[Cite as State v. Courtney, 2014-Ohio-1659.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
BARBARA COURTNEY
Defendant-Appellant
Appellate Case No. 2013-CA-73
Trial Court Case No. 2013-CR-262
(Criminal Appeal from (Common Pleas Court) ...........
OPINION
Rendered on the 18th day of April, 2014.
...........
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, 4th Floor, P.O. Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706, Dayton, 2
Ohio 45402 Attorney for Defendant-Appellant
.............
WELBAUM, J.
{¶ 1} Defendant-appellant, Barbara Courtney, appeals from her conviction and
sentence in the Clark County Court of Common Pleas following her guilty plea to theft in
violation of R.C. 2913.02(A)(2). For the reasons outlined below, the judgment of the trial court
is affirmed.
{¶ 2} On June 27, 2013, Barbara Courtney pled guilty to on one count of theft in
violation of R.C. 2913.02(A)(2), a felony of the fourth degree. The charge arose from Courtney
stealing $44,726 from her employer between August 1, 2008 and March 12, 2013. At the time
of her offense, Courtney was employed as the office manager at Coachworks Auto Sales
(Coachworks), a used car lot in Springfield, Ohio. As office manager, Courtney was responsible
for customer accounts, which required her to handle large sums of money. She had been
employed with Coachworks for 20 years and, according to her employer, “[s]he was in a position
of trust * * *.” Disposition Trans. (July 18, 2013), p. 6, ln. 15. At the time of her offense,
Courtney was 56 years old and had no prior criminal record.
{¶ 3} The trial court held a sentencing hearing on July 18, 2013. At the hearing, the
trial court found that under R.C. 2929.13(B)(1)(b)(viii), Courtney held a position of trust that
facilitated her theft offense. As a result of this finding, the trial court imposed a one-year prison
term as opposed to community control sanctions. In addition, the trial court ordered Courtney to
pay restitution in the amount of $44,726, despite acknowledging that her ability to pay did not
seem promising. Courtney now appeals from her conviction and sentence, raising four 3
assignments of error.
Assignment of Error No. 1
{¶ 4} Courtney’s First Assignment of Error is as follows:
BARBARA COURTNEY’S PLEA IS INVALID.
{¶ 5} Under this assignment of error, Courtney contends that her guilty plea is invalid
because the trial court failed to strictly comply with the requirements of Crim. R. 11(C)(2)(c)
during her plea hearing. She bases her argument on the fact that the trial court informed her that
she had the right to a “trial” instead of the right to a “jury trial.”
{¶ 6} Crim.R. 11(C)(2)(c) provides that the court may not accept a plea of guilty or no
contest without first addressing the defendant personally and doing all the following:
Informing the defendant and determining that the defendant understands that by
the plea the defendant is waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.
{¶ 7} “The rights enunciated in Crim.R. 11(C)(2)(c) are constitutional in nature."
State v. Perkins, 2d Dist. Montgomery No. 22956, 2010-Ohio-2640, ¶ 42. In State v. Veney, 120
Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the Supreme Court of Ohio “reaffirmed that
strict, or literal, compliance with Crim.R. 11(C)(2)(c) is required when advising the defendant of
the constitutional rights he is waiving by pleading guilty or no contest.” State v. Barker, 129 4
Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15 citing Veney at ¶ 18. Therefore, a trial
court must “orally advise a defendant before accepting a felony plea that the plea waives * * * the
right to a jury trial * * *.” Veney at ¶ 31.
{¶ 8} “When a trial court fails to strictly comply with this duty, the defendant’s plea is
invalid.” Id. However, “a trial court can still convey the requisite information on constitutional
rights to the defendant even when the court does not provide a word-for-word recitation of
[Crim.R. 11(C)(2)(c)], so long as the trial court actually explains the rights to the defendant.” Id.
at ¶ 27. Moreover, “an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be
clarified by reference to other portions of the record, including the written plea, in determining
whether the defendant was fully informed of the right in question.” Barker at ¶ 25.
