State v. Twitty , 2011 Ohio 4725 ( 2011 )

[Cite as State v. Twitty, 2011-Ohio-4725.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24296
vs. : T.C. CASE NO. 10CR1201/1
DEONTAY M. TWITTY : (Criminal Appeal from
Common Pleas Court)
Defendant-Assignment :
. . . . . . . . .
O P I N I O N
Rendered on the 16th day of September, 2011.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
Attorney for Plaintiff-Appellee
Christopher W. Thompson, Atty. Reg. No. 0055379, 130 West Second
Street, Suite 2050, Dayton, OH 45402
Attorney for Defendant-Appellant
. . . . . . . . .
VUKOVICH, J. (BY ASSIGNMENT):
{¶ 1} Defendant-appellant Deontay Twitty appeals from the
sentence entered in the Montgomery County Common Pleas Court for
aggravated robbery, failure to comply with an order of a police
officer and kidnapping. Three arguments are made for reversal.
{¶ 2} In appellant’s first argument, he contends that the trial
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court erred in disapproving transitional control in its termination
entry. Appellant’s next two arguments concern the trial court’s
order of restitution. He contends that the court failed to consider
his ability to pay prior to ordering financial sanctions. He also
asserts that the amount of restitution is not supported by competent
credible evidence.
{¶ 3} The state admits that there is merit with appellant’s
first argument, however, it contends that the remaining arguments
are meritless.
{¶ 4} Considering the arguments presented we find that the
trial court erred in prematurely denying transitional control.
We also find that while the trial court did consider appellant’s
ability to pay restitution, the amount of restitution ordered
permits double recovery and is in error. Thus, for the reasons
expressed in depth below, the sentence is affirmed in part, reversed
in part and remanded for further proceedings.
STATEMENT OF THE CASE
{¶ 5} Appellant was indicted for Aggravated Robbery, a
violation R.C. 291101(A), a first-degree felony; two counts of
Failure to Comply with a Police Officer’s Order, violations of
R.C. 2921.331(B), (C)(5) and (B), (C)(4), third and fourth-degree
felonies; and two counts of kidnapping, violations of R.C.
2905.01(A)(2), second-degree felonies. The aggravated robbery
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and both kidnapping charges contained firearm specifications.
The alleged victims of the offenses were Third Base Drive Thru,
its owner and one of its employees.
{¶ 6} The state and appellant entered into plea negotiations.
Appellant pled no contest to the first-degree felony aggravated
robbery charge, the third-degree felony failure to comply charge,
and to one of the second-degree felony kidnapping charges. The
state dismissed the remaining charges and all firearm
specifications. The parties also agreed that the aggregate
sentence would not exceed five years. Following a plea colloquy,
the trial court accepted the no contest pleas, found appellant
guilty and set sentencing for a later date.
{¶ 7} At sentencing, the trial court, after hearing from two
of appellant’s character witnesses and from appellant, reluctantly
abided by the plea agreement and sentenced appellant to an aggregate
sentence of four years. He received a three year sentence for
the aggravated robbery conviction, a two year sentence for the
kidnapping conviction and a one year sentence for the failure to
comply conviction. The sentences for the aggravated robbery and
kidnapping convictions were ordered to be served concurrent to
each other but consecutive to the sentence for the failure to comply
conviction. The trial court ordered appellant to pay costs and
restitution. Restitution was ordered to be paid to Third Base Drive
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Thru in the amount of $4,077. Also in rendering the sentence, the
trial court stated:
{¶ 8} “The Court disapproves of the defendant’s placement in
a program of shock incarceration under Section 5120.031 of the
Revised Code, or in the intensive program prison under Section
5120.032 of the Revised Code, and disapproves the transfer of the
defendant to transitional control under Section 2967.26 of the
Revised Code.”
FIRST ASSIGNMENT OF ERROR
{¶ 9} “THE TRIAL COURT ERRED IN DISAPPROVING TRANSITIONAL
CONTROL.”
