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State v. Jones

Court of Appeals of Ohio, Eleventh District

June 24, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
JOHN M. JONES, Defendant-Appellant.

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000165. Judgment: Reversed and remanded.

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee, Assistant Prosecutor, (For Plaintiff-Appellee).

Werner G. Barthol, Werner G. Barthol Co., L.P.A., (For Defendant-Appellant).

OPINION

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, John M. Jones, appeals the judgment of the Lake County Court of Common Pleas ordering him to pay restitution in the amount of $17, 850 to the victim of his criminal act, less any recovery from the police impound. For the following reasons, we reverse and remand the matter for proceedings consistent with this opinion.

{¶2} Appellant entered a plea of guilty to attempted engaging in a pattern of corrupt activity, a felony of the third degree, in violation of R.C. 2923.02 and R.C. 2923.32(A)(1); grand theft of a motor vehicle, a felony of the fourth degree, in violation of R.C. 2913.02(A)(1); and two counts of receiving stolen property, misdemeanors of the first degree, in violation of R.C. 2913.51.

{¶3} The trial court determined that appellant was able to pay, or was likely in the future to be able to pay, a financial sanction of restitution to the victims of his criminal acts. The trial court ordered appellant to pay $17, 850.27 to victim Mike Bunt. Said amount is included in the fine on count one, attempted engaging in a pattern of corrupt activity, a third-degree felony. Subsequently, the prosecuting attorney filed a notice of total value of recovered property belonging to Mr. Bunt in the amount of $2, 865. There has been no appeal or other objection noted with regard to this amount.

{¶4} Appellant filed a notice of appeal and asserts the following assigned error:

{¶5} "The trial court's ordering appellant to pay restitution in an amount that was not reasonably certain and exceeded the statutory value range for a misdemeanor charge of receiving stolen property was contrary to law."

{¶6} At the outset, we note the state indicates in its brief that, because a notice of total value of recovered property was filed and the trial court did not subsequently adjust the amount of restitution ordered, this case should be remanded for that purpose. We agree. At issue is not only calculation of the restitution, but calculation of the ultimate restitution-based fine.

{¶7} At the sentencing hearing, the trial court stated that it multiplied the total loss with respect to Mr. Bunt-i.e., $17, 850.27-by three, for a total of $53, 550.81 or three times the gross total loss. This amount represents the fine imposed pursuant to R.C. 2923.32(B)(2)(a). As the trial court noted in its judgment entry of sentencing, appellant's restitution toward Mr. Bunt was in the amount of $17, 850.27, "* * * (less any recovery from the police impound), the victims' economic loss." That recovery amount is reported to be $2, 850. Based on the trial court's calculation of the fine, by multiplying three times the gross total loss, it appears the trial court may have intended to subject appellant to a fine of $44, 955.81 on count one. However, while the trial court made clear that the amount of restitution was to be credited by the value of the recovered items, it is not clear whether the corresponding fine imposed pursuant to R.C. 2923.32(B)(2) was to be adjusted as well. On remand, the trial court, having the information available concerning the value of the recovered property to be credited, will be able to clarify the calculation with regard to both the restitution and the fine imposed.

{¶8} Appellant's issue presented for review under this assignment states:

{¶9} "The trial court abused its discretion by denying Appellant a hearing on the issue of restitution and further erred by imposing a 'modifiable' restitution order which exceeded the value range for the misdemeanor charge to which Appellant plead guilty and which was not supported by reliable evidence."

{¶10} In addition to objecting to the failure to afford him a hearing, appellant argues the amount of restitution ordered was speculative because the amount was derived solely from the victim impact statement which was not subject to cross-examination. Appellant also maintains that because receiving stolen property is a misdemeanor, ...


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