174 Ohio App. 3d 12 | Ohio Ct. App. | 2007
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *14
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *15 {¶ 1} Cheryl Lyn Rigsbee appeals from her convictions and sentence in the Champaign County Court of Common Pleas, wherein she pleaded guilty to one count of aggravated theft of one million dollars or more, one count of tampering with records, and six counts of forgery. Following a hearing, the trial court imposed the maximum sentence on each count. The court further ran Count One, aggravated theft of one million dollars or more, consecutively with Count Five, forgery, but concurrent with all other counts. In total, Rigsbee was sentenced to 15 years in prison. She was also fined $10,000 on all counts except Count Seven, for which she was fined $5,000, and all fines were ordered to run concurrently. Finally, Rigsbee was ordered to pay restitution in the amount of $1,993,982.69.
{¶ 2} The record in the present matter indicates that Rigsbee was employed as an assistant controller and systems administrator by Ultra-Met Carbide Technologies ("Ultra-Met") in Urbana, Ohio, from April 2001 to February 2006. In approximately June 2001, Rigsbee began stealing money from Ultra-Met by forging checks and tampering with company records. Specifically, Rigsbee would make checks payable to herself and then endorse the checks with her supervisor's signature stamp. Each check was made out for less than $10,000 in order to circumvent the company's policy that checks for more than $10,000 required two signatures. Rigsbee would then cash the checks, keeping the money for personal use. When the cancelled checks were returned by the bank, Rigsbee would immediately shred them. She also would alter the information in the company's weekly financial reports before submitting them to her supervisor in order to conceal her wrongdoing.
{¶ 3} On February 13, 2006, Rigsbee's immediate supervisor discovered her unlawful conduct by analyzing cash transactions and comparing checks that had *16 cleared the bank with the company's check register. He initially found that two checks had been processed by the bank, but neither appeared in the register. Upon further inquiry, Rigsbee's supervisor learned that the checks were made payable to Rigsbee and endorsed using his signature stamp. A subsequent investigation conducted by the company revealed that Rigsbee had forged 235 checks over the five years of her employment with Ultra-Met, totaling $1,933,982.69. Rigsbee spent the money to buy personal items for herself and her family, including, but not limited to, the following: a remodeling of the family residence and purchase of new kitchen appliances and furniture; numerous televisions and other electronics; six automobiles; one sailboat and one power-boat; three motorcycles; 17 firearms; 99 bottles of wine; computer software valued at $9,000; 750 movies on DVD; multiple video gaming systems; new golf clubs and a membership to the Windy Knoll Golf Club; several trips to France, Ireland, Scotland, New York City, and Boston, which included first-class tickets, limousine rentals, reservations at the Ritz Carleton Hotel, and tickets to Broadway shows; three Rolex watches and two diamond rings; china flatware and silverware; various power tools; payment in full of student loans; payments made on several credit cards; payments for household maintenance services; and $113,071.45 paid to family and friends.
{¶ 4} After the discovery of her theft but prior to sentencing, Rigsbee began making payments of restitution to Ultra-Met. Between June 2006 and November 2006, Rigsbee and her husband turned over many of their possessions, including their home, to Ultra-Met in order for the company to recover some of its loss. Rigsbee also secured employment through a temporary placement agency and paid 75 percent of each paycheck to Ultra-Met. In addition, Rigsbee transferred $35,938.25 in February 2006 and $25,000 in March 2006 from her attorney's trust account to the company. In total, Rigsbee paid Ultra-Met $274,553.60 in restitution by the time of the sentencing hearing.
{¶ 5} Rigsbee pleaded guilty to an eight-count bill of information — one count of aggravated theft of one million dollars or more, a first-degree felony; one count of tampering with records, a third-degree felony; and six counts of forgery, five of which were third-degree felonies and one a fourth-degree felony. At the end of the sentencing hearing, the trial court imposed the maximum sentence on each count. The court ran Count One, aggravated theft of one million dollars or more, consecutively with Count Five, forgery, but concurrent with all other counts. As a result, Rigsbee was sentenced to 15 years in prison. The court also imposed a fine of $10,000 on all counts except Count Seven, for which she was fined $5,000, and all fines were ordered to run concurrently. Rigsbee was further ordered to pay restitution in the amount of $1,993,982.69, less the prior restitution payments of $274,553.60 but including $60,000 for expenses incurred by Ultra-Met during *17 its investigation of the theft. Altogether, restitution amounted to $1,719,429.09. In addition, Rigsbee was ordered to pay a minimum of $1,000 per month toward costs, restitution, and fines beginning two months after her release from prison.
