State v. Dietrich , 2011 Ohio 4347 ( 2011 )

[Cite as State v. Dietrich, 2011-Ohio-4347.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-10-76
v.
BRAD DIETRICH, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2010 0063
Judgment Affirmed in Part, Reversed in Part
Date of Decision: August 29, 2011
APPEARANCES:
Jason N. Flower for Appellant
Alissa M. Sterling for Appellee
Case No. 1-10-76
ROGERS, P.J.
{¶1} Defendant-Appellant, Brad Dietrich, appeals from the judgment of the
Court of Common Pleas of Allen County sentencing him to a ten-year prison term.
On appeal, Dietrich contends that he received ineffective assistance of counsel,
and that his pleas of guilty were involuntary. Based on the following, we affirm in
part and reverse in part the judgment of the trial court.
{¶2} In September 2009, the Allen County Grand Jury indicted Dietrich on
Count One: aggravated trafficking of a controlled substance, methamphetamine, in
violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count
Two: aggravated trafficking of a controlled substance, methamphetamine, in
violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count
Three: aggravated trafficking of a controlled substance, methamphetamine, in
violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count
Four: aggravated trafficking of a controlled substance, methamphetamine, in
violation of R.C. 2925.03(A)(1), (C)(1)(a), a felony of the fourth degree; Count
Five: aggravated possession of a controlled substance, methamphetamine, in
violation of R.C. 2925.11(A), (C)(1)(a), a felony of the fifth degree; Count Six:
illegal assembly or possession of chemicals for the manufacture of a controlled
substance, methamphetamine, in violation of R.C. 2925.041(A),(C), a felony of
the third degree; Count Seven: conspiracy to manufacture methamphetamine in
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violation of R.C. 2925.04(A), (C)(3)(a) and R.C. 2923.01(A)(1), a felony of the
second degree; and, Count Eight: engaging in a pattern of corrupt activity in
violation of R.C. 2923.32(A)(1), (B)(1), a felony of the first degree. The
indictment arose following an investigation wherein law enforcement discovered
that Dietrich was purchasing pseudoephedrine for the production of
methamphetamine.
{¶3} On February 23, 2010, Dietrich was arraigned. Dietrich, being
indigent, requested court-appointed counsel. F. Stephen Chamberlain (“attorney
Chamberlain”) was appointed as counsel for Dietrich. Thereafter, Dietrich entered
a plea of not guilty to all counts in the indictment.
{¶4} On April 7, 2010, Dietrich filed two motions to suppress. One motion
sought suppression of Dietrich’s statements to law enforcement. The other motion
sought suppression of evidence gathered via the use of a GPS tracking device
placed on Dietrich’s vehicle by law enforcement.
{¶5} On June 10, 2010, a hearing was held on both motions to suppress.
During the hearing attorney Chamberlain addressed the trial court, stating, in
pertinent part:
At this point in time, after discussing the matter with my client
and doing a little more research after some other (sic) additional
discovery was made by the State of Ohio. There are two motions
that are pending; one is a motion to suppress statements; the
other is a motion to suppress G-P-S tracking evidence. At this
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point in time, those motions in my opinion, are deemed not
necessary based upon the status of the law and the uh, evidence
that I know would be presented at any sort of hearing. So at this
point in time, we’re gonna be withdrawing those two motions.
I’ll put something on more formal, but we do need (sic) do it on
record, I’ve advised my client of the same and the reasons why
we’re doing it. And just to advise the Court, we’re still in uh,
we’re discussing and there’s has been a proposed uh, settlement
made by the State of Ohio that I’ve communicated with my
client. We’re still discussing that matter * * *.
June 10, 2010, Motion to Suppress Hearing Tr., p. 2. The trial court asked
Dietrich if attorney Chamberlain spoke with him about withdrawing the motions
to suppress and whether he consented to the withdrawal, to which Dietrich
responded in the affirmative. Id. at pp. 2-3. Accordingly, the motions to suppress
were withdrawn.
{¶6} On June 21, 2010, the matter proceeded to the final pre-trial hearing.
