State v. Twitty
2011 Ohio 4725
Ohio Ct. App.2011Background
- Twitty convicted by plea to aggravated robbery, a failure to comply with an order of a police officer, and one kidnapping count; aggregate sentence of four years with concurrent aggravated robbery/kidnapping term and consecutive to failure-to-comply term; restitution of $4,077 to Third Base Drive Thru; court disapproved transitional control in the termination entry; on appeal, challenge to transitional control disapproval and to restitution amount and the defendant’s ability to pay; the appellate court partially reverses and remands.
- The plea negotiations reduced counts and firearm specifications; the State dismissed remaining charges while preserving an aggregate five-year ceiling; the trial court sentenced within the plea agreement.
- The trial court stated disapproval of transitional control in the termination entry, not at sentencing, triggering an appealable error under State v. Howard.
- Evidence showed PSI indicated education and employment history suggesting potential ability to pay; insurance deductible capped victim loss at $1,000, raising double-recovery concerns if restitution remained at $4,077.
- The court affirmed the ability-to-pay consideration but held the restitution amount improper for double recovery and remanded to reduce to $1,000 under the victim’s insurance deductible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the termination entry may disapprove transitional control | Twitty argues the disapproval was premature in the termination entry | Twitty contends the court can disapprove transitional control in termination | Merit to the extent disapproval occurred in termination entry (reversed) |
| Whether the restitution amount was supported by evidence and not a double recovery | Twitty contends restitution exceeds loss and violates proof requirements | State contends restitution based on economic loss supported by record | Restitution improper as it permitted double recovery; remanded to $1,000 |
| Whether the court properly considered the defendant’s ability to pay | State concedes consideration occurred via PSI; no further requirement | Twitty argues the court failed to adequately consider ability to pay | Court did consider ability to pay; no plain error on that point. |
Key Cases Cited
- State v. Howard, 190 Ohio App.3d 734 (2010-Ohio-5283) (premature disapproval of transitional control in termination entry)
- Ratliff, 2011-Ohio-2313 (Clark App. No. 10-CA-61) (ability to pay must be considered; hearing not required)
- Martin, 140 Ohio App.3d 326 (2000–Ohio–1942) (ability to pay considered from PSI)
- Miller, 2010-Ohio-4760 (Clark App. No. 08CA0090) (indigent status does not shield from sanctions)
- Cochran, 2010-Ohio-3444 (2d Dist. No. 09CA0024) (restitution must be supported by competent, credible evidence)
- Clayton, 2009-Ohio-7040 (Montgomery App. No. 22937) (restitution cannot exceed victim’s economic loss; deduct insured payments)
- Colon, 2010-Ohio-492 (12th Dist. No.) (avoid double recovery when insurance paid)
- Long, 1978 (Ohio St.) (due process standard for restitution amount)