State v. Starr , 2015 Ohio 3675 ( 2015 )

[Cite as State v. Starr, 2015-Ohio-3675.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102593
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
WILLIAM V. STARR III
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-582895-A
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: September 10, 2015
ATTORNEY FOR APPELLANT
Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Frank Romeo Zeleznikar
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Appellant William V. Starr III appeals the judgment of the trial court that
ordered him to pay restitution. For the reasons stated herein, we affirm.
{¶2} After being charged under a multicount indictment for offenses of rape and
kidnapping, appellant entered a plea of guilty to amended counts of gross sexual
imposition and abduction, and the remaining counts were nolled. The offenses were
merged as allied offenses, and the state elected to have appellant sentenced on the count
of gross sexual imposition. The trial court imposed an 18-month prison sentence, with
five years’ mandatory postrelease control. Appellant was determined to be indigent, and
costs were waived. The court ordered appellant to pay restitution to the victim in the
amount of $13,220.63. Appellant was found to be a Tier I sex offender.
{¶3} At the sentencing hearing, the state indicated that the victim was seeking
restitution in the amount of $13,220.63, which amount reflected “the hospital visit for the
night of the incident, subsequent blood work that was done of the victim, as well as
subsequent psychotherapy appointments that the victim attended from the date of the
incident up until now.” The state indicated that the victim did not have insurance and
that nothing was covered by insurance. Defense counsel was not provided with a copy of
the invoices until the sentencing hearing. Defense counsel indicated that the court could
proceed while he reviewed the documents. When the court inquired if defense counsel
agreed with the amount of restitution, defense counsel stated “[i]t appears to add up to
that.” When defense counsel mentioned that Medicaid may be subsidizing part of the
amount, the state denied this. The court asked if the bills were all to be paid by the
victim, and the state confirmed. Upon the state’s representations, defense counsel agreed
the amount was accurate.
{¶4} Appellant timely filed this appeal. He raises two assignments of error for
our review. Under his first assignment of error, appellant claims “the trial court erred in
ordering restitution in an amount not established to a reasonable degree of medical
certainty.”
{¶5} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a
sentence “in an amount based on the victim’s economic loss.” If the court imposes
restitution, the court is required to determine the amount of restitution to be made by the
offender as follows:
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 restitution, the
court shall hold a hearing on restitution if the offender, victim, or survivor
disputes the amount.
R.C. 2929.18(A)(1).
{¶6} A trial court has discretion to order restitution, but the amount may not be
greater than the amount of economic loss suffered as a direct and proximate result of the
commission of the offense. State v. Lalain, 136 Ohio St. 3d 248, 2013-Ohio-3093, 994
N.E.2d 423, ¶ 3. Further, the amount of restitution ordered 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. Roberts, 8th Dist. Cuyahoga No. 99755,
2014-Ohio-115, ¶ 7-8.
{¶7} The record in this case reflects that invoices were submitted to substantiate
the medical expenses incurred by the victim as a direct and proximate result of the
commission of the offense. Although defense counsel was not provided a copy of the
invoices until the time of the hearing, he was able to review them and determine that the
amount of restitution sought was accurate. The state represented that there was no
insurance coverage. Because there was no dispute as to the amount of restitution, a
hearing was not required. We find competent, credible evidence was submitted from
which the trial court could have discerned the specific amount of restitution to a
reasonable degree of certainty.1 Accordingly, we overrule the first assignment of error.
{¶8} Under his second assignment of error, appellant claims he was denied his
right to effective assistance of counsel “when trial counsel failed to request a restitution
hearing in accordance with R.C. 2929.18(A)(1).
{¶9} In order to substantiate a claim of ineffective assistance of counsel, the
appellant must show “(1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
1
Although the appellant’s ability to pay restitution has not been raised, we note that the
record reflects he was college educated and working as a mechanical engineer.
reasonable probability that but for counsel’s errors, the proceeding’s result would have
been different.” State v. Perez, 124 Ohio St. 3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶
200, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus. The defendant has the burden of proving his
counsel rendered ineffective assistance. Perez at ¶ 223.
{¶10} As discussed above, the state established the amount of restitution by
submitting invoices of the medical expenses incurred by the victim as a result of the
offense. These invoices were reviewed by defense counsel, who found the amount
appeared to be accurate. Further, the trial court heard from the state that the victim did
not have insurance and the bills were not subsidized by Medicaid. There is simply no
basis to conclude that defense counsel should have requested a hearing on restitution or
that he could have presented evidence to dispute the restitution order. We are unable to
find defense counsel’s conduct in failing to request a hearing on restitution fell below an
objective standard of reasonableness such that appellant was prejudiced. The second
assignment of error is overruled.
{¶11} Judgment affirmed.
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.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR