STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIAM C. WICKLINE, DEFENDANT-APPELLANT.
CASE NO. 8-10-20
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
June 20, 2011
[Cite as State v. Wickline, 2011-Ohio-3004.]
Trial Court No. CR 10-03-0044
Judgment Reversed and Cause Remanded
Date of Decision: June 20, 2011
APPEARANCES:
Marc S. Triplett for Appellant
Daniel J. LaRoche for Appellee
{¶1} Defendant-Appellant, William C. Wickline (“Wickline“), appeals the judgment of the Logan County Court of Common Pleas ordering him to pay over $30,000 in restitution to the victim and the victim‘s insurance company after he pled guilty to a misdemeanor theft offense. On appeal, Wickline contends that the trial court erred when it ordered him to make restitution to the insurance company; that the amount of restitution exceeded the damages specified in the offense for which he was convicted; that the amount of restitution exceeded his ability to pay; and that the decision was not supported by competent, credible evidence. For the reasons set forth below, the judgment is reversed and remanded.
{¶2} Carl Zimmerman (“Zimmerman“) rented property to Wickline‘s father, and he also kept some farm equipment stored on that property “out behind the buildings and out further into a pasture field.” (Sept. 13, 2010, Hearing Tr., p. 7.) In January of 2010, Zimmerman learned that Wickline had sold numerous pieces of this farm equipment for $124 scrap value. On April 13, 2010, the Logan County Grand Jury indicted Wickline on one count of theft in violation of
I understand and agree that I am responsible for and will be ordered to pay for my fair share of restitution as determined by the Court in connection with the counts that are being dismissed as a result of any underlying agreement.
Wickline also reserved the right to present evidence and argument at sentencing regarding the issue of the amount of restitution owing to the victim.
{¶4} A sentencing hearing was held on September 13, 2010. In order to determine the amount of restitution owed, the trial court heard testimony from Zimmerman as to the value of the farm equipment. Zimmerman testified that he had looked up the valuation of the missing farm equipment by going to sales and looking in farm magazines and catalogues to find the value of comparable used equipment. Zimmerman provided the court with a list of the different items of farm equipment that Zimmerman testified was missing, showing a total valuation
{¶5} The trial court then sentenced Wickline to six months in jail, but suspended all but sixty days, dependent upon Wickline‘s good behavior. Wickline was also ordered to pay a $250 fine and court costs. The trial court stated that it would take the matter of restitution under advisement and that it would rule on the matter within the week.
{¶6} On September 15, 2010, the trial court filed its decision, ordering that the sentencing entry should incorporate an order of restitution to Zimmerman in the amount of $10,637.21, and to the insurance company in the amount of $20,254.69, for a total of $30,891.90. On September 29, 2010, the trial court filed a judgment entry imposing the sentence and ordering Wickline to pay the fine and
Assignment of Error
The trial court erred when it ordered [Wickline] to make restitution in the amount of $30,891.90.
{¶7} Wickline maintains that the trial court made numerous errors when it ordered him to pay $10,637.21 in restitution to Zimmerman and $20,254.69 to the insurance company. He sets forth the following four “issues” as subparts of his assignment of error:
First Issue: A trial court cannot order a defendant to make restitution to a victim‘s insurance company to offset the amount that it compensated [the] victim.
Second Issue: A trial court‘s restitution order is limited to the damages caused by the offense for which the offender was convicted.
Third Issue: A trial court abuses its discretion when it imposes an order of restitution that the defendant lacks the ability to meet.
Fourth Issue: A trial court‘s restitution order must be supported by competent, credible evidence.
{¶9} The guidelines for financial sanctions and the payment of restitution are set forth in
{¶10} Prior to its amendment in 2004,
{¶11} Wickline‘s first issue is well-taken. The trial court erred as a matter of law when it ordered Wickline to pay $20,254.69 to the victim‘s insurance company.
