STATE OF OHIO, Plaintiff-Appellee, - vs - MICHAEL R. ALBAUGH, Defendant-Appellant.
CASE NO. 2013-P-0025
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
December 23, 2013
2013-Ohio-5835
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2012 CR 0442.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Kristinа Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Gregory A. Price, 137 South Main, Suite 300, Akron, OH 44308 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Michael R. Albaugh, аppeals from the judgment of the Portage County Court of Common Pleas ordering him to pay a total of $2,100 in restitution. Appellant contends the trial court abused its discretiоn in requiring him to pay an amount of restitution that was not attributable to the offenses of which he was convicted. For the reasons discussed below, we reverse the trial court‘s judgment and remand the matter for further proceedings.
{¶3} Appellant subsequently entered a plea of guilty to one count of felony-four trafficking in cоcaine and forgery, a felony of the fifth degree. The trial court accepted the plea and referred the matter to the adult probation authority for a presentence investigation report (“PSI“). Prior to the court imposing sentence, counsel for appellant disputed the amount of restitution the victim was seeking. Counsel emphasized, “we have evidence to show that he used the [stolen credit] card at a gas station and that was a very limited use at that point, so that is where the RSP[, rеceiving stolen property,] got reduced to a Forgery and we would ask the Court to address that.”
{¶4} The court acknowledged that counsel was contesting the restitution amounts and allowed the state to respond. The prosecutor stated, however, he was “not prepared to address that at this time.” The prosecutor then deferred to the PSI, which, in his view, indicated the victim‘s total loss was $1,700. The court agreed with the prosecutor, stating the victim‘s damages exceeded the amount charged to her сredit card.
{¶5} The court subsequently sentenced appellant to 45 days in the Portage County Jail with work release. The court also placed appellant under the control of the
{¶6} Appellant‘s sole assignment of error provides:
{¶7} “The trial court abused its discretion when it sentenced the defendant to pay restitution not attributed to his offense.”
{¶8}
{¶9} Restitution by the offender to the victim of the offеnder‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designаted by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, thе court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the
offense. If the court decides to impоse restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount.
{¶10} Prior to imposing restitution, a trial court must ensure that the amount is supported by competent, credible evidence. See State v. Warner, 55 Ohio St.3d 31, 69 (1990). Moreover, due process requires that the amount of restitution bear a reasonable relationship to the loss suffered. State v. Bowman, 181 Ohio App.3d 407, 2009-Ohio-1281, ¶10 (2d Dist.), citing State v. Williams, 34 Ohio App.3d 33, 34 (8th Dist.1986). A restitution order must be tailored to compensate the victim for the actual economic loss caused by the illegal conduct for which a defendаnt is convicted. State v. Agnes, 11th Dist. Lake No. 99-L-104, 2000 Ohio App. LEXIS 4653, *23 (Oct. 6, 2000); see also State v. Banks, 2d Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶5. It consequently follows that the amount claimed must be established to a reasonable degree of certainty before the court may enter a restitution order. State v. Golar, 11th Dist. Lake No. 2002-L-092, 2003-Ohio-5861, ¶9, citing Warner, supra.
{¶11} Where questions are raised regarding the amount of restitution, the trial court must resolve such issues through an evidentiary hearing. See
{¶12} In this case, defense counsel expressly disputed the amount of restitution to which the victim claimed entitlement at the sentеncing hearing. Defense counsel specifically asserted he had evidence demonstrating the loss suffered by the victim as a result of the crime to which appellаnt ultimately pleaded guilty was significantly less than the amount for which the victim was seeking restitution. The prosecutor conceded he was not prepared to respond to defense counsel‘s evidence, and merely confirmed that the victim was seeking $1,700 in restitution for the crimes with which appellant was charged. He then asserted his belief that this amount is referenced in the PSI. The court neither heard the evidence defense counsel proposed to offer nor reset the matter for a hearing on restitution. Instead, the court observed the restitution amount was based on more than the amount charged on the card; the court continued: “it was also a Coach purse, and the window smashed out, and the GPS, and there‘s all kinds of other things.”
{¶13} Although a PSI may serve as a foundation for an award of restitution, such a tool is useful only to the extent it details “pertinent financial information.” See State v. Ankrom, 11th Dist. Lake No. 2006-L-124, 2007-Ohio-3374, ¶23. Here, the PSI blankly sets forth the victim‘s request. The PSI does not, however, provide an itemization of the belongings allegedly lost or damaged; and there is nothing in the record disclosing the manner in which the victim arrived at the value for the lost or damaged items.
{¶14} Moreover, even assuming an accurate acсounting of the victim‘s losses existed, the record fails to disclose how appellant, who was convicted of forgery, presumably from the use of the victim‘s credit card, is responsible for losses beyond
{¶15} Given the circumstances, we hold the restitution order sub judice cannot stand. Where, as here, questions are raised about the amount of restitution that should be ordered, the trial court is required to resolve those questions by holding an evidentiary hearing. We therefore reverse the judgment of the trial court and remand the matter for a hearing to establish whether the amount requested is an econоmic loss that can be legally deemed a direct and proximate result of the crime appellant committed.
{¶16} Appellant‘s sole assignment of error is sustained.
{¶17} For the reasons discussed in this opinion, the judgment of the Portage County Court of Common Pleas is reversed and remanded.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.