Opinion
No. 2-04-47.
October 3, 2005.
Criminal Appeal from Common Pleas Court.
Judgment affirmed.
S. Mark Weller, Attorney at Law, Reg. #0019521, P.O. Box 180, Wapakoneta, OH 45895, for Appellant.
Edwin A. Pierce, Prosecuting Attorney, Amy Otley Fox, Reg. #0059852, P.O. Box 1992, Wapakoneta, OH 45895, for Appellee.
OPINION
{¶ 1} Defendant-appellant Patricia Weatherholtz ("Weatherholtz") appeals from the judgment of the Court of Common Pleas of Auglaize County convicting her of misuse of a credit card.
{¶ 2} In September 2001, Weatherholtz befriended Helen Kessens ("Kessens"). Kessens was seventy-eight years of age at that time. Weatherholtz used her friendship with Kessens to gain her confidence and then to make unauthorized expenditures on Kessens' credit cards in the amount of $3,931.00. Weatherholtz additionally stole $12,000.00 from Kessens.
{¶ 3} On February 1, 2002, the Auglaize County Grand Jury indicted Weatherholtz on one count of theft and one count of misuse of a credit card. Weatherholtz was arraigned on August 17, 2004, and entered pleas of not guilty to both charges. On September 20, 2004, Weatherholtz entered into a plea agreement in which the theft charge was dismissed in exchange for a guilty plea to the misuse of a credit card. As part of the plea agreement, Weatherholtz agreed to make restitution as to all counts of the indictment. A sentencing hearing was held on November 17, 2004. The trial court considered the record, the oral statements made, and the presentence report. Then the trial court sentenced Weatherholtz to 12 months in prison and ordered restitution in the amount of $15,931.99. Weatherholtz appeals from this judgment and raises the following assignment of error.
The trial court committed prejudicial error when it failed to properly follow the sentencing criteria set forth in [R.C. 2929.14] resulting in [Weatherholtz] receiving a sentence which is contrary to law.
{¶ 4} Weatherholtz's assignment of error alleges that the trial court erred by imposing the maximum sentence. In order to impose the maximum sentence, the trial court must make certain findings and must give its reasons for doing so on the record. State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473.
{¶ 5} A review of the record in this case indicates that the trial court considered all of the relevant statutory factors were considered. Based upon those factors, the trial court found that Weatherholtz had committed the worst form of the offense and that she posed the greatest likelihood of committing future crimes. The trial court then set forth its reasons for these findings on the record. Specifically, the trial court discussed Weatherholtz's extensive list of prior criminal convictions for similar offenses and made the following statements.
Most of the people that the Court sees are really not bad people. They have committed an offense, given in to a temptation. Time and time again people come in here as criminal Defendants and talk about how they're not a bad person, they just did something that was wrong and they're sorry for it, and time and time again this Court looks them square in the eye and tells them how I know they're not a bad person, that they've just given in to a temptation and they have to be punished for it but, they're not evil; they're not bad; they just have made a mistake, made a really poor judgment; in a point of weakness done things that they shouldn't have done. I won't say that about this Defendant. She's evil and I hope that the Parole Board sees that and makes her serve the three (3) years of Post Release Control.
Tr. 28. Since the trial court made the required findings and set forth its reasons for those findings on the record, this court does not find any error in the trial court's sentence. The assignment of error is overruled.
{¶ 6} The dissent sua sponte raises the issue of the amount of restitution as being plain error of the trial court. Specifically the dissent claims that Weatherholz cannot be required to pay restitution for an offense for which she was not convicted. Here, Weatherholtz agreed to plead guilty to the charge of misuse of a credit card and pay restitution for all charges in exchange for the dismissal of the theft charge. Thus, Weatherholtz knew that she would be responsible for the total amount of loss, not just that resulting from the misuse of a credit card. Having agreed to pay that amount, Weatherholtz cannot now and has not sought to change the agreement that she entered with the state. Thus there is no error in this regard for this court to recognize on its own motion.
{¶ 7} The judgment of the Court of Common Pleas of Auglaize County is affirmed.
Judgment affirmed. Shaw, J, concurs. Rogers, J., concurs in part and dissents in part.
I concur with the conclusion of the majority as to the enumerated assignment of error. However, upon review of the record, I would find that the trial court's imposition of restitution on counts for which a defendant has not been convicted rises to level of plain error.
{¶ 9} Many courts of this State, including this Court, have recognized that restitution must be limited to the offenses for which a defendant is charged and convicted. State v. Williams, 3d Dist. No. 8-03-25, 2004-Ohio-2801, ¶ 23; State v. Hafer (2001), 144 Ohio App.3d 345, 348, 2001-Ohio-2412. "[A]s a matter of law, an offender cannot be ordered to pay restitution for damages arising from a crime of which he was not convicted." Williams 2004-Ohio-2801 at ¶ 23.
{¶ 10} In the case sub judice, the trial court ordered Weathererholtz to pay restitution in the amount of fifteen thousand nine hundred thirty-one dollars and ninety-nine cents. Because Weatherholtz only pled guilty to the misuse of a credit card charge, the trial court was limited in imposing restitution to only the amount owed for the fraudulent charges. Again, the amount of the fraudulent charges totaled only three thousand nine hundred and thirty-one dollars. While the majority finds that Weatherholtz was on notice that she would be responsible for the total amount of both charges, I cannot find that under the precedent of this Court that such a judgment can stand. Regardless of Weatherholtz's plea agreement to pay restitution on the entire amount charged, this Court has previously held that a defendant in a criminal case can only be ordered to pay restitution for damages arising from those crimes which she was convicted of, as a matter of law. See, Williams at ¶ 23. Accordingly, I would find that the trial court erred in determining the amount of restitution owed by Weatherholtz, and the matter must be remanded for resentencing on the issue of restitution.
{¶ 11} Because restitution cannot be imposed for a crime for which the defendant is not convicted, the imposition of such restitution in defendant's case rises to the level of plain error. Accordingly, I would reverse on the issue of restitution and remand for resentencing.