State v. LeGrantState v. LeGrant
{¶ 1} Defendant-appellant, Michael D. LeGrant, appeals from his conviction and sentence for Aggravated Arson, in violation of
{¶ 2} We conclude that the trial court did err on the issue of restitution. We also find that the court erred in failing to incorporate in its sentencing entry the statutory factors required for the imposition of consecutive sentences. Accordingly, that part of the judgment of the trial court awarding restitution is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is Remanded for a hearing on the restitution issue, and for a nunc pro tunc entry incorporating in its judgment entry the consecutive-sentence findings the trial court made at the sentencing hearing.
I. The Course of the Proceedings
{¶ 3} LeGrant started a fire in an apartment building that caused substantial property damage, and was the direct and proximate cause of personal injuries to several residents of the building. LeGrant pled guilty to two counts of Aggravated Arson. At the sentencing hearing, the trial court specifically referred to, and made a part of the record, a pre-sentence investigation
From his conviction and sentence, LeGrant appeals.
II. The Trial Court Erred in Ordering Restitution in an Amount Not Supported by Competent and Credible Evidence
{¶ 4} LeGrant‘s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN ITS ORDER OF RESTITUTION.
{¶ 5} LeGrant alleges that the amounts ordered for restitution are improper. The victim impact statements, provided to the trial court as part of the PSI, did contain an itemization of property losses incurred by the victim, Candise Miller. In the letter, Miller admitted that the expense of rent and her rental deposit, in the sum of $761, was returned to her by her landlord. Miller explained how she paid for the other expenses, but there was no evidence from which to determine whether any of Miller‘s other expenses were reimbursed by insurance or by any other source. The document, which allegedly itemizes “out of pocket” expenses of the property owner, Trent Grove, was not dated, signed, or verified by any person, and makes no reference to sums
{¶ 6} We review a trial court‘s order of restitution under an abuse of discretion standard. State v. Naylor, 2d Dist. Montgomery No. 24098, 2011-Ohio-960, ¶ 22. “Generally, abuse of discretion occurs when a decision is grossly unsound, unreasonable, illegal, or unsupported by the evidence.” State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-671, 959 N.E.2d 1082, ¶ 16 (2d Dist.); State v. Beechler, 2d Dist. Clark No. 09CA54, 2010-Ohio-1900, ¶ 60–70. A decision is unreasonable if there is no sound reasoning process that would support that decision. State v. Jones, 2d Dist. Montgomery Nos. 25315 & 25316, 2013-Ohio-1925, ¶ 32.
{¶ 7}
{¶ 8} We have held that “[a] defendant who does not dispute an amount of restitution,
{¶ 9} The legal rule at issue states, “[t]here must be competent, credible evidence in the record to support the trial court‘s order of restitution ‘to a reasonable degree of certainty.’ The amount of restitution requested should, if necessary, be substantiated through documentary or testimonial evidence.” (Citations omitted.) State v. Hess, 2d Dist. Montgomery No. 24453, 2012-Ohio-961, ¶ 35. The documents in the PSI report, relied on by the trial court do not contain sufficient information from which the court could determine, within any degree of certainty, the amount of the victims’ actual loss.
{¶ 10} We also find that the lack of credible, competent evidence of the victims’ actual losses is an obvious defect in the record, and affected the ultimate outcome. When an award of restitution is not supported by such evidence, it is an abuse of discretion by the court that alters the outcome of the proceeding, thus constituting plain error. State v. Alcala, 6th Dist. Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 30. The letter from the insurance company and an unverified document allegedly from the property owner are the only two documents in the PSI report that
{¶ 11} LeGrant also alleges that the trial court failed to properly consider his ability to pay the order of restitution.
{¶ 12} The record does reflect that the court considered evidence from the PSI report, and the statements made at the sentencing hearing, which included facts about LeGrant‘s age, health, education, work history and ability to work. Under these circumstances, we conclude that the trial court did not fail to consider LeGrant‘s present or future ability to pay restitution. However, we agree with LeGrant that the amount of the restitution ordered was not supported by sufficient evidence of the victims’ actual losses. Accordingly, LeGrant‘s First Assignment of Error is sustained.
III. The Two Counts of Aggravated Arson Are Not Subject to Merger.
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING.
{¶ 14} LeGrant contends that the court should have merged the two Aggravated Arson convictions for purposes of sentencing, and also failed to make the requisite findings before ordering consecutive sentences. Merger is a sentencing issue, so the defendant bears the burden of establishing the necessary factors before he is entitled to the protection of the allied offenses statute,
{¶ 15} The Supreme Court of Ohio in State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E. 2d 1061, created a three-prong test to guide a court in deciding whether to merge two allied offenses for sentencing purposes. First, in determining whether offenses are allied offenses of similar import under
{¶ 16} LeGrant argues that his offenses should have been merged because he only set one fire, and therefore it was possible that his single act of setting one fire could result, and did result, in convictions for two counts of Aggravated Arson. Thus, the first prong of the Johnson test was met because both offenses could be committed by a single act. The second prong of the test is met by facts that support a finding that LeGrant did in fact commit both arson offenses with a single act. However, the third prong requires a finding that LeGrant committed both offenses with the same animus.
{¶ 17} At the sentencing hearing, the trial court did specifically find that LeGrant committed the two offenses with separate animuses. LeGrant‘s conviction for violating
{¶ 18} In a similar case involving sentencing of a defendant for convictions of both
{¶ 19} In the case before us, LeGrant does not dispute that his single act of setting a single fire caused damage to at least five families, who lost their home and personal property in the fire, in addition to the loss suffered by the owner of the apartment building. LeGrant has not met his burden of proving that the offenses he committed in violation of
{¶ 20} We also reject LeGrant‘s contention that the court erred in failing to identify on the record the findings required by statute before imposing consecutive sentences. Pursuant to
{¶ 21} The trial court did not err in imposing consecutive sentences and refusing to merge the two arson offenses, but the court is obligated to included these factors in the sentencing order. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. As we
{¶ 22} LeGrant‘s Second Assignment of Error is overruled.
IV. LeGrant Has Not Shown that but for his Counsel‘s Ineffective Assistance, There Is a Reasonable Probability that the Results Would Have Been Different.
{¶ 23} LeGrant‘s Third Assignment of error is as follows:
APPELLANT‘S COUNSEL WAS INEFFECTIVE.
{¶ 24} LeGrant contends that his trial attorney was ineffective because his attorney did not fully explain to him, based on the merger of allied offenses statute, that additional charges might not result in consecutive sentences. It is not disputed that LeGrant entered into a plea agreement to plead guilty to two charges of Aggravated Arson at least in part to avoid the possibility of being charged with additional counts of arson, based on harm to multiple victims.
{¶ 25} To establish a claim for ineffective assistance of counsel, the defendant has the burden of demonstrating that: 1) the performance of defense counsel was seriously flawed and deficient, and 2) there is a reasonable probability that the result of the defendant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. State v. Jones, 8th Dist Cuyahoga No. 99703, 2014-Ohio-1634, ¶ 8, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Strickland, at 694.
{¶ 26} In the case before us, LeGrant has not met his burden of demonstrating that his attorney‘s assistance was seriously flawed or that the outcome would likely have been different, if
{¶ 27} LeGrant‘s Third Assignment of Error is overuled.
V. Conclusion
{¶ 28} LeGrant‘s First Assignment of Error having been sustained, and his other assignments having been overruled, that part of the judgment of the trial court awarding restitution is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is remanded for further proceedings consistent with this opinion.
FROELICH, P.J., and HALL, J., concur.