State v. Shaffer , 2009 Ohio 4804 ( 2009 )

[Cite as State v. Shaffer, 2009-Ohio-4804.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-09-06
v.
ANGEL ALLISON SHAFFER,
aka ANGEL ALLISON FREELAND, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 08-CR-0089
Judgment Reversed and Cause Remanded
Date of Decision: September 14, 2009
APPEARANCES:
Allison Boggs for Appellant
Melissa A. Chase for Appellee
Case No. 14-09-06
PRESTON, P.J.
{¶1} Defendant-appellant, Angel Allison Shaffer (hereinafter “Shaffer”),
appeals the Union County Court of Common Pleas’ judgment entry of sentence.
For the reasons that follow, we reverse.
{¶2} On July 16, 2008, the Union County Grand Jury indicted Shaffer on
four counts, including: count one (1) of aggravated theft in violation of R.C.
2913.02(A)(1), (B)(2), a third degree felony; count two (2) of identity fraud in
violation of R.C. 2913.49(B)(1), (I)(2), a second degree felony; and counts three
(3) and four (4) of forgery, violations of R.C. 2913.31(A)(3), (C)(1)(a), (c)(iii),
both second degree felonies. (Doc. No. 1).
{¶3} Shaffer entered a plea of not guilty to each count in the indictment at
the August 22, 2008 arraignment. (Doc. No. 6). The trial court released Shaffer on
a recognizance bond, and a scheduling conference was set for October 2, 2008.
(Id.). Shaffer, however, failed to appear for the scheduling conference so the trial
court revoked Shaffer’s bond and issued a capias order for her arrest. (Doc. No.
19).
{¶4} A jury trial was scheduled for December 18, 2008, but, on December
15, 2008, Shaffer signed an entry withdrawing her previously tendered not guilty
plea and entering a plea of guilty to counts one and two of the indictment. (Doc.
Nos. 23, 48). The State agreed to dismiss counts three and four. (Doc. No. 48).
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The trial court accepted Shaffer’s change in plea, dismissed counts three and four
of the indictment, and referred the matter for a pre-sentence investigation (PSI)
report. (Id.).
{¶5} On March 3, 2009, the trial court sentenced Shaffer to three (3) years
imprisonment on count one and five (5) years imprisonment on count two. (Doc.
No. 61). The trial court ordered that the terms be served concurrently for a
combined total of five (5) years. (Id.). The trial court further ordered that Shaffer
pay all costs of prosecution, court appointed counsel fees—including $500.00 in
reimbursement to Union County for costs of providing indigent counsel—, R.C.
2929.18(A)(4) fees, and restitution to the victim, Fred Shaffer, in the amount of
$50,433.00. (Id.).
{¶6} On March 31, 2009, Shaffer filed a notice of appeal from the trial
court’s judgment entry of sentence. (Doc. No. 67). On April 23, 2009, Shaffer
filed a motion to suspend further execution of her sentence in the trial court, but
said motion was denied. (Doc. Nos. 72, 75). Shaffer now appeals raising one
assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT ORDERED
RESTITUTION WITHOUT ESTABLISHING THE ACTUAL
FINANCIAL LOSS TO THE VICTIM AND FURTHER
ERRED WHEN IT ORDERED THE PAYMENT OF COURT
COSTS, INDIGENT COUNSEL FEES ALONG WITH THE
RSETITUTION [SIC] WITHOUT DETERMINING
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WHETHER APPELLANT HAD A PRESENT OR FUTURE
ABILITY TO PAY THESE COSTS.
{¶7} In her sole assignment of error, Shaffer argues that the trial court
erred in ordering restitution without holding a full and separate hearing to
determine the actual amount of financial loss to the victim. Shaffer further argues
that the trial court erred when it ordered her to pay restitution, court costs, and
indigent counsel fees without first determining whether she had a present or future
ability to pay such costs.
{¶8} The State argues that a full hearing was not necessary to determine
the actual loss to the victim since the trial court had a certified copy of the civil
judgment entry in favor of the victim, Fred Shaffer, and against Shaffer—who was
a third-party defendant in the related civil case. As such, the State argues that a
full hearing to determine the amount of restitution was not required, because this
issue had already been fully litigated in the related civil proceeding, was never
appealed, and is now res judicata. The State further argues that the trial court is
required to assess costs, including counsel fees, against indigent defendants
pursuant to R.C. 2947.23(A)(1) without regard to the defendant’s ability to pay.
