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State v. Jackson

Court of Appeals of Ohio, Eighth District

July 18, 2013


Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-542567


ATTORNEYS FOR APPELLEE: Timothy J. McGinty Cuyahoga County Prosecutor, Steven N. Szelagiewicz Assistant Prosecuting Attorney The Justice Center.

BEFORE: Celebrezze, J., Boyle, P.J., and Jones, J.



{¶ 1} Appellant, Leonardo Jackson, appeals the sentence imposed after he pled guilty to one count of burglary. Appellant argues that the sentence imposed should not have included restitution for certain items of property stolen from the victim and that the court failed to fully consider or appreciate his steps toward rehabilitation. After a thorough review of the record and law, we affirm.

I. Factual and Procedural History

{¶2} On June 16, 2010, while Andrew Diak was sleeping in his hospital room at the Cleveland Department of Veterans Affairs hospital, appellant entered his room and stole Diak's bag that was attached to his wheelchair. Contained within was Diak's wallet, $10 in currency, his Social Security card, Ohio driver's license, veteran and military identification, credit card, and his cell phone.

{¶3} Appellant was indicted on October 20, 2010, on charges of burglary, with a notice of prior conviction and repeat violent offender specification, and theft of a credit card. He could not be located, and a capias warrant was issued for his arrest on November 3, 2010. Appellant was taken into custody on May 7, 2012. He initially pled not guilty, but changed his plea as part of a negotiated plea agreement with the state. On August 20, 2012, appellant pled guilty to burglary in violation of R.C. 2911.12(A)(1), a second-degree felony. The other charge and the specifications were dismissed. The plea agreement also called for appellant to make restitution in the amount of $10. The trial court accepted appellant's plea, ordered a presentence investigation report, and set sentencing for September 18, 2012.

{¶ 4} At sentencing, the court went through the presentence investigation report and allowed appellant and his attorney to make a statement. Agent Todd Springer, with the Department of Veterans Affairs, also read a statement that had been dictated to him by Diak. The trial court reviewed appellant's significant prior criminal history, his long history of drug dependency, and the status of the victim, a paraplegic Air Force veteran injured while serving the country. The trial court found that the crime appellant committed was despicable. It also found that appellant's significant prior criminal history, including a prison sentence in Indiana, which he was currently serving, demonstrated that rehabilitation was unlikely. While appellant did take full responsibility for his actions and showed remorse, the trial court determined that lengthy incarceration was necessary to protect the public and punish appellant for his crime. The court then imposed a seven-year sentence, to be served concurrently to the prison term he was serving in Indiana.

{¶ 5} The court also heard from the state on restitution. The state reviewed the items that Diak reported stolen. The state estimated the value of some of the items using the values indicated in the police report, but did not put forth a value for the leather wallet. The court ordered appellant to pay restitution in the amount of $205: $10 in currency, $150 for a cell phone, $30 for a wallet, and $15 for a bag. The court then ordered appellant to pay court costs and informed him of postrelease control. Appellant appealed assigning two errors:

I. The trial court erred when it imposed an order of restitution under a dismissed charge without evidence of the value of the items for which restitution was ordered and without considering appellant's ability to pay.
II. The trial court erred and imposed a sentence contrary to law when it failed to properly consider and apply R.C. 2929.12 factors prior to imposing sentence and otherwise abused its discretion when it imposed a grossly excessive seven year sentence upon appellant.

II. Law and Analysis

A. Amount of Restitution

{¶ 6} First, appellant claims the trial court could not impose restitution above the $10 he agreed to pay as part of the plea deal. At sentencing, the trial court specifically asked appellant twice if he had any objection to the restitution amounts for the individual items and for the total amount. Appellant did not object or otherwise contest the values the trial court gave to each item. Therefore, appellant has waived all but plain error. State v. Marbury, 104 Ohio App.3d 179, 181, 661 ...

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