State v. CoburnState v. Coburn
Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and Norman P. Solze, Assistant Prosecuting Attorney, for appellee.
Christian R. Moore, for appellant.
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COSME, J.
{¶ 1} Appellant, Robert Coburn, appeals from a judgment issued by the Sandusky County Court of Common Pleas following his guilty plea to grand theft. We conclude that although the plea was properly accepted, the amount of restitution was not sufficiently supported by the record and the trial court failed to make the appropriate
{¶ 2} In September 2008, appellant was indicted on five counts of grand theft, in violation of
I. RESTITUTION
{¶ 3} In his first assignment of error, appellant contends that:
{¶ 4} “I. The trial court committed reversible error under
{¶ 5} We agree.
{¶ 6} An appellate court reviews an order of restitution under an abuse of discretion standard. State v. Berman, 8th Dist. No. 79542, 2002-Ohio-1277, ¶ 6, citing State v. Marbury (1995), 104 Ohio App.3d 179. “The term ‘abuse of discretion’ connotes
{¶ 7} We initially note that, although
{¶ 8} We also are aware that agreement to, or failure to dispute or object to, a restitution amount when entering a plea pursuant to a plea agreement has been held to constitute a waiver of the hearing procedures required by
{¶ 9} At the time of appellant‘s offense,
{¶ 10} Consequently, prior to imposing a restitution order, a trial court must determine the amount of restitution to a reasonable degree of certainty, ensuring that the amount is supported by competent, credible evidence. See State v. Warner (1990), 55 Ohio St.3d 31, 69; State v. Fyffe (1990), 67 Ohio App.3d 608, 617. The amount of restitution ordered must bear a reasonable relationship to the loss suffered by the victim. State v. Middleton, 12th Dist. No. CA2005-11-499, 2006-Ohio-4558, ¶ 16. The restitution amount may be considered supported by the record where the defendant
{¶ 11} In this case, although a plea agreement was reached and accepted, the restitution amount still must be reasonably related to the actual amount of damages or losses suffered. Restitution is not intended to be a windfall to the victim, a collateral method for the court to impose punitive damages, nor an opportunity for a defendant to simply pay a large restitution amount, unrelated to the actual loss, in order to avoid a conviction. Thus, we must determine whether the record sufficiently supports the amount imposed by the trial court.
{¶ 12} During appellant‘s plea hearing, the trial court stated the following to appellant as to his plea to Count 1:
{¶ 13} “THE COURT: Mr. Coburn, do you understand that a plea of guilty is a complete admission of your guilt to the offense charged, that offense in the indictment reads as follows: On or about March 17th, 2008 at 101 Watertower Drive, Clyde, in Sandusky County, Ohio which is the premises of Fisher Paykel Company, you took four spools of wire valued at $1,985, which was the property of Mr. Paykel and without their consent, in other words, you‘re guilty of theft of wire having the value of almost $2,000. It means your [sic] guilty to that count. Do you understand that?
{¶ 14} “THE DEFENDANT: Yes.”
{¶ 15} Despite the trial court‘s thorough explanation of appellant‘s rights in entering the plea to Count 1, nothing specific was stated about the verification or source
{¶ 16} Although the prosecutor cursorily reminded the court of the agreed amount at the sentencing hearing, nothing was presented to show the reasonableness of that amount. Finally, the PSI report in this case only states that “four coils of aluminum weighing 160.6 pounds were missing. The value of the missing coils was $1,985.00.” Contrary to the state‘s suggestion, nothing in the PSI report provides any reference at all to $83,739 as the actual value of the copper wire appellant allegedly took or whether that amount included wire that was recovered. As a result, the only evidence presented as to the cost of the copper wire in Counts 2, 3, 4 and 5, were the bare allegations in the indictment.
{¶ 17} Under many, if not most, circumstances, we agree that a plea agreement may constitute a waiver of an appellant‘s challenge to the amount of restitution. In this
{¶ 18} Accordingly, appellant‘s first assignment of error is well-taken.
II. ABILITY TO PAY RESTITUTION
{¶ 19} In his second assignment of error, appellant contends that:
{¶ 20} “II. The trial court committed reversible error under
{¶ 21} Appellant‘s second assignment of error is not well-taken.
