2019 Ohio 3993
Ohio Ct. App.2019Background
- Mark Perkins, an employee at Friendship Acres Campground, had access to an on‑site lottery machine and printed and redeemed lottery tickets without payment. Videotape and account reconciliation implicated him. The lottery commission determined approximately $27,718 was missing.
- A Portage County grand jury indicted Perkins for grand theft (fourth‑degree felony), alleging theft of 310 tickets valued at $27,718 between Dec. 11, 2016 and Apr. 11, 2018.
- Perkins pled guilty. The court referred the case for a presentence investigation and held a restitution hearing where the campground owner (Chalmers) testified to a $27,718 loss attributable to Perkins. Perkins disputed some dates and suggested machine malfunction but offered no contrary loss estimate.
- The trial court ordered $27,718 restitution, 60 days in jail (work release), community control (intensive and general supervision), a $300 fine, court costs, and an "indigent assessment and recoupment fee" (docketed as a $75 indigent defense recoupment fee).
- Perkins appealed, raising three assignments: (1) restitution for incidents not listed in the indictment, (2) lack of post‑release control notifications, and (3) authority/ability‑to‑pay inquiry for the assessment/recoupment fee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution amount exceeded authorized loss | State: restitution based on victim testimony and evidence supports $27,718 | Perkins: restitution covers dates not in indictment; supporting documents not admitted | Affirmed — $27,718 supported by competent, credible evidence (victim testimony); Perkins failed to rebut |
| Whether court erred by omitting post‑release control notifications | State: not applicable because no prison term imposed | Perkins: court failed to give required PRC warnings at plea/sentencing | Affirmed — PRC rules do not apply to non‑prison sentence; warnings not required here |
| Whether trial court lawfully imposed "indigent assessment and recoupment fee" | State: fee may represent reimbursement under R.C. 2941.51(D) | Perkins: no statutory basis shown; no specific ability‑to‑pay finding | Reversed in part and remanded — court committed plain error by not identifying statutory authority; if under R.C. 2941.51(D) must determine amount, enter judgment, and note collection via State Public Defender per R.C. 120.04(B)(5) |
Key Cases Cited
- State v. Marcum, 146 Ohio St.3d 516 (2016) (standard for appellate review of felony sentences under R.C. 2953.08)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (plain‑error test elements)
- State v. Warner, 55 Ohio St.3d 31 (1990) (restitution must be supported by competent, credible evidence)
- State v. Tench, 156 Ohio St.3d 85 (2018) (plain‑error framework reaffirmed)