In re R.S. , 2023 Ohio 45 ( 2023 )

[Cite as In re R.S., 2023-Ohio-45.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: : CASE NO. CA2022-01-008
R.S. : OPINION
1/9/2023
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APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JV2021-0692
Timothy B. Hackett, Assistant Public Defender, for appellant.
Michael T. Gmoser, Butler County Prosecuting Attorney, and Ashley Kimmel, Assistant
Prosecuting Attorney, for appellee.
M. POWELL, P.J.
{¶ 1} Appellant, R.S., appeals a decision of the Butler County Court of Common
Pleas, Juvenile Division, ordering him to pay $50,167.49 in restitution.
{¶ 2} On September 24, 2021, 14-year-old appellant broke into his grandfather's
home and stole a loaded handgun. Later that day, appellant used the handgun to rob a
man (the "victim") of his cellphone. Appellant shot the victim in the face during the robbery.
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{¶ 3} Appellant was charged in the juvenile court with burglary, aggravated robbery,
and felonious assault with a firearm specification. On November 22, 2021, pursuant to plea
negotiations, appellant admitted to a reduced charge of theft, a reduced charge of
attempted burglary, and felonious assault with the accompanying firearm specification, and
the juvenile court adjudicated him a delinquent child.
{¶ 4} The juvenile court held a dispositional hearing on December 8, 2021. During
the hearing, the state advised the court that it had provided defense counsel with
documentation regarding the victim's medical bills related to the treatment of his gunshot
wound. The medical bills totaled $50,167.49. Defense counsel acknowledged he had
received the medical bills, stated he had reviewed them, and agreed that the amount was
$50,167.49, noting that the amount "was well-documented." Three supplemental
responses filed by the state during the proceedings below indicate it provided defense
counsel with the victim's "medical expense documentation," totaling 22 pages. The victim's
medical bills, however, were never submitted to the juvenile court. During the hearing, the
victim informed the juvenile court that "because of this, I wasn't able to work for two months
and now I have all these bills that I have to pay because the hospital bills and everything,
all of it was a result of this incident."
{¶ 5} On December 8, 2021, the juvenile court committed appellant to the custody
of the Ohio Department of Youth Services for an aggregate term consisting of a minimum
of four and one-half years and a maximum period not to exceed appellant's 21st birthday.
The juvenile court further ordered appellant to pay $50,167.49 in restitution.
{¶ 6} Appellant now appeals, raising two assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE BUTLER COUNTY JUVENILE COURT ERRED WHEN IT ORDERED
THEN 14-YEAR-OLD R.S. TO PAY OVER $50,000.00 IN RESTITUTION, EVEN THOUGH
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THERE WAS INSUFFICIENT COMPETENT, CREDIBLE EVIDENCE OF THE VICTIM'S
ACTUAL ECONOMIC LOSS. (Citations omitted.)
{¶ 9} Appellant argues the juvenile court committed plain error when it imposed the
$50,167.49 restitution order without reviewing any documentation and without determining
the extent to which the victim's medical expenses were covered by insurance.
{¶ 10} As implicitly acknowledged by appellant, he did not object to the restitution
order or the amount of restitution at disposition. He has therefore waived all but plain error.
In re A.S., 8th Dist. Cuyahoga No. 107202, 2019-Ohio-1362, ¶ 9. Crim.R. 52(B) provides
that "[p]lain errors or defects affecting substantial rights may be noticed although they were
not brought to the attention of the court." On appeal, the accused bears the burden of
proving plain error in the record. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶
22. In addition to establishing an obvious defect, the accused must show that the error
prejudiced him, that is, that there was a reasonable probability that but for the error, the
results of the proceeding would have been different. In re T.C., 8th Dist. Cuyahoga No.
