State v. Little

[Cite as State v. Little, 2019-Ohio-4488.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180523
TRIAL NO. B-1803532
Plaintiff-Appellee, :
vs. : O P I N I O N.
LOUISHA LITTLE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: November 1, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Louisha Little appeals from a conviction for
misuse of credit cards under R.C. 2913.21(B)(2). She takes issue with two conditions
of her community control. We find no merit in her two assignments of error, and we
affirm her conviction.
{¶2} The record shows that Little worked as a nurse’s aide at a nursing
home. She cared for Yvette Lucas, who was a quadriplegic due to an auto accident.
Little had access to Yvette Lucas’s debit card and pin number, which she used at
more than one ATM. In total, Little took $853 dollars from Yvette Lucas’s bank
account without her permission.
{¶3} Little was subsequently indicted for misuse of a credit card. The
indictment stated the victim of the offense was “an elderly person or disabled adult.”
As part of a plea agreement, Little subsequently agreed to enter a guilty plea.
{¶4} At the plea hearing, Yvette Lucas’s father, Harold Lucas, informed the
trial court that his daughter had passed away and that the account associated with
the debit card was a joint account he had shared with his daughter. He also informed
the court that Key Bank had reimbursed the account the $853.
{¶5} The trial court stated that it would only accept Little’s plea under the
conditions that she pay restitution to Key Bank and that she not work at a health care
“facility.” The court allowed Little to consult with counsel and, after doing so,
counsel stated that Little still wished to enter a guilty plea.
{¶6} After conducting a Crim.R. 11 plea colloquy, the court accepted Little’s
guilty plea. It sentenced her to two years of community control and remitted
probation fees, public-defender-attorney fees, and court costs. The judgment entry
stated the community-control conditions that Little was not permitted to work in the
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OHIO FIRST DISTRICT COURT OF APPEALS
health care “industry,” and that she was to make restitution in the amount of $853 to
Key Bank. This appeal followed.
{¶7} In her first assignment of error, Little contends that the trial court’s
restitution order requiring her to pay $853 to Key Bank was contrary to law. She
argues that a bank that reimburses one of its customers is not a victim of the offense,
and therefore, the court cannot require restitution to be paid to the bank.
{¶8} First, Little did not object to the court’s order that she pay restitution
to the bank as part of the sentence. Therefore, she forfeited any error unless it rose
to the level of plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 21-22; State v. Martin, 1st Dist. Hamilton No. C-110204, 2013-Ohio-
2441, ¶ 5; State v. Bemmes, 1st Dist. Hamilton No. C-010522, 2002 WL 507337, *3
(Apr. 5, 2002). We reverse a sentence for plain error only under exceptional
circumstances to prevent a manifest miscarriage of justice. Rogers at ¶ 23; Bemmes
at *3. Little bears the burden to demonstrate plain error on the record. See Rogers
at ¶ 22; State v. Bedell, 2018-Ohio-721, 107 N.E.3d 160, ¶ 32 (1st Dist.).
{¶9} Little is correct that a court may only order a defendant to pay
restitution to the victim of the offense and not to a third party. State v. Aguirre, 144
Ohio St.3d 179, 2014-Ohio-4603, 41 N.E.3d 1178, ¶ 1; State v. Thornton, 2017-Ohio-
4037, 91 N.E.3d 359, ¶ 15 (1st Dist.); State v. Martin at ¶ 6-7. A bank that
reimburses a customer is not a victim of the offense, and therefore, a trial court
cannot require restitution be paid to the bank. State v. Adams, 2019-Ohio-3597, __
N.E.3d __, ¶ 17 (1st Dist.); State v. Harris, 2015-Ohio-4412, 46 N.E.3d 198, ¶ 8 (6th
Dist.).
{¶10} But, if the defendant agreed to pay the third-party restitution as part of
a plea agreement, the agreement is enforceable. Harris at ¶ 8; State v. McMullen, 1st
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OHIO FIRST DISTRICT COURT OF APPEALS
Dist. Hamilton No. C-140562, 2015-Ohio-3741, ¶ 5. While the payment of restitution
was not part of the plea agreement as negotiated by the parties, the trial court made
the payment of restitution a condition of it accepting the plea. It stated, “You need to
find new employment and pay restitution. * * * [T]hat’s what’s going to happen.”
The court then asked if Little if she still wanted to enter a plea. The court gave her
some time to confer with her attorney. It then asked her attorney what Little wanted
to do. Her attorney said, “We will enter a plea today.”
