State v. Brandenburg

2024 Ohio 5943

• Court: Ohio Court of Appeals
• Decided: December 20, 2024
• Docket: 30116
• Status: Published

Opinion

[Cite as State v. Brandenburg, 2024-Ohio-5943.]

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

STATE OF OHIO : : Appellee : C.A. No. 30116 : v. : Trial Court Case No. 2023 CR 02695 : STEPHANIE BRANDENBURG : (Criminal Appeal from Common Pleas : Court) Appellee : :

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OPINION

Rendered on December 20, 2024

CHARLES W. SLICER, III, Attorney for Appellant Merker Iron

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee State of Ohio

STEPHEN H. ECKSTEIN, Attorney for Appellee Stephanie Brandenburg

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WELBAUM, J.

{¶ 1} Appellant Merker Ornamental Iron, Inc. (“Merker Iron”) appeals from a

judgment of the Montgomery County Court of Common Pleas insofar as the sentence it

imposed on defendant-appellee Stephanie Brandenburg did not include an order of -2-

restitution. Specifically, Merker Iron contends that the trial court violated its rights under

Article I, Section 10a of the Ohio Constitution by failing to hold a restitution hearing and

by failing to order Brandenburg to pay Merker Iron restitution as part of her community

control sanctions for her conviction related to stealing from the company. For the

reasons outlined below, we disagree with Merker Iron’s claims and will affirm the

judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On October 11, 2023, a Montgomery County grand jury returned a two-count

indictment charging Brandenburg with one count of theft and one count of grand theft.

The charges stemmed from allegations that, while in the employment of Merker Iron,

Brandenburg contacted customers who had been given estimates for services and told

them that if they submitted a cash payment to her directly, they would receive a discount.

It was alleged that for almost a two-year period, Brandenburg would pocket the cash she

received from Merker Iron’s customers and then falsify contracts and deposit slips to

cover up her wrongdoing. As a result, Merker Iron either completed work without

payment or reneged on contracts and repaid cash to customers.

{¶ 3} After plea negotiations, Brandenburg agreed to plead no contest to one first-

degree-misdemeanor count of possession of criminal tools in exchange for the State’s

dismissal of the indicted theft charges. As part of the plea agreement, the State also

agreed that Brandenburg would serve no jail time and pay no restitution. During

Brandenburg’s plea hearing, Merker Iron had a representative in attendance who advised -3-

the trial court that Merker Iron was not in agreement with Brandenburg’s plea deal. In

expressing Merker Iron’s displeasure with the plea deal, the representative (“the victim’s

representative”) explained that Brandenburg’s criminal conduct had caused the

corporation over $100,000 in economic loss and almost put it out of business. The

victim’s representative also stated the following:

We realized we’re probably not ever going to get restitution. We did

not agree to that but because we did get partial payment from our insurance

company to help us because it was also during COVID, that’s – she told us

that that’s why we don’t get any restitution. So that’s the law, whatever.

...

In closing, we ask the Court to consider the damage she’s caused to

a local business. We’re afraid she’ll do it again. She denied it all over

town. She has defamed my brother and our business. . . . Everyone’s

told me, [Brandenburg] says you’re a liar. She didn’t do this.

She’s not repentant. She’s not remorseful. We just would

appreciate an additional judgment on her, jail time, perhaps weekends.

Something besides this plea deal, which, in our opinion, is merely a smack

on the hand. And that’s all I have to say.

Plea Hearing Tr. (Mar. 12, 2024), p. 8-9.

{¶ 4} Following those comments, the trial court conducted a plea colloquy with

Brandenburg, accepted her no contest plea, and found her guilty of possession of criminal

tools. Instead of proceeding immediately to sentencing, the trial court decided that it -4-

wanted more time to consider Merker Iron’s wishes. Therefore, the trial court scheduled

Brandenburg’s sentencing hearing for the following week.

{¶ 5} At the sentencing hearing, the trial court noted that it had “continued

sentencing in this case from last week because [the trial court] wanted time to consider

the position of the victim and [its] request for jail time in this case.” Sentencing Hearing

Tr. (Mar. 19, 2024), p. 22-23. The trial court thereafter stated that it understood Merker

Iron’s “insurance company has made restitution or has made a payment on the claim to

the victim.” Id. The victim’s representative, who attended the sentencing hearing, did

not object to any of the trial court’s statements. When the trial court gave the victim’s

representative an opportunity to speak, the victim’s representative made only the

following statement: “I’d just ask for a no contact order as well on Ms. Brandenburg for

the company.” Id. Thereafter, the trial court sentenced Brandenburg to community

control sanctions with several special conditions, none of which required Brandenburg to

pay restitution to Merker Iron. At no point in time did the victim’s representative object

to Brandenburg’s sentence or request a restitution hearing.