102632, 2015-Ohio-4384, ¶ 10. Notice of plain error is to be taken with the utmost caution,
under exceptional circumstances and only to prevent a manifest miscarriage of justice. Id.{¶ 11} Pursuant to R.C. 2152.20(A)(3), if a child is adjudicated delinquent, the
juvenile court may "require the child to make restitution to the victim of the child's delinquent
act * * * in an amount based upon the victim's economic loss caused by or related to the
delinquent act." R.C. 2152.02(K) defines "economic loss" in pertinent part as "any
economic detriment suffered by a victim of a delinquent act as a direct and proximate result
of the delinquent act and includes medical cost[.]"
{¶ 12} When imposing restitution, the juvenile court may base its restitution order
on "an amount recommended by the victim, the delinquent child, * * * and any other
information, provided that the amount the court orders as restitution shall not exceed the
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amount of the economic loss suffered by the victim as a direct and proximate result of the
delinquent act[.]" R.C. 2152.20(A)(3); In re A.M.P., 12th Dist. Butler No. CA2016-01-020,
2016-Ohio-3546, ¶ 33. The amount of restitution must bear a reasonable relationship to
the loss suffered. In re T.C., 2015-Ohio-4384 at ¶ 8. The record must contain sufficient
evidence for the juvenile court to ascertain the amount of restitution to a reasonable degree
of certainty. Id. "In determining the amount of restitution, the definition of economic loss
must be strictly construed against the State and in favor of the accused." Id. at ¶ 7, quoting
State v. Love, 3d Dist. Marion No. 9-13-09, 2014-Ohio-437, ¶ 58; R.C. 2901.04(A).
{¶ 13} R.C. 2152.20(A)(3) does not require a restitution hearing in every case.
Rather, the statute specifically states that the juvenile court shall hold a hearing on the
restitution only if the victim or the delinquent child disputes the restitution amount.
{¶ 14} We find the record contains sufficient evidence indicating that the victim
suffered $50,167.49 in economic loss and that the restitution amount ordered by the juvenile
court bore a reasonable relationship to the loss suffered. The evidence required to support
restitution is not limited to sworn testimony or authenticated documents. State v. Spanks,
10th Dist. Franklin No. 17AP-642, 2019-Ohio-678, ¶ 10. As stated above, the restitution
order may be based on an amount recommended by the victim or the delinquent child and
"any other information."
{¶ 15} At disposition, the state cited to the victim's medical bills indicating a
$50,167.49 economic loss. Appellant did not object to the medical bills as being incorrect
or seek other documentation or evidence to verify the amount. Defense counsel advised
the juvenile court he had reviewed the victim's medical bills and expressly agreed the
amount was $50,167.49, stating it "was well-documented." We construe defense counsel's
confirmation that restitution was $50,167.49 based upon his review of the victim's medical
bills as a recommendation by appellant. See State v. Speights, 8th Dist. Cuyahoga No.
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109733, 2021-Ohio-1194. We further note that the victim's statement at disposition
suggests that the medical bills have not been paid. In light of the foregoing, we find no
error, plain or otherwise, in the juvenile court's order of restitution. State v. Hubbard, 12th
Dist. Butler No. CA2014-03-063, 2015-Ohio-646, ¶ 66; Spanks at ¶ 10.
{¶ 16} Appellant also argues the juvenile court committed plain error when it failed
to determine whether the victim had insurance that might cover all or part of his medical
expenses. Appellant cites In re T.C., 2015-Ohio-4384, in support of his argument.
{¶ 17} In In re T.C., the Eighth District Court of Appeals found plain error and
reversed a restitution order in a juvenile delinquency case in part because the question of
whether the victim's expenses were covered by insurance remained unresolved at the time
the juvenile court awarded restitution. In that case, when told by the prosecutor that
restitution for the victim's damaged car was $2,700, the juvenile court responded, "What?
There was no insurance?" The prosecutor replied she would check with the victim;
however, the question was left unresolved. In reversing the restitution order, the Eighth
District stated, "The resolution of this question was necessary because restitution amounts
should reflect only the victim's out-of-pocket economic losses and should not include
amounts covered by insurance carriers." In re T.C. at ¶ 18.
