State v. Allen

[Cite as State v. Allen, 2018-Ohio-1529.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-296
v. : (C.P.C. No. 16CR-4178)
Zachary C. Allen, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on April 19, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellant. Argued: Robert D. Essex.
APPEAL from the Franklin County Court of Common Pleas
KLATT, J.
{¶ 1} Defendant-appellant, Zachary C. Allen, appeals from the March 28, 2017
decision of the Franklin County Court of Common Pleas ordering him to pay restitution to
three different banks. Because the banks were not the victims of the underlying offenses,
we reverse.
{¶ 2} Allen was indicted on seven counts of forgery, in violation of R.C. 2913.31, all
felonies of the fifth degree, and seven counts of possession of criminal tools, in violation of
R.C. 2923.24, all felonies of the fifth degree. On January 5, 2017, he withdrew his not guilty
plea and entered a guilty plea to the seven counts of forgery.
No. 17AP-296 2
{¶ 3} At the plea hearing, the state represented that 0n July 5, 2016, Allen entered
three different Chase Banks and cashed four checks. All of the checks were made payable
to Allen for the amount of $598.23 on an account identified as belonging to Park Club
Apartments. On July 19, 2016, Allen went to the Middlefield Banking Company in
Westerville, Ohio, and in Dublin, Ohio. At these banks, he cashed two checks made payable
to himself on an account identified as belonging to Tuttle's Grove Apartments. Also, on
July 25, 2016, Allen cashed a check written on an account identified as belonging to
Progressive Flooring Services at First Merchants Bank. Allen admitted in an interview that
he had been given the checks by someone else, that he went to the banks at that person's
request, and that he knew the checks were counterfeit.
{¶ 4} In accordance with the plea agreement, the trial court entered a nolle
prosequi on the seven counts of possession of criminal tools. The parties also agreed to
jointly recommend to the trial court that Allen be placed on community control. The plea
agreement further contained a provision that stated: "I understand that the Court may also
require me to pay costs, restitution, day fines, and/or costs of all sanctions imposed upon
me. I understand that the imposition of financial sanctions would constitute a civil
judgment against me. (R.C. 2929.18)."
{¶ 5} On March 13, 2017, Allen appeared before the trial court for sentencing. The
state requested that Allen be ordered to pay restitution to Middlefield Banking Company,
First Merchants Bank, and Chase Bank. Allen objected because the banks were not the
account holders on the checks but third parties. When the issue of whether the banks would
be reimbursed by insurance arose, the court continued the hearing.
{¶ 6} At the March 27, 2017 sentencing hearing, Allen continued to object to being
ordered to pay restitution. He did not dispute the amount of the forged checks but argued
there was no evidence that the accounts for Progressive Flooring, Park Club Apartments,
and Tuttle's Grove Apartments had been reimbursed by the banks. If the banks had
reimbursed the accounts, then Allen contended the reimbursement made the banks third
parties and not eligible to receive restitution pursuant to R.C. 2929.18.
{¶ 7} The state responded by noting that the indictment does not list a specific
victim for the forgery counts. It represented that the banks did not have insurance coverage
No. 17AP-296 3
for the losses they suffered. Because the checks were presented to the banks and the banks
paid out the money, the state contended that the banks were the victims.
{¶ 8} The trial court sentenced Allen to a period of community control for three
years. The trial court did not impose a fine and waived court costs. However, the trial court
ordered Allen to pay restitution to Middlefield Banking Company in the amount of
$1,750.48; to First Merchants Bank in the amount of $675.13; and to Chase Bank in the
amount of $2,392.92. The trial court found that because these were forgery offenses, the
banks were the victims as they had the utterances directed at them.
{¶ 9} Allen appealed that decision, asserting the following assignment of error:
The trial court committed reversible error by ordering
Defendant-Appellant to pay restitution to banks at which he
had cashed checks he had forged.
{¶ 10} Allen argues that the trial court erred when it ordered him to pay restitution
to the three banks. He contends that the banks were not the victims. As a result, the
imposition of restitution to the banks violated R.C. 2929.18(A)(1).
{¶ 11} A sentencing court has discretion to order restitution for the economic loss
suffered by the victim as a direct and proximate result of the commission of the offense.
State v. Lalain, 136 Ohio St. 3d 248, 2013-Ohio-3093, ¶ 3. On review of a trial court's
imposition of restitution as part of a felony sentence, we apply the standard set forth in R.C.
2953.08(G)(2)(b), inquiring whether the imposition of restitution is clearly and
convincingly contrary to law. State v. Richmond, 10th Dist. No. 17AP-366, 2018-Ohio-147,
¶ 8; State v. Thornton, 1st Dist. No. C-160501, 2017-Ohio-4037, ¶ 12; State v. Brown, 2d
Dist. No. 26945, 2017-Ohio-9225, ¶ 25. However, when the issue is to whom restitution
can be awarded, we apply a de novo standard of review. State v. Johnson, 10th Dist. No.
14AP-336, 2014-Ohio-4826, ¶ 5; State v. Cartwright, 12th Dist. No. CA2016-11-018, 2017-
Ohio-7212, ¶ 11; State v. Shifflet, 4th Dist. No. 13CA23, 2015-Ohio-4250; State v. Harris,
6th Dist. No. WD-14-069, 2015-Ohio-4412, ¶ 8; State v. Maurer, 8th Dist. No. 103162,
2016-Ohio-1380; and In re M.A., 11th Dist. No. 2015-L-075, 2016-Ohio-1161.
