In re T.J.
Rendered on the 17th day of July, 2015.
KATHERINE C. MUELLER, Atty. Reg. No. 0092447, Assistant Prosecuting Attorney, 200 N. Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
SHERYL TRZASKA, Atty. Reg. No. 0079915, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215
Attorney for Defendant-Appellant
FROELICH, P.J.
{¶ 1} Appellant, T.J., admitted in Case No. 2014 JA 61 to engaging in a pattern of corrupt activity, a felony of the second degree if committed by an adult, and to a probation violation in Case No. 2012 JA 146. As part of T.J.’s plea, the state dismissed 83 additional charges against T.J. in Case No. 2014 JA 61, including several charges of
{¶ 2} T.J. appeals from his adjudication, raising three assignments of error.
I. Restitution Order
{¶ 3} T.J.’s first and second assignments of error state:
The juvenile court committed plain error when it ordered T.J. to pay an amount of restitution which exceeded the actual economic loss suffered by the victims. * * *
The juvenile court committed plain error when it failed to consider community service in lieu of financial sanctions before ordering T.J. to pay restitution * * *.
{¶ 4}
{¶ 5} In determining the amount of restitution, the juvenile court may base its order on an amount recommended by the victim, the offender, a presentence investigation report, “estimates or receipts indicating the cost of repairing or replacing
{¶ 6} The juvenile court “may hold a hearing if necessary to determine whether a child is able to pay a sanction” imposed.
{¶ 7} At T.J.’s disposition hearing, the State offered Exhibit 1, which indicated the names of all of the victims, identified those that had returned victim impact statements, and stated the amount of economic loss suffered by four of the victims. The record includes the victim impact statements, which also itemized the economic losses. The State requested restitution totaling $5,946.17. Defense counsel addressed the issue of restitution, stating,
We have indeed received the State’s request for a restitution of $5,946.17. I’ve shown those to my client. I’ve looked at them myself as well. I’ve shown them to or at least shared the amount with his mother. I don’t believe any of us are objecting to the amount of restitution requested. [T.J.] knows that he’s going to have to pay that.
The juvenile court orally ordered T.J. to pay restitution to the four individuals in the amounts outlined in Exhibit 1. Consistent with Exhibit 1, the juvenile court ordered in its
{¶ 8} On appeal, T.J. does not dispute the restitution orders regarding Victims #1 and #4. However, T.J. claims that the juvenile court’s restitution orders with respect to Victims #2 and #3 exceed their economic loss. He further argues that the juvenile court failed to consider community service in lieu of restitution.
{¶ 9} T.J. did not object to the juvenile court’s imposition of restitution at the disposition hearing, and we thus review the court’s restitution order for plain error. In order to constitute plain error, the error must be an obvious defect in the trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22;
{¶ 10} First, we find no merit to T.J.’s argument that the juvenile court committed plain error by failing to consider community service as an alternative to restitution.
{¶ 11} Second, we find no plain error in the juvenile court’s order of restitution in the amount of $289 to Victim #2 and $4,553.67 to Victim #3.
{¶ 12} Victim #2’s victim impact statement (which was prepared by his wife) indicated that their car was stolen from their driveway between late March 28 and early March 29, 2014. The morning of March 29, Victim #2 rented another car for the weekend to assure transportation for their son, who has physical and intellectual disabilities. A receipt from Enterprise Rent-A-Car reflected that the total cost of the three-day rental was $149.18.
