State v. Fissel

2022 Ohio 1856

• Court: Ohio Court of Appeals
• Decided: June 3, 2022
• Docket: C-210483
• Status: Published

Opinion

[Cite as State v. Fissel, 2022-Ohio-1856.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-210483 TRIAL NO. B-2005750 Plaintiff-Appellee, :

: O P I N I O N. VS. :

ELIZABETH FISSEL, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 3, 2022

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Arenstein & Gallagher and Elizabeth Conkin, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Judge.

{¶1} In a case reminiscent of a movie plot, a once-trusted employee pilfered

a staggering sum of money (around $2 million) from the company for which she

worked before eventually getting caught and pleading guilty to the theft. She now

claims that the trial court committed a number of errors in imposing an eight-year

term of incarceration. We disagree, however, and find the record at hand supports the

trial court’s sentencing decision. Accordingly, we affirm its judgment.

I.

{¶2} Shortly after being hired as the controller at Hadronics, Inc., defendant-

appellant Elizabeth Fissel embarked on a brazen embezzlement campaign. For the

next five and a half years, on a near-weekly basis, Ms. Fissel abused her position of

trust by forging checks to herself, endorsing them with the company’s signature stamp,

and depositing them into her personal account. Ms. Fissel’s responsibilities as

controller allowed her to inaccurately record and report Hadronics’ expense

obligations, effectively hiding the fraudulent deposits and making it seem (on paper)

as if Hadronics was lurching towards financial distress. With no one at the company

looking over her shoulder, she acted with impunity.

{¶3} But she ultimately became a victim of the scheme’s success. In 2020,

with the company teetering in a precarious financial situation, it forced Hadronics to

downsize its labor force and payroll costs to stay afloat. In a twist of fate (or perhaps

karma), Hadronics could no longer afford to employ a controller or a number of other

employees. The company thereby eliminated Ms. Fissel’s position and she departed

the same day, though not before accepting a severance agreement from Hadronics on

the way out the door. Without Ms. Fissel’s manipulation of its accounting records,

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Hadronics quickly noticed inaccuracies and ultimately realized that she had stolen

approximately $2.2 million during her nearly six-year tenure with the company.

{¶4} Later that year, a grand jury indicted Ms. Fissel on three counts of theft

and one count of tampering with records. Ms. Fissel pled guilty to one count of theft

under R.C. 2913.02(A)(1), a first-degree felony, in exchange for the dismissal of the

remaining charges. The trial court ordered the preparation of a victim-impact

statement for its sentencing consideration, which Hadronics’ lawyer orally presented

at the sentencing hearing. The court sentenced Ms. Fissel to an eight-year term of

incarceration and ordered her to pay $2 million in restitution along with court costs.

Ms. Fissel now appeals, bringing three assignments of error. We overrule all three and

affirm the judgment of the trial court.

II.

A.

{¶5} As an initial matter, Ms. Fissel lodged no objections during her

sentencing hearing, thereby forfeiting all but plain error review for each assignment

of error. Crim.R. 52(B) (“Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.”). “For this court

to reverse on plain error, we must find that (1) there was an error, (2) the error was

plain, i.e., an obvious defect in the trial court proceedings, and (3) the error affected

substantial rights, i.e., it affected the outcome of the trial.” State v. Burgett, 2019-

Ohio-5348, 139 N.E.3d 940, ¶ 30 (1st Dist.), citing State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240 (2002).

{¶6} Ms. Fissel first contends that the trial court violated her constitutional

right to due process by relying on hearsay statements in support of its decision to

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impose an eight-year prison term. In particular, Ms. Fissel challenges statements

made by Hadronics’ counsel, Christopher McDowell, when he presented the victim

impact statement on behalf of the company at the sentencing hearing. Mr. McDowell

shared with the court that Ms. Fissel embezzled over $2 million, that the theft forced

Hadronics to lay off 13 employees, that she hid or disposed of assets to avoid them

being seized in the civil suit against her, and that she lied about the value of her assets.

Though she acknowledges that the Ohio Rules of Evidence do not apply to sentencing

proceedings under Ohio law, see Evid.R. 101(C)(3), Ms. Fissel relies on federal law in

her appellate brief when insisting that admissible hearsay must have “some minimum

indicium of reliability beyond mere allegation.” See United States v. Smith, 887 F.2d

104, 108 (6th Cir.1989). In her view, because Mr. McDowell offered no financial

records, canceled checks, deposition transcripts, or other objective evidence, the trial

court violated Ms. Fissel’s due process rights by relying upon his statements in support

of its sentence.

