State v. MordasState v. Mordas
Criminal Appeal from the Court of Common Pleas, Case No. 2008 CR 0317.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Craig M. Stephens, 206-A South Meridian Street, P.O. Box 229, Ravenna, OH 44266, and Lisa J. Hirt, P.O. Box 219, Kent, OH 44240 (For Defendant-Appellee).
TIMOTHY P. CANNON, J.
{¶1} Appellant, the state of Ohio, appeals the sentence imposed by the Portage County Court of Common Pleas upon appellee, Michael E. Mordas. Mordas pled guilty to felonious assault, in violation of
{¶2} This charge stemmed from an incident on St. Patrick‘s Day, 2008, wherein Mordas repeatedly struck Joseph Harris with a 22-ounce beer mug. Mr. Harris suffered a broken nose and a fractured cheekbone and eye socket.
{¶4} Appellant filed a timely notice of appeal and alleges the following assignment of error for our review:
{¶5} “As the trial court did not adhere to the requirements in
{¶6} Under this assignment of error, appellant asserts two arguments for our review. First, appellant maintains the trial court failed to overcome the presumption of prison for Mordas’ second-degree felony, resulting in a sentence contrary to law. Appellant argues that Mordas’ sentence is contrary to law since the trial court failed to state that it had considered the purposes and principles of felony sentencing in
{¶7} After the State v. Foster decision, “[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make
{¶8} The Supreme Court of Ohio, in a plurality opinion, has recently held that felony sentences are to be reviewed under a two-step process. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, at ¶26. The Court held:
{¶9} “First, [appellate courts] must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Id.
{¶10} Mordas pled guilty to one count of felonious assault, in violation of
{¶11} Pursuant to
{¶12} “(a) A community control sanction or a combination of community control sanctions would adequately punish the offender and protect the public from future
{¶13} “(b) A community control sanction or a combination of community control sanctions would not demean the seriousness of the offense, because one or more factors under
{¶14} In State v. Lewis, 11th Dist. No. 2006-L-224, 2007-Ohio-3014, at ¶24, this court stated:
{¶15} “Although a trial court is required to consider the seriousness and recidivism factors, the court does not ‘“need to make specific findings on the record in order to evince the requisite consideration of all applicable seriousness and recidivism factors.“’ *** Thus, post-Foster,
{¶16} In State v. Greitzer, 11th Dist. No. 2006-P-0090, 2007-Ohio-6721, at ¶28, this court acknowledged its adoption of the pronouncement of the Supreme Court of Ohio in State v. Adams (1988), 37 Ohio St.3d 295. The Supreme Court of Ohio in Adams held: “[a] silent record raises the presumption that a trial court considered the factors contained in
{¶17} We further recognize that the Kalish Court affirmed the sentence of the trial court as not being contrary to law, since the trial court expressly stated that it had considered the
{¶18} “Of course, where the trial court does not put on the record its consideration of
{¶19} At the sentencing hearing in this case, the trial court stated specifically: “This is a felony of the second degree. There is a presumption of prison. And to overcome that presumption, there are several factors that must be stated on the record.” The court heard from Mordas, who expressed his remorse and took full responsibility for his actions. The trial court also noted that it had received “more letters on [Mordas], positive letters, than any other Defendant I have ever had; from superintendants to fellow teachers, students and also neighbors and family members. Sir, you must have been a brilliant teacher for as many students to send in letters saying how wonderful and what a great impact you have made on their life.” The trial court further noted a letter from Dr. Dhungat of the Cleveland Clinic, which was part of
{¶20} After reviewing the entire transcript of the sentencing hearing, we believe the trial court did, in fact, find the factors set forth in
{¶21} As part of appellant‘s argument that the trial court failed to make the required findings to overcome the presumption of a prison term, appellant contends that it was improper for the trial court to consider the April 9, 2009 letter from Dr. Dhungat regarding Mordas’ thyroid medication. A review of the record reveals that appellant received the April 9, 2009 letter approximately one week prior to the sentencing hearing and, further, appellant failed to object to the letter at the hearing. Additionally, the trial court commented that it is “aware of how overmedicating with thyroid prescriptions can alter a person‘s personality.” Once again, appellant did not object to this consideration by the trial court at the sentencing hearing. Since appellant failed to object to this
{¶22}
{¶23} In sentencing Mordas, the trial court not only considered the letter from Dr. Dhungat, but stated that it had also considered “evidence presented by counsel, oral statements, any victim impact statement, the pre sentence report and/or the Defendant‘s statement.” As such, this argument by appellant is not well-taken.
{¶24} We turn now to the sentence itself.
{¶25} “If a sentencing court determines that a community control sanction, or combination of community control sanctions, is appropriate, the court is vested with broad discretion to decide which sanctions may be imposed.
{¶26} “One community control sanction is a jail sentence.
{¶27} As previously indicated, the trial court sentenced Mordas to a one-year jail term. The duration of Mordas’ jail term, however, is improper, as it is beyond the statutory limits of
{¶28} With regard to the restitution element of Mordas’ sentence, the trial court ordered the payment of “restitution through adult probation in an amount up to $35,000.00 within sixty months if the victims provide proof of loss within thirty days of this entry.”
{¶29} Appellant maintains the trial court failed to adhere to the requirements of
{¶30} Pursuant to
{¶32} We recognize there are times when the precise amount of restitution will not be available or known with specificity at the time of sentencing. The statute addresses this concern by allowing the trial court to enter an order for an amount that is an “estimate.” Therefore, in order to clarify Humr, a restitution order would comply with the statute if it orders a specific amount of restitution that is known at the time of the sentencing hearing and, in addition, an amount that consists of an estimate of future expenses, or an amount that represents unrecovered costs after resolution of collateral source benefits, if those amounts could be ascertained to a “reasonable degree of certainty.” State v. Noe, 6th Dist. Nos. L-06-1393 and L-09-1193, 2009-Ohio-6978, at ¶162. (Citations omitted.)
{¶33} It does not promote judicial economy to delay a sentencing hearing simply because a victim is still in treatment or because some collateral source reimbursement is unresolved.
{¶34} At the sentencing hearing in the instant case, the trial court stated the victim was to provide verification of loss and further required the victim‘s advocate to
{¶35} While appellant alleges the trial court erred in transferring its authority to the adult probation department, we find no such evidence in the record. The trial court did not order the adult probation department to ascertain the amount of restitution, as advocated by appellant. The sentencing entry simply orders payment of restitution to the adult probation department, which is wholly consistent with
{¶36} Appellant‘s assignment of error has merit to the extent indicated. Based on the foregoing, the judgment of the Portage County Court of Common Pleas is hereby reversed, and this matter is remanded for proceedings consistent with this opinion.
MARY JANE TRAPP, P.J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.