Furthermore, the State argues that there is evidence upon which the trial court
could have concluded that Shaffer had a future ability to pay these costs; and
therefore, the trial court did not err in ordering the payment of costs and
restitution.
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{¶9} We review a trial court’s decision to impose restitution under abuse
of discretion standard of review. 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. Likewise, we review a trial court’s determination of the defendant’s ability to
pay restitution under an abuse of discretion standard. State v. Alvarez, 3d Dist. No.
4-08-02, 2008-Ohio-5189, ¶27, citing State v. Brewer (Jan. 28, 1998), 3d Dist. No.
2-97-20, at *3; State v. Horton (1993), 85 Ohio App.3d 268, 619 N.E.2d 527;
State v. Myers, 9th Dist. No. 06CA0003, 2006-Ohio-5958, ¶12. An abuse of
discretion is more than an error of law; rather, it suggests that the trial court’s
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. “[T]he 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.”
State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725, ¶20,
quoting State v. Policaro, 10th Dist. No. 06AP-913, 2007-Ohio-1469, ¶7, citing
State v. Sommer, 154 Ohio App.3d 421, 2003-Ohio-5022, 797 N.E.2d 559; State v.
Gears (1999), 135 Ohio App.3d 297, 300, 733 N.E.2d 683.
{¶10} At the time of Shaffer’s offenses—on or about March 22-29, 2009—
R.C. 2929.18 provided, in pertinent part:
(A) Except as otherwise provided in this division and in addition
to imposing court costs pursuant to section 2947.23 of the
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Revised Code, the court imposing a sentence upon an offender
for a felony may sentence the offender 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. * * * 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, 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.
S.B. 17, eff. 9-30-08 (emphasis added); (Doc. No. 1); State v. Kanniard, 3d Dist.
No. 9-07-21, 2008-Ohio-518, ¶17 (appellate court considers the version of R.C.
2929.18 in effect when the offense was committed). See also, State v. Kreischer,
109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶¶8-13 (applying version
of R.C. 2929.18(A) that was in effect at the time of the offense).
{¶11} During the State’s preliminary remarks at the March 3, 2009
sentencing hearing, the State requested that Shaffer be ordered to pay restitution in
the amount of $50,433.00 to the victim. (Mar. 3, 2009 Tr. at 6). This amount was
determined from the judgment entry in favor of the victim and against Shaffer in
the related civil case. (Id.); (Id. at 44-45); (State’s Ex. 2). At the conclusion of the
State’s opening statement, the prosecutor asked, “[a]re we in agreement on the
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restitution figure?” (Mar. 3, 2009 Tr. at 10). Defense counsel responded, “I’d like
to argue the point. I’ll agree that your exhibit, however, is what was ordered out
of the civil case.” (Id.). The prosecutor, then, asked defense counsel whether he
had “other evidence,” presumably to rebut the figure provided by the State. (Id.)
At this point, the trial court stated, “[l]ets let him present the evidence when it’s
his turn,” to which the prosecutor agreed and called the victim to the stand. (Id.).
{¶12} The victim, the defendant’s former husband Fred Shaffer
(hereinafter “Fred”), testified, in relevant part, that he obtained a civil judgment
against Shaffer in the amount of $50,443.14 for the amount of money he lost as a
result of Shaffer’s actions. (Id. at 13, 18-19); (State’s Ex. 2). After the prosecution
finished its direct examination of Fred, the following dialogue occurred:
THE COURT: Am I to understand that Exhibit A [sic] is joint --
agreed to be admitted? I understand you want to argue about it,
but am I to understand that there’s no argument as to whether
or not it’s to be admitted?
MR. HORD: It’s a certified copy. It’s self-authenticating.
MR. WOLFE: Appears to be genuine, your Honor.
THE COURT: So the answer’s yes?
MR. WOLFE: Yes, your Honor.
