State v. Korosi

[Cite as State v. Korosi, 2011-Ohio-2524.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95404
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DANA KOROSI
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-468592
2
BEFORE: Rocco, J., Sweeney, P.J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: May 26, 2011
-i-
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building
Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Daniel M. Kasaris
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Dana Korosi appeals from the trial court’s
order that found him to be in violation of his community control for failure
to make adequate restitution and, consequently, imposed a five-year prison
sentence.
3
{¶ 2} Korosi presents two assignments of error. He argues the trial
court first should have determined if he had the ability to pay the restitution
amount before finding that he had violated the terms of his community
control. He further argues that the trial court should have permitted him
until the end of the community control period before finding that he had
violated its terms by failing to make adequate restitution.
{¶ 3} A review of the record compels this court to reverse the trial
court’s order, because plain error occurred. This case, therefore, is remanded
for further proceedings consistent with this opinion.
{¶ 4} Korosi originally was indicted in this case in July 2005 on one
count of theft, with the value of the property “being $100,000.00 or more[.]”
He was declared indigent at his arraignment.
{¶ 5} In October 2005, after the parties exchanged discovery, Korosi
entered a guilty plea to the indictment. The prosecutor stated at the plea
hearing that Korosi’s “guilt or innocence really wasn’t in issue, it’s the
restitution amount.” He also informed the court that the parties had
“agreed, as far as the criminal part is concerned, the amount should be
$190,000 and no higher * * * . So, therefore, Your Honor, we would agree
that the amount of restitution for sentencing purposes would be $190,000.”
4
{¶ 6} The prosecutor went on to state, “Further, Your Honor, to be fair,
[Korosi] has paid a large portion of that back. I don’t have the exact figures
in front of me * * * but well in the neighborhood of, I believe, $130,000,
$140,000 has been paid back. * * * ”
{¶ 7} Defense counsel informed the court, “just for the record,” that his
client had “paid back about $160,000 * * *.” When the trial court turned to
Korosi to ask if the prosecutor and defense counsel were accurately setting
forth the “plea agreement,” Korosi answered, “Yes.” At the conclusion of the
colloquy, the trial court accepted Korosi’s plea and referred him for a
presentence report.
{¶ 8} A month later, the trial court conducted the sentencing hearing.
Both the prosecutor and defense counsel stipulated to the accuracy of the
presentence report.1
{¶ 9} Defense counsel told the trial court that Korosi “currently pays
about $500 a month child support” and was “currently employed making a
small salary.” Apparently, the probation report correctly indicated Korosi
had “sold his interest in [his] business, cashed in IRA’s, sold a portion of the
building and today paid back approximately $160,000 of the $190,000 that
[was] involved” in the offense. Thus, Korosi had reached “rock bottom.”
1Korosi has not requested this report to be included in the record.
5
Defense counsel also told the trial court Korosi’s income for 2005 “to date,”
was $13,500, but that Korosi had a “deferred compensation account he will
have access to when he is 60 years old that will allow him to pay off the
balance * * * .”
{¶ 10} The trial court decided to sentence Korosi to “basic supervision”
community control for three years, with the condition that he repay the
remaining restitution amount. The court further stated, “The court will
order the probation department to * * * calculate the restitution, * * * for the
record now $30,000 in restitution. If that figure needs to be adjusted in the
future, we can have a hearing between yourself and the probation officer,
verify what the actual figure is, so I’m going to leave it up to you and your
probation officer how much per month.
{¶ 11} “I want you to make monthly payments and report monthly to the
probation department. * * * .
{¶ 12} “Also, you have to pay court costs and supervision fees, and
remember that failure to comply with any of the rules and regulations of
probation, * * * [y]ou are looking at a potential of five years in prison.
{¶ 13} “The thing that will land you in prison quicker than anything is a
lack of effort on the monthly payments. You figure out how much you need
to pay a month. And make small payments.”
6
{¶ 14} The court asked Korosi when he would turn sixty years old, and,
when Korosi responded, “July of ’08,” the court stated, “So that should be
enough time. Community control sanctions. Have this paid off. I want to
see monthly payments, efforts by you to make payments.”