{¶ 13} The police recovered the stolen vehicle during the afternoon of March 29 and returned it to the owners that evening; the vehicle was covered “top and bottom with mud and long grass.” Victim #2 paid for two car washes, at the cost of $10 each. The statement indicated that missing items included the vehicle’s owner’s manual, a key to the vehicle, several of their son’s cassette tapes, and a steering lock (value $19). A new key for the vehicle would cost $96.47, although they were “not inclined” to buy one as long as a stolen key remained unaccounted for. State’s Exhibit 1 sought restitution for Victim #2 in the amount of $289, representing $250 for Victim #2’s insurance deductible (which
{¶ 14} T.J. complains that Victim #2 should not have been reimbursed for a three-day car rental from Enterprise Rent-A-Car, when his vehicle was located by the police and returned within a day of its being stolen. Victim #2’s victim impact statement reflects that, prior to his vehicle’s return, he rented a car for the weekend. At that time, Victim #2 had no way of knowing when or if his vehicle would be located and returned. In the absence of a hearing, the record contains no information about whether Victim #2 could have returned the rental vehicle to that Enterprise location after only one day. In addition, Victim #2’s statement indicated that his vehicle required multiple car washes to remove mud and grass from the car, including under the car and from the wheel wells. There is no dispute concerning Victim #2’s actual out-of-pocket payment for the rental vehicle. Based on the information before it, the court could have reasonably concluded that the three-day rental was a reasonable expense, incurred as a direct and proximate result of the theft of Victim #2’s vehicle by T.J. We find no plain error in the juvenile court’s inclusion of $149.18 for the car rental in its order of restitution.
{¶ 15} With respect to Victim #3, T.J. asserts that the juvenile court committed plain error when it ordered T.J. to pay the replacement value for Victim #3’s stolen items.
{¶ 16} According to the information provided by Victim #3 and Victim #3’s insurance company, Victim #3 had six items of jewelry and a Garmin GPS device stolen from his vehicle. The stolen jewelry consisted of (1) a gold and diamond wedding band, purchased 20 years before the offense, (2) a women’s gold and diamond watch, purchased 15 years earlier, (3) a women’s Seiko watch, purchased 15 years ealier, (4) a
{¶ 17} Victim #3’s insurance company calculated the replacement value for the jewelry to be $5,453.67 and the GPS device to be $84.36. The insurance company reimbursed Victim #3 for the Garmin GPS device and, per the policy limit on jewelry, $1,000 for the missing jewelry. The insurance company’s documentation was provided to the juvenile court by a victim advocate; the victim advocate’s cover letter to the court indicated that Victim #3 had out-of-pocket loss of $4,553.67, and the State asked for that amount in restitution for Victim #3.
{¶ 18} T.J. argues that the juvenile court erred in using the replacement cost of the jewelry and GPS device. The GPS device was reimbursed by the insurance company, and was not included in the amount of restitution. We need not address this item further.
{¶ 19} As for the jewelry,
{¶ 21} We note that, based on the insurance company’s documentation, Victim #3’s uninsured loss was actually $4,453.67, not $4,553.67 ($5,453.67 - $1,000 = $4,453.67). It appears that the victim advocate misstated Victim #3’s out-of-pocket loss as $4,553.67 and, in Exhibit 1, the State inadvertently stated the value of the stolen jewelry as $5,553.67, not $5,453.67; both thus overstated Victim #3’s economic loss by $100. Accordingly, we modify the juvenile court’s restitution order for Victim #3 to $4,453.67, and remand to the juvenile court for a new entry reflecting this modification.
II. Ineffective Assistance of Counsel
{¶ 22} T.J.’s third assignment of error states that his trial counsel rendered ineffective assistance. He argues that his attorney should have objected to the juvenile court’s restitution order and advocated for the court to consider community service in lieu of a financial sanction.
{¶ 23} To reverse a conviction based on ineffective assistance of counsel, an appellant must demonstrate both that trial counsel’s conduct fell below an objective standard of reasonableness and that the errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of
{¶ 24} Based on the record before us, we find no basis to conclude that counsel acted deficiently. The juvenile court had competent, credible evidence regarding the amount of restitution from Victim #2’s and Victim #3’s victim impact statements, their supporting documentation, and State’s Exhibit 1. Based on the information before the juvenile court, we cannot conclude that the juvenile court would have ordered a lesser amount of restitution had counsel objected to the court’s restitution order. In addition, the record provides no basis to conclude that the juvenile court would have ordered community control, as an alternative to restitution, had defense counsel expressly asked the court to consider that alternative.
{¶ 25} T.J.’s third assignment of error is overruled.
III. Conclusion
{¶ 26} The juvenile court’s judgment will be affirmed, as modified. The matter will be remanded to the juvenile court for a new entry reflecting the modification of Victim #3’s restitution.
FAIN, J. and HALL, J., concur.
Copies mailed to:
Katherine C. Mueller
Sheryl Trzaska
Hon. Brett A. Gilbert