State v. Oliver
2021 Ohio 2543
| Ohio Ct. App. | 2021Background
- Gregory Oliver, owner of Oliver Financial Services, was charged by information with six counts of third-degree felony theft for taking over $1 million from elderly clients between Nov. 2011 and Dec. 2018.
- In March 2020 Oliver waived indictment and pled guilty to the six-count information; the plea form was amended on the record to state restitution was not limited to the six counts and identified 18 victims on the record.
- At the plea hearing the prosecution stated it would seek $515,761.76 in restitution (excluding victims with pending civil suits); defense acknowledged the restitution amount was fluid.
- At sentencing the trial court ordered full restitution of $990,027.83 (including all 18 victims) and explained victims with pending civil suits could still pursue civil recovery; defense agreed to the numbers on the record.
- The court sentenced Oliver to 18 months on each count, to run consecutively (aggregate nine years); Oliver appealed raising six assignments of error challenging restitution, notice, plea voluntariness, consideration of ability to pay, consecutive sentences, and ineffective assistance of counsel.
Issues
| Issue | State's Argument | Oliver's Argument | Held |
|---|---|---|---|
| 1. Restitution amount | State: Court may order restitution based on victims' actual loss; plea did not cap restitution at $515,761.76. | Oliver: Plea agreement and plea-form notations limited restitution to $515,761.76; ordering a higher amount breached the plea and was plain error. | Court: No breach or plain error; plea form and colloquy show restitution amount was undecided and not capped; $990,027.83 was permissible. |
| 2. Sufficiency of information / notice of victims | State: Naming victims is not required when identity is not an element; identities were read into the record at plea and sentencing. | Oliver: Information failed to specify which victims correspond to the six counts, implicating double jeopardy and due process. | Court: Rejected; information tracked statutory elements, victims' identities were placed on the record, and Oliver waived indictment and did not request amendment. |
| 3. Voluntariness of guilty pleas (Crim.R.11) | State: Trial court complied with Crim.R.11; defendant was informed restitution was sought and that amount was fluid. | Oliver: Plea was not knowing/voluntary because court later ordered restitution exceeding the stated $515,761.76 and information was vague. | Court: Pleas were knowing, intelligent, and voluntary; Crim.R.11 requirements satisfied; no prejudice shown. |
| 4. Consideration of ability to pay | State: Marsy’s Law guarantees victims 'full and timely restitution' and supersedes any statute that would permit reducing restitution based on ability to pay. | Oliver: Trial court erred by failing to consider present and future ability to pay under R.C. 2929.19(B)(5). | Court: Marsy’s Law control; to the extent R.C. 2929.19(B)(5) permits reducing restitution for ability to pay it conflicts with the Ohio Constitution and is superseded; no error. |
| 5. Consecutive sentences | State: Consecutive terms necessary to punish and protect public; harm was great and offenses were part of course of conduct. | Oliver: Consecutive sentences disproportionate; uncertainty about which victims correspond to counts and some losses were small or already paid. | Court: Affirmed consecutive terms; record supports findings under R.C. 2929.14(C)(4) including great financial and emotional harm and danger to public. |
| 6. Ineffective assistance of counsel | State: No trial error occurred; counsel therefore was not ineffective for failing to object. | Oliver: Counsel was ineffective for not objecting to restitution amount, failure to demand ability-to-pay consideration, and not requiring victim identification. | Court: Counsel not ineffective because underlying objections lacked merit and no prejudice shown. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance standard)
- Hamling v. United States, 418 U.S. 87 (indictment must contain elements and fairly inform defendant)
- State v. Bethel, 110 Ohio St.3d 416 (plea agreements contract law principles)
- State v. Sarkozy, 117 Ohio St.3d 86 (Crim.R.11 plea-colloquy requirements)
- State v. Lalain, 136 Ohio St.3d 248 (restitution hearing required when contested)
- State v. Dangler, 162 Ohio St.3d 1 (prejudice test for plea-challenge appeals)
- Centerville v. Knab, 162 Ohio St.3d 623 (Marsy’s Law does not itself supply procedural mechanism for restitution)