State v. Eames , 2024 Ohio 183 ( 2024 )

[Cite as State v. Eames, 2024-Ohio-183.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-23-023
WD-23-024
Appellee
Trial Court No. 2022CR0045
2022CR0046
v.
Don Wayne Eames, Jr. DECISION AND JUDGMENT
Appellant Decided: January 19, 2024
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Michael B. Kelley, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Don Eames Jr., appeals the April 14, 2023 judgments of the
Wood County Court of Common Pleas sentencing him to prison and ordering him to pay
restitution. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} Eames was indicted in two separate cases on a total of 33 charges. In case
No. 2022CR0045 (“case 1”), Eames was charged with one count of grand theft in
violation of R.C. 2913.02(A)(1) and (B)(4), a third-degree felony; seven counts of petty
theft in violation of R.C. 2913.02(A)(1) and (B)(2), each a first-degree misdemeanor;
seven counts of identity fraud in violation of R.C. 2913.49(B)(2), each a fifth-degree
felony; and ten counts of theft in violation of R.C. 2913.02(A)(1) and (B)(2), each a fifth-
degree felony. In case No. 2022CR0046 (“case 2”), Eames was charged with two counts
of petty theft in violation of R.C. 2913.02(A)(1) and (B)(2), each a first-degree
misdemeanor; three counts of identity fraud in violation of R.C. 2913.49(B)(2), each a
fifth-degree felony; and three counts of theft in violation of R.C. 2913.02(A)(1) and
(B)(2), each a fifth-degree felony.
{¶ 3} Eames and the state reached an agreement under which Eames agreed to
plead guilty to 32 of the original charges and pay restitution, and the state agreed to
dismiss the grand theft charge and not oppose Eames’s request for intervention in lieu of
conviction (“ILC”).
{¶ 4} In August 2022, Eames pleaded guilty in both cases. As part of his pleas,
Eames agreed to pay 16 of his 23 victims a total of $8,309.55 in restitution, jointly and
severally with his codefendant. In case 1, he agreed to pay $5,247.62 to 12 victims; in
case 2, he agreed to pay $3,061.93 to four victims. The trial court accepted Eames’s
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pleas, found that Eames was eligible for ILC and willing to comply with the conditions of
an intervention plan, placed him under the supervision of the probation department for
one year, stayed all criminal proceedings against him, and imposed conditions of
supervision. Among the conditions of his intervention plans were requirements that he
pay total restitution of $5,247.62 in case 1 and $3,061.93 in case 2.
{¶ 5} In April 2023, following two ILC violations that Eames stipulated to, the
trial court terminated Eames’s ILC. At the hearing, after considering Eames’s behavior
while on ILC, along with the principles and purposes of sentencing and the applicable
seriousness and recidivism factors, the court terminated Eames’s term of ILC and found
him guilty of the 32 charges he pleaded to in August 2022. In case 1, the court imposed
prison terms of six months on each petty theft count, ten months on each theft count, and
ten months on each identity fraud count. In case 2, the court imposed prison terms of six
months on each petty theft count, ten months on each theft count, and ten months on each
identity fraud count. The court ordered all of the sentences to run concurrently, for an
aggregate sentence of ten months. The court also ordered Eames to pay restitution of
$3,061.93 in case 2 and “the same amount” in case 1.
{¶ 6} The trial court’s sentencing entries generally reflected its actions at the
sentencing hearing. However, in the entry for case 1, the trial court ordered Eames to pay
$5,247.62 in restitution. This is the amount in the plea agreement and judgment entry
granting Eames’s request for ILC, but is not “the same amount” as case 2, as the court
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ordered at the sentencing hearing. The entry for case 2 included an order to pay
restitution of $3,061.93.
{¶ 7} Eames now appeals, raising two assignments of error:
I. The trial court abused its discretion in sentencing Appellant to a
prison term which was not supported by the record which is an abuse of
discretion and plain error.
II. The trial court erred when it ordered the payment of restitution.
II. Law and Analysis
A. We cannot review the trial court’s application of the factors in R.C. 2929.11 and
2929.12.
{¶ 8} In his first assignment of error, Eames argues that the trial court abused its
discretion and committed plain error by sentencing him to ten months in prison because
“the record does not support the severity of the sentence imposed[,]” which shows that
the court did not properly consider the factors in R.C. 2929.11 and 2929.12. In response,
the state points out that we are precluded by State v. Jones, 163 Ohio St.3d 242, 2020-
Ohio-6729, 169 N.E.3d 649, from reviewing the trial court’s consideration of R.C.
2929.11 and 2929.12.
