State v. Downey , 2016 Ohio 5778 ( 2016 )

[Cite as State v. Downey, 2016-Ohio-5778.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
CASE NO. CA2016-02-006
Plaintiff-Appellee, :
OPINION
: 9/12/2016
- vs -
:
MARK E. DOWNEY, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2006-CR-0747
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
W. Kenneth Zuk, 3487 Saint Annes Turn, Cincinnati, Ohio 45245, for defendant-appellant
M. POWELL, P.J.
{¶ 1} Defendant-appellant, Mark Downey, appeals a decision of the Clermont County
Court of Common Pleas denying his motion to modify or terminate restitution.1
{¶ 2} Following his guilty plea to one count of aggravated vehicular homicide and one
count of vehicular assault, appellant was sentenced in 2006 to nine years in prison. The trial
1. Pursuant to Loc.R. 6(A), we sua sponte remove this appeal from the accelerated calendar.
Clermont CA2016-02-006
court further ordered appellant to pay restitution to the victims of his crime in the aggregate
sum of $133,699. The trial court's restitution order did not specify payment terms. Appellant
did not appeal his sentence. Appellant served his prison sentence and was released in
August 2015. Appellant is required to serve three years of postrelease control as part of his
original sentence.
{¶ 3} In January 2016, without reference to applicable statutory or other legal
authority, appellant moved the trial court "for an Order modifying or terminating the restitution
order entered in the case in the original sentencing entry," on the ground he is permanently
disabled and unable "to pay any sum at all." On January 6, 2016, the trial court denied the
motion, finding that appellant's claim was barred by the doctrine of res judicata. The trial
court further found that appellant "was not entitled to a hearing on this matter and none will
be granted."
{¶ 4} Appellant now appeals and raises two assignments of error which will be
addressed together.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT ERRED IN FINDING THAT A RESTITUTION ORDER IN A
CRIMINAL SENTENCE IS RES JUDICATA AND NOT SUBJECT TO MODIFICATION
UNDER ANY CIRCUMSTANCE.
{¶ 7} Assignment of Error No. 2:
{¶ 8} THE TRIAL COURT ERRED IN FINDING THAT AN OFFENDER WHO SEEKS
TO MODIFY A SENTENCING ORDER UNDER O.R.C. §2929.18(A)(1) AND (E) IS NOT
ENTITLED TO A HEARING ON THE MERITS OF A MOTION TO MODIFY.
{¶ 9} On appeal, for the first time, appellant argues that R.C. 2929.18(A)(1) and (E)
allow offenders to seek relief from a restitution order, and thus, the trial court erred in denying
his motion to modify or terminate restitution on the basis of res judicata and without a
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hearing. Appellant asserts he "does not contend there was any error at all in the original
sentence." Rather, appellant asserts there has been a substantial change of circumstances
since the 2006 restitution order making it impossible for him to comply with the restitution
order, and therefore, he is entitled to relief under R.C. 2929.18(A)(1) and (E).
{¶ 10} "The sentence imposed on an offender for a felony may include financial
sanctions, including restitution in an amount based on the victim's economic loss." State v.
Danison, 105 Ohio St.3d 127, 2005-Ohio-781, ¶ 6. "Because an order of restitution is
'indisputably part of the sentence,' an order of restitution is a final appealable order." State v.
Getz, 12th Dist. Butler No. CA2015-08-159, 2016-Ohio-3397, ¶ 11; Danison at ¶ 8.
{¶ 11} R.C. 2929.18(A)(1) governs the manner in which a trial court may award
restitution. The statute provides that if the trial court imposes restitution, the court must
determine the amount at sentencing. Once the trial court determines the amount of
restitution at sentencing, the defendant is given the opportunity to dispute the amount. If the
amount is disputed, the trial court must hold a hearing to establish the appropriate amount of
restitution. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, ¶ 22. If the defendant does
not challenge the amount of restitution, no hearing is necessary and the award of restitution
becomes final and appealable. Getz at ¶ 16.
{¶ 12} R.C. 2929.18(A)(1) also provides that "the offender may file a motion for
modification of the payment terms of any restitution ordered. If the court grants the motion, it
may modify the payment terms as it determines appropriate."
{¶ 13} R.C. 2929.18(E) provides that "[a] court that imposes a financial sanction upon
an offender may hold a hearing if necessary to determine whether the offender is able to pay
the sanction or is likely in the future to be able to pay it."
{¶ 14} We find that the trial court did not err in denying appellant's motion to modify or
terminate restitution without a hearing.
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{¶ 15} "In matters of criminal sentencing, the trial court does not have inherent power
to act, but has only such power as is conferred by statute or rule." State v. Purnell, 1st Dist.
