State v. Perkins , 190 Ohio App. 3d 328 ( 2010 )

[Cite as State v. Perkins, 190 Ohio App.3d 328, 2010-Ohio-5058.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
THE STATE OF OHIO,
APPELLEE, CASE NO. 13-10-02
and
v. 13-10-03
PERKINS, OPINION
APPELLANT.
Appeals from Seneca County Common Pleas Court
Trial Court Nos. 08-CR-0158 and 08-CR-0208
Judgments Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: October 18, 2010
APPEARANCES:
Derek W. DeVine, Seneca County Prosecuting Attorney, for appellee.
Sean A. Martin, for appellant.
Case No. 13-10-02 and 13-10-03
ROGERS, Judge.
{¶ 1} Defendant-appellant, William Perkins, appeals from the judgments
of the Court of Common Pleas of Seneca County ordering restitution in the
amount of $500 to the victim, Richard Mader, $3,619.95 to the Charles Crane
Agency, and $12,897.27 to the Ohio Victim of Crime Compensation Program. On
appeal, Perkins argues that the trial court erred when it ordered restitution on
remand without conducting a hearing and when it designated an insurance
company as a restitution recipient. Based on the following, we affirm in part and
reverse in part the judgments of the trial court.
{¶ 2} In August 2008, Perkins was indicted in trial court case No.
08CR01581 by the Seneca County Grand Jury on eight counts: Count One,
breaking and entering in violation of R.C. 2911.13(A), a felony of the fifth degree;
Count Two, aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the
first degree, with a firearm specification pursuant to R.C. 2941.145; Count Three,
complicity to tampering with evidence in violation of R.C. 2923.03(A)(2) and
2921.12(A)(1), a felony of the third degree; Count Four, aggravated trafficking in
drugs in violation of R.C. 2925.03(A)(2) and (C)(1)(a), a felony of the fourth
degree; Count Five, receiving stolen property in violation of R.C. 2913.51, a
felony of the fourth degree; Count Six, aggravated possession of drugs in violation
1
We note that trial court case No. 08CR0158 corresponds to case No. 13-10-02, and trial court case No.
08CR0208 corresponds to case No. 13-10-03, with both cases consolidated for purposes of appeal.
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Case No. 13-10-02 and 13-10-03
of R.C. 2925.11(A) and (C)(1)(a), a felony of the fifth degree,2 Count Seven,
tampering with evidence in violation of R.C. 2921.12(A)(1), a felony of the third
degree; and, Count Eight, engaging in a pattern of corrupt activity in violation of
R.C. 2923.32(A)(1), a felony of the first degree. The indictment arose from
Perkins’s armed robbery of the Medicine Shoppe Pharmacy in Tiffin, Ohio, where
he stole oxycodone. He later used and sold the substance and destroyed and
tampered with the evidence associated with the crimes. Perkins subsequently
entered a not-guilty plea to all counts in the indictment.
{¶ 3} In September 2008, the trial court dismissed Count Five of the
indictment at the request of the state, and a separate indictment in trial court case
No. 08CR0208 was issued for receiving stolen property in violation of R.C.
2913.51, with that count interlineated into the original indictment as Count Five.
Additionally, the trial court consolidated the two cases for purposes of trial.
{¶ 4} In December 2008, following a jury trial, Perkins was convicted on
Counts Four and Six of the indictment, aggravated trafficking in drugs and
aggravated possession of drugs, and was acquitted on Count One of the
indictment, breaking and entering, and a mistrial was declared as to Counts Two,
Three, Five, Seven, and Eight, with the case continued for a new trial to be held on
those counts.
2
We note that the indictment contained a typographical error stating that Count Six was a felony of the
fourth degree; however, the jury verdict form and judgment entries of conviction and sentencing all
correctly stated that it was a felony of the fifth degree.
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Case No. 13-10-02 and 13-10-03
{¶ 5} In January 2009, pursuant to the request of the state, Count Eight of
the indictment was dismissed with prejudice.