{¶ 12} R.C. 2929.18 provides in pertinent part:
(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
No. 17AP-296 4
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, 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.
{¶ 13} The statute sets forth four possible payees to whom a trial court may order
restitution to be paid: the victim, the adult probation department that serves the county on
behalf of the victim, the clerk of courts, or another agency designated by the court. The
restitution order must be based on the victim's economic loss. "Economic loss" is "any
economic detriment suffered by a victim as a direct and proximate result of the commission
of an offense." R.C. 2929.01(L). As the banks are not an adult probation department, clerk
of court, or another agency designated by the court such as the reparations fund, the banks
must be "victims" in order to be entitled to an order of restitution.
{¶ 14} R.C. 2929.18 does not define "victim." "The Ohio Revised Code contains a
number of different definitions for 'victim' at various junctures in the Code, but at no point
is there promulgated a generally applicable definition that applies to the entire Revised
Code or even to the state's criminal code, found in Title 29." State v. Orms, 10th Dist. No.
14AP-750, 2015-Ohio-2870, ¶ 15. Some Ohio appellate districts have relied on R.C.
2930.01(H)(1) to determine who qualifies as a victim for purposes of restitution. See, e.g.,
Thornton at ¶ 15; State v. Hunter, 2d Dist. No. 25521, 2013-Ohio-3759; Harris at ¶ 8; and
No. 17AP-296 5
Maurer at ¶ 19. That section defines "victim" as "[a] person who is identified as the victim
of a crime or specified delinquent act in a police report or in a complaint, indictment, or
information that charges the commission of a crime and that provides the basis for the
criminal prosecution." R.C. 2930.01(H)(1). Other appellate districts have declined to use
this definition outside of the Victim's Rights, R.C. Chapter 2930, as R.C. 2930.01 specifies
that the definitions apply to that chapter only. Cartwright at ¶ 13 (R.C. 2930.01(H)(1) 's
definition is limited in scope and has no application in determining who is a victim for
purposes of restitution under R.C. 2929.18(A)(1)); State v. Ritchie, 174 Ohio App. 3d 582,
2007-Ohio-6577 (5th Dist.) (declined to use R.C. 2930.01(H)(1) to define "victim" for
purposes of R.C. 2953.36); State v. Goudy, 7th Dist. No. 15 BE 0046, 2016-Ohio-5193. In
this case, the indictment does not identify a victim for any of the forgery counts.
{¶ 15} Black's Law Dictionary defines "victim" broadly as "[a] person harmed by a
crime, tort, or other wrong." Black's Law Dictionary (10th Ed.2014). The state argues that
because the banks cashed the checks Allen presented for payment, they suffered the
economic losses as a result of the forgeries. The state relies on State v. Estes, 3d Dist. No.
13-11-14, 2011-Ohio-5740, as support for its contention that a bank that cashes a forged
check is the victim of the offense. In Estes, the defendant used his ex-wife's information to
apply for two credit cards in her name. He then used the credit cards to make various
purchases. The defendant also used courtesy checks on his ex-wife's existing line of credit
to cause monies to be deposited into his bank account. The Third District Court of Appeals
determined that the banks were the victims who directly suffered economic loss because
the purchases and deposits were funded by the banks. There is no indication that the
defendant's ex-wife was required to pay the credit cards or that any money was taken from
her accounts.
{¶ 16} In this case, however, the representation made to the trial court was that the
accounts of Tuttle's Grove Apartments, Park Club Apartments, and Progressive Flooring
were reimbursed by the banks. Thus, it was the account holders, not the banks, who
suffered the direct economic harm from Allen's actions. The majority of appellate courts
that have addressed similar scenarios have determined that a bank that reimburses its
customer is a third-party and cannot be awarded restitution from a defendant. Harris at
¶ 8; State v. Crum, 5th Dist. No. 12 CAA 08 0056, 2013-Ohio-903, ¶ 12; State v. Stump, 4th
No. 17AP-296 6
Dist. No. 13CA10, 2014-Ohio-1487, ¶ 12; State v. Kiser, 2d Dist. No. 24419, 2011-Ohio-5551,
¶ 16.1
{¶ 17} We agree with these appellate districts. Although the banks cashed the forged
checks, the economic loss was initially suffered by Tuttle's Grove Apartments, Park Club
Apartments, and Progressive Flooring. The banks are third-parties that reimbursed the
accounts that the money was taken from. As such, the banks are not the victims of Allen's
offenses and therefore are not entitled to an order of restitution. The sole assignment of
error is sustained.
{¶ 18} For the foregoing reasons, we reverse the judgment of the Franklin County
Court of Common Pleas and vacate the order to pay restitution to Middlefield Banking
Company, First Merchants Bank, and Chase Bank.
Judgment reversed; restitution order vacated.
SADLER and BRUNNER, JJ., concur.
1 Although not relevant in this case, we note that a defendant can agree to pay third-party restitution as
part of a plea agreement. Harris at ¶ 8; State v. Johnson, 2d Dist. No. 24288, 2012-Ohio-1230, ¶ 14; Maurer
at ¶ 25.