STATE OF OHIO v. THERESA B. KENNEDY
C.A. CASE NOS. 2016-CA-15 and 2016-CA-16
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
January 6, 2017
[Cite as State v. Kennedy, 2017-Ohio-26.]
T.C. NOS. 15CR309 and 15CR122 (Criminal Appeal from Common Pleas Court)
Rendered on the 6th day of January, 2017.
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NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Teresa B. Kennedy appeals from her convictions, on her guilty pleas, in two separate cases. In Case No. 2015 CR 122, Kennedy pled guilty to aggravated possessiоn of drugs; the trial court sentenced Kennedy to 36 months in prison, to be served concurrently with the sentence in Case No. 2015 CR 309. In Case No. 2015 CR
{¶ 2} Although Kennedy appeals from her convictions in both cases, her assignments of error relate only to Case No. 2015 CR 309. Accordingly, we will affirm the trial court‘s judgment in Case No. 2015 CR 122 without further discussion.
{¶ 3} With respect to Case No. 2015 CR 309, Kennedy claims that the trial court erred in imposing consecutive sentences without making the necessary statutory findings and that the trial court erred in imposing restitution. Fоr the following reasons, the trial court‘s judgment in Case No. 2015 CR 309 will be reversed in part, and the matter will be remanded for further proceedings consistent with this opinion, as detailed below.
I. Consecutive Sentences
{¶ 4} In her first assignment оf error, Kennedy claims that the trial court erred in imposing consecutive sentences without making statutory findings.
{¶ 5} On December 17, 2015, Kennedy pled guilty to 13 charges, and the State agreed to dismiss an additiоnal eight charges. The plea agreement did not include an agreement as to Kennedy‘s sentence. However, the State agreed not to ask for a sentence exceеding 20 years and that it would recommend that any sentence imposed in the case (Case No. 2015 CR 309) run concurrently to the sentence imposed in Case No. 2015 CR 122.
| I | Engaging in a pattern of corrupt activity | 2923.32(A)(1) | F1 | 10 years |
| II | Burglary | 2911.12(A)(1) | F2 | 5 years |
| III | Grand theft (firearm) | 2913.02(A)(1) | F3 | 36 months |
| VI | Grand theft (auto) | 2913.02(A)(1) | F4 | 18 months |
| VIII | Burglary | 2911.12(A)(3) | F3 | 36 months |
| IX | Grand theft (firearms) | 2913.02(A)(1) | F3 | 36 months |
| XI | Receiving stolen property | 2913.51(A) | F5 | 12 months |
| XII | Burglary | 2911.12(A)(2) | F2 | 5 years |
| XVI | Burglary | 2911.12(A)(2) | F2 | 5 years |
| XVII | Grand theft (firearms) | 2913.02(A)(1) | F3 | 36 months |
| XIX | Theft | 2913.02(A)(1) | F5 | 12 months |
| XX | Forgery | 2913.31(A)(3) | F5 | 12 months |
| XXI | Inducing panic | 2917.31(A)(1) | F2 | 6 years |
All counts were ordered to be served concurrently with each other, with the exception that Counts I (engaging in a pattern of corrupt activity) and XXI (inducing panic) were to be served consecutively, for an aggregate sentence of 16 years in prison.
{¶ 7} In general, it is presumed that prison terms will be served concurrently.
- The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, orwas under post-release control for a prior offense. - At least two of the multiple offenses were committеd as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
- The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 8} In reviewing felony sentences, appellatе courts must apply the standard of review set forth in
{¶ 9} In ordering Cоunts I and XXI to be served consecutively, the trial court made no findings at the sentencing hearing, as required by
{¶ 10} In its appellate brief, the State agrees with Kennedy that the trial court was required to make findings under
{¶ 11} Kennedy‘s first assignment of error is sustained.
II. Restitution
{¶ 12} Kennedy‘s second assignment of error claims that the trial court erred “when it ordered Kennedy to pay two restitution amounts.”
{¶ 13}
{¶ 14} A defendant who does not dispute an amount of restitution, request a hearing, or otherwise object waives all but plain error in regards to the order of restitution. State v. Woods, 2d Dist. Clark No. 2015-CA-75, 2016-Ohio-1103, ¶ 12.
{¶ 15} Kennedy‘s plea agreement with the State provided that she agreed “to total restitution of $19,110.19, with her share being $7,036.73.” The record reflects that Kennedy had a co-defendant, who рresumably would be responsible for the balance.
{¶ 16} During the sentencing hearing, the trial court imposed restitution, as follows:
PROSECUTOR: That‘s correct, Your Honor.
THE COURT: [Defense counsel]?
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: Thank you. That amount can be collected through execution as described in Division (D)(1) of Ohio Revised Code section
[DEFENSE COUNSEL]: Your Honor, if I may. That is the total restitution figure between the two parties?
THE COURT: That‘s correct.
[DEFENSE COUNSEL]: Okay.
THE COURT: The Defendant shall be considered for purpose of collection as a judgment debtor. The Defendant is ordered to pay restitution of $7,036.73. * * * Pursuant to
{¶ 17} The triаl court‘s judgment entry imposed restitution as stated at the sentencing hearing. (The trial court indicated at the sentencing hearing that it was
{¶ 18} Kennedy agreed in her plea agreement to the tоtal amount of restitution and to her share of that total that she was required to pay. Defense counsel asked for a clarification at sentencing as to whether $19,110.19 reflected the total restitution owed by Kennedy and her co-defendant, but defense counsel did not object to the inclusion of both amounts in her sentence.
{¶ 19} Upon review of the sentencing hearing, the trial court may have been trying to say that the victims of Kennedy‘s offenses had incurred an economic loss of $19,110.19, for which Kennedy should be considered a judgment debtor, and that she was required to pay as restitution the amount of $7,036.73, which was her share of the total economic loss. However, by stating that “the Court imposes a financial sanction of restitution as an order in favor of the victims of Defendant‘s criminal acts in the amount of * * * $19,110.19,” the trial court ordered Kennedy to pay restitution in that amount. The court‘s separate order that Kennedy pay “restitution of $7,036.73” is a seсond order of restitution, and it is not clear from the judgment‘s wording that the $7,036.73 represented the portion of the $19,110.19 that Kennedy was required to pay. Thus, the judgment entry, as worded, imposed two orders of rеstitution, arguably totaling $26,146.92, which is inconsistent with the plea agreement, the trial court‘s intended restitution order, and the victim‘s apparent economic loss. For these reasons, we conclude that the trial court‘s order of restitution constitutes plain error.
{¶ 20} Kennedy‘s second assignment of error is sustained.
III. Conclusion
{¶ 21} The trial court‘s judgment in Case No. 2015 CR 122 will be affirmed in its
{¶ 22} In Case No. 2015 CR 309, the trial court‘s imposition of consecutive sentences will be rеversed, and the matter will be remanded to the trial court to consider whether consecutive sentences are appropriate under
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DONOVAN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Nathaniel R. Luken
Robert Alan Brenner
Hon. Michael A. Buckwalter