State v. Miller , 2009 Ohio 6157 ( 2009 )

[Cite as State v. Miller, 2009-Ohio-6157.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-09-32
v.
JAMES D. MILLER, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2008 0395
Judgment Affirmed
Date of Decision: November 23, 2009
APPEARANCES:
Gregory W. Donohue for Appellant
Jana E. Emerick for Appellee
Case No. 1-09-32
WILLAMOWSKI, J.
{¶1} Defendant-appellant James D. Miller (“Miller”) brings this appeal
from the judgment of the Court of Common Pleas of Allen County which required
him to pay the victim, John Watkins (“Watkins”), $10,000 in restitution. For the
reasons set forth below, the judgment is affirmed.
{¶2} On September 2, 2008, Miller was operating a truck which collided
with a motorcycle being operated by Watkins. Miller fled the scene and
proceeded to destroy the truck to hide his involvement in the accident. Miller was
subsequently indicted on three counts: 1) tampering with evidence in violation of
R.C. 2921.12(A)(1), a third degree felony; 2) vehicular assault in violation of R.C.
2903.08(A)(2)(b) & (c)(1), a third degree felony; and 3) failure to stop after an
accident in violation of R.C. 4549.02(A) & (B), a fifth degree felony. Miller
entered pleas of not guilty to all counts on October 27, 2008. On April 16, 2009,
Miller, pursuant to a negotiated plea, entered guilty pleas to the first and third
count. The second count was dismissed. The agreement also provided that the
State would make no sentencing recommendation, but would seek restitution. The
guilty pleas were accepted by the trial court. On May 21, 2009, a sentencing
hearing was held. The trial court sentenced Miller to a total prison term of four
and a half years and ordered Miller to pay $10,000 in restitution to Watkins.
Miller appeals from this sentence and raises the following assignments of error.
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Case No. 1-09-32
First Assignment of Error
The trial court erred in ordering [Miller] to pay restitution for
alleged out of pocket medical expenses, of [Watkins], victim of
Count II, which was dismissed and not a victim of the crimes
[Miller] was convicted of.
Second Assignment of Error
The trial court erred by ordering restitution, for alleged out of
pocket medical expenses, unsubstantiated by the record and
without competent, credible evidence, violating [Miller’s] rights
under the United States and Ohio constitutions, to due process,
requiring the amount of restitution ordered to bear a reasonable
relation to loss.
{¶3} In the first assignment of error, Miller alleges that the trial court
erred in ordering him to pay restitution to Watkins since he was not convicted of
the crime of vehicular assault. The imposition of financial sanctions, including
restitution, is governed by R.C. 2929.18.
(A) Except as otherwise provided in this division and in
addition to imposing court costs pursuant to [R.C. 2947.23], the
court imposing a sentence upon an offender for a felony may
sentence the offender to any financial sanction or combination
of financial sanctions authorized under this section * * *.
Financial sanctions that may be imposed pursuant to this
section include, but are not limited to, the following:
(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
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Case No. 1-09-32
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.
R.C. 2929.18(A). “[R]estitution can be ordered only for those acts that constitute
the crime for which the defendant was convicted and sentenced.” State v. Hafer,
144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56. A trial court abuses
its discretion if it imposes restitution which is not reasonably related to the
offenses for which the defendant was convicted. Id. See also, State v. Williams
(1986), 34 Ohio App.3d 33, 516 N.E.2d 1270 and State v. Williams, 3d Dist. No.
8-03-25, 2004-Ohio-2801.
{¶4} Miller argues that the trial court imposed restitution for damages
arising from the vehicular assault count, which was dismissed. However, the
count of leaving the scene of an accident which resulted in serious physical harm
to a person was not dismissed. Miller entered a guilty plea to this count and the
plea was accepted by the trial court. In order to leave the scene of an accident,
there must first be an accident. The indictment clearly specified that the accident
resulted in serious physical harm to a person. Thus, the restitution order requiring
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Case No. 1-09-32
Miller to pay for the damages caused by the accident is reasonably related to this
conviction. The first assignment of error is overruled.
{¶5} Miller next claims that the trial court erred in ordering the amount
of restitution. The court may base the amount of restitution on an amount
recommended by the victim, set forth in a PSI, estimates, or receipts. R.C.
2929.18. The only limitation on the amount is that it may not exceed the amount
of economic loss suffered by the victim as a result of the offense. Id. Before the
sentencing hearing, the trial court ordered that a pre-sentence investigation
(“PSI”) be conducted. In the PSI was documentation of the numerous medical
expenses incurred by the victim of the accident. These expenses were more than
$100,000. Sentencing Tr. 5. Watkins also testified that he had spent
approximately $10,000 out of pocket and that there were still some outstanding
bills. Based upon this testimony, the trial court ordered Miller to pay restitution
to Watkins in the amount of $10,000. This evidence was admitted without
objection to the amount of restitution. “A failure to object to the trial court’s
award of restitution waives all but plain error.” State v. Stewart, 3d Dist. No. 16-
08-11, 2008-Ohio-5823. Since there was some testimony as to this amount, no
plain error exists. The trial court, therefore, did not err in ordering this amount of
restitution and the second assignment of error is overruled.
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Case No. 1-09-32
{¶6} Having found no error prejudicial to Miller, the judgment of the
Court of Common Pleas of Allen County is affirmed.
Judgment Affirmed
PRESTON, P.J. and ROGERS, J., concur.
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