State v. Walling ( 2019 )

[Cite as State v. Walling, 2019-Ohio-2490.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-06-130
: OPINION
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:
JENISE B. WALLING, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR 2017-11-1910
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Law Office of Christopher P. Frederick, Christopher P. Frederick, 300 High Street, Suite 550,
Hamilton, Ohio 45011, for appellant
RINGLAND, J.
{¶ 1} Appellant, Jenise Walling, appeals from the decision of the Butler County Court
of Common Pleas ordering him to pay restitution. For the reasons detailed below, we affirm.
{¶ 2} Walling pled guilty to one count of possession of heroin and one count of
receiving stolen property. At the sentencing hearing, the trial court ordered Walling to pay
$1,500 in restitution. Walling's trial counsel objected and requested a hearing based on his
Butler CA2018-06-130
understanding that the victim's property had been returned. As a result, the trial court
vacated the restitution order and scheduled a hearing.
{¶ 3} Walling failed to appear for the restitution hearing and the matter proceeded
without him. Walling's trial counsel argued against the imposition of restitution. Thereafter,
the trial court imposed $1,500 in restitution and stated the reasons on the record:
Well with regard to the restitution amount, the Court is unable to
address the arguments that [Counsel] has proffered today, given
[Walling's] non-appearance. The Court has in front of it only the
information in the pre-sentence investigation [sic] report and at
this time is going to order the restitution in the amount of $1,500
to [the victim] * * *.
Walling now appeals, raising two assignments of error for review.
{¶ 4} Assignment of Error No. 1:
{¶ 5} MR. WALLING'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO
DUE PROCESS WERE VIOLATED WHEN THE TRIAL COURT HELD A RESTITUTION
HEARING IN HIS ABSENCE.
{¶ 6} Assignment of Error No. 2:
{¶ 7} THE TRIAL COURT ERRED WHEN IT ORDERED APPELLANT TO PAY A
TOTAL OF $1,500.00 IN RESTITUTION.
{¶ 8} We will address Walling's assignments of error together. Walling argues the
trial court erred in holding the hearing in his absence and ordering $1,500 in restitution.
Walling's assignments of error are without merit.
{¶ 9} R.C. 2929.18(A)(1) grants a trial court the authority to order restitution by an
offender to the victim, or any survivor of the victim, in an amount commensurate with the
victim's economic loss. State v. Hubbard, 12th Dist. Butler No. CA2014-03-063, 2015-Ohio-
646, ¶ 65. As defined by R.C. 2929.01(L), the term "economic loss" means "any economic
detriment suffered by a victim as a direct and proximate result of the commission of an
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offense" and includes, among others, medical costs and funeral expenses incurred.
"Economic loss," however, does not include "non-economic loss or any punitive or exemplary
damages." R.C. 2929.01(L).
{¶ 10} When imposing restitution, the amount of restitution must bear a reasonable
relationship to the victim's actual loss to comport with due process. State v. Bowling, 12th
Dist. Butler No. CA2018-07-148, 2019-Ohio-751, ¶ 6. Thus, the restitution amount is limited
to the actual loss or damage caused by the offender and must be established to a
reasonable degree of certainty. State v. Collins, 12th Dist. Warren No. CA2014-11-135,
2015-Ohio-3710, ¶ 32.
{¶ 11} In order to determine the proper amount of restitution, R.C. 2929.18(A)(1)
allows a court to base the restitution order:
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.
{¶ 12} Initially, Walling argues the trial court violated his right to due process by
holding the restitution hearing in his absence. Ohio Constitution, Article I, Section 10; Snyder
v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 107-108 (1934); See Crim.R. 43(A)(1)
("defendant must be physically present at every stage of the criminal proceeding and trial, * *
* except as otherwise provided by these rules"). However, Walling's counsel failed to object
to the continuation of proceedings and therefore has waived all but plain error on this issue.1
See State v. Carr, 104 Ohio App. 3d 699, 703 (2d Dist.1995).
1. We also note that Walling provided no explanation for his absence. See, e.g., Carr, at 703 ("[i]f counsel has
no explanation for the defendant's absence, the trial court may nevertheless find the absence to be voluntary
because the presumption that the defendant knows of his obligation to attend has gone unrebutted").
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{¶ 13} Pursuant to Crim.R. 52(B), an alleged error constitutes plain error only if the
error is obvious and but for the error, the outcome clearly would have been different. State v.
Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 41.
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. As discussed below, because there
was no error in the restitution order, no plain error occurred.
{¶ 14} Walling argues the trial court erred when it ordered restitution because the
$1,500 ordered related to the act of burglarizing the victim's house. Walling insists that he
was only convicted of receiving stolen property. Therefore, Walling maintains that the
restitution did not relate to his conviction and bore no relationship to the victim's economic
loss.
{¶ 15} Based on the limited record before this court, we find the trial court did not
commit plain error in ordering Walling to pay $1,500 restitution. In this case, the record
reflects that the victim had a $1,500 insurance deductible that he was forced to pay for as a
result of Walling's criminal conduct, i.e., receiving stolen property. State v. Christman, 12th
Dist. Preble Nos. CA2009-03-007 and CA2009-03-008, 2009-Ohio-6555, ¶ 15 (insurance
deductible properly included in restitution order). Walling failed to introduce any evidence to
the contrary. As a result, we find no error in the trial court's restitution order. Walling's first
and second assignments of error are overruled.
Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
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