State v. Weimert, 2011 Ohio 2846

Weimert and Hall admitted burglaries in Auglaize County; Ashley Hall supplied information to Sawmiller.
Weimert and Hall were interviewed; Weimert ultimately confessed to the burglaries in Auglaize County.
Weimert was indicted on ten counts (varying degrees); pleaded not guilty initially.
Plea agreement: Weimert pled guilty to three counts of burglary and one theft, all third degree; restitution for all indicted offenses; other charges dismissed; two additional charges not indicted were not pursued.
Trial court sentenced Weimert to 17 years total (4 years on counts 1,3,9; 5 years on count 10) consecutive; restitution of $6,050 including $150 for unindicted offenses.
On appeal, Weimert raises four assignments of error challenging consecutive sentences, restitution for unindicted offenses, ability-to-pay, and counsel’s effectiveness regarding costs.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Consecutive sentences required findings	Weimert contends Foster/Hodge require findings for consecutive terms.	Weimert argues public policy favors original concurrent-sentence presumption.	Overruled; sentence imposed under law in effect at sentencing stands.
Restitution for unindicted offenses	Restitution for all indicted counts supports agreement; unindicted offenses may be included via contract.	Restitution cannot include damages from offenses not indicted or convicted unless contract permits.	Sustained; restitution for unindicted offenses reversed.
Restitution – ability to pay	Issue arises after reversing assignment 2; demonstrated ability to pay should be considered.	Court should assess ability to pay before restitution.	Moot; remanded due to error in assignment 2, so this issue is not reached.
Ineffective assistance re costs	Trial counsel failed to object to costs despite indigence.	Objection would have been unsuccessful; counsel not deficient.	Overruled; lack of successful objection means no deficient performance.

State v. Foster, 109 Ohio St.3d 1 (2006-Ohio-856) (consecutive-sentence findings questioned but still controlling law in Foster framework)
State v. Hodge, 128 Ohio St.3d 1 (2010-Ohio-6320) (public policy did not supersede Foster; reforms require legislative change)
State v. Rohrbaugh, 191 Ohio App.3d 117 (2010-Ohio-6375) (restitution generally limited to offenses for which convicted)
State v. Williams, 2004-Ohio-2801 (3d Dist. No. 8-03-25) (defendant can agree to restitution for dismissed charges via plea)
State v. Strickland, 2008-Ohio-5968 (10th Dist. No. 08AP-164) (contract-law principles apply to negotiated plea restitution)
State v. Bethel, 2006-Ohio-4853 (110 Ohio St.3d 416) (plea contracts govern restitution terms)
State v. White, 2004-Ohio-5989 (104 Ohio St.3d 580) (costs assessed against convicted defendants; indigence does not bar costs)
State v. Layne, 2010-Ohio-2308 (12th Dist. CA No. CA2009-07-043) (trial counsel's failure to object to costs not per se ineffective assistance)
State v. Cassano, 2002-Ohio-3751 (96 Ohio St.3d 94) (ineffective assistance standard requires deficient performance and prejudice)
State v. Baughman, 2010-Ohio-4951 (3d Dist. No. 1-10-34) (ineffective assistance requires reasonable probability of different outcome)