State v. LongState v. Long
Eric J. Cherry, Bartos & Company, LPA, 20220 Center Ridge Road, Suite 160, Rocky River, OH 44116 (For Defendant-Appellant).
MARY JANE TRAPP, P.J.
{1} Appellant, Howard S. Long (“Mr. Long“), appeals from the Geauga County Court of Common Pleas’ judgment of conviction after he pleaded guilty to grand theft of a motor vehicle. As part of his sentence, the trial court ordered restitution payable to the victim, Norman Brakeman (“Mr. Brakeman“).
{3} From our review of the record and pertinent law, it is clear that the trial court considered Mr. Long‘s present and future ability to pay restitution pursuant to
{4} Since there was no error, plain or otherwise, in the trial court‘s sentencing order imposing restitution payable to the victim, Mr. Long‘s assignment of error is without merit.
{5} The judgment of the Geauga County Court of Common Pleas is affirmed.
Substantive and Procedural History
{6} The instant case arises from an incident in which Mr. Long stole Mr. Brakeman‘s vehicle, which also contained his customized toolbox, tools, and groceries. While the vehicle was recovered, Mr. Brakeman‘s toolbox, tools, and groceries were not.
{7} Mr. Long was charged with one count of grand theft of a motor vehicle, a fourth-degree felony, in violation of
{8} Mr. Long entered into a plea agreement with the state, where he agreed to plead guilty to the count of grand theft of a motor vehicle, and the state agreed to move to dismiss the count of theft. The plea agreement further stated that the state would “recommend a term of residential community control, but it will take into consideration the
{9} The court accepted Mr. Long‘s guilty plea and set the matter for a PSI and a sentencing hearing.
{10} At the sentencing hearing, Mr. Brakeman testified to the value of the stolen items. His testimony included the amount of the deductible for his stolen vehicle, the value of the tools that were stolen, including a credit card reader he used for customer payments, as well as the amount he spent on the groceries. Mr. Brakeman obtained the value of the tools from searching for their equivalent at Home Depot and taking pictures of the prices of the tools.
{11} After consideration of the record, information presented by Mr. Brakeman, the prosecuting attorney, the PSI report, Mr. Long‘s ability to pay financial sanctions, and any victim impact statements, the principles and purposes of
{12} The court also issued a separate restitution order that detailed Mr. Brakeman‘s losses and his requested compensation in the corresponding amounts. The court found that pursuant to
{13} Mr. Long raises one assignment of error on appeal:
{14} “The trial court erred by failing to consider defendant‘s future ability to pay and abused its discretion when considering defendant‘s present and future ability to pay.”
Standard of Review
{15} Both parties state that our standard of review when addressing the imposition of restitution is an abuse of discretion. Since the enactment of H.B. 86, however, we review felony sentences, which include restitution orders, pursuant to
{16} Thus, pursuant to
{17} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{18} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of
{19} “(b) That the sentence is otherwise contrary to law.”
{21} Mr. Long, however, failed to object to the trial court‘s order of restitution. Failure to object to the court‘s order of restitution constitutes a waiver of all error except plain error. State v. Carroll, 11th Dist. Ashtabula Nos. 2017-A-0030 & 2017-A-0031, 2018-Ohio-1884, ¶ 48.
{22}
Restitution Orders
{23} A court imposing a sentence upon a felony offender may order the offender to make restitution “to the victim of the offender‘s crime * * * in an amount based on the victim‘s economic loss.”
{25}
{26} From our review of the record, it is clear that the trial court considered the PSI report and Mr. Long‘s ability to pay, both of which the trial court explicitly stated during the sentencing hearing after both sides argued the issue and in the judgment of conviction.
{27} The state argues that the requirement that the trial court consider a defendant‘s present and future ability to pay financial sanctions, pursuant to
{29} Since our review indicates no error, plain or otherwise, in the trial court‘s sentencing order imposing restitution, Mr. Long‘s assignment of error is without merit.
{30} The judgment of the Geauga County Court of Common Pleas is affirmed.
CYNTHIA WESTCOTT RICE, J.,
THOMAS R. WRIGHT, J.,
concur.