{¶ 18} Here, unlike in In re T.C., there is no indication in the record suggesting the
victim's losses were or might be insured. A similar situation was addressed by the Eighth
District Court of Appeals in State v. Nickens, 8th Dist. Cuyahoga No. 104670, 2017-Ohio-
1448. In that case, the defendant was convicted of stealing from her corporate employer
and ordered to pay restitution. The defendant challenged the restitution order, arguing the
trial court erred in failing to inquire whether the corporate employer's losses were covered
by insurance. The Eighth District found no plain error and upheld the restitution order.
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{¶ 19} The court first noted that "[i]f the victim has insurance that reimbursed her for
part or all of the loss that occurred as a result of the offender's criminal conduct, the victim
has not suffered an economic loss for the purposes of imposing restitution." Id. at ¶ 8.
However,
Where restitution is imposed but the record does not
demonstrate that the victim's economic losses were partly or
wholly covered by insurance, we must affirm. If a particular
victim omits any reference to potential insurance proceeds, that
omission or the trial court's failure to inquire into the existence
of insurance is not presumptively prejudicial error. Nickens's
argument rests on the faulty presumption that all victims, even
large organizations, have insurance and have received
proceeds for at least part of what was lost. In this case, the
record demonstrates that the trial court considered all that was
required under R.C. 2929.18, the amount of restitution is based
on competent, credible evidence, and nothing in the record
affirmatively demonstrates that restitution was imposed for any
amount already recovered through insurance proceeds.
(Citations omitted.) Id. at ¶ 9. See also In re A.S., 2019-Ohio-1362 at ¶ 22, fn. 2 (finding
that trial court's failure to consider the possibility of insurance coverage before ordering
restitution was not plain error where there was nothing in the record suggesting that the
victim had insurance that might cover all or part of the cost of repairs); Speights, 2021-Ohio-
1194 at ¶ 19 (finding that trial court's failure to consider potential insurance proceeds before
ordering restitution was not plain error where there was nothing in the record indicating that
any of the victims had insurance coverage that might cover all or part of the losses at issue).
{¶ 20} In support of his argument, appellant also cites State v. Thornton, 1st Dist.
Hamilton No. C-160501, 2017-Ohio-4037; State v. Bowman, 181 Ohio App.3d 407, 2009-
Ohio-1281 (2d Dist.); State v. Martin, 140 Ohio App.3d 326 (4th Dist.2000); State v. Christy,
3d Dist. Wyandot No. 16-06-01, 2006-0hio-4319; State v. Clayton, 2d Dist. Montgomery No.
22937, 2009-Ohio-7040; State v. Hebb, 5th Dist. Ashland No. 5 2010-COA-038, 2011-Ohio-
4566; State v. Dunham, 5th Dist. Richland No. 13CA26, 2014-Ohio-1042; and State v.
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Waiters, 191 Ohio App.3d 720, 2010-Ohio-5764 (8th Dist.), for the proposition that a trial
court errs in ordering restitution without considering whether the victim's loss was
compensated from collateral sources.
{¶ 21} By way of illustration, Thornton involved a case where a bank reimbursed the
victims for the full amount they had reported stolen from their bank account. The trial court
ordered the defendant to pay restitution to the victims. The First District Court of Appeals
reversed the restitution order as contrary to law, explaining that
because R.C. 2929.18(A)(1) states that the trial court's order of
restitution shall not exceed the amount of economic loss
suffered by the victim, and double recovery would amount to an
impermissible economic windfall for the victim, the evidence
introduced to demonstrate the actual economic loss suffered by
the victim must take account of any offsets to the victim's
economic loss and any mitigation of damages in the form of
compensation received for the loss from, for example,
insurance, the Ohio Title Defect Rescission Fund, or civil
judgments against the defendant.
