State of Ohio v. Richard C. Seele
Court of Appeals No. S-13-025
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY
April 4, 2014
2014-Ohio-1455
Trial Court No. 12 CR 1377
James J. VanEerten, for appellant.
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JENSEN, J.
{¶ 1} Following his conviction for burglary, defendant-appellant, Richard Seele, timely appeals the sentence imposed by the Sandusky County Court of Common Pleas on July 19, 2013. For the reasons that follow, we reverse the trial court’s order, in part, and affirm, in part.
{¶ 2} On December 19, 2012, Seele was charged with two counts of burglary and one count of theft of drugs after entering the home of his neighbor, Anthony Spieldenner, on October 23, 2012 and November 8, 2012, and stealing prescription pain medication. On April 17, 2013, he entered a plea of guilty to count one of the indictment which charged him with burglary, a violation of
{¶ 3} At the sentencing hearing, Spieldenner addressed the court and spoke of his suspicions that Seele was responsible for additional neighborhood thefts and previous attempts to break into his home. Seele also spoke and implored the court to order community-based drug treatment in lieu of prison time. Ultimately, based on Seele’s extensive criminal history, which included approximately 47 prior charges and prior time in prison, and based on the nature of the offense, the court imposed a sentence of six years’ incarceration. It also ordered payment of court costs and court appointment fees, as well as restitution in the amount of $3,559.20. The court briefly explained the basis for the restitution award:
[I] order that restitution be paid in the amount of $2,508.22 to Mr. Spieldenner and that is computed by replacement of locks to his home, home surveillance system, $400; $1,769, as well as some reimbursement to the insurance company, State Farm, of 1,051 [sic] - - total restitution would be $3,559.20.
{¶ 4} Seele now appeals the court’s sentence and assigns the following errors for our review:
Assignment of Error No. 1: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION UNDER THE SENTENCING GUIDELINES OF
R.C. § 2929.11 AND§ 2929.12 BY INCARCERATING APPELLANT FOR SIX YEARS[.]Assignment of Error No. 2: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ORDERED APPELLANT TO PAY ATTORNEY FEES AND RESTITUTION WITHOUT CONSIDERING APPELLANT’S PRESENT AND FUTURE ABILITY TO PAY[.]
Assignment of Error No. 3: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ORDERED APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF $3,559.20 AS THE AMOUNT IS NOT REPRESENTATIVE OF THE VICTIM’S ACTUAL LOSS.
II. LAW AND ANALYSIS
A. Third Assignment of Error
{¶ 6} In his third assignment of error, Seele argues that the court erred and abused its discretion in ordering him to pay restitution of $3,559.20. He argues that (1) this did not represent the victim’s actual loss, (2) there was no competent, credible evidence in support of the award, and (3) courts are not permitted to order restitution to a third party. The state concedes that it was improper for the court to award restitution to State Farm, but does not address Seele’s other arguments.
{¶ 7} Seele did not contest the restitution order in the trial court. We will consider it nonetheless because we find that the court’s order constituted plain error. See, e.g., State v. DiJohn, 6th Dist. Lucas No. L-98-1295, 1999 WL 299555 (May 14, 1999). Error is plain if it is obvious and “‘but for the error, the outcome of the trial clearly would have been otherwise.’” State v. Hancock, 108 Ohio St. 3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 60, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus.
{¶ 8}
{¶ 9} We agree with Seele that the trial court committed plain error in its restitution award. Of the $3,559.20, $1,051.00 was awarded to State Farm. This was improper. The court also ordered $400.00 to the victim to replace his locks and $1,769.00 for a new home security system. There exists nothing in the record to suggest that the victim’s locks required replacement or that any damage was sustained to his home security system. To the contrary, the attorney for the state indicated that he was aware of no damage. There is also nothing to which to attribute the remaining $339.20 of the award.
{¶ 10} We find Seele’s third assignment of error well-taken.
B. Second Assignment of Error
{¶ 11} In his second assignment of error, Seele argues that the trial court erred in ordering him to pay court costs, attorney fees, and restitution without inquiring into his present and future ability to make payment. Again, this argument was not presented in the trial court, thus we may review the assignment for plain error only. Moss at ¶ 9.
{¶ 13} During the sentencing hearing, the court indicated that it had reviewed the PSI, including Seele’s employment and educational history contained in that report, in arriving at Seele’s sentence. That report indicates that Seele had been employed in various capacities throughout the last 30 years, that he was working at the time the pre-sentence investigation was conducted, that he was financially stable and able to pay his bills, and was not on any form of welfare. The court also commented in connection with the restitution order, “I note that you have had a work history.” Taking that information as a whole, we can surmise from the record that the court properly considered Seele’s present and future ability to pay before ordering him to pay costs, fees, and restitution.
{¶ 14} We find Seele’s second assignment of error not well-taken.
{¶ 15} Finally, in his first assignment of error, Seele asserts that the trial court abused its discretion in sentencing him to six years’ incarceration without balancing the principles and purposes of sentencing against the seriousness of the offense and the likelihood of recidivism, as required under
{¶ 16} As an initial matter, we recently announced in State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, that under newly enacted
{¶ 17} Before Seele was sentenced, both the victim and Seele made statements and the court reviewed the PSI. That PSI revealed that at age 47, Seele had been charged
{¶ 18} In applying Kalish as a guide in determining whether the sentence was clearly and convincingly contrary to law, we will first look at whether the length of the prison sentence imposed was permissible. Burglary is a second-degree felony under
{¶ 19} We next turn to Seele’s claim that the trial court did not properly consider
{¶ 20} Given the court’s explanation of the reason for the sentence it imposed, the fact that the sentence fell within the range permissible under
{¶ 21} We find Seele’s first assignment of error not well-taken.
III. CONCLUSION
{¶ 22} We find that the prison sentence imposed by the trial court was not clearly and convincingly contrary to law. We also find that the court properly considered Seele’s present and future ability to pay court costs, appointment fees, and restitution. We, therefore, find Seele’s first and second assignments of error not well-taken. However, because the trial court erred in ordering restitution in an amount that was not based on the victim’s actual economic loss and in ordering that restitution be paid to a third party, we find Seele’s third assignment of error well-taken. We affirm, in part, and reverse, in part, the July 19, 2013 judgment of the Sandusky County Court of Common Pleas, and remand this matter to the trial court for resentencing on the amount of restitution. The costs of this appeal are assessed to Seele and the state equally pursuant to App.R. 24.
Judgment affirmed, in part, and reversed, in part.
Arlene Singer, J. _______________________________ JUDGE
Stephen A. Yarbrough, P.J. _______________________________
James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.