(Mar. 3, 2009 Tr. at 25). On cross-examination, defense counsel questioned Fred
about whether or not any of his prior loan obligations were now satisfied as a
result of Shaffer’s conduct. (Id. at 26-31). The pertinent portion of that testimony
is as follows:
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Q: * * * Mr. Shaffer, isn’t it a fact that, I mean, despite all the
wrongdoing Angel engaged in to put your son up to this
refinance, that out at that closing there were many of these debts
there were paid off?
A: Yeah. At the time I didn’t know it. When she done this, I
didn’t know she done it.
Q: Now, are there still debts out there that were not paid off at
the -- out of the wrongful refinance?
A: Well, at Huntington National Bank where I thought I had
some money, they’re still owed $3,100. She was caught kiting
among the banks. I went in and talked at Huntington National, I
went in and talked to National City and they had told me that
they realized it wasn’t me. * * * they said Mr. Shaffer must not
know what’s going on because they got her on tape at trying to
deposit large amounts of checks. And they caught her -- what
the word is called kiting.
Q: Let me ask you a different question here, Mr. --
A: Yeah. I know where you’re getting to about stuff that ain’t
paid off. I’m still fighting credit card debts that she had rang up
that I did not create.
Q: But it is a fact that the existing first and second mortgages on
the property, those were paid off out of the wrongful refinance,
is that true?
A: Well, the paperwork that I happened to see, yes, you’re right.
She paid that off. But then in 28 days she ran it up another
$45,000 in 28 days.
Q: Ran what up, sir?
***
A: The home equity line of credit.
Q: So that there was a new home equity line of credit?
A: Instead of them closing the home equity line of credit down
like it should have been done, they allowed her to go in and write
checks for another $45,000 in 28 days.
Q: Was your -- was your four-wheeler paid off out of the
refinance?
A: Now, that I don’t know. You see, I had money in my savings
account. She brought me the cash that supposedly came from
the savings. She said specifically come from the savings.
Q: So you don’t --
A: I did not know nothing about Chase.
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Q: Was the four-wheeler paid off?
A: The four-wheelers were paid in cash, sir.
Q: Okay. And that was an obligation that was in your name up
to that point, is that right?
A: The bikes were in my name, yes, sir.
Q: Was it about $9,000?
A: Roughly, yes. And I had over that in my account.
Q: And then did you have a camper that [sic] about 3,000 was
owed on that was paid out of this refinance?
A: Yes, I did.
Q: And a truck that was paid off --
A: Now, the truck was paid out of my savings account. It was
supposed to have been.
Q: Did you do it or somebody else?
A: No. I had her walk into the bank. I said take enough out and
I said pay my truck off because I had got a bonus check from
where I worked and it was practically enough to pay my truck
off.
Q: Now, did you ever go back and look at the savings account to
see if the truck payoff was taken out of there?
A: No, I did not. I did not do that.
Q: You don’t know whether 6,000 was taken out of your
savings?
A: Well, there’s a lot of stuff I don’t really know.
Q: Is it possible --
A: All I know at one time I had money in the bank account and a
lot of the stuff that took place I never even knew that happened.
That’s all I can tell you.
Q: Well, is it a fact that the truck is now paid off?
A: Well, yeah.
Q: And that you don’t know where that money came from?
A: Well, supposedly the money was supposed to come out of my
savings. Now, if you’re trying to get me to say that it came from
this other, I can’t answer that for you because I don’t know.
***
Q: Now, sir, have you looked -- after the fact, have you gone
back and looked at the closing statement out of this wrongful
refinance like where it talks about all the monies that were paid
out at the closing?
A: I seen that. Yes, I have. But was I aware of it? No. I wasn’t.
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Q: But do you now agree that there were many things that were
paid off out of the refinance that she did.
***
A: Yeah. I guess so. I’d have to say there was.
Q: And those are now things that you don’t have to pay?
***
A: If that’s how you want to put it.
***
Q: And you had a red car that was paid off to the tune of
$1,500?
A: A red car?
Q: Angel’s car.
A: I don’t know nothing about that. That was her car. She told
me -- she told me specifically that her mother gave her the
money for that car.
***
Q: Now, did you and Angel take some trips to West Virginia
after this wrongful refinance was done?
A: Yes. I went to West Virginia.
Q: And did she give some money toward the expenses for those
trips?