{¶ 15} Defense counsel raised a concern about the specific restitution
amount. The trial court stated, “All right. I will put an Order in the record
too that what is reflected in the PSI, as well as the prosecutor’s office,
$190,000 was the figure for restitution. Any payments [Korosi] made against
that he will have credit for.”
{¶ 16} Finally, defense counsel asked the trial court whether, if Korosi
could make payments of only “50 or $100 a month, * * * that is considered
tantamount to a violation.” The court apparently turned to Korosi when it
answered, “No. Between you and the probation officer * * * [y]ou figure it
out. Probably 50 or $100 is probably right, but the probation officer and I
just want you to make monthly payments. I don’t care how much it is. * * *
.”
{¶ 17} The court concluded the sentencing hearing by telling Korosi
that, if “three years isn’t enough to make the payment, we can extend. But I
want to see efforts made every month to make a payment.”
7
{¶ 18} The November 22, 2005 journal entry of Korosi’s sentence states
that he was sentenced to three years of community control. In spite of the
trial court’s assurance to defense counsel at the sentencing hearing about the
specific amount of restitution, Korosi was ordered “to pay restitution that will
be determined by the probation department,” and notified that “violation of
the terms and conditions may result in more restrictive sanctions or a prison
term of 5 year(s) * * * .”
{¶ 19} In September 2008, the trial court issued a journal entry that
indicated as follows: “Upon recommendation of the probation department
and [Korosi] having waived any objections in writing[,] community control
sanctions [are] extended to 11/16/2010.”
{¶ 20} In January 2010, the trial court issued a journal entry setting a
“community control hearing” in Korosi’s case for “2/09/2010.” The hearing
actually proceeded on June 9, 2010.
{¶ 21} The trial court opened the hearing by stating that Korosi’s
probation officer had requested it and invited the officer to speak. The
probation officer noted Korosi had been ordered to pay restitution, that his
“probation [wa]s due to expire November the 16th, 2010,” and he had “paid a
total of $1,610 in restitution in almost four years.” The probation officer
8
stated Korosi, “currently owes $99,201.58 in restitution, the $200 supervision
fee, and the $75.50 in court costs.”
{¶ 22} Korosi’s new defense counsel, who stated he had been assigned
for purposes of the hearing, informed the trial court that, although he and
Korosi admitted full restitution had not been made, they disputed the amount
owed. Counsel further stated Korosi “still owes $37,739,” but Korosi “cashed
in everything that he has, including his pension plans, including his real
estate property, including certain proceeds from the sale of real estate, and all
this money went to satisfy the outstanding debt * * * .”
{¶ 23} Defense counsel told the court that he had provided a
“breakdown” of his client’s current expenses, that “the IRS is garnishing
everything that there is,” that Korosi was living modestly, and that he was
paying $162.00 a month to the probation department, which was “all he has.”
Counsel also stated that although he had contacted the victim for a
calculation indicating “what was received,” he had not heard anything.
Counsel concluded by noting that there was approximately a $60,000.00
difference between what the probation department was claiming Korosi owed
and what the amount actually should be.
{¶ 24} Korosi told the court he had been doing what he could, but the
trial court stated as follows:
9
{¶ 25} “I have in front of me information from Mr. John Janis 2 with
respect to a promissory note which you signed as the restitution amount that
you owe
{¶ 26} * * . The total is 4,250,000, which is a settlement amount. It
notes the payments that were made prior to your plea, which comport with
the amounts that William Doyle3 has provided in a letter. All the Court has
is a letter from William Doyle. There are no canceled checks for me to
consider. And it still shows, even based on these payments, $100,951 left in
restitution that was owed.
{¶ 27} “You paid $1,610 in the last four years. * * * You know, I was told
at sentencing that you were going to * * * cash in your pensions, your
deferred compensation accounts, that this would all be paid back very shortly.
I gave you a long time to make that happen. And I got $1,610 out of it.
{¶ 28} “ * * * So the Court is going to find that you are a probation
violator. You have not lived up to the conditions of your probation by paying
the restitution.” The court ordered a five-year prison term into execution,
and told Korosi that if “this restitution amount is paid in full and the victims
2The record contains no hint of who this person is in relation to this case.
3See fn. 2.
