State v. Casteel

[Cite as State v. Casteel, 2012-Ohio-5673.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
DOUGLAS M. CASTEEL Case No. 2012 AP 07 0044
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Case No. 2009CR060138
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 30, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL J. ERNEST MARK A. PERLAKY
125 East High Avenue 153 North Broadway Street
New Philadelphia, OH 44663 New Philadelphia, OH 44663
Tuscarawas County, Case No. 2012 AP 07 0044 2
Farmer, P.J.
{¶1} On December 2, 2009, appellant, Douglas Casteel, was sentenced to an
aggregate term of four years in prison. Appellant commenced his prison sentence on
January 5, 2010. A hearing was scheduled for July 5, 2011 wherein the trial court was
to consider judicial release and the imposition of restitution. Following the hearing, the
trial court granted appellant judicial release, but did not impose restitution.
{¶2} On September 7, 2011, an evidentiary hearing was held to address the
restitution issue. By judgment entry filed October 18, 2011, the trial court ordered
appellant to pay the victims a total amount of $4,526.37.
{¶3} Appellant filed an appeal, and this court reversed and remanded the
matter to the trial court to comply with State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-
3330. State v. Casteel, 5th Dist. No. 11AP110043, 2012-Ohio-2295 (hereinafter
"Casteel I").
{¶4} Upon remand, by judgment entry filed June 13, 2012, the trial court
resentenced appellant to the exact same sentence it had imposed on December 2,
2009 and ordered the exact same amount of restitution it had imposed on October 18,
2011. The trial court filed a judgment entry nunc pro tunc on July 19, 2012 to include
the manner of conviction.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶6} "THE TRIAL COURT ERRED IN RESERVING THE ISSUE OF
RESTITUTION IN THIS CASE AND IMPOSING IT AT A DATE AFTER APPELLANT'S
Tuscarawas County, Case No. 2012 AP 07 0044 3
INITIAL SENTENCING HEARING, AS THE TRIAL COURT HAD LOST JURISDICTION
TO IMPOSE RESTITUTION."
I
{¶7} Appellant claims the trial court erred in reserving restitution and imposing
it after the sentencing hearing as the trial court had lost jurisdiction to impose restitution.
We disagree.
{¶8} R.C. 2929.18 governs financial sanctions. Subsection (A)(1) states the
following:
(A) Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised Code,
the court imposing a sentence upon an offender for a felony may sentence
the offender to any financial sanction or combination of financial sanctions
authorized under this section or, in the circumstances specified in section
2929.32 of the Revised Code, may impose upon the offender a fine in
accordance with that section. 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 of the victim, to the clerk of courts, or to
another agency designated by the court. If the court imposes restitution,
Tuscarawas County, Case No. 2012 AP 07 0044 4
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
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.
{¶9} Appellant argues the trial court erred in ordering restitution after he was
originally sentenced as the trial court no longer had jurisdiction. In support of his
argument, appellant cites this court to cases from this district, State v. Carr, 5th Dist.
No. 2007AP120076, 2008-Ohio-3423, and State v. Riggs, 5th Dist. No. 2010 CA 20,
2010-Ohio-5697.
{¶10} In Carr, restitution had been ordered after the original sentence and after
the defendant's probation had ended. This court reversed the restitution order, finding
at ¶ 16 that because the defendant's probation period had ended, "the trial court was
divested of jurisdiction to impose additional sanctions."
Tuscarawas County, Case No. 2012 AP 07 0044 5
{¶11} In Riggs, the defendant was sentenced with the trial court reserving
jurisdiction to impose restitution at a later date. The defendant filed an appeal.
Thereafter, an agreed entry was filed on restitution. This court dismissed the appeal per
State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, finding a non-final appealable
order, and remanded the matter to the trial court for resentencing. State v. Riggs, 5th
Dist. No. 2009 CA 00041, 2009-Ohio-6821. Upon remand, the trial court resentenced
the defendant and included the restitution order. Unfortunately, the trial court did so
outside the presence of the defendant. This court reversed and remanded the case to
the trial court for resentencing in accordance with the restitution statute.
{¶12} In the case sub judice, appellant was sentenced on December 2, 2009
with the trial court reserving the restitution amount pending further hearing. Appellant
did not object. On July 5, 2011, appellant was released on judicial release and placed
on five years probation. By judgment entry filed October 18, 2011, the trial court,
referencing the December 2, 2009 sentencing judgment entry and the July 6, 2011
judicial release orders, imposed a restitution order. Appellant appealed and following
reversal and remand by this court (Casteel I), the trial court issued a judgment entry
nunc pro tunc on July 19, 2012, resentencing appellant to the exact same sentence it
had imposed on December 2, 2009 and ordering the exact same amount of restitution it
had imposed on October 18, 2011.
{¶13} The state argues this case is similar to the case of State v. Brown, 5th
Dist. No. 10-CA-133, 2011-Ohio-3645. In Brown, the defendant was sentenced with the
trial court reserving jurisdiction to impose restitution at a later date. The defendant filed
an appeal. Thereafter, the trial court filed a second sentencing entry which included a
Tuscarawas County, Case No. 2012 AP 07 0044 6
restitution order. The defendant did not file an appeal on this second entry. This court
dismissed the appeal, finding the first sentencing entry was not a final appealable order
consistent with Riggs, supra, and an appeal had not been filed on the second
sentencing entry.
{¶14} In Riggs, the trial court sentenced the defendant and reserved jurisdiction
to impose restitution at a later date. Thereafter, an agreed entry on restitution was filed.
This court remanded the case for a final entry to comply with Baker. This is what
occurred in this case. In Casteel I, this court remanded the matter to the trial court to
file a final entry pursuant to Baker. The trial court did so, and we now have a final order
to review.
{¶15} Unlike Carr wherein restitution was imposed after the defendant's
sentence and probation had ended, restitution in this case was imposed after appellant
had been granted judicial release and while he was serving five years of probation.
Therefore, this case is distinguishable from Carr, as the trial court sub judice had
jurisdiction to impose the restitution order.
{¶16} During the original sentencing hearing, the trial court and counsel agreed
to the issuance of a supplemental order on restitution at a later date in order for the
prosecutor to obtain all of the required documentation from the victims. November 25,
2009 T. at 10-12.
{¶17} Upon review, we find the trial court did not err in imposing restitution after
the sentencing hearing.
Tuscarawas County, Case No. 2012 AP 07 0044 7
{¶18} The judgment of the Court of Common Pleas of Tuscarawas County, Ohio
is hereby affirmed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
Hon. Sheila G. Farmer
Hon. John W. Wise
Hon. Julie A. Edwards
JUDGES
SGF/db 1114
[Cite as State v. Casteel, 2012-Ohio-5673.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DOUGLAS M. CASTEEL :
:
Defendant-Appellant : Case No. 2012 AP 07 0044
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Tuscarawas County, Ohio is affirmed.
Costs to appellant.
Hon. Sheila G. Farmer
Hon. John W. Wise
Hon. Julie A. Edwards
JUDGES