State v. Bauer

[Cite as State v. Bauer, 2012-Ohio-2457.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 11-CA-93
DEREK BAUER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Case No. 11-CR-15
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT ANDREW T. SANDERSON
Licking County Prosecutor Burkett & Sanderson, Inc.
21 West Church Street
By: TRACY F. VAN WINKLE Suite 201
Assistant Prosecuting Attorney Newark, Ohio 43055
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 11-CA-93 2
Hoffman, J.
{¶1} Defendant-appellant Derek Bauer appeals the August 24, 2011 Judgment
of Conviction and Sentence entered by the Licking County Court of Common Pleas,
which ordered him to pay restitution in the amount of $7570.00. Plaintiff-appellee is the
State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} On January 10, 2011, the Licking County Grand Jury indicted Appellant on
one count of breaking and entering, in violation of R.C. 2911.13(A), a felony of the fifth
degree. Appellant appeared before the trial court for arraignment and entered a plea of
not guilty to the Indictment. The matter proceeded through the discovery process.
{¶3} On July 5, 2011, Appellant filed a Motion to Continue and Convert,
requesting the trial court continue the jury trial scheduled for July 12, 2011, and convert
the proceeding to a change of plea and sentencing hearing. Appellant appeared before
the trial court on August 24, 2011, withdrew his former plea of not guilty, and entered a
plea of guilty to the Indictment. The trial court conducted a Crim. R. 11 colloquy with
Appellant, accepted Appellant’s plea, and found him guilty of breaking and entering.
{¶4} Prior to imposing sentence upon Appellant, the trial court heard testimony
from Luther Stiffler, the son of Jessie Stiffler, the victim; and Deborah Stiffler, the
victim’s daughter whose wedding rings were also taken, to determine the appropriate
amount for restitution purposes. The trial court sentenced Appellant to a twelve month
prison term, and ordered him to pay restitution in the amount of $7570.00. The trial
court memorialized the sentence and restitution order via Judgment of Conviction and
Sentence filed on August 24, 2011.
Licking County, Case No. 11-CA-93 3
{¶5} It is from this judgment entry Appellant appeals, raising as his sole
assignment of error:
{¶6} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ORDERING
$7,570.00 IN RESTITUTION IN THE INSTANT MATTER.”
I
{¶7} Appellant did not object to the trial court's restitution order nor did he
object to any of the testimony regarding the value of the items taken; therefore, has
waived all but plain error. State v. Policaro, 10th Dist. No. 06AP–913, 2007–Ohio–1469,
¶ 6. Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an
appellate court even though they were not brought to the attention of the trial court. To
constitute plain error, there must be: (1) an error, i.e., a deviation from a legal rule, (2)
that is plain or obvious, and (3) that affected substantial rights, i.e., affected the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27, 2002–Ohio–68. Even if an
error satisfies these prongs, appellate courts are not required to correct the error.
Appellate courts retain discretion to correct plain errors. Id; State v. Litreal, 170 Ohio
App.3d 670, 2006–Ohio–5416, ¶ 12. Courts are to notice plain error under Crim .R.
52(B) “with the utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.” Barnes (quoting State v. Long (1978), 53 Ohio St.2d
91, paragraph three of syllabus).
{¶8} R.C. 2929.18(A)(1) authorizes a trial court to order an offender to pay
restitution in an amount based on the victim's economic loss. Specifically, R.C.
2929.18(A)(1) states “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
Licking County, Case No. 11-CA-93 4
the commission of the offense.” The state must prove the amount of this economic loss
with competent, credible evidence from which the trial court can calculate the amount of
restitution within a reasonable degree of certainty. State v. Champion, 10th Dist. No.
05AP–1276, 2006–Ohio–4228, ¶ 7. We will, therefore, examine whether there was
competent, credible evidence to support the trial court's order of restitution. State v.
Morgan, 11th Dist. No.2005–L–135, 2006–Ohio–4166, ¶ 21; Policaro at ¶ 8 (affirming
restitution amount supported by competent and credible evidence).
{¶9} At the change of plea hearing, the state presented the testimony of Luther
Stiffler. Mr. Stiffler enumerated the items taken from his mother’s house and the cost to
replace those items, as follows:
Chainsaws – 4 or 5 $200-$250/each
Riding mower $150
Push mowers – 3 $75/each
Antique scythes - 3 $300-400/each
Stove $200
Refrigerator $200
Catalytic converters – 2 $30-$35/each
Rototiller $150-$250
Tools $400-$500
Air compressor $350
Scrap aluminum $200
{¶10} The state also presented the testimony of Deborah Stiffler. Ms. Stiffler
detailed additional items taken from the property, as follows:
Licking County, Case No. 11-CA-93 5
Wedding & engagement rings1 $500/each
Electric dryer $50
Windows – 6 $250/each
Ironing board $20
Bicycles – 5 $20/each
Camper – repair costs $650
{¶11} The total value of the property taken was $6955, on the low end, or $7915,
on the high end. The trial court ordered Appellant to pay restitution in the amount of
$7570, with $6570 to Jessie Stiffler, and $ 1000 to Deborah Stiffler. Appellant asserts
the trial court abused its discretion in arriving at the $7570 figure as the state failed to
present any evidence as to the original costs of the items and/or the replacement costs.
We disagree.
{¶12} R.C. 2929.18(A)(1) specifically provides “the court may base the amount
of restitution it orders on an amount recommended by the victim.” Policaro, supra, at ¶
8; Morgan, supra, at ¶¶ 26-30. Here, Luther Stiffler and Deborah Stiffler testified as to
the value of the items removed from their mother’s property. We find the trial court was
presented with evidence upon which it could base the amount of restitution it ordered,
and did not abuse its discretion in ordering Appellant to pay restitution in the amount of
$7,570.
{¶13} Appellant’s sole assignment of error is overruled.
1
These items belonged to Ms. Stiffler personally.
Licking County, Case No. 11-CA-93 6
{¶14} Judgment of the Licking County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Edwards, J. concur
s/ William B. Hoffman_________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Licking County, Case No. 11-CA-93 7
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DEREK BAUER :
:
Defendant-Appellant : Case No. 11-CA-93
For the reasons stated in our accompanying Opinion, the judgment of the Licking
County Court of Common Pleas is affirmed. Costs to Appellant.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS