STATE OF OHIO, Plаintiff-Appellee v. BARBARA COURTNEY, Defendant-Appellant
Appellate Case No. 2013-CA-73
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
April 18, 2014
2014-Ohio-1659
Trial Court Case No. 2013-CR-262 (Criminal Appeal from Common Pleas Court)
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706, Dayton,
OPINION
WELBAUM, J.
{¶ 1} Defendant-appellant, Barbara Courtney, appeals from her convictiоn and sentence in the Clark County Court of Common Pleas following her guilty plea to theft in violation of
{¶ 2} On June 27, 2013, Barbara Courtney pled guilty to on one count of theft in violation of
{¶ 3} The trial court held a sentencing hearing on July 18, 2013. At the hearing, the trial court found that under
Assignment of Error No. 1
{¶ 4} Courtney‘s First Assignment of Error is as follows:
BARBARA COURTNEY‘S PLEA IS INVALID.
{¶ 5} Under this assignment of error, Courtney contends that her guilty plea is invalid because the trial court failed to strictly cоmply with the requirements of Crim. R. 11(C)(2)(c) during her plea hearing. She bases her argument on the fact that the trial court informed her that she had the right to a “trial” instead of the right to a “jury trial.”
{¶ 6} Crim.R. 11(C)(2)(c) provides that the court may not accept a plea of guilty or no contest without first addressing the defendant personally and doing all the following:
Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶ 7} “Thе rights enunciated in Crim.R. 11(C)(2)(c) are constitutional in nature.” State v. Perkins, 2d Dist. Montgomery No. 22956, 2010-Ohio-2640, ¶ 42. In State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the Supreme Court of Ohio “reaffirmed that strict, or literal, compliance with Crim.R. 11(C)(2)(c) is required when advising the defendant of the constitutional rights he is waiving by pleading guilty or no contest.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15 citing Veney at ¶ 18. Therefore, a trial court must “orally advise a defendant before accepting a felony plea that the plea waives * * * the right to а jury trial * * *.” Veney at ¶ 31.
{¶ 8} “When a trial court fails to strictly comply with this duty, the defendant‘s plea is invalid.” Id. However, “a trial court can still convey the requisite information on constitutional rights to the defendant even when the court does not provide a word-for-word recitation of [Crim.R. 11(C)(2)(c)], so long as the trial court actually explains the rights to the defendant.” Id. at ¶ 27. Moreover, “an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be clarified by reference to other portions of the record, including the written plea, in determining whether the defendant was fully informed of the right in question.” Barker at ¶ 25.
{¶ 9} At the plea hearing in this case, the trial court advised Courtney that she had “the right to a trial,” and explained that: “At that trial you would have the right to require the State to prove beyond a reasonable doubt each and every element of the offense to which you are pleading guilty, and you could only be convicted upon the unanimous verdict of a jury.” (Emphasis added.) Plea Trans. (June 27, 2013), p. 7, ln. 2-9. Courtney confirmed her understanding of these rights, thereby indicating that she knew if she went to trial, her conviction would depend on a jury verdict. Because an average person of Courtney‘s аge and intelligence would know that a trial requiring a “unanimous verdict of a jury” to convict necessitates a jury trial, we conclude that the trial court sufficiently explained her right to a jury trial during its plea colloquy.
{¶ 10} Furthermore, even if we had found that the trial court‘s explanation of Courtney‘s right to a jury trial was ambiguous, which we do not, the written plea form specifically referenced the right. The written plea form states: “I understand by pleading guilty I give up my right to a
{¶ 11} For the foregoing reasons, we conclude that the trial court strictly complied with Crim.R. 11(C)(2)(c) when it informed Courtney of her right to a jury trial and, therefore, her plea is valid. Courtney‘s First Assignment of Error is overruled.
Assignment of Error Nos. 2 and 3
{¶ 12} For purposes of convenience, we will review Courtney‘s Second and Third Assignments of Error together. They are as follows:
II. BARBARA COURTNEY‘S SENTENCE IS CONTRARY TO LAW.
III. THE TRIAL JUDGE ABUSED HIS DISCRETION IN SENTENCING BARBARA COURTNEY TO PRISON.
{¶ 13} Under these assignments of error, Courtney argues that her one-year prison sentence is contrary to law because the trial court erroneously concluded that she held a “position of trust” under
{¶ 14} In State v. Rodeffer, 2013-Ohio-5759, __N.E.2d__ (2d Dist.), this court adopted
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. (Emphasis added.)
