State v. Benjamin

2025 Ohio 5544

• Court: Ohio Court of Appeals
• Decided: December 12, 2025
• Docket: 2025-CA-14
• Status: Published

Opinion

[Cite as State v. Benjamin, 2025-Ohio-5544.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : C.A. No. 2025-CA-14 Appellee : : Trial Court Case No. 2023CR0338 v. : : (Criminal Appeal from Common Pleas TION M. BENJAMIN : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

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Pursuant to the opinion of this court rendered on December 12, 2025, the judgment

of the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

serve notice of this judgment upon all parties and make a note in the docket of the service.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

MARY K. HUFFMAN, JUDGE

EPLEY, P.J., and TUCKER, J., concur. OPINION GREENE C.A. No. 2025-CA-14

COLIN P. COCHRAN, Attorney for Appellant MEGAN A. HAMMOND, Attorney for Appellee

HUFFMAN, J.

{¶ 1} Tion Benjamin appeals from his conviction for theft following his guilty plea,

arguing that the trial court erred in imposing restitution in the amount of $1,655.00. First, he

contends that the trial court erred by failing to adequately consider his present and future

ability to pay restitution as required under R.C. 2929.19(B)(5). However, not only did the

record demonstrate that the trial court considered Benjamin’s present and future ability to

pay but also Benjamin waived the issue of his ability to pay when he agreed to pay restitution

as part of his plea agreement. Second, he argues that he received ineffective assistance of

counsel for his counsel’s failure to object to the restitution order, but any objection would

have been meritless. For the reasons outlined below, we affirm the judgment of the trial

court.

I. Background Facts and Procedural History

{¶ 2} In June 2023, Benjamin was indicted for one count of theft in violation of

R.C. 2913.02(A)(1), a felony of the fifth degree. The charge stemmed from an incident at

DICK’s Sporting Goods during which he stole several pieces of merchandise.

{¶ 3} In December 2024, Benjamin pleaded guilty to the theft charge and agreed to

pay restitution in the amount of $1,655.00 in exchange for the State’s agreement not to

oppose the imposition of community control sanctions at final disposition.

{¶ 4} During Benjamin’s sentencing hearing, the trial court stated that it had

considered the record, oral statements, and presentence investigation report prior to

2 sentencing him. The court further stated that it had considered Benjamin’s present and future

ability to pay financial sanctions, found that he had the ability to pay those sanctions, and

ordered him to pay $1,655.00 in restitution. Benjamin’s counsel did not object to the trial

court’s restitution order.

{¶ 5} Benjamin appealed from the trial court’s restitution order and his counsel’s

failure to object to the same.

II. Assignments of Error

{¶ 6} In his first assignment of error, Benjamin contends that the trial court erred in

failing to adequately consider his present and future ability to pay restitution as required

under R.C. 2929.19(B)(5). According to Benjamin, the trial court must state on the record

and in the sentencing entry the facts upon which it relies in determining that a defendant has

the present and future ability to pay restitution. We disagree.

{¶ 7} In general, “a trial court’s imposition of restitution is reviewed on appeal for an

abuse of discretion.” State v. Brown, 2024-Ohio-2004, ¶ 12 (2d Dist.), citing State v. Wilson,

2015-Ohio-3167, ¶ 11 (2d Dist.). However, “a defendant who does not dispute an amount of

restitution, request a hearing, or otherwise object waives all but plain error in regards to the

order of restitution.” State v. Twitty, 2011-Ohio-4725, ¶ 26 (2d Dist.), citing State v. Ratliff,

2011-Ohio-2313, ¶ 14 (2d Dist.). Since Benjamin did not raise any objections before the trial

court as to the restitution order, we will apply the plain error standard of review.

{¶ 8} Plain error arises only when “but for the error, the outcome of the trial clearly

would have been otherwise.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph two of the

syllabus. “In order to constitute plain error, the error must be an obvious defect in the trial

proceedings, and the error must have affected substantial rights.” State v. Mobley, 2016-

Ohio-4579, ¶ 30 (2d Dist.), citing State v. Norris, 2015-Ohio-624, ¶ 22 (2d Dist.), and

3 Crim.R. 52(B). “[E]ven if an accused shows that the trial court committed plain error affecting

the outcome of the proceeding, an appellate court is not required to correct it.” Id., citing

State v. Rogers, 2015-Ohio-2459, ¶ 23. Plain error should be noticed “with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” (Emphasis added in Rogers.) Id., citing Rogers at ¶ 23, quoting Long, paragraph

three of the syllabus.

{¶ 9} Under R.C. 2929.18(A), a trial court may order restitution “by the offender to the

victim of the offender’s criminal offense or the victim’s estate, in an amount based on the

victim’s economic loss.” “Economic loss” means “any economic detriment suffered by a

victim as a direct and proximate result of the commission of an offense” and includes “[f]ull

or partial payment for the value of stolen or damaged property.” R.C. 2929.01(L);

R.C. 2929.281(A)(1). “The value of stolen or damaged property shall be the replacement

cost of the property or the actual cost of repairing the property when repair is possible.”

