State v. Roberts , 2014 Ohio 115 ( 2014 )

[Cite as State v. Roberts, 2014-Ohio-115.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99755
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LATONYA ROBERTS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-565707
BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.
RELEASED AND JOURNALIZED: January 16, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Latonya Roberts, appeals the judgment of the common
pleas court ordering her to pay an indefinite amount of restitution to the victim of her
criminal act. For the following reasons, we reverse and remand the matter for further
proceedings consistent with this opinion.
{¶2} This is an appeal from a restitution order imposed as part of a sentence for
aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b) in which the victim
suffered serious physical harm. At the time of sentencing, the trial court had been given
no evidence of the precise amount of damages suffered by the victim. Nevertheless, the
trial court ordered restitution in an indefinite amount for payment of the victim’s medical
bills.1
{¶3} Appellant now brings this timely appeal, challenging the trial court’s
restitution order.
Law and Analysis
{¶4} For the purposes of judicial clarity, we consider appellant’s first and second
assignments of error together. In her first assignment of error, appellant argues that the
trial court erred when it ordered restitution in an indefinite amount that would be
determined in the future. In her second assignment of error, appellant argues that the
The trial court placed appellant under community control sanctions for a
1
period of five years.
trial court erred in failing to hold an adequate restitution hearing when the amount of
restitution was never established.
{¶5} On appeal, we review a lower court’s order of restitution for an abuse of
discretion. State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995); see
also State v. Berman, 8th Dist. Cuyahoga No. 79542, 2002-Ohio-1277. An abuse of
discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State
v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). However, appellant did not object
at her sentencing hearing to the order of restitution. Thus, she waived all but plain error.
State v. Jarrett, 8th Dist. Cuyahoga No. 90404, 2008-Ohio-4868, ¶ 13, citing Marbury.
{¶6} Crim.R. 52(B) provides that “plain error or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” However,
in order to prevail under a plain error analysis, the appellant bears the burden of
demonstrating that the outcome of the proceedings clearly would have been different but
for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of
the syllabus.
{¶7} R.C. 2929.18(A) allows a sentencing court, as part of a sentence, to impose
“restitution by the offender to the victim of the offender’s crime * * * in an amount based
on the victim’s economic loss.” R.C. 2929.01(L) defines “economic loss” as “any
economic detriment suffered by the victim as a result of the commission of a felony and
includes any * * * medical cost * * * incurred as a result of the commission of the
felony.”
{¶8} Prior to ordering restitution, however, a sentencing court must engage in a
“due process ascertainment that the amount of restitution bears a reasonable relationship
to the loss suffered.” State v. Borders, 12th Dist. Clermont No. CA2004-12-101,
2005-Ohio-4339, quoting Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271. “The
amount of restitution must be supported by competent, credible evidence from which the
court can discern the amount of restitution to a reasonable degree of certainty.” State v.
Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999). “When an award of
restitution is not supported by such evidence, it is an abuse of discretion by the court that
alters the outcome of the proceeding, thus constituting plain error.” State v. Peck, 6th
Dist. Sandusky No. S-12-046, 2013-Ohio-4835, ¶ 19.
{¶9} In the instant case, the trial court ordered appellant to pay restitution to the
victim to cover the costs of medical bills. Appellant argues, however, and the state
concedes, that no competent or credible evidence was submitted from which the court
could discern the specific amount of restitution to a reasonable degree of certainty.
{¶10} The trial court does not need to conduct a hearing to ascertain the
reasonableness of the restitution if there is enough evidence in the record to substantiate
the relationship of the offender’s criminal conduct with the amount of the victim’s loss.
State v. Brumback, 109 Ohio App.3d 65, 83, 671 N.E.2d 1064 (9th Dist.1996). In the
instant case, there is no dispute that the victim suffered severe injuries that required
extensive medical treatment. However, the record is devoid of any evidence regarding
the value of the economic loss suffered.2
{¶11} Accordingly, we find that the trial court committed plain error in ordering an
indefinite amount of restitution without documentation or testimony evidencing the actual
economic loss suffered by the victim.
{¶12} Appellant’s first and second assignments of error are sustained.
{¶13} Based on the foregoing, the trial court’s order of restitution is reversed, and
the matter is remanded for an evidentiary hearing on the issue of restitution.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
2At
the sentencing hearing, the trial court acknowledged that the victim had
not submitted documentation of her medical bills.