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State v. Stevens

Court of Appeals of Ohio, Fifth District, Richland

May 23, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JAMES STEVENS Defendant-Appellant

         Appeal from the Court of Common Pleas, Case No. 2015-CR-791

          For Plaintiff-Appellee LINDA MAJESKA POWERS.

          For Defendant-Appellant JOHN C. O'DONNELL.

          JUDGES: Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          WISE, EARLE, 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.

         FACTS 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 deposit money.

         {¶ 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 sentencing.

         {¶ 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 report.

         {¶ 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 as follows:

         I

         {¶ 7} "THE TRIAL COURT ERRED IN CONSIDERING THAT DEFENDANT/APPELLANT BORROWED FOR RESTITUTION WAS A FACTOR ...


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