{¶ 6} Merker Iron now appeals from Brandenburg’s sentence, raising a single

assignment of error for review.

Assignment of Error

{¶ 7} Under its assignment of error, Merker Iron contends that the trial court erred

by failing to hold a restitution hearing and by failing to award it restitution for the economic

loss it suffered as a result of Brandenburg’s criminal conduct. In support of its argument, -5-

Merker Iron claims that by advising the trial court of its economic loss at the plea hearing

and by asking the trial court “to consider the damage [Brandenburg’s] caused to a local

business,” it effectively requested financial sanctions, which should have led to an order

of restitution. Plea Hearing Tr., p. 9. Upon review, we find that Merker Iron’s argument

fails for multiple reasons.

{¶ 8} Article I, Section 10a of the Ohio Constitution, commonly known as “Marsy’s

Law,” provides victims of crime with certain rights. The victim, an attorney for the

government, or another lawful representative of the victim may assert the rights

enumerated in Marsy’s Law “in any proceeding involving the criminal offense . . . against

the victim[.]” Ohio Const., art. I, § 10a(B). Among the rights afforded by Marsy’s Law is

the victim’s right “to full and timely restitution from the person who committed the criminal

offense . . . against the victim.” Ohio Const., art. I, § 10a(A)(7).

{¶ 9} Although there may be no question that a victim has the right to seek and be

awarded restitution under Marsy’s Law, “like most constitutional rights, this right can be

forfeited if it is not invoked as necessary or required.” (Citations omitted.) State v.

Brasher, 2022-Ohio-4703, ¶ 25. “When that right is not invoked at the defendant’s trial

or raised on direct appeal, thereby eliminating the availability of that remedy, victims must

then turn to the civil-justice system to seek compensation from the offender in order to be

made whole.” Id. at ¶ 27. Indeed, “[e]ven constitutional rights ‘may be lost as finally as

any others by a failure to assert them at the proper time.’ ” State v. Murphy, 91 Ohio

St.3d 516, 532 (2001), quoting State v. Childs, 14 Ohio St.2d 56, 62 (1968). “No

procedural principle is more familiar to this Court than that a constitutional right may be -6-

forfeited in criminal . . . cases by the failure to make timely assertion of the right before a

tribunal having jurisdiction to determine it.” (Citations omitted.) Yakus v. United States,

321 U.S. 414, 444, (1944).

{¶ 10} In Brasher, the Supreme Court of Ohio explained that when the victims in

that case “requested enforcement of their constitutional rights by submitting their

restitution request and the trial court denied that relief, they . . . had clear standing to

appeal the restitution portion of Brasher’s sentence.” (Emphasis added.) Brasher at

¶ 23. In this case, however, unlike the victims in Brasher, Merker Iron never submitted

a request for restitution. Although the victim’s representative expressed displeasure with

Brandenburg’s plea deal, she also stated to the trial court that Merker Iron was “probably

not ever going to get restitution” because it had received “partial payment from [its]

insurance company” and conceded “that’s the law[.]” Plea Hearing Tr., p. 8.

{¶ 11} Although the victim’s representative went on to advise the trial court about

the economic loss Merker Iron had sustained as a result of Brandenburg’s criminal

conduct and presented the trial court with a binder of “over 72 contracts and dozens of

deposit slips that [Brandenburg] falsified[,]” the fact remains that the victim’s

representative never specifically asked the trial court to award Merker Iron restitution. Id.

at 8. Instead, the victim’s representative requested that the trial court “consider the

damage [Brandenburg] caused to a local business” and impose “an additional judgment

on her, jail time, perhaps weekends.” Id. at 9. The record indicates that the trial court

interpreted that request as Merker Iron’s asking the court to impose jail time on

Brandenburg, not restitution. See Sentencing Tr., p. 23. We find it significant that the -7-

victim’s representative did not object to or correct the trial court’s interpretation of Merker

Iron’s request and never followed up with a request for restitution.

