State v. Craig , 2023 Ohio 3777 ( 2023 )

[Cite as State v. Craig, 2023-Ohio-3777.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-230112
TRIAL NOS. 22TRC-16348A, C
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
HENRY CRAIG, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, Vacated in Part,
and Cause Remanded
Date of Judgment Entry on Appeal: October 18, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Victoria L. Lowry, Assistant Prosecuting Attorney, for Plaintiff-
Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Presiding Judge.
{¶1} Following his involvement in an automobile accident with a vehicle
driven by Ron Mack, defendant-appellant Henry Craig pled guilty to operating a
vehicle while under the influence of alcohol and/or drugs (“OVI”) in violation of R.C.
4511.19(A)(1)(a) and no contest to the offense of driving left of center in violation of
Cincinnati Municipal Code 506-73.
{¶2} After conducting a hearing to determine the amount of restitution owed
to the victim of the offense, the trial court sentenced Craig. For the OVI offense, the
court imposed a sentence of 180 days in jail, with 170 of those days suspended and the
remaining ten to be served at the Community Alternative Sentencing Center. The court
additionally placed Craig on community control for two years, with the conditions that
he not consume alcohol and undergo random drug screens, imposed a license
suspension, and ordered him to pay $5,000 in restitution to Ron Mack. For the offense
of driving left of center, the trial court imposed a $100 fine and court costs.
{¶3} The sentencing entries issued by the trial court were in accordance with
the sentences imposed in open court with two exceptions. First, the sentencing entry
for the OVI offense reflected the imposition of a $400 fine. Second, the sentencing
entry for the offense of driving left of center reflected that Craig was sentenced to two
years of community control.
{¶4} Craig appeals his convictions. In three assignments of error, he
challenges the trial court’s imposition of restitution, argues that his no-contest plea
was not entered knowingly, intelligently, and voluntarily, and challenges the sentences
imposed. Following our review of the record, we find merit to each of Craig’s
arguments. We hold that the trial court abused its discretion in awarding restitution
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OHIO FIRST DISTRICT COURT OF APPEALS
in the amount of the cost to repair the vehicle without determining the value of the
vehicle immediately prior to the accident. It also failed to comply with Traf.R. 10(D)
when accepting Craig’s no-contest plea to driving left of center and failed to impose
the $400 fine for the OVI offense in open court.
{¶5} We accordingly vacate Craig’s no-contest plea to the offense of driving
left of center, as well as reverse the portions of the sentence imposed for the OVI
offense imposing restitution and a $400 fine, and remand the cause for further
proceedings.
I. Restitution
{¶6} In his first assignment of error, Craig argues that the trial court erred
when it ordered him to pay $5,000 in restitution.
{¶7} We review a trial court’s award of restitution in a misdemeanor case for
an abuse of discretion. State v. Moore, 1st Dist. Hamilton No. C-220421, 2023-Ohio-
3318, ¶ 10, quoting State v. Miles, 1st Dist. Hamilton No. C-210226, 2021-Ohio-4581,
¶ 5. An abuse of discretion occurs in the award of restitution where the ordered
restitution “does not bear a reasonable relationship to the actual loss suffered.” Id.,quoting In re A.B., 1st Dist. Hamilton No. C-210010, 2021-Ohio-4273, ¶ 8. An abuse
of discretion can also be found where there is not “competent, credible evidence in the
record from which the court can discern the amount of restitution to a reasonable
degree of certainty.” Id., quoting State v. Caldwell, 2023-Ohio-355, 207 N.E.3d 928,
¶ 14 (4th Dist.).
{¶8} At the restitution hearing, Tyrone Mack testified that, at the time of the
accident on July 11, 2022, he was the registered owner of the vehicle involved in the
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OHIO FIRST DISTRICT COURT OF APPEALS
accident with Craig. The vehicle was a 2007 Chevrolet Tahoe. Tyrone1 stated that in
August of 2022, he transferred the vehicle to his brother Ron, because “it was his all
along,” even though it had been titled in Tyrone’s name.
{¶9} Ron, who was driving the vehicle when the accident occurred, testified
that he had purchased the car and placed the title in his brother’s name. Ron stated
that he paid $6,864.37 to have the vehicle repaired after the accident, and he
submitted receipts documenting the expenses that he personally incurred for these
repairs. According to Ron, all of the damage to the vehicle was caused by the accident,
and none was pre-existing.
