State v. Cotton

2025 Ohio 1463

• Court: Ohio Court of Appeals
• Decided: April 24, 2025
• Docket: 114474
• Status: Published

Opinion

[Cite as State v. Cotton, 2025-Ohio-1463.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114474 v. :

BRANDON COTTON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: April 24, 2025

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-690873-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, Andrea Isabella and Matthew Moretto, Assistant Prosecuting Attorneys, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and Sean Buchanan, Assistant Public Defender, for appellant.

ANITA LASTER MAYS, J.:

This appeal is before the court on the accelerated docket pursuant to

App.R. 11.1 and Loc.App.R. 11.1. The purpose of an accelerated appeal is to allow an

appellate court to render a brief and conclusory decision. E.g., Univ. Hts. v. Johanan, 2022-Ohio-2578, ¶ 1 (8th Dist.); State v. Trone, 2020-Ohio-384, ¶ 1 (8th

Dist.), citing State v. Priest, 2014-Ohio-1735, ¶ 1 (8th Dist.); see also App.R. 11.1(E).

For the reasons that follow, we affirm the trial court’s judgment.

On August 14, 2024, defendant-appellant Brandon Cotton (“Cotton”)

pleaded guilty to one fourth-degree and four fifth-degree felonies: two counts of

breaking and entering, R.C. 2911.13(A) and (B); one count of grand theft, R.C.

2913.02(A)(1); one count of vandalism, R.C. 2909.05(B)(1)(b); and one count of

receiving stolen property, R.C. 2913.51(A). The charges arose from the break-in of

the victim’s construction trade trailer that contained tools and equipment.

The parties did not enter an agreement about the amount of

restitution and requested a restitution hearing during the plea hearing.

Court: I’m happy to set this matter for sentencing and have a restitution hearing, but I think maybe for the record, I know that at some point in time conversations the three of us had included a restitution claim. I want to say somewhere around $11,000 or $12,000 is that accurate? . . .

State: That’s correct, Your Honor. The State would be seeking restitution in the amount of $12,730.

Court: Okay. And I fully understand [defense counsel], your position, but I wanted to at least make a record that I’ll suppose worst case scenario restitution could be somewhere around that $12,000 mark.

Counsel: We understand, Your Honor, and we will be requesting a hearing.

Tr. 14-15.

The trial court announced and journalized, “Sentencing set for

September 11, 2024, at 8:30 a.m. Restitution hearing to be held at the time of

sentencing.” On September 26, 2024, the trial court stated on the record “We are here . . . for sentencing, or continuation of a sentencing where the issue, which we

continued it to delve into was the — one of the issues was restitution, the amount

owed here, otherwise for sentencing.” Tr. 32. At the conclusion of the proceedings,

Cotton was sentenced to a five-year term of community service and ordered to make

restitution jointly and severally with his codefendant in the amount of $12,730.

Cotton argues on appeal that “the court committed reversible error

when it failed to order and conduct a restitution hearing.” Cotton contends the

September 26, 2024 proceedings did not equate to a restitution hearing pursuant to

statute. We affirm the trial court’s judgment.

Under R.C. 2929.18(A)(1), a trial court may order restitution “to the

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

on the victim’s economic loss.” “In open court, the court shall order that full

restitution be made to the victim” or as otherwise “designated by the court.” Id. “At

the sentencing, the court will determine the amount of restitution.” Id. “[I]f the

offender, victim, victim’s representative or victim’s estate disputes the amount” “the

court shall hold a hearing on restitution.” “The court shall determine the amount of

full restitution by a preponderance of the evidence.” Id.1

The court may base the amount of restitution imposed “on an

amount recommended by the victim, the offender, a presentence investigation

report, estimates or receipts indicating the cost of repairing or replacing property,

1 R.C. 2929.18(A)(1) applies to restitution for felonies. R.C. 2929.28(A)(1) governs

restitution for misdemeanors. Under either provision, restitution is defined the same. State v. Mitchell, 2023-Ohio-4648, ¶ 5 (8th Dist.). and other information.” R.C. 2929.18(A)(1). See, e.g., State v. Speights, 2021-Ohio-

1194, ¶ 10 (8th Dist.).

