STATE OF OHIO v. ELIZABETH FISSEL
APPEAL NO. C-210483; TRIAL NO. B-2005750
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 3, 2022
[Cite as State v. Fissel, 2022-Ohio-1856.]
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 3, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Arenstein & Gallagher and Elizabeth Conkin, for Defendant-Appellant.
{¶1} In a case reminiscent of a movie plot, a once-trusted employee pilfered a staggering sum of money (around $2 million) from the company for which she worked before eventually getting caught and pleading guilty to the theft. She now claims that the trial court committed a number of errors in imposing an eight-year term of incarceration. We disagree, however, and find the record at hand supports the trial court‘s sentencing decision. Accordingly, we affirm its judgment.
I.
{¶2} Shortly after being hired as the controller at Hadronics, Inc., defendant-appellant Elizabeth Fissel embarked on a brazen embezzlement campaign. For the next five and a half years, on a near-weekly basis, Ms. Fissel abused her position of trust by forging checks to herself, endorsing them with the company‘s signature stamp, and depositing them into her personal account. Ms. Fissel‘s responsibilities as controller allowed her to inaccurately record and report Hadronics’ expense obligations, effectively hiding the fraudulent deposits and making it seem (on paper) as if Hadronics was lurching towards financial distress. With no one at the company looking over her shoulder, she acted with impunity.
{¶3} But she ultimately became a victim of the scheme‘s success. In 2020, with the company teetering in a precarious financial situation, it forced Hadronics to downsize its labor force and payroll costs to stay afloat. In a twist of fate (or perhaps karma), Hadronics could no longer afford to employ a controller or a number of other employees. The company thereby eliminated Ms. Fissel‘s position and she departed the same day, though not before accepting a severance agreement from Hadronics on the way out the door. Without Ms. Fissel‘s manipulation of its accounting records,
{¶4} Later that year, a grand jury indicted Ms. Fissel on three counts of theft and one count of tampering with records. Ms. Fissel pled guilty to one count of theft under
II.
A.
{¶5} As an initial matter, Ms. Fissel lodged no objections during her sentencing hearing, thereby forfeiting all but plain error review for each assignment of error.
{¶6} Ms. Fissel first contends that the trial court violated her constitutional right to due process by relying on hearsay statements in support of its decision to
{¶7} The state correctly responds that Ms. Fissel‘s cited federal standard does not reflect Ohio law regarding sentencing (because it pertains to a calculation under the federal sentencing guidelines). Under Ohio law, because sentencing proceedings fall “[a]mong those listed as specifically excepted from the Rules of Evidence, including the hearsay rule,” reliable hearsay statements such as victim-impact statements or presentence investigation reports are permissible in an Ohio trial court‘s sentencing determination. State v. Cook, 83 Ohio St.3d 404, 425, 700 N.E.2d 570 (1998), overruled on other grounds, State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 16. “Hearsay is considered reliable when it bears ‘sufficient indicia of reliability to support its probable accuracy,’ or when there is ‘a reasonable
{¶8} With that standard in mind, we turn to the evidence considered by the trial court. The victim of a crime has the right to personally present an impact statement to the court prior to sentencing, see
{¶9} Our review of the sentencing hearing shows that the trial court properly considered the statutory factors, including the victim-impact statement. We see no indication in the record to cast doubt on the reliability of any of Mr. McDowell‘s information. Ms. Fissel failed to challenge the accuracy of Mr. McDowell‘s statements at either the trial or appellate level, and the statements he made are substantially corroborated in the record by Ms. Fissel‘s guilty plea, the presentence investigation report, the forensic psychological report, and Ms. Fissel‘s sentencing memorandum
{¶10} We must also keep in mind the overarching purpose of a victim-impact statement—to advise the trial court of the economic loss suffered by the victim and to explain the impact experienced by the victim as a result of the offense. See
{¶11} Ms. Fissel also takes issue with Mr. McDowell‘s assertions that she dodged service in the civil suit against her, lied about the value of some assets in that case, and disposed of other assets to prevent attachment in the civil suit. But Mr. McDowell represented the company in the civil suit that it filed against her, and he questioned Ms. Fissel at her deposition. Given his first-hand knowledge of such matters, we fail to see any plain error by the court in this respect.
{¶12} This assignment of error seems to boil down to a claim that the trial court fell sway to impermissible factors by virtue of the difference between the prison term offered by the state and the sentence ultimately imposed. Ms. Fissel declined the state‘s original offer of an agreed six-year prison term in exchange for a guilty plea to the first-degree felony theft. At the sentencing hearing, Hadronics asked the court to impose a sentence at the higher end of the range, a statement Ms. Fissel now takes umbrage with. But in light of her rejection of the state‘s offer, there was no agreed or recommended sentence on the table from which the trial court deviated. And even if there had been, “plea agreements are generally made between the State and a defendant * * * [and] are not inherently binding upon the trial court.” (Emphasis sic.) State v. Elliott, 2021-Ohio-424, 168 N.E.3d 33, ¶ 8 (1st Dist.) (elaborating on the distinctions between agreed and recommended sentences, and on scenarios where trial courts can be bound).
{¶13} A defendant who rejects a recommended sentence offer and, in effect, elects to roll the dice on the trial court‘s sentencing discretion does not get to reroll simply because the dice bounced unfavorably. The trial court warned Ms. Fissel when accepting her guilty plea that no agreed sentence existed and that she was “facing 3 to 11 years in prison” at sentencing. No one disputes the accuracy of that range, and we see no plain error in the imposition of the sentence within the appropriate range on the record at hand. Accordingly, we overrule Ms. Fissel‘s first assignment of error.
B.
{¶14} In her second assignment of error, Ms. Fissel claims her sentence stands contrary to law because the trial court failed to consider evidence of remorse. An
{¶15} Because
C.
{¶17} In her final assignment of error, Ms. Fissel argues that the trial court erred by not imposing court costs at the sentencing hearing. In support of this argument, Ms. Fissel cites to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, for the proposition that a trial court must impose court costs at the sentencing hearing in order for an indigent defendant to seek a waiver. “However, Joseph is no longer good law for this point.” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 263. After Joseph was decided, “the General
* * *
{¶18} In light of the foregoing analysis, we overrule all three of Ms. Fissel‘s assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P. J., and Bock, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.