{¶ 15} We also observed in Rodeffer that:
“the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must have clear and convincing evidence to support its findings. Instead, it is the court of appeals that must clearly and convincingly find that the record does not support the court‘s findings.” * * * “In other words, the restriction is on thе appellate court, not the
trial judge. This is an extremely deferential standard of review.” Rodeffer at ¶ 31, quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
The Record Supports the Trial Court‘s Findings Under R.C. 2929.13(B)
{¶ 16} Initially, Courtney claims that the trial court erred in sentencing her to prison as opposed to community control sanctions, because the court incorrectly found that she held a “position of trust” under
{¶ 17}
The offender held a public office or position of trust, and the offense related to that office or position; the offender‘s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender‘s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.
R.C. 2929.13(B)(1)(b)(viii) .
{¶ 18} In State v. Massien, 125 Ohio St. 3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, the Supreme Court of Ohio explained the circumstances under which a person holds a “position of trust” as that phrase was used in former
A person holding a “position of trust” * * * is not limited to public officials and public servants. However, it also does not apply to all positions of trust held by private individuals. Rather, a private individual holds a position of trust only if he or she occupies a special relationship of trust and confidence equivalent to a fiduciary relationship. (Emphasis added.) Massien at ¶ 2.
{¶ 19} The Supreme Court also observed in Massien the following with respect to fiduciary relationships:
” ‘A “fiduciary relationship” is one in which special confidence and trust is reposed in thе integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.’ ” Stone v. Davis (1981), 66 Ohio St.2d 74, 78, 20 O.O.3d 64, 419 N.E.2d 1094, quoting In re Termination of Pratt, 40 Ohio St.2d at 115, 69 O.O.2d 512, 321 N.E.2d 603. “A ‘fiduciary’ has been defined as ’ “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” ’ ” (Emphasis Sic.) Strock v. Pressnell (1988), 38 Ohio St.3d 207, 216, 527 N.E.2d 1235, quoting Haluka v. Baker (1941), 66 Ohio App. 308, 312, 20 O.O. 136, 34 N.E.2d 68 * * *. “A fiduciary relationship need not be created by contract; it may arise out of an informal relatiоnship where both parties understand that a special trust or confidence has been reposed.” Stone, 66 Ohio St.2d at 78, 20 O.O.3d 64, 419 N.E.2d 1094. Massien at ¶ 35.
{¶ 21} “In determining whether a fiduciary relationship exists between an employee and employer, ‘emphasis should be placed upon whether the assigned job duties require, as essential qualifications over and above technical competency requirements, a high degree of trust, confidence, reliance, integrity and fidelity.’ ” Id., quoting Charlton at syllabus. “Job duties that require a great degree of discretion support the existence of a fiduciary relationship, whereas assigned duties of a routine character do not involve the degree of discretion or trust necessary to be considеred a fiduciary.” (Citation omitted.) Id. “A further consideration involves whether the employee‘s responsibility includes ‘daily discretionary decisions’ affecting persons served by the employer that require the employee to be ‘of higher than normal reliability.’ ” Id., quoting Charlton at 73.
{¶ 22} The Supreme Court concluded in Massien that a nurse employed by a hospital does not have a fiduciary relationship with the hospital given that nurses do not occupy a position of discretion and, therefore, are not in a “position of trust” for purposes of
{¶ 23} In the present case, however, Courtney was the office manager of a used car company that had employed her for 20 years. She started as a secretary, then as a salesperson, and was later promoted to officer manager. Courtney was in charge of customer accounts and used accounting software to track the company‘s accounts and expenses. The customеrs typically paid the company directly in cash, so Courtney also handled large sums of money and made bank deposits. In a letter to the court, Courtney‘s former employer advised that she “was in a position of trust and had been for some time.” Disposition Trans. (July 18, 2013), p. 6, ln. 15-16.
