C.A. No. 21465. | Ohio Ct. App. | Jun 23, 2006
{¶ 2} Because Summers' exhibit was not in the trial record in this case, not having been brought to the attention of the trial court, and is not within the scope of R.C.
{¶ 3} Summers contends that the trial court erred in denying her motion to appoint a special prosecutor, in accordance with R.C.
{¶ 4} Because there is no evidence in the record supporting Summers' claims, we conclude that the trial court did not err in denying Summers' motion to appoint a special prosecutor based on the victim's relationship with the prosecutor's office.
{¶ 5} Summers contends that the trial court erred in failing to specify the amount of restitution owed to the Ohio Casualty Group at the sentencing hearing, and that the record is devoid of any evidence supporting the trial court's order of restitution to the Ohio Casualty Group.
{¶ 6} After reviewing the record, we conclude that the restitution order to the Ohio Casualty Group in the amount of $10,955.44 is not supported by competent, credible evidence showing a reasonable relationship to the actual loss suffered.
{¶ 7} Accordingly, that part of the judgment of the trial court ordering restitution to Ohio Casualty Group is Reversed, the judgment of the trial court is Affirmed in all other respects, and this cause is Remanded for reconsideration of the restitution issue.
{¶ 9} Summers entered a no-contest plea to all counts. The trial court found her guilty, and sentenced her to two years of imprisonment on each of the Aggravated Vehicular Assault convictions, to be served consecutively, and one year of imprisonment on each of the Vehicular Assault convictions, to be served concurrently with the sentences for the Aggravated Vehicular Assault convictions, for a total prison term of four years. The trial court also suspended Summers' driver's license for four years and ordered Summers to pay restitution to the victims for an economic loss of $5,131.00 and to the Ohio Casualty Group for an economic loss of $10,955.44.
{¶ 10} After her sentencing, Summers filed a motion to withdraw her plea, attaching her affidavit and an affidavit of her defense counsel memorializing a discussion between defense counsel and the trial judge wherein the trial judge indicated that he intended to impose a minimum mandatory sentence, which induced Summers to enter the no-contest plea and waive her right to a jury trial. Summers also filed a motion for clarification of the restitution order and a request for a restitution hearing, arguing that the order of restitution to the Ohio Casualty Group was not supported with competent, credible evidence showing a reasonable relationship to the actual loss suffered.
{¶ 11} From her conviction and sentence, Summers appeals.
{¶ 13} "THE TRIAL COURT SENTENCE WAS SUBSTANTIALLY DISPROPORTIONATE TO PUNISHMENT NECESSARY AND THE COURT GROSSLY ABUSED ITS DISCRETION IN SENTENCING A FIRST TIME OFFENDER TO A [FOUR] YEAR PRISON TERM."
{¶ 14} R.C.
{¶ 15} Summers contends that the trial court abused its discretion in sentencing her to a four-year prison term, because it is inconsistent with sentences imposed for similar crimes committed by similar offenders, and she has no prior criminal history. In support of her contention, Summers attached three exhibits to her brief, including a list of the sentences for all Aggravated Vehicular Assault and Vehicular Assault convictions in Montgomery County in the last three years, as well as corresponding indictments. Summers also attached her affidavit and an affidavit from her defense counsel attempting to memorialize a discussion between defense counsel and the trial judge regarding sentencing.
{¶ 16} The State filed a motion to strike the three exhibits from the record. The State contends that the exhibit of indictments and the list of the sentences of similarly situated defendants were never presented to the trial court and therefore, cannot be considered by the court because it is not a part of the record. The State also contends that Summers cannot supplement the appellate record with the affidavits, because she failed to utilize the procedure set forth in App.R. 9(C).
{¶ 17} Regarding the affidavits submitted by Summers, we conclude that Summers is not attempting to supplement the record with the affidavits because the affidavits are in the trial court record as attachments to Summers' motion to withdraw her plea. Therefore, the State's motion to strike the affidavits is denied.
{¶ 18} In response to the State's motion to strike her exhibit containing the indictments and the list of the sentences of similarly situated defendants, Summers argues that the exhibit was not presented to the trial court, because it was not an issue until the trial court disproportionately sentenced her.
{¶ 19} Pursuant to R.C.
{¶ 20} "(1) Any presentence, psychiatric, or other investigative report that was submitted to the court in writing before the sentence was imposed. * * *
{¶ 21} "(2) The trial record in the case in which the sentence was imposed; {¶ 22} "(3) Any oral or written statements made to or by the court at the sentencing hearing at which the sentence was imposed;
{¶ 23} "(4) Any written findings that the court was required to make in connection with the modification of the sentence pursuant to a judicial release under division (H) of section
{¶ 24} Summers presents her list of the sentences for all Aggravated Vehicular Assault and Vehicular Assault convictions in Montgomery County in the last three years and corresponding indictments for the first time on appeal. Because Summers' exhibit is not in the trial record in this case and is not within the scope of R.C.
{¶ 25} Summers relies upon her exhibit containing the list of the sentences for all Aggravated Vehicular Assault and Vehicular Assault convictions in Montgomery County in the last three years and corresponding indictments to support her contention that her sentence is not consistent with sentences imposed for similar crimes committed by similar offenders. Since we have stricken this exhibit, we find that Summers' claim of disproportionality is without support.
{¶ 26} Her remaining argument is that she has no prior criminal history. However, the pre-sentence investigation report, relied upon by the trial court in sentencing, indicates that Summers has two prior Driving Under the Influence convictions, as well as nine citations for Speeding, Driving Under Suspension, No Operator's License, and Failure to Control. We find that Summers has a significant history of traffic violations, and that the trial court properly considered that history in sentencing her.