{¶ 6} The trial court journalized its order in an entry dated December 5, 2006. This entry, however, failed to account for the $60,000 in investigatory costs incurred by Ultra-Met. Thus, restitution was ordered in the amount of $1,659,429.09 ($1,933,982.69 minus $274,553.60). On December 27, 2006, Rigsbee filed a notice of appeal from the judgment and sentence of the trial court entered on December 5, 2006. Subsequently, the court filed a journal entry of correction on February 2, 2007. This entry changed the amount of restitution to include the investigatory costs — $1,993,982.69 — while maintaining that Rigsbee had made payments totaling $274,553.60. As a result, pursuant to the court's corrected entry, Rigsbee was ordered to pay restitution in the amount of $1,719,429.09. On appeal, Rigsbee has taken issue with the amount of restitution as ordered in the court's February 2, 2007 entry.
{¶ 7} We note that the proper mechanism to correct a finalized entry after a notice of appeal has been filed is to move this court to remand the matter to the trial court so that the corrected entry may be entered. Only upon remand does the trial court regain jurisdiction to amend its final entry. Furthermore, a party must amend its notice of appeal to include the corrected entry. Here, Rigsbee has not moved to amend her December 27, 2006 notice of appeal to include the court's February 2, 2007 journal entry. However, because neither party has raised those arguments, we will construe Rigsbee's notice of appeal as an appeal from the trial court's February 2, 2007 entry setting restitution at the amount of $1,719,429.09 and consider the merits of that order.
{¶ 8} On appeal, Rigsbee assigns the following errors for our review:
{¶ 9} I. "The trial court erred in imposing a fifteen (15) year prison sentence for a felony theft when this sentence is disproportionate to other sentences imposed for similar crimes."
{¶ 10} II. "The trial court erred in making findings of fact that justified a light sentence and then proceeded to sentence the defendant to a maximum consecutive sentence."
{¶ 11} III. "The trial court erred by imposing the maximum fines and restitution without first considering appellant's ability to pay."
{¶ 12} IV. "The trial court erred in imposing consecutive sentences because a court's power to sentence a person to consecutive sentences is statutory and the statute authorizing consecutive sentences was excised in its entirety byFoster." *18
{¶ 13} Following the Supreme Court of Ohio's opinion inState v. Foster,
{¶ 14} Upon review of the record, we do not find that the trial court abused its discretion in ordering Rigsbee to serve a sentence of 15 years in prison. The record demonstrates that the trial court properly considered the sentencing guidelines and factors provided in R.C.
{¶ 16} We begin our discussion by finding that Rigsbee has adequately preserved the issue of consistency for appeal. Previously, this court has stated, "`[A]lthough a defendant cannot be expected to produce his or her own database to demonstrate the alleged inconsistency, the issue must * * * be raised in the trial court and some evidence, however minimal, must be presented to the trial court to provide a starting point for analysis and to preserve the issue for appeal.'"State v. Bell, Greene App. No. 2004-CA-5,
{¶ 17} R.C.
{¶ 18} In order to fulfill the purpose of R.C.
{¶ 19} Here, Rigsbee presented the trial court with two theft cases at the sentencing hearing, suggesting that the court consider the sentences in each case when imposing Rigsbee's sentence. We will consider the relevance of these cases as the starting point of our analysis. In State v.Georgakopoulos,
{¶ 20} Following a sentencing hearing, the trial court ordered the defendant to serve six years on the count of engaging in a pattern of corrupt activity, three years on each count of money laundering, and six months on each count of operating a gambling house. Id. at ¶ 24. Each count was to run concurrently for a total of six years. Id. According to the court, the recommended sentence of three years did not adequately punish the defendant, nor did it protect the citizens of the state from the defendant's "predator" [sic] nature. Id. at ¶ 23. The trial court's judgment was affirmed on appeal.
{¶ 21} We are not persuaded by Rigsbee's argument thatGeorgakopoulos demonstrates a failure on the part of the trial court to impose a proper sentence in the present matter. First, the amount of money at issue differed significantly. In Georgakopoulos, the evidence demonstrated that the defendant had deposited approximately one million dollars into his bank account. Id. at ¶ 13. Any additional amounts of money involved were based on speculation, for the state had been unable to discover a large portion of the money due to the defendant's criminal activities. Id. Here, through the investigation of the state and Ultra-Met, the amount at issue was determined to be $1,933,982.69, nearly twice as much. Furthermore, the conduct at issue is disparate. As noted by the trial *21 court, Rigsbee took advantage of her position of trust to deceitfully rob the company and its other employees of money that was rightfully theirs, all for the sake of self-gratification. In doing so, she caused the company to extend its line of credit to a maximum limit, a move that invariably delayed any future investments and the small company's ability to expand. This conduct lasted for a period of five years once Rigsbee discovered how "easy" it was to deceive those around her. Although also reprehensible, the conduct of the defendant in Georgakopoulos did not place at risk the very entity that had entrusted the defendant with access to its financial operations. There, the defendant and three members of his family ran illegal gambling events for a year and a half that falsely advertised under the name of local charities. Id. at ¶ 13. The charities themselves received very little to none of the profits; instead, the defendant deposited the earnings into his "enterprise's" bank accounts. Id. Unlike the victims in the present matter — Ultra-Met, its investors, and its employees — the victims inGeorgakopoulos were the members of the public who had voluntarily chosen to partake in the events, although with the intention that their contributions would go to charity.