{¶10} At the restitution hearing, Craig entered into evidence several exhibits
documenting the value of the vehicle. These documents included a Kelley Blue Book
report listing the vehicle’s trade-in value to be $2,234 to $3,669; a Kelley Blue Book
report listing the vehicle’s value in a private-party sale to be $4,117 to $6,244; and an
Experian vehicle history report, which revealed that the vehicle had been involved in
an accident prior to the one caused by Craig and gave the vehicle a below average
AutoCheck score (this score correlated to how likely the vehicle was to still be on the
road in five years).
{¶11} Craig testified that he worked one full-time and two part-time jobs and
estimated that he earned approximately $1,700 per month in take-home pay. He also
stated that he paid $825 a month in rent, as well as had additional monthly expenses,
including utilities and food.
1 We refer to Tyrone Mack and Ron Mack by their first names, as they have the same surname.
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OHIO FIRST DISTRICT COURT OF APPEALS
Determination of Proper Victim
{¶12} Craig first argues that the trial court erred in awarding restitution to
Ron, whom he contends did not suffer an economic loss at the time of the accident. He
argues that Tyrone, not Ron, was the titled owner and driver of the vehicle damaged
in the accident.
{¶13} R.C. 2929.28(A)(1) provides that a trial court, when sentencing an
offender for a misdemeanor offense, may order the offender to pay restitution to the
victim of the offender’s crime “in an amount based on the victim’s economic loss.”
Article 1, Section 10a(D) of the Ohio Constitution provides that a victim is “a person
against whom the criminal offense or delinquent act is committed or who is directly
and proximately harmed by the commission of the offense or act.”
{¶14} The trial court correctly determined that Ron was a victim of Craig’s
offense. Although Tyrone was the titled owner of the vehicle at the time of the accident,
Ron was driving the vehicle and personally paid to repair the damage caused to the
vehicle by the accident. See State v. Morales, 1st Dist. Hamilton No. C-220355, 2023-
Ohio-2459 (holding that in an aggravated-vehicular-assault case, the driver of the
vehicle hit by the defendant was a victim under the definition of “victim” in Ohio
Constitution, Article I, Section 10a(D)).
{¶15} The record also demonstrates that Ron suffered an economic loss. R.C.
2929.01(L) defines “economic loss” in relevant part as “any economic detriment
suffered by a victim as a direct and proximate result of the commission of an offense.”
Here, Ron submitted receipts detailing all expenses he incurred to repair the damage
caused to the vehicle. The trial court, therefore, did not err in determining that Ron
was a victim of the offense and that he suffered an economic loss.
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OHIO FIRST DISTRICT COURT OF APPEALS
Amount of Restitution
{¶16} Craig next argues that the trial court erred in imposing $5,000 in
restitution because that amount exceeded the amount of economic loss.
{¶17} At the restitution hearing, after hearing testimony from Ron that he
spent $6,864.37 on repairs to the vehicle and being presented with evidence from
Craig about the Kelley Blue Book value of the vehicle for a trade-in and for a private-
party sale, the trial court stated:
So we don’t need to speculate about, you know, where this—the value of
this vehicle, or where it would land in the Kelly [sic] Blue Book or
Experian, we don’t need to speculate about any of that because in this
case Mr. Mack actually spent the funds, he testified that the vehicle’s
been repaired because he laid out this money. So the $6,800 and some
dollars seems entirely reasonable and appropriate.
{¶18} The court then explained that R.C. 4511.19(G)(7)2 provided a statutory
cap of $5,000 on the amount of restitution that can be ordered, and it ordered that
Craig pay Ron $5,000 in restitution.
{¶19} This court recently addressed the amount of restitution that can be
imposed for the damage caused to a vehicle in an automobile accident. In Moore, we
recognized that while the damage to a vehicle may be determined by estimates setting
forth the cost of repair, “[w]hen the cost to repair the vehicle exceeds its value, then
2 R.C. 4511.19(G)(7) provides that if an offender fails to provide proof of financial responsibility, a
trial court “may order restitution pursuant to section 2929.18 or 2929.28 of the Revised Code in an
amount not exceeding five thousand dollars for any economic loss arising from an accident or
collision that was the direct and proximate result of the offender’s operation of the vehicle before,
during, or after committing the offense for which the offender is sentenced under division (G) of
this section.”
