State v. Mendez , 2014 Ohio 2601 ( 2014 )

[Cite as State v. Mendez, 2014-Ohio-2601.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 MA 86
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
YVETTE MENDEZ )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 11 CR 578
JUDGMENT: Affirmed in Part. Vacated in Part.
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. James E. Lanzo
4126 Youngstown-Poland Rd.
Youngstown, Ohio 44514
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: June 13, 2014
[Cite as State v. Mendez, 2014-Ohio-2601.]
WAITE, J.
{¶1} Appellant Yvette Mendez pleaded guilty to felony theft and possession
of criminal tools. As part of the sentence, the trial court ordered Appellant to pay
restitution to the victim in the amount of $53,000. On appeal, Appellant argues that
the court could only order restitution up to the amount of the theft charge, which
would have been $4,999 under the law in effect at the time of the crime. The Ohio
Supreme Court rejected this theory in State v. Lalain, 136 Ohio St.3d 248, 2013-
Ohio-3093. Under Lalain, the total amount of victim's economic loss may be ordered
as restitution. Appellant also argues that the court should have held a restitution
hearing under R.C. 2929.18(A)(1) because she disputed the amount of restitution at
sentencing. Appellant is correct. The record reflects that she disputed the amount at
sentencing and thought restitution may only be in the range of $1,500-$1,700.
Finally, Appellant argues that the court should have considered her inability to pay
such a fine, since her indigency was a matter of record. This assignment of error is
moot because the matter will be remanded for hearing on the amount of restitution.
Appellant's first and third assignments of error are overruled, the second is sustained
and the case is remanded for further proceedings.
Case History
{¶2} On April 26, 2011, Appellant was arrested at Peskin Sign Company in
Boardman, Ohio. She and two others were found cutting and removing large steel
columns from the premises and loading them on a truck. On June 23, 2011,
Appellant was indicted on one count of fifth degree felony theft, R.C. 2913.02(A)(1),
and one count of possession of criminal tools, R.C. 2923.24(A). On July 6, 2011, the
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court determined that Appellant was indigent and counsel was appointed. On
November 8, 2011, a change of plea hearing was held and Appellant entered a
written guilty plea to the charges. A sentencing hearing was held on January 10,
2012. At the hearing, the victim, Mr. Gerald Peskin, testified that he suffered a loss
of $53,000 from the crime. Appellant's attorney objected to the amount and stated “I
thought that the agreement that was brought to us * * * was between $1,500 and
$1,700. * * * Again, we thought that the restitution was going to be a lot less.”
(1/10/12 Tr., pp. 4-5.) Appellant's attorney also objected to the amount of restitution
because her client was indigent. The trial court sentenced Appellant to five years of
community control sanctions, and $53,000 in restitution. The judgment entry of
conviction and sentence was filed January 11, 2012.
{¶3} Appellant filed a delayed appeal on June 4, 2013. We accepted the
delayed appeal on June 17, 2013.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
RESTITUTION IN AN AMOUNT EXCEEDING THE MAXIMUM
AMOUNT THAT IS AN ELEMENT OF THE THEFT OFFENSE FOR
WHICH THE DEFENDANT WAS CONVICTED.
{¶4} Appellant argues that the trial court could not order restitution in an
amount that exceeded the amount designated as an element of the theft offense. In
this case, the offense at the time the crime was committed was a fifth degree felony
theft, which meant a theft in the amount of at least $500 but less than $5,000.
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Former R.C. 2913.02(B)(2). Appellant argues that restitution cannot exceed the
monetary limit of the degree of the theft offense as defined by statute.
{¶5} A trial court's decision to impose financial sanctions as part of a
sentence is reviewed for an abuse of discretion. State v. Downie, 7th Dist. No. 07
MA 214, 2009-Ohio-4643, ¶30. An abuse of discretion is more than an error of
judgment; “it implies that the court's attitude is unreasonable, arbitrary or
unconscionable.” State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
It is an abuse of discretion for a trial court to order restitution in an amount that does
not bear a reasonable relationship to the actual loss suffered. State v. Schandel, 7th
Dist. No. 07CA848, 2008-Ohio-6359, ¶154.
{¶6} R.C. 2929.18(A)(1) requires the trial court to calculate the amount of
restitution based on the economic loss to the victim as a result of the crime.
Appellant cites State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d
425 (2d Dist.), for the proposition that, unless the plea agreement states otherwise,
the order of restitution for a theft offense cannot exceed the amount listed in the
element of the offense that establishes the degree of the theft. Since Appellant was
also convicted of possession of criminal tools, it is not clear that restitution is solely
related to the theft offense and could have been ordered regardless of the degree of
the theft. Assuming arguendo that the restitution order was based solely on the theft
conviction, Appellant's argument is still incorrect.
