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State v. Horton

Court of Appeals of Ohio, Tenth District

November 2, 2017

State of Ohio, Plaintiff-Appellee,
Timothy S. Horton, Defendant-Appellant.

         APPEAL from the Franklin County Court of Common Pleas No. 17CR-670

         On brief:

          Matthew J. Donahue, Special Prosecutor for Franklin County, Ohio, Ohio Attorney General's Office, and Daniel M. Kasaris, for appellee.

          Taft Stettinius & Hollister LLP, David H. Thomas, Kathryn S. Wallrabenstein, and Michael K. Robertson, for appellant.


          David H. Thomas.

          Matthew J. Donahue.


          McGrath, J.

         {¶ 1} Defendant-appellant, Timothy S. Horton, a judge of the Tenth Appellate District, seeks to appeal his sentence after, on Horton's guilty plea, the Franklin County Court of Common Pleas convicted Horton of failure to file accurate campaign statements in violation of R.C. 3517.13(B). Because Horton waived his right to appeal his sentence, because Horton's sentence is not an abuse of discretion, and because the trial court's imposition of restitution does not constitute plain error, we affirm.

         I. Factual and Procedural Background

          {¶ 2} Plaintiff-appellee, State of Ohio, by and through a special prosecuting attorney, filed an information charging Horton with three counts of failure to file accurate statements in violation of R.C. 3517.13(B), misdemeanors of the first degree. The state asserted that Horton willfully and unlawfully reported expenditures to his campaign treasurer while knowing that they were unreasonable and excessive in amounts, thereby causing inaccurate campaign finance reports to be filed with the Ohio Secretary of State.

         {¶ 3} According to the state, on or about March 4, 2014, Horton held a fundraiser at a restaurant where "only one person, aside from Horton and his campaign staff, were present at this event." The state asserted that the expenses from this fundraiser totaled $978.75, with Horton willfully reporting this expenditure to his campaign treasurer while knowing that it was excessive and unreasonable in amount. The state also asserted that in late March 2014 Horton learned that his opponent for a seat on the court of appeals was withdrawing his candidacy. And, according to the state, on or about March 24, 2014, which was near the time that Horton learned his opponent for an appellate judgeship was withdrawing his candidacy, Horton held a private campaign event consisting of a dinner at Hyde Park restaurant in downtown Columbus, Ohio, and he used funds of his campaign committee to pay for the food and beverages of attendees at a cost of $1, 014.09. Additionally, according to the state, on or about July 23, 2014, Horton, who at that point was unopposed in his bid for the appellate judgeship, purchased cigars, which were intended to be made available to campaign supporters during campaign functions. This expenditure allegedly totaled $173.29.

         {¶ 4} On February 2, 2017, Horton signed a petition to enter a guilty plea, representing to the trial court that he was mentally competent to make the petition, that he was not under the influence of drugs or alcohol, that he understood that a guilty plea "will result in my being found guilty, " that "each expenditure involved the misuse of his campaign fund, " and stating that "I am stipulating that, if the matter had gone to trial, the evidence would find me guilty beyond a reasonable doubt." The petition to enter a guilty plea contains counts, which are substantially similar to the alleged violations in the state's bill of information. In the petition to enter a guilty plea, Horton indicated that "for each of the counts I willfully committed the * * * violations of law." And in each of these counts Horton represented that he engaged in "willful" reporting of campaign expenditures while "knowing" that the expenditures were excessive and unreasonable in amount. (Petition to Enter Guilty Plea, at 4-5.) In this petition Horton informed the trial court that he understood that

the maximum direct criminal penalty as to count 1, 2, 3 are as follows: 180 days in local incarceration, a fine of up to $1, 000 as to each count. This maximum penalty does not include possible collateral consequences.
Court costs, restitution, costs of confinement and/or other financial sanctions including fines, day fines, and reimbursement for the cost of any sanctions may also be imposed.

         {¶ 5} In the petition to enter a guilty plea Horton also informed the trial court that he understood that the trial court had discretion whether to impose community control sanctions. And Horton represented to the court that "I know the judge may either sentence me today or refer my case for a pre-sentence investigation (PSI). I understand I have waived my right to appeal* * *."

         {¶ 6} Additionally, in a document labeled Entry Of Guilty Plea, Horton indicated to the trial court that he understood that by pleading guilty he "waive[d] a number of important and substantial constitutional, statutory and procedural rights, which include * * * the right to appeal the verdict and rulings of the trial court made before or during trial, should those rulings or verdict be against my interests."