{¶ 9} At the plea hearing in this case, the trial court advised Courtney that she had “the
right to a trial,” and explained that: “At that trial you would have the right to require the State to
prove beyond a reasonable doubt each and every element of the offense to which you are pleading
guilty, and you could only be convicted upon the unanimous verdict of a jury.” (Emphasis
added.) Plea Trans. (June 27, 2013), p. 7, ln. 2-9. Courtney confirmed her understanding of
these rights, thereby indicating that she knew if she went to trial, her conviction would depend on
a jury verdict. Because an average person of Courtney’s age and intelligence would know that a
trial requiring a “unanimous verdict of a jury” to convict necessitates a jury trial, we conclude
that the trial court sufficiently explained her right to a jury trial during its plea colloquy.
{¶ 10} Furthermore, even if we had found that the trial court’s explanation of Courtney’s
right to a jury trial was ambiguous, which we do not, the written plea form specifically referenced
the right. The written plea form states: “I understand by pleading guilty I give up my right to a 5
jury trial * * *.” Plea of Guilty (June 27, 2013), Clark County Court of Common Pleas Case No.
2013-CR-0262, Docket No. 11, p. 2. Accordingly, Courtney was fully informed of her right to a
jury trial.
{¶ 11} For the foregoing reasons, we conclude that the trial court strictly complied with
Crim.R. 11(C)(2)(c) when it informed Courtney of her right to a jury trial and, therefore, her plea
is valid. Courtney’s First Assignment of Error is overruled.
Assignment of Error Nos. 2 and 3
{¶ 12} For purposes of convenience, we will review Courtney’s Second and Third
Assignments of Error together. They are as follows:
II. BARBARA COURTNEY’S SENTENCE IS CONTRARY TO
LAW.
III. THE TRIAL JUDGE ABUSED HIS DISCRETION IN
SENTENCING BARBARA COURTNEY TO PRISON.
{¶ 13} Under these assignments of error, Courtney argues that her one-year prison
sentence is contrary to law because the trial court erroneously concluded that she held a “position
of trust” under R.C. 2929.13(B)(1)(b)(viii). She claims that the trial court interpreted “position
of trust” too broadly and that it should have sentenced her to community control sanctions
pursuant to R.C. 2929.13(B)(1)(a). Courtney also claims that even if this court finds her
sentence is not contrary to law, the trial court abused its discretion in sentencing her to prison
given that she had no prior criminal record, admitted guilt and remorse, and confirmed that she
would attempt to repay her former employer. 6
Felony Sentencing Standard of Review
{¶ 14} In State v. Rodeffer, 2013-Ohio-5759, __N.E.2d__ (2d Dist.), this court adopted
R.C. 2953.08(G)(2) as the appellate standard of review for felony sentences. Id. at ¶ 29. R.C.
2953.08(G)(2) states, in pertinent part, that:
The appellate court may increase, reduce, or otherwise modify a sentence that is
appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court’s standard for review is
not whether the sentencing court abused its discretion. The appellate court may
take any action authorized by this division if it clearly and convincingly finds
either of the following:
(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. (Emphasis added.)
{¶ 15} We also observed in Rodeffer that:
“the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the
negative. It does not say that the trial judge must have clear and convincing
evidence to support its findings. Instead, it is the court of appeals that must
clearly and convincingly find that the record does not support the court’s
findings.” * * * “In other words, the restriction is on the appellate court, not the 7
trial judge. This is an extremely deferential standard of review.” Rodeffer at ¶ 31,
quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
The Record Supports the Trial Court’s
Findings Under R.C. 2929.13(B)
{¶ 16} Initially, Courtney claims that the trial court erred in sentencing her to prison as
opposed to community control sanctions, because the court incorrectly found that she held a
“position of trust” under R.C. 2929.13(B)(1)(b)(viii). We disagree.
{¶ 17} R.C. 2929.13(B)(1)(a) instructs a sentencing court to sentence an offender who
pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or a
qualifying assault offense to community control sanctions for at least one year if certain
conditions are met. However, section (B)(1)(b) of the statute also provides 11 circumstances or
exceptions in which the trial court has discretion to sentence such an offender to prison as
opposed to community control. One of those circumstances is if:
The offender held a public office or position of trust, and the offense related to
that office or position; the offender’s position obliged the offender to prevent the
offense or to bring those committing it to justice; or the offender’s professional
reputation or position facilitated the offense or was likely to influence the future
conduct of others. R.C. 2929.13(B)(1)(b)(viii).
