State v. Johnson , 2011 Ohio 5913 ( 2011 )

[Cite as State v. Johnson, 2011-Ohio-5913.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-100702
TRIAL NO. B-1005248
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JASON M. JOHNSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed as Modified
Date of Judgment Entry on Appeal: November 18, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michael A. Woodford, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
S UNDERMANN , Presiding Judge.
{¶1} Jason Johnson appeals from the trial court’s judgment that ordered
him to pay restitution to Ada Goldston, Cash America, and Auto Owners Insurance
(“Auto Owners”). We conclude that the trial court erred when it ordered Johnson to
pay restitution to the victim’s insurance company, and we modify the trial court’s
judgment to remove that restitution obligation. As modified, we affirm the judgment
of the trial court.
{¶2} Johnson was indicted for the fourth-degree felony of receiving
property stolen from Goldston worth $5,000 or more, but less than $100,000. As
the result of plea negotiations, Johnson pleaded guilty to a reduced charge of fifth-
degree receiving stolen property.
{¶3} After accepting Johnson’s guilty plea, the trial court held a hearing on
restitution. During the hearing, Goldston testified that a gold chain with a 1.45-carat
diamond pendant had been stolen from her home. The gold chain had been
recovered from Cash America where it had been pawned, but the diamond was still
missing. According to Goldston, the diamond was valued at $11,400 on her
homeowner’s insurance policy. Goldston’s insurance company, Auto Owners, had
paid her $5,631 for her loss.
{¶4} After a sentencing hearing, the trial court sentenced Johnson to five
months of community control, fined him $250, and ordered him to pay restitution as
follows: $5,769 to Goldston, $125 to Cash America, and $5,631 to Auto Owners.
Johnson now appeals.
{¶5} In his first assignment of error, Johnson asserts that the trial court
erred when it ordered him to pay restitution to Auto Owners. We agree. R.C.
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OHIO FIRST DISTRICT COURT OF APPEALS
2929.18(A)(1) provides that a trial court may order that a defendant pay restitution
to his victim in the amount of 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.” R.C.
2929.18(A)(1). In 2004, the General Assembly amended the former version of R.C.
2929.18(A)(1) to remove language that allowed the trial court to order that
restitution be paid to a third party on behalf of the victim. See State v. Berlinger, 1st
Dist. No. C-100541, 2011-Ohio-2223. Given this deletion, the legislature’s intent to
disallow payment to victims’ insurance companies is clear. See State v. Colon, 185
Ohio App.3d 671, 2010-Ohio-492, 925 N.E.2d 212; State v. Kelly, 4th Dist. Nos.
10CA28 and 10CA29, 2011-Ohio-4902. The state concedes that the trial court erred
when it ordered that restitution be paid to Auto Owners. The first assignment of
error is sustained.
{¶6} We consider Johnson’s next two assignments of error together, as
both take issue with the amount of restitution that Johnson was ordered to pay
Goldston. We reframe the assignments together to assert that the court erred when
it ordered Johnson to pay $5,631 in restitution to Goldston. We note that after the
trial court announced that it was ordering Johnson to pay restitution to Goldston,
Cash America, and Auto Owners, Johnson objected only to “any evidence that we
have regarding the restitution to the insurance company.” Therefore, he has waived
all but plain error with respect to the amount awarded to Goldston. Under the plain-
error standard, Johnson cannot prevail on his claim “unless, but for the error, the
outcome * * * would have been otherwise.” State v. Long (1978), 53 Ohio St.2d 91,
372 N.E.2d 804, paragraph two of the syllabus.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} When determining the amount of restitution to order, a trial court
may consider “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.” R.C.
2929.18(A)(1). “[C]ompetent, credible evidence must support a restitution order so
that the court can discern the amount to a reasonable degree of certainty.” State v.
Sexton, 1st Dist. No. C-110037, 2011-Ohio-5246, ¶3, citing State v. Webb, 173 Ohio
App.3d 547, 2007-Ohio-5670, 879 N.E.2d 254, ¶34; State v. Purnell, 171 Ohio
App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, ¶16.
{¶8} Johnson argues that evidence of the amount that the insurance
company had paid Goldston was competent, credible evidence of the extent of her
loss. But Goldston testified that the diamond had been valued at $11,400 on her
insurance claim. The trial court was in the best position to determine whether
Goldston was credible and whether her testimony supported a restitution award of
$11,400. The amount of restitution that Johnson was ordered to pay Goldston was
$11,400 less the amount that she had been paid by the insurance company.
{¶9} Johnson also argues that the amount of restitution the trial court had
the authority to award was limited by his plea to fifth-degree receiving stolen
property, which indicated that the property in question had a value of $500 to
$5000. But the trial court was not limited to the negotiated plea amount. See State
v. Brumett, 12th Dist. No. CA2003-06-135, 2004-Ohio-2211. In her statement of the
facts of the offense, the prosecutor stated that the property was worth $11,000, and
Johnson did not object at the time to that figure. We note that Johnson seems to
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OHIO FIRST DISTRICT COURT OF APPEALS
contend within his argument under the third assignment of error that his plea was
involuntary because he was unaware that restitution would be ordered. But because
he has not assigned this as error, we do not consider it as an assignment of error.
{¶10} Johnson also contends that the trial court improperly considered the
sentimental value of the diamond when determining the restitution amount. This
contention is not borne out by the record. Although the prosecutor asked Goldston
about the sentimental value of the diamond, it is clear that the amount of restitution
that was ordered by the trial court was based on the amount at which the diamond
had been valued for Goldston’s insurance policy and the amount that had been paid
to Goldston by the insurance company.
{¶11} We conclude that Johnson has not demonstrated plain error. The
second and third assignments of error are therefore without merit.
{¶12} Because we have determined that the trial court erred when it ordered
that restitution be paid to Auto Owners, we reverse that part of the trial court’s
judgment and modify the trial court’s judgment to remove that part of the restitution
order. The judgment of the trial court is affirmed as modified.
Judgment affirmed as modified.
C UNNINGHAM and F ISCHER , JJ., concur.
Please Note:
The court has recorded its own entry this date.
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