[Cite as State v. Johnson, 2012-Ohio-1230.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24288
v. : T.C. NO. 10CR2139
DUSTIN W. JOHNSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 23rd day of March , 2012.
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, 703 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Dustin W. Johnson appeals his conviction and
sentence for two counts of burglary (occupied structure), in violation of R.C.
2911.12 (A)(3), a felony of the third degree; one count of burglary 2
(habitation/person is or likely is present), in violation of R.C. 2911.12(A)(2), a felony
of the second degree; and one count of grand theft (firearm), in violation of R.C.
2913.02(A)(1), a felony of the third degree.
{¶ 2} Johnson filed a timely notice of appeal with this Court on October 5,
2010.
{¶ 3} The incident which forms the basis for the instant appeal occurred on
June 12, 2010, when Johnson broke into the Huber Heights, Ohio residence of
Kathy Flayer. Upon entering the residence, Johnson cut himself on broken glass
and left a considerable amount of blood on the floor. In an attempt to destroy his
DNA, Johnson poured numerous cleaning products on the floor, including Drano
and Clorox, doing a great deal of damage to the interior of Flayer’s residence in the
process. Johnson also stole a firearm from Flayer’s residence. While the
burglary of Flayer’s home was being investigated, Johnson also burglarized the
residence of Linda Harris in Vandalia, Ohio, wherein he kicked down a door to gain
entry and stole jewelry. At the time that he committed the two burglaries, Johnson
was on probation in Montgomery County Case No. 2008-CR-1032.
{¶ 4} On August 12, 2010, Johnson was indicted for two counts of burglary
(occupied structure), one count of burglary (habitation/person is or likely is present),
and one count of grand theft (firearm). At his arraignment on August 17, 2010,
Johnson stood mute, and the trial court entered pleas of not guilty on his behalf.
On September 16, 2010, Johnson pled guilty to all of the counts in the indictment.
Johnson also agreed to pay $750.00 in restitution to Harris, $250.00 in restitution to
Flayer, and $18,409.07 to Grange Insurance Company. Grange was the insurer of 3
Flayer’s residence who ultimately bore the costs of repairing the damage caused
during the burglary. At the plea hearing, the trial court noted that it could not order
restitution to a third-party insurance company “unless it’s otherwise agreed to.”
Upon conferring with his counsel, Johnson agreed on the record to be responsible
for the restitution to Grange as part of the plea agreement. Additionally, the plea
form that Johnson signed included an agreement that Grange would receive
restitution in the amount of $18,409.07. Not only did Johnson not object to the
order of restitution, he agreed to it. At the sentencing hearing held on September
30, 2010, the trial court imposed an aggregate sentence of seven years in prison.
{¶ 5} It is from this judgment that Johnson now appeals.
{¶ 6} Johnson’s sole assignment of error is as follows:
{¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED
BYOND THE SCOPE OF ITS SENTENCING AUTHORITY, PURSUANT TO O.R.C.
§ 2929.18. WHEN IT ORDERED DEFENDANT-APPELLANT TO PAY
RESTITUTION TO A THIRD-PARTY.”
{¶ 8} In his sole assignment, Johnson contends that the trial court abused
its discretion when it ordered him to pay restitution of $18,409.07 to Grange
Insurance Company. Specifically, Johnson argues that under R.C. 2929.18(A)(1),
Grange is not a “victim” as defined by statute, but rather a third-party who is not
entitled to restitution.
{¶ 9} A trial court, when “imposing a sentence upon an offender for a
felony” may impose financial sanctions, including “[r]estitution * * * in an amount
based on the victim’s economic loss.” R.C. 2929.18(A)(1). “The statute sets forth 4
four possible payees to whom the court may order restitution to be paid: the victim
or survivor of the victim, the adult probation 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. (Citations omitted).” State v.
Wilson, 2d Dist. Montgomery No. 23167, 2010-Ohio-109, ¶ 20. “The fourth
category of payee, another agency designated by the court, at a minimum consists
of entities that ‘paid the victim for the economic loss caused by the crime.’ * * * (i.e.,
crime victims’ reparations fund.)” State v. Brinson, 2d Dist. Montgomery No.
22925, 2009-Ohio-5040, ¶ 8, quoting State v. Bartholomew, 119 Ohio St. 3d 359,
2008-Ohio-4080, 894 N.E.2d 307, ¶ 12. An economic loss is “any economic
detriment suffered by a victim as a direct and proximate result of the commission of
an offense and includes any loss of income * * * [and] any property loss. * * * .”
R.C. 2929.01(L). “Therefore, trial courts have not abused their discretion if
restitution is ordered to another agency that paid for any loss of income, [or]
property loss suffered by the victim.” Brinson, supra.