{¶ 6} In February 2009, following a second jury trial, Perkins was
convicted on Count Two, aggravated robbery, with a finding that he did possess
and display a firearm while committing the offense; Count Three, complicity to
tampering with evidence; Count Five, receiving stolen property; and Count Seven,
tampering with evidence.
{¶ 7} In March 2009, the case proceeded to a sentencing hearing, at which
the following discussion took place:
Trial Court: The Court had an opportunity, I think, quite frankly,
before anybody else, or if there was anybody else, just a couple
people, to discuss the information supplied by the victim advocate in
these cases. And the Court and only that matter was discussed.
First, there was a request of $3,619.95 by the Charles Crane Agency,
which I assume is the insurance carrier agent for Mr. Mader. Is that
correct Ms. Martin?
Victim’s Advocate: Yes, that’s correct, Your Honor.
Trial Court: Likewise, in this particular case, there was a $500
deductible which was absorbed, paid for, if you will, by Mr. Mader;
is that correct?
Victim’s Advocate: That’s correct.
Trial Court: All right. And the payments to Ms. Schalk-Miller or on
her behalf, as on the 27th day of February, 2009, totaled $12,897.27.
All of that restitution figure would be made payable to the victim of
crime office; is that correct? All right. All right. Ms. Martin, to the
best of your knowledge, is there any other restitution in this case?
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Case No. 13-10-02 and 13-10-03
Those are the ones we discussed in my office. I know the one’s
going to be ongoing. But other than that, any others?
Victim’s Advocate: No.
***
Trial Court: Defendant is ordered to make restitution in the amount
of $3,619.95 to the Charles Crane Agency. He is also to make
restitution in the amount of $500 to Mr. Mader. It is the expressed
intent of this Court that Mr. Mader be paid first before any amount is
paid to any insurance company. Likewise, the defendant is ordered
to pay the victim of crime $12,987.27.
***
He is to receive the appropriate jail credit. Likewise, he is to pay the
post release control, I assume is mandatory for five years, as well as
the consequences for violation of conditions of post release control
imposed by the parole board under Revised Code Section 2967.28.
Subsequently, the trial court sentenced Perkins to a ten-year prison term on Count
Two, with an additional three-year prison term on the firearm specification, to be
served consecutively to the ten-year prison term; a two-year prison term on Count
Three, to be served concurrently to the sentence imposed in Count Two; a 15-
month prison term on Count Four, to be served consecutively to the sentences
imposed in Counts Two and Three; a 15-month prison term on Count Five, to be
served concurrently with Count Four and consecutively to Counts Two and Three;
an 11-month prison term on Count Six, to be served concurrently with the
sentences imposed in Counts Four and Five and consecutively to the sentences
imposed in Counts Two and Three; and a two-year prison term on Count Seven, to
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Case No. 13-10-02 and 13-10-03
be served consecutively to the sentences imposed in all counts, for a total prison
term of 16 years and three months. Additionally, the trial court’s judgment entry
of sentence ordered restitution in the amount of $17,017.22, but did not state to
whom the restitution was to be paid.
{¶ 8} In December 2009, this court affirmed in part and reversed in part
the judgments of the trial court in State v. Perkins, 3d Dist. Nos. 13-09-14 and 13-
09-15, 2009-Ohio-6722, finding no error in the trial court’s limitation of Perkins’s
cross-examination of a witness, but finding that the trial court failed to set forth
the recipients of restitution in the judgment entry of sentence. We therefore
remanded to the trial court for a journalization of the restitution recipients.
{¶ 9} Subsequently, the trial court filed a nunc pro tunc judgment entry of
sentence specifying that Perkins pay restitution in the amount of $500 to Richard
Mader, $3,619.95 to the Charles Crane Agency, and $12,897.27 to the Ohio
Victim of Crime Compensation Program.