{¶7} Ratliff was overturned on July 17, 2013, in State v. Lalain, supra, which
held that: “A trial court has discretion to order restitution in an appropriate case and
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may base the amount it orders on a recommendation of the victim, the offender, a
presentence investigation report, estimates or receipts indicating the cost of repairing
or replacing property, and other information, but the amount ordered cannot be
greater than the amount of economic loss suffered as a direct and proximate result of
the commission of the offense.” Id. at paragraph one of the syllabus. Lalain further
held that: “The statute contains no statement about incorporating restitution into plea
agreements, so that is not a statutory mandate. Rather, the statute vests the trial
court with discretion to impose restitution and to base it on listed statutory factors and
other information[.] * * * In addition, we recognize that the amount of restitution is not
correlated to the degree of the theft offense.” Id. at ¶23-24. Based on the holdings in
Lalain, Appellant's first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
RESTITUTION WITHOUT HOLDING A HEARING.
{¶8} Appellant argues that she was entitled to a separate hearing on
restitution because her attorney questioned the amount of restitution at sentencing.
R.C. 2929.18(A)(1) states: “If the court decides to impose restitution, the court shall
hold a hearing on restitution if the offender, victim, or survivor disputes the amount.”
The statutory requirement to hold a hearing, if there is an objection to the amount of
restitution, is mandatory. Lalain at ¶22; Downie at ¶30. At the sentencing hearing,
Appellant's counsel disputed the amount of restitution, stating that she “thought that
the agreement that was brought to us * * * was between $1,500 and $1,700. * * *
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Again, we thought that the restitution was going to be a lot less.” (1/10/12 Tr., pp. 4-
5.) This was a specific objection to the amount of restitution, and the court should
have ordered a hearing on this issue. Appellant's assignment of error has merit and
the case is remanded so that a restitution hearing can be ordered.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED
PLAIN ERROR BY ORDERING APPELLANT TO PAY RESTITUTION
WITHOUT CONSIDERING HER PRESENT AND FUTURE ABILITY TO
PAY, AS REQUIRED BY R.C. 2929.19(B)(6).
{¶9} Appellant argues that the trial court failed to take into account her
indigence and inability to pay when it ordered $53,000 in restitution as part of her
sentence. R.C. 2929.19(B)(5) states: “Before imposing a financial sanction under
section 2929.18 of the Revised Code or a fine under section 2929.32 of the Revised
Code, the court shall consider the offender's present and future ability to pay the
amount of the sanction or fine.”
{¶10} This assignment of error is moot because the matter is remanded for a
restitution hearing and Appellant can raise the argument at that time. We do note
that there is no indication from the record that the trial court ignored or was unaware
of her indigency. In fact, the judge was obviously aware that she was indigent when
he appointed counsel for Appellant in the initial stages of the case. An initial
determination of indigency does not prevent a trial judge from imposing restitution as
part of the sentence. As we have stated a number of times: “[A] determination that a
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criminal defendant is indigent for purposes of receiving appointed counsel does not
prohibit the trial court from imposing a financial sanction pursuant to R.C. 2929.18.
This is because the ability to pay a fine over a period of time is not equivalent to the
ability to pay legal counsel a retainer fee at the onset of criminal proceedings.” State
v. Weyand, 7th Dist. No. 07-CO-40, 2008-Ohio-6360, ¶16; accord, State v. Gabriel,
7th Dist. No. 09 MA 108, 2010-Ohio-3151, ¶20.
{¶11} “The test for imposing restitution is not indigency in general, but it is
whether the offender is able to pay the financial sanction or is likely to be able to pay
it in the future. See R.C. 2929.18(E). Thus, before imposing a financial sanction
such as restitution, the court shall consider the offender's present and future ability to
pay the amount of the sanction. R.C. 2929.19(B)(6), citing R.C. 2929.18.” Id. at ¶33.
“[A]n offender who does not raise his ability to pay a financial sanction at the time the
sanction is imposed waives any argument concerning his ability to pay on direct
appeal.” State v. Potts, 7th Dist. No. 07 HA 4, 2008-Ohio-643, ¶7. Because the
sanction of restitution will be revisited by the trial court on remand, Appellant will have
the opportunity to raise, or waive, any of these arguments at that time. Appellant's
third assignment of error is overruled.
Conclusion
{¶12} Appellant is challenging three aspects of the trial court's decision
ordering her to pay $53,000 in restitution as part of her sentence for felony theft and
possession of criminal tools. She is incorrect that the maximum restitution order can
only be as high as the maximum amount of the element of the theft charge that
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determines the degree of the crime. The Ohio Supreme Court overturned the case
Appellant relies on for this argument. Appellant is correct, however, that she was
entitled to a hearing on restitution because she objected to the amount. Her last
argument regarding whether the trial court considered her ability to pay restitution is
moot because the case is remanded for a restitution hearing. Appellant's first and
third assignments of error are overruled, the second is sustained, and the portion of
the sentencing entry regarding restitution is vacated. The trial court must conduct a
hearing to determine the amount of restitution. Judgment affirmed in part, vacated in
part, and remanded for further proceedings.
Donofrio, J., concurs.
Vukovich, J., concurs.