State v. RileyState v. Riley
{¶ 1} After a jury trial in September 2003 in the Wood County Court of Common Pleas, Gerald Riley, appellant, was convicted of aggravated burglary, a violation of R.C. 2911(A)(1) and a first-degree felony. He appealed his conviction and sentence to this court. In a decision and judgment entry issued on March 2, 2007, in State v. Riley, 6th Dist. No. WD-03-076,
{¶ 2} On remand, the trial court conducted an evidentiary hearing on restitution and a resentencing hearing on February 22, 2008. The trial court issued a judgment, journalized on February 25, 2008, sentencing appellant to incarceration for ten years and ordering appellant to pay $15,000 to the Ohio Department of Rehabilitation and Corrections as restitution. In a judgment entry filed on February 29, 2008, the trial court also ordered appellant to pay the victims of his crime, Juan and Terry Delgado, restitution in the amount of $38,766.69.
{¶ 3} Appellant filed a notice of appeal to this court as to both judgments. He asserts three assignments of error on appeal:
{¶ 4} “Assignments of Error
{¶ 5} “I. The trial court erred in imposing sentence upon appellant by failing to comply with the mandatory provisions of
{¶ 6} “II. The trial court erred in imposing restitution as there was no credible evidence that certain items of claimed loss were the direct and proximate effect of
{¶ 7} “HI. The trial court erred in imposing restitution as it failed to make its order in open court and failed to consider appellant’s ability to pay. Sentencing Hearing Tr. (February 22, 2008); Judgment Entry on Restitution (February 29, 2008).”
{¶ 8} Appellant was originally sentenced in 2003 under Ohio’s sentencing scheme that existed prior to State v. Foster. He argued in his original appeal that his sentence for the statutory maximum prison term of ten years violated his Sixth Amendment right to a jury trial because the sentence was based upon findings of fact by the trial court. Based upon the intervening decision in State v. Foster, we vacated the 2003 sentence and remanded the case for resentencing under Ohio’s sentencing laws as modified by Foster. Resentencing after remand due to Foster requires “a sentencing hearing de novo.” State v. Mathis,
{¶ 9} The trial court did not discuss postrelease control at the resentencing hearing on remand. Consequently, the trial court did not notify appellant that he would be subject to supervision under postrelease control after he was released from prison or of the authority of the parole board to impose a prison term “of up to one-half of the stated prison term originally imposed”
{¶ 10} Under assignment of error No. I, appellant argues that the failure constitutes a violation of
{¶ 11} Under State v. Jordan, a sentence that fails to provide notice of postrelease control as required under
{¶ 12} Appellant also claims under assignment of error No. I that the trial court failed to comply with
{¶ 13} We have, however, previously ordered remand of this case for resentencing, and at least some clarification is necessary as to procedure if we are to remand for resentencing again. The resentencing procedure applicable on remand of criminal cases for resentencing under State v. Foster was explained by the Ohio Supreme Court in State v. Mathis. On remand, a trial court is to conduct a sentencing hearing de novo.
{¶ 14} “
{¶ 15} As we discussed in State v. Hofmann, 6th Dist. No. E-03-057,
{¶ 16} While we acknowledge that the trial court permitted appellant to make a lengthy statement at the resentencing hearing before proceeding to impose sentence on remand, the trial court did not conduct a complete de novo resentencing hearing with all applicable procedures. In addition to the failure to provide notice of postrelease control as addressed under assignment of error No. I, the trial court failed to provide the
{¶ 17} We recognize that in further proceedings on remand from this judgment, the parties “may stipulate to the existing record and waive the taking of additional evidence.” State v. Mathis,
{¶ 18} We find assignment of error No. I well taken.
{¶ 19} Under assignment of error No. II, appellant claims that the trial court erred in its judgment ordering payment of $38,766.69 as restitution to Juan and Terry Delgado, the victims of appellant’s crime. Appellant asserts that competent and credible evidence is lacking to establish a direct, proximate relationship between the aggravated burglary and certain losses claimed by the Delgados. He specifically objects to any award of restitution for medical and hospital expenses incurred in treatment of Juan Delgado for a heart attack that occurred days after the aggravated burglary. He claims that there is no evidence that the heart attack was directly and proximately caused by the aggravated burglary.
