State v. Kelly
2011 Ohio 4902
Ohio Ct. App.2011Background
- Appellant Jerry M. Kelly was convicted on counts of complicity to burglary and complicity to theft, and pled guilty to vandalism in a separate case.
- The court sentenced Kelly to concurrent 5 years for burglary and 6 months for theft, plus a 12-month vandalism term consecutive to those, and ordered restitution and costs.
- The trial court ordered restitution to MetLife Insurance for a homeowner claim, which the State concedes was improper.
- The court failed to provide mandatory notification that unpaid court costs could lead to community service, triggering an error.
- Restitution to the Pickaway County Commissioners was contested on whether Kelly’s present and future ability to pay had been considered.
- The appellate court sustained the restitution-to-MetLife and costs-notification errors, but remanded for those issues and affirmed the rest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Restitution to third parties allowed? | Kelly's restitution to MetLife is improper under RC 2929.18(A)(1). | Restitution to third parties may be warranted under the statute in some contexts. | Restitution to MetLife reversed; improper. |
| Court costs notification requirement? | Court costs must be accompanied by mandatory warning about possible community service. | Court costs notification was adequate or harmless error. | Notification required; error sustained; costs-restitution issues remanded. |
| Consideration of ability to pay for restitution to the county? | Court must consider present and future ability to pay before restitution. | PSI and transcript show some financial consideration; substantial evidence supports. | Court properly ordered restitution to the county; overruled. |
| Ineffective assistance for failing to object to restitution or costs? | Counsel failed to object to improper restitution and costs procedures. | No ineffective assistance given the court’s analysis and record. | Rulings on restitution and costs sustained; arguments moot post-remand. |
Key Cases Cited
- State v. Moss, 186 Ohio App.3d 787 (2010-Ohio-1135) (restitution to third parties generally prohibited; mandatory considerations)
- State v. Slater, Scioto App. No. 01CA2806, 2002-Ohio-5343 (2002-Ohio-5343) (totality of record governs ability-to-pay considerations)
- State v. Henderson, Vinton App. No. 07CA659, 2008-Ohio-2063 (2008-Ohio-2063) (PSI details can establish ability-to-pay considerations)
- State v. Moore, Gallia App. No. 09CA2, 2009-Ohio-5732 (2009-Ohio-5732) (mandatory notification on costs and potential community service)
- State v. Welch, Washington App. No. 08CA29, 2009-Ohio-2655 (2009-Ohio-2655) (notice requirements for court costs)
- State v. Boice, Washington App. No. 08CA24, 2009-Ohio-1755 (2009-Ohio-1755) (court costs notification requirements)
- State v. Colon, 185 Ohio App.3d 671 (2010-Ohio-492) (restitution limitations involving third parties)