State v. CraigState v. Craig
Judgmеnts Appealed From Are: Affirmed in Part, Reversed in Part, Vacated in Part, and Cause Remanded
Date of Judgment Entry on Appeal: October 18, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Victoria L. Lowry, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant.
{¶1} Following his involvement in an automobile accident with a vehicle driven by Ron Mack, defendant-appellant Henry Craig pled guilty to operating a vehicle while under the influence of alcohol and/or drugs (“OVI“) in violation of
{¶2} After conducting a hearing to determine the amount of restitution owed to the victim of the offense, the trial court sentenced Craig. For the OVI offense, the court impоsed a sentence of 180 days in jail, with 170 of those days suspended and the remaining ten to be served at the Community Alternative Sentencing Center. The court additionally placed Craig on community control for two years, with the conditions that he not consume alcohol and undergo random drug screens, imposed a license suspension, and ordered him to pay $5,000 in restitution to Ron Mack. For the offense of driving left of center, the trial court imposed a $100 fine and court costs.
{¶3} The sentencing entries issued by the trial court were in accordance with the sentences imposed in open court with two exceptions. First, the sentencing entry for the OVI offense reflected the imposition of a $400 fine. Second, the sentencing entry for the offense of driving left of center reflected that Craig was sentenced to two years of community control.
{¶4} Craig appeals his convictions. In three assignments of error, he challenges the trial court‘s imposition of restitution, argues that his no-contest plea was not entered knowingly, intelligently, and voluntarily, and challenges the sentences imposed. Following our review of the record, we find merit to each of Craig‘s arguments. We hold that the trial court abused its discretion in awarding restitution
{¶5} We accordingly vacate Craig‘s no-contest plea to the offense of driving left of center, as well as reverse the portions of the sentence imposed for the OVI offense imposing restitution and a $400 fine, and remand the cause for further proceedings.
I. Restitution
{¶6} In his first assignment of error, Craig argues that the trial court erred when it ordered him to pay $5,000 in restitution.
{¶7} We review a trial court‘s award of restitution in a misdemeanor case for an abuse of discretion. State v. Moore, 1st Dist. Hamilton No. C-220421, 2023-Ohio-3318, ¶ 10, quoting State v. Miles, 1st Dist. Hamilton No. C-210226, 2021-Ohio-4581, ¶ 5. An abuse of discretion occurs in the аward of restitution where the ordered restitution “does not bear a reasonable relationship to the actual loss suffered.” Id., quoting In re A.B., 1st Dist. Hamilton No. C-210010, 2021-Ohio-4273, ¶ 8. An abuse of discretion can also be found where there is not “competent, credible evidence in the record from which the court can discern the amount of restitution to a reasonable degree of certainty.” Id., quoting State v. Caldwell, 2023-Ohio-355, 207 N.E.3d 928, ¶ 14 (4th Dist.).
{¶8} At the restitution hearing, Tyrone Mack testified that, аt the time of the accident on July 11, 2022, he was the registered owner of the vehicle involved in the
{¶9} Ron, who was driving the vehicle when the accident occurred, testified that he had purchased the car and placed the title in his brother‘s name. Ron stated that he paid $6,864.37 to have the vehicle repaired after the accident, and he submitted receipts documenting the expenses that he personally incurred for these repairs. According to Ron, all of the damage to the vehicle was caused by the accident, and none was pre-existing.
{¶10} At the restitution hearing, Craig entered into evidence several exhibits documenting the value of the vehicle. These documents included a Kelley Blue Book report listing the vehicle‘s trade-in value to be $2,234 to $3,669; a Kelley Blue Book report listing the vehicle‘s value in a private-party sale to be $4,117 to $6,244; and an Experian vehicle history report, which revealed that the vehicle had been involved in an accident prior to the one caused by Craig аnd gave the vehicle a below average AutoCheck score (this score correlated to how likely the vehicle was to still be on the road in five years).
{¶11} Craig testified that he worked one full-time and two part-time jobs and estimated that he earned approximately $1,700 per month in take-home pay. He also stated that he paid $825 a month in rent, as well as had additional monthly expenses, including utilitiеs and food.
