STATE OF OHIO v. NEIL OSBORNE
No. 110237
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
September 23, 2021
2021-Ohio-3352
JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART
RELEASED AND JOURNALIZED: September 23, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-649718-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Marco Tanudra, Assistant Prosecuting Attorney, for appellee.
Rick L. Ferrara, for appellant.
KATHLEEN ANN KEOUGH, J.:
{1} Defendant-appellant, Neil Osborne, pleaded guilty to aggravated arson in violation of
{2} In March 2020, Osborne was charged with two counts of aggravated arson — Count 1 alleged a violation of
{3} In October 2020, Osborne pleaded guilty to Count 1; the state nolled Count 2. The issue of restitution was not discussed during the plea hearing, but the case was passed for sentencing for the purpose of obtaining a presentence investigation report.
{4} At sentencing, mitigation evidence was presented on behalf of Osborne. Specifically, it was presented that he had no prior criminal record and that he was currently receiving psychiatric care for depression and anxiety. Medical reports from his treating physicians were submitted to the court for review. The presentence investigation report included a confidential victim summary sheet, which provided the victims’ opinions or comments, and statements regarding restitution.
{5} The trial court sentenced Osborne to six years in prison and ordered that he pay a total restitution amount of $7,765 to five of the 11 victims. This appeal followed.
I. Sentence
{6} In his first assignment of error, Osborne contends that the trial court erred in imposing a six-year term of imprisonment by specifically failing to consider or apply the factors in
{7}
{8} In this case, because the trial court followed the presumption of prison by imposing a six-year sentence, it was not required to issue any findings pursuant to
II. Restitution
{9} In the presentence investigation report, five of the victims presented information regarding restitution. The report indicated that victim, K.O., did not seek restitution but that she and her daughter “suffered approximately $5,000 worth of damaged belongings.” At sentencing, K.O. made a victim-impact statement, but did not address the issue of restitution. The trial court ordered Osborne to pay K.O. restitution in the amount of $4,000.
{10} Victim J.S. provided a statement to the probation department on behalf of himself, his girlfriend, and their minor child. The report did not note any insurance claim number, but requested $700 in restitution because they “suffered a loss of approximately $100 when [they] rented a U-Haul truck to move to a new apartment building, $500 for his renter‘s insurance deductible, and another $100 for another rental U-Haul truck when his apartment [was renovated following the fire].” The trial court ordered Osborne to pay J.S. restitution in the amount of $700.
{11} Regarding victim S.G., the report did not note any insurance claim number, but provided that S.G. requested her renter‘s insurance deductible in the amount of $500, which the trial court ordered Osborne to pay.
{12} The report also provided that victim B.S. was requesting $500 in restitution for his renter‘s insurance deductible based on the claim he filed through the Hartford Insurance company. However, no insurance claim number was provided in the report. The trial court ordered Osborne to pay B.S. restitution in the amount of $500.
{13} Finally, victim R.T. requested restitution in the amount of $2,065. According to the report, R.T. “suffered a loss of approximately $2,500, but only received a check from State Farm from his renter‘s insurance claim for $435 (after his $1,000 deductible was considered).” He told the probation department that “State Farm only provided coverage on items he was able to provide photos of.” However, during sentencing, the prosecutor stated that R.T. was only requesting restitution in the amount of $1,000, which was his insurance deductible. The trial court ordered Osborne to pay R.T. restitution in the amount of $2,065.
{14} In his second assignment of error, Osborne contends that the trial court committed plain error in ordering restitution without sufficient evidence substantiating the restitution award and by ignoring a limitation of restitution based on the existence of insurance proceeds.
{15}
{16} This court normally reviews an order of restitution for an abuse of the trial court‘s discretion. State v. Pollard, 8th Dist. Cuyahoga No. 97166, 2012-Ohio-1196, ¶ 7, citing State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995). Here, however, Osborne failed to object or contest the amount of restitution ordered at sentencing. He has therefore waived all but plain error. To constitute plain error, the error must be obvious on the record, palpable, and fundamental, so that it should have been apparent to the trial court without objection. See State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th Dist.1995). A trial court commits plain error in awarding restitution that is not supported by competent, credible evidence. Roberts at ¶ 8.
{17} We initially note that restitution was not discussed during the plea hearing. In Lalain, the Ohio Supreme Court noted, however, that
{18} In this case, the trial court based its restitution order solely on the victim statement summary prepared by the probation department as part of the presentence investigation report. The reliance on such report is allowable under
{19} Granted, if Osborne believed the amount of restitution ordered was excessive or improper, he had the opportunity to dispute the restitution award at the
{20} The second assignment of error is sustained. The restitution order is hereby vacated and the matter is remanded to the trial court to determine the appropriate amount of restitution in accordance with
{21} Judgment affirmed in part, and reversed in part. Case remanded for the limited purpose of determining restitution.
It is ordered that the parties share equally in the 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 is terminated. Case remanded to the trial court for execution of sentence and for the limited purpose of determining restitution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
LARRY A. JONES, SR., P.J., and
MICHELLE J. SHEEHAN, J., CONCUR