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OHIO FIRST DISTRICT COURT OF APPEALS
the owner’s damages are limited to the value of the vehicle immediately prior to the
accident.” Moore, 1st Dist. Hamilton No. C-220421, 2023-Ohio-3318, at ¶ 12, quoting
Caldwell, 2023-Ohio-355, 207 N.E.3d 928, at ¶ 22.
{¶20} Here, the trial court awarded restitution in the amount of the cost
incurred to repair the vehicle, to which it then applied the statutory cap. The court
insinuated that the actual value of the vehicle was irrelevant, stating that it would not
speculate about the vehicle’s value because it was presented with evidence about the
actual amount spent on repairs. Where there was evidence in the record via the Kelley
Blue Book reports that the value of the vehicle was less than the amount spent on
repairs, it was an abuse of discretion for the trial court to disregard that evidence and
award restitution in the amount of the cost incurred for repairs. See Moore at ¶ 13 (it
was an abuse of discretion to award restitution in the amount of the cost of a
replacement vehicle when restitution should have been limited to the value of the
vehicle just prior to the accident); Caldwell at ¶ 24 (“A court does not abuse its
discretion in ordering restitution in the amount of a cost-to-repair estimate if there is
no evidence showing that the value of the vehicle is less than the repair cost.”).
{¶21} The trial court should have considered the evidence pertaining to the
vehicle’s value and determined the actual value of the vehicle. If the cost of repairs
exceeded the vehicle’s value, restitution should have been limited to the amount of the
vehicle’s value prior to the accident.
Ability to Pay Restitution
{¶22} Craig last argues under this assignment of error that the trial court’s
imposition of restitution as a financial sanction was improper as Craig demonstrated
an inability to pay.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} R.C. 2929.28(B) provides that “If the court determines a hearing is
necessary, the court may hold a hearing to determine whether the offender is able to
pay the financial sanction imposed pursuant to this section or court costs or is likely
in the future to be able to pay the sanction or costs.”
{¶24} This court has discussed whether R.C. 2929.28(B) obligates a trial court
to consider an offender’s ability to pay restitution. In State v. Daniels, 2015-Ohio-
5348, 45 N.E.3d 266, ¶ 38-40 (1st Dist.), we stated:
The state also contends the trial court has no obligation to
consider a defendant’s present and future ability to pay restitution for a
misdemeanor offense, because the misdemeanor sentencing statutes do
not contain a provision identical to R.C. 2929.19(B)(5).
The state is correct that the misdemeanor sentencing statutes do
not contain a provision identical to R.C. 2929.19(B)(5). Other appellate
districts have read R.C. 2929.28(B) as requiring the sentencing court to
consider the defendant’s present and future ability to pay a financial
sanction such as restitution. See, e.g., State v. Kinsworthy, 12th Dist.
Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 34; State v. Rohda,
6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 15.
We do not need to determine whether R.C. 2929.28(B) required
the trial court to consider Daniels’s present or future ability to pay,
because the record in this case demonstrates that the trial court in fact
did consider Daniels’s ability to pay. The trial court presided over the
sentencing hearing at which information concerning Daniels’s work
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OHIO FIRST DISTRICT COURT OF APPEALS
history and income source was presented, and the court expressly
rejected a finding of indigency.
{¶25} We similarly need not determine in this case whether R.C. 2929.28(B)
obligated the trial court to consider Craig’s ability to pay because the record clearly
demonstrates that the trial court did, in fact, consider it. At the restitution hearing,
Craig testified that he worked one full-time and two part-time jobs, and he discussed
his monthly income and expenses. Craig’s counsel argued to the trial court that Craig
did not have the ability to pay, prompting the following colloquy between the trial
court and Craig:
Court: I mean, your attorney says that you can’t pay; is that right? You
can’t pay? You can’t pay for the cost of what you did? Is that what you’re
telling me?
Craig: I’m not telling you that.
Court: Well, I want to hear it from you. Are you going to make good on
this, or are we all wasting our time? Because I don’t want to be the
bearer of bad news, and I’m sorry, Mr. Mack, I don’t know that you’re
going to get that $5,000. It just might be the case that Mr. Craig, you
know—I don’t know. So are you going to do this or not?