As a preliminary matter attorney Chamberlain notified the trial court that Dietrich
desired other counsel, resulting in the following colloquy:
Mr. Chamberlain: * * * I met with my client last night
regarding the matter for today and coming up for trial next
week. And then just talked to him very briefly this morning
after I spoke with Miss Sterling regarding the case just to
confirm where we were at negotiation-wise. Negotiations are
still where they were; the offer is still the offer that’s been
made.1 My client has told me a couple of times he’s rejecting
1
Although there is no plea offer sheet in the record memorializing the aforementioned plea offer (“original
plea offer”), a fact Dietrich concedes, we find that there is sufficient evidence in the record to demonstrate
that the original plea offer existed. The record, however, only reveals that the original plea offer was set to
expire on July 30, 2010. Final Pre-trial Hearing Tr., pp. 13-14. There is nothing in the record that reveals
the original plea offer’s sentencing recommendations.
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that, and I just advise him again that the offer has not been
modified by the State of Ohio this morning. First thing that he
advised me is that he wants another attorney. So at this point
we’re here to put that on the record. I’m not withdrawing as
counsel, however, I believe that that’s - - it’s a matter that needs
to be heard and placed on the record for purposes of keeping the
record uh, complete.
The Court: Okay, very well. The Court, in order to make a
record of the issue then, is that correct, Mr. Dietrich?
Mr. Dietrich: Yes, your Honor
The Court: What seems to be the problem?
Mr. Dietrich: He don’t come and see - - he didn’t come and see
me all this time; that all these times I’ve requested him to come
up and see me, that he should have had an expert hired already.
I just don’t trust him. He’s not - - I don’t feel he’s doing what
his job (sic) in the interest of my best interest. * * *
***
Mr. Chamberlain: * * * He’s basically not happy with the fact
that I can’t get him a better offer. And he thinks that if uh,
either another attorney or if there was a hired attorney, would
somehow then be able to persuade the State of Ohio to give him
a better offer in terms of years than what Miss Sterling has put
on the table.
Mr. Dietrich: I never said that they would get me a better offer.
Mr. Chamberlain: I’ve advised Miss Sterling that - - or advised
him that Miss Sterling, that absent bribery or physical force, I’m
not going to get Miss Sterling to come to change her mind on this
offer, and I’m not going to do either one of those. So he
understands that position * * * And I have advised him basically
that’s where - - that’s where the negotiations stand and he has - -
there are limited choices at this point. which (sic) is, he either
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accepts an offer that’s been offered, or we prepare the matter
and go to trial. * * *
The Court: Okay. Mr. Dietrich, just so we make a record,
anything else you want to say?
Mr. Dietrich: I’m not real sure. I just - - I don’t feel I trust him,
and this is my life in his hands.
Final Pre-trial Hearing Tr., pp. 2-5. Upon considering attorney Chamberlain’s
and Dietrich’s testimony, the trial court denied Dietrich’s motion to withdraw
attorney Chamberlain as counsel. The trial court, however, informed Dietrich
that he had the right to hire an attorney. Final Pre-trial Hearing Tr., p. 7. Also
during the hearing, there was discussion of the original plea offer, resulting in the
following colloquy:
Mr. Chamberlain: * * * [J]ust to indicate that I’ve advised my
client of [the original plea offer], obviously beforehand, and now
he’s heard it in open court, so he knows what the - - what the
final date for any offer. And I guess just so it’s clear on the
record for my client’s benefit, that Miss Sterling is completely
not really serious that if there is no uh, up-taking by our side of
this offer, that it is off the table and there is nothing uh, being
presented other than to go to trial on the indictment. * * *
The Court: Well, to make it even clearer, for the record, Mr.
Dietrich, do you understand that, right?
Mr. Dietrich: Yes, your Honor.
Id. at p. 14.
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{¶7} On July 19, 2010, Robert Blackwell (“attorney Blackwell”) filed a
notice of substitution of counsel with the trial court. In his notice, attorney
Blackwell notified the trial court that he would be representing Dietrich in place of
attorney Chamberlain.
{¶8} On August 17, 2010, Dietrich filed a motion to suppress any and all
information obtained by law enforcement from pharmacies arguing that release of
such information was prohibited under HIPPA. On August 23, 2010, Dietrich
filed a motion to suppress his statements to law enforcement. On that same day, a
hearing was held on Dietrich’s first motion to suppress. The following day the
trial court filed a judgment entry denying Dietrich’s first motion to suppress. On
September 2, 2010, Dietrich filed a motion to suppress evidence gathered via the
use of a GPS tracking device placed on Dietrich’s vehicle by law enforcement.
On that same day, a hearing was held on Dietrich’s second motion to suppress.