{¶ 24} Based on the foregoing, we do not clearly and convincingly find that the record does not suppоrt the trial court‘s finding that Courtney was in a “position of trust” that facilitated her offense. The record establishes that Courtney was in a position that required higher than normal reliability. Her responsibilities and access to large sums of money required a high degree of discretion and trust from her former employer, which translates to a fiduciary relationship. Because of the employer‘s trust and reliance upon her in handling its money, Courtney was able to steal $44,726. Accordingly, the record establishes that she was in a “position of trust” as contemplated under
Courtney‘s Sentence Is Not Otherwise Contrary to Law
{¶ 25} Next, Courtney argues that her one-year prison sentence is contrary to law. “[A]
{¶ 26} In this case, we have already concluded that the record established that Courtney was in a “pоsition of trust,” which, pursuant to
{¶ 27} Moreover, the trial court expressly stated in the Judgment Entry of Conviction that it “considered the record, oral statements оf counsel, the defendant‘s statement, and the principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and then balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.” Judgment Entry of Conviction (July 19, 2013), Clark County Court of Common Pleas Case No.
{¶ 28} For the foregoing reasons we do not clearly and convincingly find that Courtney‘s prison sentence is contrary to law. Given that there is evidence in the record supporting the trial court‘s “position of trust” finding under
{¶ 29} Courtney‘s Second and Third Assignments of Error are overruled.
Assignment of Error No. 4
{¶ 30} Courtney‘s Fourth Assignment of Error is as follows:
THE TRIAL JUDGE ERRED BY ORDERING BARBARA COURTNEY TO PAY $44,726 IN RESTITUTION.
{¶ 31} Under this assignment of error, Courtney contends that the trial court erred in ordering her to pay restitution given that there is nothing in the record indicating that she has the present or future ability to pay. This argument lacks merit.
{¶ 32} Under
{¶ 33} We review an order of restitution under an abuse of discretion standard. State v. Collins, 2d Dist. Montgomery Nos. 21510 and 21689, 2007-Ohio-5365, ¶ 13. “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abusе of discretion includes a situation in which a trial court did not engage in a ” ‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A trial court abuses its discretion in ordering restitution in an amount that was not determined to bear a reasonable relationship to the actual loss suffered.” Collins at ¶ 13, citing State v. Williams, 34 Ohio App.3d 33, 35, 516 N.E.2d 1270 (2d Dist.1986).
{¶ 34} “An order of restitution must be supported by competent, credible evidence in the record.” Id. at ¶ 12, citing State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990). Furthermore, ” ‘[a] sentence of restitution must be limited to the actual economic loss caused by the illegal conduct for which the defendant was convicted.’ ” Id., quoting State v. Banks, 2d Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 5. ” ‘Implicit in this principle is that the amount claimed must be established to a reasonable degree of certainty before restitution can be ordered.’ ” Id., quoting State v. Golar, 11th Dist. Lake No. 2002-L-092, 2003-Ohio-5861, ¶ 9.
{¶ 35} Pursuant to
{¶ 36} In this case, the record establishes that Courtney stole $44,726 from her former employer. The loss amount was established with reasonable certainty, as Courtney admitted to stealing that sum at the plea hearing. Therefore, $44,726 represents the actual economic loss caused by Courtney‘s illegal conduct. Accordingly, the restitution order of $44,726 bears a reasonable relationship to the loss suffered.
{¶ 37} Additionally, the record indicates that the trial court considered Courtney‘s present and future ability to repay the $44,726. The trial court reviewed the presentence investigation report and also asked Courtney at sentencing: “How are you going to pay [$44,726]?” Disposition Trans. (July 18, 2013), p. 5, ln. 14-15. In response, Courtney stated: “I could try to get a job, you know, and I filed for social security * * * I have been looking for a job ever since I got fired.” Id. at 5, ln. 16-20. The trial court then briefly mentioned that “it [didn‘t] sound too promising that [Courtney would] be able to pay the money back.” Id. at 5, ln. 21-22.
{¶ 38} However, the record also establishes that Courtney was gainfully employed for 20 years working in various positions including a secretary, sales person, and office manager. While Courtney‘s criminal record and one-year prison term will hamper her ability to obtain employment, she did not argue that she would be unemployable, but instead, insisted that she
{¶ 39} Courtney‘s Fourth Assignment of Error is overruled.
Conclusion
{¶ 40} Having overruled Courtney‘s four assignments of error, the judgment of the trial court is affirmed.
HALL, J., concurs.
FROELICH, P.J., concurring.
I concur in judgment, and would find that the sentence was not an abuse of discretion pursuant to my concurring opinion in Rodeffer, 2013-Ohio-5759.
Copies mailed to:
Lisa M. Fannin
Robert Alan Brenner
Hon. Douglas M. Rastatter