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State v. Betley

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 28, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRET M. BETLEY DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-613948-A and CR-17-616675-A

          ATTORNEY FOR APPELLANT P. Andrew Baker 1

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Jonathan Block Assistant County Prosecutor

          BEFORE: Kilbane, P.J., Stewart, J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, PRESIDING JUDGE

         {¶1} Defendant-appellant, Bret M. Betley ("Betley"), [1] brings this appeal, challenging the trial court's restitution order resulting from his convictions for misuse of a credit card, theft, and petty theft. For the reasons set forth below, we reverse and remand.

         {¶2} In January 2017, Betley's 75-old grandfather ("Grandfather") reported the unauthorized use of his credit cards to the Independence Police Department. Grandfather reported that someone had used his credit cards without his authorization at various local stores in September 2016 through December 2016. Independence police were able to secure photographs of the individual who had used Grandfather's credit cards from store surveillance videos. Grandfather identified his grandson, Betley, from the photographs and further provided the police with a total amount of $22, 958.22 in unauthorized charges.

         {¶3} In February 2017, Betley was indicted in CR-17-613948-A. The indictment charged him with identify fraud, misuse of credit cards, grand theft, theft, and petty theft.

         {¶4} In April 2017, Grandfather reported additional credit card theft that had occurred in March 2017 to Independence police. The police obtained store surveillance photographs from which Grandfather again identified Betley as the individual using his credit cards. Grandfather reported that Betley had made $5, 459.47 in unauthorized charges during the month of March. Betley was then charged in CR-17-616675-A with theft and identity fraud.

          {¶5} In July 2017, Betley entered guilty pleas in both indictments pursuant to a plea agreement with the state. In CR-17-613948-A, he pled guilty to one count of misuse of a credit card, two counts of felony theft, and three counts of petty theft. In CR-17-616675-A, he pled guilty to one count of theft. At the plea hearing, the trial court questioned the state as to whether it sought restitution from Betley. The assistant county prosecutor explained "there is at this time restitution being sought, but that may clear up as [Grandfather] gets to deal with the credit card companies." The trial court advised Betley that he may be required to pay restitution to Grandfather "in an amount equal to whatever economic losses were caused to [Grandfather] by your conduct." The trial court ordered a presentence investigation report ("PSI") and set the matter for sentencing.

         {¶6} At the sentencing hearing in August 2017, the assistant county prosecutor explained he had spoken to Grandfather, who could not be present due to health issues. The assistant county prosecutor further advised the trial court that

the credit card companies are still trying to go after [Grandfather] for the purchases made [by Betley] in this case. He has, throughout the course of the pretrials, tried to show that these were fraudulent charges, ones that he did not authorize. He believes that at the conclusion of this case, showing that the sentencing the plea and sentencing has taken place, that the credit card companies would honor the fact that he in fact did not accrue this large sum here. But as of today's proceedings, he is still on the hook for all of the bills that Mr. Betley accrued on his behalf.

         {¶7} The trial court questioned the state as to the amount of ...


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