State v. Crawford

2024 Ohio 582

Opinion

[Cite as State v. Crawford, 2024-Ohio-582.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 112787 v. :

BRIAN CRAWFORD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 15, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-22-673335-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Danielle Muster, Assistant Prosecuting Attorney, for appellee.

Brian A. Smith Law Firm LLC and Brian A. Smith, for appellant.

KATHLEEN ANN KEOUGH, A.J.:

Defendant-appellant, Brian Crawford, appeals from the trial court’s

judgment entry of conviction that ordered him to pay restitution to the victim and

failed to award him full jail-time credit. For the reasons that follow, this court reverses and remands for the trial court to vacate the award of restitution and

recalculate the amount of jail-time credit.

In August 2022, Crawford was named in a three-count indictment

charging him with aggravated burglary, a violation of R.C. 2911.11(A)(1), a felony of

the first degree (Count 1); felonious assault, a violation of R.C. 2903.11(A)(1), a

felony of the second degree (Count 2); and domestic violence, a violation of R.C.

2919.25(A), a first-degree misdemeanor (Count 3). Notice of prior conviction and a

repeat violent offender (“RVO”) specification attached to both Counts 1 and 2. The

charges arose from an incident where Crawford forcibly broke into a family or

household member’s home, demanded property, and then assaulted the individual,

breaking the victim’s nose.

In October and November 2022, Crawford rejected plea offers that

included mandatory jail time and an agreement to pay an undetermined amount of

restitution. In December, Crawford expressed dissatisfaction with his attorney and

as a result, the trial court appointed new counsel. During this pretrial, Crawford told

the court that he was willing to accept a plea agreement with the state, but he did

not “want the felony two. They have to get rid of the felony two.” (Tr. 51.)

On May 15, 2023, Crawford’s case was scheduled for a jury trial. Prior

to the start of trial, the parties advised the court that they had reached a plea

agreement. The state agreed to amend Count 1 to burglary, a violation of R.C.

2911.12(A)(3), a felony of the third degree, and delete the notice of prior conviction

and RVO specification, and dismiss Count 2, felonious assault. In exchange, the state required that Crawford (1) plead guilty to amended Count 1, (2) plead guilty to

Count 3 as originally charged, (3) have no contact with the victim, (4) pay restitution

to the victim in an amount to be determined, and (5) serve a prison sentence as

determined by the court.

Crawford stated that he had no questions about the plea agreement,

understood the agreement, and wished to accept the plea agreement. (Tr. 59.)

Specific to restitution, the trial court advised Crawford,

[i]t would further be a condition of this plea you would pay restitution that is compensation for any property damage or injury caused, and that would be in an amount to be determined. Do you understand? * * * You heard me ask the prosecution if they had an estimate as to how much would be owed. They did not. It could be several thousands, if not more. Do you understand?

(Tr. 62.) Crawford stated that he understood this condition and that the amount

was unknown at the time, but still wished to accept the plea as offered. (Tr. 62-63.)

The trial court then engaged in a thorough and complete plea colloquy

with Crawford, which the parties agreed was in full compliance with Crim.R. 11.

Crawford pleaded guilty to amended Count 1, attempted burglary, and Count 3,

domestic violence, as charged. Defense counsel advised the trial court that Crawford

waived obtaining a presentence-investigative report and wished to proceed directly

to sentencing. The trial court expressed concern that the state had yet to establish

the amount of restitution, and thus, it felt the better approach would be to continue

the matter for sentencing. On May 23, 2023, Crawford appeared for sentencing, and his counsel

provided mitigating information and witnesses. The state offered information about

Crawford’s criminal history, including that Crawford was on community-control

sanctions when he committed the offenses. The victim also provided a statement to

the court explaining that Crawford broke into her home in the middle of the night,

demanded property, and then broke her nose prior to fleeing from her residence.

She stated that he also vandalized her car that evening. The state indicated that the

victim was seeking $1,000 in restitution, which was the insurance deductible for the

damage to her car.

