State v. McMullen , 2015 Ohio 3741 ( 2015 )

[Cite as State v. McMullen, 2015-Ohio-3741.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140562
TRIAL NO. B-1306752
Plaintiff-Appellee, :
O P I N I O N.
vs. :
PATRICIA L. MCMULLEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 16, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond L. Katz, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Defendant-appellant Patricia L. McMullen appeals from a conviction
for theft under R.C. 2913.02(A). We find no merit in her two assignments of error
and we affirm the trial court’s judgment.
{¶2} McMullen was the property manager of a large apartment complex.
She was indicted for theft after she collected rent payments from multiple tenants,
but failed to forward those payments to the property owners. According to the
property owners, McMullen stole $101,290 from them, although she disputed that
amount.
{¶3} Under the terms of a plea agreement, McMullen pleaded guilty to theft
and agreed to pay $40,000 in restitution to the property owners. The trial court
sentenced her to three years of community control and ordered her to pay the agreed
amount of restitution. This appeal followed.
{¶4} In her first assignment of error, McMullen argues that the trial court
erred in ordering restitution without determining her ability to pay. As a general
rule, R.C. 2929.19(B) requires a sentencing court, before imposing a financial
sanction, to consider the offender’s present and future ability to pay. State v.
Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 30. The court need
not hold a hearing, consider any factors, or make any specific findings on the record.
But the record must contain some evidence showing that the court considered the
offender’s ability to pay. Id. at ¶ 30-31.
{¶5} But courts have held that when the defendant agrees to pay restitution
as part of a plea agreement, the agreement serves as a sufficient basis to support the
trial court’s order and precludes the defendant from complaining about it on appeal.
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OHIO FIRST DISTRICT COURT OF APPEALS
See State v. St. Martin, 8th Dist. Cuyahoga No. 96834, 2012-Ohio-1633, ¶ 8; State v.
Coburn, 6th Dist. Sandusky No. S-09-006, 2010-Ohio-692, ¶ 22. “When the
agreement to pay restitution to the victim is part and parcel of a plea agreement,
there is no reversible error in imposing a financial sanction, without first
determining the defendant’s ability to pay.” Coburn at ¶ 22.
{¶6} The record shows that the parties specifically negotiated the amount of
restitution as part of the plea agreement. The victim claimed losses of over
$100,000, but under the agreement, McMullen was to pay restitution of $40,000.
The trial court specifically inquired as to whether McMullen understood that part of
the agreement, and she stated that she did. Though she disputed the owners’
original assessment of damages, she never objected to paying $40,000 in restitution
and cannot now raise the issue for the first time on appeal. Consequently, we
overrule McMullen’s first assignment of error.
{¶7} In her second assignment of error, McMullen contends that her plea
was not knowingly, intelligently, and voluntarily made. She argues that she was not
aware of the state’s evidence against her and that she was coerced into agreeing to
the amount of restitution. This assignment of error is not well taken.
{¶8} The record shows that the trial court strictly complied with the
provisions of Crim.R. 11(C) relating to the constitutional rights that McMullen was
waiving and substantially complied in all other respects. See State v. Ballard, 66
Ohio St. 2d 473, 475-478, 423 N.E.2d 115 (1981); State v. Fields, 1st Dist. Hamilton
No. C-090648, 2010-Ohio-4114, ¶ 8. The court conducted a meaningful dialogue to
ensure that McMullen’s plea was made knowingly, intelligently, and voluntarily. See
Fields at ¶ 10.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} McMullen never questioned the agreed amount of restitution or
expressed any misgivings about the plea agreement. To the contrary, the record
shows that the parties engaged in active negotiation about the amount of restitution.
Under the circumstances, we cannot hold that her plea was not knowingly,
intelligently, and voluntarily made. Consequently, we overrule McMullen’s second
assignment of error and affirm the trial court’s judgment.
Judgment affirmed.
H ENDON , P.J., and D E W INE , J., concur.
Please note:
The court has recorded its own entry this date.
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