{¶ 27} Although Summers also contends that the trial court "was too emotionally involved in this case to temper its emotion and truly administer justice," we find nothing in the record to support this contention.
{¶ 28} Summers contends that the trial judge indicated that he intended to impose a minimum mandatory sentence, which induced Summers to enter the no-contest plea and waive her right to a jury trial. Summers contends that she would not have entered into a no-contest plea if she was "knowingly and fully informed of the Court's intention as opposed to the Court's representation through Counsel." Summers presents her affidavit and the affidavit of her defense counsel in support of her contention.
{¶ 29} In its order overruling Summers' motion to stay her sentence pending her appeal, the trial court stated that "at no time was it ever represented to the defense counsel by the Court * * * that there would be a minimum sentence. The Court indicated to defense counsel that based upon the facts as represented by the Defendant's Attorney, a maximum sentence would not be likely. The Defendant could have been sentenced to a total of 13 years if maximum and consecutive sentences were imposed. Therefore, a maximum sentence was not imposed."
{¶ 30} We first note that Summers does not separately argue this assignment in her brief, and therefore, it may be disregarded pursuant to App.R. 12(A)(2). However, a review of the record shows that there is no evidence in support of her contention. Although the affidavits are in the trial court record, they are attached to Summers' motion to withdraw her plea, which was filed after her sentencing and is not the subject of this appeal. There is no evidence in the record prior to Summers' sentencing to support her contention.
{¶ 31} Summers' First Assignment of Error is overruled.
{¶ 33} "THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR SPECIAL PROSECUTOR WHEN THE COMPLAINANT (VICTIM) WAS AND IS THE MONTGOMERY COUNTY PROSECUTING ATTORNEY'S (MATT HECK'S) COUSIN."
{¶ 34} Summers contends that the trial court erred in denying her motion to appoint a special prosecutor, in accordance with R.C.
{¶ 35} R.C.
It would be almost impossible for the current Prosecutor to reason and actually listen to mitigating circumstances and certainly has directives that no plea agreements take place which is contrary to the standard practice in this local when a Defendant has more than 1 charge. This case has 4 charges (2 for each complainant). It is very apparent that this Defendant will be prosecuted to a greater degree and much much more zealously as the Complainant/Victim is a co-worker, (Prosecutor). An ordinary citizen and member of this same community would not be prosecuted in the same manner and it appears that if we do not have a non interested party prosecutor we will in fact be allowing two different standards of prosecutions to govern our Montgomery County Courts."
{¶ 36} Because Summers did not attach any documentation or evidence supporting her claims, we cannot find that the trial court erred in overruling Summers' motion to appoint a special prosecutor based on Summers' mere allegations. We also note that this case was not prosecuted by the Montgomery County Prosecutor, himself, but rather by a Senior Assistant Prosecuting Attorney who, although a co-worker, was unrelated to the victim. Furthermore, there is no evidence in the record that the Montgomery County Prosecutor interjected himself into this case. The record does not reflect that he took any part in the proceedings.
{¶ 37} We conclude that the trial court did not err in denying Summers' motion to appoint a special prosecutor based on the victim's relationship with the prosecutor's office.
{¶ 38} Summers' Second Assignment of Error is overruled.
{¶ 40} "THE TRIAL COURT ERRED IN NOT ORDERING RESTITUTION AT THE TIME OF SENTENCING BUT THEN ORDERED RESTITUTION IN ITS 1/17/06 TERMINATION ENTRY."
{¶ 41} Summers contends that the trial court erred in failing to specify the amount of restitution owed to the Ohio Casualty Group at the sentencing hearing, and that the record is devoid of any evidence supporting the trial court's order of restitution to the Ohio Casualty Group.
{¶ 42} Although Summers failed to object to the trial court's order of restitution at her sentencing hearing, we have recognized sentencing errors based on restitution under the plain error doctrine. See State v. Clark, Greene App. No. 97 CA 27, 1998 WL 321007, at *2.
{¶ 43} R.C.
{¶ 44} "For due process reasons, the amount of restitution must bear a reasonable relationship to the loss suffered. Accordingly, to ensure a lawful award, there must be competent, credible evidence in the record to support the trial court's order of restitution `to a reasonable degree of certainty.' The amount of restitution requested should, if necessary, be substantiated through documentary or testimonial evidence."State v. Bender, Champaign App. No. 2004 CA 11,
{¶ 45} At Summers' sentencing hearing, the trial court ordered that Summers pay restitution to the victims in the amount of $5,131, based on the deductible paid to their insurance company. The trial court then ordered that approximately eleven thousand dollars be paid in restitution to the Ohio Casualty Group. The trial court later specified this amount to be $10,955.44 in its termination entry.
{¶ 46} The trial court's order at the sentencing hearing put Summers on notice that she would owe approximately eleven thousand dollars in restitution to the Ohio Casualty Group. Summers suffered no prejudice as a result of the trial court's having specified a different amount of restitution in its termination entry, since that amount, $10,955.44, is less than the approximate amount stated at the sentencing hearing. However, the trial court never explained the basis for this order of restitution to show a reasonable relationship to the actual loss suffered, and the record is devoid of any evidence to support the trial court's order of restitution to a reasonable degree of certainty.
{¶ 47} We conclude that restitution order to the Ohio Casualty Group in the amount of $10,955.44 is not supported by competent, credible evidence showing a reasonable relationship to the actual loss suffered.
{¶ 48} Summers' Third Assignment of Error is sustained.
Brogan and Wolff, JJ., concur.