State of Ohio, Plaintiff-Appellee, v. Chester J. Richmond, Jr., Defendant-Appellant.
No. 17AP-366 (C.P.C. No. 15CR-3826)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 16, 2018
[Cite as State v. Richmond, 2018-Ohio-147.]
HORTON, J.
(REGULAR CALENDAR)
Rendered on January 16, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee.
On brief: Yeura R. Venters, Public Defender, and Robert D. Essex, for appellant.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Defendant-appellant, Chester J. Richmond, Jr., appeals an order of restitution in the sentence imposed by the Franklin County Court of Common Pleas after he pleaded guilty to two counts of receiving stolen property under
I. FACTUAL & PROCEDURAL BACKGROUND
{¶ 2} A grand jury indicted Richmond with two fifth-degree felony counts of receiving stolen property under
{¶ 3} The two counts of receiving stolen property arose from the theft of a purse belonging to J.B. that occurred while she was dancing at a bar. (July 12, 2016 Tr. at 13.) When she returned to where she had left her purse before dancing, she discovered it was gone. The keys to J.B.‘s minivan inside the purse were also missing, as well as the minivan itself. Subsequently, one of the credit cards in the purse was used at a Wal-Mart. Security camera footage from Wal-Mart showed Richmond and Joshica Nicole McCollins using the card. Another credit card in the purse, a Kohl‘s store card that belonged to J.B.‘s mother, D.B., was used to make $2,006.26 worth of purchases. (Tr. at 14.)
{¶ 4} At the sentencing hearing, J.B. made a victim impact statement. She stated that she had lost “hundreds of dollars of cash and gift cards” received for her birthday that had been inside her purse. (Apr. 24, 2017 Tr. at 8.) The prosecution valued the contents of J.B.‘s purse at $1,767, based on the following: $90 for the purse itself; $937 in cash; $460 in gift cards; $50 for a wallet; $30 for a makeup bag; and $200 for an iPhone. (Tr. at 12.) The trial court accepted this valuation, stating:
In looking at the restitution, the $1,767, which is the contents of the purse, I feel there‘s enough of a nexus here to warrant that justification of that assessment since he was found in the picture with the purse being present while they were executing one of the other cards.
(Tr. at 28.)
{¶ 5} The trial court imposed concurrent sentences of nine months imprisonment for each count of receiving stolen property and ordered Richmond to pay $3,773.26 in restitution. (Apr 25, 2017 Jgmt. Entry.) In a separate entry, the trial court separated the restitution amount, based on the two victims of the two offenses: $2,006.26 to Kohl‘s and $1,767.00 to J.B. (Apr. 25, 2017 Entry.)
{¶ 6} Richmond appeals and asserts the following assignment of error:
The trial court committed reversible error by ordering Defendant-Appellant to pay restitution when the record did not show a connection between the amount of the restitution and an offense committed by Defendant-Appellant.
{¶ 7} Restitution is a financial sanction that may form part of a felony sentence. See
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:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 8} Because Richmond‘s appeal does not concern findings under
III. ANALYSIS
{¶ 9} Richmond argues that $1,767, the portion of the trial court‘s restitution order that compensated the victim for the value of all the items in her purse, was erroneous because his charge and conviction for receiving stolen property only encompassed the credit card and the charges made to it. (Appellant‘s Br. at 4-7.) He points out that he “was not charged with the theft of the purse or the theft of any of its contents—only that he used a credit card.” (Appellant‘s Br. at 6.) In response, the state concedes that the trial court erred when it imposed restitution for the items in the purse in the amount of $1,767. (Appellee‘s Br. at 1.) The state believes that the appropriate
{¶ 10} Under
If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.
{¶ 11} “A restitution award must be limited to those acts that constitute the crime of conviction.” State v. Colon, 185 Ohio App.3d 671, 2010-Ohio-492, ¶ 9 (2d Dist.), citing State v. Hubbell, 2d Dist. No. 1617, 2004-Ohio-398. This is logical because, as the statute states, the victim‘s economic loss must be “a direct and proximate result of the commission of the offense.”
{¶ 12} The sole assignment of error is sustained. Applying the felony sentencing standard of
Judgment affirmed in part and reversed in part; case remanded with instructions.
SADLER and LUPER SCHUSTER, JJ., concur.