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State v. Hume

Court of Appeals of Ohio, Ninth District

June 26, 2013

STATE OF OHIO Appellee
v.
KEITH RICHARD HUME Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 06 1410

RHONDA L. KOTNIK, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

DONNA J. CARR, Judge.

{¶1} Appellant Keith Hume appeals his sentence imposed by the Summit County Court of Common Pleas. This Court affirms in part, reverses in part, and remands.

I.

{¶2} Hume pleaded guilty to one count of felonious assault, one count of failure to comply with order or signal of a police officer (a felony of the third degree), one count of falsification, and one count of unauthorized use of a vehicle. The trial court sentenced Hume to a total of seven years of incarceration, ordered that he pay restitution to the victim in the amount of $1, 842.00, and suspended his driving privileges for the remaining period of his lifetime. Hume appealed and raises three assignments of error for review.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT ERR[]ED WHEN IT IMPOSED RESTITUTION OVER DEFENSE COUNSEL'S OBJECTION WITHOUT HOLDING A RESTITUTION HEARING[.]

{¶3} Hume argues that the trial court erred in imposing restitution in this case. This Court agrees.

{¶4} R.C. 2929.18(A)(1) allows a trial court to order restitution as part of the defendant's sentence when imposing sentence on a felony. The trial court may base the amount of restitution ordered "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." Id. If the victim or offender disputes the amount of restitution, the trial court must hold a hearing. Id .

{¶5} Prior to sentencing, the trial court ordered a presentence investigation report and victim impact statement. The court noted that it had reviewed those in preparation for sentencing. The trial court based its determination that restitution was warranted on information in the presentence investigation report, specifically $2500 in medical costs and $1842 for the value of items stolen. The court then heard arguments from counsel and statements from the victim and Hume on the issue of the amount of restitution. The State made reference to a bonus check received by the victim on the day of the commission of the offense. The victim then clarified that the attorney general's office would be reimbursing her for medical costs, so she was not requesting restitution for those costs. The State confirmed that Hume would be responsible to the attorney general's fund, not the victim, for the victim's medical costs. Hume objected to the imposition of restitution for the victim's bonus check. He claimed that while both he and the victim had outstanding personal property claims stemming from the time they lived together, the instant criminal proceeding was not the proper forum to resolve those issues.

{¶6} Although Hume notes on appeal that the trial court did not hold a separate restitution hearing in this case, it is apparent from the transcript as well as the argument set forth in Hume's merit brief that his primary challenge concerns the trial court's decision to order restitution for an apparent uncharged theft offense. As Hume asserts that requiring him to pay restitution for an apparent theft violated R.C. 2929.18(A)(1), he has raised a question of law. Wetterman v. B.C., 9th Dist. No. 12CA0021-M, 2013-Ohio-57, ΒΆ 8. As noted above, R.C. 2929.18(A)(1) permits the trial court to order restitution in an amount that "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." Here, the trial court ordered Hume to pay restitution to the victim in the amount of $1842, the amount representative of the value of the items stolen. While Hume was convicted of felonious assault, however, he was never charged ...


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