10
[sic] in this case indicate to the Court they are satisfied, I would consider
judicial release at that time.”
{¶ 29} According to the resulting journal entry, Korosi was sentenced to
five years in prison, and “when restitution is made, judge will consider
judicial release.” The trial court found Korosi indigent for purposes of
appeal.
{¶ 30} Korosi filed his notice of appeal from the foregoing order. While
his appeal was pending, this court remanded the case to the trial court for
compliance with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 897
N.E.2d 163. In relevant part, this court’s order of remand noted the trial
court’s “sentencing journal entries fail to contain the total amount of
restitution.”
{¶ 31} As a result of this court’s order, the trial court issued a journal
entry that states in pertinent part the following:
{¶ 32} “ * * * P/V entry dated 6-9-10 is corrected to include restitution
information. * * *
{¶ 33} “ * * * Pay restitution of $190,000 to Stroud Grandchildren Trust.
Pay restitution through the probation department * * * .”
{¶ 34} Korosi presents two assignments of error, set forth below.
11
{¶ 35} “I. The trial court violated appellant’s rights to due
process and equal protection under the law when it found that he
had violated the terms of his community control by failing to pay the
entire restitution amount owed without first determining whether
appellant had the ability to pay.
{¶ 36} “II. The trial court erred when it sentenced appellant to
prison for allegedly violating his community control sanctions prior
to the expiration date.”
{¶ 37} Korosi argues the trial court acted improperly in sending him to
prison without first making a specific determination that he had the ability to
pay the restitution amount but refused to do so. He also argues he should
have been provided until November 16, 2010 to comply with the order of
restitution.
{¶ 38} Upon a review of the record, however, this court cannot address
Korosi’s assignments of error because plain error occurred in the proceedings
below at the original sentencing hearing, the “violation” hearing, and in the
trial court’s corrected “probation violation” journal entry. These errors
compel reversal of the latest journal entry and a remand of this case for
further proceedings for the following reasons.4
4As discussed infra, this court must acknowledge that its order of limited
12
{¶ 39} First, the trial court’s original order of sentence in this case did
not contain the amount of restitution. This court noted in State v. Brewer,
Cuyahoga App. No. 94144, 2010-Ohio-5242, ¶12-17, as follows:
{¶ 40} “‘Generally, in a criminal case, the final judgment is the sentence.
* * * The sentence is the sanction or combination of sanctions imposed by the
sentencing court on an offender who pleads guilty to or is convicted of an
offense. R.C. 2929.01(FF). 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. R.C. 2929.18(A)(1).’ (Emphasis added.) State v.
Danison, 105 Ohio St.3d 127, 2005-Ohio-781, 823 N.E.2d 444, ¶5-6.
{¶ 41} “Recently, the First Ohio Appellate District made the following
observations:
{¶ 42} “‘Restitution is a financial community-control sanction authorized
by R.C. 2929.18(A)(1).’ The statute identifies the manner in which the trial
court may award restitution. * * * But ‘[i]f the court imposes restitution, at
sentencing, the court shall determine the amount of restitution to be made by
the offender.’ (Emphasis sic.) Id.{¶ 43} “‘Therefore, the plain language of R.C. 2929.18(A)(1) establishes
that if the trial court orders restitution at sentencing, it must determine the
remand pursuant to Baker was inappropriate.
13
amount of restitution at that time. There is no statutory authority for the
trial court to exercise continuing jurisdiction to modify the amount of a
financial sanction. * * *.’ (Emphasis added.) State v. Purnell, 171 Ohio
App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, at ¶8-9.
{¶ 44} “From the foregoing, it is reasonable to determine that when a
sentencing entry in a criminal case includes an order of restitution, it also
must contain an ‘amount certain’; otherwise, it does not constitute a final
order * * * .
{¶ 45} “Since the journal entry of sentence in this case is thus
incomplete, it is not a final order * * * .”
{¶ 46} Similarly, in this case, although the trial court originally told
Korosi that his sentencing entry would include the specific amount of
restitution, the court failed to include any specific amount; thus, the sentence
was never “final.”