{¶ 9} Generally, we review sentencing challenges under R.C. 2953.08(G)(2). The
statute allows us to increase, reduce, or otherwise modify a sentence or vacate the
sentence and remand the matter for resentencing only if we clearly and convincingly find
either (1) the record does not support the trial court’s findings under specified Revised
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Code sections not at issue here, or (2) the sentence is otherwise contrary to law. R.C.
2953.08(G)(2)(a)-(b). Notably, under the statute, “[t]he appellate court’s standard for
review is not whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2).
{¶ 10} However, since the Ohio Supreme Court decided Jones, the law governing
appellate review of a trial court’s consideration of R.C. 2929.11 and 2929.12 in imposing
sentence is clear: “R.C. 2953.08(G)(2) does not permit an ‘appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the
trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12.’” State v. Bowles, 2021-Ohio-4401, 181 N.E.3d. 1226, ¶ 7 (6th Dist.), quoting
Jones at ¶ 42; see also, e.g., State v. Johnson, 6th Dist. Wood No. WD-20-056, 2021-
Ohio-2139, ¶ 14, citing State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-
Ohio-985, ¶ 10; State v. Woodmore, 6th Dist. Lucas No. L-20-1088, 2021-Ohio-1677, ¶
17. Moreover, we may summarily dispose of an assignment of error that is based only on
the trial court’s consideration of the factors in R.C. 2929.11 and 2929.12. See Bowles at
¶ 8, citing State v. Toles, 166 Ohio St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784, ¶ 1.
{¶ 11} Eames’s only arguments under this assignment of error relate to the trial
court’s consideration of the factors in R.C. 2929.11 and 2929.12, which we cannot
review. Accordingly, based on the authority of Jones and Toles, we summarily find that
Eames’s first assignment of error in not well-taken. Bowles at ¶ 9, citing Toles at ¶ 11
(Brunner, J., concurring).
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B. The restitution amounts in the sentencing entries are not reversible.
{¶ 12} In his second assignment of error, Eames argues that the trial court erred
when it ordered him to pay restitution because the amount of restitution that it ordered at
the sentencing hearing was not the same as the amount it put in the sentencing entries,
and the court did not consider his ability to pay restitution.
{¶ 13} The state responds that Eames is barred by R.C. 2953.08(D)(1) from
appealing the restitution order because he stipulated to the amount of restitution when he
pleaded guilty and the amount of restitution was included in the plea agreement that he
signed. It contends that a trial court is not required to state the amount of stipulated
restitution in open court for the order to be valid, and the court put the correct amounts in
its sentencing entries, which is what matters. It also argues that the trial court is not
required to consider a defendant’s ability to pay restitution when the defendant agrees to
the amount of restitution.
1. We can consider the merits of this assignment of error.
{¶ 14} First, we address the state’s argument that Eames’s appeal is precluded by
R.C. 2953.08(D)(1). Our general ability to review a felony sentence is eliminated when
the defendant and prosecutor jointly recommend a sentence, the sentencing judge
imposes the recommended sentence, and the sentence is “authorized by law.” R.C.
2953.08(D)(1). “A sentence is ‘authorized by law’ and is not appealable within the
meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing
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provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,
paragraph two of the syllabus. Under R.C. 2929.18(A), a sentencing court’s decision to
order restitution is discretionary. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093,
994 N.E.2d 423, ¶ 23. But, if the court chooses to impose that sanction, R.C.
2929.18(A)(1) contains mandatory provisions that the court must follow. State v. Brant,
6th Dist. Huron No. H-15-013, 2016-Ohio-5274, ¶ 18, citing State v. Burns, 2012-Ohio-
4191, 976 N.E.2d 969, ¶ 19 (6th Dist.). Among those mandatory provisions are ordering
restitution in open court and determining the amount of restitution at sentencing. R.C.
2929.18(A)(1).
{¶ 15} Additionally, although not specifically related to restitution, Crim.R.
43(A)(1) requires a defendant to be physically present (unless appropriate arrangements
are made for the defendant to appear by video) at every stage of a criminal proceeding,
including the imposition or modification of sentence. Thus, a trial court is not permitted
to impose a sentence in its sentencing entry that it did not also impose at the sentencing
hearing. State v. Lantz, 6th Dist. Fulton No. F-18-011, 2019-Ohio-3307, ¶ 8; State v.
Vaughn, 8th Dist. Cuyahoga No. 103330, 2016-Ohio-3320, ¶ 18.