Thornton, 2017-Ohio-4037 at ¶ 19. The First District held that any order of restitution to the
victims would result in a double recovery and an impermissible windfall since they had been
reimbursed by the bank for the amount the defendant had stolen, and therefore, had not
suffered an economic loss. Id. at ¶ 19-20.
{¶ 22} Unlike the case at bar, all of the foregoing cases, with the exception of
Clayton, involved information or evidence that the victims had been compensated to some
extent for their losses by collateral sources, be it an insurance carrier, a bank, a civil
judgment against the defendant, the Ohio Title Rescission Fund, or the Victims of Crime
Fund. Clayton did not involve compensation from a collateral source.
{¶ 23} As stated above, there is no indication or evidence in the record that the victim
had insurance that might cover all or part of his losses. There is no evidence that the
juvenile court ordered restitution in excess of the amount of economic loss suffered by the
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victim; appellant has not shown that the amount the court ordered him to pay exceeded the
victim's economic loss. The record demonstrates that the juvenile court considered all that
was required under R.C. 2152.20(A)(3), the amount of restitution ordered was based upon
competent, credible evidence—defense counsel's statement that the restitution amount
was well documented, and nothing in the record affirmatively shows that restitution was
ordered for any amount recovered through insurance proceeds. The juvenile court,
therefore, did not commit plain error when it imposed the $50,167.49 restitution order.
{¶ 24} Appellant's first assignment of error is overruled.
{¶ 25} Assignment of Error No. 2:
{¶ 26} THEN 14-YEAR-OLD R.S. WAS DEPRIVED OF HIS CONSTITUTIONAL
RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO
CONTEST A $50,167.49 AWARD OF RESTITUTION, EVEN THOUGH THERE WAS
INSUFFICIENT COMPETENT, CREDIBLE EVIDENCE OF THE VICTIM'S ACTUAL
ECONOMIC LOSS. (Citations omitted.)
{¶ 27} Appellant argues that his trial counsel was ineffective because he failed to
object to the $50,167.49 restitution order without confirming whether any of the victim's
medical expenses were covered by insurance.
{¶ 28} To establish ineffective assistance, appellant must show (1) deficient
performance by counsel, i.e., performance falling below an objective standard of reasonable
representation, and (2) prejudice, i.e., a reasonable probability that but for counsel's errors,
the proceeding's result would have been different. State v. Mundt, 115 Ohio St.3d 22, 2007-
Ohio-4836, ¶ 62. The failure to make an adequate showing on either prong is fatal to
appellant's ineffective assistance of counsel claim. In re T.D., 12th Dist. Brown No.
CA2021-07-009, 2022-Ohio-562, ¶ 19.
{¶ 29} Ineffective assistance of counsel cannot be inferred from a silent record. In
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re S.C., 8th Dist. Cuyahoga No. 100396, 2014-Ohio-3905, ¶ 31. "When a defendant makes
allegations of the ineffectiveness of his trial counsel based on facts that do not appear in
the record, those allegations should be reviewed through postconviction relief, not on direct
appeal." Id., citing State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983).
{¶ 30} There is no evidence in the record regarding what inquiries defense counsel
made concerning the victim's medical expenses. There is no evidence in the record
regarding what discussions defense counsel had with appellant concerning the victim's
medical expenses. Because a determination of appellant's claim of ineffective assistance
of counsel involves facts outside the record, appellant's argument must fail based on the
authority of Cooperrider. State v. Leeper, 5th Dist. Delaware No. 2004CAA07054, 2005-
Ohio-1957, ¶ 57. Appellant has failed to demonstrate that trial counsel's performance was
deficient or that such deficiency resulted in prejudice to him. In re S.C. at ¶ 33.
{¶ 31} Appellant's second assignment of error is overruled.
{¶ 32} Judgment affirmed.
BYRNE, J., concurs.
PIPER, J., dissents.
PIPER, J., dissenting.