{¶ 10} In January 2010, the trial court filed a second nunc pro tunc entry
specifying that Perkins was convicted by a jury trial.
{¶ 11} It is from the trial court’s nunc pro tunc judgment entry of sentence
specifying restitution recipients that Perkins appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
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Case No. 13-10-02 and 13-10-03
The trial court erred when it amended the restitution order in
Mr. Perkin’s [sic] sentence on remand without holding a hearing, a
violation of his rights guaranteed by the Fifth and Fourteenth
Amendments to the United States Constitution.
Assignment of Error No. II
The trial court erred when it entered a restitution order
pursuant to Ohio Rev. Code § 2929.18(A)(1) designating an
insurance company as a recipient.
{¶ 12} Due to the nature of appellant’s arguments, we elect to address his
assignments of error together.
Assignments of Error Nos. I and II
{¶ 13} In his first assignment of error, Perkins argues that the trial court
erred in amending the restitution order by means of a nunc pro tunc entry and
without holding a hearing on restitution. Specifically, he contends that inserting
the recipients to the restitution order added a term of enforceability to the order,
which is beyond a nunc pro tunc’s limited purpose to correct clerical errors, and
that a hearing on restitution was required under the Fifth and Fourteenth
Amendments to the United States Constitution because he was being deprived of
his property interest.
{¶ 14} In his second assignment of error, Perkins argues that the trial court
erred in ordering restitution to an insurance company when such recipients are
prohibited under R.C. 2929.18(A)(1).
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Case No. 13-10-02 and 13-10-03
{¶ 15} A nunc pro tunc entry is the procedure used to correct clerical errors
in judgment entries, and the trial court retains jurisdiction to correct these errors.
State v. Yeaples, 180 Ohio App. 3d 720, 2009-Ohio-184, ¶ 15. See also Roth v.
Roth (1989), 65 Ohio App.3d 768, 771; State v. Powell, 3d Dist. No. 10-07-12,
2008-Ohio-1012, ¶ 8. “The term ‘clerical mistake’ refers to a mistake or omission,
mechanical in nature and apparent on the record, which does not involve a legal
decision or judgment.” State v. Brown (2000), 136 Ohio App.3d 816, 819-820,
citing Dentsply Internatl., Inc. v. Kostas (1985), 26 Ohio App.3d 116, 118. “The
purpose of nunc pro tunc orders * * * is to officially record actions that were
actually taken, but not duly recorded.” State v. Arnold, 2d Dist. No. 22856, 2009-
Ohio-3636, ¶ 56. Moreover, a trial court may correct its omission of a restitution
order in its sentencing entry through the use of a nunc pro tunc entry when it
ordered restitution on the record at sentencing but failed to include it in the
entry. See State v. Roach, 2d Dist. No. 23317, 2010-Ohio-556, ¶ 4.
{¶ 16} R.C. 2929.18 governs an order of restitution and provides:
(A) Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised
Code, the court imposing a sentence upon an offender for a felony
may sentence the offender to any financial sanction or combination
of financial sanctions authorized under this section or, in the
circumstances specified in section 2929.32 of the Revised Code,
may impose upon the offender a fine in accordance with that section.
Financial sanctions that may be imposed pursuant to this section
include, but are not limited to, the following:
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Case No. 13-10-02 and 13-10-03
(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. If the court imposes restitution, the court shall order
that the restitution be made to the victim in open court, to the adult
probation department that serves the county on behalf of the victim,
to the clerk of courts, or to another agency designated by the court.
* * * If the court decides to impose restitution, the court shall hold a
hearing on restitution if the offender, victim, or survivor disputes the
amount.
In light of the statute’s requirement that only a victim of the crime or survivor of
the victim be authorized to receive restitution, a trial court may not order
restitution to an insurance company for amounts expended to cover the victim of a
crime. State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, ¶ 29-31; State v.