{¶ 16} In this case, the trial court technically complied with the requirements of
R.C. 2929.18(A)(1) by ordering Eames to pay restitution in open court, ordering
restitution of $3,061.93 in case 2, and ordering restitution of “the same amount” in case
1. However, the court ultimately imposed a different, higher amount of restitution in the
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sentencing entry for case 1, and nothing in the record indicates that the trial court altered
the restitution amount in Eames’s presence. Thus, we cannot say that the trial court’s
restitution order “comports with all mandatory sentencing provisions[,]” so it is not
“authorized by law,” as required to bar an appeal under R.C. 2953.08(D)(1). Underwood
at paragraph two of the syllabus. Accordingly, the state’s argument is unavailing, and we
can consider the merits of Eames’s second assignment of error.
2. The trial court’s error was harmless.
{¶ 17} Turning to the merits of Eames’s arguments, we find no errors in the
restitution order in case 2. The court ordered $3,061.93 in restitution for case 2 at the
sentencing hearing and included the same amount in its sentencing judgment entry.
Eames does not raise any arguments that this was somehow improper, other than
summarily saying that the trial court’s announcement of a lower restitution amount in
case 1 in open court “void[ed] both” restitution orders. This argument is not persuasive.
{¶ 18} In case 1, however, the trial court erred by imposing a different restitution
amount in the judgment entry than it did at the sentencing hearing, but the error was
harmless. The right to be present that is protected by Crim.R. 43(A) implicates a
defendant’s due process rights, but only to the extent that the defendant would be denied
a fair and just hearing if he were absent. State v. Jones, 6th Dist. Sandusky No. S-18-
036, 2019-Ohio-2646, ¶ 6, citing State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562,
114 N.E.3d 1092, ¶ 215. Therefore, a violation of Crim.R. 43(A) is subject to a
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harmless-error analysis, and we will not reverse the trial court’s judgment unless the
defendant demonstrates that he was prejudiced by the imposition of a sentence in the
judgment entry but not at the sentencing hearing. Id.; Lantz at ¶ 9. Prejudice can exist
when the discrepancy between the court’s oral and written pronouncements creates an
unclear sentence or eliminates the defendant’s right to object. Lantz at ¶ 9. But, when
the defendant agrees to a specific amount of restitution in a plea agreement, and the court
imposes the agreed amount in its sentencing entry, the defendant cannot show prejudice
based solely on the court’s failure to order restitution in open court at the sentencing
hearing. Jones at ¶ 8.
{¶ 19} Here, Eames has not shown that he was prejudiced by the discrepancy in
the amount of restitution ordered at the sentencing hearing and the amount imposed in the
case 1 sentencing entry. The record shows that Eames was aware of the restitution
amount and explicitly agreed to pay it. He signed a plea agreement in case 1 in which he
agreed to pay a total of $5,247.62 in restitution, jointly and severally with his
codefendant, to the victims in that case. This amount was incorporated into the trial
court’s ILC plan, and Eames signed copies of the terms and conditions of his ILC plan
that listed aggregate restitution in case 1 of $5,247.62. Eames also acknowledged at the
sentencing hearing that he agreed to pay restitution in both cases. Eames does not argue
that the higher amount in the sentencing entry differs from the amount of restitution he
agreed to pay, is somehow inaccurate, or resulted in any other prejudice. Because Eames
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has not shown that the court’s error in stating the amount of restitution in case 1 at the
sentencing hearing prejudiced him, any error was harmless. Jones at ¶ 8.
{¶ 20} Eames also contends that the trial court erred by failing to consider his
ability to pay restitution. A court is generally required to consider a defendant’s “present
and future ability to pay * * *” before imposing a financial sanction permitted by R.C.
2929.18, including restitution. R.C. 2929.19(B)(5). However, the court is not required to
consider the defendant’s ability to pay before imposing restitution that the defendant
agreed to as part of a plea agreement. State v. Jordan, 6th Dist. Lucas No. L-19-1165,
2021-Ohio-333, ¶ 8. Moreover, a defendant who “agrees to pay restitution as part of their
plea agreement ‘waives the issue of whether he or she will be able in the future to pay the
amount agreed upon.’” Id., quoting State v. Coburn, 6th Dist. Sandusky No. S-09-006,
2010-Ohio-692, ¶ 22.
{¶ 21} As already noted, Eames agreed to pay specific restitution amounts in each
case as part of his plea agreements. He cannot now claim that the trial court erred by
failing to consider his ability to pay the agreed-upon amounts because a defendant who
“agrees to pay restitution in a plea agreement cannot challenge, on appeal, the trial
court’s failure to consider his or her ability to pay before imposing restitution * * *.” Id.
at ¶ 10.
{¶ 22} Eames’s second assignment of error is not well-taken.
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III. Conclusion
{¶ 23} For the foregoing reasons, the April 14, 2023 judgments of the Wood
County Court of Common Pleas are affirmed. Eames is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgments affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Charles E. Sulek, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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