{¶7} The state correctly responds that Ms. Fissel’s cited federal standard does

not reflect Ohio law regarding sentencing (because it pertains to a calculation under

the federal sentencing guidelines). Under Ohio law, because sentencing proceedings

fall “[a]mong those listed as specifically excepted from the Rules of Evidence,

including the hearsay rule,” reliable hearsay statements such as victim-impact

statements or presentence investigation reports are permissible in an Ohio trial court’s

sentencing determination. State v. Cook, 83 Ohio St.3d 404, 425, 700 N.E.2d 570

(1998), overruled on other grounds, State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-

3374, 952 N.E.2d 1108, ¶ 16. “Hearsay is considered reliable when it bears ‘sufficient

indicia of reliability to support its probable accuracy,’ or when there is ‘a reasonable

4 OHIO FIRST DISTRICT COURT OF APPEALS

probability that it is true.’ ” State v. Phillips, 12th Dist. Madison No. CA2003-03-012,

2004-Ohio-2301, ¶ 7, quoting State v. Lee, 128 Ohio App.3d 710, 719, 716 N.E.2d 751

(1st Dist.1998), fn. 4. Put another way, “[h]earsay can be considered reliable at

sentencing where there is no indication it is false or unreliable.” State v. Halk, 7th

Dist. Mahoning No. 17 MA 0030, 2018-Ohio-984, ¶ 12.

{¶8} With that standard in mind, we turn to the evidence considered by the

trial court. The victim of a crime has the right to personally present an impact

statement to the court prior to sentencing, see R.C. 2930.14(A), or to designate another

person to exercise the rights of the victim and speak to the court on his or her behalf.

R.C. 2930.02(A). The transcript in this case reflects that Hadronics’ owner was

present in the courtroom during the sentencing hearing and elected to have Mr.

McDowell speak as the victim advocate on behalf of the company. As a result, this

compelled the court to take into account Mr. McDowell’s statement “along with other

factors that the court is required to consider in imposing sentence.” R.C. 2930.14(B).

Those factors include the record, any information relevant to the imposition of

sentence in the case, and the presentence investigation report if one is prepared. R.C.

2929.19(B)(1)(a).

{¶9} Our review of the sentencing hearing shows that the trial court properly

considered the statutory factors, including the victim-impact statement. We see no

indication in the record to cast doubt on the reliability of any of Mr. McDowell’s

information. Ms. Fissel failed to challenge the accuracy of Mr. McDowell’s statements

at either the trial or appellate level, and the statements he made are substantially

corroborated in the record by Ms. Fissel’s guilty plea, the presentence investigation

report, the forensic psychological report, and Ms. Fissel’s sentencing memorandum

5 OHIO FIRST DISTRICT COURT OF APPEALS

and exhibits submitted to the court. In light of this robust record, and without any

contemporaneous objection, “regarding victim impact statements, it is not necessary

for the victim to present evidentiary material in support of his statement.” State v.

Leonard, 11th Dist. Ashtabula No. 2002-A-0073, 2003-Ohio-6226, ¶ 22.

{¶10} We must also keep in mind the overarching purpose of a victim-impact

statement—to advise the trial court of the economic loss suffered by the victim and to

explain the impact experienced by the victim as a result of the offense. See R.C.

2947.051(B). Ms. Fissel admitted to stealing at least $1.5 million from Hadronics

when she pled guilty, because her offense could only be classified as a first-degree

felony when “the value of the property or services stolen is one million five hundred

thousand dollars or more.” R.C. 2913.02(B)(2). Whether the amount is closer to the

$1.5 million in the statute or the $2.2 million relayed by Mr. McDowell, no one

disputes that Ms. Fissel embezzled a significant amount of money from Hadronics.

Nor is it a mere allegation that the theft forced Hadronics to lay off employees, given

how that eventuality ultimately brought Ms. Fissel’s fraud to light. Mr. McDowell’s

assertions speak directly to the statutory purpose of victim-impact statements and are

supported in other parts of the record.

{¶11} Ms. Fissel also takes issue with Mr. McDowell’s assertions that she

dodged service in the civil suit against her, lied about the value of some assets in that

case, and disposed of other assets to prevent attachment in the civil suit. But Mr.

McDowell represented the company in the civil suit that it filed against her, and he

questioned Ms. Fissel at her deposition. Given his first-hand knowledge of such

matters, we fail to see any plain error by the court in this respect.

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{¶12} This assignment of error seems to boil down to a claim that the trial

court fell sway to impermissible factors by virtue of the difference between the prison

term offered by the state and the sentence ultimately imposed. Ms. Fissel declined the

state’s original offer of an agreed six-year prison term in exchange for a guilty plea to

the first-degree felony theft. At the sentencing hearing, Hadronics asked the court to

impose a sentence at the higher end of the range, a statement Ms. Fissel now takes

umbrage with. But in light of her rejection of the state’s offer, there was no agreed or

recommended sentence on the table from which the trial court deviated. And even if

there had been, “plea agreements are generally made between the State and a

defendant * * * [and] are not inherently binding upon the trial court.” (Emphasis sic.)

State v. Elliott, 2021-Ohio-424, 168 N.E.3d 33, ¶ 8 (1st Dist.) (elaborating on the

distinctions between agreed and recommended sentences, and on scenarios where

trial courts can be bound).