{¶ 33} Even if defense counsel acquiesced to the amount of the invoices, restitution
"shall not" be an amount more than the loss the victim actually suffered. R.C.
2152.20(A)(3); State v. Yerkey, Slip Opinion No. 2022-Ohio-4298, ¶ 13. In other words,
ordering an amount of restitution more than that actually suffered by the victim is contrary
to law. In this matter, the record does not establish the restitution ordered was the amount
of economic loss the victim actually suffered nor was it based upon evidence in the record.
{¶ 34} R.C. 2152.20(A)(3) mandates that a juvenile court's authority to order
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restitution is statutorily restricted. Such an order "shall not exceed the amount of the
economic loss suffered by the victim * * *." Id. "Economic loss" is that economic detriment
suffered by a victim. R.C. 2152.02(K). Further, R.C. 2152.20(A)(3) also expressly states
"the court shall determine * * * the amount of restitution to be paid" which places an
affirmative duty upon the court to determine the victim's actual loss and that it is the direct
and proximate result of the juvenile offender's criminal offense. The standard of proof is
reasonable certainty.1
{¶ 35} Respectfully, the suggestion of an attorney as to what invoices (not entered
into the record) possibly add up to, fails the requirement of reasonable certainty.
Substantive and Procedural Due Process
{¶ 36} Substantive due process involves examining whether there is a sufficient
purpose in depriving a person of property, while procedural due process involves an
examination of whether proper procedures were involved. In context here, a juvenile court
has no authority to order restitution in an amount more than the economic loss suffered by
a victim (substantive), and a determination of economic loss can only be premised upon
procedures producing competent, credible evidence (procedural).
{¶ 37} When imposing restitution, due process requires the amount ordered must
bear a reasonable relationship to the victim's actual loss. State v. Oliver, 12th Dist.
Clermont No. CA2020-07-041, 2021-Ohio-2543, ¶ 7. Therefore, the amount of restitution
to be ordered is restricted to the actual loss and must be established to a reasonable degree
of certainty. Id.{¶ 38} In our present matter, the juvenile offender committed an outrageous and
1. The criminal justice statutory scheme that limits a crime victim to only restitution in the amount of loss the
victim actually suffered is not overly stringent when recalling that restitution through the criminal justice system
is not the only recourse for crime victims, as there are numerous avenues in the law to recovery. Yerkey at ¶
18.
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reprehensible crime of violence; however, the law nevertheless requires a minimal amount
of due process. Juvenile offenders are not entitled to less than those in adult court.
Therefore, adherence to minimum requirements of due process necessitate more than
cursory proceedings. A restitution hearing must result in an amount of restitution based
upon competent, credible evidence of the actual expenses the victim loss. R.C.
2152.20(A)(3); State v. Stamper, 12th Dist. Butler No. CA2009-04-115, 2010-Ohio-1939, ¶
17.
{¶ 39} Precedent clearly establishes that "[d]ue process requires that the amount of
restitution bear a reasonable relationship to the actual loss suffered by the victim." Id.(Emphasis added); State v. Lalain, 136 Ohio St.3d 248, 254-255 (2013) (restitution is limited
to the amount of the economic loss incurred by the victim and cannot be greater than the
economic loss); Yerkey, 2022-Ohio-4298 at ¶ 13 ("this court and other courts in Ohio have
continued to determine the amount of restitution based on the economic loss suffered by
the victim").2 To make the required determinations necessary for ordering restitution, the
juvenile court must apply the law to the particular facts. Regarding the facts, evidence is
required unless stipulations are entered into and accepted by the court eliminating the need
for evidentiary proof.
