Court of Appeals of Ohio, Fifth District, Richland
from the Court of Common Pleas, Case No. 2015-CR-791
Plaintiff-Appellee LINDA MAJESKA POWERS.
Defendant-Appellant JOHN C. O'DONNELL.
JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
1} Plaintiff-Appellant, James Stevens, appeals the
September 1, 2016 sentencing entry of the Court of Common
Pleas of Richland County, Ohio. Defendant-Appellee is the
state of Ohio.
AND PROCEDURAL HISTORY
2} On September 30, 2009, Don and Marsha Jaenke
(spelled Yanke in the sentencing transcript), each in their
seventies, entered into a contract with appellant for
appellant to replace the roof of their residence. The Jaenkes
paid appellant a $9, 000.00 deposit. Although appellant
delivered a few materials to the home and started minimal
work, he never completed the job, nor did he return the
3} On September 2, 2015, the Richland County Grand
Jury indicted appellant on two counts of theft from an
elderly person or disabled adult in violation of R.C.
2913.02(A)(2) and (3). On June 1, 2016, an order for deposit
on restitution was filed wherein the state and appellant
agreed to a restitution amount of $8, 609.46 owed to the
Jaenkes. The amount of $3, 300.00 was to be deposited into an
account created by the Richland County Clerk of Courts which
was to be maintained pending appellant's plea and
4} In order to make the deposit, appellant borrowed
$3, 000.00 on the same day from Stanley and Patsy Newmeyer,
another elderly couple who were present in the courtroom.
Thereafter, appellant pled guilty to the R.C. 2913.02(A)(2)
count, a felony in the third degree. The additional count was
dismissed. The state agreed if appellant deposited the
remainder of the restitution amount prior to the sentencing
date, the count would be amended to a felony in the fourth
degree. The trial court ordered a presentence investigation
5} A sentencing hearing was held on August 31, 2016.
The trial court heard from the prosecutor, defense counsel,
appellant, the Jaenkes, and Mrs. Newmeyer. By judgment entry
filed September 1, 2016, the trial court sentenced appellant
to three years in prison.
6} Appellant filed an appeal and this matter is now
before this court for consideration. Assignments of error are
7} "THE TRIAL COURT ERRED IN CONSIDERING THAT
DEFENDANT/APPELLANT BORROWED FOR RESTITUTION WAS A FACTOR