State v. TurnerState v. Turner
Timothy Young, Ohio Public Defender, and Eric M. Hedrick, Assistant Ohio Public Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee.
Hoover, P.J.
{¶ 1} Defendant-appellant, Michael Turner, (“Turner”) appeals the sentence1 imposed by the Athens County Common Pleas Court after he was found guilty by a jury of three counts of Trafficking in Cocaine, violations of
{¶ 2} Turner was indicted by an Athens County grand jury for three counts of Trafficking in Cocaine for incidents occurring in 2010. Counts one and two were indicted as felonies of the
{¶ 3} The sentencing hearing took place on May 16, 2013, before Judge Michael Ward. At the sentencing hearing, the State acknowledged that at the time the Trafficking in Cocaine statute made no distinction between powder or crack cocaine and that Turner should be sentenced as if all three counts were third-degree felonies. Also at the hearing, Turner’s attorney requested that the trial court not assess court costs or restitution based on Turner’s indigence. No specific objections were made regarding the legality of the restitution order.
{¶ 4} The trial court proceeded to sentence Turner on all counts as third degree felonies. Turner was sentenced to thirty months in prison on each of the three counts to run consecutively for a total sentence of ninety months. The trial court also ordered Turner to pay the court costs within two years and to give a DNA sample. In addition, the trial court ordered “$1,800 in restitution to be, and the entry will state the appropriate amount to the Athens Police Departments, OU PD as well as BCI.” After the sentence was imposed, Turner did not object to the sentence, including the restitution order.
{¶ 5} A judgment entry was then filed on May 24, 2013, that was signed by Judge Thomas Hodson. The judgment entry reflected that the sentencing took place on May 15, 2013, when in fact it occurred on May 16, 2013. The judgment entry included the consecutive sentences of thirty months on each count as well as the requirement that the court costs be paid within two years and that Turner submit to the DNA specimen collection procedure. The judgment entry did not, however, include the order of restitution that was made at the sentencing hearing. On the other hand, the judgment entry did contain the following language that was not ordered in the sentencing hearing:
{¶ 6} A notice of appeal was timely filed on May 29, 2013, appealing the judgment entry of conviction entered on May 24, 2013.
{¶ 7} On appeal, Turner asserts the following assignments of error:
ASSIGNMENT OF ERROR 1:
The trial court erred by violating
ASSIGNMENT OF ERROR 2:
The trial court erred and violated Mr. Turner’s right to due process as well as
{¶ 8} When reviewing felony sentences, we apply the standard of review set forth in
{¶ 9} Here, Turner failed to object to any portion of the sentence. After the trial judge imposed sentence, he asked if there was anything else from counsel. Both the prosecutor and the defense counsel answered in the negative. As a result of Turner’s failure to object, he has waived
{¶ 10} In order to find plain error: (1) there must be an error, i.e., “a deviation from a legal rule”; (2) the error must be plain, i.e., “an ‘obvious’ defect in the trial proceedings”; and (3) the error must have affected “substantial rights,” i.e., it must have affected the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Furthermore, the Supreme Court of Ohio has admonished courts that notice of plain error under
{¶ 11} With respect to the first assignment of error, Turner argues that the trial court erred by ordering him to pay restitution to law enforcement agencies. The restitution was purportedly for reimbursement to the agencies for the money those agencies spent buying drugs in their investigation of Turner. The State concedes the error of the trial court. The State agrees with Turner that “a law enforcement agency is not a ‘victim’ of a crime when it voluntarily spent its own funds to pursue a drug buy through an informant.” [Merit brief of appellant, page 2.] The State does contend, however, that the only portion of Turner’s sentence that needs to be addressed is restitution; thus, it requests that the prison sentence of ninety months be affirmed.
