State v. Pagan , 2010 Ohio 833 ( 2010 )

[Cite as State v. Pagan, 2010-Ohio-833.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO, CASE NO. 3-09-13
PLAINTIFF-APPELLEE,
v.
ELIAS A. PAGAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 09-CR-0032
Judgment Affirmed
Date of Decision: March 8, 2010
APPEARANCES:
Shane M. Leuthold for Appellant
Clifford J. Murphy for Appellee
Case No. 3-09-13
ROGERS, J.
{¶1} Defendant-Appellant, Elias Pagan, appeals the judgment of the
Court of Common Pleas for Crawford County convicting him of burglary and
ordering him to pay $34,886 in restitution to the burglary victim. On appeal,
Pagan asserts that the trial court erred in ordering him to pay restitution and in
failing to instruct the jury pursuant to R.C. 2945.11. Based upon the following,
we affirm the judgment of the trial court.
{¶2} In March 2009, the Crawford County Grand Jury indicted Pagan on
one count of burglary in violation of R.C. 2911.12(A)(2), a felony of the second
degree. The indictment contained a one-year firearm specification pursuant to
R.C. 2941.141. Thereafter, Pagan entered a plea of not guilty. The indictment
stemmed from an incident during which Pagan and co-defendants Darren M.
Conley and Steven R. Kopp burglarized the home of victim Steven Sipes.
{¶3} In June 2009, the case proceeded to trial.1 Thereafter, the jury found
Pagan not guilty of burglary in violation of R.C. 2911.12(A)(2), but found him
guilty of the lesser-included offense of burglary in violation of R.C.
2911.12(A)(3), a felony of the third degree.
{¶4} In August 2009, the trial court sentenced Pagan to a four-year prison
term and ordered him to pay $34,886 in restitution to the victim, owed jointly and
1
We note that Pagan did not provide a transcript of the trial proceedings.
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severally with his co-defendants. At the sentencing hearing, Sipes discussed many
of the items that were taken from his home in the burglary and had not been
recovered, including food, jewelry, clothing, Christmas gifts, multiple firearms,
and cash. Additionally, the trial court stated that the document presented by the
prosecution pertaining to restitution would be made a part of the record.2
{¶5} It is from this judgment that Pagan appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE TRIAL COURT ERRED WHEN IT ORDERED THE
DEFENDANT TO PAY RESTITUTION IN THE AMOUNT OF
$34,886.
Assignment of Error No. II
THE COURT ERRED BY FAILING TO INSTRUCT THE
JURY PURSUANT TO RC 2945.11.
Assignment of Error No. I
{¶6} In his first assignment of error, Pagan argues that the trial court erred
when it ordered him to pay Sipes restitution in the amount of $34,886.
Specifically, Pagan argues that there was no testimony presented at sentencing that
Sipes suffered a $34,886 loss due to the burglary, and that Sipes’ statement that he
had compiled a list detailing his losses and the corresponding document were
2
Although the trial court asserted at the sentencing hearing that the restitution document would be made a
part of the record, and although the document is attached to Pagan’s appellate brief, the document does not
appear in the record.
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insufficient to establish what items were stolen and the value of those items. We
disagree.
{¶7} An appellate court reviews a trial court’s decision to impose
restitution under an abuse of discretion standard. State v. Griffus, 3d Dist. No. 14-
08-39, 2009-Ohio-304, ¶7, citing State v. Lamere, 3d Dist. No. 1-07-11, 2007-
Ohio-4930, ¶¶6-7. An abuse of discretion implies that the trial court’s decision is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219. Under this standard of review, an appellate court may not
simply substitute its judgment for that of the trial court. Id. “However, the
amount of the restitution must be supported by competent, credible evidence in the
record from which the court can discern the amount of the restitution to a
reasonable degree of certainty.” (Citations omitted.) State v. Didion, 173 Ohio
App.3d 130, 2007-Ohio-4494, ¶20.
{¶8} Restitution is governed by R.C. 2929.18, which provides that courts
may impose financial sanctions in certain cases including, in pertinent part:
Restitution by the offender to the victim of the offender’s crime
or any survivor of the victim, in an amount based on the victim’s
economic loss. If the court imposes restitution, the court shall
order that the restitution be made to the victim in open court * *
*. If the court imposes restitution, at sentencing, the court shall
determine the amount of restitution to be made by the offender.
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,
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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
restitution, the court shall hold a hearing on restitution if the
offender, victim, or survivor disputes the amount. All restitution
payments shall be credited against any recovery of economic loss
in a civil action brought by the victim or any survivor of the
victim against the offender.
(Emphasis added.) R.C. 2929.18(A)(1). Accordingly, R.C. 2929.18(A)(1)
specifically provides that “the court may base the amount of restitution it orders on
an amount recommended by the victim.” See, e.g., State v. Policaro, 10th Dist.
No. 06AP-913, 2007-Ohio-1469, ¶8; State v. Anderson, 1st Dist. Nos. C-050785,
C-050786, 2006-Ohio-4602, ¶9; State v. Gregg, 11th Dist. No. 2006-A-0013,
2007-Ohio-1201, ¶58; State v. Morgan, 11th Dist. No. 2005-L-135, 2006-Ohio-
4166, ¶¶26-30; In re Hatfield, 4th Dist. No. 03CA14, 2003-Ohio-5404, ¶12.
{¶9} Initially, we note that Pagan failed to object to the restitution award
and failed to request a hearing on restitution. As he failed to object, Pagan has
waived all but plain error regarding the restitution findings. See State v. Miller, 3d
Dist. No. 1-09-32, 2009-Ohio-6157, ¶5, citing State v. Stewart, 3d Dist. No. 16-
08-11, 2008-Ohio-5823; State v. Marbury (1995), 104 Ohio App.3d 179, 181. In
order to have plain error under Crim.R. 52(B), there must be an error, the error
must be an “obvious” defect in the trial proceedings, and the error must have
affected “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.
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Plain error is to be used “with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.” Id. Plain error exists only
in the event that it can be said that “but for the error, the outcome of the trial
would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 431, 1997-
Ohio-204; see State v. Johnson, 3d Dist. No. 2-98-39, 1999-Ohio-825.
{¶10} Further, we note that the State has pointed out that Pagan failed to
provide a transcript of the trial on appeal. The State further contends that the
transcript demonstrates the evidence at trial established that the amount of
restitution was justified. An appellant bears the burden of furnishing a record to
the appellate court that is sufficient to disclose the error of which he complains.
App.R. 9(B); State v. Deal, 3d Dist. No. 5-08-15, 2008-Ohio-5408, ¶7.
Consequently, “[w]hen portions of the transcript necessary for resolution of
assigned errors are omitted from the record, the reviewing court has nothing to
pass upon and thus, as to those assigned errors, the court has no choice but to
presume the validity of the lower court’s proceedings, and affirm.” See Knapp v.
Edwards Laboratories (1980), 61 Ohio St.2d 197, 199; Deal, 2008-Ohio-5408, at
¶7.
{¶11} Here, because Pagan failed to provide a transcript of the trial
proceedings, which the State avers contains evidence substantiating the items
Sipes lost and the items’ values, we must presume regularity in the trial
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proceedings and that competent, credible evidence existed to support the $34,886
restitution award. See Knapp, 61 Ohio St.2d at 199.
{¶12} Accordingly, we overrule Pagan’s first assignment of error.
Assignment of Error No. II
{¶13} In his second assignment of error, Pagan argues that the trial court
erred by failing to instruct the jury on the range of available punishments for each
degree of felony burglary. Specifically, Pagan argues that R.C. 2945.11 requires
the trial court to instruct juries on punishment in cases of burglary of inhabited
dwellings, and that, had the jury been aware that the potential penalty for R.C.
2911.12(A)(3) was a five-year prison term, it would not have found him guilty
since he alleged he never entered Sipes’ home.
{¶14} Initially, we note that Pagan did not request a jury instruction on the
range of available punishments for each degree of felony burglary. As this alleged
error was not brought to the attention of the trial court, Pagan has waived all but
plain error. Crim.R. 52(B); Crim.R. 30(A); State v. Bridge, 3d Dist. No. 1-06-30,
2007-Ohio-1764, ¶¶19-20. As discussed in our analysis of Pagan’s first
assignment of error, plain error exists only in the event that it can be said that “but
for the error, the outcome of the trial would clearly have been otherwise.” Biros,
78 Ohio St.3d at 436; see Johnson, supra.
{¶15} R.C. 2945.11, on which Pagan relies, provides that:
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In charging the jury, the court must state to it all matters of law
necessary for the information of the jury in giving its verdict.