{¶12} In his second issue, Wickline contests the fact that the trial court ordered him to pay restitution in an amount that exceeded that of the offense for which he was convicted. Wickline pled guilty to a first degree misdemeanor. In order to constitute a first degree misdemeanor, the value of the property involved in the theft is specified as being valued at less than five hundred dollars. See
{¶13} Usually, the amount of restitution must be limited to the offenses for which a defendant is charged and convicted. See, e.g., State v. Rohrbaugh, 191 Ohio App.3d 117, 2010-Ohio-6375, 944 N.E.2d 1230, ¶ 17; State v. Williams, 3d Dist. No. 8-03-25, 2004-Ohio-2801, ¶ 23; State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56. “[A]s a matter of law, an offender cannot be ordered to pay restitution for damage arising from a crime of which he was not convicted.” Williams, 2004-Ohio-2801, at ¶ 23.
{¶14} Nevertheless, the law allows restitution for damages relating to dismissed charges where such restitution is part of a defendant‘s negotiated plea
{¶15} “There is authority that criminal defendants can stipulate to the amount of restitution to be ordered as a part of a sentence under
{¶16} As part of his negotiated plea agreement, Wickline voluntarily agreed to pay more restitution than the five hundred dollars maximum that would ordinarily be associated with a first degree misdemeanor. Wickline acknowledged that he would be responsible for “my fair share of restitution as determined by the Court in connection with the counts that are being dismissed * * *” as part of the bargain in exchange for the State‘s agreement to amend the indictment from a fifth degree felony to a first degree misdemeanor. Therefore, the trial court was authorized to order more than five hundred dollars restitution by the terms of the agreement.
{¶17} However, unlike some of the agreements in the cases cited above, Wickline did not give the trial court unlimited authority to impose any amount of restitution. See, Strickland, supra. Wickline only agreed to pay restitution “in connection with the counts that are being dismissed.” Therefore, Wickline could not be ordered to pay more restitution than he could have been ordered to pay if he
{¶18} Wickline‘s argument raised in his second issue is partially correct. The trial court was not authorized to order any amount of restitution that was greater than $5,000. However, because of the negotiated plea agreement, Wickline was not limited to paying no more than than five hundred dollars.
{¶19} The trial court erred when it ordered Wickline to pay part of the restitution to the victim‘s insurance company and when it ordered restitution in an amount greater than the maximum agreed upon by the plea agreement. Based upon our resolution of these two issues, we find that Wickline‘s assignment of error is well-taken and is sustained. The order of restitution is vacated and the matter is remanded to the trial court for further proceedings consistent with this opinion. Because the previous order of restitution is vacated, the remaining issues are now moot. Without a judgment of restitution before us, any opinion expressed on the remaining issues would be merely advisory and not in accordance with the long-standing practice of courts to decline to render advisory opinions. See, e.g., Allen v. Totes/Isotoner Corp., 123 Ohio St.3d 216, 2009-Ohio-4231, 915 N.E.2d 622, ¶¶ 9-10.
Judgment Reversed and Cause Remanded
PRESTON, J., concurs.
ROGERS, P.J., concurs in part and dissents in part.
{¶21} I concur in the reversal of the decision of the trial court because of the trial court‘s unauthorized order of restitution to the insurance company. However, to the extent that the majority condones an order of restitution for offenses of which the defendant was not convicted, or for amounts that exceed that for the offense of which the defendant was convicted, I dissent.
{¶22} The majority relies on State v. Strickland, 10th Dist. No. 08AP-164, 2008-Ohio-5968, as authority for excessive restitution based on a negotiated plea agreement. However Strickland relies solely on State v. Rosebrook, 3d. Dist. No. 8-05-07, 2006-Ohio-734, and State v. Weatherholtz, 3d Dist. No. 2-04-47, 2005-Ohio-5269, both of which are from this Court, and on both of which I dissented. I rely on my dissent in Rosebrook:
Many courts of this State, including this Court, have recognized that restitution must be limited to the offenses for which a defendant is charged and convicted. State v. Williams, 3d Dist. No. 8-03-25, 2004 Ohio 2801, ¶ 23; State v. Hafer (2001), 144 Ohio App.3d 345, 348, 2001 Ohio 2412, 760
N.E.2d 56; State v. Hooks (2000), 135 Ohio App.3d 746, 749, 735 N.E.2d 523; State v. Brumback (1996), 109 Ohio App. 3d 65, 82, 671 N.E.2d 1064; State v. Friend (1990), 68 Ohio App. 3d 241, 243, 587 N.E.2d 975. A trial court must limit its award of restitution to the actual economic loss caused by the crime for which the offender was convicted. Williams, 2004 Ohio 2801, at ¶ 23, citing Hafer, 144 Ohio App.3d at 348. “As a matter of law, an offender cannot be ordered to pay restitution for damages arising from a crime of which he was not convicted.” Williams, 2004 Ohio 2801, at ¶ 23.