{¶ 10} R.C. 2930.01(H)(1) defines a victim as a “person who is identified as
the victim of a crime * * * in a police report or in a complaint, indictment, or
information that charges the commission of a crime and provides the basis for the
criminal prosecution * * * and subsequent proceedings to which this chapter makes
reference.” R.C. 2743.51 defines a victim as “a person who suffers personal injury
or death as a result of * * * [c]riminally injurious conduct.” Black’s Law Dictionary
defines “victim” in part as the “person who is the object of a crime or tort, as the
victim of a robbery is the person robbed.” (6th Ed. 1990), 1567. 5
{¶ 11} We have held that a trial court abuses its discretion when it orders
restitution that does not bear a reasonable relationship to the actual financial loss
suffered. State v. Williams, 34 Ohio App.3d 33, 516 N.E.2d 1270 (2d Dist. 1986).
Therefore, we generally review a trial court’s order of restitution under an abuse of
discretion standard. See, e.g., State v. Naylor, 2d Dist. Montgomery No. 24098,
2011-Ohio-960, ¶22. However, when a trial court is asked to determine to whom
restitution can be awarded pursuant to R.C. 2929.18(A)(1), we review the decision
of the court utilizing a de novo standard of review.
{¶ 12} We have held that an insurance company is not a proper third-party
payee under R.C. 2929.18(A)(1). State v. Colon, 185 Ohio App.3d 671, 675,
2010-Ohio-492, 925 N.E.2d 212 (2d Dist.). We reiterated this holding in State v.
Kiser, 2d Dist. Montgomery No. 24419, 2011-Ohio-5551, wherein a bank
reimbursed its customer whose credit card was stolen and used without her
permission.
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[Cite as State v. Johnson, 2012-Ohio-1230.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24288
v. : T.C. NO. 10CR2139
DUSTIN W. JOHNSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 23rd day of March , 2012.
JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
SCOTT A. ASHELMAN, Atty. Reg. No. 0074325, 703 Liberty Tower, 120 West Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant Dustin W. Johnson appeals his conviction and
sentence for two counts of burglary (occupied structure), in violation of R.C.
2911.12 (A)(3), a felony of the third degree; one count of burglary 2
(habitation/person is or likely is present), in violation of R.C. 2911.12(A)(2), a felony
of the second degree; and one count of grand theft (firearm), in violation of R.C.
2913.02(A)(1), a felony of the third degree.
{¶ 2} Johnson filed a timely notice of appeal with this Court on October 5,
2010.
{¶ 3} The incident which forms the basis for the instant appeal occurred on
June 12, 2010, when Johnson broke into the Huber Heights, Ohio residence of
Kathy Flayer. Upon entering the residence, Johnson cut himself on broken glass
and left a considerable amount of blood on the floor. In an attempt to destroy his
DNA, Johnson poured numerous cleaning products on the floor, including Drano
and Clorox, doing a great deal of damage to the interior of Flayer’s residence in the
process. Johnson also stole a firearm from Flayer’s residence. While the
burglary of Flayer’s home was being investigated, Johnson also burglarized the
residence of Linda Harris in Vandalia, Ohio, wherein he kicked down a door to gain
entry and stole jewelry. At the time that he committed the two burglaries, Johnson
was on probation in Montgomery County Case No. 2008-CR-1032.
{¶ 4} On August 12, 2010, Johnson was indicted for two counts of burglary
(occupied structure), one count of burglary (habitation/person is or likely is present),
and one count of grand theft (firearm). At his arraignment on August 17, 2010,
Johnson stood mute, and the trial court entered pleas of not guilty on his behalf.
On September 16, 2010, Johnson pled guilty to all of the counts in the indictment.
Johnson also agreed to pay $750.00 in restitution to Harris, $250.00 in restitution to
Flayer, and $18,409.07 to Grange Insurance Company. Grange was the insurer of 3
Flayer’s residence who ultimately bore the costs of repairing the damage caused
during the burglary. At the plea hearing, the trial court noted that it could not order
restitution to a third-party insurance company “unless it’s otherwise agreed to.”
Upon conferring with his counsel, Johnson agreed on the record to be responsible
for the restitution to Grange as part of the plea agreement. Additionally, the plea
form that Johnson signed included an agreement that Grange would receive
restitution in the amount of $18,409.07. Not only did Johnson not object to the
order of restitution, he agreed to it. At the sentencing hearing held on September
30, 2010, the trial court imposed an aggregate sentence of seven years in prison.
{¶ 5} It is from this judgment that Johnson now appeals.
{¶ 6} Johnson’s sole assignment of error is as follows:
{¶ 7} “THE TRIAL COURT ABUSED ITS DISCRETION AND ACTED
BYOND THE SCOPE OF ITS SENTENCING AUTHORITY, PURSUANT TO O.R.C.
§ 2929.18. WHEN IT ORDERED DEFENDANT-APPELLANT TO PAY
RESTITUTION TO A THIRD-PARTY.”
{¶ 8} In his sole assignment, Johnson contends that the trial court abused
its discretion when it ordered him to pay restitution of $18,409.07 to Grange
Insurance Company. Specifically, Johnson argues that under R.C. 2929.18(A)(1),
Grange is not a “victim” as defined by statute, but rather a third-party who is not
entitled to restitution.
