State v. Wilson , 2016 Ohio 7650 ( 2016 )

[Cite as State v. Wilson, 2016-Ohio-7650.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-T-0057
- vs - :
PHYLLIS J. WILSON, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2014 CR
00327.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Phyllis J. Wilson, appeals the restitution order imposed
following her conviction for theft in office, a third-degree felony under R.C.
2921.41(A)(1). She contends that the trial court erred in ordering her to forfeit her entire
monthly retirement check and find new employment based on a lack of evidence
concerning her ability to pay restitution. We affirm.
{¶2} Appellant was employed by the City of Niles for approximately twenty-five
years. Near the end of employment, she had access to a significant amount of city
funds which she was required to deposit into various bank accounts. Over a sustained
period of time, appellant took funds from the city and failed to deposit them. She
ultimately lost the money gambling in local casinos. She took $142,272 of government
funds.
{¶3} Unable to control her gambling addiction, appellant chose to take an early
retirement so that she would not be tempted to take additional funds. Nevertheless, the
deficit in the city funds was subsequently discovered in a state audit. When confronted
with the discrepancy between the amount of funds she received and the amount
deposited, she admitted taking the money. In April 2014, she was indicted on one count
of theft in office under R.C. 2921.41(A)(1). The indictment alleged that appellant, as a
public official or party official, had employed her office in aid in the commission of a theft
offense.
{¶4} Appellant ultimately agreed to enter a guilty plea to the sole count in the
indictment. The plea agreement contained a statement that the state would seek a
restitution order for the entire amount taken and a garnishment order for the entire
monthly sum appellant received from the state retirement fund. After holding a separate
plea hearing and accepting the guilty plea, the trial court found her guilty of theft in office
and ordered a presentencing investigation.
{¶5} At sentencing, appellant expressed her remorse for the crime, and stated
that she had sought help for her addiction and had not gambled for over a year. She
requested no prison because she was taking care of her elderly parents. As to
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restitution, defense counsel noted that, even with her monthly retirement check of
approximately $1,100, appellant was already indigent. In response, the state
maintained that the seriousness of the crime warranted a prison term, and that even if
appellant were given a community control sanction for five years and ordered to forfeit
her retirement checks during that time period, it would only cover half of the stolen
funds. The state further noted that there was nothing to indicate that appellant was
unable to find new employment.
{¶6} At the end of the hearing and in its final judgment, the trial court sentenced
appellant to five years of community control. Additionally, the trial court sentenced her
to pay restitution for the entire sum she stole from the city. To accomplish that, the
court ordered forfeiture of her entire monthly retirement check until the restitution is fully
paid, and to find and maintain new employment.
{¶7} On appeal, appellant asserts one assignment of error.
{¶8} “The trial court erred, both as a matter of law and as an abuse of
discretion, in ordering that the appellant ‘forfeit’ her entire monthly income from the
Public Employees Retirement System.”
{¶9} In maintaining that she should not be required to forfeit her entire monthly
retirement check, appellant claims that, prior to issuing its restitution order, the trial court
failed to consider whether she was truly able to pay the total amount owed. Essentially,
she argues that if the trial court had considered her age, that she was already retired,
and that she was indigent even when receiving the monthly check, the court should
have found that she was entitled to retain at least a portion of her monthly check.
{¶10} Appellant relies upon R.C. 2929.19(B)(6), which generally states that a
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trial court must consider a defendant’s present and future ability to pay restitution before
imposing such a requirement. However, appellant fails to acknowledge that the theft in
office statute, R.C. 2921.41, contains a specific provision governing the payment of
restitution in cases involving theft by a either public official or party official. Division
(C)(2)(a) of the statute provides:
{¶11} “A court that imposes sentence for a violation of this section based on
conduct described in (A)(2) of this section shall require the public official or party official
who is convicted of or pleads guilty to the offense to make restitution for all of the
property or the service that is the subject of the offense, in addition to the term of
imprisonment and any fine imposed. A court that imposes sentence for a violation of
this section based on conduct described in division (A)(1) of this section and that
determines at trial that this state or a political subdivision of this state if the offender is a
public official, or a political party in the United States or this state if the offender is a
party official, suffered actual loss as a result of the offense shall require the offender to
make restitution to the state, political subdivision, or political party for all of the actual
loss experienced, in addition to the term of imprisonment and any fine imposed.”
(Emphasis added.)
{¶12} In applying this provision, the Second Appellate District has emphasized
that the statutory language does not merely allow a trial court to order restitution when
the circumstances so dictate, but instead expressly mandates that such an order must
be made. State v. Hupp. 2d Dist. Clark No. 2009-CA-43, 2010-Ohio-2136, ¶39. The
provision further mandates that the restitution order cover all of the actual loss resulting
from the offense. To this extent, R.C. 2921.41(C)(2)(a) is mandatory while R.C.
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2929.18(A)(1) is discretionary. The distinction between the statues is based upon the
well-settled public policy that a public official should always be held accountable for the
loss of any public funds under her control. See State v. Burns, Lucas Cty. C.P. No. CR
201002476, 2011 Ohio Misc. LEXIS 13464, *22-23, quoting Cordray v. Int’l Preparatory
School, 128 Ohio St.3d 50, 2010-Ohio-6136.
{¶13} Given the mandatory language of R.C. 2921.41(C)(2)(a), the trial court did
not have discretion in relation to the payment of restitution; instead, the court was
obligated to order appellant to pay restitution for all of the funds she stole from the city.
Furthermore, the trial court had the authority to order that appellant’s retirement
payments be withheld and paid to the city as part of the restitution, so long as appellant
did not demonstrate good cause. R.C. 2921.41(C)(2)(b)(i) and (ii). Our review of the
record shows that appellant did not carry this burden.
{¶14} As noted above, in conjunction with its restitution order, the trial court also
ordered appellant to obtain and maintain new employment. The purpose of this second
order was to require appellant to have a separate income so that she could both sustain
herself and make additional restitution payments. In turn, the order had to be based on
an underlying finding that appellant was able to work a steady job.
{¶15} During sentencing, neither side presented evidence regarding appellant’s
present ability to work. However, ability to work determinations can be based upon
information in the PSI report, such as age, health, education, and employment history.
See State v. Rose, 2d Dist. Montgomery No. 24196, 2011-Ohio-3616, ¶19; State v.
Henderson, 4th Dist. Vinton No. 07CA659, 2008-Ohio-2063, ¶7.
{¶16} Appellant’s PSI report contained the following relevant information: (1) she
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was only 62 years old at the time of sentencing; (2) she had a high school diploma; (3)
even though she suffered from severe depression and asthma, her physical health was
fair; and (4) she was able to retain her job with the City of Niles for approximately
twenty-five years. Regarding the reason for the termination of her employment, there is
no indication that appellant had to quit because of physical problems. Instead, she
chose to quit as a direct result of a gambling addiction, which she reported as now
under control.
{¶17} Considered as a whole, the materials before the trial court were sufficient
to warrant a finding that appellant was able to work full-time and earn funds to sustain
herself. Moreover, appellant did not carry her burden under R.C. 2921.41(C)(2)(b) of
stating good cause to justify allowing her to continue to receive her monthly retirement
benefits. Accordingly, the trial court did not abuse its discretion in ordering appellant to
pay restitution in the sum of $142,272, ordering the forfeiture of her monthly retirement
checks, and ordering her to obtain and maintain new employment
{¶18} Appellant’s sole assignment of error lacks merit. The judgment of the trial
court is hereby affirmed.
TIMOTHY P. CANNON, J., concurs,
DIANE V. GRENDELL, J., concurs in judgment only.
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