The majority tries to distinguish these cases. Specifically, the majority claims that in Williams, the defendant was acquitted of charges for which the trial court erroneously imposed restitution, and in Ellis and Hafer the defendant never agreed to provide restitution for dismissed counts, as in this case. However, the plain language of the Williams case states that “as a matter of law” restitution can never arise from a crime that a defendant has not been convicted. 2004 Ohio 2801, at ¶ 23 (emphasis added). I simply cannot read this sentence to mean anything other than that a defendant can never under any circumstances be ordered to pay restitution for charges for which he or she has been acquitted or for charges which have been dismissed, regardless of what negotiations might have occurred.
Additionally, I would disagree with the Fourth District‘s holding in Ellis. In Ellis, the Forth (sic) District states the following: “In State v. Hafer, we interpreted the part of
R.C. 2929.18(A) that deals with restitution. We held that, absent a plea agreement, a trial court abuses its discretion when it orders a defendant to pay restitution for damages attributable to an offense for which he was charged, but not convicted. In Hafer, the grand jury indicted the defendant for burglary, vandalism, and receiving stolen property. Pursuant to a plea agreement, the defendant pled guilty to receiving stolen property and the remaining charges were dismissed. The trial court ordered the defendant to pay restitution relating to the vandalism charge. We reversed.” [Internal cite omitted.]
However, upon review of Hafer, it is clear that the Fourth District in Hafer never imposed the “absent a plea agreement” restriction. Accordingly, I would find that based on this Court‘s holding in Williams as well as the Fourth District‘s holding in Hafer, the imposition of restitution for a non-convicted offense is never allowable as a matter of law.
Furthermore, there is analogous authority that even a negotiated plea and acquiescence by the defendant cannot justify a penalty not authorized by statute. See In Re: Khary Ingram, 8th Dist. No. 79808, 2002 Ohio 806. Thus, because
R.C. 2929.18 , which governs a sentencing court‘s authority to order restitution, only allows for restitution to be imposed for convicted offenses, such a penalty is not authorized by statute. Hooks, 135 Ohio App.3d at 749.Finally, in applying all of these principals, I would point out that we must strictly construe statutes against the State. See Brecksville v. Cook, 75 Ohio St.3d 53, 57, 1996 Ohio 171, 661 N.E.2d 706. As such, I would find that in light of the fact that because there is no statutory authority to specifically impose restitution where charges have been dismissed, such authority cannot and should not be read into the statute. By allowing the State to “negotiate” economic sanctions for matters which have not been proven, or to which a defendant has not pled guilty, opens a door whereby the prosecutor‘s office becomes a tool for the collection of civil debts, which could be interpreted as a disciplinary violation. I would not endorse or permit the use of the State‘s power to prosecute in this manner and believe that this is exactly what the majority‘s position allows and encourages.
Because restitution cannot be imposed for a crime for which the defendant is not convicted, the imposition of such restitution in the defendant‘s case is contrary to law and rises to the level of plain error. Accordingly, I would reverse on the issue of restitution and remand for resentencing.
State v. Rosebrook, 3d Dist. No. 8-05-07, 2006-Ohio-734, ¶¶ 27-33 (Rogers, J. dissenting in part).
{¶24} In summary, I would find that any order to pay restitution, and the amount of the restitution ordered, must be limited to the offense of which the defendant is convicted. In this case the defendant entered his plea to and was convicted of a misdemeanor of the first degree, and therefore, the restitution must be limited to five hundred dollars. It must be remembered that victims are still able to recover damages through civil litigation.
/jnc