State v. Wilson , 2015 Ohio 5143 ( 2015 )

[Cite as State v. Wilson, 2015-Ohio-5143.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102645
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DERRELL L. WILSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-585131-A
BEFORE: Boyle, J., Celebrezze, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: December 10, 2015
ATTORNEY FOR APPELLANT
Thomas A. Rein
700 West St. Clair Avenue
Suite 212
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Marcus A. Henry
Eric L. Foster
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Derrell L. Wilson, appeals his conviction and sentence,
raising the following two assignments of error:
I. Appellant did not enter his guilty plea knowingly, intelligently, or
voluntarily because the trial court failed to properly inform him of the maximum
penalties as required by Crim.R. 11(C)(2)(a).
II. The trial court committed reversible error when it ordered restitution
without sufficient, competent evidence in the record.
{¶2} For the reasons that follow, we affirm.
A. Procedural History and Facts
{¶3} In May 2014, Wilson was indicted on two counts: aggravated burglary and
felonious assault. Four months later, following a plea agreement reached with the state, Wilson
ultimately pleaded guilty to an amended Count 2 for aggravated assault. The state moved to
nolle Count 1, which was granted by the trial court. Prior to accepting Wilson’s guilty plea, the
trial court engaged in a plea colloquy, advising Wilson of his constitutional rights and informing
him of the penalties that he faced for a fourth-degree felony. The trial court ultimately accepted
Wilson’s guilty plea and then referred Wilson for a presentence investigation.
{¶4} At sentencing, the trial court first heard from the victim. The victim explained
that Wilson attacked him, breaking his jaw. According to the victim, he had to have surgery but
his “jaw is still messed up” as a result of Wilson’s actions. He further testified that he incurred
$28,337.86 in medical bills that were not covered by insurance. Defense counsel addressed the
court and urged the court to impose community control sanctions instead of a prison term,
emphasizing Wilson’s remorse for his actions, his positive work history, and his lack of any prior
felony convictions. Defense counsel stated the following as to the restitution requested:
With respect to the restitution, your Honor, obviously Derrell understands
that this is going to be his responsibility as well now and he wants to do what he
can. Obviously working at Rally’s this isn’t something he’s going to be able to
pay next week but he wants to take responsibility, he wants to make this right.
{¶5} Wilson then addressed the court, expressing his remorse and urging the court to be
lenient.
{¶6} The trial court ultimately imposed 18 months of community controlled sanctions.
As part of the community controlled sanctions, the trial court sentenced Wilson to 120 days in
jail with 30 days suspended. Of the 90 days to be served, the trial court ordered that Wilson
serve the first 30 days in jail and then the remaining 60 days could be served on the weekends.
The trial court also ordered that Wilson pay restitution in the amount of $28,337.86.
{¶7} From this order, Wilson appeals.
B. Guilty Plea
{¶8} In his first assignment of error, Wilson argues that his conviction should be
reversed because the trial court failed to inform him of the maximum penalty before accepting
his guilty plea. Specifically, he argues that the trial court’s failure to inform him of restitution
at the time of his guilty plea rendered his plea less than knowingly, intelligently, and voluntarily
made. We disagree.
{¶9} Under Crim.R. 11(C)(2), a trial court “shall not accept a plea of guilty * * *
without first addressing the defendant personally and * * * determining that the defendant is
making the plea voluntarily, with understanding * * * of the maximum penalty involved * * *.”
This section of Crim.R. 11 does not involve constitutional requirements; therefore, a reviewing
court must determine whether there was substantial compliance. State v. Veney, 120 Ohio St. 3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14-17. “Substantial compliance means that under the
totality of the circumstances the defendant subjectively understands the implications of his plea
and the rights he is waiving.” State v. Nero, 56 Ohio St. 3d 106, 108, 564 N.E.2d 474 (1990).
{¶10} Furthermore, a defendant must show prejudice before a plea will be vacated for a
trial court’s error involving Crim.R. 11(C) procedure when nonconstitutional aspects of the
colloquy are at issue. Veney at ¶ 14-17. The test for prejudice is whether the plea would have
otherwise been made. Id. at ¶ 15.