***
A: She had some money. But there again, she said this was
money that her mother had given her is what she had said.
***
Q: So you might have benefited from some of these monies that
she took out in the refinance?
***
A: The truth of the matter is if it happened, I did not know
about it. It was wrongfully.
(Id.).
{¶13} Fred was the only witness at the sentencing hearing, and following
his testimony defense counsel stated its recommendations to the trial court, in
relevant part, as follows:
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MR. WOLFE: * * * I’d also like to let the Court know that I
have received State’s exhibits on the judgment out of the civil
case in the amount of $50,443.14. And that does appear to be a
judgment awarded to Fred Shaffer against Angel Shaffer.
However, I’m told by my client and it’s also evident from the
Court’s records that other than giving a deposition, Angel didn’t
really participate in the litigation. So this is essentially a default
judgment and it’s unclear to me how this figure is arrived at, at
least from the exhibit. What I have looked at, your Honor, and I
tried to get into a little bit with Mr. Shaffer was the HUD One
settlement statement that’s contained in the Court’s file. And
when you look at that, it appears that the money that was paid
out of the closing to the defendant was $6,190.84. The remaining
monies were paid to various creditors. And I don’t know about
what Mr. Shaffer said about the home equity credit line being
recharged up after the fact. But at least what’s on the HUD One
indicates that she took $6,190.84 at the closing. And I’m advised
by Angel that a lot of that money was spent when the two of
them took trips to West Virginia together. So, I don’t know
what the Court would feel is just regarding the expenditure of
those monies. But I did take a look at Revised Code 2929.18
regarding financial sanctions. And in Section A 1 it talks about
the Court needing to order restitution in an amount based on the
victim’s economic loss. And so if we go by the HUD One and we
look at those obligations that were paid off, I don’t see how those
can be a loss. It’s also unclear to me what’s contained within the
$50,000 order out of the civil case. So Angel is ready, willing,
and able to make restitution for the actual loss to the victim.
That (INAUDIBLE) figure just because I don’t know how that
was arrived at or whether that’s a just order to be made.
(Id. at 42-43). Thereafter, the State made its closing arguments, in relevant part,
as follows:
MR. HORD: * * * Yes, there is a settlement statement. But
quite frankly, that settlement statement is signed by allegedly
Fred Shaffer, but it was Brian Shaffer who signed it. There is in
fact and we’ve indicated there were payments that came out of it
to the tune of ninety-nine thousand approximately $656, $657
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that would have been relative to prior mortgages. Now, the total
amount of that refinance was $140,250. It does not take a rocket
scientist to figure out that there’s over $40,000 there alone that
are relative to this. What the 2929.18 talks about is restitution
for the financial loss. The loss that Mr. Shaffer has encountered
as a result of this was litigated significantly. It was not a default
judgment. The defendant chose for whatever reason to be pro
se. There is -- was extensive discovery and pleadings in that case
which ultimately culminated in the certified entry that has been
provided to the Court. Now, if I was going to prepare [sic] the
two, how much weight do I give the HUD One closing statement
that was actually part of the litigation where the parties involved
actually litigated it in this court and then resolved it with the fact
that the defendant in that case, a civil defendant, owed the
plaintiff defendant Fred Shaffer the amount of 50,000 –
approximately $50,433. That is clear. That was the full civil
litigation of it. How she chose to participate is irrelevant. The
fact of the matter is it’s a certified entry. There’s no other
evidence. The Court can take judicial notice of its ruling. As far
as the victim Fred Shaffer, he was very clear.
(Id. at 44-45). No further discussion was had regarding the amount of restitution,
and the trial court, thereafter, ordered that Shaffer pay the victim $50,433.00 in
restitution. (Id. at 53).
{¶14} On the basis of the record before us, we cannot conclude that the
trial court abused its discretion in ordering that Shaffer pay the victim restitution
in the amount of $50,433.00. To begin with, we reject Shaffer’s argument that the
trial court failed to conduct a hearing on restitution as required by R.C.
