State v. Colon

925 N.E.2d 212, 185 Ohio App. 3d 671
CourtOhio Court of Appeals
DecidedFebruary 12, 2010
DocketNo. 09-CA-09
StatusPublished
Cited by18 cases

This text of 925 N.E.2d 212 (State v. Colon) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Colon, 925 N.E.2d 212, 185 Ohio App. 3d 671 (Ohio Ct. App. 2010).

Opinion

Brogan, Judge.

{¶ 1} Oscar Colon appeals from his conviction and sentence in Clark County Common Pleas Court on one count of aggravated arson.

[674]*674{¶ 2} Colon advances four assignments of error on appeal. First, he contends that the trial court erred by ordering restitution for a third-party insurance company that was not the victim of his offense. Second, he claims that the trial court erred by awarding restitution based on a theft charge that did not result in conviction and by awarding restitution without a hearing to determine the proper amount. Third, he asserts that the trial court abused its discretion and failed to consider the requisite factors when sentencing him to four years in prison. Fourth, he challenges the legal sufficiency and manifest weight of the evidence to support his conviction.

{¶ 3} The present appeal stems from a fire that occurred inside the home of John and Georgia Oakes. About a month before the fire, the Oakeses had allowed Colon to move in with them. He had his own bedroom in the Oakeses’ house and kept personal items there. John Oakes left the residence for work on the morning of September 25, 2008, leaving Georgia Oakes and Colon behind. Georgia later went to work herself, leaving Colon alone in the house. Upon arriving home that evening, Georgia discovered the garage door open. She entered the house and smelled smoke. She then saw a smouldering quilt on the floor in Colon’s bedroom. Colon himself was not home. Georgia also discovered a smoke detector in two pieces in the hallway and in the bathroom next to Colon’s bedroom. A fire investigator found no forced entry into the home. The investigator concluded that the fire, which primarily caused carpet damage, had been set deliberately by igniting two small piles of paper and the quilt. The Oakes discovered that some of their possessions, including several thousand dollars worth of jewelry and electronics, were missing. Colon’s bicycle also was gone. After the fire, Colon never returned to the Oakeses’ home. He also never returned to the restaurant where he and Georgia had worked. Colon was arrested approximately two weeks after the fire and was charged with aggravated arson. Following his arrest, he sent the Oakeses a letter requesting forgiveness “for what [he had] done.” The letter admitted theft but did not mention starting the fire.

{¶ 4} A jury found Colon guilty of aggravated arson. The trial court sentenced him to four years in prison. It also ordered him to pay restitution of $7,271.76 with $1,510.46 going to the Oakeses and $5,761.30 to their insurance company. This timely appeal followed.

{¶ 5} In his first assignment of error, Colon contends that the trial court erred by awarding restitution to the Oakeses’ insurance company. The state concedes error, and we agree. “Under R.C. 2929.18(A)(1), a court may order a felony offender to pay, as part of the sentence, a financial sanction in the form of restitution. The statute sets forth four possible payees to whom the court may order restitution to be paid: the victim or survivor of the victim, the adult [675]*675probation department that serves the county on behalf of the victim, the clerk of courts, and ‘another agency designated by the court,’ such as the crime victims’ reparations fund.” State v. Wilson, Montgomery App. No. 23167, 2010-Ohio-109, 2009 WL 169483, ¶ 20.

{¶ 6} In the present case, the trial court’s termination entry simply ordered Colon “to pay restitution of $7,271.76” plus a statutory handling fee. During the sentencing hearing, the trial court made clear that $5,761.30 of this amount was to be paid to the probation department on behalf of the Oakeses’ insurance company. But the insurance company was not “the victim” of Colon’s aggravated arson. Nor is an insurance company an “agenc[y] designated by the court.” State v. Christman, Preble App. Nos. CA2009-03-007, CA2009-03-008, 2009-Ohio-6555, 2009 WL 4810318, ¶ 18, citing State v. Bartholomew, 119 Ohio St.3d 359, 2008-Ohio-4080, 894 N.E.2d 307 (“A state reparations fund, for example, is a permissible agency designated by the trial court that may receive restitution. * * * A private insurance company is not”). See also State v. Kreischer, 109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶ 13 (implying that under the current version of R.C. 2929.18(A)(1), an insurance company would not be entitled to restitution for amounts paid on behalf of a crime victim); Id. at ¶ 15 (Pfeifer, J., dissenting) (“Fortunately, the General Assembly * * * has already amended R.C. 2929.18(A) to make it clear that restitution is not intended to be a windfall for insurance companies”). Thus, an insurance company is not a proper third-party payee under R.C. 2929.18(A)(1).

{¶ 7} We note too that the $5,761.30 cannot be paid directly to the Oakeses as restitution. It is well settled that restitution may not exceed a crime victim’s economic loss and, as a result, must be reduced by any insurance payment received. State v. Clayton, Montgomery App. No. 22937, 2009-Ohio-7040, 2009 WL 5247521, ¶ 56. Because the Oakeses already have received payment from their insurance company, awarding them restitution of $5,761.30 would constitute an impermissible double recovery.1 Id. The first assignment of error is sustained.

{¶ 8} In his second assignment of error, Colon claims that the trial court erred by awarding restitution based on a theft charge that did not result in conviction and by awarding restitution without a hearing to determine the proper amount. With regard to the former issue, Colon contends that the record reflects arson-related damages of between $500 and $700. He points out that the trial court ordered the bulk of his restitution obligation as compensation for items stolen from the Oakeses’ home. He argues, however, that the jury acquitted him [676]*676of theft and, therefore, that ordering restitution for theft-related losses was improper. On the latter issue, Colon asserts that restitution may be awarded only after a hearing.

{¶ 9} Upon review, we agree that the trial court erred in ordering restitution for theft-related losses. As a threshold matter, the record before us does not support Colon’s claim that the jury acquitted him of theft. Rather, the record simply does not contain a theft charge. Colon was indicted and tried only for aggravated arson, and he was convicted of that charge. At sentencing, however, the trial court noted Colon’s confession to theft in the post-arrest letter he wrote to the Oakeses. In light of that letter, the trial court ordered Colon to pay restitution for theft of property from the Oakeses’ home. The state concedes error by the trial court, and we agree. A restitution award must be limited to those acts that constitute the crime of conviction. State v. Hubbell, Darke App. No. 1617, 2004-Ohio-398, 2004 WL 190066, ¶ 11. Because Colon was convicted only of aggravated arson, his restitution obligation is limited to damages resulting from that criminal act. Id.

{¶ 10} The remaining issue is whether the trial court was required to hold a hearing to determine the damages resulting from Colon’s aggravated arson. Such a hearing is required only “if the offender, victim, or survivor disputes the amount of restitution ordered by the court.” Wilson, 2010-Ohio-109, at ¶ 21, citing R.C. 2929.18(A)(1). In the present case, Colon did not request a restitution hearing.

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Bluebook (online)
925 N.E.2d 212, 185 Ohio App. 3d 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colon-ohioctapp-2010.