State v. SierraState v. Sierra
Tim A. Dugan for Appellant
WILLAMOWSKI, J.
{¶1} Defendant-appellant Jessica Sierra (“Sierra“) brings this appeal from the judgment of thе Court of Common Pleas of Hancock County ordering her to make restitution to the drug task force for the money used in the drug sales for which she was convicted. For the reasons set forth below, the appeals in appellate cases numbered 5-14-20, 5-14-21, and 5-14-22 are dismissed. The judgments in appellate cases numbered 5-14-15 and 5-14-19 are reversed.
{¶2} This appeal arises from sentencing entries for various offenses and convictions. A brief history of each case will be provided.
Case No. 2012-CR-00248
{¶3} On October 16, 2012, thе Hancock County Grand Jury indicted Sierra on one count of trafficking in cocaine in violation of
Case No. 2013-CR-00050
{¶4} On February 19, 2013, the Hancock County Grand Jury indicted Sierra on two counts of trafficking in cocaine in violation of
Case No. 2013-CR-00189
{¶5} On September 17, 2013, the Hancock County Grand Jury indicted Sierra on one count of intimidating a witness in violation of
Case No. 2013-CR-00132
{¶6} On June 25, 2013, the Hancock County Grand Jury indicted Sierra on one count of failure to appear in violation of
Case No. 2007-CR-00145
{¶7} On June 19, 2007, the Hancock County Grand Jury indicted Sierra on one count of possession of cocaine in violation of
{¶8} The apрeals were all consolidated into case no. 5-14-15. On appeal, Sierra raises two assignments of error.
First Assignment of Error
The trial court committed plain error when it ordered [Sierra] to reimburse the Hancock METRICH Task Force for money it spent on drug buys.
[Siеrra] received ineffective assistance of counsel, in violation of her rights under the Sixth Amendment of the United States Constitution as Counsel failed to object to the trial court ordering [Sierra] to reimburse the Hancock METRICH Task Force for monеy it spent on drug buys.
{¶9} Initially this court notes that both assignments of error are based upon the trial court having ordered Sierra to pay money to the Hancock METRICH Task Force. However, this was only ordered in Appellate Case Numbers 5-14-15 and 5-14-19. No restitution or reimbursement was ordered in Appellate Cases Numbered 5-14-20, 5-14-21, or 5-14-22. The assignments of error do not apply to those cases. An appellate court determines an appeal on the “merits on the assignments of error set forth in the briefs[.]”
{¶10} This leaves cases numbered 5-14-15 and 5-14-19 in which Sierra was ordered to make reimbursement to the drug task force. Sierra argues in the first assignment of error thаt this order was contrary to law because it is a payment
(A) Except as otherwise provided in this division and in addition to imposing court costs pursuant to [
R.C. 2947.23 ], the court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction or combination of financial sanctions authorized under this section or, in the circumstances speсified in [R.C. 2929.32 ], may impose upon the offender a fine in accordance with that section. Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following:(1) Restitution by the offender to the victim of the offendеr‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss. * * *
* * *
(5)(a) Reimbursement by the offender of any or all of the costs of sanctions incurred by the government, including the following:
(i) All or part of the costs of implementing any community control sanction, including a supervision fee under [
R.C. 2951.021 ].(ii) All or part of the costs of confinement under a sanction imposed pursuant to [
R.C. 2929.14 ,2929.142 , or2929.16 ], provided that the amount of reimbursement ordered under this division shall not exceed the total amount of reimbursement the offender is able to pay as determined at a hearing and shall not exceed the actual cost of the confinement.(iii) All or part of the cost of purchasing and using an immobilizing or disabling device, including a certified ignition interlock device, or a remote alcohol monitoring device that a court orders an offender to use under [
R.C. 4510.13 ].
(b) If the offender is sentenced to a sanction of confinement * * * that is served in a facility operated by a board of county commissioners, a legislative authority of a municipal corporation, or another local governmental entity * * * for its expenses incurred by reason of the prisoner‘s confinement, and if the court does not impose a financial sanction under division (A)(5)(a)(ii) of this section, confinement costs may be assessed pursuant to [ R.C. 2929.37 ]. In addition, the offender may be required to pay the fees specified in [R.C. 2929.38 ] in accordance with that section.(c) Reimbursement by the offender for costs [to investigate the crime of arson as sеt forth in
R.C. 2929.71 ].
{¶11} In support of this order, the State makes two arguments. First, the State argues that this is not restitution, but is instead reimbursement for the costs of the investigation. Sierra argues that although the State and the trial court labeled this as a reimbursеment, it really was not reimbursement, but was actually restitution. We agree. The statute provides for reimbursement for the costs of sanctions imposed. The only investigative costs permitted by the statute are for the costs associated with investigating аn arson, which is specifically authorized by
{¶12} The State next argues that the order is permitted because Sierra agreed to it pursuant to thе terms of the plea agreement. A review of the two plea agreements do not indicate that Sierra agreed to pay restitution to the drug task force. The only mention of restitution was found in the boilerplate language indicating that she might be ordered to make restitution. The plea agreement did
{¶13} At the hearing on March 10, 2014, the State indicated that it “would still be requesting reimbursement” in the amount of $100, $750, and $1,500. Tr. 6. At the sentencing hearing on April 10, 2014, the State again stated that it would be requesting reimbursement to the drug task force for the buy money. Tr. 9. There is a difference between agreeing that the State can request reimbursement and agreeing to pay it. The trial court did not even order what was requested in that it ordered reimbursement in the amounts of $50, $750, and $750 respectively. Although the State might have intended to get this agreement, it did not actually do so in this case. The written plea agreements were silent as to paying reimbursement or restitution to the drug task force and the statements made at the hearings merely indicate an agreement that the State could request the reimbursement. This is not an agreement to pay. Based upon the facts of this case, there is no agreement to pay restitution to the drug task force and they are not a victim of the offense. Therefore, the trial court erred in ordering Sierra to pay reimbursement to the Hancock METRICH Drug Task Force. The first assignment of error is sustained.
{¶15} The appeals in cases numbered 5-14-20, 5-14-21, and 5-14-22 are dismissed as no error was assigned in them. Having found error prejudicial to the appellant in cases numbered 5-14-15 and 5-14-19, those cases are reversed and the matter is remanded for further proceedings in accord with this opinion.
Judgments Reversed and Causes Remanded in Case Nos. 5-14-15 and 5-14-19
Appeals Dismissed in Case Nos. 5-14-20, 5-14-21, and 5-14-22.
ROGERS, P.J. and SHAW, J., concur.
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