{¶ 10} The trial court’s indication of its disapproval of
transitional control was stated in the termination entry. The
trial court made no mention of transitional control at the
sentencing hearing.
{¶ 11} This court has recently held that a termination entry
cannot contain a provision that disapproves of transitional
control. State v. Howard, 190 Ohio App.3d 734, 2010-Ohio-5283.
In that case we provided the following analysis:
{¶ 12} “R.C. 2967.26(A)(1) states:
{¶ 13} “‘Subject to disapproval by the sentencing judge, the
adult parole authority may grant furloughs to trustworthy
prisoners, other than those serving a prison term or term of life
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imprisonment without parole imposed pursuant to section 2971.03
of the Revised Code or a sentence of imprisonment for life imposed
for an offense committed on or after October 19, 1981, who are
confined in any state correctional institution for the purpose
of employment, vocational training, educational programs, or other
programs designated by the director of rehabilitation and
correction within this state.’
{¶ 14} “R.C. 2967.26(A)(2) requires the adult parole authority
to give the trial court three weeks' notice of the pendency of
a prisoner's intended furlough, and of the fact that the court
may disapprove the furlough. Upon request of the adult parole
authority, the head of the institution in which the prisoner is
confined must give the trial court a report on the prisoner's
conduct in the institution, any disciplinary action, and the
prisoner's participation in school, vocational training, and other
rehabilitative programs. After receiving the notice and report,
the trial court must give the adult parole authority timely notice
of its disapproval. Id.{¶ 15} “Because the furlough recommendation does not occur
until after a prisoner has been confined, the trial court's
disapproval was premature.” Id. at ¶41-44.
{¶ 16} Accordingly, based upon our prior decision, there is
merit with this assignment of error.
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SECOND AND THIRD ASSIGNMENTS OF ERROR
{¶ 17} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ORDERED
RESTITUTION IN AN AMOUNT THAT EXCEEDED VICTIM’S ACTUAL LOSS.”
{¶ 18} “THE TRIAL COURT ERRED IN FAILING TO CONSIDER OFFENDER’S
PRESENT AND FUTURE ABILITY TO PAY THE AMOUNT OF THE SANCTION OR
FINE.”
{¶ 19} The second and third assignments of error address the
trial court’s order of restitution and, as such, are addressed
simultaneously.
{¶ 20} Our analysis will start with appellant’s position that
the trial court did not consider his ability to pay restitution
prior to ordering it.
{¶ 21} R.C. 2929.18(A)(1) allows a trial court to order, as
a financial sanction, an amount of restitution to be paid by an
offender to his victim “based on the victim's economic loss. *
{¶ 22} * If the court imposes restitution, the court may base
the amount of restitution it orders 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. If the court decides to impose
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restitution, the court shall hold a hearing on restitution if the
offender, victim, or survivor disputes the amount.”
{¶ 23} R.C. 2929.19(B)(6) imposes a duty upon the trial court
to “consider the offender's present or future ability to pay” before
imposing any financial sanctions under R.C. 2929.18. State v.
Ratliff, Clark App. No. 10-CA-61, 2011-Ohio-2313, ¶12, citing,
State v. Martin, 140 Ohio App.3d 326, 338, 2000–Ohio–1942. The
statute does not require a hearing and is devoid of any particular
factors for the court to take into consideration in making its
determination. Id. Case law indicates that ability to pay can
be derived from consideration of a pre-sentence investigation
report, which includes information about the defendant's age,
health, education, and work history. Id. See, also, State v. Miller,
Clark App. No. 08CA0090, 2010-Ohio-4760, ¶39. A finding that
appellant is indigent for purposes of appointed counsel at the
trial level does not shield him from paying a financial sanction.
Miller, supra.
