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State v. Rox

Court of Appeals of Ohio, Eighth District

June 20, 2013

STATE OF OHIO PLAINTIFF-APPELLANT
v.
JEFFREY ROX DEFENDANT-APPELLEE

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-560781

ATTORNEYS FOR APPELLANT Timothy J. McGinty Cuyahoga County Prosecutor Sanjeev Bhasker T. Allan Regas Joseph J. Ricotta Assistant Prosecuting Attorneys The Justice Center.

ATTORNEYS FOR APPELLEE Robert L. Tobik Cuyahoga County Public Defender, John T. Martin Assistant Public Defender.

BEFORE: E.T. Gallagher, J., Boyle, P.J., and Rocco, J.

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals a judgment that sentenced defendant-appellee Jeffrey Rox ("Rox") to an aggregate seven-year prison term, but did not order restitution. We find no merit to the appeal and affirm.

{¶ 2} Rox pleaded guilty to aggravated vehicular homicide, failure to stop after an accident, and unauthorized use of a vehicle. Before accepting Rox's guilty plea, the court notified him that he would be required to pay restitution to the victims. The court informed Rox at the plea hearing:

Prosecution believes restitution is owing, but does not know the amount and expects to admit evidence to support an order of restitution at the time of sentencing. It's unknown what that would be. You should be aware. Requirement to pay restitution, whatever the State proves by a preponderance of the evidence is the facts of the case, you would be required to pay, do you understand?

{¶ 3} At the sentencing hearing, the prosecutor reminded the court that the state was seeking an order of restitution. He suggested that Rox should pay $5, 560 to Shaian Hudson ("Hudson") for damage to her car. Rox was driving Hudson's car without authorization at the time he crashed into the decedent's vehicle. The prosecutor indicated that he had a receipt for the damaged vehicle, but failed to offer the receipt into evidence. He also suggested that Rox should pay $1, 270.50 in restitution to Triple R Auto Sales because that was the amount owed on the car that was totaled. He stated that the totaled car was valued at $1, 500. The prosecutor informed the trial court that although most of the medical bills were paid by the state, the family of one of the victims paid $41.02 out of pocket for medical treatment. Rox did not stipulate to these amounts, and the state never offered any receipts, documents, or witness testimony into evidence to prove its restitution claims.

{¶ 4} When the court pronounced the sentence, it did not order restitution. Following the court's pronouncement of sentence, the prosecutor asked: "One comment with regard to restitution. I did make representations there are receipts. I don't know if [sic] Court wants to admit it into the record?" The court informed the prosecutor that he failed to produce any evidence in support of restitution prior to the imposition of the sentence and that, after the pronouncement of sentence, it is too late to offer any evidence.

{¶ 5} In its sole assignment of error, the state argues the trial court erred when it arbitrarily refused to admit evidence of restitution after pronouncing its sentence despite the fact that restitution was part of the plea agreement.

{¶6} R.C. 2929.18(A)(1) permits a trial court, as part of a sentence, to order the defendant to pay restitution to the victim of the offender's crime to compensate for the victim's economic loss. State v. Hody, 8th Dist. No. 94328, 2010-Ohio-6020, ¶ 24. We review the trial court's decision whether to award restitution under an abuse of discretion standard. State v. Berman, 8th Dist. No. 79542, 2002-Ohio-1277, ¶ 6, citing State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th Dist. 1995).

{¶ 7} Before awarding restitution, the trial court must determine the amount of restitution to a reasonable degree of certainty, ensuring that the amount is supported by competent, credible evidence. State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990). Where evidence of actual losses is not forthcoming from those claiming restitution, the trial court abuses its discretion in ordering restitution. Marbury at 181.

{ΒΆ 8} In this case, the state presented no evidence to support its restitution claims. Following the prosecutor's presentation of what he believed the evidence would show, the court asked the prosecutor: "Do you wish to offer any other evidence?" In response, the prosecutor addressed an issue concerning judicial release rather than submitting any evidence in support of restitution. Therefore, the trial court would have abused its ...


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