{¶12} Craig first argues that the trial court erred in awarding restitution to Ron, whom he contends did not suffer an economic loss at the time of the accident. He argues that Tyrone, not Ron, was the titled owner and driver of the vehicle damaged in the accident.
{¶13}
{¶14} The trial court correctly determined that Ron was a victim of Craig‘s offense. Although Tyrone was the titled owner of the vehicle at the time of thе accident, Ron was driving the vehicle and personally paid to repair the damage caused to the vehicle by the accident. See State v. Morales, 1st Dist. Hamilton No. C-220355, 2023-Ohio-2459 (holding that in an aggravated-vehicular-assault case, the driver of the vehicle hit by the defendant was a victim under the definition of “victim” in
{¶15} The record also demonstrates that Ron suffered an economic loss.
{¶16} Craig next argues that the trial court erred in imposing $5,000 in restitution because that amount exceeded the amount of economic loss.
{¶17} At the restitution hearing, after hearing testimony from Ron that he spent $6,864.37 on repairs to the vehicle and being presented with evidence from Craig about the Kelley Blue Book value of the vehicle for a trade-in and for a private-party sale, the trial court stated:
So we don‘t need to speculate about, you know, where this—the value of this vehicle, or where it would land in the Kelly [sic] Blue Book or Experian, we don‘t need to speculate about any of that because in this case Mr. Mack actually spent the funds, he testified that the vehicle‘s been repaired because he laid out this money. So the $6,800 and some dollars seems entirely reasonable and appropriate.
{¶18} The court then explained that
{¶19} This court recently addressed the amount of restitution that can be imposed for the damage caused to a vehicle in an automobile accident. In Moore, we recognized that while the damage to a vehicle may be determined by estimates setting forth the cost of repair, “[w]hen the cost to repair the vehicle exceeds its value, then
{¶20} Here, the trial court awarded restitution in the amount of the cost incurred to repair the vehicle, to which it then applied the statutory cap. The court insinuated that the actual value of the vehicle was irrelevant, stating that it would not speculate about the vehicle‘s value because it was presented with evidence about the actual amount spent on repairs. Where there was evidence in the record via the Kelley Blue Book reports that the value of the vehicle was less than the amount spent on repairs, it was an abuse of discretion for the trial court to disregard that evidence and award rеstitution in the amount of the cost incurred for repairs. See Moore at ¶ 13 (it was an abuse of discretion to award restitution in the amount of the cost of a replacement vehicle when restitution should have been limited to the value of the vehicle just prior to the accident); Caldwell at ¶ 24 (“A court does not abuse its discretion in ordering restitution in the amount of a cost-to-repair estimate if there is no evidence showing that the value of the vehicle is less than the repair cost.“).
{¶21} The trial court should have considered the evidence pertaining to the vehicle‘s value and determined the actual value of the vehicle. If the cost of repairs exceeded the vehicle‘s value, restitution should have been limited to the amount of the vehicle‘s value prior to the accident.
C. Ability to Pay Restitution
{¶22} Craig last argues under this assignment оf error that the trial court‘s imposition of restitution as a financial sanction was improper as Craig demonstrated an inability to pay.
{¶24} This court has discussed whether
The state also contends the trial court has no obligation to consider a defendant‘s present and future ability to pay restitution for a misdemeanor offense, because the misdemeanor sentencing statutes do not contain a provision identical to
R.C. 2929.19(B)(5) .The state is correct that the misdemеanor sentencing statutes do not contain a provision identical to
R.C. 2929.19(B)(5) . Other appellate districts have readR.C. 2929.28(B) as requiring the sentencing court to consider the defendant‘s present and future ability to pay a financial sanction such as restitution. See, e.g., State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 34; State v. Rohda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 15.We do not need to determine whether
R.C. 2929.28(B) required the trial court to consider Daniels‘s present or future ability to pay, because the record in this case demonstrates that the trial court in fact did consider Daniels‘s ability to рay. The trial court presided over the sentencing hearing at which information concerning Daniels‘s work
{¶25} We similarly need not determine in this case whether
Court: I mean, your attorney says that you can‘t pay; is that right? You can‘t pay? You can‘t pay for the cost of what you did? Is that what you‘re telling me?
