Opinion
Case No. 2014AP0045
05-29-2015
IN THE MATTER OF: T.B. ALLEGED DELINQUENT CHILD
APPEARANCES: For State of Ohio AMANDA MILLER RYAN STYER Tuscarawas County Prosecutor 125 E. High Avenue New Philadelphia, OH 44663 For T.B. SHERYL TRZASKA Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, OH 43215
JUDGES: Hon. W. Scott Hon. William B. Hoffman, J. Hon. Patricia A. Delaney, J.
OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Tuscarawas County Court of Common Pleas, Case No. 14JD00203 JUDGMENT: Reversed and Remanded APPEARANCES: For State of Ohio AMANDA MILLER
RYAN STYER
Tuscarawas County Prosecutor
125 E. High Avenue
New Philadelphia, OH 44663
For T.B. SHERYL TRZASKA
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215
Gwin, P.J.
Facts and Procedural History
{¶1} On July 30, 2014, a complaint was filed in the Tuscarawas County Juvenile Court, alleging that seventeen-year-old Tucker B. was delinquent of one count of breaking and entering, in violation of R.C. 2911.13(A)&(C), and a fifth-degree felony if committed by an adult. (T. at 1). The complaint alleged that Tucker entered Brown's Petrol Station and stole "automotive batteries and a cash register." (T. at 1). The police report specifies that four vehicle batteries valued at $419.00, and a cash register valued at $500.00, were taken from the station. (7/2/2014 Gnadenhutten Police Report, p. 1; 11). According to the Property and Evidence section of the police report, the batteries and the cash register were recovered.
{¶2} Because Tucker is indigent, the juvenile court appointed an attorney from the county public defender's office to represent him. (T. at 4). On September 26, 2014, Tucker admitted to breaking and entering as alleged in the complaint, and was adjudicated delinquent. (T. at 11). For disposition, the juvenile court committed Tucker to DYS for a minimum period of six months, maximum of his twenty-first birthday, and again ordered him to pay $1,100.00 in restitution.
{¶3} The amount of restitution was based on the victim's estimated value of the property contained in the victim impact statement, which did not address that the property was recovered:
{¶4} The following is an estimated value of what was taken from me
Labor and materials for building damage | 100.00 |
Antique cash register | 500.00 |
Car batteries and copper tubing | 500.00 |
Peace of mind and relief from anxiety formyself, family, and customers of beingrobbed again I am seeking minimum of | 1000.00 |
(T. at 11; 8/29/2014 Victim Impact Statement).
Assignments of Error
{¶5} T.B. raises three assignments of error:
{¶6} "I. THE JUVENILE COURT COMMITTED PLAIN ERROR WHEN IT ORDERED TUCKER B. TO PAY AN AMOUNT OF RESTITUTION WHICH EXCEEDED THE ACTUAL ECONOMIC LOSS SUFFERED BY THE VICTIM. R.C. 2152.20(A)(3); FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE 1, SECTION 16, OHIO CONSTITUTION.
{¶7} "II. THE JUVENILE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CONSIDER COMMUNITY SERVICE IN LIEU OF FINANCIAL SANCTIONS BEFORE ORDERING TUCKER B. TO PAY RESTITUTION, IN VIOLATION OF R.C. 2152.20(D); FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE 1, SECTION 16, OHIO CONSTITUTION.
{¶8} "III. TUCKER B. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16, OHIO CONSTITUTION."
I.
{¶9} In his first assignment of error, T.B. contends that because there was no competent, credible evidence that the juvenile court ordered T.B. to reimburse the victim for his actual economic loss, the juvenile court committed plain error when it ordered T. B. to pay $1,100.00 in restitution.
{¶10} In its brief, the State of Ohio agrees the restitution order should be vacated and the issue remanded back to the Tuscarawas County Juvenile Court for the purposes of conducting a restitution hearing.
{¶11} Accordingly, T.B.'s first assignment of error is sustained. The order of restitution is vacated and the matter is remanded for an evidentiary hearing on restitution.
II & III
{¶12} In light of our disposition on T.B.'s first assignment of error remanding this case for an evidentiary hearing on the amount of restitution, we find T.B.'s second and third assignments of error to be premature.
{¶13} The judgment of the Tuscarawas Court of Common Pleas, Juvenile Division concerning restitution is reversed and vacated, and this case is remanded to that Court for an evidentiary hearing on restitution. By Gwin, P.J., Hoffman, J., and Delaney, J., concur