{¶ 12} Moreover, during the sentencing hearing, the victim’s representative raised

no objection after the trial court stated that it understood Merker Iron’s insurance company

“ha[d] made restitution or ha[d] made a payment on the claim to the victim.” Id. When

given the chance to speak shortly thereafter, the victim’s representative did not say

anything about restitution but simply asked the trial court “for a no contact order . . . on

Ms. Brandenburg for the company.” Id. The victim’s representative also did not raise

any objection or request a restitution hearing after the trial court sentenced Brandenburg

to community control sanctions without a condition requiring Brandenburg to pay Merker

Iron restitution. Therefore, contrary to Merker Iron’s claim otherwise, we find that the

victim’s representative never requested restitution and thus never invoked its

constitutional right to restitution during the trial court proceedings.

{¶ 13} Although the language of Brasher indicates that a victim’s right to restitution

can be alternatively invoked on direct appeal, see Brasher, 2022-Ohio-4703, at ¶ 27, “ ‘[i]t

is settled law that issues raised for the first time on appeal and not having been raised in

the trial court are not properly before this court and will not be addressed.’ ” State v.

Luther, 2021-Ohio-2697, ¶ 21 (2d Dist.), quoting State v. Schneider, 1995 WL 737910, *1

(2d Dist. Dec. 13, 1995). Therefore, because Merker Iron never argued for the trial court

to award it restitution during the trial court proceedings, that issue has been waived for

appeal.

{¶ 14} Regardless, even if we agreed with Merker Iron’s claim that the victim’s -8-

representative effectively requested restitution via the statements she made to the trial

court, it is also well settled that “[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. Snowden, 2019-Ohio-3006, ¶ 88 (2d Dist.), citing State

v. Woods, 2016-Ohio-1103, ¶ 12 (2d Dist.); accord State v. Donaldson, 2023-Ohio-234,

¶ 54 (2d Dist.). To show plain error, a defendant must demonstrate that “an error

occurred, that the error was obvious, and that there is ‘a reasonable probability that the

error resulted in prejudice,’ meaning that the error affected the outcome of the

[proceeding].” (Emphasis deleted.) State v. McAlpin, 2022-Ohio-1567, ¶ 66, quoting

State v. Rogers, 2015-Ohio-2459, ¶ 22.

{¶ 15} Here, the record establishes that the victim’s representative did not request

a restitution hearing or object to the trial court’s failure to award it restitution during the

sentencing hearing. Accordingly, the trial court’s failure to award Merker Iron restitution

must be reviewed for plain error. See State v. LeGrant, 2014-Ohio-5803, ¶ 9 (2d Dist.).

Because the victim’s representative conveyed her belief that restitution was not

recoverable due to Merker Iron’s receipt of an insurance payment for its economic loss,

we cannot say that the trial court’s failure to award restitution was an obvious error that

affected the outcome of the proceeding. That is, there was no obvious error because

the victim’s representative advised the trial court that restitution was not recoverable.

Given that information, Merker Iron cannot establish that the trial court’s failure to award

it restitution amounted to plain error.

{¶ 16} With regard to the failure to hold a restitution hearing, we note that “the -9-

rights provided under Marsy’s Law do not exist in a vacuum and still must be construed

within the valid and unchanged statutory framework for restitution set forth by the General

Assembly.” State v. Yerkey, 2020-Ohio-4822, ¶ 26 (7th Dist.) aff’d, 2022-Ohio-4298,

¶ 6-7 and ¶ 19. As relevant to this case, R.C. 2929.28, the statute governing financial

sanctions for misdemeanor offenses, specifically states that: “the court shall hold an

evidentiary hearing on restitution if the offender, victim, or survivor disputes the amount

of restitution.” R.C. 2929.28(A)(1). Simply put, “[a] trial court is required to conduct a

hearing on restitution only if the offender, victim, or survivor disputes the amount of

restitution ordered.” (Emphasis added.) State v. Lalain, 2013-Ohio-3093, ¶ 27. As

previously discussed, the victim’s representative did not object to the trial court’s failure

to award Meker Iron restitution or request a restitution hearing. Accordingly, a restitution

hearing was not necessary or required in this case.

{¶ 17} Because Merker Iron cannot request restitution for the first time on appeal,

cannot establish plain error with regard to the trial court’s failure to award it restitution,

and was not entitled to a restitution hearing, its sole assignment of error lacks merit and

is overruled.

Conclusion

{¶ 18} Having overruled Merker Iron’s assignment of error, the judgment of the trial

court is affirmed.

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