Craig: I‘m not telling you that.
Court: Well, I want to hear it from you. Are you going tо make good on this, or are we all wasting our time? Because I don‘t want to be the bearer of bad news, and I‘m sorry, Mr. Mack, I don‘t know that you‘re going to get that $5,000. It just might be the case that Mr. Craig, you know—I don‘t know. So are you going to do this or not?
Craig: Yes, I got a job, why would I not pay it?
Court: Three jobs, right?
Craig: Why would I not pay it?
Court: I‘m sorry, I couldn‘t understand you.
Craig: I said why would I not pay it.
Court: I‘m asking, because your attorney—
Craig: It‘s my fault so I‘ve got to deal with it but—I admit it.
Court: I appreciate that. I appreciate that. Because your attorney said repeatedly that you didn‘t have the ability to pаy it. So I want to make that clear. I appreciate that. And I understand he‘s got a job to do, and he‘s making his argument, but I want to make clear, before I put somebody on probation, and a big part of probation on this case is going to be the payment of the restitution. Okay? I want to make that clear. I want that money paid. The sooner, the better. Do you understand what I want mean?
Craig: Yes, sir.
{¶26} This colloquy evidencеs both the importance that the trial court placed on Ron receiving restitution and the court‘s recognition that it did not want to set Craig up for failure by ordering restitution that he lacked the ability to pay. Because the trial court considered Craig‘s ability to pay before imposing restitution, we find Craig‘s argument to the contrary to be without merit.
{¶27} Craig‘s first assignment of error is sustained in part and overruled in part. Beсause the trial court abused its discretion in awarding restitution in the amount of the cost of repair without considering the evidence in the record about the value of the vehicle and without determining whether the cost of repair exceeded the vehicle‘s value, the trial court‘s imposition of $5,000 in restitution is reversed.
II. No-Contest Plea
{¶28} In his second assignment of error, Craig argues that the trial court erred in accepting his no-contest plea, as it was not entered knowingly, intelligently, and
{¶29} Craig pled guilty to the OVI offense, a first-degree misdemeanor, and no contest to driving left of center. Prior to accepting Craig‘s guilty plea to the OVI offense, the court сomplied with
{¶30} The trial court engaged in no colloquy with Craig when accepting his no-contest plea to driving left of center. Other than the trial court asking for a reading of the facts as to that offеnse, it was not separately addressed at the plea hearing.
{¶31}
{¶32} The trial court in this case was required to inform Craig that a no-contest plea “is not an admission of [his] guilt, but is an admission of the truth of the facts alleged in the complaint and such plea or admission shall not be used against
{¶33} In Schuster, the court stated that a defendant‘s “right to be informed of the effect of his no-contest pleas is nonconstitutional and substantial compliance with
{¶34} Here, the trial court completely failed to comрly with
III. Sentencing
{¶35} In his third assignment of error, Craig argues that the trial court erred in the imposition of sentence.
{¶36} Craig first argues that the trial court еrred in imposing a $400 fine for the OVI offense when that fine was not imposed in open court at sentencing. The state concedes this error.
{¶37} The trial court‘s sentencing entry for the OVI offense reflects that it imposed a $400 fine. However, the court did not impose this fine in open court at the
{¶38} Pursuant to
{¶39} Pursuant to
{¶41} Craig additionally argues in this assignment of error that the trial court erred in imposing a sentence of two years of community control for the offense of driving left of center when that sentence was not pronounced in open court and was improper in a minor-misdemeanor case. This argument has been rendered moot by our resolution of the second assignment of error, in which we held that Craig‘s no-contest plea to driving left of center was nоt entered knowingly, voluntarily, or intelligently.
{¶42} Craig‘s third assignment of error is accordingly sustained in part, and the portion of the sentence for the OVI offense imposing a $400 fine is reversed. On remand, the trial court must impose the mandatory fine in Craig‘s presence in open court. The remainder of the assignment of error is moot.
IV. Conclusion
{¶43} Craig‘s no-contest plea to driving left of center is vacated because the trial court failed to advise him of the effect of the plea as required by
WINKLER and Bock, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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