Craig: Yes, I got a job, why would I not pay it?
Court: Three jobs, right?
Craig: Why would I not pay it?
Court: I’m sorry, I couldn’t understand you.
Craig: I said why would I not pay it.
Court: I’m asking, because your attorney—
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OHIO FIRST DISTRICT COURT OF APPEALS
Craig: It’s my fault so I’ve got to deal with it but—I admit it.
Court: I appreciate that. I appreciate that. Because your attorney said
repeatedly that you didn’t have the ability to pay it. So I want to make
that clear. I appreciate that. And I understand he’s got a job to do, and
he’s making his argument, but I want to make clear, before I put
somebody on probation, and a big part of probation on this case is going
to be the payment of the restitution. Okay? I want to make that clear. I
want that money paid. The sooner, the better. Do you understand what
I want mean?
Craig: Yes, sir.
{¶26} This colloquy evidences both the importance that the trial court placed
on Ron receiving restitution and the court’s recognition that it did not want to set Craig
up for failure by ordering restitution that he lacked the ability to pay. Because the trial
court considered Craig’s ability to pay before imposing restitution, we find Craig’s
argument to the contrary to be without merit.
{¶27} Craig’s first assignment of error is sustained in part and overruled in
part. Because the trial court abused its discretion in awarding restitution in the
amount of the cost of repair without considering the evidence in the record about the
value of the vehicle and without determining whether the cost of repair exceeded the
vehicle’s value, the trial court’s imposition of $5,000 in restitution is reversed.
II. No-Contest Plea
{¶28} In his second assignment of error, Craig argues that the trial court erred
in accepting his no-contest plea, as it was not entered knowingly, intelligently, and
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OHIO FIRST DISTRICT COURT OF APPEALS
voluntarily. In support, he contends that the trial court failed to inform him of the
effect of his no-contest plea to the minor-misdemeanor offense of driving left of center.
{¶29} Craig pled guilty to the OVI offense, a first-degree misdemeanor, and no
contest to driving left of center. Prior to accepting Craig’s guilty plea to the OVI offense,
the court complied with Crim.R. 11(D) and informed Craig of the effect of the plea and
determined that he was making the plea voluntarily. The court additionally informed
Craig of the maximum penalty faced and the constitutional rights that he was waiving.
{¶30} The trial court engaged in no colloquy with Craig when accepting his no-
contest plea to driving left of center. Other than the trial court asking for a reading of
the facts as to that offense, it was not separately addressed at the plea hearing.
{¶31} Traf.R. 10(D) provides that “[i]n misdemeanor cases involving petty
offenses, except those processed in a traffic violations bureau, the court may refuse to
accept a plea of guilty or no contest and shall not accept such pleas without first
informing the defendant of the effect of the plea of guilty, no contest, and not guilty.”
Because Traf.R. 10(D) mirrors Crim.R. 11(E), which sets forth the trial court’s
obligations when accepting pleas in misdemeanor cases involving petty offenses, cases
analyzing a trial court’s duties under Crim.R. 11(E) are applicable to cases analyzing
Traf.R. 10(D). State v. Schuster, 1st Dist. Hamilton Nos. C-220525, C-220526, and C-
220649, 2023-Ohio-3038, ¶ 8, quoting State v. Lyles, 1st Dist. Hamilton Nos. C-
210271, C-210272 and C-210273, 2022-Ohio-1414, ¶ 11.
{¶32} The trial court in this case was required to inform Craig that a no-
contest plea “is not an admission of [his] guilt, but is an admission of the truth of the
facts alleged in the complaint and such plea or admission shall not be used against
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OHIO FIRST DISTRICT COURT OF APPEALS
[him] in any subsequent civil or criminal proceeding.” Traf.R. 10(B)(2). No such
admonition was provided to Craig before his no-contest plea was accepted.
{¶33} In Schuster, the court stated that a defendant’s “right to be informed of
the effect of his no-contest pleas is nonconstitutional and substantial compliance with
Traf.R. 10(D) is all that is required.” Schuster at ¶ 11. The Schuster court explained
that in cases where a trial court fails to substantially comply with Traf.R.10(D), the
reviewing court must determine if the court partially complied or completely failed to
comply. Id. at ¶ 14. In cases of partial compliance, the defendant is required to
demonstrate prejudice in order to have the plea vacated. Id. But in cases where the
trial court completely failed to comply with the rule, a showing of prejudice is not
necessary. Id.
