State v. Johnson

[Cite as State v. Johnson, 2022-Ohio-573.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
CASE NO. 8-21-23
PLAINTIFF-APPELLEE,
v.
JAMES JOHNSON, III, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. CR 18 01 0020
Judgment Affirmed
Date of Decision: February 28, 2022
APPEARANCES:
William T. Cramer for Appellant
Eric C. Stewart for Appellee
Case No. 8-21-23
WILLAMOWSKI, J.
{¶1} Defendant-appellant James Johnson, III (“Johnson”) brings this appeal
from the judgment of the Court of Common Pleas of Logan County imposing an
order of restitution. Johnson alleges that the trial court erred in determining the
amount owed without considering his ability to pay and by ordering payment to the
wrong entity. For the reasons set forth below, the judgment is affirmed.
{¶2} On August 7, 2018, the trial court accepted Johnson’s guilty plea to one
count of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a felony
of the second degree. Doc. 90. All other charges were dismissed. Doc. 90. A
sentencing hearing was held on September 10, 2018, and the trial court imposed a
sentence of eight years in prison and retained jurisdiction over the issue of
restitution. Doc. 96. After an appeal was dismissed for lack of a final appealable
order, the trial court held a resentencing hearing and denied the request for
restitution on the basis that it lacked the authority to impose it at that time. Doc.
136. The State appealed from this judgment. Doc. 140. On June 2, 2021, this Court
reversed the judgment of the trial court in part, holding that the trial court did have
the authority to impose restitution, though it was not statutorily required to do so.
State v. Johnson, 3d Dist. Logan No. 8-20-42, 2021-Ohio-1869. On remand, the
trial court imposed restitution of $6,500 to be paid to the “Ohio Attorney General’s
Victims of Crime Fund”. Doc. 157. Johnson appeals from this judgment and on
appeal raises the following assignments of error.
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First Assignment of Error
The trial court abused its discretion in ordering [Johnson] to pay
$6,500 in restitution where there was no competent, credible
evidence that [Johnson] had the ability to pay.
Second Assignment of Error
The trial court erred by ordering restitution payable to the
Victims of Crime Fund, rather than the reparations fund.
{¶3} In the first assignment of error, Johnson claims that the trial court erred
by failing to take into consideration that no evidence had been presented regarding
Johnson’s ability to pay. Although the transcript of the hearing does not contain a
presentation of evidence regarding the ability to pay, Johnson did not argue an
inability to pay at the hearing, instead choosing to focus on whether restitution
should be ordered at all. By failing to argue this issue in the trial court, Johnson has
failed to preserve it for appellate review and it will only be reviewed under a plain
error standard. State v. Collins, 12th Dist. Warren No. CA2014-11-135, 2015-Ohio-
3710, ¶ 40-42, 41 N.E.3d 899.
{¶4} A trial court is granted the authority to impose restitution by R.C.
2929.18(A)(1).
Financial sanctions that may be imposed pursuant to this section
include, but are not limited 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, the court shall
order that the restitution be made to the victim in open court, to
the adult probation department that serves the county on behalf
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of the victim, to the clerk of courts, or to another agency
designated by the court. 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
imposes restitution for the cost of accounting or auditing done to
determine the extent of economic loss, the court may order
restitution for any amount of the victim's costs of accounting or
auditing provided that the amount of restitution is reasonable and
does not exceed the value of property or services stolen or
damaged as a result 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. All restitution
payments shall be credited against any recovery of economic loss
in a civil action brought by the victim or any survivor of the victim
against the offender.
R.C. 2929.18(A)(1). Before imposing this financial sanction, the trial court shall
consider the defendant’s ability to pay. R.C. 2929.19(B)(5).1
While the trial court must consider the offender's present and
future ability to pay, there is no express evidence which must be
considered or weighed. State v. Simms, 12th Dist. Clermont No.
CA2009–02–005, 2009-Ohio-5440, ¶ 9. There are also no specific
factors that must be taken into account or explanations which
must be made on the record. Id. R.C. 2929.19(B)(5) does not
require the trial court's impressions, observations, or
deliberations regarding an offender's ability to pay restitution be
placed on the record.
1
This portion of the statute has been found to be unconstitutional when applied to victims of offenses pursuant
to Marsy’s Law. See State v. Oliver, 12th Dist. Clermont No. CA2020-07-041, 2021-Ohio-2543, 176 N.E.3d
1054. However, the party receiving restitution in this case was not a victim pursuant to Marsy’s Law, so the
Constitutional Provision that bars it from consideration in those cases does not apply in this case. See
Johnson, supra.-4-
Case No. 8-21-23
Collins, supra at ¶ 42.
{¶5} Johnson argues that the trial court did not consider his ability to pay
before ordering restitution in the amount of $6,500. However, this argument is not
supported by the record. The State requested restitution in the amount of $8,876.57
be paid to the Ohio Attorney General’s Reparations fund to reimburse the fund for
the money paid to the victim. Tr. 7.
The Court: The Court is reducing that amount because it thinks
that it’s the right and just thing to do under these circumstances,
and especially in light of the fact that [Johnson] will be
incarcerated – scheduled to be incarcerated until October of 2029
with very limited ability to reimburse the State for the restitution.
Tr. 16-17. Likewise, in its judgment entry, the trial court noted that Johnson had a
limited ability to pay restitution until his release. The trial court specifically stated
that it had balanced Johnson’s ability to pay restitution against the request for
restitution. Given the statements of the trial court, the trial court’s familiarity with
this matter, and the actions of the trial court, the record shows that the trial court did
consider Johnson’s ability to pay before ordering him to pay restitution. The first
assignment of error is overruled.
{¶6} In his second assignment of error Johnson claims that the trial court
erred in ordering that restitution be paid to the Ohio Attorney General’s Victims of
Crime Fund rather than the Ohio Attorney General’s Reparations Fund. The
reparations fund was created by R.C. 2743.191, but no official name was given to
the fund by the statute. This Court in Johnson I recognized that the fund was an
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appropriate recipient of restitution pursuant to the Ohio Supreme Court’s holding in
State v. Bartholemew. Johnson, supra at ¶ 8 citing Bartholemew, 119 Ohio St.3d
359, 2008-Ohio-4080, 894 N.E.2d 307. This Court noted that the Ohio Victims of
Crime Compensation Program was a reparations fund managed by the Ohio
Attorney General. The trial court ordered that the restitution be paid to the Ohio
Attorney General’s Office “for the benefit of the Ohio Attorney General’s Victims
of Crime Fund.”2 Even if the name used by the trial court was not the official name
of the program, the order is sufficient to notify the Ohio Attorney General’s Office
as to where the funds should be distributed and to satisfy the debt owed by Johnson.
Thus, any error in naming the recipient of the restitution would not be prejudicial.
The second assignment of error is overruled.
{¶7} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Court of Common Pleas of Logan County
is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
/hls
2
A review of the Ohio Attorney General’s website refers to the fund as Ohio Victim’s Compensation.
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