{¶ 47} Second, the record reflects that, although the restitution amount
was disputed, the trial court never conducted a hearing on the amount Korosi
owed before imposing the original sentence. Pursuant to R.C. 2929.18(A)(1),
“prior to imposing restitution, a trial court must determine the amount of
restitution to a reasonable degree of certainty, ensuring that the amount is
supported by competent, credible evidence.” State v. Waiters, Cuyahoga App.
14
No. 93897, 2010-Ohio-5764, ¶17, citing State v. Warner (1990), 55 Ohio St.3d
31, 69, 564 N.E.2d 18.
{¶ 48} Waiters held that, if the restitution amount is disputed, the
record must include “documentary and/or testimonial evidence” that
demonstrates the victim’s economic loss; such evidence “must take into
account * * * any offsets to the victim’s economic loss and any mitigation of
damages.” Id., ¶18, quoting State v. Bowman, 181 Ohio App.3d 407,
2009-Ohio-1281, 909 N.E.2d 170, ¶12.
{¶ 49} As in Waiters, there is nothing in the record to provide any
guidance to determine either the dollar amount of loss to the victim, the
dollar amount Korosi actually repaid by the date of his original sentencing
hearing, or even the specific victim or victims who were to be repaid. Under
such circumstances, R.C. 2929.18(A)(1) required the trial court “to conduct an
evidentiary hearing to determine the appropriate amount of restitution” prior
to imposing sentence. Id., at ¶25; cf., State v. Williams, Cuyahoga App. No.
93625, 2010-Ohio-3418 (hearing unnecessary when a specific dollar amount is
set forth in the record as part of the plea, and when the defendant neither
disputes the specific dollar amount, nor disputes to whom he owes the
restitution, nor disputes his ability to pay).
15
{¶ 50} Thirdly, the “corrected” journal entry issued in this case pursuant
to this court’s order of limited remand is improper. Although the journal
entry purports to set a specific amount of restitution, the trial court issued it
without conducting a hearing, without Korosi’s presence, and even without an
explanation for a figure now $160,000 more than the one originally orally
imposed. The Second Appellate District faced a similar situation in State v.
Miller, Clark App. No. 08CA0090, 2010-Ohio-4760, and held, at ¶33-34:
{¶ 51} “[P]er R.C. 2929.18(A)(1), restitution is an element of a sentence
imposed, and ‘the defendant must be physically present at every stage of the
criminal proceeding and trial, including * * * the imposition of sentence.’
Crim.R. 43(A)(1). When a sentence that was pronounced in open court is
subsequently modified, and a judgment entry reflects the modification, the
modification must have been made in the defendant’s presence. State v.
Mullens, Summit App. No. 23395, 2007-Ohio-2893.
{¶ 52} “ * * * The State * * * argues that Defendant was not prejudiced *
* * because the amount of restitution ordered, $11,730.20, was the amount of
restitution that had been recommended in the presentence investigation
report, which the court and the parties reviewed prior to the sentence that
was imposed [originally]. We do not agree. Until an [actual] amount of
restitution was imposed by the court, Defendant had no right to the hearing
16
to which he is entitled by R.C. 2929.18(A)(1), should he dispute the amount
ordered. Further, a defendant’s physical presence is always required,
absent an express waiver.”
{¶ 53} Under the circumstances presented in this case, therefore, the
record demonstrates plain error occurred. The first instance occurred when,
in the November 22, 2005 sentencing order, the trial court attempted to place
Korosi on community control sanctions without conducting an evidentiary
hearing on the specific amount of restitution Korosi owed, in violation of R.C.
2929.18(A)(1). The second occurred when the trial court conducted a
“probation revocation” hearing, then “revoked” Korosi’s “community control,”
although he had never properly been sentenced. See, e.g., State v. Williams,
Hancock App. No. 5-10-02, 2011-Ohio-995. The third occurred when, in
violation of Crim.R. 43(A), the trial court attempted to create a final
sentencing order.
{¶ 54} For the foregoing reasons, the trial court’s order is reversed, and
this case is remanded with instructions to the trial court to conduct a hearing
on the amount of restitution Korosi owes and a full resentencing hearing.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
17
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to
the trial court for further proceedings consistent with this opinion.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________
KENNETH A. ROCCO, JUDGE
JAMES J. SWEENEY, P.J., and
EILEEN A. GALLAGHER, J., CONCUR