State v. Burgess , 2013 Ohio 234 ( 2013 )

[Cite as State v. Burgess, 2013-Ohio-234.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2012 CA 00119
FRANCESCA BURGESS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2012 CR 00064
JUDGMENT: Dismissed and Remanded
DATE OF JUDGMENT ENTRY: January 28, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO JEFFRY V. SERRA
PROSECUTING ATTORNEY THE FERRUCCIO LAW FIRM
KATHLEEN TATARSKY 220 Market Avenue South
ASSISTANT PROSECUTOR 400 Huntington Plaza
110 Central Plaza South, Suite 510 Canton, Ohio 44702
Canton, Ohio 44702
Stark County, Case No. 2012 CA 00119 2
Wise, J.
{¶1} Appellant Francesca Burgess appeals from her conviction and sentence,
in the Court of Common Pleas, Stark County, for theft and evidence tampering. The
relevant facts leading to this appeal are as follows.
{¶2} Appellant was formerly a manager and bookkeeper for Stark Mold and
Pattern, Inc., a small manufacturer in Canton, Ohio. In October 2010, the company
president, Paul Dougherty, became aware of discrepancies in the company’s
accounting. After further investigation by law enforcement officials, appellant was
indicted by the Stark County Grand Jury on criminal charges stemming from her theft of
company funds as a continuing course of conduct between May 2003 and October
2010.
{¶3} On March 2, 2012, appellant pled no contest to one count of grand theft
(R.C. 2913.02(A)(1) and/or (A)(2) and/or (A)(3)), a felony of the fourth degree, and one
count of tampering with records (R.C. 2913.42(A)(1)(B)(3)(c)), also a felony of the fourth
degree. Thereafter, the trial court found appellant guilty of both offenses. See Judgment
Entry, March 13, 2012.
{¶4} On April 4, 2012, appellant returned to court for sentencing. On April 12,
2012, the trial court sentenced her to four days in jail, with three years of community
control. One of the conditions of community control was restitution in an amount to be
determined, with the provision that appellant “shall receive credit for $9,400 already paid
to [the] victim.” Sentencing Entry, April 12, 2012, at 6. A restitution hearing was therein
ordered for May 16, 2012. Id.Stark County, Case No. 2012 CA 00119 3
{¶5} The court thereafter duly held a hearing to determine the amount of
restitution to be paid by appellant. On May 24, 2012, the trial court issued a judgment
entry addressing restitution as follows:
{¶6} “This matter comes before the Court for a determination of restitution.
After hearing the evidence in the within matter, the Court orders restitution in the
amount of Seventy-two Thousand Five Hundred Thirty-five and no/100 Dollars
($72,535.00). From this the Court would deduct any amounts that have been pre-paid
by the defendant as part of the criminal case. The Court, therefore, orders that
restitution will be set at Seventy-two Thousand Five Hundred Thirty-five and no/100
Dollars ($72,535.00) minus any amount that has been re-paid during the pendency of
the Court matter.”
{¶7} Judgment Entry, May 24, 2012.
{¶8} On June 21, 2012, appellant filed a notice of appeal of the order of
restitution of May 24, 2012. She herein raises the following two Assignments of Error:
{¶9} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE
APPELLANT TO PAY RESTITUTION IN THE AMOUNT OF ‘$72,535.00 MINUS ANY
AMOUNT THAT HAS BEEN RE-PAID [SIC] DURING THE PENDENCY OF THE
COURT MATTER’ AS SET FORTH IN THE TRIAL COURT'S JUDGMENT ENTRY
DATED MAY 24, 2012.
{¶10} “II. THE TRIAL COURT ERRED BY FAILING TO ESTABLISH THE
AMOUNT OF RESTITUTION TO A DEGREE OF CERTAINTY, WHICH REFLECTS A
REASONABLE RELATIONSHIP TO THE ACTUAL LOSS SUFFERED.”
Stark County, Case No. 2012 CA 00119 4
I., II.
{¶11} In her two Assignments of Error, appellant contends the trial court erred or
abused its discretion in ordering appellant to pay certain restitution.
{¶12} As an initial matter, as suggested in the State’s response brief, we
address the issue of whether the judgment entry of restitution of May 24, 2012
constitutes a final appealable order.
{¶13} The Ohio Supreme Court has recognized that “the determination of
restitution entails a substantive legal decision or judgment and is not merely a
mechanical part of a judgment.” State v. Miller, 127 Ohio St.3d 407, 940 N.E.2d 924,
2010-Ohio-5705, ¶16. Certainly, as the Ohio Supreme Court held at the syllabus in
State v. Danison, 105 Ohio St.3d 127, 823 N.E.2d 444, 2005-Ohio-781, “[a]n order of
restitution imposed by the sentencing court on an offender for a felony is part of the
sentence and, as such, is a final and appealable order.” We note, however, that
Danison involved a single sentencing entry imposing community control sanctions and
setting an amount certain for restitution, rather than an initial sentencing entry with a
follow-up specific restitution order, as occurred in the case sub judice. In addition,
subsequent to Danison, the Ohio Supreme Court issued its ruling in State v. Baker
(2008), 119 Ohio St .3d 197, 201, 893 N.E.2d 163, 2008–Ohio–3330, which requires
that the plea (if applicable), means of conviction, and sentence all be set forth in one
judgment entry. Baker was subsequently modified and clarified in State v. Lester, 130
Ohio St.3d 303, 958 N.E.2d 142, 2011–Ohio–5204, wherein the Ohio Supreme Court
held, at paragraph one of the syllabus: “A judgment of conviction is a final order subject
to appeal under R.C. 2505.02 when it sets forth (1) the fact of the conviction, (2) the
Stark County, Case No. 2012 CA 00119 5
sentence, (3) the judge's signature, and (4) the time stamp indicating the entry upon the
journal by the clerk.”
{¶14} A review of the present record patently reveals that the trial court’s one-
paragraph judgment entry of restitution filed May 24, 2012 does not include the
Baker/Lester criteria. In accordance with our recent decision in State v. Casteel,
Tuscarawas App.No. 11AP110043, 2012-Ohio-2295, we hereby hold that while it is not
improper for a trial court to render a supplemental restitution order after retaining
jurisdiction to do so at sentencing, such restitution order must comply with the
requirements of Baker and Lester in order to be recognized as a final appealable order.
See, also, State v. Howse, Lorain App.No. 11CA010009, 2011-Ohio-6682, ¶ 6.
{¶15} Accordingly, we are compelled to dismiss the within appeal and remand
the matter to the trial court for the issuance of a final conviction, sentencing, and
restitution entry in compliance with Baker and Lester. We therefore will not presently
reach the merits of appellant’s two assigned errors.
{¶16} For the reasons stated in the foregoing, the appeal of the decision of the
Court of Common Pleas, Stark County, Ohio, is hereby dismissed, and the matter is
remanded for a final sentencing entry.
By: Wise, J.
Delaney, P. J., and
Gwin, J., concur.
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JUDGES
JWW/d 0104
Stark County, Case No. 2012 CA 00119 6
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
FRANCESCA BURGESS :
:
Defendant-Appellant : Case No. 2012 CA 00119
For the reasons stated in our accompanying Memorandum-Opinion, the appeal
of the judgment of the Court of Common Pleas of Stark County, Ohio, is dismissed.
This matter is remanded for a final sentencing entry.
Costs assessed to appellant.
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JUDGES