Crawford objected to the restitution amount, contending that the

damage to the victim’s car was not part of the offenses that he pleaded guilty to and

thus, the requested restitution amount was improper. The trial court disagreed,

stating:

I’m not persuaded by the defense argument. The statement of the victim was the car was damaged in the immediate vicinity of the offenses at issue here, burglary and domestic violence, and it sounds like, to me, within moments of the commission of the offense at issue. Accordingly, I believe the imposition of an order of restitution is lawful, appropriate, and in the interest of justice, and it will be so ordered.

(Tr. 97-98.) In addition to restitution, the trial court ordered Crawford to serve 30

months in prison on Count 1 and suspended a six-month sentence on Count 3. Of

the 287 days of jail-time credit requested, the court only awarded Crawford 180

days.

This appeal followed. I. Restitution

In his first assignment of error, Crawford contends that the trial court

abused its discretion and violated R.C. 2929.18(A)(1) in imposing restitution of

$1,000 where the restitution amount exceeded the amount of economic loss

suffered by the victim as a direct and proximate result of the commission of the

offenses. Specifically, he contends that because his convictions for attempted

burglary and domestic violence did not involve damage to the victim’s vehicle,

awarding $1,000 in restitution to cover the car insurance deductible was improper.

We agree.

This court will not reverse a trial court’s decision awarding restitution

absent an abuse of discretion. State v. McDonald, 8th Dist. Cuyahoga No. 95651,

2011-Ohio-1964, ¶ 14. An abuse of discretion occurs when “a court exercise[s] its

judgment, in an unwarranted way[.]” Johnson v. Abdullah, 166 Ohio St.3d 427,

2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. However, “a court does not have discretion

to misapply the law.” Id. at ¶ 38 (courts apply a de novo standard when reviewing

an issue of law).

R.C. 2929.18(A)(1) provides the statutory mechanism for ordering

restitution in felony cases, allowing a court to impose financial sanctions on a

criminal offender that includes “restitution by the offender to the victim of the

offender’s crime * * * in an amount based on the victim's economic loss.” The

ordered amount, however, “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.” R.C. 2929.18(A)(1).

The enactment of Marsy’s Law did not change the statutory

mechanism for awarding restitution. “Marsy’s Law provides victims with the right

‘to full and timely restitution from the person who committed the criminal offense

or delinquent act against the victim.’” State v. Yerkey, 171 Ohio St.3d 367, 2022-

Ohio-4298, 218 N.E.3d 749, ¶ 12, quoting Article I, Section 10a(A)(7), Ohio

Constitution. In Yerkey, the Ohio Supreme Court clarified that “no portion of

Marsy’s Law ‘conflicts’ with the restitution statutes such that they are

‘supersede[d].’” Id. Accordingly, Ohio courts continue “to determine the amount of

restitution based on the economic loss suffered by the victim as a direct and

proximate result of the commission of the offense.” Id. at ¶ 13.

A defendant who agrees to pay restitution as part of a plea agreement

can waive his right to challenge on appeal the amount of restitution. See generally

State v. Waiters, 191 Ohio App.3d 720, 2010-Ohio-5764, 947 N.E.2d 710 (8th Dist.).

The restitution amount, however, must still be supported by competent and credible

evidence and reasonably related to the actual amount of damages or economic loss

suffered. Id. at ¶ 20-21; see also State v. Rox, 8th Dist. Cuyahoga No. 98838, 2013-

Ohio-2529 (upholding trial court’s decision refusing to award restitution despite the

fact that restitution was part of the plea agreement because the state failed to present

any evidence to support the award of restitution until after the trial court announced

the sentence). Moreover, the amount of restitution is generally limited to the offenses for which a defendant is convicted. State v. Rohrbaugh, 191 Ohio App.3d

117, 2010-Ohio-6375, 944 N.E.2d 1230 (3d Dist.); see also State v. Williams, 3d Dist.

Logan No. 8-03-25, 2004-Ohio-2801, ¶23 (“As a matter of law, an offender cannot

be ordered to pay restitution for damage arising from a crime of which he was not

convicted.”).