On September 6, 2010, the trial court filed a judgment entry denying Dietrich’s
second motion to suppress.
{¶9} On September 7, 2010, the matter proceeded to a change of plea
hearing. Prior to entering pleas of guilty the trial court conducted a thorough
Crim.R. 11 colloquy. See Change of Plea Hearing Tr., pp. 3-18. Thereafter,
pursuant to the plea agreement (“amended plea offer”), Dietrich withdrew his
pleas of not guilty and entered pleas of guilty to Counts One, Two, Three, Six, and
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Eight of the indictment, and signed a written plea of guilty. Based on Dietrich’s
responses during the Crim.R. 11 colloquy, the trial court found that Dietrich
knowingly and voluntarily plead guilty to the foregoing counts. Upon the State’s
motion, the trial court dismissed Counts Four, Five, and Seven of the indictment.
{¶10} On October 12, 2010, Dietrich filed a letter with the trial court
notifying it that he terminated his relationship with attorney Blackwell, and
requested re-appointment of attorney Chamberlain. On October 18, 2010, the
matter proceeded to an appointment of counsel hearing, during which Dietrich’s
letter was entered as an exhibit, and the trial court again appointed attorney
Chamberlain to represent Dietrich.
{¶11} On October 25, 2010, the matter proceeded to sentencing. The trial
court sentenced Dietrich to a one-year prison term on Count One, a one-year
prison term on Count Two, a one-year prison term on Count Three, a five-year
prison term on Count Six, and a five-year prison term on Count Eight. The trial
court further ordered that Count One, Count Two, and Count Three be served
concurrently to each other and concurrently to the prison term imposed in Count
Eight, and that the prison terms imposed on Counts One, Two, Three, and Eight be
served consecutively to the prison term imposed on Count Six, resulting in a total
prison term of ten years. The trial court further ordered Dietrich to pay a
mandatory fine of $5,000.00 on Count Six, which may be waived upon the proper
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filing of an affidavit of indigency, and “pay $1,000.00 as restitution to the West
Central Ohio Crime Task Force – all payments to be made through the Clerk of
Courts Office.” October 26, 2010 Judgment Entry, p. 4.
{¶12} It is from this judgment Dietrich appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
APPELLANT’S TRIAL COUNSEL DID NOT ADEQUATELY
ADVISE OR REPRESENT APPELLANT TO APPELLANT’S
DETRIMENT.
Assignment of Error No. II
APPELLANT’S PLEA WAS AN INVOLUNTARY PLEA.
Assignment of Error No. I
{¶13} In his first assignment of error, Dietrich contends that attorney
Blackwell did not adequately advise or represent him. Specifically, Dietrich
contends that attorney Blackwell did not adequately investigate the case,
unreasonably changed trial strategy from cooperative to adversarial, did not
understand the legal arguments put forth in the motions to suppress, did not brief
an issue of first impression, and, as a result, he (Dietrich) received a less desirable
plea offer. We disagree.
{¶14} This Court has previously held in State v. Streets, 3d Dist. No. 5-98-
09, 1998 WL 682284, *2:
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A plea of guilty waives a claim of ineffective assistance of
counsel, except to the extent the defects complained of caused the
plea to be less than knowing and voluntary. State v. Barnett
(1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101. If a
defendant can demonstrate that he [or she] received ineffective
assistance of counsel in entering his [or her] guilty plea and that
but for that ineffective assistance he [or she] would have
proceeded to trial, then we would be required to reverse a
defendant’s sentence and remand the matter to the trial court to
allow the defendant to withdraw his [or her] plea. State v.
Freeman (July 3, 1997), Shelby App. Nos. 17-96-18 and 17-96-19,
unreported, citing Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct.
366, 88 L.Ed.2d 203. The defendant bears the burden of proof in
demonstrating ineffective assistance of counsel. State v. Smith
(1985), 17 Ohio St.3d 98, 477 N.E.2d 1128.
See also, State v. Jackson, 3d Dist. No. 1-98-78, 1999 WL 253236; State v.
Kitzler, 3d Dist. No. 16-02-06, 2002-Ohio-5253, ¶¶12-13, State v. Cook, 3d Dist.