Need For Evidence in The Record
{¶ 40} Juvenile proceedings determining restitution must ensure due process by
requiring evidence to support the award of restitution. In re J.G., 3rd Dist. Logan No. 8-20-
59, 2021-Ohio-1624, ¶ 45. Plain error arises when an award of restitution is not supported
2. Reference to cases addressing R.C. 2929.18(A)(1) are highly instructive as that restitution statute, for all
relevant purposes, is identical to R.C. 2152.20(A)(3), the juvenile statute involved herein. Additionally worth
noting, the Ohio Supreme Court has recently articulated that for restitution purposes there is a meaningful
difference between one who has actually suffered an economic loss and one who might ultimately suffer an
economic loss in the future. State v. Allen, 159 Ohio St.3d 75, 78 (2019). The purpose of restitution, not to
be frustrated, is "reimbursement," a word referenced in R.C.2152.20(A)(3).
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by competent, credible evidence. Id. ¶ 54.
{¶ 41} This court has previously acknowledged a hearing may not be required if there
is enough evidence in the record to substantiate the amount of loss the victim incurred.
State v. Borders 12th Dist. Clermont No. CA2004-12-101, 2005-Ohio-4339, ¶ 36. In
Borders we reversed the trial court because there was no evidence in the record to support
the award of restitution based only upon the victim's statement. Id. at ¶ 38. We noted the
court had failed to follow "the procedures necessary to determine that the restitution order
bore a reasonable relationship to the victims' loss." Id. at ¶ 37. Borders is applicable here.
{¶ 42} There was no stipulation, agreed upon and accepted by the court, as to the
amount, as to what was actually paid or an actual loss of the victim. Therefore, the juvenile
court's need for evidence was not relinquished. Plain error is committed when imposing
restitution based only upon a statement of loss given by an attorney. State v. Alexander,
4th Dist. Scioto No. 10CA3402, 2012-Ohio-2041, ¶ 8-14.
{¶ 43} Here defense counsel merely acknowledged that the invoices the state
provided in discovery totaled $50,167.49. The majority would "construe" defense counsel's
statement as a "recommendation" even though there is no evidence substantiating such a
recommendation. ¶ 15 above. There are no invoices introduced into the record totaling
$50,167.49. Significantly, unsupported statements are not evidence. Alexander at ¶ 13-
14. Despite the majority opinion characterizing the attorney's statement as "evidence," ¶
23 above, defense counsel's unsupported statement simply is not evidence.
{¶ 44} Significantly, as officers of the court, neither defense counsel nor the state
could represent to the court the figure of $50,167.49 was an economic loss actually suffered
by the victim. While defense counsel looked at what was represented as invoices from
medical providers, the invoices referenced were never tendered to the court for examination
or consideration. There is no indication the court ever reviewed what was paid or
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determined what was written off or what was due.
{¶ 45} Therefore, with no agreed upon stipulation as to the amount of economic loss
waiving the need for evidence in the record, evidence remained a necessary requirement.
It was incumbent upon the court to determine from evidence as to whether the victim
actually incurred that loss; whether the loss incurred was a direct or proximate result of the
offense; and whether it was established to a reasonable degree of certainty.3
Plain Error
{¶ 46} We have previously explained it is error for the court not to determine with
reasonable certainty the amount of actual loss incurred. Borders, 2005-Ohio-4339 at ¶ 36-
39. There must be some competent, credible demonstration within the record as to the
actual loss suffered by a victim, which is ultimately awarded as reimbursement for that loss.
Stamper, 2010-Ohio-1939 at ¶ 19. Merely submitting the issue of restitution to the court
without an objection to the procedure as to how the amount will be determined, rises to the
level of plain error. State v. White, 4th Dist. Adams No. 18CA1080, 2019-Ohio-4288, ¶ 21-
25 (submitting the issue for the court's determination was not construed as a
recommendation or a stipulation).
{¶ 47} It is well established that a restitution order not founded upon competent,
credible evidence, whether testimony or exhibits, is clearly and convincingly contrary to law
and subject to plain error. Id. at ¶ 22, citing State v. Patton, 4th Dist. Highland No. 18CA9,
2019-Ohio-2769, ¶ 23, and State v. Coleman, 4th Dist. Highland No. 16CA18, 2018-Ohio-
1709, ¶ 12-14 (applying plain error to challenge restitution order).