Hamilton No. C-060037, 2006-Ohio-6160, ¶ 10. In Purnell, the First Appellate District
considered whether a trial court has jurisdiction under R.C. 2929.18(A)(1) to increase, in a
post-sentence order, the amount of restitution it had originally imposed at sentencing. The
appellate court held that the trial court had "no statutory authority to increase the restitution
amount" after imposing sentence: "There is no statutory authority for the trial court to
exercise continuing jurisdiction to modify the amount of a financial sanction. It can, however,
modify the 'payment terms of any restitution[.]'" Id. at ¶ 9-10. Subsequently, and relying
upon Purnell, the Fifth Appellate District held that a trial court has no jurisdiction, after it
journalizes the offender's sentence, to decrease the amount of restitution originally imposed
at sentencing. State v. Corbitt, 5th Dist. Richland No. 2011-CA-107, 2012-Ohio-3795, ¶10-
18.
{¶ 16} We recently addressed whether a defendant can request a restitution hearing
at any time under R.C. 2929.18(A)(1) and whether a trial court retains jurisdiction over its
restitution orders. Getz, 2016-Ohio-3397. Relying upon Purnell and Corbitt, we held that a
trial court "[does] not possess continuing jurisdiction under R.C. 2929.18(A)(1) to [either] hold
a restitution hearing to reconsider the imposed financial sanctions" or to modify the amount
of restitution after sentencing. Getz at ¶ 13. See also State v. Sekic, 8th Dist. Cuyahoga No.
95679, 2011-Ohio-4809, ¶ 47 (finding there is no statutory authority allowing a trial court to
exercise continuing jurisdiction to modify the amount of restitution after sentencing).
{¶ 17} In the case at bar, appellant filed a motion to modify or terminate restitution,
arguing he was financially unable to pay any sum at all. The motion did not state that it was
pursuant to R.C. 2929.18(A)(1) and (E). As phrased, appellant's motion seemingly seeks to
decrease or terminate the amount of restitution. The trial court obviously construed
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appellant's motion in this manner. However, as stated above, a trial court does not have
continuing jurisdiction under R.C. 2929.18(A)(1) to increase, decrease, or otherwise modify
the amount of restitution after sentencing. While R.C. 2929.18(A)(1) allows an offender to
"file a motion for modification of the payment terms of any restitution ordered," the statute
does not, contrary to appellant's assertion, allow an offender's post-sentence motion to
modify the amount of restitution. See State v. Naylor, 2d Dist. Montgomery No. 23459, 2010-
Ohio-988 (there is no mechanism in place under R.C. 2929.18[A][1] for a defendant's post-
sentence motion to modify the amount of restitution).
{¶ 18} A motion to modify or terminate the amount of restitution is not permitted under
R.C. 2929.18(A)(1). State v. Stechschulte, 11th Dist. Lake No. 2013-L-027, 2014-Ohio-4291,
¶ 23. Because the sentencing entry did not specify payment terms and appellant's motion
did not seek an order relating to payment terms pursuant to R.C. 2929.18(A)(1), the only
thing that was subject to modification or termination was the amount of restitution ordered.
Therefore, the trial court did not err in construing the motion as one to modify or terminate the
amount of restitution and in denying the motion without a hearing.2
{¶ 19} Furthermore, in contrast to the R.C. 2929.18(A)(1) aspects of this case,
appellant's claim that he is entitled to a hearing pursuant to R.C. 2929.18(E) "to determine
whether [he] is able to pay [restitution] or is likely in the future to be able to pay it" is barred
by res judicata. R.C. 2929.18(E) provides for a hearing at the time of sentencing when the
trial court originally considers whether to order restitution as part of the sentence. R.C.
2929.18(E) does not invest the trial court with continuing jurisdiction to revisit a restitution
order based upon an offender's changing financial circumstances. If appellant believed the
2. We are mindful we have affirmed the trial court's denial of appellant's motion to modify or terminate
restitution, but for different reasons than those set forth in the trial court's January 6, 2016 entry. However, an
appellate court must affirm a trial court's judgment if upon review any valid grounds are found to support it. See
State v. Horton, 12th Dist. Clermont No. CA2000-04-024, 2000 WL 1875803, *4, fn. 1 (Dec. 26, 2000). We are
also mindful that appellant did not direct the trial court's attention to R.C. 2929.18(A)(1) and (E).
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trial court erred by not affording him a R.C. 2929.18(E) hearing or in its determination of
appellant's ability to pay restitution pursuant to R.C. 2929.18(E), he should have taken a
direct appeal of that issue. Appellant did not. Therefore, any matter related to R.C.
2929.18(E) is barred by res judicata.
{¶ 20} Appellant's first and second assignments of error are overruled.
{¶ 21} Judgment affirmed.
S. POWELL AND PIPER, JJ., concur.
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