Cleveland v. Fuller , 2023 Ohio 1669 ( 2023 )

[Cite as Cleveland v. Fuller, 2023-Ohio-1669.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
CITY OF CLEVELAND, :
Plaintiff-Appellee, :
No. 111790
v. :
JEROME FULLER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 18, 2023
Criminal Appeal from the Cleveland Municipal Court
Case No. 2021-TRC-023154
Appearances:
Mark Griffin, Cleveland Director of Law, and Matt
Bezbatchenko, Assistant City Prosecutor, for appellee.
Christina M. Joliat, for appellant.
EILEEN T. GALLAGHER, J.:
Defendant-appellant, Jerome Fuller (“Fuller”), appeals from the trial
court’s order of restitution following a guilty plea. He raises the following
assignment of error for review:
The court erred in awarding restitution in the amount of $7,300 for
appellant’s conviction under Cleveland Codified Ordinance 433.01.
After careful review of the record and relevant case law, we affirm the
trial court’s judgment.
I. Procedural and Factual History
On December 6, 2021, a complaint was filed against Fuller in Cleveland
M.C. No. 21-TRC-023154, charging him with operating a vehicle while under the
influence of alcohol or drugs (“OVI”) in violation of Cleveland Codified Ordinances
(“C.C.O.”) 433.01; driving under suspension in violation of C.C.O. 435.07(a); failure
to stop after accident in violation of C.C.O. 435.17; failure to control in violation of
C.C.O. 431.34(a); and display of plates not legally registered in violation of C.C.O.
435.09(f). The complaint stemmed from allegations that Fuller crashed his vehicle
while driving with a suspended license and under the influence of alcohol. The
incident resulted in structural damage to the home owned by the victim, Darren
Clayton (“Clayton”).
On April 19, 2022, Fuller accepted the terms of a negotiated plea
agreement and pleaded guilty to operating his vehicle while under the influence of
alcohol or drugs in violation of C.C.O. 433.01. As a condition of the plea agreement,
Fuller was required to pay restitution in an amount to be determined at the time of
sentencing. Following a Crim.R. 11 colloquy the trial court accepted Fuller’s plea
and found him guilty of violating C.C.O. 433.01, a misdemeanor of the first degree.
Prior to sentencing, the trial court received documentation from
Clayton reflecting that it would cost $7,300 to repair the damage caused to his
property.
A sentencing hearing was held on June 14, 2022. Regarding restitution,
defense counsel argued the court was required to comply with the express language
of C.C.O. 433.01(h)(7), that limits restitution for any economic loss that is the
proximate cause of an OVI offense to “an amount not exceeding five thousand
dollars ($5,000.00).” In contrast, the city argued that Clayton was entitled to
$7,300 pursuant to Marsy’s Law, which requires “full and timely restitution,” and
supersedes statutory caps on damages.
Following briefing of the issue by the parties, the trial court ordered
Fuller to pay Clayton restitution in the amount of $7,300. The trial court further
imposed a $500 fine, a 180-day jail term with all but three days suspended, and a
one-year period of active probation. Fuller was also ordered to complete a driver’s
intervention program.
Fuller now appeals from the trial court’s restitution order.
II. Law and Analysis
In the sole assignment of error, Fuller argues the trial court erred in
awarding restitution in the amount of $7,300. Fuller contends that the award
exceeds the amount of restitution authorized by the ordinance he violated.
A. Applicable Sentencing Statutes
We review misdemeanor restitution orders for an abuse of discretion.
Strongsville v. Kane, 8th Dist. Cuyahoga No. 97765, 2012-Ohio-3372, ¶ 8. An abuse
of discretion “‘implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.’” State v. Montgomery, 169 Ohio St.3d 84, 2022-Ohio-2211, 202
N.E.3d 616, ¶ 135, quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983). An abuse of discretion occurs when “a court exercise[es] it’s
judgment, in an unwarranted way[.]” Johnson v. Abdullah, 166 Ohio St.3d 427,
2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. However, “a court does not have discretion
to misapply the law.” Id. at ¶ 38 (courts apply a de novo standard when reviewing
an issue of law).
R.C. 2929.28(A)(1) provides a statutory mechanism for ordering
restitution in misdemeanor cases. Both R.C. 2929.28(A)(1) and the reciprocal
statute governing felonies, 2929.18(A)(1), limit the amount of restitution to “the
amount of the economic loss suffered by the victim as a direct and proximate result
of the commission of the offense.” “The victim, victim’s representative, victim’s
attorney, if applicable, the prosecutor or the prosecutor’s designee, and the offender
may provide information relevant to the determination of the amount of
restitution.” R.C. 2929.28(A)(1).
