State v. Dunlap
2021 Ohio 3262
| Ohio Ct. App. | 2021Background
- Stephen Dunlap was indicted in multiple Huron County cases: CRI 2018-0335 (aggravated drug possession), CRI 2018-0905 (bad check), and CRI 2019-0111 (failure to appear after missing sentencing).
- Dunlap pled guilty in CRI 2018-0335 and later pled guilty in CRI 2019-0111; the State agreed to dismiss CRI 2018-0905 as part of the overall negotiations.
- At the plea colloquy, the parties and court stated that Dunlap agreed to pay $222 (later reflected as $222.50) in restitution to Buckeye Pub (the alleged bad-check victim) in exchange for dismissal of CRI 2018-0905.
- At sentencing (Nov. 24, 2020, with a nunc pro tunc entry on Jan. 14, 2021), the trial court imposed prison terms and ordered restitution of $222.50 to Buckeye Pub.
- Dunlap appealed, arguing the court erred by ordering restitution to a victim of a dismissed case and that the restitution agreement was never reduced to a written plea agreement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution may be ordered to a victim of a dismissed charge | Dunlap agreed to restitution as part of the plea; restitution is authorized by statute | It is improper to order restitution for damages arising from a dismissed charge | Court: No error — Dunlap agreed to restitution and the order is authorized by R.C. 2929.18(A)(1); a defendant may agree to restitution for dismissed charges as part of a plea. |
| Whether the restitution had to be in a written plea agreement to be enforceable | A written document is not required where the agreement was stated on the record under Crim.R. 11(F) | Restitution is invalid because it was not included in a written plea agreement for the failure-to-appear case | Court: No — an on-the-record verbal plea agreement satisfied Crim.R. 11(F); the record shows Dunlap’s assent. |
| Whether Dunlap may appeal the restitution order | The restitution was jointly recommended by defendant and prosecution and is authorized by law, so appeal is barred under R.C. 2953.08(D)(1) | The sentence is contrary to law and therefore appealable because agreement lacked a written contract | Court: Appeal barred under R.C. 2953.08(D)(1); alternatively, even if reviewable, order was not contrary to law. |
Key Cases Cited
- State v. Underwood, 922 N.E.2d 923 (Ohio 2010) (an agreed-upon sentence jointly recommended by defendant and prosecution is generally not reviewable on appeal)
- State v. Rohrbaugh, 944 N.E.2d 1230 (Ohio App.) (restitution generally limited to offenses for which defendant was convicted)
- State v. Burns, 976 N.E.2d 969 (Ohio App.) (defendant precluded from challenging restitution on appeal where record shows he agreed to pay restitution as part of plea)