{¶11} The trial court conducted a thorough inquiry to determine if Little’s
plea was made knowingly, intelligently, and voluntarily. See State v. Fields, 1st Dist.
Hamilton No. C-090648, 2010-Ohio-4114, ¶ 8-10. She agreed to pay restitution to
the bank as a condition of her plea. Any objection to the sentence should have been
raised below. By pleading guilty, Little forfeited any meritorious objections to the
terms of the sentence. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, at ¶ 21; State v. Lane, 2d Dist. Greene No. 2010 CA 21, 2010-Ohio-5639, ¶ 15.
{¶12} Certainly, the record does not show that the court committed plain
error. It is not a miscarriage of justice that Little should be required to pay
restitution that the court repeatedly stated that it would impose as a condition of
accepting her plea. See Bemmes, 1st Dist. Hamilton No. C-010522, 2002 WL
507337, at * 3. Little always had the option to refuse to enter the plea and proceed to
trial. Consequently, we overrule Little’s first assignment of error.
{¶13} In her second assignment of error, Little contends that the trial court
erred in barring her from working in the health care industry as a condition of her
community control. She argues that the condition is overly broad and prevents her
from earning a living. Again, Little never objected to this condition so we review for
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OHIO FIRST DISTRICT COURT OF APPEALS
plain error. See Rogers at ¶ 21-22; Martin, 1st Dist. Hamilton No. C-110204, 2013-
Ohio-2441, at ¶ 5. This assignment of error is not well taken.
{¶14} The trial court has broad discretion in imposing conditions of
community control. An appellate court should reverse the trial court’s decision only
if the court abused its discretion. State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-
4888, 814 N.E.2d 1201, ¶ 10; State v. Cauthen, 1st Dist. Hamilton No. C-130475,
2015-Ohio-272, ¶ 10-11.
{¶15} Nevertheless, that discretion is not unlimited. Talty at ¶ 11; Cauthen
at ¶ 11. The community-control conditions must reasonably relate to the goals of
“doing justice, rehabilitating the offender, and insuring good behavior.” Talty at ¶
12; Cauthen at ¶ 11. In determining whether a condition of community control
reasonably relates to those goals, the court must consider whether the condition (1)
is reasonably related to rehabilitating the offender, (2) has some relationship to the
crime for which the offender was convicted, and (3) relates to conduct that is
criminal or reasonably related to future criminality and serves the statutory ends of
community control. Talty at ¶ 12; Cauthen at ¶ 11. The community-control
conditions “cannot be overly broad so as to unnecessarily impinge upon the
probationer’s liberty.” Talty at ¶ 13.
{¶16} We first note that at the plea hearing, the trial court stated that it
would only accept Little’s plea if she agreed not to work at a health care “facility.” In
fact, the court used the term “facility” a number of times. But it used the words
health care “industry” in the judgment entry. Under the circumstances, we conclude
that the use of the far broader term “industry” was a clerical error, which a court can
correct at any time. Crim.R. 36; State v. Evans, 1st Dist. Hamilton No. C-140503,
2015-Ohio-3208, ¶ 12.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} The condition of community control that Little not work in a health
care facility is reasonably related to rehabilitating Little, has some relationship to the
crime of misuse of credit cards, and reasonably relates to future criminality it that it
prevents Little from obtaining the credit cards of nursing-home patients in the
future. Under the circumstances, we cannot hold that the trial court’s decision
imposing the condition was an abuse of discretion, much less that it rose to the level
of plain error.
{¶18} Additionally, as with the condition that Little pay restitution to the
bank, the court stated that it would accept Little’s plea only on the condition that she
could not work in a health care facility. After consulting with her attorney, Little
accepted the plea. By pleading guilty, Little forfeited any meritorious objections to
the terms of the sentence. See Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, at ¶ 21; Lane, 2d Dist. Greene No. 2010 CA 21, 2010-Ohio-5639, at ¶ 15.
Therefore, we overrule Little’s second assignment of error.
{¶19} In sum, we overrule Little’s two assignments of error and affirm the
trial court’s judgment. We remand the cause to the trial court to enter a nunc pro
tunc entry to reflect what actually occurred at the hearing. Specifically, the entry
should read that as a condition of her community control, Little is “not permitted to
work in a health care facility.” See State v. Harris, 1st Dist. Hamilton Nos. C-170266
and C-170267, 2018-Ohio-2850, ¶ 15; State v. Hafford, 1st Dist. Hamilton No. C-
150578, 2016-Ohio-7282, ¶ 10-11.
Judgment affirmed and cause remanded.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry this date.
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