2929.18(A)(1). In fact, what is clear from the testimony presented is that the trial
court did consider evidence relating to the appropriate amount of restitution—that
Shaffer failed to offer evidence on this issue is irrelevant. Shaffer, however,
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argues that she was entitled to a “full” and “separate” hearing on the issue of
restitution once she disputed the amount of restitution. R.C. 2929.18(A)(1)’s plain
language imposes no such requirements; rather the plain language requires only
that the trial court “shall hold a hearing.” As this Court has noted before, trial
courts may hold the restitution hearing as part of the sentencing hearing under
certain circumstances. Didion, 2007-Ohio-4494, at ¶16.
{¶15} Although this Court in dicta may have implied in other cases that
R.C. 2929.18(A)(1) required a separate hearing, we believe the facts and
circumstances here are such that the trial court did not abuse its discretion by
failing to hold a separate hearing. See, e.g., Griffus, 2009-Ohio-304, at ¶¶10-11.
To start with, defense counsel made no request for either a continuance or a
separate hearing. Defense counsel participated at the hearing as if the court was
holding a restitution hearing, questioning the victim regarding any benefits he may
have received from the fraudulent refinance and arguing as to the correct amount
of restitution. (Mar. 3, 2009 Tr. at 26-31, 42-43). Defense counsel should have
known—if defense counsel did not in fact know—that the amount of restitution
would be an issue at sentencing. (See, e.g., Restitution Reports filed Feb. 5 & Mar.
2, 2009, Doc. Nos. 51, 60). Defense counsel also indicated during the hearing that
Shaffer’s mother was present to testify but decided not to have her testify. (Id. at
40). Shaffer has not even asserted on appeal what, if any, evidence she would
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have produced at a separate hearing to refute the amount of the restitution ordered.
Furthermore, any alleged error was invited by the defendant’s participation,
without objection, in the combined sentencing/restitution hearing, and defendant
cannot take advantage of this alleged error on appeal. State v. Monnette, 3d Dist.
No. 9-08-33, 2009-Ohio-1653, ¶12, citing State v. Ransom, 3d Dist. No. 15-06-05,
2006-Ohio-6490, ¶14. For all these reasons, we find that Shaffer’s argument with
regard to the restitution hearing meritless.
{¶16} Having reviewed the entire record, we also find that the trial court’s
restitution order was supported by competent, credible evidence. Didion, 2007-
Ohio-4494, at ¶20, quoting Policaro, 2007-Ohio-1469, at ¶7, citing Sommer,
2003-Ohio-5022; Gears, 135 Ohio App.3d at 300. R.C. 2929.18(A)(1)
specifically states that, “* * * the court may base the amount of restitution it orders
on an amount recommended by the victim, the offender, a presentence
investigation, estimates or receipts indicating the cost of repairing or replacing
property, and other information * * *.” (Emphasis added). The victim, Fred
Shaffer, testified that State’s exhibit two was a civil judgment in his favor against
the defendant-appellant for $50,443.14 stemming from a civil lawsuit, which Fred
described as: “* * * more or less money that I had lost and what she has -- how
much she has costed me.” (Mar. 3, 2009 Tr. at 18-19). State’s exhibit two was
also entered into evidence. (Id. at 49). We cannot find that the trial court abused
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its discretion by ordering that Shaffer pay $50,433.00 in restitution, because the
trial court had competent, credible evidence in the record supporting this amount.
{¶17} With regard to whether $50,433.00 was “the amount of the
economic loss suffered by the victim,” Shaffer’s primary concern, the trial court
considered testimony presented through cross-examination that the victim had
benefited by Shaffer’s criminal acts since several of the loans for which he was
liable were paid off out of the fraudulent refinance. (Mar. 3, 2009 Tr. at 26-31);
R.C. 2929.18(A)(1). Ultimately, however, the trial court found the victim’s
testimony and the prior civil judgment to be more persuasive in determining the
amount of restitution. Generally speaking, “[e]valuating evidence and assessing
its credibility are the primary functions of the trier of fact, not an appellate court.”
Yuhasz v. Mrdenovich (1992), 82 Ohio App.3d 490, 492, 612 N.E.2d 763.