Therefore, unless the defendant stipulates to the restitution amount

or the defendant agreed to restitution related to uncharged or dismissed offenses as

part of the plea deal, the award must be supported by competent and credible

evidence that the amount is a direct and proximate result of the commission of the

offense for which a defendant was convicted, and cannot exceed the actual economic

loss suffered. See State v. Fitz, 8th Dist. Cuyahoga No. 109270, 2021-Ohio-1497, ¶

16 (restitution upheld on economic loss related to dismissed charges because

defendant agreed to pay restitution as part of his negotiated plea and defendant did

not object at sentencing); State v. Welch, 8th Dist. Cuyahoga No. 105158, 2017-

Ohio-7887, ¶ 29; (award of restitution upheld even though the amount exceeded the

property value because defendant agreed to the amount); State v. Strickland, 10th

Dist. Franklin No. 08AP-164, 2008-Ohio-5968, ¶ 12 (award of restitution relating

to dismissed charges upheld because defendant agreed to pay restitution relating to

that offense as part of his negotiated plea agreement).

In State v. McDonald, 8th Dist. Cuyahoga No. 95651, 2011-Ohio-

1964, this court concluded that restitution could not be ordered for economic loss

related to dismissed offenses unless it was part of the agreement. The trial court ordered the defendant to pay restitution for a broken door even though the state

dismissed the criminal damaging offense as part of the plea deal. This court

reversed, finding that a “trial court abuses its discretion when it orders restitution

in an amount that has not been determined to bear a reasonable relationship to the

actual loss suffered as a result of the defendant’s offense for which he was convicted.”

Id. at ¶ 18.

Similarly, in State v. Weimert, 3d Dist. Auglaize No. 2-10-35, 2011-

Ohio-2846, the court determined that the trial court erred in ordering restitution for

economic loss related to unindicted offenses. The written plea agreement provided

that the defendant agreed to pay restitution relating to “all counts in the indictment.”

When the state presented its request for restitution, it included amounts unrelated

to the indicted charges. The Weimert Court noted that although there may have

been some suggestion that the defendant would pay restitution for the unindicted

offenses, that condition was not part of the written plea agreement and thus, the

court found the trial court erred in ordering restitution for economic loss related to

the unindicted offenses when the written contract did not indicate an agreement to

pay them. Id. at ¶ 6.

In this case, Crawford agreed to pay the victim restitution as part of

his plea agreement. He made this agreement even without knowing the amount

requested — “it could be several thousands, maybe more.” (Tr. 62.) Crawford

objected during sentencing, however, when the state requested $1,000 in restitution

for the damage he allegedly caused to the victim’s vehicle. Because Crawford was not convicted of, let alone charged with, any offense that involved damaging the

victim’s vehicle, it was error for the trial court to order Crawford to pay restitution

to cover the car insurance deductible. Accordingly, the trial court erred in ordering

Crawford to pay restitution that was not a direct and proximate result of the

commission of the offense for which he was convicted and thus, exceeded the actual

economic loss suffered. The assignment of error is sustained.

II. Jail-Time Credit

During sentencing, defense counsel advised the trial court that

Crawford had been in jail for 287 days. The state did not dispute the number of jail

days, but questioned whether the court should reduce the jail-time credit by 180

days due to the probation violation. Counsel responded that the “nature of the

parole violation was specifically for picking up this new case” and thus, requested

that the full amount of jail-time credit be awarded, but “[a]t a minimum, he would

be entitled to 180 days that he served in the Cuyahoga County jail on this case.” (Tr.

98-99.) The court awarded Crawford 180 days of jail-time credit. In his second

assignment of error, Crawford contends that the trial court failed to credit him with

an additional 107 days of jail-time credit.

R.C. 2967.191(A) mandates that prison terms shall be reduced

pursuant to related days of confinement.

The department of rehabilitation and correction shall reduce the prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial, confinement for examination to determine the prisoner’s competence to stand trial or sanity, confinement while awaiting transportation to the place where the prisoner is to serve the prisoner’s prison term[.]

Trial courts are required, during sentencing, to notify the defendant of the total days

that his prison sentence shall be credited based on the days already confined arising

out of the offense for which the defendant is being sentenced. R.C.

2929.19(B)(2)(g)(i).

