State v. Nickens, 2017 Ohio 1448

Background

Angela Nickens, a Walmart cashier, was convicted by a jury of theft between $1,000 and $7,500 after surveillance and Walmart representatives established she stole $1,640 and admitted it during Walmart’s investigation.
She was sentenced to a fifth-degree felony conviction with community-control sanctions that included 52 weekend jail terms and restitution of $1,640 plus fines/costs.
Nickens appeals only her sentence (not guilt), raising three challenges: (1) weekend jail with early-release-for-payment violated constitutional protections for indigent defendants; (2) restitution was unlawful because Walmart likely had insurance; and (3) trial counsel was ineffective for not requesting a restitution hearing.
The trial court relied on competent, credible evidence (Walmart testimony) to fix restitution at $1,640; Nickens did not object to the amount at sentencing.
The court affirmed: weekend residential sanctions are authorized by statute; no plain error in restitution because the record contains no evidence that Walmart was reimbursed by insurance; and counsel was not deficient because no contested restitution amount required a hearing and Nickens’ counsel expressly agreed she would pay restitution.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Nickens)	Held
Whether imposing weekend residential jail with early-release-for-payment violates constitutional protections for indigents	Sentencing court may impose residential sanctions including jail as part of community control; early-release option is leniency and does not convert sentence into punishment based on indigence	Indigent status renders weekend jail with early-release-for-payment unconstitutional because release depends on ability to pay	Affirmed — court authorized to impose residential sanctions; early-release-for-payment was leniency and did not make sentence unconstitutional
Whether court must inquire into or hold hearing on victim insurance before imposing restitution	Restitution may be imposed based on competent, credible evidence of victim’s loss; absent record evidence of insurance reimbursement, no plain error	Restitution invalid because large companies like Walmart presumably have insurance that would eliminate or reduce economic loss; court should have inquired	Affirmed — no plain error; record contained competent evidence of $1,640 loss and no evidence insurance reimbursed Walmart
Whether failure to request a restitution hearing violated R.C. 2929.18 and was ineffective assistance	Hearing required only if restitution amount is contested; counsel acknowledged client would pay restitution and did not contest amount	Counsel was ineffective for not requesting a hearing to test amount/insurance coverage	Affirmed — no ineffective assistance: counsel’s performance not deficient and/or error invited by Nickens’ agreement to pay restitution
Whether any plain error occurred as to restitution amount	Plain error standard applies because Nickens did not object; must show outcome would clearly have been different	Failure to inquire into insurance coverage is presumptively prejudicial (argued relying on earlier precedent)	Affirmed — earlier bright-line rule requiring inquiry into insurance (Mobley-Melbar) was overruled by Rogers; possibility of insurance alone does not establish plain error

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance standard of deficient performance and prejudice)
State v. Rogers, 143 Ohio St.3d 385 (2015) (plain-error review cannot be applied via a presumptive, hybrid rule; record must show error affecting outcome)
State v. Harrison, 122 Ohio St.3d 512 (2009) (plain-error standard requires showing outcome would have been different)
State v. Gears, 135 Ohio App.3d 297 (1999) (restitution must be supported by competent, credible evidence to a reasonable degree of certainty)
State v. Calhoun, 86 Ohio St.3d 279 (1999) (presumption that licensed counsel is competent)