{¶34} Here, the trial court completely failed to comply with Traf.R. 10(D), and
Craig was not required to establish prejudice resulting from the trial court’s omission.
Because the trial court failed to comply with Traf.R. 10(D) and inform Craig of the
effect of his no-contest plea, that plea was not entered knowingly, intelligently, and
voluntarily. Craig’s second assignment of error is sustained.
III. Sentencing
{¶35} In his third assignment of error, Craig argues that the trial court erred
in the imposition of sentence.
{¶36} Craig first argues that the trial court erred in imposing a $400 fine for
the OVI offense when that fine was not imposed in open court at sentencing. The state
concedes this error.
{¶37} The trial court’s sentencing entry for the OVI offense reflects that it
imposed a $400 fine. However, the court did not impose this fine in open court at the
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OHIO FIRST DISTRICT COURT OF APPEALS
sentencing hearing. The record reflects that the court did intend to impose a fine, as it
stated when imposing restitution as part of the sentence for the OVI offense “[t]hat
[restitution] gets paid first before the fine [and] court cost or any other probation
supervision fees.”
{¶38} Pursuant to R.C. 4511.19(G)(1)(a)(iii), when an offender is convicted of
OVI as a first-degree misdemeanor in violation of R.C. 4511.19(A)(1)(a), the trial court
shall sentence the offender to “a fine of not less than three hundred seventy-five and
not more than one thousand seventy-five dollars.” This fine is mandatory. See State v.
Kirchgessner, 2022-Ohio-3944, 200 N.E.3d 374, ¶ 44 (2d Dist.), quoting State v.
Small, 10th Dist. Franklin Nos. 14AP-659, 14AP-660, 14AP-661, and 14AP-663, 2015-
Ohio-3640, ¶ 42 (“Because appellant’s mandatory fine for his OVI conviction is set
forth in R.C. 4511.19, not R.C. 2929.18(B)(1), that provision does not allow for the
waiver of that fine.”); State v. Kelley, 8th Dist. Cuyahoga No. 97389, 2012-Ohio-2309,
¶ 4.
{¶39} Pursuant to Crim.R. 43(A)(1), the defendant must be physically present
at every stage of the criminal proceeding, including the imposition of sentence. “A trial
court cannot impose a sentence in the sentencing entry that differs from that it
imposed at the sentencing hearing.” State v. Vaughn, 8th Dist. Cuyahoga No. 103330,
2016-Ohio-3320, ¶ 18. “When a sentence pronounced in open court is later modified
and the judgment entry reflects the modification, the modification must have been
made in open court in the defendant’s presence.” State v. Williams, 2016-Ohio-5827,
71 N.E.3d 592, ¶ 82 (1st Dist.).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} We therefore hold that the trial court erred by including the mandatory
fine in the sentencing entry without imposing that fine in open court in Craig’s
presence. See id. at ¶ 83.
{¶41} Craig additionally argues in this assignment of error that the trial court
erred in imposing a sentence of two years of community control for the offense of
driving left of center when that sentence was not pronounced in open court and was
improper in a minor-misdemeanor case. This argument has been rendered moot by
our resolution of the second assignment of error, in which we held that Craig’s no-
contest plea to driving left of center was not entered knowingly, voluntarily, or
intelligently.
{¶42} Craig’s third assignment of error is accordingly sustained in part, and
the portion of the sentence for the OVI offense imposing a $400 fine is reversed. On
remand, the trial court must impose the mandatory fine in Craig’s presence in open
court. The remainder of the assignment of error is moot.
IV. Conclusion
{¶43} Craig’s no-contest plea to driving left of center is vacated because the
trial court failed to advise him of the effect of the plea as required by Traf.R. 10(D).
With respect to the sentence imposed for the OVI offense, the trial court’s imposition
of restitution and a fine are reversed because the trial court failed to consider evidence
of the value of the vehicle immediately prior to the accident and determine whether
the cost to repair exceeded the vehicle’s value, and because the trial court failed to
impose the mandatory fine in the presence of Craig in open court. This case is
remanded for resentencing and further proceedings in accordance with the law and
this opinion. The judgments of the trial court are otherwise affirmed.
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Judgment accordingly.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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