(A) Except as otherwise provided in this division and in addition to imposing court costs pursuant to
(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. If the court imposes restitution, the court shall order that the restitution be made to the victim in open court, to the adult probation department that serves the county on behalf of the victim, to the clerk of courts, or to another agency designated by the court. If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, the court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense. If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount. * * *
Just under $2,000.00 worth of cocaine was sold into the Athens County as a result of the Defendant’s actions. Uh, we would ask as a condition of sentence that the Defendant be ordered to pay $1,800.00 in restitution between the Athens Police Department, the Bureau of Criminal Identification and Investigation and the Ohio University Police Department.
{¶ 14} Turner argues law enforcement agencies are not victims of crime when it voluntarily spends its own funds to pursue a drug buy through an informant. This court explained in State v. Samuels, 4th Dist. Washington No. 03CA8, 2003–Ohio–6106, ¶ 5, citing Black’s Law Dictionary (5th Ed.1979) 1405, that a “victim” is “generally defined as the person who was ‘the object’ of the crime-e.g. the victim of the robbery is the person who was robbed.” A law enforcement agency is not a “victim” under
{¶ 15} Although this court interpreted a former version of
* * * [W]e have previously held that a law-enforcement agency is not a “victim” of a crime when it “voluntarily spent its own funds to pursue a drug buy through
We held in Montgomery that the trial court committed plain error when it ordered defendant to pay restitution to the sheriff‘s department for funds used by the department to buy drugs from him. We reversed and vacated the restitution order. Id. at ¶ 12.
{¶ 16} This same issue was presented to this court again in State v. Frazier, supra. In Frazier, the State conceded that the trial court committed plain error. We concluded that, when a restitution amount represents compensation for funds that a law enforcement department expended to buy drugs from the defendant through an informant,
{¶ 17} Here, the trial court ordered Turner to pay restitution to the law enforcement agencies at the sentencing hearing. However, the restitution order was not included in the sentencing entry. Therefore, before we analyze whether the trial court committed plain error in this case, we must note that in general, “ ‘[a] court of record speaks only through its journal and not by oral pronouncement or mere written minute or memorandum.’ ” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 83, quoting Schenley v. Kauth, 160 Ohio St. 109, 113 N.E.2d 625 (1953), paragraph one of the syllabus; see also State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47 (a court speaks through its journal). Because a court speaks only through its journal, we ordinarily will not consider matters that are not carried over into the court’s judgment entry. State v. Jenkins, 174 Ohio App.3d 374, 2007-Ohio-7180, 882 N.E.2d 57, ¶ 12 (4th Dist.).
{¶ 19} In the second assignment of error, Turner contends that the trial court erred and violated his right to due process as well as
{¶ 20}
{¶ 21} In the case sub judice, Turner‘s sentence is contrary to law because the sentence announced by the trial court at the hearing differed from that in the sentencing entry. At the sentencing hearing, the State acknowledged that it had “no argument with the fact that [Turner is] indigent although were he not he would also be facing a mandatory drug fine. * * *” The State also said, “[S]o while we can’t ask for any kind of fine we would ask the Court impose a
{¶ 22} Accordingly, we sustain Turner’s second assignment of error, as the sentencing entry violated
{¶ 23} Sustaining Turner’s second assignment of error, we reverse and vacate the trial court‘s order with respect to the fine ordered in the judgment entry. In all other regards, we affirm the judgment below.
{¶ 24} Lastly, because of the confusion caused by various discrepancies2 such as the judgment entry containing an incorrect date of the sentencing hearing and a judge signing the judgment entry that did not actually conduct the sentencing hearing, we remand this case to the trial court for resentencing consistent with this opinion.
APPEAL DISMISSED IN PART; JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED.
It is ordered that the APPEAL IS DISMISSED IN PART; JUDGMENT IS AFFIRMED IN PART, REVERSED IN PART and the CAUSE IS REMANDED for proceedings consistent with this opinion. Appellant and Appellee shall split the costs herein taxed.
The Court finds reasonable grounds existed 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 BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earliest of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to the expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
By:
Marie Hoover
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.