State v. BeckwithState v. Beckwith
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Kristen Hatcher, Assistant Prosecuting Attorney, for appellee.
Buckeye Law Office and P. Andrew Baker, for appellant.
MARY J. BOYLE, J.:
{¶ 1} Defendant-appellant, Gregory Beckwith (“Beckwith“), appeals an order of restitution imposed as part of his sentence. For the following reasons, we vacate the order of restitution in the amounts of $725 and $1,890 but otherwise affirm the conviction and remaining portions of Beckwith‘s sentence.
{¶ 3} In February 2019, Beckwith pled not guilty to the indictments and was released on bond with court-supervised release, ordered to have no contact with the victims, and required to wear an inclusion-exclusion GPS ankle monitor. In March 2019, the state filed a motion to revoke Beckwith‘s bond due to his extensive criminal record, former convictions for attempted failure to provide notice of change of address and attempted escape, and a history of failing to appear and comply with the conditions of his release.
{¶ 4} In May 2019, following a plea agreement with the state, Beckwith withdrew his not guilty plea and entered a guilty plea to one count of menacing by stalking in each case in exchange for the state‘s amending the indictments to dismiss the remaining count in each case. The trial court ordered a presentence-investigation report and, at Beckwith‘s request, a mental-health evaluation and mitigation-in-penalty report. The trial court continued the conditions of Beckwith‘s supervised release. In June 2019, Beckwith failed to undergo the mental-health
{¶ 5} The matter proceeded to a sentencing hearing on October 20, 2021. At the sentencing hearing, Beckwith admitted that during the pendency of these proceedings, he moved to Georgia and began working two jobs. The trial court sentenced Beckwith to two consecutive 18-month terms, one for each count, for a total prison term of 36 months and had the following exchange with the state:
Court: [D]id you happen to get a figure for the extradition fees?
State: No, your Honor. I‘m still waiting. I did hear back saying that they are trying to collect them together.
Court: Well, realistically you probably won‘t be getting any money anyways, but I will order [Beckwith] to pay $725 to the probation department. That‘s in — for court costs, but it‘s for the restitution and for the ankle monitor that you decided to alleviate yourself from. So I won‘t impose any other fines or court costs.
Anything else [from the state]?
State: Would we be able to make — or are the fees part of the journal entry and once we get that figure, present that documentation to this Court?
Court: Sure. I can order it. Like I said, in reality you‘re not going to get any money, but I‘ll order restitution or extradition fees to be paid as well.
(Tr. 37, Oct. 20, 2021.)
{¶ 6} In its October 25, 2021 sentencing entry, the trial court ordered Beckwith
{¶ 7} Beckwith now appeals this judgment, raising the following two assignments of error for review:
Assignment of Error I: The trial court erred in imposing restitution in [this] case.
Assignment of Error II: The restitution errors must be reversed because of ineffective assistance of counsel.
{¶ 8} In his first assignment of error, Beckwith argues that the trial court committed plain error when it ordered him to pay $725 to the sheriff‘s office, which Beckwith contends is an implied order of restitution, and $1,890 to the prosecutor‘s office, which Beckwith contends is an express order of restitution. Beckwith maintains that
{¶ 10} Here, however, neither party objected to or otherwise contested the amount of restitution ordered at sentencing and therefore waived all but plain error on appeal. State v. Posa, 8th Dist. Cuyahoga No. 94255, 2010-Ohio-5355, ¶ 6. To qualify as plain error, the error must be so obvious and fundamental that it should have appeared to the trial court without objection, and the appellant must demonstrate that but for the error, the outcome of the proceedings would have been
{¶ 11} A “sentence” is defined as “the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense.”
{¶ 12} An order of restitution must be the direct and proximate result of the defendant‘s offense. State v. Maddox, 8th Dist. Cuyahoga No. 102133, 2015-Ohio-2859, ¶ 14, citing State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 24. Otherwise stated, an order of restitution is improper when the defendant was neither charged with nor convicted of any crime related to the alleged economic loss. Id. at ¶ 15, 18.
{¶ 14} The state argues that even if it cannot recover the cost of the damaged ankle monitor as restitution under
{¶ 15} The state‘s reliance on
{¶ 16} Here, the state did not separately charge Beckwith with vandalism or criminal damaging for damaging his GPS ankle monitor, and the state cannot circumvent the general rule that government agencies are not victims entitled to restitution by labeling the costs of the damaged ankle monitor as “reimbursement” rather than as “restitution.” See State v. Sierra, 3d Dist. Hancock Nos. 5-14-15, 5-14-19, 5-14-20, 5-14-21, and 5-14-22, 2015-Ohio-1692, ¶ 11 (the government cannot recover money it spent on drug buys by labeling these costs reimbursement to avoid labeling them as restitution).