{¶ 22} Ordinarily, when imposing sanctions pursuant to
{¶ 23} In this case, appellant agreed to pay restitution as a central part of the plea agreement, even for the charges which were dismissed. Unlike the amount of restitution, which we previously determined was improperly imposed, the overall agreement to pay some sort of restitution at all was included in and considered by appellant before entering his plea. Appellant‘s knowledge is further supported by the fact that, at the sentencing hearing, trial counsel noted for the record that appellant‘s agreement to pay restitution was contingent on his being employed. Therefore, we conclude that the trial court did not err in accepting appellant‘s plea agreement to pay restitution to the victim, without determining his ability to pay.
{¶ 24} Appellant‘s second assignment of error is not well-taken.
III. APPOINTED COUNSEL FEES
{¶ 25} In his third assignment of error, appellant argues that:
{¶ 26} “III. The trial court committed reversible error under
{¶ 27}
{¶ 28} In this case, as we noted previously, the only reference to “financial sanctions” in the written plea agreement indicated generally, “reimbursement of the costs of this case * * *.” The phrase “costs of this case” is vague, and, consequently, we must construe it against the state. See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 52. In addition, the trial court did not discuss payment of court appointed counsel fees as a possible sanction at the plea hearing, and only made a brief and belated reference to it at the very end of the sentencing hearing.
{¶ 29} Nothing in the record demonstrates that appellant was provided with a specific amount as to the cost of attorney fees or that he might be subject to paying for them under the plea agreement. Although the court was within its authority to assess such fees, it was first required to determine whether appellant was able to pay or could reasonably be expected to pay the cost of his court appointed counsel. Therefore, we
{¶ 30} Accordingly, appellant‘s third assignment of error is well-taken.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 31} In his fourth assignment of error, appellant contends that:
{¶ 32} “IV. Defendant-appellant‘s constitutional right to effective assistance of counsel was violated when said counsel failed to object during sentencing to the amount of restitution and ability of defendant-appellant to pay restitution and attorney‘s fees.” Appellant‘s fourth assignment of error is not well-taken.
{¶ 33} In order to prove ineffective assistance of counsel, a defendant must show: (1) that defense counsel‘s representation fell below an objective standard of reasonableness and (2) that counsel‘s deficient representation was prejudicial to defendant‘s case. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. See, also, Strickland v. Washington (1984), 466 U.S. 668, 694.
{¶ 34} In the present case, we have already determined that the trial court erred in imposing restitution without verification of the amount and appointed counsel fees before determining appellant‘s ability to pay. As to those errors, although an objection may have been prudent, we cannot say that the failure to do so fell below an objective standard of care. Rather, in this case, the trial court was required to make sure the proper evidence was before it and to follow the statutory requirements. Therefore, appellant cannot demonstrate the first prong to establish a claim of ineffective assistance of counsel.
{¶ 35} Accordingly, appellant‘s fourth assignment of error is not well-taken.
V. SENTENCING
{¶ 36} In his fifth assignment of error, appellant contends that:
{¶ 37} “V. The trial court abused its discretion when [sic] participated in impermissible judicial fact finding and sentenced defendant to a maximum prison sentence that was unsupported by the record.” Appellant‘s fifth assignment of error is not well-taken.
{¶ 38} In State v. Foster, the Supreme Court of Ohio, in striking down parts of Ohio‘s sentencing scheme, held that “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.” 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of the syllabus. More recently, in State v. Kalish, the Supreme Court of Ohio stated that, when reviewing felony sentences and applying Foster to the remaining sentencing statutes, appellate courts must use a two-step approach. 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 4. The Kalish court said, “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment shall be reviewed under an abuse of discretion standard.” Id.
{¶ 39} As we noted previously, an abuse of discretion implies that the trial court‘s decision was unreasonable, arbitrary or unconscionable and not merely an error of law or judgment. Blakemore, supra. When applying an abuse of discretion standard, an appellate court may not generally substitute its judgment for that of the trial court. See Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621.
{¶ 40} To comply with Foster and Kalish, in addition to the permissible statutory ranges, a trial court must consider the purposes and principles of felony sentencing and the seriousness and recidivism factors under
{¶ 41} In this case, appellant pled to and was found guilty on one count of grand theft, a fourth degree felony.
{¶ 42} Accordingly, appellant‘s fifth assignment of error is not well-taken.
{¶ 43} The judgment of the Sandusky County Court of Common Pleas is affirmed in part and reversed in part, and is remanded to determine the appropriate amount of restitution and appellant‘s present or future ability to pay his court appointed attorney fees. Appellant and appellee are each ordered to pay one-half of the costs of this appeal pursuant to
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J.
Arlene Singer, J.
Keila D. Cosme, J. CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.