Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State of Ohio v. Scott Sexton

October 14, 2011

STATE OF OHIO,
PLAINTIFF-APPELLEE,
v.
SCOTT SEXTON, DEFENDANT-APPELLANT.



Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-0908134

The opinion of the court was delivered by: Dinkelacker, Presiding Judge.

Cite as State v. Sexton,

OPINION.

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Please note: This case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS

{¶1} Defendant-appellant Scott Sexton pleaded guilty to one count of aggravated assault under R.C. 2903.12(A). The trial court sentenced him to 157 days' incarceration followed by three years of community control. The court also ordered him to pay restitution for lost wages to the victim, Joshua Lang. This appeal followed.

{¶2} In his sole assignment of error, Sexton contends that the trial court erred in ordering restitution without proper substantiation. He argues that the $3,600 of restitution that the court ordered was not supported by competent, credible evidence. We find no merit in this argument.

{¶3} R.C. 2929.18(A)(1) allows the trial court to order restitution based on the victim's economic loss. State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725, ¶20; State v. Policaro, 10th Dist. No. 06AP-913, 2007-Ohio-1469. 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." R.C. 2929.18(A)(1). But competent, credible evidence must support a restitution order so that the court can discern the amount to a reasonable degree of certainty. State v. Webb, 173 Ohio App.3d 547, 2007-Ohio-5670, 879 N.E.2d 254, ¶34; State v. Purnell, 171 Ohio App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, ¶16.

{¶4} The victim impact statement stated that Lang had been working as a host at a restaurant earning $225 per week. He was unable to work for four months after Sexton had punched him and shattered his jaw. Since he lost 16 weeks of work, the total of lost wages came to $3,600. The victim later confirmed that amount at a hearing on the issue of restitution.

{¶5} The victim's testimony was competent, credible evidence that substantiated his loss and supported a restitution award of $3,600. That amount bears a reasonable relationship to the loss suffered. See State v. Hebb, 5th Dist. No. 2010-CA-038, 2011-Ohio-4566, ¶88; State v. Williams (1986), 34 Ohio App.3d 33, 34, 516 N.E.2d 1270. Sexton argues that the award should have been substantiated with tax statements or pay stubs, but the statute does not require that specific type of evidence. Consequently, we overrule Sexton's assignment of error.

{¶6} But we find issues in the record that we raise sua sponte. R.C. 2929.18(A)(1) provides that "[i]f the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender." This court has held that under the plain language of the statute, the trial court must determine the amount of restitution at sentencing if it orders restitution at that time. State v. Wilson, 1st Dist. No. C-061000, 2007-Ohio-6339, ¶15; Purnell, supra, at ¶9.

{¶7} The trial court stated at the hearing that it would order restitution in the amount of $3,600, which we would have affirmed had the court actually ordered it. But the final judgment entry in this case stated that "[t]he defendant is to make restitution for lost wages to the victim, Joshua Lang." It did not specify an amount. A court speaks only through its journal. State v. Jordan, 104 Ohio St.3d 21, 2004- Ohio-6085, 817 N.E.2d 864, ¶6; Purnell, supra, at ¶13.

{¶8} This court has also held that where the court's order imposed restitution as part of the sentence but did not determine the amount of the restitution, the order did not fully determine the action. Therefore, it was not a final appealable order within the meaning of R.C. 2505.02(B). In re Holmes (1980), 70 Ohio App.2d 75, 77, 434 N.E.2d 747. Accord State v. Fite, 4th Dist. No. 10CA888, 2011-Ohio-507, ¶5. But in Holmes, and in cases that have relied on it, the trial court had never held a hearing or heard any kind of evidence on the issue of the amount of restitution. See State v. Thompson, 4th Dist. No. 10CA3177, 2011-Ohio-1564, ¶7-8; State v. Wyant, 4th Dist. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.