{¶ 18} In State v. Massien, 125 Ohio St. 3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, the
Supreme Court of Ohio explained the circumstances under which a person holds a “position of
trust” as that phrase was used in former R.C. 2929.13(B)(1)(d). We note that former R.C. 8
2929.13(B)(1)(d) contains the exact same language as R.C. 2929.13(B)(1)(b)(viii), therefore,
Massien is applicable to the instant matter. Per Massien:
A person holding a “position of trust” * * * is not limited to public officials and
public servants. However, it also does not apply to all positions of trust held by
private individuals. Rather, a private individual holds a position of trust only if
he or she occupies a special relationship of trust and confidence equivalent to a
fiduciary relationship. (Emphasis added.) Massien at ¶ 2.
{¶ 19} The Supreme Court also observed in Massien the following with respect to
fiduciary relationships:
“ ‘A “fiduciary relationship” is one in which special confidence and trust is
reposed in the integrity and fidelity of another and there is a resulting position of
superiority or influence, acquired by virtue of this special trust.’ ” Stone v. Davis
(1981), 66 Ohio St.2d 74, 78, 20 O.O.3d 64, 419 N.E.2d 1094, quoting In re
Termination of Pratt, 40 Ohio St.2d at 115, 69 O.O.2d 512, 321 N.E.2d 603. “A
‘fiduciary’ has been defined as ‘ “a person having a duty, created by his
undertaking, to act primarily for the benefit of another in matters connected with
his undertaking.” ’ ” (Emphasis Sic.) Strock v. Pressnell (1988), 38 Ohio St.3d
207, 216, 527 N.E.2d 1235, quoting Haluka v. Baker (1941), 66 Ohio App. 308,
312, 20 O.O. 136, 34 N.E.2d 68 * * *. “A fiduciary relationship need not be
created by contract; it may arise out of an informal relationship where both parties
understand that a special trust or confidence has been reposed.” Stone, 66 Ohio
St.2d at 78, 20 O.O.3d 64, 419 N.E.2d 1094. Massien at ¶ 35. 9
{¶ 20} With respect to whether employees are fiduciaries to their employers, the
Supreme Court noted that: “Although some employees may have fiduciary relationships with
their employers, ‘[n]ot all employees are fiduciaries.’ ” Massien, 125 Ohio St. 3d 204,
2010-Ohio-1864, 926 N.E.2d 1282 at ¶ 37, quoting Laurel Valley Oil Co. v. 76 Lubricants Co.,
154 Ohio App.3d 512, 2003-Ohio-5163, 797 N.E.2d 1033, ¶ 40 (5th Dist.). For a fiduciary
relationship to exist there needs to be “ ‘ “more than the ordinary relationship of employer and
employee.” ’ ” Id., quoting State ex rel. Charlton v. Corrigan, 36 Ohio St.3d 68, 71, 521 N.E.2d
804 (1988), quoting In re Termination of Pratt, 40 Ohio St.2d 107, 114, 321 N.E.2d 603 (1974).
{¶ 21} “In determining whether a fiduciary relationship exists between an employee and
employer, ‘emphasis should be placed upon whether the assigned job duties require, as essential
qualifications over and above technical competency requirements, a high degree of trust,
confidence, reliance, integrity and fidelity.’ ” Id., quoting Charlton at syllabus. “Job duties that
require a great degree of discretion support the existence of a fiduciary relationship, whereas
assigned duties of a routine character do not involve the degree of discretion or trust necessary to
be considered a fiduciary.” (Citation omitted.) Id. “A further consideration involves whether
the employee’s responsibility includes ‘daily discretionary decisions’ affecting persons served by
the employer that require the employee to be ‘of higher than normal reliability.’ ” Id., quoting
Charlton at 73.
{¶ 22} The Supreme Court concluded in Massien that a nurse employed by a hospital
does not have a fiduciary relationship with the hospital given that nurses do not occupy a position
of discretion and, therefore, are not in a “position of trust” for purposes of R.C. 2929.13(B)(1)(d).
Id. at ¶ 40-41. After Massien, this court concluded in State v. Branch, 2d Dist. Montgomery 10
No. 25261, 2013-Ohio-2350, that a defendant who stole pieces of jewelry from a family who
employed her to do housework over a holiday season was also not in a “position of trust” with
her employers. Id. at ¶ 2, 17.