The amount of restitution imposed ‘“must be supported by

competent, credible evidence from which the court can discern the amount of the

restitution to a reasonable degree of certainty.’” State v. Johnson, 2018-Ohio-3670,

¶ 55 (8th Dist.), quoting State v. Gears, 135 Ohio App.3d 297, 300 (6th Dist. 1999);

see also State v. Mills, 2019-Ohio-706, ¶ 33 (8th Dist.). The trial court must also

ensure that the amount of restitution sought is “reasonably related to the loss

suffered” by the victim. See, e.g., State v. Pierce, 2019-Ohio-3762, ¶ 29 (8th Dist.);

State v. Waiters, 191, 2010-Ohio-5764, ¶ 20 (8th Dist.); see also State v. McLaurin,

2016-Ohio-933, ¶ 13 (8th Dist.). (“Prior to ordering restitution . . . a sentencing

court must engage in a ‘due process ascertainment that the amount of restitution

bears a reasonable relationship to the loss suffered.’”), quoting State v. Borders,

2005-Ohio-4339, ¶ 36 (12th Dist.).

At the September 26, 2024 proceedings, the trial court announced the

hearing was to address restitution and sentencing and would “deal with the issue of

restitution. . . first.” Tr. 33. The State produced “State’s Exhibit Number 1” (“Exhibit

1”), an itemized list of the construction tools stolen from the victim’s trailer used for

the victim’s business that was prepared by the investigating detective with an

approximate value listed of $17,730, and a handwritten figure below the amount that

appeared to be $18,730. The State advised that the victim did not appear for the proceedings

due to a long-standing medical appointment for cancer screening but had informed

the prosecutor he “was able to recover approximately $6,000 worth of tools” and

that he had accidentally omitted from Exhibit 1 that $1,ooo worth of a generator was

missing as well. . . .” Tr. 34. The State used the $17,730 value originally listed on

the exhibit, deducted $6,000 for the recovered tools, and added $1,000 for the

generator, for a total of $12,730 — the figure announced during the plea hearing.

The State also advised that the theft was not covered by insurance.

The State explained:

State: Unfortunately, the victim does not have receipts for these tools. Many of the tools were passed down to him while he built up his business; and as such, these are rough estimates, but it is his livelihood.

And, certainly, for the type of construction that he does, I would think this would be a very fair and accurate amount of restitution that is being sought for his business.

Tr. 35.

Defense counsel responded:

There was no agreement [regarding restitution] beyond conducting a restitution hearing, and the State is not conducting a restitution hearing in this case.

They have to have someone come in to testify in order to introduce an exhibit or records or, or, or anything for this Court to be able to lawfully order restitution.

If [the victim] is not available, the only restitution that this Court can order is zero, Your Honor, because there is no evidence actually before this Court for hearing purposes of any numbers whatsoever.

A handwritten list introduced by the prosecutor is insufficient to comply with the requirements of a hearing, Your Honor, unless the prosecutor would like to, to take the stand and be cross-examined about what she has marked as Exhibit 1.

We have no witnesses. So any, any amount, any details, any argument is, is unnecessary. We’re proceeding today with the restitution that’s here, Your Honor.

Tr. 36-37.

The trial court asked whether the defense had “any authority to, to

support your argument that this is the way that a restitution hearing has to be

conducted?” The defense admitted that the rules of evidence were relaxed but

argued there was no testimony, the exhibit was not authenticated, and there was no

opportunity to conduct cross-examination; thus, the proceeding was not a hearing.

The defense added that there was a warrant search that resulted in the return of all

the stolen property. “So not only is there no evidence of any restitution owed, if we

were to proceed with a full hearing, we would present evidence that that property

has been returned, Your Honor.” Tr. 41.