{¶ 22} Likewise, we do not find Rigsbee's argument compelling that State v. Graor (1998),
{¶ 23} As we stated above, reliance on comparative cases alone is insufficient to demonstrate that the trial court imposed an improper sentence. As a reviewing court, we must consider the entire record to determine what facts support the relevant sentencing guidelines set forth in R.C.
{¶ 24} Turning to the recidivism factors in R.C.
{¶ 25} "Very unusual combination of circumstances in the case [sic] a lack of criminal history, the extent of Rigsbee's criminal activity at the present time, the extent of [Rigsbee's] acknowledgment of wrongdoing, all of them combine to make it a very difficult assignment to assess an appropriate punishment." However, the trial court was authorized to act within its discretion in weighing these factors, along with the other statutory guidelines, and imposing an appropriate sentence. See Foster,
{¶ 26} The trial court in the present matter stated that it had considered the purposes and principles in sentencing and the concepts of proportionality before *23
sentencing Rigsbee to a term of 15 years in prison. Given the nature of the criminal conduct and the amount of money involved, we find that the record supports the conclusion that the trial court properly considered the sentencing guidelines set forth in R.C.
{¶ 27} Accordingly, Rigsbee's first and second assignments of error are overruled.
{¶ 29} First, R.C.
{¶ 30} Here, Rigsbee argues that the trial court was required to expressly refer to the presentence investigation report at the sentencing hearing in order to satisfy R.C.
{¶ 31} Next, Rigsbee argues that the trial court lacked the statutory authority to order her to pay $60,000 for Ultra-Met's expenses investigating the theft. According to Rigsbee, Section
{¶ 32} To support her argument, Rigsbee cites State v.Hooks (2000),
{¶ 33} Instead, we are persuaded by the state's argument that R.C.
{¶ 34} "(1) Restitution by the offender to the victim of the offender's crime or any survivor of the victim, in an amount based on the victim's economic loss. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. 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. If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. All restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender."
{¶ 35} Here, $60,000 is an economic loss suffered by Ultra-Met as a direct result of Rigsbee's crimes. "Economic loss" is defined as "any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense * * *." R.C.
{¶ 36} Furthermore, the amount of restitution ordered by the trial court was supported by competent, credible evidence. See State v. Banks, Montgomery App. No. 20711,
{¶ 37} Accordingly, Rigsbee's third assignment of error is overruled.
{¶ 39} In State v. Worrell, the Tenth District provided the following:
{¶ 40} "Before the Foster decision, judicial fact-finding was required before consecutive sentences could be imposed, except when certain enumerated statutes imposing nondiscretionary consecutive terms applied. SeeFoster, [
{¶ 41} "In view of the Foster court's severance of the unconstitutional provisions, `[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum sentences.' Id. at paragraph seven of the syllabus. TheFoster court additionally stated: `If an offender is sentenced to multiple prison terms, the court is not barred from requiring those terms to be served consecutively.' Id. at ¶ 105.
{¶ 42} "Thus, pursuant to Foster, trial courts generally have the discretionary power to impose consecutive sentences. See State v. Saxon, *27
{¶ 43} "However, according to defendant, the trial court lacked the authority to impose consecutive sentences. Thus, despite the Foster decision, defendant urges this court to find that the trial court in this case acted contrary to law by imposing consecutive sentences. Such a finding would be contrary to the Foster decision. As an intermediate appellate court, we will not make a determination that conflicts with a decision of the Supreme Court of Ohio that has not been reversed or overruled. `A court of appeals is bound by and must follow decisions of the Ohio Supreme Court, which are regarded as law unless and until reversed or overruled.'Sherman v. Millhon (June 16, 1992), Franklin App. No. 92AP-89,
{¶ 44} "Furthermore, to the extent the Foster
court did not expressly discuss the source of a trial court's authority to impose consecutive sentences, we note that previous Ohio Supreme Court decisions expressly endorsed the idea that the authority of a court to impose consecutive sentences derives from the common law. In Henderson v.James (1895),
{¶ 45} In light of the foregoing rationale, we find Rigsbee's argument unpersuasive. Furthermore, we are of the opinion that this conclusion does not contradict the decisions of the United States Supreme Court cited in appellant's brief. See Missouri v. Hunter (1983),
{¶ 46} Having overruled each of appellant's assignments of error, we affirm the judgment of the trial court.
Judgment affirmed.
WOLFF, P.J., and GRADY, J., concur.