Opinion
H-21-005
11-19-2021
State of Ohio Appellee v. Mark S. Allen Appellant
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee. James E. Valentine, for appellant
Trial Court No. CR 20200550
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
James E. Valentine, for appellant
DECISION AND JUDGMENT
DUHART, J.
{¶ 1} Appellant, Mark S. Allen, appeals the judgment entered by the Huron County Court of Common Pleas, sentencing him to serve an aggregate term of 12 to 15 1/2 years in prison. For the reasons that follow, we affirm the judgment of the trial court.
Facts and Procedural Background
{¶ 2} Appellant was indicted by a Huron County grand jury in July 2020. He was charged with the following offenses: (1) seven counts of attempted murder, in violation of R.C. 2923.02(A) and (E)(1), all felonies of the first degree, and all with firearm and repeat offender specifications; (2) seven counts of felonious assault, in violation of R.C. 2903.11(A)(2) and (D)(1)(a), all felonies of the second degree, and all with firearm and repeat offender specifications; (3) one count of improperly discharging a firearm at or into a habitation, in violation of R.C. 2923.161(A)(1) and (C), a felony of the second degree, with a firearm specification; (4) one count of tampering with evidence, in violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree; and (4) one count of having weapons while under disability, in violation of R.C. 2923.13 (A)(2) and (B), a felony of the third degree.
{¶ 3} Appellant entered into a plea agreement on February 4, 2021. He entered pleas of guilty to one count of felonious assault, with a three-year firearm specification, one count of improperly discharging a firearm at or into a habitation, with a three-year firearm specification, one count of tampering with evidence, and one count of having weapons under disability. The remaining counts and specifications were dismissed.
{¶ 4} The facts underlying the plea agreement, as outlined in the presentence report and by the prosecutor during the plea hearing, are as follows. On or about July 8, 2020, appellant's son was assaulted. The next day, appellant approached an apartment where he believed his son's assailants were located. He fired six shots through the door of the apartment, and one additional shot at the apartment doorway as he was leaving.
{¶ 5} After the shooting, appellant first hid the firearm in the freezer, and then he buried it in a field. Appellant was not legally permitted to possess a firearm due to prior criminal convictions.
{¶ 6} A sentencing hearing was held on March 10, 2021. The court reviewed victim impact statements and the presentence report, and then heard from victims, defense counsel, and appellant. One of the victims stated that as a result of appellant's actions, she had been forced to move from the apartment and, further, she had been required to pay for damage to the front door and other damage related to the shooting. The trial court inquired as to the amount that the victim had spent on repairs, and the victim answered that she had spent "about" $1,200.
{¶ 7} After hearing from all of the relevant parties, the court sentenced appellant to the following: (1) a mandatory minimum term of seven years with a maximum term of ten and one-half years in prison for the offense of felonious assault, plus an additional mandatory three years for the firearm specification; (2) a mandatory minimum term of seven years with a maximum term of ten and one-half years in prison for the offense of improperly discharging a firearm, plus an additional mandatory three years for the firearm specification; (3) a term of two years in prison for the offense of tampering with evidence; and (4) a term of two years in prison for the offense of having weapons while under disability.
{¶ 8} The court ordered the sentences for felonious assault and improperly discharging a firearm to be served concurrently with one another, and consecutively to the sentences for tampering with evidence and having weapons while under disability. In addition, the court ordered the sentences for tampering with evidence and having weapons while under disability to be served concurrently with one another. Thus, the aggregate sentence was a minimum of 12 years and a maximum of 15 1/2 years in prison. In addition, the court sentenced appellant to make restitution in the amount of $1,200.00 to the victim.
Assignments of Error
{¶ 9} Appellant asserts the following assignments of error:
I. The trial court committed reversible error in sentencing defendant/appellant where the evidence clearly and convincingly does not support the trial court's findings.
II. The trial court erred committed reversible error [sic] by ordering restitution with no proof of loss and without holding a hearing and defense counsel was ineffective in failing to object.
Analysis
{¶ 10} The Ohio Revised Code provides the following with respect to an appellate court's review of a trial court's sentence:
The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under division (B)or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.R.C. 2953.08(G)(2). Further, R.C. 2953.08(F) requires appellate courts to review the entire trial court record, including oral and written statements, and any presentence reports.
{¶ 11} With respect to the purposes of felony sentencing and the seriousness and recidivism factors set forth in R.C. 2929.11 and 2929.12, the Supreme Court of Ohio recently observed that "neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual findings on the record." State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, at ¶ 20 (O'Connor, C.J. concurring) (citations omitted); see also State v. Wilson, 6th Dist. Lucas No. L-21-1037, 2021-Ohio-3768, ¶ 21. In addition, the court held that "R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate a sentence based on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12." Id. at ¶ 39; Wilson, at ¶ 22. Thus, R.C. 2953.08 "precludes second-guessing a sentence imposed by a trial court based on its weighing of the considerations in R.C. 2929.11 and 2929.12." State v. Toles, slip opinion No. 2020-1242, 2021-Ohio-3531, ¶ 10.