No. 14-10-05, 2010-Ohio-4814, ¶18. The contentions lodged in Dietrich’s first
assignment of error address attorney Blackwell’s failure to investigate Dietrich’s
case, his unreasonable trial strategy, his misunderstanding of the applicable law,
and his failure to brief issues. While Dietrich does contend that the cumulative
effect of attorney Blackwell’s foregoing failures resulted in a less-than-desirable
plea bargain, at no point, throughout his first assignment of error, does Dietrich
contend that these failures affected his ability to enter a knowing, intelligent, and
voluntary plea. Consequently, these contentions, even if meritorious, are outside
our scope of review.
{¶15} Accordingly, we overrule Dietrich’s first assignment of error.
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Assignment of Error No. II
{¶16} In his second assignment of error, Dietrich contends that his plea was
involuntary. Specifically, Dietrich argues that his plea was involuntary as a result
of attorney Blackwell’s erroneous representations about receiving a better
outcome than that offered in the original plea deal, and allowing the initial plea
deal to expire. Had it not been for attorney Blackwell’s erroneous representations,
and failure to encourage acceptance of the original plea deal, Dietrich contends
that he would have not been in a situation where he had to accept the amended
plea deal. As a result of this situation, Dietrich contends that his plea was
involuntary. We disagree.
{¶17} Prior to accepting a plea of guilty or no contest the trial court must
personally address the defendant and determine that the plea is being made
voluntarily, knowingly, and intelligently. Crim.R. 11.
{¶18} In State v. Langenkamp, 3d Dist. No. 17-08-03, 17-08-04, 2008-
Ohio-5308, this Court dealt with an issue similar to that raised in the present case.
In Langenkamp, appellant argued that he entered his plea of no contest because his
attorney had assured him that the plea agreement provided for concurrent
sentencing. Appellant subsequently discovered that there was no agreement for
concurrent sentencing when the trial court ordered his sentences to be served
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consecutively.2 Consequently, appellant filed a motion to withdraw his plea of no
contest, which the trial court denied. On appeal, the appellant maintained that his
counsel’s erroneous representations concerning sentencing induced his plea of no
contest, rendering it involuntary. Considering the record and applicable law this
Court affirmed the trial court’s judgment overruling appellant’s motion to
withdraw his no contest plea. In doing so, this Court conducted an extensive
review of case law addressing the differences between defense counsel’s
erroneous speculation and defense counsel’s erroneous representations of a
promised sentence, and the effect thereof on the knowing, intelligent, and
voluntary nature of defendant’s plea. Langenkamp, 2008-Ohio-5308, ¶¶24-26.
After conducting its review of the applicable case law, this Court stated:
[T]hat in order for a defendant to establish a manifest injustice
sufficient for a post-sentence withdrawal of a guilty or no contest
plea, a defendant must establish that: (1) defense counsel
mistakenly represented what has been promised by way of a
sentence; (2) the erroneous representation played a substantial
part in his/her decision to plead guilty or no contest; and (3)
he/she was reasonably justified in relying upon counsel’s
erroneous representation.
Id. at ¶27. We remain cognizant of the fact that the present case does not involve
a post-sentence motion to withdraw a plea of guilty or no contest. Nevertheless,
we find the foregoing analysis useful in determining whether defense counsel’s
2
The trial court in Langenkamp found, and this Court agreed, that there was never an agreement for
concurrent sentencing, Langenkamp, 2008-Ohio-5308, at ¶17, but concluded that Langenkamp was not
reasonably justified in relying on counsel’s erroneous representations. Id. at ¶28.
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alleged erroneous representations induced appellant to enter his plea of guilty,
resulting in an unknowing, unintelligent, and involuntary plea.
{¶19} In order to satisfy the first prong of the Langenkamp analysis it must
be apparent from the record that an erroneous representation did in fact occur. See
State v. Radel, 5th Dist. No. 2009-CA-00021, 2009-Ohio-3543, citing State v.
Cooperrider (1983), 4 Ohio St.3d 226. Furthermore, defendant bears the burden
to identify those portions of the record demonstrating the existence of counsel’s
erroneous representations. In Langenkamp, this Court, citing the record, found
that appellant’s defense counsel, via defense counsel’s testimony and testimony of
appellant’s psychologist, had in fact guaranteed appellant that he was going to be
sentenced concurrently if he plead no contest. Langenkamp, 2008-Ohio-5308, at
¶¶19-23. Consequently, this Court presumed that the first and second prongs were
satisfied, and determined the merits of appellant’s appeal based on the third prong.