{¶ 23} In the present case, however, Courtney was the office manager of a used car
company that had employed her for 20 years. She started as a secretary, then as a salesperson,
and was later promoted to officer manager. Courtney was in charge of customer accounts and
used accounting software to track the company’s accounts and expenses. The customers
typically paid the company directly in cash, so Courtney also handled large sums of money and
made bank deposits. In a letter to the court, Courtney's former employer advised that she “was
in a position of trust and had been for some time.” Disposition Trans. (July 18, 2013), p. 6, ln.
15-16.
{¶ 24} Based on the foregoing, we do not clearly and convincingly find that the record
does not support the trial court’s finding that Courtney was in a “position of trust” that facilitated
her offense. The record establishes that Courtney was in a position that required higher than
normal reliability. Her responsibilities and access to large sums of money required a high degree
of discretion and trust from her former employer, which translates to a fiduciary relationship.
Because of the employer’s trust and reliance upon her in handling its money, Courtney was able
to steal $44,726. Accordingly, the record establishes that she was in a “position of trust” as
contemplated under R.C. 2929.13(B)(1)(b)(viii).
Courtney’s Sentence Is Not Otherwise Contrary to Law
{¶ 25} Next, Courtney argues that her one-year prison sentence is contrary to law. “[A] 11
sentence is not contrary to law when the trial court imposes a sentence within the statutory range,
after expressly stating that it had considered the purposes and principles of sentencing set forth in
R.C. 2929.11, as well as the factors in R.C. 2929.12.” Rodeffer, 2013-Ohio-5759, __N.E.2d__
at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.
Additionally, a sentence is not contrary to law if during the sentencing hearing a trial court fails
to cite the purposes and principles of sentencing of R.C. 2929.11 or the factors of 2929.12, but
does state in the final judgment entry that it had “ ‘considered the record, oral statements, any
victim impact statement and presentence report prepared, as well as the principles and purposes
of sentencing under Ohio Revised Code Section 2929.11, and balanced the seriousness and
recidivism factors [under] Ohio Revised Code Section 2929.12.’ ” State v. Parker, 193 Ohio
App.3d 506, 2011-Ohio-1418, 952 N.E.2d 1159, ¶ 20 (2d Dist.), quoting State v. Miller, 2d Dist.
Clark No. 09CA28, 2010-Ohio-2138, ¶ 43.
{¶ 26} In this case, we have already concluded that the record established that Courtney
was in a “position of trust,” which, pursuant to R.C. 2929.(B)(1)(b)(viii), gave the trial court
discretion to impose a prison sentence as opposed to community control sanctions. Furthermore,
Courtney’s one-year prison sentence falls within the statutory range for theft under R.C.
2912.02(A)(2), a fourth-degree felony. See R.C. 2929.14(A)(4).
{¶ 27} Moreover, the trial court expressly stated in the Judgment Entry of Conviction
that it “considered the record, oral statements of counsel, the defendant’s statement, and the
principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and then
balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.”
Judgment Entry of Conviction (July 19, 2013), Clark County Court of Common Pleas Case No. 12
2013-CR-262, Docket No. 13, p. 1. The court also noted that it had considered the presentence
investigation report. Id.
{¶ 28} For the foregoing reasons we do not clearly and convincingly find that
Courtney’s prison sentence is contrary to law. Given that there is evidence in the record
supporting the trial court’s “position of trust” finding under R.C. 2929.13(B)(1)(b)(viii), and
Courtney’s prison sentence is not otherwise contrary to law, we conclude that the trial court did
not err in sentencing Courtney to one year in prison.
{¶ 29} Courtney’s Second and Third Assignments of Error are overruled.
Assignment of Error No. 4
{¶ 30} Courtney’s Fourth Assignment of Error is as follows:
THE TRIAL JUDGE ERRED BY ORDERING BARBARA COURTNEY TO
PAY $44,726 IN RESTITUTION.
{¶ 31} Under this assignment of error, Courtney contends that the trial court erred in
ordering her to pay restitution given that there is nothing in the record indicating that she has the
present or future ability to pay. This argument lacks merit.
{¶ 32} Under R.C. 2929.18(A)(1), a trial court is authorized to order a defendant
convicted of a felony offense to pay restitution to the victim of the offense for the amount of any
economic loss the victim suffered as a result. We note that Courtney never objected to the trial
court’s order of restitution; therefore, she has waived all but plain error as permitted by Crim.R.