{¶ 12} Appellant requests that we find that the trial court erred "in sentencing [appellant] where the evidence clearly and convincingly does not support the trial court's findings." In his brief to this court, appellant argues only that the trial court "misapplied" various factors set forth in R.C. 2929.12, "which greatly favored a lesser sentence than that handed down." This alleged error amounts to an argument that the trial court erred by inaccurately weighing the evidence relating to the seriousness and recidivism factors enumerated in R.C. 2929.12. As this court has repeatedly recognized, we are precluded from reviewing a felony sentence "where -- as here -- the appellant's sole contention is that the trial court improperly considered the factors of R.C. 2929.11 or 2929.12 when fashioning [a] sentence." State v. Stenson, 6th Dist. Lucas No. L-20-1074, 2021-Ohio-2256, ¶ 9, citing Jones at ¶ 42; see also State v. Orzechowski, 6th Dist. Wood No. WD-20-029, 2021-Ohio-985, ¶ 13-14 ("In light of Jones, assigning error to the trial court's imposition of sentence as contrary to law based solely on its consideration of R.C. 2929.11 and 2929.12 is no longer grounds for this court to find reversible error."). Because R.C. 2953.08(G)(2) does not authorized this court to consider appellant's argument, we find appellant's first assignment of error is not well-taken.
{¶ 13} Appellant argues in his second assignment of error that the trial court erred by ordering restitution with no proof of loss and without holding a hearing. Appellant further argues that his trial counsel was ineffective in failing to object to the order of restitution.
{¶ 14} R.C. 2929.18(A)(1) permits a trial court to impose restitution as part of a sentence in order to compensate a victim for economic loss. See R.C. 2929.18(A)(1); see also State v. Queen, 3d Dist. Logan No. 8-19-41, 2020-Ohio-618, ¶ 5. The statute further provides:
If the court imposes restitution, at sentencing, the court shall determine the amount of restitution to be made by the offender. If the court imposes restitution, 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, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.R.C. 2929.18(A)(1) (emphasis added).
{¶ 15} In order for a court to impose restitution, "[t]here must be competent and credible evidence in the record from which the court may ascertain the amount of restitution to a reasonable degree of certainty." State v. Estes, 3d Dist. Seneca No. 13-11-14, 2011-Ohio-5740, ¶ 20. "The evidence to support a restitution order can take the form of either documentary evidence or testimony." State v. Jones, 10th Dist. Franklin No. 14AP-80, 2014-Ohio-3740, ¶ 23 (citations omitted). A victim's testimony may itself be sufficient to establish economic loss for the purpose of a trial court's restitution order. State v. Floyd, 10th Dist. Franklin No. 19AP-449, 2020-Ohio-4655, ¶ 18; State v. Young, 6th Dist. Lucas No. L-19-1189, 2020-Ohio-4943, ¶ 13. "In calculating a victim's economic loss, '[t]he reliability of the evidence and the credibility of the witnesses is for the trial court, as trier of fact, to determine.'" Young at ¶ 28.
{¶ 16} Although appellate courts generally apply an abuse-of-discretion standard to an order of restitution, where an appellant does not object to the award of restitution in the trial court, an appellate court will only review the record for plain error. Queen at ¶ 6.
{¶ 17} Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Crim.R. 52(B).
'In order to find plain error under Crim.R. 52(B), there must be an error, the error must be an "obvious" defect in the trial proceedings, and the error must have affected "substantial rights."' State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-Ohio-6524, ¶ 12, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). 'The standard for plain error is whether, but for the error, the outcome of the proceeding clearly would have been otherwise.' State v. Hornbeck, 155 Ohio App.3d 571, 2003-Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist), citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is taken 'only to "prevent a manifest miscarriage of justice."' State v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916m ¶ 23, quoting Long, supra, at paragraph three of the syllabus.State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456. ¶ 17. It is the defendant's burden to establish an obvious defect in the proceedings. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22.
{¶ 18} In the current case, appellant did not object to the imposition of restitution or to the amount of restitution at his sentencing hearing. Therefore, all but plain error has been waived. Queen at ¶ 6. In challenging the restitution order, appellant argues: (1) that there were no receipts or other evidence of the cost of repairs presented; (2) that no hearing was held; and (3) that he had "no foreknowledge" of the issue of restitution.