{¶ 48} The victim's statements to the court reflect he had not paid the invoices and
3. An accepted stipulation of fact renders proof of that fact unnecessary. State v. Harmon,12th Dist. Warren
No.CA2019-01-007, 2019-Ohio-5036, ¶ 11. "Although litigants may stipulate to facts, they may not stipulate
as to what the law requires." Wilson v. Harvey, 8th Dist. Cuyahoga No. 85829, 2005-Ohio-5722, ¶ 15.
Stipulations involving legal conclusions do not relieve a trial court of its duty to exercise its own analysis
applying the law to the facts. Id.- 13 -
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therefore had not suffered an actual loss when restitution was ordered. In fact, the victim
indicated he came here to work and would soon be returning to his own country. This
suggests he may be out of work upon arriving home. For all this court knows the invoices
may still be unpaid. Curiously there is no contact information for the victim in the record.
There is also no inquiry, or representation, as to whether his employment at the time of the
incident provided insurance coverage. If the invoices have gone unpaid, the medical
providers would be the persons or entities suffering a loss, not the victim.4
{¶ 49} In this case there is no way to review whether the defense attorney's
calculation of the bills, totaling $50,167.49, is correct. No one knows the accuracy, with any
degree of certainty, of the amount actually owed to the victim. Additionally, the record does
not demonstrate who actually has a loss regarding the numerous invoices. The juvenile
court's order simply cannot be substantiated.
{¶ 50} Reversal is required where evidence used at trial was not entered into the
record preventing effective judicial review. Moore v. Moore, 8th Dist. Cuyahoga No.109999,
2021-Ohio-4010, ¶ 8. For purposes of meaningful review, documents referenced in trial
court proceedings must be made a part of the record. Dunlap v. Dunlap, 1st Dist. Hamilton
Nos. C-940033 and C-940050, 1996 WL 134543, *13 (Mar. 27, 1996), citing In re Cross,
1st Dist. Hamilton No. C-920113, 1993 WL 231714, *2 (Apr. 28, 1993) (holding the absence
from the record of the child support calculation worksheet identified at the hearing but not
admitted into evidence constituted reversible error).
Conclusion
{¶ 51} Just as we reversed in Borders, our appellate review has been thwarted by
4. In June 2004 the General Assembly amended R.C. 2929.18 to delete all reference to restitution for third
parties. State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, ¶ 1. Today economic loss as defined in
R.C. 2152.02(K) and 2929.01(L) do not include reimbursement directly to third parties. However, R.C.
2929.18(A) and 2152.20(A)(3) acknowledge restitution to the survivor of a victim.
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the absence of proceedings demonstrating evidence substantiating the court's order.
Defense counsel's failure to adequately represent his client is not outside the record. For
counsel to acquiesce to proceedings that award such an amount to the victim, by silently
standing by, is tantamount to facilitating an economic windfall for the victim and contrary to
effective representation of his client. Such impermissible windfalls frustrate the purpose of
restitution and are contrary to law. State v. Wilcox, 1st Dist. Hamilton No. C-190495, 2021-
Ohio-2282, ¶ 5, 9; State v. Thornton, 1st Dist. Hamilton No. C-160501, 2017-Ohio-4037, ¶
20. Whether the court, or an attorney's acquiescence, restitution permitted to act as a
windfall does not comport with due process.
{¶ 52} Therefore, with respect for my colleagues' different opinion, I find the juvenile
court's order in the absence of any evidence is contrary to law which rises to the level of
plain error. I also find that it was plain error for defense counsel not to object to the lack of
proof demonstrating the victim's actual loss. The failure to require evidence in protecting a
juvenile's interest in not being saddled with a large restitution order equates to the
ineffective assistance of legal representation. I therefore would vacate and reverse the
restitution order and remand for a meaningful restitution hearing where the state can
establish, with evidence, the amount of loss the victim suffered.
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