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State v. Thornton

Court of Appeals of Ohio, First District, Hamilton

May 31, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
TAJUANA THORNTON, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1506313

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.

          OPINION

          ZAYAS, JUDGE.

         {¶1} Defendant-appellant Tajuana Thornton appeals from the judgment of the trial court convicting her of theft under R.C. 2913.02(A)(1), a fifth-degree felony, sentencing her to serve five years of community control, and ordering her to pay a $250 fine and $5, 454.01 in restitution to the victims, John and Merri Gerke. In her sole assignment of error, Thornton asserts that the trial court abused its discretion in ordering her to pay $5, 454.01 in restitution. Because we find that the Gerkes had not suffered an economic loss, we hold that the trial court's order of restitution was contrary to law. We modify the judgment to remove the restitution order, and affirm the judgment of the trial court as modified.

         Background

         {¶2} While living at the home of John and Merri Gerke, Thornton, without permission, used a check belonging to the Gerkes to pay her rent at another location, and used their bank account to pay several bills. The Gerkes reported the funds stolen to Fifth Third Bank, which reimbursed the Gerkes $5, 454.01, the full amount stolen by Thornton.

         {¶3} Thornton was indicted for two counts of theft, one count of forgery, and two counts of telecommunications fraud. The Gerkes were the only victims listed in the indictment. Thornton waived her right to a jury trial and pleaded guilty to one count of theft in violation of R.C. 2913.02(A)(1). The trial court accepted her guilty plea.

         {¶4} At Thornton's sentencing hearing, after reviewing the victim-impact statement, the trial court recognized that Fifth Third Bank had reimbursed the Gerkes for their loss. The trial court initially ordered that Thornton pay restitution to Fifth Third Bank or to the Gerkes. Defense counsel remarked that R.C. 2929.18 did not permit the trial court to order Thornton to pay restitution to a third party, and that Fifth Third Bank was not a proper victim before the court. The trial court stated, "Well, then what I'll do is I'll order the Gerkes to be paid * * * $5, 454.01. And I guess it's up to them whether they want to pay the bank back." The trial court explained that it may promote theft if Thornton did not have to pay back the money that she had stolen from the Gerkes. The trial court entered judgment on count one, dismissed the other counts, sentenced Thornton to five years' community control, imposed a $250 fine and court costs, and ordered $5, 454.01 in restitution to be paid to the Gerkes.

         {¶5} Thornton filed a motion to stay the order of restitution pending appeal. The trial court denied her motion. Thornton also filed a motion to stay the execution of her sentence with this court, which was also denied.

         Assignment of Error

         {¶6} In her sole assignment of error, Thornton alleges that the trial court abused its discretion in ordering her to pay $5, 454.01 in restitution. Thornton argues that the Gerkes did not suffer an economic loss, because Fifth Third Bank had, prior to her sentencing, reimbursed them for the entire amount.

         Standard of Review

         {¶7} R.C. 2953.08 governs felony-sentencing appeals. The statute provides that a defendant who has pleaded guilty to a felony may appeal as a matter of right on the ground that the sentence is contrary to law. R.C. 2953.08(A)(4). A sentence is defined as "the sanction or combination of sanctions imposed by the sentencing court on an offender who is convicted of or pleads guilty to an offense." R.C. 2929.01(EE). " 'Sanction' means any penalty imposed upon an offender who is convicted of or pleads guilty to an offense, as punishment for the offense * * * [and] includes any sanction imposed pursuant to * * * [R.C.] 2929.18 * * *." R.C. 2929.01(DD). A sentencing court may impose restitution as a part of a felony sentence pursuant to R.C. 2929.18.

         {¶8} In reviewing challenges to felony sentences pursuant to R.C. 2953.08, "we may only modify or vacate [a] sentence if we 'clearly and convincingly find' that either (1) the record does not support the mandatory sentencing findings, or (2) that the sentence is 'otherwise contrary to law.' " State v. White,2013-Ohio-4225, 997 N.E.2d 629, ΒΆ 11 (1st Dist.). However, in reviewing trial court orders imposing restitution in felony cases, this court has utilized ...


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