State v. Veto
2013 Ohio 1797
Ohio Ct. App.2013Background
- Veto was convicted in an indictment arising from a January 2012 firebombing of a Russell Avenue house in Parma.
- Codefendant Piscura acted with Veto; Veto masterminded the plan and Piscura assisted.
- Veto pled guilty in June 2012; sentencing occurred July 2012 after presentence and mitigation reports.
- Multiple counts included aggravated arson, attempted murder, unlawful possession of a dangerous ordnance, and possessing criminal tools.
- The trial court sentenced Veto to nine years (Counts 2, 4, 6), seven years (Count 7), and six months (Counts 8, 9), all concurrent; restitution issue arose in sentencing.
- On appeal, court affirming in part, reversing in part, remanded for restitution hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Veto’s sentence proper under R.C. 2929.11 proportionality? | Veto contends nine-year total is disproportionate to Piscura’s six years. | Disparate sentences for similarly situated offenders may be improper. | Not clearly disproportionate; factors justify divergence; first assignment overruled. |
| Was restitution properly ordered in open court under R.C. 2929.18? | Restitution was properly authorized by statute. | Court failed to announce restitution in open court. | Remand required to address restitution in open court; second assignment sustained. |
| Did the court adequately consider ability to pay restitution under R.C. 2929.19(B)(5) on remand? | Court must evaluate present and future ability to pay. | N/A or moot if restitution addressed on remand. | Moot due to restitution remand; third assignment moot. |
Key Cases Cited
- State v. Edwards, 2007-Ohio-6068 (8th Dist. No. 89181 (Ohio 2007)) (preservation of proportionality issue requires some record support)
- State v. Lang, 2010-Ohio-433 (8th Dist. No. 92099 (Ohio 2010)) (proportionality analysis for similar offenses)
- State v. Cooper, 2010-Ohio-1983 (8th Dist. No. 93308 (Ohio 2010)) (comparison of sentences for differing offenders)
- State v. Berlingeri, 2011-Ohio-2528 (8th Dist. No. 95458 (Ohio 2011)) (disparate sentences may be justified by distinguishing factors)
- State v. St. Martin, 2012-Ohio-1633 (8th Dist. No. 96834 (Ohio 2012)) (no requirement that co-defendants receive equal sentences)
- State v. Chaffin, 30 Ohio St.2d 13, 282 N.E.2d 46 (1972) (principle on proportionality and sentencing guidelines)
- State v. Burrell, 2011-Ohio-5655 (8th Dist. No. 96123 (Ohio 2011)) (reversal/remand when restitution ordered in journal entry not at hearing)