State v. NickensState v. Nickens
{¶1} Angela Marie Nickens appeals her theft conviction, a fifth-degree felony offense, and her one-year term of community control sanctions that also involved a jail term — imposed to be served on the weekends for 52 weeks. We affirm.
{¶2} Nickens worked for Walmart as a cashier. Through video surveillance, she was caught stealing $1,640 from her register. Walmart representatives verified the amount stolen and that Nickens admitted to the theft and the amount during Walmart‘s internal investigation. The jury found Nickens guilty of theft of between $1,000 and $7,500. Nickens is only appealing the sentence, not the finding of guilt. Nickens believes that (1) the imposition of jail time, with the opportunity for early release if all restitution and fines are paid, violated her constitutional rights; (2) the imposition of restitution was contrary to law because it is “inconceivable” that a company like Walmart lacked insurance; and (3) trial counsel‘s failure to request a hearing to challenge the amount of the economic loss for the purposes of determining restitution constitutes ineffective assistance of counsel.
{¶3} With respect to the imposition of jail time, Nickens claims she is indigent and, therefore, serving a jail term violates her constitutional rights because the trial court offered the opportunity for early release upon satisfaction of the fine and restitution. Nickens has not provided any citations to authority in support of her argument.
{¶4} Next Nickens claims that the trial court was required to hold a hearing before imposing restitution. Before restitution can be imposed, the court must determine the amount of restitution that bears a reasonable relationship to the loss suffered. State v. Roberts, 8th Dist. Cuyahoga No. 99755, 2014-Ohio-115, ¶ 8, citing State v. Borders, 12th Dist. Clermont No. CA2004-12-101, 2005-Ohio-4339. That amount must be supported by “‘competent, credible evidence from which the court can discern the amount of restitution to a reasonable degree of certainty.‘” Id., quoting State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999). Nickens never objected to the amount of restitution. In light of the failure to object to the amount of restitution, we are limited to reviewing for plain error.
{¶5} Under
{¶6} In this case, representatives from Walmart testified that Nickens stole $1,640, and therefore, there is competent, credible evidence demonstrating the amount of restitution. Nickens believes, however, that “it is inconceivable that a store, such as Walmart, would not be covered by insurance to protect its economic losses.” In reliance on State v. Mobley-Melbar, 8th Dist. Cuyahoga No. 92314, 2010-Ohio-3177, ¶ 41, Nickens claims it was per se error for the court not to inquire into whether Walmart‘s economic losses were covered by insurance. Mobley-Melbar is no longer a valid application of plain error review. Id. at ¶ 37. In that case, the panel was concerned about medical bills being the basis for restitution because the trial court “made no indication that he considered, or that the packet contained, information related to the amount of victim‘s medical expenses that were paid by [the victim‘s] insurance carrier.” Id. at ¶ 40. In essence, Mobley-Melbar set forth a bright-line rule that a trial court must inquire into whether a victim has insurance before imposing restitution, otherwise plain error occurred.
{¶7} The Ohio Supreme Court rejected this so-called “hybrid type of plain error” that recognizes a presumptively prejudicial error when a trial court fails to inquire into an issue that could affect the authority to impose a sentence. In Rogers, that involved the prohibition against imposing multiple sentences for allied offenses — the trial court had failed to consider whether the offenses were allied before imposing individual sentences. The Ohio Supreme Court held that absent a demonstration in the record that the offenses are allied, no plain error occurred in the trial court‘s failure to inquire into the nature of the offenses. See generally id.
{¶8} As it relates to restitution, a trial court is permitted to impose restitution for an amount of the victim‘s economic loss. If the victim has insurance that reimbursed her for part or all of the loss that occurred as a result of the offender‘s criminal conduct, the victim has not suffered an economic loss for the purposes of imposing restitution. The panel in Mobley-Melbar presumed that insurance covered part or all of the victim‘s medical bills, but that fact was not in the record — as demonstrated by the remand to the trial court to inquire into the existence of insurance. In re T.C., 8th Dist. Cuyahoga No. 102632, 2015-Ohio-4384, ¶ 18 (“[i]n Mobley-Melbar this court found plain error when the trial court ordered restitution to the victim without considering possible insurance coverage.“). Mobley-Melbar predated Rogers by several years and was overruled by implication. See State v. Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-6074, ¶ 69 (the possibility of insurance coverage is not a sufficient basis to establish plain error with
{¶9} Where restitution is imposed but the record does not demonstrate that the victim‘s economic losses were partly or wholly covered by insurance, we must affirm. See, e.g., State v. Miller, 8th Dist. Cuyahoga Nos. 104427 and 104428, 2017-Ohio-961, ¶ 12. If a particular victim omits any reference to potential insurance proceeds, that omission or the trial court‘s failure to inquire into the existence of insurance is not presumptively prejudicial error. Id. Nickens‘s argument rests on the faulty presumption that all victims, even large organizations, have insurance and have received proceeds for at least part of what was lost. Id. In this case, the record demonstrates that the trial court considered all that was required under
{¶10} Finally, there is no merit to Nickens‘s claim that her trial counsel was ineffective for failing to request a hearing on restitution. In order to substantiate a claim of ineffective assistance of counsel, the appellant must show that (1) counsel‘s performance was deficient and (2) the deficient performance prejudiced the defendant so as to deprive him of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny of defense counsel‘s performance must
{¶11} The crux of Nickens‘s argument is that her counsel should have requested a hearing under
{¶12} We affirm.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., and
ANITA LASTER MAYS, J., CONCUR