2021 Ohio 1059
Ohio Ct. App.2021Background
- Defendant Howard S. Long pleaded guilty to one count of grand theft of a motor vehicle after stealing a vehicle that contained the victim’s toolbox, tools (including a credit-card reader used for business), and groceries; some items were not recovered.
- Plea agreement dismissed a separate theft count; state recommended residential community control and agreed to attempt to determine restitution before sentencing.
- At sentencing the trial court reviewed the PSI, victim testimony (item values, deductible, and replacement costs), and arguments from counsel, and imposed three years community control with 145 days in jail (115 days credit) and $1,190 restitution to the victim.
- The trial court issued a written restitution order explaining the victim’s losses and citing R.C. 2913.61(D)(2) for replacement-value measure of professional equipment.
- Long appealed solely arguing the court failed to consider his present and future ability to pay restitution and abused its discretion in doing so; the appellate court reviewed the record and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court considered present and future ability to pay restitution | State: court complied with R.C. 2929.19(B)(5) by considering PSI and statements | Long: court failed to consider his future ability to pay and abused discretion | Held: Court explicitly considered PSI, heard argument, and noted ability to pay in judgment entry; requirement satisfied |
| Whether failure to object below precludes relief / plain error review | State: Long did not object, so only plain error review applies | Long: asserts substantive error in imposition of restitution despite lack of objection | Held: Failure to object waives error except for plain error; appellant did not meet plain-error threshold |
| Applicable standard of appellate review for restitution post–H.B.86 | State: appellate review governed by R.C. 2953.08(G)(2) rather than abuse-of-discretion | Long: implicitly argued trial-court error under abuse-of-discretion framework | Held: Review under R.C. 2953.08(G)(2); court may only act if sentence is clearly and convincingly contrary to law or record lacks required findings; those bases were not met |
| Interaction of statutory ability-to-pay requirement with victim’s constitutional right to restitution (Marsy’s Law) | State raised facial as-applied concern that Marsy’s Law may guarantee full restitution to victims | Long did not press a Marsy’s Law claim as a basis for reversal | Held: Court noted potential tension but found no conflict in this case and declined to resolve broader Marsy’s Law issue |
Key Cases Cited
- State v. Ciresi, 162 N.E.3d 846 (11th Dist. 2020) (explains that post–H.B.86 appellate review of felony sentences uses R.C. 2953.08(G)(2))
- State v. Landrum, 53 Ohio St.3d 107 (Ohio 1990) (plain-error/criminal-rule 52(B) standard: notice with utmost caution to prevent manifest miscarriage of justice)