State v. DremsekState v. Dremsek
For Plaintiff-Appellee:
MARK CORROTO DELAWARE CITY PROSECUTOR 70 N. Union St. Delaware, OH 43015
For Defendant-Appellant:
DOMINIC L. MANGO 46 N. Sandusky St. Delaware, OH 43015
{¶1} Defendant-Appellant John Dremsek appeals the January 5, 2009 judgment entry of the Delaware Municipal Court ordering Appellant to pay restitution. Plaintiff-Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On May 2, 2008, Appellant and Jason Jenkins were driving their respective vehicles in a private parking lot. While Jenkins was moving his car forward from his parking space, he vehicle was struck by Appellant’s vehicle. Appellant did not notice damage to his vehicle and drove away.
{¶3} A police officer arrived on the scene and interviewed Jenkins. Shortly thereafter, the officer interviewed Appellant. Based on his investigation, the officer charged Appellant with a violation of
{¶4} On August 22, 2008, Appellant appeared before the Delaware Municipal Court and entered a plea of no contest to an amended charge of violation of
{¶5} An evidentiary hearing was held on December 22, 2008. Appellant did not appear at the hearing, but he was represented by his counsel. Jenkins testified as to
{¶6} On January 5, 2009, the trial court issued a judgment entry ordering Appellant to pay restitution in the amount of $1,834.53 to Jenkins to compensate him for his economic loss. The trial court found Appellant’s reckless driving resulted in the collision with Jenkins’s vehicle.
{¶7} It is from this decision Appellant now appeals.
ASSIGNMENT OF ERROR
{¶8} Appellant raises one Assignment of Error:
{¶9} “I. THE TRIAL COURT ERRED WITH PREJUDICIAL IMPACT AGAINST DEFENDANT BY ORDERING RESTITUTION RELATING TO AN OFFENSE OR OFFENSES FOR WHICH THE APPELLANT WAS NOT CONVICTED OR EVEN CHANGED.”
I.
{¶10} Appellant argues in his sole Assignment of Error that the trial court was not authorized to impose restitution as a sanction based upon Appellant’s conviction for failure to stop after an accident involving property of others, a first-degree misdemeanor. We agree.
{¶11}
{¶12} “(A) In addition to imposing court costs pursuant to section
{¶13} “(1) Unless the misdemeanor offense is a minor misdemeanor or could be disposed of by the traffic violations bureau serving the court under Traffic Rule 13, restitution by the offender to the victim of the offender‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss. The court may not impose restitution as a sanction pursuant to this division if the offense is a minor misdemeanor or could be disposed of by the traffic violations bureau serving the court under Traffic Rule 13. If the court requires restitution, the court shall order that the restitution be made to the victim in open court or to the adult probation department that serves the jurisdiction or the clerk of the court on behalf of the victim.
{¶14} “If the court imposes restitution, the court shall determine the amount of restitution to be paid by the offender. If the court imposes restitution, the 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 impose restitution, the court shall hold an evidentiary hearing on restitution if the offender, victim, or survivor disputes the amount of restitution. If the court holds an evidentiary hearing, at the hearing the victim or survivor has the burden to prove by a preponderance of the evidence the amount of restitution sought from the offender.
{¶16} We find the Tenth District Court of Appeals in City of Columbus v. Cardwell, 176 Ohio App.3d 673, 2008-Ohio-1725, 893 N.E.2d 526, addressed the exact issue as presented by Appellant. In Cardwell, the defendant was convicted of failing to maintain an assured clear distance ahead, a minor misdemeanor, and failing to stop after an accident, a first-degree misdemeanor. The trial court imposed a fine of $125 and costs; a 90-day jail sentenced but suspended 89 days of the sentence; and placed the appellant on probation for two years. As a condition of probation, the trial court ordered the defendant to pay the victim restitution in the amount of $771.94, representing the property damage to the victim’s car. Id. at ¶1, ¶5.
{¶17} The Cardwell court first determined that
{¶18} “By enacting
{¶19} We find the same analysis to be applicable to the present case. Jenkins suffered no economic loss as a direct and proximate result of Appellant’s conviction for failure to stop after an accident. The property damage to Jenkins’s vehicle occurred before Appellant’s unlawful conduct.
{¶20} As in Cardwell, the State relies on this Court’s decision in State v. Hunt, Knox App. No. 04-CA-00005, 2004-Ohio-5519, to argue that restitution is a proper sanction when there is a conviction for failure to stop after an accident. We find the underlying circumstances in Hunt to be distinguishable from the present case. In Hunt, the defendant collided with a horse-drawn buggy and caused serious physical injuries to one of the buggy’s occupants. The defendant fled the scene of the accident. The defendant entered a guilty plea to one count of leaving the scene of an accident. The charge was elevated from a misdemeanor to a felony of the fifth degree because the violation resulted in serious physical harm to a person as stated in
{¶21} This Court found the trial court had the authority to order restitution under
{¶22} We therefore sustain Appellant’s sole Assignment of Error.
{¶23} The judgment of the Delaware Municipal Court as to the order of restitution is reversed and the January 5, 2009 judgment is vacated.
By: Delaney, J.
Farmer, P.J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE
PAD:kgb
For the reasons stated in our accompanying Memorandum-Opinion on file, the January 5, 2009 judgment entry of the Delaware Municipal Court is reversed and vacated. Costs assessed to Appellee.
HON. PATRICIA A. DELANEY
HON. SHEILA G. FARMER
HON. JOHN W. WISE