This court has concluded that R.C. 2967.191 therefore precludes “jail-

time credit for any period of incarceration that arose from facts which are separate

and apart from those on which his current sentence is based.” State v. Maddox, 8th

Dist. Cuyahoga No. 99120, 2013-Ohio-3140, ¶ 41, citing State v. DeMarco, 8th Dist.

Cuyahoga No. 96605, 2011-Ohio-5187, ¶ 10. Accordingly, a defendant is not entitled

to jail-time credit when the defendant is imprisoned as a result of another “unrelated

offense even if that time served runs concurrently during the pre-detention phase of

another matter.” Maddox at id., citing State v. McWilliams, 126 Ohio App.3d 398,

399, 710 N.E.2d 729 (2d Dist.1998); State v. Cook, 7th Dist. Mahoning No. 00 CA

184, 2002-Ohio-7170, ¶ 17. In DeMarco, this court affirmed the trial court’s decision

not to award the defendant jail-time credit because the defendant had been confined

simultaneously for violating the terms of his community control from an unrelated

case and for the new case charging him with domestic violence. DeMarco at ¶ 11.

Accordingly, we must determine whether Crawford was in pretrial

detention solely on the current case for the entirety of the 287 days. We find that he

was not, and in fact, posted bond in the current case prior to sentencing. In April 2021, Crawford pleaded guilty in Cuyahoga C.P. No. CR-20-

653997 to one count of burglary and assault (“the probation case”). He was

sentenced to five years of community-control sanctions with conditions including,

but not limited to, regular reporting, drug testing, drug assessment, completing out-

patient treatment, anger management, completing 200 hours of community work

service and obtaining a GED by April 7, 2022.1

On August 15, 2022, the trial court issued the following order in the

probation case:

Court is in receipt of a probation department status report dated 08- 04-22. Defendant has been non-compliant with conditions of probation. Defendant has an active warrant for burglary and domestic violence from Parma Police Department. A capias is hereby issued for defendant, Brian Crawford.

On September 27, 2022, the court conducted a compliance hearing.

The court noted that the defendant “has done relatively well on probation, but was

twice terminated from anger management program, and has picked up a new case

* * * with three felony charges. Defendant is already subject to an APA hold. No

action taken on defendant’s probation status at this time, at defendant’s request.

Defendant shall remain in custody until further order of the court.” On January 3,

2023, the trial court issued a journal entry “lifting the hold” in the probation case

and ordering Crawford “released.”

1 An appellate court is permitted to take judicial notice of publicly accessible online

court dockets. State ex rel. Maron v. Corrigan, 2022-Ohio-4406, 203 N.E.3d 52, ¶ 2 (8th Dist.), State ex rel. Everhart v. McIntosh, 115 Ohio St.3d 195, 2007-Ohio-4798, 874 N.E.3d. 516; State v. Estridge, 2d Dist. Miami No. 2021-CA-25, 2022-Ohio-208. In this current case, the trial court issued a journal entry on

November 22, 2022, ordering that “any holds now pending against defendant other

than his APA hold are hereby lifted.” The docket reflects that on January 24, 2023,

after the probation hold was lifted, Crawford posted bond in the current case.

However, on May 9, 2023, prior to Crawford accepting the plea in the current case,

he sent correspondence from his address at the Lorain Correctional Institution

(“LCI”).

Based on the record before this court and taking judicial notice of the

trial court’s online docket regarding Crawford’s probation case, we find that

Crawford was not incarcerated solely on the current case for the entirety of the 287

days requested. From our review, it appears that the court possibly awarded

Crawford more credit than he was due, but we are unable to modify the amount of

jail-time credit because the record does not conclusively show when another

supervising authority detained Crawford in pretrial custody, or when he was

“released” after posting bond in the current case.

Accordingly, we reverse the trial court’s imposition of jail-time credit

and remand for a recalculation. Crawford is not entitled to any credit for days where

he was being held on both the probation violation and the current case, including

time spent at LCI, and any time after he posted bond in this case. The assignment

of error is sustained.

Judgment reversed and remanded to vacate the award of restitution

and to recalculate the amount of jail-time credit. It is ordered that appellant recover from appellee 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. Case remanded to the

trial court for further proceedings.

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

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and MARY J. BOYLE, J., CONCUR