STATE OF OHIO v. MARIA MOLLETT
C.A. CASE NO. 2014-CA-85
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
May 1, 2015
[Cite as State v. Mollett, 2015-Ohio-1670.]
T.C. NO. 14CR272 (Criminal appeal from Common Pleas Court)
Rendered on the 1st day of May, 2015.
RYAN A. SAUNDERS, Arty, Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
JOSHUA M. KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423
Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Maria Mollett appeals from her conviction and sentence for one count of receiving stоlen property (RSP), in violation of
{¶ 2} On April 24, 2014, Mollett was indicted on two counts of RSP. Count one of
{¶ 3} Mollett entered into plea negotiations with the State, ultimately agreeing to plead guilty to Count II, RSP, in exchange for dismissal of the first count and the firearm specification. After the plea hearing, Mollett was released on her own recognizance and directed by the trial court to return for disposition on July 24, 2014.
{¶ 4} Pursuant to
{¶ 5} It is from this judgment that Mollett now appeals.
{¶ 6} Because they are interrelated, Mollett‘s first, second, and third assignments of error will be discussed together as follows:
{¶ 7} “THE TRIAL COURT‘S ORDER REQUIRING MOLLETT TO SUBMIT TO A
{¶ 8} “MOLLETT WAS DENIED HER SIXTH AMENDMENT RIGHT TO COUNSEL WHEN ORDERED TO SUBMIT TO A SEARCH OUTSIDE OF HER ATTORNEY‘S PRESENCE.”
{¶ 9} “MOLLETT WAS DENIED HER RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 10} As previously stated, Mollett pled guilty to one count of RSP, a felony of the fifth degree. Based on the positive results of the drug test ordered by the trial court at the sentencing hearing, Mollett‘s own-recognizance bond was revoked, and she was sentenced to ten months in prison. Ten months has lapsed and post-release control was optional. This Court‘s review of the Ohio Department of Rehabilitation and Correction‘s website confirms that Mollett is no longer an inmate, nor is she subject to post-release control. See State v. Erdman, 2d Dist. Montgomery No. 25814, 2014-Ohio-2997, ¶ 3 (tаking judicial notice that the appellant‘s name no longer appeared on the ODRC website).
{¶ 11} The issues raised by appointed appellate counsel in assignments of error I, II, and III are moot because Mollett hаs completed her sentence. The present appeal does not involve her conviction for RSP, and this court cannot provide any relief for the prison sentence she served as a result of the trial court rеvoking her bond as a result of the positive drug test. See State v. Tidd, 2d Dist. Montgomery No. 24922, 2012-Ohio-4982, ¶ 12 (“After this appeal had been submitted for decision on the merits, it occurred to this court that the appeal might be moot, since it appeared that Tidd had
{¶ 12} Because Mollett is appealing from the revocation of her bond and the imposition of a sentence that she has completed, the above assignments of error arе moot.
{¶ 13} Because they are interrelated, Mollett‘s fourth and fifth assignments of error will be discussed together as follows:
{¶ 14} “THE TRIAL COURT ERRED IN NOT HOLDING A RESTITUTION HEARING AFTER MOLLETT CHALLENGED THE BASIS FOR THE CALCULATION OF RESTITUTION.”
{¶ 15} “THE TRIAL COURT ERRED IN FAILING TO CONSIDER MOLLETT‘S ABILITY TO PAY RESTITUTION.”
{¶ 16} In her fourth assignment, Mollett argues that the trial court improperly denied her a hearing before ordering her to pay restitution to the victim in the amount of $7,500.00. Mollett also contends that the trial court failed to consider her ability to pay any restitution.
{¶ 17} A trial court abuses its discretion when it orders restitution that does not bear a reasonable rеlationship to the actual financial loss suffered. State v. Williams, 34 Ohio App.3d 33, 516 N.E. 2d 1270 (2d Dist. 1986). Therefore, we review a trial court‘s order of restitution under an abuse of discretion standard. See, e.g., State v. Naylor, 2d Dist. Montgomery No. 24098, 2011-Ohio-960, ¶ 22. “The abuse of discretion standard is
{¶ 18}
{¶ 19} A hearing is required only “if the offender, victim, or survivor disputes the amount of restitution ordered by the court.” State v. Wilson, 2d Dist. Montgomery No. 23167, 2010-Ohio-109, ¶ 21, citing
{¶ 20} “For due process reasons, the amount of restitution must bear a reasonable
{¶ 21} The following exchange occurred at Mollett‘s sentencing hearing on July 24, 2014:
Defense Counsel: Judge, with regard to the restitution order I‘d like the Court to allоw me to supplement the record and I‘ll gather the information and supply it to the Court here later on this morning.
With regard to the values that have been given here it lists two guns, two pistols. I don‘t know if that‘s also referring to the two shotguns. I know at least one was recovered and returned.
This other property was recovered and returned so again we have serious concerns about the accuracy of the restitution that‘s been determined.
I think a restitution hearing shоuld be conducted. My whole purpose of that is so I can supplement the records with pawn slips, pictures of the items returned, so we have a complete record for purposes of appeal.
The Court: Well, I think what‘s been placed on record is that your client was linked to the theft of a miter saw, which was $200.00, lots of coins for $500.00 or more, a diamond ring for $800.00, and then lots of jewelry for
$3,000.00 or more. That will be all for today.
{¶ 22} As previously stated,
{¶ 23} For the foregoing reasons, we conclude that the restitution order in the amount of $7,500.00 is not supported by competent, credible evidence. Thus, we conclude that the triаl court abused its discretion in ordering restitution without holding a hearing to determine the appropriate amount and identity of the unrecovered items.
{¶ 24} In her fifth assignment of error, Mollett claims that the trial court failed to consider hеr ability to repay her victim before ordering restitution. The record does not support her claim.
{¶ 25}
In State v. Ayers, 2d Dist. Greene No. 2004CA0034, 2005-Ohio-44, this court held a trial court‘s order of restitution was contrary to law becаuse there was nothing in the record indicating the trial court considered the defendant‘s ability to pay the ordered amount. Information contained in a presentence investigation report relating to defendant‘s age, hеalth, education and employment history, coupled with a statement by the trial court that it considered the presentence report, has been found sufficient to demonstrate that the trial court considered defendant‘s аbility to pay a financial sanction. (Citations omitted) Here, although the trial court stated that it had reviewed the presentence report, that document has not been included in the files and records presented to this cоurt. Neither does the State rely on its contents to refute Defendant‘s contention. Without knowledge of the contents of that presentence report, we cannot infer from it that the trial court considered Defendant‘s present and future ability to pay a financial sanction.
{¶ 26} In the instant case, both the sentencing transcript and the judgment entry of conviction indicate that the trial court considered the PSI report prior to ordering Mollett to
{¶ 27} Mollett‘s fourth assignment of error is sustained, and her fifth assignment is overruled.
{¶ 28} Mollett‘s fourth assignment of error having been sustained, the order of restitution is reversed, and this cause is remanded for a hearing on the issue of restitution. In all other respects, the judgment of the trial court is affirmed.
HALL, J. and WELBAUM, J., concur.
Copies mailed to:
Ryan A. Saunders
Joshua M. Kin
Hon. Douglas M. Rastatter