R.C. 2929.281(A)(1). “The amount of restitution may be based 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.’” State v. Leach,

2017-Ohio-8420, ¶ 7 (2d Dist.), quoting State v. Lalain, 2013-Ohio-3093, ¶ 3.

{¶ 10} When sentencing a defendant for a felony offense, the trial court shall consider

the offender’s present and future ability to pay the amount of the sanction or fine before

imposing the same. R.C. 2929.19(B)(5). “There are no factors identified in the statute that a

trial court must consider when determining the offender’s present and future ability to pay.”

State v. T.O., 2025-Ohio-15, ¶ 13 (2d Dist.), citing State v. Philbeck, 2015-Ohio-3375, ¶ 27

(2d Dist.). The trial court is not even required to state on the record that it considered an

offender’s present and future ability to pay “so long as there is evidence in the record from

4 which a reviewing court can infer that the trial court considered the offender’s present and

future ability to pay prior to imposing restitution.” Id., citing State v. Hull, 2017-Ohio-7934,

¶ 9-10 (2d Dist.). If the trial court fails to make an explicit finding regarding a defendant’s

ability to pay, the trial court’s consideration of the issue may be “‘inferred from the record

under appropriate circumstances.’” State v. Conley, 2015-Ohio-2553, ¶ 49 (2d Dist.), quoting

State v. Parker, 2004-Ohio-1313, ¶ 42 (2d Dist.).

{¶ 11} Furthermore, when a defendant agrees to pay restitution as part of a plea

agreement, the trial court does not commit reversible error in imposing restitution even if the

court does not first determine the defendant’s ability to pay. State v. Jordan, 2021-Ohio-333,

¶ 8 (6th Dist.), citing State v. Coburn, 2010-Ohio-692, ¶ 22 (6th Dist.). In other words, a

defendant who agrees to pay restitution as part of his plea agreement “‘waives the issue of

whether he or she will be able in the future to pay the amount agreed upon.’” Id., quoting

Coburn at ¶ 22. This is also true “even if the actual amount of restitution was not specified

in the plea agreement.” Jordan at ¶ 10.

{¶ 12} In this case, Benjamin was 27 years old at the time of sentencing. Although he

was unemployed, he had graduated from high school and had pursued studies in HVAC at

Access Ohio Trade School and received a certification. In his presentence investigation

report, the Adult Probation Department opined that Benjamin had the ability to pay all

financial sanctions. During sentencing, the trial court stated that it had considered the record,

oral statements, and presentence investigation report prior to sentencing him. The court

further stated that it had considered his present and future ability to pay financial sanctions,

found that he had the ability to pay those sanctions, and ordered him to pay $1,655.00 in

restitution. These factors were enough to demonstrate the trial court’s consideration of

Benjamin’s present and future ability to pay the restitution amount.

5 {¶ 13} Moreover, as part of his plea agreement, Benjamin agreed to pay restitution in

the amount of $1,655.00 (the exact amount ordered by the trial court) in exchange for the

State’s agreement not to oppose the imposition of community control sanctions at final

disposition. By agreeing to pay restitution, Benjamin waived the issue on appeal of whether

he had the ability to pay.

{¶ 14} Under these circumstances, we cannot say the trial court committed plain error

affecting the outcome of the proceeding nor that there was any error affecting Benjamin’s

substantial rights. Benjamin’s first assignment of error is overruled.

{¶ 15} In his second assignment of error, Benjamin argues that he received

ineffective assistance of counsel because his trial counsel did not challenge the court’s

imposition of restitution.

{¶ 16} We review alleged instances of ineffective assistance of trial counsel under

the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984), and

adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136 (1989).

“Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her

conduct falls within the wide range of reasonable assistance.” State v. Leonard, 2017-Ohio-

8421, ¶ 10 (2d Dist.), citing Strickland at 688. “To establish ineffective assistance of counsel,

a defendant must demonstrate both that trial counsel’s conduct fell below an objective

standard of reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.”

(Citations omitted.) Id. at ¶ 11.

{¶ 17} For the same reasons set forth above associated with his first assignment of

error, Benjamin has not demonstrated that his counsel’s representation of him was not within

the range of competence demanded of attorneys in criminal cases and that his counsel’s

6 conduct fell below an objective standard of reasonableness. Not only did the trial court

properly consider Benjamin’s ability to pay the restitution amount but also Benjamin waived

the issue of his ability to pay when he agreed to pay restitution as part of his plea agreement.

Thus, any objection by trial counsel regarding the restitution order would have been

meritless.

{¶ 18} Accordingly, Benjamin has not demonstrated that any alleged errors by

counsel were serious enough to create a reasonable probability that, but for the errors, the

outcome of his case would have been different. Thus, we conclude that Benjamin has not

shown that he did not receive effective assistance of counsel. His second assignment of

error is overruled.

III. Conclusion

{¶ 19} Having overruled Benjamin’s assignments of error, the judgment of the trial

court is affirmed.

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EPLEY, P.J., and TUCKER, J., concur.