{¶ 19} Here, the record is clear that the court's order was based on the victim's statement at the sentencing hearing, wherein she described the economic loss she suffered due to appellant's crimes. Specifically, the victim stated:
So, when everything happened, I never thought it would happen to me, and when all that happened with that, was that - like I lost my apartment when that happened, that was the only place I loved. I've actually been homeless since then. I - things got really bad where I was receiving threatening test messages from Isaiah and stuff to where I moved down to Florida, and it was just like I can't even - I can't even talk to anyone who I used to, because it's just more so - like some of them, you know, either branch off don't want to talk to people or the other ones that are going to be showing up in the court today. Alex Santiago, which was
the one he was shooting at. I've tried figuring out everything, and they just won't talk to me. They're just friends with them, I guess, now.
They, you know, it's - mostly it's just me losing my apartment. I had to spend a lot of money to give to them for all this shit. I had to pay for the gunshots going through my door. I had to pay for that. Then I had to pay to get a storage unit, then I had to pay to do all of those - move all the stuff into a place. And I have been homeless since then.
{¶ 20} The trial court then engaged in the following exchange with the victim: THE COURT: Okay. My question to you, [is], you know how much you expended out of your own money for repairs to the apartment as a result of the shots?
[THE VICTIM]: It was about $1,200.
THE COURT: All right. You paid for that? There wasn't insurance, is that right?
[THE VICTIM]: Yeah, I don't have insurance.
THE COURT: All right. Very good. Anything else that you would like me to know?
[THE VICTIM]: I would just really like him to stay there for a very long time, and yet, of course, I would like, you know, to get paid back for everything I can, but if it doesn't happen, it doesn't happen. * * *
{¶ 21} The trial court obviously found the victim to be credible. As the victim's statement directly tied the restitution amount to the economic losses that she incurred as a result of appellant's actions, it likewise constituted competent evidence. Furthermore, appellant never disputed the amount of the economic loss that was claimed, nor did he dispute that the alleged economic loss was a direct and proximate result of his crime. Accordingly, we conclude that the record contains competent, credible evidence to support the trial court's order requiring appellant to pay restitution to the victim in the amount of $1,200.00. We further find that the trial court did not commit plain error by relying on the victim's recommendation in ordering restitution. Thus, the trial court's order of restitution is not clearly and convincingly contrary to law.
{¶ 22} Appellant further complains that the defense "had no warning" of the issue of restitution and "was not provided an opportunity to be heard or to object." In the instant case, the issue of restitution arose when the victim spontaneously stated that she had to spend money to pay for damage caused by the gunshots that appellant fired through her door, to pay for a storage unit, and to pay to move all of her things. Upon hearing her statement, the court questioned the victim concerning the extent of her economic loss. Appellant could have objected at the sentencing hearing and he could have requested a hearing on the order of restitution. But at no time did appellant or his counsel object to restitution or dispute the amount requested by the victim. To the contrary, appellant expressed his desire to the court to make restitution. Specifically, he stated: "I'm sorry it happened. I feel sorry for the little girl. If I can pay for it, I'll pay for it, you know, her little door and stuff. I'm sorry that happened." Where, as here, neither the offender nor the victim disputed the amount of the restitution order, the trial court was not required to conduct a hearing. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 426, paragraph two of the syllabus (holding that a trial court is statutorily required to conduct a hearing on restitution only if the offender, victim, or survivor disputes the amount of restitution ordered); see also R.C. 2929.18(A)(1).
{¶ 23} Finally, appellant contends that his trial counsel was ineffective for failing to object to the order of restitution at the sentencing hearing.
To demonstrate ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that but for counsel's error, the result of the proceedings would have been different. Strickland at 687-688, 696, 104 S.Ct. 2052, 80 L.Ed.2d 674. Under the first prong, 'judicial scrutiny of counsel's performance must be highly deferential. * * * [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * *
*.' State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.State v. Burns, 6th Dist. No. L-11-1192, 2012-Ohio-4191, 976 N.E.2d 969, ¶ 34. A failure to make an objection is not sufficient, in itself, to sustain a claim of ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 103.
{¶ 24} As discussed above, the amount of restitution was based upon the economic losses that were competently and credibly reported by the victim of the offenses to which appellant pleaded guilty and was, thus, supported by the record. In light of this evidence, we find that trial counsel's failure to object to the amount or imposition of restitution did not fall below an objective standard of reasonable performance. See Burns, supra, at ¶ 34. As appellant has not carried the burden of establishing deficient performance, we need not examine the facts of this case under the second prong of the Strickland test. Appellant's second assignment of error is found not well-taken.
{¶ 25} For all of the foregoing reasons, the judgment of the Huron County Court of Common Pleas is 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.
Christine E. Mayle, J., Gene A. Zmuda, P.J. Myron C. Duhart, J. Concur.