State v. Brown

[Cite as State v. Brown, 2022-Ohio-4689.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PAULDING COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 11-22-05
v.
TRICIA L. BROWN, OPINION
DEFENDANT-APPELLANT.
Appeal from Paulding County Common Pleas Court
Trial Court No. CR 21 631
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: December 27, 2022
APPEARANCES:
Brian A. Smith for Appellant
Joseph R. Burkard for Appellee
Case No. 11-22-05
SHAW, J.
{¶1} Defendant-Appellant, Tricia L. Brown (“Brown”), appeals the
judgment entry of sentence from the Paulding County Court of Common Pleas,
sentencing her to four years of community control and ordering her to pay
restitution.
Facts and Procedural History
{¶2} On November 12, 2021, Brown was indicted on two counts, Count One:
theft from a person in a protected class in violation of R.C. 2913.02(A)(1), a third-
degree felony in that the amount involved equaled or exceeded $7,500.00 but was
less than $37,500.00, and Count Two: grand theft of a firearm in violation of R.C.
2913.02(A)(1), a third-degree felony. The indictment named the victim, described
the items involved, and stated the offense occurred on or about June 14, 2021.
Brown originally pled not guilty to the charges.
{¶3} On March 23, 2022, Brown entered into a stipulation which permitted
the admission of polygraph test results at trial. After the polygraph was
administered on March 24, 2022, Brown then entered into a negotiated plea
agreement on March 29, 2022 and pled guilty to an amended Count One of theft, a
fifth-degree felony, with an amount of $1,000.00 or more and less than $7,500.00.
In exchange, the State agreed to dismiss Count Two of the indictment. The trial
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court thereafter accepted Brown’s plea and found her guilty, and dismissed Count
Two.
{¶4} Brown’s sentencing hearing was held on May 9, 2022. The trial court
sentenced Brown to a four-year community control term. The conditions of
Brown’s community control required her to serve sixty days in jail, with fifteen days
of jail-time credit, and to pay restitution in the amount of $11,896.08.
{¶5} Brown filed this appeal raising four assignments of error for our review.
Assignment of Error No. 1
Because the trial court ordered an amount of restitution that was
beyond the maximum amount of $7,499.99, on the charge of
Theft, a fifth-degree felony, of which Appellant was convicted, the
trial court’s sentence of Appellant was contrary to law.
Assignment of Error No. 2
Because the trial court reserved a 12-month prison sentence, the
maximum sentence on a fifth-degree felony pursuant to R.C.
2929.14(A)(5), while imposing a 60-day local jail sentence and
giving Appellant credit for 15 days served, the trial court’s
sentence was contrary to law and a violation of the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution and Article I, Section 2 of the Ohio
Constitution.
Assignment of Error No. 3
The failure of Appellant’s trial counsel to object, at the
restitution/sentencing hearing, to the amount of restitution
ordered constituted ineffective assistance of counsel, in violation
of Appellant’s right to counsel under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 10 of the Ohio Constitution.
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Assignment of Error No. 4
The trial court abused its discretion in admitting the results of the
polygraph examination conducted upon Appellant, where the
State offered the polygraph result outside of the agreed-upon
stipulation, and where Appellant did not have an opportunity to
cross-examine the polygraph examiner.
First Assignment of Error
{¶6} In her first assignment of error, Brown argues, relying on this Court’s
case of State v. Rohrbaugh, 191 Ohio App.3d 117, 2010-Ohio-6375 (3d Dist.), that
the trial court erred when it ordered her to pay $11,896.08 in restitution.
Specifically, Brown contends that the trial court’s order of restitution was beyond
the maximum amount of $7,499.99 for the fifth-degree-felony theft offense to which
she pleaded guilty and, thus, was contrary to law. In response, Appellee agrees the
maximum amount of restitution that the trial court could order in the instant case
was limited to $7,499.99 based upon the Rohrbaugh case.
{¶7} Here, Brown entered a plea of guilty to the amended theft charge, R.C.
2913.02(A)(1) and (B)(2), which provides:
(A) No person, with purpose to deprive the owner of property or
services, shall knowingly obtain or exert control over either the
property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to
give consent;
***
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(B)(2) * * * If the value of the property or services stolen is one
thousand dollars or more and is less than seven thousand five
hundred dollars * * * a violation of this section is theft, a felony of
the fifth degree. * * *
{¶8} Under R.C. 2953.08(G)(2), an appellate court may reverse a sentence if
it clearly and convincingly finds that the sentence is contrary law. State v.
Boedicker, 3d Dist. Allen Nos. 1-22-04 and 1-22-04, 2022-Ohio-2992, ¶ 24, citing
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Restitution imposed
by the sentencing court is part of the sentence imposed on a defendant. State v.
Danison, 105 Ohio St.3d 127, 2005-Ohio-781, syllabus. See R.C. 2929.18.
{¶9} As stated by this Court in Rohrbaugh, the amount of restitution
generally must be limited to the offenses for which a defendant is indicted and
convicted. Rohrbaugh at ¶ 17, 20. Other appellate districts have similarly stated
that an order of restitution is limited to the amount of economic loss caused by the
offense of which defendant is convicted. See, e.g., State v. Rivera, 8th Dist.
Cuyahoga No. 84379, 2004-Ohio-6648, ¶ 12; State v. Clifton, 65 Ohio App.3d 117,
123 (12th Dist. 1989).