The court must also inform the jury that the jury is the exclusive
judge of all questions of fact. The court must state to the jury
that in determining the question of guilt, it must not consider the
punishment but that punishment rests with the judge except in
cases of murder in the first degree or burglary of an inhabited
dwelling.
R.C. 2945.11 was codified in 1953 and has not been modified since that time. In
1953, the former R.C. 2907.09 prohibited “burglary in an inhabited dwelling,”
which provided, in pertinent part:
No person shall in the night season maliciously and
forcibly break and enter an inhabited dwelling house with intent
to commit a felony, or with intent to steal property of any value.
Whoever violates this section shall be imprisoned for life.
Upon recommendation of mercy by the jury such person shall be
imprisoned not less than five years nor more than thirty years. *
**
Baldwin’s Ohio Criminal Law (1954) 297. R.C. 2907.09 was repealed in 1974 and
replaced with R.C. 2911.11, prohibiting aggravated burglary, and R.C. 2911.12,
prohibiting burglary. See State v. Korb, 6th Dist. No. WD-94-054, 1995 WL
232354. R.C. 2911.12, for which Pagan was indicted and convicted, provides, in
pertinent part:
(A) No person, by force, stealth, or deception, shall do any of
the following:
** *
(2) Trespass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure that is a
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permanent or temporary habitation of any person when any
person other than an accomplice of the offender is present or
likely to be present, with purpose to commit in the habitation
any criminal offense;
(3) Trespass in an occupied structure or in a separately secured
or separately occupied portion of an occupied structure, with
purpose to commit in the structure or separately secured or
separately occupied portion of the structure any criminal
offense;
***
(C) Whoever violates this section is guilty of burglary. A
violation of division (A)(1) or (2) of this section is a felony of the
second degree. A violation of division (A)(3) of this section is a
felony of the third degree. A violation of division (A)(4) of this
section is a felony of the fourth degree.
{¶16} The clear reading of 2945.11 requires only that the trial court inform
the jury that, in determining the question of guilt, it may not consider punishment
because punishment is the trial judge’s decision, with the exception of first degree
murder and “burglary of an inhabited dwelling” offenses. R.C. 2945.11. The
offense of “burglary in an inhabited dwelling” under the 1953 version of R.C.
2907.09 is no longer the law in Ohio, and, notably, this former statute imposed a
life sentence for that offense, unless the jury recommended otherwise. See Korb,
supra. The current statutes prohibiting burglary, including R.C. 2911.12, for
which Pagan was indicted and convicted, do not contain such a provision
permitting jury recommendations in sentencing. Additionally, Pagan has pointed
to no statutory or case law requiring a trial court to instruct a jury on the potential
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penalties for the current offense of burglary. See Korb, supra (finding that R.C.
2945.11 did not require a trial court to instruct the jury on punishment for
aggravated burglary under R.C. 2911.11 because the former version of R.C.
2907.09, prohibiting “burglary in an inhabited dwelling,” was no longer the law,
and R.C. 2911.11 did not include a provision permitting the jury to participate in
sentencing).
{¶17} Even further, although Pagan baldy asserts that, had the jury been
aware that the potential penalty was a five-year prison term, it would not have
found him guilty of violating R.C. 2911.12(A)(3) because he never entered Sipes’
dwelling, he provides no evidence to support these assertions. Especially given
that Pagan did not provide this Court with a transcript of the trial, we cannot find
that he has demonstrated that, but for the trial court’s failure to instruct the jury on
the range of punishments for each degree of felony burglary, the outcome at trial
would clearly have been different. See Deal, 2008-Ohio-5408, at ¶7; Biros, 78
Ohio St.3d at 431.
{¶18} Accordingly, we overrule Pagan’s second assignment of error.
{¶19} Having found no error prejudicial to the appellant herein, in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J., and SHAW, J., concur.
/jnc
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