Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Melynda
J. Machol, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and
Joshua A. Thompson, Assistant Public Defender, for
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
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.
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.
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.
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.
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
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
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, ¶ 11 (1st Dist.). However, in reviewing
trial court orders imposing restitution in felony cases, this
court has utilized ...