Colon, 185 Ohio App.3d 671, 2010-Ohio-492, ¶ 6; State v. Moss, 186 Ohio
App.3d 787, 2010-Ohio-1135, ¶ 10.
{¶ 17} At the March 2009 sentencing hearing, the trial court stated on the
record that Perkins must pay restitution in the amount of $500 to the victim,
Richard Mader, $3,619.95 to the Charles Crane Agency, and $12,897.27 to the
Ohio Victim of Crime Compensation Program. However, the trial court failed to
include in its subsequent judgment entry of sentence that these parties were to
receive restitution, and only ordered restitution in a lump sum amount of
$17,017.22. After this court’s remand to the trial court to include the recipients of
restitution, the trial court filed a nunc pro tunc entry that was the same as the
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Case No. 13-10-02 and 13-10-03
original sentencing entry but included the specific restitution recipients, along with
the amount each was to be paid.
{¶ 18} Accordingly, because the trial court stated on the record at
sentencing the specific recipients of restitution and the amounts to be paid to each,
but failed to include the specific recipients in the sentencing entry, we find the
omission to be a clerical error and one that was properly corrected by a nunc pro
tunc entry. It is clear that the trial court meant to order restitution to the specific
parties, but mistakenly omitted them in the judgment entry. Moreover, we note
that Perkins never disputed the amount of restitution, which would have required
the trial court to hold a hearing on the matter as set forth under R.C.
2929.18(A)(1).
{¶ 19} However, we also note that the trial court improperly awarded
restitution to the Charles Crane Agency in the amount of $3,619.95. The
insurance agency was not a victim of Perkins’s crime, and, therefore, was not an
eligible restitution recipient pursuant to R.C. 2929.18(A)(1).3
3
The trial court also ordered Perkins to pay restitution to the Ohio Victims of Crime Compensation
Program, a reparations fund of the Ohio Attorney General promulgated under R.C. 2743.191. Such an
award has been found to be permissible by the Supreme Court of Ohio in State v. Bartholomew, 119 Ohio
St.3d 359, 2008-Ohio-4080.
However, this author contends that such an order constitutes an award of restitution to a third
party, which is clearly prohibited under the 2003 amendment to R.C. 2929.18(A).
R.C. 2929.18(A)(1) unequivocally states that the trial court may order restitution only to the
“victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic
loss.” This language cannot reasonably be interpreted to include either an insurance company or the Ohio
Victims of Crime Compensation Program. In Bartholomew, the Supreme Court relied on the second
sentence of R.C. 2929.18(A)(1), “(i)f the court imposes restitution, the court shall order that the restitution
be made to the victim in open court, to the adult probation department that serves the county on behalf of
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Case No. 13-10-02 and 13-10-03
{¶ 20} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in assignment of error number one, but having
found error prejudicial to the appellant herein in the particulars assigned and
argued in assignment of error number two, we affirm in part and reverse in part the
judgments of the trial court, and we remand this matter for further proceedings
consistent with this opinion.
Judgments affirmed in part
and reversed in part,
and cause remanded.
SHAW and PRESTON, JJ., concur.
the victim, to the clerk of courts, or to another agency designated by the court.” The court then concluded
that the reparations fund was another agency designated by the court! Bartholomew, 119 Ohio St.3d 359,
at ¶ 8, 11-12. The court chose to ignore the necessary condition precedent that the trial court must first
(and only) order the restitution to a victim or the victim’s survivor. I would also note that if a court ordered
payment to the Clerk or Adult Probation Department, or any other agency designated by the court, it would
be only as a collection mechanism, not as the recipient of the restitution.
Furthermore, the Supreme Court also relied on R.C. 2743.72(E) as specifically authorizing
payment to the reparations fund. However, since R.C. 2743.72(E) predated the amendment to R.C.
2929.18(A), I would find that the later amended statute controls.
This author suggests that the Supreme Court has interpreted the statute as it wishes it to read, not
as the legislature drafted it.
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