“Economic loss” is defined in R.C. 2929.01(L) as “any economic
detriment suffered by a victim as a direct and proximate result of the commission of
an offense,” specifically including “property loss.”
The victim has the burden of proving the amount of restitution by the
preponderance of the evidence. R.C. 2929.28(A)(1). Moreover, the amount of the
restitution imposed “‘must be supported by competent, credible evidence from
which the court can discern the amount of the restitution to a reasonable degree of
certainty.’” State v. Johnson, 2018-Ohio-3670, 119 N.E.3d 914, ¶ 55 (8th Dist.),
quoting State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999).
The evidence in the record must be enough to substantiate the relationship of the
offender’s criminal conduct to the amount of the victim’s loss. State v. Norton, 8th
Dist. Cuyahoga No. 102017, 2015-Ohio-2516, ¶ 44.
B. Marsy’s Law
In November 2017, the voters of this state passed an amendment to
the victim’s rights provision of the Ohio Constitution. Effective February 5, 2018,
Article I, Section 10a of the Ohio Constitution, commonly referred to as Marsy’s Law,
expanded the rights afforded to crime victims. Relevant to this appeal, Marsy’s Law
provides victim’s the right “to full and timely restitution from the person who
committed the criminal offense or delinquent act against the victim[.]” Ohio
Constitution, Article I, Section 10a(A)(7).
Marsy’s Law defines “victim” as “a person against whom the criminal
offense or delinquent act is committed or who is directly and proximately harmed
by the commission of the offense or act.” Ohio Constitution, Article I, Section
10a(D). In this case, it is undisputed that Clayton was directly and proximately
harmed by Fuller’s OVI offense. He is therefore constituted a “victim” who is
entitled to full and timely restitution.
Notably, Ohio’s version of Marsy’s Law states, “All provisions of this
section shall be self-executing and severable, and shall supersede all conflicting state
laws.” Id. at Section 10a(E). The Ohio Supreme Court has recently clarified that “no
portion of Marsy’s Law ‘conflicts’ with the restitution statutes such that they are
‘supersede[d],’ Article I, Section 10a(E).” State v. Yerkey, Slip Opinion No. 2022-
Ohio-4298, ¶ 12. “Consequently, the statutes governing ‘restitution,’” including R.C.
2929.28(A)(1), “are still used to determine which losses qualify for restitution.” Id.In reaching this conclusion, the court noted that “since the adoption of Marsy’s Law,
both this court and other courts in Ohio have continued to determine the amount of
restitution based on the economic loss suffered by the victim as a direct and
proximate result of the commission of the offense.” Id. at ¶ 13, citing Centerville v.
Knab, 162 Ohio St.3d 623, 2020-Ohio-5219, 166 N.E.3d 1167, ¶ 19; Cleveland v.
Rudolph, 8th Dist. Cuyahoga No. 111128, 2022-Ohio-2363, ¶ 16-17; State v. Dent,
11th Dist. Lake No. 2020-L-110, 2021-Ohio-2551, ¶ 29-30; State v. Crawford, 3d
Dist. Henry No. 7-20-05, 2021-Ohio-547, ¶ 23; State v. Young, 6th Dist. Lucas No.
L-19-1189, 2020-Ohio-4943, ¶ 12-13; State v. Yerkey, 2020-Ohio-4822, 159 N.E.3d
1232, ¶ 26 (7th Dist.); State v. Goff, 2020-Ohio-1474, 153 N.E.3d 899, ¶ 3 (1st Dist.).
With the foregoing principles in mind, we address Fuller’s contention
that the trial court misapplied Marsy’s Law by imposing an order of restitution that
was inconsistent with the express language of the ordinance governing his
conviction.
C. Scope of Restitution Available to the Victim
As previously discussed, Fuller was convicted of operating a motor
vehicle while under the influence in violation of C.C.O. 433.01. The ordinance sets
forth the applicable penalties for a violation of C.C.O. 433.01 and contains an explicit
provision concerning the availability of restitution. The ordinance states, in relevant
part:
In all cases in which an offender is sentenced under * * * this section,
the offender shall provide the court with proof of financial
responsibility as defined in RC 4509.01. If the offender fails to provide
that proof of financial responsibility, the court, in addition to any other
penalties provided by law, may order restitution pursuant to RC
2929.18 or 2929.28 in an amount not exceeding five thousand dollars
($5,000.00) for any economic loss arising from an accident or collision
that was the direct and proximate result of the offender’s operation of
the vehicle before, during, or after committing the offense for which the
offender is sentenced * * * this section.
