State v. StewartState v. Stewart
JUDGMENT: Judgment affirmed.
DATE OF JUDGMENT ENTRY: November 10, 2008
ATTORNEYS:
HOWARD A. ELLIOTT
Attorney at Law
Reg. #0034465
218 South Main Street
Findlay, OH 45840
For Appellant.
JONATHAN K. MILLER
Prosecuting Attorney
Reg. #0064743
137 South Sandusky Avenue
Upper Sandusky, OH 43351
For Appellee.
Rogers, J.
{¶1} Defendant-Appellant, Daniel A. Stewart, appeals from the judgment of the Wyandot County Court of Common Pleas sentencing him to a one hundred eighty-day jail term, and ordering him to pay restitution to the Wyandot County Sheriff’s Department in the amount of $80 for drug buy money and $40 for drug testing fees expended in connection with his arrest. On appeal, Stewart argues that the trial court committed reversible error by ordering restitution to the Wyandot County Sheriff’s Department for the drug buy money and testing fees, as it was not a “victim” of his crime under
{¶2} In December 2007, the Wyandot County Grand Jury indicted Stewart on one count of trafficking a Schedule I controlled substance in an amount less than two hundred grams, in violation of
{¶3} In February 2008, pursuant to a plea agreement, the State moved and was granted leave to amend the indictment to one count of trafficking in marijuana, a violation of
{¶4} In April 2008, the trial court conducted a sentencing hearing. At the hearing, the State noted that “there are certain stipulations in the plea of guilty, certain things that the defendant has agreed to pay, including court appointed attorney’s fees, court costs, reimburse the Wyandot County Sheriff’s Office for buy monies in the amount of $80 and for drug testing fees in the amount of $40.” (April 2008 Sentencing Hearing Tr., p. 5). Stewart made no objection to the sentence recommendation, nor did the trial court specifically inquire of Stewart whether he agreed to the restitution amounts. Thereafter, the trial court sentenced Stewart to a one hundred eighty-day jail term and ordered him to reimburse the Wyandot County Sheriff’s Department $80 for drug buy money and $40 for drug testing fees.
{¶5} It is from this judgment that Stewart appeals, presenting the following assignment of error for our review.
THE TRIAL COURT ERRED AS A MATTER OF LAW, AND COMMITTED REVERSIBLE ERROR IN IMPOSING AS A SENTENCE UPON THE APPELLANT, THE REQUIREMENT THAT HE PAY THE SUM OF EIGHTY AND 00/100 ($80.00) IN REIMBURSEMENT TO THE WYANDOT COUNTY SHERIFF’S DEPARTMENT EXPENDED IN THE
MARIJUANA BUY INVOLVING THE DEFENDANT AND REIMBURSEMENT OF THE SUM OF FORTY AND 00/100 ($40.00) FOR DRUG TESTING EXPENSES TO THAT AGENCY.
{¶6} In his sole assignment of error, Stewart argues that the trial court erred by ordering him to pay restitution to the Wyandot County Sheriff’s Department for drug buy money and drug testing expenses. Specifically, Stewart argues that
{¶7} A failure to object to the trial court’s award of restitution waives all but plain error. State v. Marbury (1995), 104 Ohio App.3d 179, 181, Crim.R. 52(B). In order to have plain error under Crim.R. 52(B), there must be an error, the error must be an “obvious” defect in the trial proceedings, and the error must have affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. Plain error is to be used “with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Id. Plain error exists only in the event that it can be said that “but for the error, the outcome of the trial would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 431, 1997-Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-Ohio-825. Furthermore, imposition of a sentence not authorized by statute constitutes plain error. See State v. Rhoda (1999), 135 Ohio App.3d 21, 25; State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-6106, ¶9.
{¶8}
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 offender‘s crime or any survivor of the victim, in an amount based on the victim‘s economic loss.
{¶9} This Court has held that the plain language of
{¶10} Furthermore, in Toler, supra, this Court held that “[w]ith the exceptions of certain circumstances * * *, government entities do not constitute ‘victims’ entitled to restitution for their expenditure of public funds in the pursuit of fighting crime,” citing State v. Pietrangelo, 11th Dist. No. 2003-L-125, 2005-Ohio-1686, ¶¶15-17. See, also, State v. Wolf, 176 Ohio App.3d 165, 176, 2008-Ohio-1483 (Finding that
{¶11} The Fourth District Court of Appeals in Samuels, 2003-Ohio-6106, dealt with whether
Therefore, we believe that 2929.18(A)(1) does not provide for restitution to be paid to a Sheriff‘s Office for the money it advances for an undercover drug purchase. * * * Thus, absent an explicit agreement by the parties concerning the type and the amount of restitution requested in the instant case, we are unwilling to conclude that the trial court require the appellant to
make restitution to the police agency. This is a matter that could have been explicitly addressed in a negotiated plea agreement, however.
(Emphasis added.) Id. at ¶10.
{¶12} In the case before us, the trial court did not order an award of restitution to the Wyandot County Sheriff’s Department sua sponte. Instead, the trial court made the order pursuant to the sentence recommendation of the parties. This recommendation provided that, “[b]y agreement, Defendant shall reimburse the Wyandot County Sheriff’s Office for buy monies in the amount of $80 and drug testing fees in the amount of $40.” (Feb. 2008 Plea of Guilty, p. 2). While we found in Toler, Christy, and Wolf that
{¶13} Unlike in those cases, here, there was a specific agreement between the State and Stewart for restitution to the sheriff’s department. The language of
{¶14} While Stewart argues that the plea agreement sentencing recommendation was not a joint one, but only the State’s recommendation, such an interpretation is not supported by the plain language of the recommendation, which provided that ”[b]y agreement, Defendant shall reimburse the Wyandot County Sheriff’s Office * * *.” (Emphasis added.) (Feb. 2008 Plea of Guilty, p. 2) Furthermore, even though the State and Stewart reserved the right to speak at sentencing despite the agreement, Stewart did not argue for a sentence different from that found in the sentence recommendation, nor did he object to this restitution agreement.
{¶15} Because we find that
{¶17} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment affirmed.
SHAW, P.J., and WILLAMOWSKI, J., concur.
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