{¶20} In addressing the first prong of the analysis, we, like the Langenkamp
court, review the record to determine whether attorney Blackwell made erroneous
representations to Dietrich concerning his ability to secure a more favorable
outcome in the case. Unlike Langenkamp, the only evidence of attorney
Blackwell’s alleged erroneous representations appear in Dietrich’s October 12,
2010 letter and Dietrich’s statements during the sentencing hearing. However, this
Court has previously held that defendant’s own self-serving testimony (i.e., self-
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serving affidavits, which do not exist here, or statements) alone are insufficient to
establish manifest injustice. State v. Young, 3d Dist. Nos. 13-08-21, 13-08-22, 13-
08-23, 2008-Ohio-6072, ¶26, citing State v. Rockwell, 5th Dist. No. 2008-CA-
00009, 2008-Ohio-2162, ¶42, citing State v. Brown, 167 Ohio App.3d 239, 2006-
Ohio-3266, ¶13. Consequently, the statements contained in Dietrich’s letter and
testimony, without more, are insufficient to demonstrate the existence of attorney
Blackwell’s alleged erroneous representations. See Langenkamp, 2008-Ohio-
5308, at ¶¶19-23. Accordingly, Dietrich has failed to satisfy the first prong,
rendering his second assignment of error meritless.
{¶21} Nevertheless, Dietrich invites us to infer the existence of attorney
Blackwell’s erroneous representations by considering the change in Dietrich’s
defense strategy, from cooperative to adversarial, which occurred after attorney
Blackwell was hired. We decline to draw such inferences.
{¶22} Upon review of the record, it appears that Dietrich, prior to attorney
Blackwell’s appearance as counsel of record, decided to defend against the
charges, rather than admit to them via a guilty plea. This strategic shift is evident
during the final pre-trial hearing. At that point in time the original plea offer was
in existence. Attorney Chamberlain explained that he had discussed the original
plea offer with Dietrich, the improbability of receiving a better offer, and notified
Dietrich of the original plea offer’s deadline. Final Pre-trial Hearing Tr., pp. 2, 4,
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14. Nevertheless, Dietrich, according to attorney Chamberlain, repeatedly rejected
the offer, and sought appointment of new counsel, which Dietrich confirmed
during the hearing. Id. at p. 2. On the face of the record Dietrich, prior to attorney
Blackwell’s involvement, had decided that he was not going to accept the original
plea offer, which consequently placed him in a situation where he could either
accept the amended plea offer or go to trial. Although there may have been
discussions between attorney Blackwell and Dietrich concerning this decision,
they are not in the record, and we will not infer their existence at this juncture.
Accordingly, the record reveals that Dietrich, not attorney Blackwell, was
responsible for the predicament which he now claims resulted in an involuntary
plea.
{¶23} Furthermore, the record demonstrates that Dietrich knowingly,
intelligently, and voluntarily entered his pleas of guilty. Prior to accepting
Dietrich’s pleas of guilty the trial court conducted a thorough Crim.R. 11
colloquy. See Change of Plea Hearing Tr., pp. 3-18. “The underlying purpose,
from the defendant’s perspective, of Crim.R. 11(C) is to convey to the defendant
certain information so that he [or she] can make a voluntary and intelligent
decision whether to plead guilty.” State v. Ballard (1981), 66 Ohio St.2d 473,
479-80. Crim.R. 11(C) creates a record by which an appellate court can determine
if the pleas were entered voluntarily. State v. Griggs, 103 Ohio St.3d 85, 2004-
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Ohio-4415, ¶11. However, Crim.R. 11(C)’s ultimate purpose “is to insure that
there was a voluntary, knowing, and intelligent waiver of the constitutional rights
abandoned by a plea of guilty, and of the nature and extent of the punishment
involved by such a plea.” State v. Branham, 3d Dist. No. 11-86-3, 1987 WL
15004. As such, a trial court’s adherence to Crim.R. 11(C), absent any indicia of
coercion, creates a presumption that the defendant’s plea was entered knowingly,
voluntarily, and intelligently. State v. Ogletree, 2nd Dist. No. 21995, 2008-Ohio-
772, ¶7, citing State v. Ferbrache, 6th Dist. No. WD-06-042, 2007-Ohio-746.
{¶24} According to Dietrich’s responses during the Crim.R. 11 colloquy,
he understood the charges in the indictment, including the offenses to which he
would plead guilty, and the potential sentence that the trial court could impose.