C.C.O. 433.01(h)(3)(B)(7). Thus, pursuant to the express terms of the ordinance,
restitution is generally only available where the defendant fails to provide proof of
financial responsibility. The ordinance further provides that if an award of
restitution is appropriate, the court may only order restitution in an amount not
exceeding $5,000.
On appeal, Fuller does not dispute that Marsy’s Law permits a victim
to assert his or her constitutional right to full and timely restitution. Nevertheless,
Fuller asserts that “Marsy’s Law was not intended to change laws” and, therefore,
does not alter or otherwise supersede the limiting language of C.C.O.
433.01(h)(3)(B)(7). Thus, Fuller submits that, at the very most, he was only required
“to pay the restitution in full and timely up to the $5,000 figure.”
After careful consideration, we find no merit to Fuller’s position. The
limitations placed on the applicability and breadth of restitution under C.C.O.
433.01(h)(3)(B)(7) unambiguously conflict with Marsy’s Law, which contains no
restrictive language and permits a victim to recover the full amount of economic loss
so long as the award is established by the preponderance of the evidence under R.C.
2929.28(A)(1) or 2929.18(A)(1). If C.C.O. 433.01(h)(3)(B)(7) were to apply as
written, Clayton would not be made whole for the economic loss caused by Fuller’s
criminal conduct. It is well settled that “where constitutional provisions and the
legislative enactment are ‘so clearly in conflict that they cannot both stand the
statutory provision must fail.’” State v. Oliver, 12th Dist. Clermont No. CA2020-07-
041, 2021-Ohio-2543, ¶ 71, quoting State ex rel. Price v. Huwe, 105 Ohio St. 304,
306, 137 N.E. 167 (1922). Accordingly, we find Marsy’s Law supersedes C.C.O.
433.01(h)(3)(B)(7) to the extent the ordinance caps the availability of restitution to
a victim.
We further find the trial court’s award of restitution was supported by
competent and credible evidence. It is well settled that the evidence that supports a
court’s restitution order “can take the form of either documentary evidence or
testimony.” State v. Moore, 5th Dist. Guernsey No. 22 CA 000007, 2022-Ohio-
4261, ¶ 12, citing State v. Jones, 10th Dist. Franklin No. 14AP-80, 2014-Ohio-3740.
In this case, there is no dispute that the substantial damage to Clayton’s property
was proximately caused by Fuller’s violation of C.C.O. 433.01. As summarized by
the prosecution, Mr. Clayton’s “front porch was completely destroyed by Mr. Fuller
driving drunk.” (Tr. 10.) The court also heard from Clayton, who described his
economic loss as follows:
[T]hat night I woke up and the front of [Fuller’s] car and motor was
under my porch with the pillar holding the second floor on top of his
motor. * * * I had to get some property contractor to open up the
second floor porch in the middle of the winter so I [could] get a
masonry to come out and * * * support the second floor[.] It literally
exploded the whole brick steps, pillars, and everything.
(Tr. 15.) Finally, the prosecution submitted ample documentation in support of its
request for restitution, including photographs of the property damage, paid
invoices, and a contractor’s written proposal to complete the necessary repairs for
$7,300.
Counsel for defendant did not contest the legitimacy of the submitted
documents or the costs required to repair Clayton’s property. Instead, defense
counsel relied on his interpretation of C.C.O. 433.01(h)(3)(B)(7) and his position
that restitution could not exceed $5,000. As previously discussed, counsel’s
argument is not consistent with the rights afforded under Marsy’s Law. With that
stated, we recognize that counsel further urged the court to consider Fuller’s
inability to pay, stating:
Well judge, again we’re not disputing the amount listed in the receipts.
What we would ask the court to take into consideration is Mr. Fuller’s
ability to pay. And again, restitution is at the court’s discretion. It’s not
required in any of these — for these charges specifically.
Mr. Fuller does not have an income right now. He does not have a job.
He’s receiving food stamps. He’s been unemployed for the last two
months. He last worked at the Intercontinental Hotel through a temp
agency as a dishwasher. So he has no source of income. He’s not gonna
be able to pay this amount of $7,300 any time soon nor within a
reasonable period of time.
Um, I would also add that this does not forestall the victim from
pursuing civil charges to recover damages to his house and to his patio.
Um, this amount of $7,300 is higher traditionally than what this court
normally gives in restitution. I have not seen any judge order any
amount close to $7,300, um, as far as restitution.
(Tr. 7-8.) Fuller reiterates this argument on appeal, stating that even if Marsy’s Law
permitted the court to impose restitution in an amount exceeding $5,000, the court
abused its discretion by failing to consider his ability to pay pursuant to R.C.
