STATE OF OHIO, Plaintiff-Appellee, v. BRIAN E. DURHAM, Defendant-Appellant.
Case Nos. 13CA2, 13CA3
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
RELEASED: 10/15/2014
[Cite as State v. Durham, 2014-Ohio-4915.]
Harsha, J.
APPEARANCES:
Timothy Young, Ohio Public Defender, and Francisco E. Lϋttecke, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Jeremy L. Fisher, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
Harsha, J.
{¶ 1} Brian E. Durham appeals from judgments entered in separate criminal cases, but confines his argument to contesting a restitution order in his conviction for a misdemeanor charge of misconduct at an emergency. In his sole assignment of error Durham contends that the trial court erred when it ordered him to pay restitution to a third-party, non-victim when damages were attributed to an arson charge upon which he was not convicted. We agree. The trial court based its restitution order on
{¶ 2} Although
{¶ 3} Therefore, we sustain Durham’s assignment of error and reverse the portion of the judgment of the trial court ordering him to pay restitution for the crime of misconduct at an emergency. We affirm the remainder of the trial court’s judgments.
I. FACTS
{¶ 4} These consolidated appeals arise from the two criminal cases. In Meigs C.P. Case No. 11-CR-106, a Meigs County grand jury returned an indictment charging Durham with one count of aggravated arson in violation of
{¶ 6} When the trial court suggested that the plea agreement included Durham’s consent to pay any restitution the court might order, Durham’s counsel noted that the parties had never talked about restitution. The parties stipulated that for purposes of the plea hearing the amended misdemeanor charge was a lesser included offense of the original aggravated arson charge.
{¶ 7} Before sentencing the victim-impact statement was filed under seal. The statement listed two victims of the original aggravated arson charge—Collins and Grange Mutual Casualty Company. Collins claimed damages of $41,363.16 “[t]o repair arson damage” caused to the house Durham “was accused of catching on fire.” Grange contended that it had incurred lost expenses on a homeowners insurance claim that Durham filed but which the insurance company had denied.
THE COURT: Well, here’s my problem, Ms. Collins. If I understand the conviction correctly, whatever charge he was convicted with with regard to you, the case that you’re actually the victim in, that case was dismissed. Is that where we are? Ms. Petrasko, is that where we are?
VICTIM’S ADVOCATE PETRASKO: From what… Uh…
THE COURT: He’s only charged with… He’s not charged with the insurance or the arson. He got misconduct in an emergency, a misdemeanor of the first degree. Misconduct in an emergency, the misconduct would be against the people of the State of Ohio or the responding agency. By statute, there would not be a victim named. So I can’t do what she wants even if she asked me, can I?
VICTIM’S ADVOCATE PETRASKO: Correct, Your Honor.
* * *
THE COURT: * * * [A]s a result of th[is] plea agreement or what the State thought they could prove, your case got disposed of short of the conviction that affects your property. So the only thing that’s available to you is a civil sanction, you could sue him. * * * [Y]ou’re no longer a victim in the case that he’s convicted of here.
{¶ 9} The trial court then changed its mind because it did not “think it’s right that Ms. Collins is not made whole at least in part.” The court found that “pursuant to
{¶ 11} In Meigs C.P. Case No. 11-CR-153 the trial court convicted Durham of two felony counts of aggravated trafficking in drugs upon his guilty plea and sentenced him to a five-year term of community control with underlying consecutive 18-month sentences. In Case No. 13CA3, Durham appealed from this sentence.
{¶ 12} We granted Durham’s motion to consolidate these appeals.
II. ASSIGNMENT OF ERROR
{¶ 13} Durham assigns the following error for our review:
- The trial court erred when it ordered Mr. Durham to pay restitution to JoAnn Collins.
III. STANDARD OF REVIEW
{¶ 14} Durham did not object to the trial court’s restitution order at sentencing. Therefore, we review his argument on appeal under the plain-error standard of review. See State v. Leslie, 4th Dist. Hocking Nos. 10CA17 and 10CA18, 2011-Ohio-2727, ¶ 27 (applying this standard of review to a restitution order that the defendant did not object to at trial). “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
{¶ 16} Although we generally review a decision to award restitution under an abuse of discretion standard, we review the question of who constitutes a crime victim for purposes of awarding restitution as a matter of law, i.e. de novo. See generally State v. Stump, 4th Dist. Athens No. 13CA10, 2014-Ohio-1487, ¶ 11.
IV. LAW AND ANALYSIS
Case No. 13CA3
{¶ 17} Although Durham appealed the trial court’s sentence relating to his convictions for aggravated trafficking in drugs in Meigs C.P. Case No. 11-CR-153, his brief does not contest that judgment. Therefore, we affirm the trial court’s judgment in that case.
Case No. 13CA2
{¶ 18} Instead, Durham’s sole assignment of error is related to the restitution order in his sentence on his conviction for misconduct at an emergency in Meigs C.P. Case No. 11-CR-106. Durham contends that the trial court committed plain error
{¶ 19} The trial court based its restitution order on its authority under
{¶ 20} Moreover, under
{¶ 21} Although not mentioned by the trial court at either the sentencing hearing or in its sentencing entry,
{¶ 23} The crime for which Durham was convicted was misconduct at an emergency in violation of
{¶ 24} Durham claims that a person like Collins, whose house was damaged in a fire, cannot be a victim of this offense because the victim is—as the trial court initially stated during the proceedings below—the official whose duties are being hampered by the offender’s misconduct. But as the state counters, Durham was convicted of the first-degree misdemeanor version of the crime, which specifies that the misconduct “creates a risk of physical harm to persons or property.”
{¶ 25} Nevertheless, there is no evidence in the record that supports the trial court’s finding that Collins incurred damage to her house directly or proximately due to Durham’s interference with firefighters or police officers responding to the scene. At best, the evidence specified at the plea and sentencing hearings and the victim-impact statement instead indicated in ambiguous terms that Collins believed that her property was damaged because Durham, or “somebody” or “someone” else “caught it on fire” and caused the arson.
{¶ 26} Consequently, the sole evidence in the record that supports that Collins was a victim is related to the original charge of aggravated arson, not the amended charge of misconduct at an emergency. A trial court errs when it orders a defendant to pay restitution for damages attributable to an offense for which he was charged, but not convicted. State v. Ellis, 4th Dist. Washington No. 02CA48, 2003-Ohio-2243, ¶ 8-9, citing State v. Hafer, 144 Ohio App.3d 345, 348-349, 760 N.E.2d 56 (4th Dist.2001); State v. Stiles, 12th Dist. Butler No. CA2011-01-003, 2011-Ohio-4173, ¶ 7. Because Collins was not a victim of the charge for which Durham was convicted, the trial court committed plain error by ordering Durham to pay restitution to her. See Leslie, 4th Dist. Hocking Nos. 10CA17 and 10CA18, 2011-Ohio-2727, at ¶ 33 (reversing restitution order to a non-victim of a crime as plain error).
{¶ 27} Therefore, we sustain Durham’s assignment of error.
V. CONCLUSION
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART AND CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY:
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.