Throughout defense counsel’s cross-examination, the victim stated several times
that he could not be certain of where the monies came from to pay off his loan
obligations. (Mar. 3, 2009 Tr. at 26-31). In fact, with many of these liabilities, the
victim presumed that Shaffer, who was his wife at the time, was taking the money
out of his savings account according to his instruction. (Id.). Furthermore, Shaffer
failed to present evidence, aside from her cross-examination of the victim,
contrary to the amount of restitution ordered by the trial court. As we recently
noted, “* * * it is the responsibility of the parties to put forth the evidence they
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believe is relevant and necessary for a just decision. Each party tries his own case,
and the court reaches a decision based on the evidence that the parties have
presented * * *.” Dindal v. Dindal, 3d Dist. No. 5-09-06, 2009-Ohio-3528, ¶10,
citing Walls v. Walls (May 4, 1995), 4th Dist. No. 94-CA-849, at *5. The trial
court’s restitution figure was based upon the evidence presented at the hearing—
namely, the victim’s testimony and the civil judgment entry—and, as such, we
find no abuse of discretion.
{¶18} As to the dissent’s contention that the restitution order was
duplicitous or illogical given the civil judgment, we find this reason insufficient on
its face to merit a reversal of the trial court’s restitution order. Post at ¶24.
Furthermore, “[n]o financial sanction imposed under this section [e.g. restitution]
* * * shall preclude a victim from bringing a civil action against the offender.”
R.C. 2929.18(H). Since the victim is able to obtain a civil judgment based upon
the same economic loss calculated in a trial court’s restitution order, we fail to see
how the opposite—obtaining a restitution order based upon a related civil
judgment—is somehow impermissible. The dissent points to no rule of law
providing otherwise.
{¶19} Next, Shaffer argues that the trial court erred by ordering her to pay
costs and restitution without holding a hearing to determine if she had the present
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or future ability to pay such costs. We again disagree. In State v. Troglin, this
Court explained:
Under R.C. 2947.23, “[i]n all criminal cases, * * * the judge or
magistrate shall include in the sentence the costs of prosecution
and render a judgment against the defendant for such costs.”
R.C. 2947.23(A)(1). Thus, a court is required to impose the costs
of prosecution against convicted criminal defendants, regardless
of whether they are indigent. State v. Felder, 3d Dist. No. 9-04-51,
2005-Ohio-546, ¶6, citing State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, ¶ 8.
Conversely, R.C. 2929.19(B)(6) requires a trial court to consider
the offender’s present and future ability to pay before imposing
a financial sanction under R.C. 2929.18. The trial court is not
required to hold a hearing on the issue of financial sanctions,
and there are no express factors that the court must take into
consideration or make on the record. See, e.g., State v. Martin,
140 Ohio App.3d 326, 338, 2000-Ohio-1942. “The record should,
however, contain ‘evidence that the trial court considered the
offender’s present and future ability to pay before imposing the
sanction.’” State v. Culver, 160 Ohio App.3d 172, 186, 2005-
Ohio-1359, citing State v. Robinson, 3d Dist. No. 5-04-12, 2004-
Ohio-5346, at ¶17. Generally, R.C. 2929.19(B)(6) is satisfied
where a trial court considered a PSI, which typically contains
pertinent financial information, or where the transcript
demonstrates that the trial court at least considered a
defendant’s ability to pay.
3d Dist. No. 14-06-57, 2007-Ohio-4368, ¶¶37-38. With regard to costs, the trial
court was required to impose costs regardless of Shaffer’s indigent status. Id.With regard to Shaffer’s ability to pay, the victim testified at the sentencing
hearing that Shaffer was formerly employed as a manager of a McDonald’s
restaurant and earned around $10-11 per hour. (Mar. 3, 2009 Tr. at 22-23, 33).
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Furthermore, the PSI, which was reviewed by the trial court, reveals that Shaffer
worked at: McDonald’s from 1995 to October 2007, earning $12/hour; I-Force
from April 2008 to January 2009, earning $9/hour; and Scioto Industrial from
November 2008 to January 2009. (Mar. 3, 2009 Tr. at 51-52); (PSI at 15). The
PSI also provides information regarding Shaffer’s educational background and
finances. (PSI at 11, 15-16). Under these circumstances, we cannot conclude that
the trial court abused its discretion by ordering Shaffer to pay costs and restitution.
