Opinion
Court of Appeals No. L-17-1242
06-29-2018
State of Ohio Appellee v. Rico Lashawn Wright Appellant
Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. Karin L. Coble, for appellant.
Trial Court No. CR0200902822 DECISION AND JUDGMENT Julia R. Bates, Lucas County Prosecuting Attorney, and Alyssa Breyman, Assistant Prosecuting Attorney, for appellee. Karin L. Coble, for appellant. OSOWIK, J.
{¶ 1} This is an appeal from a September 20, 2017 sentencing judgment of the Lucas County Court of Common Pleas, ordering appellant to pay restitution to the victim, an area retailer, for jewelry and other merchandise stolen by appellant.
{¶ 2} On September 22, 2009, appellant was indicted for grand theft, in violation of R.C. 2913.02(A)(1), a felony of the fourth degree. On August 8, 2017, appellant pled guilty pursuant to a negotiated plea agreement to one reduced count of petty theft, a misdemeanor of the first degree.
{¶ 3} This case stems from appellant's theft, in coordination with an accomplice, of approximately $60,000 of jewelry and other merchandise from a suburban Toledo Meijer store. Appellant was sentenced to 180 days incarceration, given credit for time served, and the balance of time was suspended. Lastly, appellant was ordered to pay $29,549.84 in restitution to Meijer.
{¶ 4} Appellant, Rico L. Wright, sets forth the following four assignments of error:
I. The trial court's order of restitution is contrary to law where it ordered restitution in an amount pursuant to the charged offense (grand theft) and not the amount pursuant to the conviction (petty theft).
II. The trial court erred in imposing restitution when the record contained insufficient competent, credible evidence of the amount ordered.
III. The trial court erred in imposing restitution without a finding that appellant had the ability to pay the amount.
IV. Trial counsel rendered ineffective assistance of counsel by failing to object to the amount of restitution.
{¶ 5} The following undisputed facts are relevant to this appeal. On July 24, 2009, appellant and the accomplice entered the Oregon Meijer store in the early hours of the morning. The two stole vast quantities of merchandise from the jewelry, housewares, and liquor departments. They fled the store with the stolen merchandise.
{¶ 6} Significantly, video surveillance on the premises showed the two men hunched behind the jewelry counter with a crowbar at approximately 4:50 A.M. The jewelry counter was breached and a large volume of wedding jewelry was stolen.
{¶ 7} Upon discovery of the theft, Oregon police were contacted and responded to the crime scene. The responding officers confirmed that a significant amount of merchandise, primarily wedding jewelry, had been stolen from the store. The record reflects that $59,099.68 worth of merchandise from multiple departments was taken during the heist.
{¶ 8} The investigating detective recovered two fingerprints from the crime scene. Running the fingerprints through the criminal database returned a match for appellant's accomplice. During an interrogation subsequent to his arrest, although the accomplice generically admitted to recalling being at a Meijer store with appellant at some point, he unconvincingly failed to recall being at that particular Meijer location with appellant. Regardless, the accomplice's girlfriend was interviewed and positively identified appellant and the accomplice from the video surveillance footage of the perpetrators recorded inside the store at the time of these events.
{¶ 9} On September 22, 2009, appellant was indicted on one count of grand theft, in violation of R.C. 2913.02(A)(1). On September 30, 2009, appellant failed to appear for arraignment and a warrant was issued. On June 5, 2017, nearly eight years later, the warrant was served, appellant was arrested out-of-state, and was later returned to Ohio.
{¶ 10} On August 8, 2017, pursuant to a voluntary plea agreement, appellant entered a plea of guilty to the lesser offense of petty theft. On September 21, 2017, appellant was sentenced to 180 days incarceration, with credit for 15 days served, and the remaining 165 days suspended. The trial court judge then ordered appellant to pay $29,549.84 in restitution, half of the amount of the merchandise stolen from the victim. This appeal ensued.
{¶ 11} Appellant's criminal history includes prior felony theft and retail fraud offenses in multiple states. The propriety of the trial court's restitution order is the basis of appellant's arguments on appeal.
{¶ 12} In the first assignment of error, appellant asserts that the restitution order was unlawful based upon the amount of restitution being greater than that classifying the plea bargain offense. We do not concur.
{¶ 13} The Supreme Court of Ohio has established that a trial court can order any amount of restitution, "so long as it does not exceed the amount of economic loss suffered as a direct and proximate result of the commission of the offense." State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 3.