{¶10} By ordering Brown to pay $11,896.08 in restitution, the trial court
ordered an amount beyond the amount of the theft for which the amended indictment
charged Brown and for which she was convicted.1 Therefore, the restitution order
1
The amended indictment together with the statement at the plea hearing expressly assign the value of
the stolen property to be “greater than $1,000.00 but less than $7,500.00.”
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in this case is contrary to law. Accordingly, we sustain Brown’s first assignment of
error.
Second Assignment of Error
{¶11} In her second assignment of error, Brown argues that the trial court’s
imposition of a “reserved prison sentence constituting the maximum allowable
prison sentence under R.C. 2929.14(A)(5)” for Brown’s fifth-degree felony offense,
while at the same time imposing a sixty-day local jail sentence, with credit for
fifteen days served, renders the trial court’s sentence contrary to law, as well as a
violation of equal protection. (Appellant’s Brief at 8).
{¶12} “ ‘[F]elony sentencing statutes, contained primarily in R.C. 2929.11
to 2929.19, require trial courts to impose either a prison term or community control
sanctions on each count.’ ˮ State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-
2089, ¶ 23, quoting State v. Berry, 3d Dist. Defiance No. 4-12-04, 2012-Ohio-4660,
¶ 21. Thus, when a defendant is sentenced to community control on a count of
conviction and notified at that time of the potential prison term the defendant faces
should he or she violate community control, the defendant is only sentenced to
community control sanctions and is not sentenced to that prison term. (Emphasis
added.) State v. Duncan, 12th Dist. Butler Nos. CA2015-05-086 and CA2015-06-
108, 2016-Ohio-5559, ¶ 21, citing Berry at ¶ 25.
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{¶13} As set forth above, the trial court’s entry imposed community control.
Therefore, with regard to jail-time credit, the trial court properly allocated fifteen
days of jail-time credit to the sixty-day jail term imposed by the court as a condition
of Brown’s community control. There is no existing prison sentence against which
to grant jail-time credit, and we would note that R.C. 2929.19(B)(2)(g)(i) provides
that:
(B)(2) * * * [I]f the sentencing court determines at the sentencing
hearing that a prison term is necessary or required, the court shall
do all of the following:
***
(g)(i) Determine, notify the offender of, and include in the
sentencing entry the total number of days, including the
sentencing date but excluding conveyance time, that the offender
has been confined for any reason arising out of the offense for
which the offender is being sentenced and by which the
department of rehabilitation and correction must reduce the
definite prison term imposed on the offender as the offender’s
stated prison term * * * . * * *
{¶14} In addition, we note R.C. 2967.191(A), which states in part, “The
department of rehabilitation and correction shall reduce the prison term of a prisoner
* * * by the total number of days that the prisoner was confined for any reason
arising out of the offense for which the prisoner was convicted and sentenced * *
*.”
{¶15} Based on the foregoing, we find Brown’s argument is without merit.
The second assignment of error is overruled.
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Third Assignment of Error
{¶16} Brown argues that trial counsel rendered ineffective assistance by
failing to object at the restitution/sentencing hearing to the amount of restitution
ordered. Our ruling on Brown’s first assignment of error renders this argument and
assignment of error moot.
Fourth Assignment of Error
{¶17} In her fourth assignment of error, Brown claims that the trial court
abused its discretion in admitting the results of her polygraph examination at the
restitution hearing held as part of the sentencing hearing. The State maintains that
Brown’s polygraph results were relevant information as during the sentencing
hearing, Brown called into play her truthfulness by denying taking the victim’s
personal property, despite being found deceptive on that point during the polygraph
examination.
{¶18} It is well settled that a reviewing court may not reverse a trial court’s
determination on the admissibility of evidence absent a showing that the trial court
abused its discretion. State v. Berry, 3d Dist. Union No. 14-20-05, 2021-Ohio-1132,
¶ 100. It is also well settled that the Ohio Rules of Evidence do not strictly apply to
sentencing proceedings. State v. Rose, 3d Dist. Logan No. 8-02-14, 2002-Ohio-
5136, ¶ 20, citing State v. Williams, 23 Ohio St.3d 16, 23 (1986); Evid.R. 101(C)(3).
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Moreover, R.C. 2929.19(A) allows the State and the defendant to “present
information relevant to the imposition of sentence in the case.”
{¶19} Under Ohio law, the results of a polygraph examination are admissible
for purposes of corroboration or impeachment in a criminal trial when there is a
stipulation by both parties. State v. Curry, 3d Dist. Allen No. 1-15-05, 2016-Ohio-
861, ¶ 73, citing State v. Souel, 53 Ohio St.2d 123 (1978), syllabus. Here, a
stipulation was involved agreeing to its admission, and the record shows that the
polygraph results were relevant information relating to the subsequent criminal
proceedings. In fact, the record shows that Brown’s truthfulness was a concern, as
her restitution hearing testimony was that she denied taking the items which the
victim claimed were missing. She insisted that she had not taken any items from
the victim’s house, and that the victim had given her some coins to pay her back
money. Brown had thus “opened the door” to evidence of the results of the
stipulated polygraph which indicated that she did not tell the truth during the
polygraph questioning.
{¶20} Thus, under these circumstances, the polygraph results were used
solely for the purpose of impeachment at the sentencing phase of the proceedings,
and for this reason, we hold that the trial court did not abuse its discretion in
permitting the admission of the results of the polygraph examination.
{¶21} Accordingly, Brown’s fourth assignment of error is overruled.
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{¶22} The trial court’s judgment of sentence is affirmed in part and reversed
in part, and this matter is remanded to the trial court to allow it to determine and
award restitution in accordance with this opinion.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
MILLER and WILLAMOWSKI, J.J., concur.
/jlr
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