State v. StumpState v. Stump
{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. Dusti Stump, defendant below and appellant herein, pled guilty to theft in violation of
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT ORDERED MS. STUMP TO PAY RESTITUTION TO THE VICTIM‘S BANK.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED $2,000 IN RESTITUTION, $515 IN DIVERSION FEES, AND $371 IN COURT COSTS WITHOUT CONSIDERING WHETHER MS. STUMP HAD THE PRESENT AND FUTURE ABILITY TO PAY THESE FINANCIAL SANCTIONS.”
{¶ 2} In 2010, Community Bank inadvertently sent another customer‘s banking information to appellant. Appellant used that information to make an online funds transfer from the customer‘s account to her own, then withdrew those funds from ATM machines.
{¶ 3} The Athens County Grand Jury returned an indictment that charged appellant with theft. Appellant initially pled not guilty, but later agreed to plead guilty in exchange for participation in a diversion program. At the November 21, 2011 hearing, the trial court reviewed the agreement, ascertained that appellant understood her rights and accepted her guilty plea. Appellant‘s guilty plea was held in abeyance pending her completion of the diversion program.
{¶ 4} In order to be accepted into the diversion program, appellant executed a form entitled “Intensive Diversion Program Agreement and Conditions.” (“Program Agreement.“) Appellant promised to, inter alia, (1) pay $2,000 in restitution to Community Bank, and (2) pay court costs and diversion program fees.
{¶ 5} Apparently, appellant failed to complete the diversion program requirements. At the October 25, 2012 hearing, the trial court formally terminated her participation in the program and found her guilty of the theft charge. At the February 7, 2013 sentencing hearing, the trial court sentenced appellant to serve four years community control and to pay the agreed restitution to
{¶ 6} We jointly consider appellant‘s two assignments of errors because they both challenge the financial obligations that the trial court imposed as part of her sentence. Those obligations, we initially point out, came directly from the Program Agreement that appellant freely executed as part of the negotiated plea agreement. To that end, we note a “sentence imposed upon a defendant is not subject to review . . . if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.” (Emphasis added.)
{¶ 7} Appellant concedes that diversion fees and court costs are “statutorily allowed” to be assessed against her. This is part of the negotiated plea agreement and, pursuant to
{¶ 8} First, for purposes of the statute court costs and diversion fees are not fines. They also are not sanctions, as
{¶ 9} Second, and more important, we again emphasize that appellant agreed to pay these costs under the Program Agreement. This promise assured the trial court that she could meet her obligations and waived any hearing requirement. Here, the trial court did not impose, or levy by its authority, these costs. Rather, it simply applied the terms of the Program Agreement that formed part of the plea agreement between the appellant and the State. In short, we find no violation of
{¶ 10} The trial court‘s order of restitution, however, is a different matter. As noted above, sentences imposed as part of a plea agreement cannot be challenged on appeal if those sentences are “authorized by law.”
{¶ 11} Generally, a decision to award restitution lies in a trial court‘s sound discretion and its decision will not be reversed on appeal absent an abuse of discretion. See State v. Dennis, 4th Dist. Highland No. No. 13CA6. 2013-Ohio-5633, at ¶7; State v. Jennings, 8th Dist. Cuyahoga No. No. 99631, 2013-Ohio-5428, at ¶40. However, the question of who (or what) constitutes a crime “victim” for purposes of the statute is a question of law that we review de novo. State v. Hunter, 2nd Dist. Montgomery No. 25521, 2013-Ohio-3759, at ¶7; State v. Kizer, 2nd Dist. Montgomery No. No. 24419, 2011-Ohio-5551, at ¶14.
{¶ 12} In the case sub judice, the victim is not Community Bank. Rather, the victim is the
{¶ 14} Moreover, to the extent the State argues that appellant‘s trial counsel failed to object at the sentencing hearing, to the order of restitution to Community Bank, that issue has not been waived for purposes of appeal. We have previously recognized that a restitution award to a third party constitutes plain error. See e.g. State v. Moss, 186 Ohio App.3d 787, 2010-Ohio-1135, 930 N.E.2d 838, at ¶10 (4th Dist.); State v. Haney, 180 Ohio App.3d 554, 2009-Ohio-149, 906 N.E.2d 472, at ¶30 (4th Dist.).
{¶ 15} Finally, sentences not authorized by statute are void and subject to being vacated. State v. Rohda, 135 Ohio App.3d 21, 25, 732 N.E.2d 1018 (3d Dist.1999); State v. Hooks (2000), 135 Ohio App.3d 746, 735 N.E.2d 523 (10th Dist.2000); also see State v. Lee, 1st Dist. Hamilton No. C–120307, 2013-Ohio-1811, at ¶26. This rule cannot be circumvented. A sentence not authorized by statute, such as the sentence in this case that orders restitution to a third-party, cannot
{¶ 16} For these reasons (1) we hereby sustain appellant‘s first assignment of error; and (2) we disregard as moot, pursuant to
{¶ 17} Accordingly, the February 27, 2013 sentencing judgment is hereby modified to vacate the order that appellant pay $2,000 in restitution to Community Bank. The remainder of that judgment is affirmed as modified.
JUDGMENT REVERSED IN PART, AND AFFIRMED IN PART, AS MODIFIED, CONSISTENT WITH THIS OPINION.
{¶ 18} I conclude Stump‘s first assignment of error lacks merit because the restitution order to Community Bank was “authorized by law“, i.e. it was not subject to a mandatory prohibition in
It is ordered that the judgment be reversed in part and affirmed in part, as modified, consistent with this opinion. Appellant shall recover of appellee the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to
For the Court
BY:
Peter B. Abele
Presiding Judge