{¶11} Although the trial court failed to inform Wilson of restitution at the time of the
plea hearing, Wilson has failed to demonstrate or even allege any prejudicial effect of the trial
court’s alleged error. And under such circumstances, Ohio courts have consistently rejected any
claim to vacate a plea. See, e.g., State v. Schmidt, 11th Dist. Portage No. 2012-P-0034,
2015-Ohio-2450, ¶ 21 (plea not vacated where trial court failed to advise defendant of the correct
maximum fine where defendant failed to demonstrate any prejudice arising out of the error);
State v. Soltis, 8th Dist. Cuyahoga No. 92574, 2009-Ohio-6636, ¶ 22 (plea not vacated where
defendant presented no evidence nor argued that he would not have entered his plea if he had
known of the consequences of violating postrelease control); State v. Alfarano, 1st Dist.
Hamilton No. C-011030, 2008-Ohio-3476 (no prejudice found and plea not vacated where
defendant made no allegation he would not have pled guilty if he had known the mandatory term
of postrelease control was five years, not three years as advised by the trial court).
{¶12} Nothing in the record suggests that Wilson would not have entered his plea had he
been told that he would have to pay restitution. To the contrary, aside from not objecting to the
imposition of restitution, Wilson expressly indicated his desire to pay the restitution amount.
Notably, this representation was made prior to the trial court imposing any sentence and after the
full amount of restitution had been disclosed by the victim. Based on these facts, we find no
basis to conclude that Wilson’s plea would not have otherwise been made if he knew that he
would have to pay restitution at the time of the plea.
{¶13} Accordingly, the first assignment of error is overruled.
C. Restitution Order
{¶14} In his second assignment of error, Wilson argues that the trial court erred when it
ordered restitution without sufficient, competent evidence in the record. We disagree.
{¶15} R.C. 2929.18 governs restitution and provides that financial sanctions may include:
Restitution by the offender to the victim of the offender’s crime * * * in an
amount based on the victim’s economic loss. * * * 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, * * * 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.
Id. at (A)(1).
{¶16} A trial court has “discretion to order restitution in appropriate case.” State v.
Lalain, 136 Ohio St. 3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 27. The restitution ordered,
however, cannot be greater than the amount of economic loss suffered as a direct and proximate
result of the commission of the offense. Id. at ¶ 24. “If the record contains competent,
credible evidence establishing the amount of loss sustained by the victim, then the trial court
does not abuse its discretion in awarding restitution.” State v. Jones, 10th Dist. Franklin No.
15AP-45, 2015-Ohio-3983, ¶ 13.
{¶17} Prior to ordering restitution, the trial court heard from the victim at sentencing,
who specifically identified the amount of medical expenses incurred as a result of Wilson’s
commission of the underlying offense. Notably, Wilson never disputed the stated amount of the
victim’s medical expenses. Nor did Wilson dispute that the medical expenses were the direct
and proximate result of his crime. Thus, relying on the victim’s testimony, the trial court acted
well within its discretion in ordering Wilson to pay restitution that covered the costs of the
victim’s medical expenses. See Jones at ¶ 14 (“A victim’s testimony alone is sufficient to
establish economic loss for a restitution order.”); see also State v. Tabasso, 8th Dist. Cuyahoga
No. 98248, 2013-Ohio-3721, ¶ 15 (victim’s testimony regarding accumulated medical bills and
lost wages established value of loss and amount of restitution awarded the victim).
{¶18} Wilson argues, however, that the victim’s testimony was contradicted by the
prosecutor at sentencing who “stated that there is a Cleveland Clinic bill and ‘the bill is I think
20,000-some-odd dollars and change.’” Wilson contends that this contradiction coupled with the
lack of any documentary evidence undermines the restitution award. We disagree. As stated
above, “a restitution order may be supported by the victim’s testimony alone without
documentary corroboration.” Jones at ¶ 16. And further, the record reveals that the victim
submitted a written statement corroborating his claim of medical bills. While this written
statement was not made part of the record on appeal, we note that defense counsel never objected
to the victim’s testimony. Nor did defense counsel challenge the submission of the written
statement, which the victim offered as corroboration. Accordingly, based on the victim’s
testimony alone, we find that the trial court acted well within its discretion in awarding
restitution.
{¶19} The second assignment of error is overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
FRANK D. CELEBREZZE, JR., A.J., and
TIM McCORMACK, J., CONCUR