2929.28(B).1
Consistent with the precedent of this court, we find no merit to Fuller’s
reliance on R.C. 2929.28(B). This court has previously addressed, and rejected, an
analogous argument in Rudolph, 8th Dist. Cuyahoga No. 111128, 2022-Ohio-2363,
stating, in relevant part:
Whether a defendant is unable to pay the amount of restitution is
irrelevant under Marsy’s Law. In [Oliver, 2021-Ohio-2543, 176 N.E.3d
1054, (12th Dist.)], the Twelfth District considered the conflict between
1 R.C. 2929.28(B) provides:
(B) If the court determines a hearing is necessary, the court may hold a
hearing to determine whether the offender is able to pay the financial
sanction imposed pursuant to this section or court costs or is likely in the
future to be able to pay the sanction or costs.
If the court determines that the offender is indigent and unable to pay the
financial sanction or court costs, the court shall consider imposing and may
impose a term of community service under division (A) of section 2929.27 of
the Revised Code in lieu of imposing a financial sanction or court costs. If the
court does not determine that the offender is indigent, the court may impose
a term of community service under division (A) of section 2929.27 of the
Revised Code in lieu of or in addition to imposing a financial sanction under
this section and in addition to imposing court costs. The court may order
community service for a minor misdemeanor pursuant to division (D) of
section 2929.27 of the Revised Code in lieu of or in addition to imposing a
financial sanction under this section and in addition to imposing court costs.
If a person fails to pay a financial sanction or court costs, the court may order
community service in lieu of the financial sanction or court costs.
an offender’s rights as set forth in R.C. 2929.19(B)(5),2 which requires
a trial court to consider an offender’s ability to pay before ordering
restitution, and the trial court’s legal duty to provide victims with full
and timely restitution in accordance with Marsy’s Law. In finding that
the provisions of Marsy’s Law supersede the defendant’s rights under
R.C. 2929.19(B)(5), the Oliver court explained:
Marsy’s Law provides that in instances where the provisions of Marsy’s
Law conflict with previously enacted statutes, the constitutional
provision “shall supersede” the conflicting state law. Article I, Section
10a(E), Ohio Constitution. This is consistent with the well-settled law
in Ohio that where constitutional provisions and the legislative
enactment are “so clearly in conflict that they cannot both stand the
statutory provision must fall.” * * * Such a conflict exists here, and in
accordance with Ohio law, we conclude Marsy’s Law supersedes R.C.
2929.19(B)(5) to the extent the statute allows the trial court to reduce
or otherwise modify the restitution amount owed to a victim.
Oliver at ¶ 71, quoting State ex rel. Price v. Huwe, 105 Ohio St. 304,
306, 137 N.E. 167 (1922).
* * * Pursuant to Oliver and Article I, Section 10a(E) of the Ohio
Constitution, Rudolph’s inability to pay restitution is not a valid basis
on which the court could decline an order of restitution.
Id. at ¶ 18-19.
The foregoing discussion in Rudolph remains the prevailing authority
of this district. As previously stated, the Ohio Supreme Court clarified in Yerkey
that the amount of restitution available to a victim is limited to the economic loss
suffered by the victim as a direct and proximate result of the commission of the
offense. Id., Slip Opinion No. 2022-Ohio-4298, at ¶ 13, 19. The Yerkey Court
focused extensively on the basic concepts of direct and proximate cause, and
concluded that “the statutes governing ‘restitution’ are still used to determine which
2 R.C. 2929.28(B) contains similar language.
losses qualify for restitution.” Id. at ¶ 12. However, the court did not expressly
address or otherwise overrule this court’s observation of the inherent conflict
between Marsy’s Law and the statutory provisions that require a trial court to
consider an offender’s ability to pay before ordering restitution. In fact, both
Rudolph and Oliver were cited in support of the majority decision of Yerkey without
reservation. Id. at ¶ 13. Thus, we reiterate that “[w]hether a defendant is unable to
pay the amount of restitution is irrelevant under Marsy’s Law.” Rudolph, 8th Dist.
Cuyahoga No. 111128, 2022-Ohio-2363, at ¶ 18.
Based on the foregoing, we find the trial court’s order of restitution is
supported by the preponderance of the evidence and bears a reasonable relationship
to the actual loss suffered by Clayton. Pursuant to the express mandates of Marsy’s
Law, the trial court was entitled to award restitution in an amount exceeding
$5,000. Accordingly, the trial court did not abuse its discretion by order Fuller to
pay restitution to Clayton in the amount of $7,300. The sole assignment of error is
overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
municipal court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MARY EILEEN KILBANE, J., CONCUR