{¶ 14} A trial court's restitution determination in a theft case is not restricted to a value that corresponds to the level on which the offense was predicated. State v. Scurlock, 6th Dist. Lucas No. L-15-1200, 2017-Ohio-1219, ¶ 51. As a result, a restitution figure is not required to correlate to the same value classifying the degree of the theft offense. Rather, it should reflect the economic loss the victim sustained due to the offender's actions. Lalain at ¶ 27.
{¶ 15} Accordingly, although appellant pled guilty to a lesser offense of petty theft, pursuant to a negotiated plea agreement, the voluntary plea deal did not operate so as to restrict the trial court in determining the amount of restitution. Wherefore, we find appellant's first assignment of error not well-taken.
{¶ 16} In the second assignment of error, appellant similarly asserts that the trial court committed error in imposing the disputed restitution order. Appellant suggests there was insufficient evidence to determine a proper amount of restitution. We do not concur.
{¶ 17} R.C. 2929.28(A)(1) establishes that court-ordered restitution to a victim may properly be based on the victim's economic loss. "The court may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property." Id. This amount shall not exceed the amount of economic loss suffered by the victim as a direct and proximate result of the commission of the offense.
{¶ 18} "To be a lawful order, the amount of the restitution must be supported by competent, credible evidence from which the court can discern the amount of the restitution to a reasonable degree of certainty." State v. Alcala, 6th Dist. Sandusky No. S-11-026, 2012-Ohio-4318, ¶ 30, citing State v. Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999).
{¶ 19} Here, the record of evidence reflects that the stolen merchandise taken from the retailer was valued at approximately $60,000. Appellant was ordered to pay half of that amount in restitution to the victim. Appellant has failed to demonstrate that the evidence underlying the restitution order was improper. Appellant's subsequent rejection of the figure does not constitute a meritorious legal basis to overturn the restitution order.
{¶ 20} The record reflects that the trial court's decision was properly based upon competent, credible evidence. Wherefore, we find appellant's second assignment of error not well-taken.
{¶ 21} In the third assignment of error, appellant again asserts that the trial court erred in ordering restitution. In this assignment, appellant contends that the trial court did not properly assess appellant's ability to pay. We do not concur.
{¶ 22} R.C. 2929.28(B) establishes that the court, "may hold a hearing to determine whether the offender is able to pay the financial sanction imposed pursuant to this section * * * or is likely in the future to be able to pay." However, such a hearing is not compulsory. Lalain, supra, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423 at ¶ 27. There must be some evidence in the record that, "the court considered the defendant's present and future ability to pay the sanction imposed." State v. Jones, 6th Dist. Lucas No. L-13-1193, 2015-Ohio-629, ¶ 37; State v. Reigsecker, 6th Dist. Fulton No. F-03-022, 2004-Ohio-3808, ¶ 10.
{¶ 23} This court has found an ability to pay restitution in analogous prior cases. An offender was deemed able to pay where he was 32 years old, obtained a GED, and had been employed previously. See State v. Flowers, 6th Dist. Lucas No. L-14-1141, 2015-Ohio-908, ¶ 13. An offender was deemed able to pay where he had attained, "some college" education and had a fairly consistent work history. See State v. Willis, 6th Dist. Lucas No. L-11-1274, 2012-Ohio-6070, ¶ 20.
{¶ 24} The sentencing entry states, "Defendant found to have, or reasonably expected to have, the means to pay all or part of the applicable costs * * *." The record reflects that appellant was 28 years old at the time of sentencing, had earned a college degree, and was consistently employed as a mechanic. Appellant's ability to pay was properly supported by the evidence. Wherefore, we find appellant's third assignment of error not well-taken.
{¶ 25} Lastly, in the fourth assignment of error, appellant similarly asserts that his trial counsel rendered ineffective assistance of counsel by failing to object to the amount of the restitution order. We do not concur.
{¶ 26} To establish ineffective assistance of counsel, appellant must demonstrate, "(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel's errors, the proceeding's result would have been different." State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 48, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, there must be a determination as to, "whether there has been a substantial violation of any of defense counsel's essential duties to his client," and, "whether the defense was prejudiced by counsel's ineffectiveness." State v. Bradley, 42 Ohio St.3d 136, 141, 538 N.E.2d 373 (1989) (emphasis added).
{¶ 27} As determined above, the restitution order was lawful. Failure to object to a lawful restitution order cannot constitute ineffective assistance of counsel. Issuing an objection lacking in merit would not have produced a different outcome. Wherefore, we find appellant's fourth assignment of error not well-taken.
{¶ 28} Based upon the foregoing, the judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J.
Thomas J. Osowik, J.
Christine E. Mayle, P.J.
CONCUR. /s/_________
JUDGE /s/_________
JUDGE /s/_________
JUDGE