R.C. 2929.18(A)(1) describes the nature and scope of the restitution

proceedings. “The victim, victim’s representative, victim’s attorney, if applicable,

the prosecutor or the prosecutor’s designee, and the offender may provide

information relevant to the determination of the amount of restitution.” Id. ‘“The

Rules of Evidence do not apply in sentencing proceedings.”’ State v. Mitchell, 2023-

Ohio-4648, ¶ 13 (8th Dist.), quoting Cleveland v. Figueroa, 2022-Ohio-4012, ¶ 11

(8th Dist.), citing State v. Cook, 1998-Ohio-291. ‘““A hearing to determine

restitution is part of sentencing. Consequently, an ordering court is not restricted

by the Rules of Evidence in determining the amount of a restitution order.”’” Figuerora at ¶ 11, quoting Strongsville v. Kane, 2012-Ohio-3372, ¶ 5 (8th Dist.),

quoting State v. Tuemler, 2005-Ohio-1240, ¶ 17 (12th Dist.).

The State elaborated that exhibit No. 1 contained the evidence

itemization from the warrant search conducted at the residences of Cotton and his

codefendant, the list had been produced to the defense months previously and

discussed at the plea hearing, and the $6,000 deduction accounted for the recovered

property. The State also summarized the impact on the victim’s family and his one-

man construction business.

To support that the trial court had the authority to order restitution

based on the amounts recommended by the victim, the State cited State v. Williams,

2021-Ohio-2814 (11th Dist.), for the premise that the trial court may base the

restitution amount on the victim’s recommendation, a presentence-investigation

report, or other information. Id. at ¶ 22.

On appeal, Cotton argues that Williams supports Cotton’s contention

that “[b]ecause no competent, credible evidence supports the award of restitution,

the trial court was obligated to hold an evidentiary hearing.” In Williams, the trial

court imposed the State’s recommended restitution amount set forth in the victim’s

impact statement itemization at the sentencing despite the defense’s objection. The

appellate court held that the trial court should have held a restitution hearing when

the defense objected based upon R.C. 2929.18(A)(1), finding that the failure to do so

was not harmless error under the statute. Cotton further contended during the proceedings that the accuracy of

exhibit No. 1, prepared by the police investigator and price estimates provided by

the victim could have been challenged. Cotton was informed at the plea hearing that

the proposed restitution amount was the $12,730 figure and the information was

produced in discovery months prior to the plea. Though the sources the trial court

may base the amount of restitution on includes the offender, it does not appear from

the record that Cotton produced or referenced possession of contradictory evidence

during discovery or at the hearing.

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, 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.’”

State v. Williams, 2024-Ohio-5092, ¶ 27, quoting State v. Green, 2022-Ohio-4524

¶ 10 (8th Dist.), quoting R.C. 2929.18(A)(1); State v. Lalain, 2013-Ohio-3093, ¶ 3.

The trial court ordered a restitution hearing on the record and as

documented in its journal entry. State v. Brooke, 2007-Ohio-1533, ¶ 47 (“It is

axiomatic that the trial court speaks through its journal entry.”) It based its decision

on the amount recommended by the victim, the warrant search report prepared by

the police, the presentence investigation report and information from the victim,

including the victim impact statement presented by the State, pursuant to statute. R.C. 2929.18(A)(1). “The court shall determine the amount of full restitution by a

preponderance of the evidence.” Id.

Cotton’s assigned error is that the trial court failed to order and

conduct a restitution hearing. Cotton has produced no case law supporting his

contention that the restitution hearing was not statutorily compliant. The record

demonstrates compliance. The record also supports that the award was supported

by competent, credible evidence and the economic loss was proven by a

preponderance of the evidence.

The assignment of error is overruled, and the trial court’s judgment is

affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The appellant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

ANITA LASTER MAYS, JUDGE

MICHELLE J. SHEEHAN, P.J., and SEAN C. GALLAGHER, J., CONCUR