{¶ 17} Second, electronic monitoring that is imposed as a condition of pretrial release does not constitute a “sanction” for which the government may be
{¶ 18} By definition, sanctions are imposed upon the offender at sentencing for the crime or crimes of which the offender was convicted. Beckwith was convicted of menacing by stalking. The trial court imposed a 36-month prison term, not electronic monitoring, as a sanction for Beckwith‘s offense. Because electronic monitoring was not imposed as a sanction,
{¶ 19} Stated differently, Beckwith‘s GPS monitor was imposed not as a penalty for his offense, but rather as a condition of his pretrial release. See State v. Jeko, 6th Dist. Lucas No. L-18-1093, 2019-Ohio-2044, ¶ 10. Under
{¶ 20} Here, after issuing a capias for Beckwith‘s failure to appear at his arraignment, the trial court ordered Beckwith to be released on bond subject to inclusion-exclusion GPS monitoring and to have no contact with the victims. Pursuant to
{¶ 21} Because the trial court imposed the GPS ankle monitor as a condition of Beckwith‘s pretrial release, it cannot properly be considered a sanction as that term is defined in
{¶ 22} A review of the statute‘s subsections also reveals that Beckwith‘s pretrial electronic monitoring does not constitute a “sanction” under
{¶ 23} Nor can Beckwith‘s GPS monitoring be considered “confinement” under
{¶ 24} Nor, finally, does the state support its contention that a GPS ankle monitor qualifies as an “immobilizing or disabling device” under
{¶ 25} Based on the record before us, the state has not shown that it is entitled to reimbursement for the cost of the damaged ankle monitor pursuant to
{¶ 27} The state relies on our holding in Maurer, 2016-Ohio-1380, 63 N.E.3d 534. In Maurer, the trial court ordered payment of extradition costs in addition to restitution at sentencing but referred to the extradition costs as restitution in its sentencing entry. On appeal, this court affirmed the trial court‘s imposition of extradition costs but remanded for correction of the journal entry nunc pro tunc to reflect the sentence announced at the sentencing hearing. Significantly, Maurer recognized that
Upon conviction of a nonindigent person for a felony, the clerk of the court of common pleas shall make and certify under the clerk‘s hand and seal of the court, a complete itemized bill of the costs made in such prosecution, including the sum paid by the board of county commissioners, certified by the county auditor, for the arrest and return of the person on the requisition of the governor, or on the request of the governor to the president of the United States, or on the return of the fugitive by a designated agent pursuant to a waiver of extradition except in cases of parole violation. The clerk shall attempt to collect the costs from the person convicted.
(Emphasis added.) Id. at ¶ 29. Maurer noted that “under
{¶ 28} The instant case is distinguishable from Maurer. The rule recognized in Maurer is that a nonindigent felony defendant may be ordered to pay extradition costs. The state argues that “[t]here is nothing in the record to suggest that Beckwith is indigent.” The record shows otherwise. First, in its February 21, 2019 journal entry of Beckwith‘s arraignment, the trial court declared that Beckwith is indigent and assigned him trial counsel. Then, at the sentencing hearing, the trial court twice stated that it would order restitution but both times added that the state is unlikely to receive any money as a result of this order. The trial court also did not impose any fines and waived court costs. Finally, in its October 25, 2021 sentencing entry, the trial court again declared that Beckwith is indigent and assigned him appellate counsel.
{¶ 29} Contrary to the state‘s contention, then, the record reveals that Beckwith was found indigent and should not have been ordered to pay extradition costs. See State v. Jones, 2020-Ohio-1273, 153 N.E.3d 689, ¶ 32-33 (8th Dist.) (acknowledging that extradition costs are “a necessary expense in prosecuting a case against a criminal offender who has left (and fails to return to) the jurisdiction,” but noting that “extradition fees” cannot be assessed as “costs” under
{¶ 30} Therefore, the trial court erred not only when it referred to extradition costs as “restitution,” see Maurer, 2016-Ohio-1380, 63 N.E.3d 534, at ¶ 33, but also when it ordered Beckwith, whom it declared indigent, to pay $1,890 in extradition costs. See Jones at ¶ 33; Croom at ¶ 98, fn. 2.
{¶ 31} Neither the cost of Beckwith‘s damaged ankle monitor nor the costs of Beckwith‘s extradition qualify as restitution under
{¶ 32} Accordingly, Beckwith‘s first assignment of error is sustained.
{¶ 34} Accordingly, we vacate the restitution ordered by the trial court in the amounts of $725 and $1,890 but otherwise affirm the conviction and remaining portions of Beckwith‘s sentence.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
MARY EILEEN KILBANE, P.J., and EILEEN T. GALLAGHER, J., CONCUR