Alvarez, 2008-Ohio-5189, at ¶27, citing Brewer, 3d Dist. No. 2-97-20, at *3;
Horton, 85 Ohio App.3d 268; Myers, 2006-Ohio-5958, at ¶12.
{¶20} Next Shaffer argues that the trial court erred by imposing indigent
counsel fees without first determining whether she had a present or future ability
to pay such fees. We agree. R.C. 2941.51(D) provides the following pertinent
provision concerning indigent counsel fees: “* * * if the person represented has, or
reasonably may be expected to have, the means to meet some part of the cost of
the services rendered to the person, the person shall pay the county an amount that
the person reasonably can be expected to pay.” This Court has previously stated,
however, that:
[A]n indigent defendant may properly be required to pay his
attorney fees only after the court makes an affirmative
determination on the record in the form of a journal entry, that
the defendant has, or reasonably may be expected to have, the
means to pay all or some part of the cost of the legal services
rendered to him. The court must then enter a separate civil
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judgment for the attorney fees or any part thereof that the court
finds the defendant has the ability to repay.
State v. Johnson, 3d Dist. No. 16-03-09, 2004-Ohio-1513, ¶50, quoting Galion v.
Martin (Dec. 12, 1991), 3d Dist. No. 3-91-06; State v. Burns (Mar. 15,1999), 3d
Dist. No. 9-98-21, at *5-6; State v. White (Apr. 21, 1998), 3d Dist. Nos. 3-97-18,
3-97-19, at *6. The trial court sub judice failed to make an affirmative finding of
Shaffer’s present or future ability to pay indigent counsel fees in its journal entry
of sentence; and therefore, the trial court erred in assessing indigent counsel fees.
Accordingly, we must remand this matter for resentencing for the trial court to
assess indigent counsel fees, if it determines those are still appropriate, in
accordance with the procedures adopted by this Court in Galion v. Martin and its
progeny.
{¶21} Shaffer’s assignment of error is, therefore, sustained with regard to
the trial court’s imposition of indigent counsel fees and to that extent only.
{¶22} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW, J., concurs.
/jnc
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ROGERS, J., dissents.
{¶23} I respectfully dissent from the opinion of the majority on the issue of
restitution.
{¶24} I would first comment that I see no reason why this particular order
was granted. It appears clear from the record that the trial court was granting
restitution equal to and based on the previously granted civil judgment. If the civil
judgment was based on the same fraudulent conduct which gave rise to the case at
bar, which appears to be the State’s argument, that civil judgment would not be
dischargeable in bankruptcy. What benefit then is there to restating the judgment
as an order of restitution, which is simply another civil judgment?
{¶25} But the greater problem is the fact that we do not know the basis for
the award of damages in the civil judgment. R.C. 2929.18(A)(1) provides that the
trial court may order restitution in an amount based on the victim's economic loss.
There is insufficient evidence in this case to determine that the amount of the civil
judgment is limited to the victim’s economic loss.
{¶26} The majority comments that “[s]ince the victim is able to obtain a
civil judgment based upon the same economic loss calculated in a trial court’s
restitution order, we fail to see how the opposite – obtaining a restitution order
based upon a related civil judgment – is somehow impermissible.” To me the
distinction is obvious. A civil suit initiated after a criminal order of restitution
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may include more than economic loss and may include additional economic losses
not recognized in the order of restitution. Also, the order of restitution may be
considered as a setoff against the victim’s total damages so that the same damages
are not awarded twice.
{¶27} When an order of restitution is requested subsequent to a civil award
of damages, is the defendant permitted to raise the same defenses as in a civil
action? If new or additional economic losses are requested, is the defendant
permitted to argue that, since the new claims were not included in the civil case,
they were waived? Would the issue of damages be res judicata?
{¶28} In this case, the State requested an order of restitution equal to the
civil judgment, thereby simply duplicating the award. This is an obvious abuse of
process and waste of judicial resources. When execution of these judgments is
attempted, more judicial resources will be wasted on the efforts to enforce and/or
defend two judgments based on the same injuries.
{¶29} Because of the question of whether the civil judgment is limited to
the victim’s economic loss, and because there is no logical reason for restating the
civil judgment as an order of restitution, I would sustain the assignment of error as
to the order of restitution.
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