The record further shows that Dietrich was twenty-seven years old at the time of
his plea; he was not under the influence of drugs or alcohol; he understood the
terms of the plea agreement, which were also set forth in a written plea agreement
that he signed; and, he was not coerced into entering the plea. Moreover, Dietrich
did not voice any concerns or complaints about attorney Blackwell’s advice and
representations, the expiration of the original plea offer, or the amended plea offer.
Having considered the colloquy in its entirety, we find that Dietrich knowingly,
intelligently, and voluntarily entered his pleas of guilty.
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{¶25} Additionally, we find that Dietrich’s predicament between accepting
the amended plea offer or going to trial did not render his plea involuntary. The
nature of a plea deal involves the inescapable conflict between accepting the deal
or going to trial. The mere fact that a defendant choses to accept the plea deal to
avoid the inconvenience of trial and the possibility of receiving a longer sentence
does not render the defendant’s decision involuntary. See State v. Richter, 8th
Dist. Nos. 46122, 46123, 1983 WL 4787, citing State v. Piacella (1971), 27 Ohio
St.2d 92, and State v. Stone (1975), 43 Ohio St.2d 163. Consequently, we find
Dietrich’s acceptance of the amended plea offer and his resulting pleas of guilty
were not involuntary but were calculated decisions.
{¶26} For the foregoing reasons, we find that Dietrich knowingly,
intelligently, and voluntarily entered his pleas of guilty.
{¶27} Accordingly, we overrule Dietrich’s second assignment of error.
{¶28} In addition to Dietrich’s assignments of error, we, sua sponte,
address plain error in Dietrich’s sentencing, particularly the trial court’s award of
restitution to the West Central Ohio Crime Task Force. 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. Plain error is to be
used “with the utmost caution, under exceptional circumstances and only to
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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.
{¶29} As it stands now, Dietrich has been ordered to “pay $1,000.00 as
restitution to the West Central Ohio Crime Task Force – all payments to be made
through the Clerk of Courts Office.” October 26, 2010 Judgment Entry, p. 4. This
is plain error.
{¶30} R.C. 2929.18 governs a trial court’s ability to award restitution. The
statute provides, in pertinent part:
* * * Financial sanctions that may be imposed pursuant to this
section include, but are not limited to, the following:
(1) 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. * * *
R.C. 2929.18(A)(1).
{¶31} This Court has held that the plain language of R.C. 2929.18(A)(1)
makes restitution available only to actual victims of an offense. State v. Stewart,
3d Dist. No. 16-08-11, 2008-Ohio-5823, ¶9, citing State v. Toler, 174 Ohio
App.3d 335, 338, 2007-Ohio-6967; State v. Christy, 3d Dist. No. 16-04-04, 2004-
Ohio-6963, ¶16. “A victim of a crime is defined as the person or entity that was
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the ‘object’ of the crime.” State v. Samuels, 4th Dist. No. 03CA8, 2003-Ohio-
6106, ¶5, citing Black’s Law Dictionary (5th Ed.1979) 1405. In certain
circumstances, a government entity may be considered a victim of a crime under
R.C. 2929.18(A)(1): For example, when government funds are embezzled or when
government property is vandalized. Id. However, a government entity voluntarily
advancing its own funds to pursue a drug buy through an informant is not one of
the scenarios contemplated by R.C. 2929.18(A)(1). See State v. Pietrangelo, 11th
Dist. No. 2003-L-125, 2005-Ohio-1686, ¶¶12-15; State v. Justice, 5th Dist. No.
09-CA-66, 2010-Ohio-4781, ¶¶24, 30; State v. Jones, 7th Dist. Nos. 08 JE 20, 08
JE 29, 2010-Ohio-2704, ¶44; State v. Collins, 6th Dist. Nos. H-09-001, H-09-005,
2009-Ohio-6346, ¶52, State v. Frazier, 4th Dist. No. 10CA15, 2011-Ohio-1137,
¶18.
{¶32} In light of this plain error, we hereby vacate the restitution order.
{¶33} Having found no error prejudicial to Dietrich herein, in the
particulars assigned and argued, but having found plain error in the trial court’s
award of restitution to the West Central Ohio Crime Task Force, we affirm in part,
and reverse in part, the judgment of the trial court.
Judgment Affirmed in Part,
Reversed in Part
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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