{¶13} A defendant who rejects a recommended sentence offer and, in effect,

elects to roll the dice on the trial court’s sentencing discretion does not get to reroll

simply because the dice bounced unfavorably. The trial court warned Ms. Fissel when

accepting her guilty plea that no agreed sentence existed and that she was “facing 3 to

11 years in prison” at sentencing. No one disputes the accuracy of that range, and we

see no plain error in the imposition of the sentence within the appropriate range on

the record at hand. Accordingly, we overrule Ms. Fissel’s first assignment of error.

B.

{¶14} In her second assignment of error, Ms. Fissel claims her sentence stands

contrary to law because the trial court failed to consider evidence of remorse. An

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appellate court may modify or vacate a sentence only if it clearly and convincingly finds

that either the record does not support the mandatory sentencing findings or the

sentence is otherwise contrary to law. R.C. 2953.08(G)(2). Pursuant to R.C. 2929.12,

before imposing a felony sentence, a trial court must consider a list of factors relating

to the seriousness of the crime and the defendant’s likelihood of committing future

crimes. Relevant here, R.C. 2929.12(D)(5) and (E)(5) advise trial courts that an

offender’s level of remorse may indicate whether he or she is more or less likely to

commit future crimes. Ms. Fissel alleges that the trial court found her unremorseful

based on conduct that occurred “in the throes of her criminal activity,” without

considering any of her postarrest demeanor.

{¶15} Because R.C. 2929.12 is not a fact-finding statute, “[a]bsent a showing

to the contrary, this court should presume that the trial court considered the

appropriate statutory provisions and all relevant mitigating factors.” State v. Jackson,

1st Dist. Hamilton No. C-180162, 2019-Ohio-1688, ¶ 7. Prior to sentencing, the court

noted that it was sympathetic to Ms. Fissel’s personal and familial struggles and issues

that presumably set her down the wrong path. It then considered Ms. Fissel’s

statements of remorse, before explicitly rejecting them. “[A] reviewing court must

defer to the trial court as to whether a defendant’s remarks are indicative of genuine

remorse because it is in the best position to make that determination.” State v.

Dudley, 11th Dist. Lake No. 2009-L-019, 2009-Ohio-5064, ¶ 22. In other words,

nothing compels the trial court to reflexively accept a defendant’s statement of

remorse, and here we can see a number of reasons why the court might question Ms.

Fissel’s sincerity.

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{¶16} Additionally, the factors listed in R.C. 2929.12 are not exhaustive and

the explicit language of the statute allows a court to “consider any other factors that

are relevant to achieving those purposes and principles of sentencing.” “During the

sentencing phase of a criminal proceeding, a court’s sentence is based upon many

contextual factors of the case, including the gravity of the offense and the character

and history of the defendant.” State v. Williams, 11th Dist. Lake Nos. 2007-L-131 and

2007-L-137, 2008-Ohio-2122, ¶ 36, citing State v. Barker, 53 Ohio St.2d 135, 150-151,

372 N.E.2d 1324 (1978). The trial court specifically balanced any remorse on the part

of Ms. Fissel against the emotional and financial toll her actions took on Hadronics,

its owners and their families, and its employees. Ms. Fissel’s own letter to the court

acknowledged that she damaged this family-run business in ways that can never be

repaired. “Pursuant to R.C. 2947.051, the impact of the criminal act on a victim is a

factor a trial judge must consider in arriving at a fair and just sentence.” Williams at

¶ 36. On this record, Ms. Fissel is unable to affirmatively demonstrate that the trial

court failed to consider evidence of her remorse and her second assignment of error is

overruled.

C.

{¶17} In her final assignment of error, Ms. Fissel argues that the trial court

erred by not imposing court costs at the sentencing hearing. In support of this

argument, Ms. Fissel cites to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926

N.E.2d 278, for the proposition that a trial court must impose court costs at the

sentencing hearing in order for an indigent defendant to seek a waiver. “However,

Joseph is no longer good law for this point.” State v. Beasley, 153 Ohio St.3d 497,

2018-Ohio-493, 108 N.E.3d 1028, ¶ 263. After Joseph was decided, “the General

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Assembly amended R.C. 2947.23 by adding subdivision (C): ‘The court retains

jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * *

at the time of sentencing or at any time thereafter.’ ” (Emphasis sic.) Id. at ¶ 265. We

recognize that some Ohio appellate courts, including this one, have remanded cases

post-Beasley in order for a defendant to request a waiver of court costs based on

indigency. E.g., State v. Davis, 1st Dist. Hamilton Nos. C-200249, C-200250, C-

200251 and C-200252, 2021-Ohio-2954, ¶ 20. To the extent that Davis is inconsistent

with Beasley and R.C. 2947.23(C), the latter control. Ms. Fissel no longer needs this

court to remand in order for her to file a motion to waive costs in light of the statutory

change. Accordingly, this assignment of error is without merit and overruled.

* * *

{¶18} In light of the foregoing analysis, we overrule all three of Ms. Fissel’s

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

MYERS, P. J., and BOCK, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.