{¶ 20} In our decision and judgment in this case of March 2, 2007,
{¶ 21} Upon remand, the trial court conducted an evidentiary hearing on restitution. Terry Delgado testified that her husband, Juan, suffered a heart attack shortly after the offense. Appellant’s own counsel at the hearing stated specific dates. He advised the court that the burglary occurred on July 9 and that the heart attack occurred on July 22,13 days later.
{¶ 22} Terry Delgado testified concerning state exhibit 1. The exhibit is a composite exhibit of receipts for rings stolen in the aggravated burglary, medical and hospital bills for the couple’s medical treatment for injuries immediately after the incident, and additional medical and hospital bills for treatment of Juan Delgado for the heart attack.
{¶ 23} Terry Delgado described their physical injuries. Her husband, Juan, had “cuts to his finger, a bruise, and beatings, shoe prints on his back where he had been hit so hard the prints stayed embedded in his back.” She testified that they were told that the subsequent heart attack was “due to the substantial beating that he [Juan] took from his back, that the back wall of his heart had been damaged.” She testified that medical bills from two hospitals for treatment of the heart attack totaled over $30,000. Terry Delgado also testified to damage to furniture and that her husband, Juan, missed “pretty much a whole summer’s work” due to his injuries.
{¶ 25} The evidence at trial disclosed that a group of four men entered the Delgados’ home screaming and demanding money. They demanded to know where the money was. When the Delgados responded that they had no large sum of money, they were repeatedly beaten and kicked by the men. The beating and kicking continued as the group persisted, demanding next to know where the safe was. The Delgados had no safe. It continued when they demanded a key to the garage and again when the men failed to find money in the garage. The men became enraged because they could not find what they wanted. The men kept kicking and hitting Juan Delgado until he began to lose consciousness. At trial, Juan Delgado testified that doctors told him that there was bruising to his back where his heart is and that it was caused by the beating.
{¶ 26} In its judgment imposing the obligation to pay restitution to the Delgados, the trial court listed 27 different items of economic loss. The itemization lists payments to hospitals and physicians separately by name and amount. It also lists by item and amount the costs of emergency repairs to the Delgados’ trailer, itemized losses for specific jewelry stolen, and costs of repairs to two pictures. These identified expenses and losses total the sum of $38,766.69. In its judgment on restitution, the trial court found that $38,766.69 was the “economic loss suffered by the victims as a direct result of the commission of the offense.”
{¶ 27} We discussed the required proof to support an order of restitution in the earlier appeal: “In an order of restitution, the amount of restitution must bear a reasonable relationship to the loss suffered. State v. Marbury (1995) ,
{¶ 28}
{¶ 29} We have reviewed the record, including the trial transcript and the evidentiary hearing on restitution, and given the evidence of severity of the beating to Juan Delgado’s back, shortness in time between the beating and the heart attack, and physician hearsay as to the relationship between the beating and the heart attack, we conclude that there was competent and credible evidence in the record supporting the trial court’s determination that hospital and medical expenses incurred in treatment of the heart attack were incurred as a direct and proximate result of the commission of the aggravated burglary. The evidence in the record establishes the amount of the economic loss caused by the aggravated burglary to a reasonable degree of certainty.
{¶ 30} We conclude that appellant’s assignment of error No. II is not well taken.
{¶ 31} Under assignment of error No. Ill, appellant asserts that the trial court erred in two respects: first, in failing to issue its restitution order in open court and, secondly, in failing to consider appellant’s ability to pay before ordering restitution. The requirement to issue a restitution order in open court is based upon
(¶ 32} As to ability to pay,
{¶ 33} This court has held that
{¶ 34} For the foregoing reasons, the trial court’s judgment imposing a sentence of imprisonment of ten years’ incarceration is reversed, and the matter is remanded to the trial court for resentencing, de novo. The trial court’s judgment ordering appellant to pay the victims of his crime the sum of $38,766.69 is reversed and remanded to the trial court for an evidentiary hearing to consider appellant’s present and future ability to pay restitution. Should the trial court, after conducting the hearing on restitution on remand, order payment of restitution by appellant to the victims of the aggravated burglary, the trial court shall make the restitution order in open court.
{¶ 35} The Wood County Court of Common Pleas resentencing order is affirmed in part and reversed in part as set forth above. Appellee is ordered to pay the costs of this appeal pursuant to
Judgment affirmed in part and reversed in part.
Notes
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