         {¶ 7} On February 2, 2017, the trial court, through a visiting judge, conducted a plea hearing. At the hearing the special prosecuting attorney informed the trial court that the parties had reached an agreement wherein Horton had waived prosecution by indictment and agreed to proceed by a bill of information. (Tr., 2.) Horton's counsel informed the trial court that the petition to enter a guilty plea constituted the parties' plea agreement. (Tr., 5.) The trial court recognized the waiver of indictment and it agreed to proceed with the plea. (Tr., 5.) After the court granted the special prosecuting attorney's request to put "some additional technical points" of the plea agreement on the record, the special prosecuting attorney informed the court, "The defendant is waiving any statute of limitations issues, his right to appeal his conviction, his right to challenge his conviction collaterally, and his right to have the matter heard by the Ohio Election Commission prior to prosecution, although that actually has been done. He admits that each expense involved the misuse of campaign funds. * * *." (Tr., 8-9.) After the special prosecuting attorney made his representation, defense counsel stated: "That is correct, Your Honor." (Tr., 9.) The trial court later inquired of Horton, stating:

THE COURT: All of the rights that were just stated on the record by Mr. Donahue [special prosecuting attorney] that you are giving up and waiving, including your right of appeal, * * * are you in agreement that you are agreeing to voluntarily give up those rights?
THE DEFENDANT: I am, Your Honor.
THE COURT: Again, the court finds the waiver knowingly, intelligently, and voluntarily entered, especially in light of the signing of the written plea agreement. * * *.

(Tr., 9-10.) Thereafter the trial court reviewed with Horton the rights he was waiving by entering a guilty plea as well as the offenses contained in the bill of information. The court accepted Horton's guilty pleas, found that Horton knowingly, intelligently, and voluntarily entered his guilty pleas, and the trial court made a finding of guilt. (Tr., 13.) Because the court wished to know more about Horton and the circumstances of the matter before it, the trial court ordered a presentence investigation and set a date for sentencing. (Tr., 13.)

         {¶ 8} On March 16, 2017, the trial court conducted a sentencing hearing, affording opportunities to Horton to address the court, to the parties' counsel to present arguments, and to certain judges of the Tenth District Court of Appeals to speak in support of Horton. At the hearing, the court addressed Horton, noting:

* * * All right. When you entered a guilty plea to the three misdemeanor charges, here is in essence what the bill of information said, the mens rea and the language is similar, identical, in fact, with the exception of the particular fund raiser. That on or about whatever particular date in Franklin County, the defendant, Timothy S. Horton, willfully and unlawfully did report an expenditure to defendant's campaign treasurer while knowing that it was unreasonable and excessive in amount, and thus caused inaccurate campaign finance report to be filed.
So what you pled guilty to was, that knowing it was unreasonable and excessive.
Now, when I read your statement in the presentence investigation, that is not what you say. You say in the - I am going to read it here, just so we have a record here, that is not what you say at all.
Your statement to the probation department was - the person who prepared the PSI-the State of Ohio and I stipulated to the relevant facts in this case. They are contained in the bill of information. Additionally, I would add by information, that the accurate - inaccurate statements were caused by three expenditures that were legitimate in purpose but unreasonable by virtue of being excessive in amount. The three excessive payments were caused by a lapse in judgment and a failure to pay appropriate attention, for which I take full responsibility.
So it is like you are gilding the lily here, from my perspective, from the court's perspective. You are saying they were excessive, but you are saying that to use campaign funds that are given to you by voters, by citizens, by attorneys, that it is okay, it is legitimate, it is reasonable to throw a party because you don't have any opposition and spend over a thousand bucks at Hyde Park. Is that what you are saying?
People work hard for their money. They gave you this money - just hold on. I am asking him, not you. They work hard for their money, and they give money to a campaign because they want that person to prevail in the campaign, to win the election, and so you take that money, that hard-earned money of the voters, the citizens, and you throw a party celebrating that you don't have an opponent, and you think that is a reasonable, legitimate expense?

(Tr., 37-39.)

         {¶ 9} Before announcing a sentence in court, the trial court noted that "there is a dearth of decisions dealing with judges who do what you did, and there is a reason that there is a dearth of decisions, because judges don't do this kind of stuff, and it is not just you and your wife and your children who suffer the humiliation of all of this, but you denigrate and demean all judges everywhere, because you do this conduct, then it sets an example of what the judiciary is or what they do, and I have also taken that into consideration." (Tr., 43.)

         {¶ 10} The court also noted that "there are many good things that have been said on your behalf. I don't question any of those. And then the court has to balance those against what happened here, and the fact, again, in my opinion, the court's opinion, you were very callous with the use of these campaign funds. You just didn't care, and you partied on it." (Tr., 44.) The court further stated, "I am also going to order that you make - instead of paying back your campaign fund the rest of this money, I am going to order that you pay $2, 065 to an area food bank or someone that serves poor people food, who don't eat at Hyde Park, who don't spend money frivolously. And that is part of your penalty." (Tr., 47.) Horton did not object to the court's imposition of ...

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