52(B). See State v. Hill, 2d Dist. Montgomery No. 23343, 2010-Ohio-2508, ¶ 6. “To prevail
under the plain error standard, an appellant must demonstrate both that there was an obvious 13
error in the proceedings and that but for the error, the outcome of the trial clearly would have
been otherwise.” State v. Turner, 2d Dist. Montgomery No. 24421, 2011-Ohio-6714, ¶ 8, citing
State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62.
{¶ 33} We review an order of restitution under an abuse of discretion standard. State v.
Collins, 2d Dist. Montgomery Nos. 21510 and 21689, 2007-Ohio-5365, ¶ 13. “A trial court
abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”
(Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶
34. An abuse of discretion includes a situation in which a trial court did not engage in a “
‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50
Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A trial court abuses its discretion in ordering
restitution in an amount that was not determined to bear a reasonable relationship to the actual
loss suffered.” Collins at ¶ 13, citing State v. Williams, 34 Ohio App.3d 33, 35, 516 N.E.2d
1270 (2d Dist.1986).
{¶ 34} “An order of restitution must be supported by competent, credible evidence in the
record.” Id. at ¶ 12, citing State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990).
Furthermore, “ ‘[a] sentence of restitution must be limited to the actual economic loss caused by
the illegal conduct for which the defendant was convicted.’ ” Id., quoting State v. Banks, 2d
Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 5. “ ‘Implicit in this principle is that the
amount claimed must be established to a reasonable degree of certainty before restitution can be
ordered.’ ” Id., quoting State v. Golar, 11th Dist. Lake No. 2002-L-092, 2003-Ohio-5861, ¶ 9.
{¶ 35} Pursuant to R.C. 2929.19(B)(5), a trial court is required to consider the 14
defendant’s present and future ability to pay before it imposes restitution under R.C.
2929.18(A)(1). State v. Jennings, 2d Dist. Montgomery No. 24559, 2012-Ohio-1229, ¶ 6. “[A]
trial court is not required to expressly state that it considered [a defendant’s] ability to pay a
fine.” State v. Parker, 2d Dist. Champaign No. 03CA0017, 2004-Ohio-1313, ¶ 42. Under
appropriate circumstances, a reviewing court may infer that a trial court considered the issue. Id.
{¶ 36} In this case, the record establishes that Courtney stole $44,726 from her
former employer. The loss amount was established with reasonable certainty, as Courtney
admitted to stealing that sum at the plea hearing. Therefore, $44,726 represents the actual
economic loss caused by Courtney’s illegal conduct. Accordingly, the restitution order of
$44,726 bears a reasonable relationship to the loss suffered.
{¶ 37} Additionally, the record indicates that the trial court considered Courtney’s
present and future ability to repay the $44,726. The trial court reviewed the presentence
investigation report and also asked Courtney at sentencing: “How are you going to pay
[$44,726]?” Disposition Trans. (July 18, 2013), p. 5, ln. 14-15. In response, Courtney stated:
“I could try to get a job, you know, and I filed for social security * * * I have been looking for a
job ever since I got fired.” Id. at 5, ln. 16-20. The trial court then briefly mentioned that “it
[didn’t] sound too promising that [Courtney would] be able to pay the money back.” Id. at 5, ln.
21-22.
{¶ 38} However, the record also establishes that Courtney was gainfully employed for
20 years working in various positions including a secretary, sales person, and office manager.
While Courtney’s criminal record and one-year prison term will hamper her ability to obtain
employment, she did not argue that she would be unemployable, but instead, insisted that she 15
would try to repay her former employer. Her skills are indicative of employability, therefore we
find no error, let alone plain error, in the trial court’s restitution order.
{¶ 39} Courtney’s Fourth Assignment of Error is overruled.
Conclusion
{¶ 40} Having overruled Courtney’s four assignments of error, the judgment of the trial
court is affirmed.
HALL, J., concurs.
FROELICH, P.J., concurring. I concur in judgment, and would find that the sentence was not an abuse of discretion pursuant to my concurring opinion in Rodeffer, 2013-Ohio-5759.
Copies mailed to:
Lisa M. Fannin Robert Alan Brenner Hon. Douglas M. Rastatter 16