel
and her appellate counsel in Romanko I failed to provide effective assistance. She
asserts that trial counsel failed to give her “professionally competent advice” regarding
the elements of burglary and whether they could be proven in her case and that, were it
not for the deficient performance of counsel, she would not have pled guilty to the
burglary counts. She also contends that trial counsel provided ineffective assistance by
failing to file an affidavit of indigence on her behalf and by failing to request that the
burglary and grand theft counts be merged for sentencing as allied offenses of similar
import. With respect to appellate counsel, Romanko contends that her appellate counsel
provided ineffective assistance by “failing to peruse the transcripts of the hearings and
finding merit issues to raise upon appeal” in Romanko I.
1
Indeed, even if the trial court was required to consider the purposes and principles of felony
sentencing or the R.C. 2929.12 factors in deciding whether to impose consecutive sentences, the
record reflects that it did so. The trial judge expressly stated at the resentencing hearing that she
considered “the purposes and principles of the Ohio Revised Code Sections regarding sentencing” in
determining that consecutive sentences were appropriate under R.C. 2929.14(C)(4). The trial
court’s February 25, 2016 resentencing journal entry likewise reflects its
consideration of such factors, stating: “THE COURT CONSIDERED ALL
REQUIRED FACTORS OF THE LAW. THE COURT FINDS THAT PRISON IS
CONSISTENT WITH THE PURPOSE OF R.C. 2929.11.” See, e.g., State v. Gaines,
8th Dist. Cuyahoga No. 103476, 2016-Ohio-4863, ¶ 11 (trial court’s consideration of
R.C. 2929.11 principles and purposes of sentencing and R.C. 2929.12 sentencing
factors was established where trial court stated, in its sentencing journal entry,
that it had considered the required factors); see also State v. Sutton, 8th Dist.
{¶25} These issues do not relate to or arise from Romanko’s resentencing. As
such, they are outside the scope of this appeal. Romanko could have raised claims of
ineffective assistance of trial counsel in her original appeal (if based on evidence in the
record) or by means of a petition for postconviction relief (if based on evidence outside
the record). See, e.g., State v. Bridges, 8th Dist. Cuyahoga Nos. 103634 and 104506,
2016-Ohio-7298, ¶ 26. Claims of ineffective assistance of appellate counsel are raised
in this court by filing an application to reopen the appeal. See App.R. 26(B).
Restitution
{¶26} In her fourth assignment of error, Romanko argues that the trial court abused
its discretion in ordering her to pay $13,150 in restitution without considering her present
and future ability to pay in accordance with R.C. 2929.19(B)(5). R.C. 2929.19(B)(5)
provides, in relevant part: “Before imposing a financial sanction under section 2929.18 of
the Revised Code * * * the court shall consider the offender’s present and future ability to
pay the amount of the sanction * * *.”
{¶27} The restitution at issue was imposed by the trial court at Romanko’s original
sentencing hearing. If Romanko believed the trial court erred in not determining her
present and future ability to pay, she should have raised that issue in her prior appeal.
She did not. Accordingly, her restitution argument is barred by the doctrine of res
judicata. See, e.g., State v. Downey, 12th Dist. Clermont No. CA2016-02-006,
2016-Ohio-5778, ¶ 19 (defendant’s claim that trial court erred in its determination of his
Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 72.
ability to pay restitution was barred by res judicata where he failed to directly appeal that
issue); State v. Luedeke, 2d Dist. Montgomery No. 25798, 2014-Ohio-959, ¶ 11 (res
judicata barred defendant’s motions related to alleged improper imposition of restitution
where he could have raised the issue of restitution on direct appeal); State v. Musselman,
2d Dist. Montgomery No. 25295, 2013-Ohio-1584, ¶ 25 (“[i]ssues pertaining to
restitution and fines are matters for direct appeal”; because defendant had an opportunity
to challenge the award of restitution during his direct appeal, his restitution arguments in
motion for modification or correction of his sentence were barred by res judicata).
{¶28} Furthermore, in this case, the record reflects that Romanko expressly agreed
to pay the restitution ordered by the trial court as part of her plea agreement. “‘When the
agreement to pay restitution to the victim is part and parcel of a plea agreement, there is
no reversible error in imposing a financial sanction, without first determining the
defendant’s ability to pay.’” State v. McMullen, 1st Dist. Hamilton No. C-140562,
2015-Ohio-3741, ¶ 5, quoting State v. Coburn, 6th Dist. Sandusky No. S-09-006,
2010-Ohio-692, ¶ 22; State v. St. Martin, 8th Dist. Cuyahoga No. 96834,
2012-Ohio-1633, ¶ 8 (“when the [s]tate and the defense enter into a stipulation as to the
amount of restitution, the stipulation is sufficient to support the trial court’s order and
precludes the defendant from complaining about it on appeal”); State v. Allen, 8th Dist.
Cuyahoga No. 96952, 2012-Ohio-1193, ¶ 9-10 (where defendant specifically agreed to
pay restitution as part of his plea deal, trial court did not need to determine his ability to
pay; “if the parties stipulate to the restitution amount, the defendant is precluded from
raising the court’s failure to determine his ability to pay as an assigned error”). “If there
is a plea agreement, the trial court may satisfy its burden to consider a defendant’s ability
to pay by asking the defendant if he understands that the restitution amount is part of the
sentence.” St. Martin at ¶ 6-10, citing State v. Myrick, 8th Dist. Cuyahoga No. 91492,
2009-Ohio-2030, ¶ 31.
{¶29} In this case, the trial court specifically asked Romanko whether she
understood that she was agreeing to pay restitution totaling $13,150 as part of her plea
and she stated that she did. Neither she nor her counsel raised any objection to the
payment of restitution or claimed that she would be unable to pay it. Accordingly,
Romanko’s fourth assignment of error is meritless.
Allied Offenses
{¶30} In her fifth and final assignment of error, Romanko argues that the trial
court improperly sentenced her to allied offenses of similar import. She contends that
the trial court erred in failing to merge her convictions for burglary with her conviction
for grand theft.
{¶31} Romanko did not raise an allied offense issue at her original sentencing
hearing. As such, the trial court made no finding regarding whether the burglary and
grand theft counts were allied offenses of similar import. Nor did Romanko raise an
allied offense issue in her prior appeal.
{¶32} In State v. Williams, Slip Opinion No. 2016-Ohio-7658, the Ohio Supreme
Court stated that where, as here, a trial court “fails to make any finding” regarding
whether two or more offenses are allied offenses of similar import, “imposing a separate
sentence for each offense is not contrary to law, and any error must be asserted in a timely
appeal or it will be barred by principles of res judicata.” Id. at ¶ 26, citing State v.
Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8-9. Because no allied
offense issue was raised at the original sentencing hearing, because the trial court
“fail[ed] to make any finding” at the original sentencing hearing regarding whether the
burglary and grand theft offenses were allied offenses of similar import, and because
Romanko did not claim that she had been improperly sentenced on allied offenses in her
prior appeal, her argument is barred by res judicata. Williams at ¶ 23-26. As such, her
allied offense argument is meritless.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MELODY J. STEWART, J. and
SEAN C. GALLAGHER, J., CONCUR