{¶ 24} In this case, the trial court clearly stated at the
sentencing hearing that it considered the PSI and was incorporating
it into the record. Tr. 46. The PSI indicates that appellant
graduated from Dayton Technology and Design High School in 2009
and that he was attending Sinclair Community College at the time
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of the commission of the offense. The report indicates that he
is in good physical and mental health. Although at the time of
the offense appellant was unemployed and was being supported by
his girlfriend, who was on public assistance, there is nothing
in the report to suggest that appellant could not obtain a job
after his incarceration and pay restitution.
{¶ 25} Consequently, the trial court did consider appellant’s
ability to pay. Likewise, considering the information in the PSI,
we cannot conclude that the trial court’s implicit ruling that
there was an ability to pay is incorrect.
{¶ 26} Our attention now shifts to whether the amount of
restitution ordered was incorrect. A defendant who does not
dispute an amount of restitution, request a hearing, or otherwise
object waives all but plain error in regards to the order of
restitution. Ratliff, supra, at ¶14. At the sentencing hearing,
appellant did not object to the restitution order. Thus, he waives
all but plain error. Plain error does not exist unless it can
be said that, but for the error, the outcome of the trial clearly
would have been different. State v. Long (1978), 53 Ohio St.2d
91.
{¶ 27} As previously indicated, R.C. 2929.18(A)(1) permits a
trial court to order restitution. However, “an order of
restitution must be supported by competent, credible evidence in
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the record. ‘It is well settled that there must be a due process
ascertainment that the amount of restitution bears a reasonable
relationship to the loss suffered.’ * * * ‘Implicit in this
principle is that the amount claimed must be established to a
reasonable degree of certainty before restitution can be ordered.’”
State v. Cochran, 2d Dist. No. 09CA0024, 2010-Ohio-3444, ¶17
(internal citations omitted).
{¶ 28} Here, the trial court ordered appellant to pay
restitution to Third Base Drive Thru in the amount of $4,077.
Attached to the PSI is a “Victim Input Request” form. This form
was filled out by Tom Mauro, the owner of Third Base Drive Thru.
The form states that the economic loss was $4,682. However, after
the $1,000 deductible, his insurance company, Erie Insurance Group,
paid him $3,682.
{¶ 29} We have previously stated that restitution may not exceed
the victim’s economic loss and therefore, the economic loss “must
be reduced by any insurance payment received.” State v. Clayton,
Montgomery App. No. 22937, 2009-Ohio-7040, ¶56. This court has
also stated that when a victim has already received payment from
their insurance company an award of restitution paid by the offender
to the victim would constitute impermissible double recovery.
State v. Colon, 185 Ohio App.3d 671, 2010-Ohio-492, ¶6-7.
{¶ 30} Based on the above case law, the trial court’s order
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of restitution permitted the victim to recover more than its
{¶ 31} economic loss. Thus, the record does not support the
amount of the trial court’s award of restitution; the trial court
committed plain error in ordering restitution that allowed double
recovery.
{¶ 32} Therefore, the second and third assignments of error
have some merit. The trial court did properly consider appellant’s
ability to pay when ordering restitution. However, the amount of
restitution ordered is incorrect. Given the evidence, the
restitution award should be $1,000, the amount of the victim’s
insurance deductible.
CONCLUSION
{¶ 33} In conclusion, the sentence is hereby affirmed in part,
reversed in part and remanded. The trial court prematurely stated
in its termination entry that transitional control was disapproved.
Thus, that portion of the sentence is reversed and the matter
is remanded with instructions to remove that language from the
termination entry. As to the order of restitution, the trial court
considered appellant’s ability to pay prior to ordering
restitution. Therefore, that portion of the judgment is affirmed.
However, the amount of restitution ordered by the court allowed
the victim double recovery. As such, the amount of restitution
ordered is reversed and remanded. Upon remand the trial court
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is instructed to lower the amount of restitution to $1,000, the
amount of the victim’s insurance deductible.
FAIN, J. And DONOVAN, J., concur.
(Hon. Joseph J. Vukovich, Seventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
Copies mailed to:
Johnna M. Shia, Esq.
Christopher W. Thompson, Esq.
Hon. Mary Katherine Huffman