{¶ 9} A trial court, when “imposing a sentence upon an offender for a
felony” may impose financial sanctions, including “[r]estitution * * * in an amount
based on the victim’s economic loss.” R.C. 2929.18(A)(1). “The statute sets forth 4
four possible payees to whom the court may order restitution to be paid: the victim
or survivor of the victim, the adult probation 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. (Citations omitted).” State v.
Wilson, 2d Dist. Montgomery No. 23167, 2010-Ohio-109, ¶ 20. “The fourth
category of payee, another agency designated by the court, at a minimum consists
of entities that ‘paid the victim for the economic loss caused by the crime.’ * * * (i.e.,
crime victims’ reparations fund.)” State v. Brinson, 2d Dist. Montgomery No.
22925, 2009-Ohio-5040, ¶ 8, quoting State v. Bartholomew, 119 Ohio St. 3d 359,
2008-Ohio-4080, 894 N.E.2d 307, ¶ 12. An economic loss is “any economic
detriment suffered by a victim as a direct and proximate result of the commission of
an offense and includes any loss of income * * * [and] any property loss. * * * .”
R.C. 2929.01(L). “Therefore, trial courts have not abused their discretion if
restitution is ordered to another agency that paid for any loss of income, [or]
property loss suffered by the victim.” Brinson, supra.
{¶ 10} R.C. 2930.01(H)(1) defines a victim as a “person who is identified as
the victim of a crime * * * in a police report or in a complaint, indictment, or
information that charges the commission of a crime and provides the basis for the
criminal prosecution * * * and subsequent proceedings to which this chapter makes
reference.” R.C. 2743.51 defines a victim as “a person who suffers personal injury
or death as a result of * * * [c]riminally injurious conduct.” Black’s Law Dictionary
defines “victim” in part as the “person who is the object of a crime or tort, as the
victim of a robbery is the person robbed.” (6th Ed. 1990), 1567. 5
{¶ 11} We have held that a trial court abuses its discretion when it orders
restitution that does not bear a reasonable relationship to the actual financial loss
suffered. State v. Williams, 34 Ohio App.3d 33, 516 N.E.2d 1270 (2d Dist. 1986).
Therefore, we generally review a trial court’s order of restitution under an abuse of
discretion standard. See, e.g., State v. Naylor, 2d Dist. Montgomery No. 24098,
2011-Ohio-960, ¶22. However, when a trial court is asked to determine to whom
restitution can be awarded pursuant to R.C. 2929.18(A)(1), we review the decision
of the court utilizing a de novo standard of review.
{¶ 12} We have held that an insurance company is not a proper third-party
payee under R.C. 2929.18(A)(1). State v. Colon, 185 Ohio App.3d 671, 675,
2010-Ohio-492, 925 N.E.2d 212 (2d Dist.). We reiterated this holding in State v.
Kiser, 2d Dist. Montgomery No. 24419, 2011-Ohio-5551, wherein a bank
reimbursed its customer whose credit card was stolen and used without her
permission. We found that the bank was not a “victim” under R.C. 2929.18(A)(1),
and the trial court erred as a matter of law when it awarded restitution to the bank to
be paid by the defendant. Id. We noted in Kiser that the bank was not identified in
the indictment as the victim, nor was the bank the object of the defendant’s
offenses. Id. Although an agreement had been struck between the State and the
defendant to make restitution, the agreement did not encompass the bank. Id.
{¶ 13} Unlike the restitution agreement in Kiser, the agreement between the
State and Johnson in the instant case specifically contemplated the payment of
restitution to Grange for the amount it paid to repair the interior of Flayer’s
residence. The agreement was discussed in the following exchange between the 6
trial court and the parties at the plea hearing:
The State: Yes, Your Honor. I would also like to indicate Grange
Insurance as a third party payee for restitution indicated that on the
plea form with amount to be paid to that third party, as well.
The Court: One thing we need to check. It’s been a while since I
looked at the law regarding restitution and there was a quirk in the law
regarding unless it’s, I guess, if it’s part of the plea agreement, then so
be it if it’s part of the plea agreement.
The State: That was my understanding. That’s why I put it in the form.
The Court: I think the law is, unless it’s otherwise agreed to, I believe
the court would not have the ability to order restitution to a third party
insurance company.
The State: That’s correct.
The Court: But this agreement is.
Defense Counsel: That’s my understanding, yes. But, may I inquire
or will the Court inquire.
The Court: Please, go ahead and make sure your client understands.
(Off-the-record discussion.)
Defense Counsel: Thank you for that opportunity. Yes, we agree
with that. Yes, he understands.
The Court: Leslie, add to the plea agreement agreed restitution in the
amount of?
The State: $18,409.07. 7
The Court: To?
The State: Grange Insurance.
The Court: Grange Insurance. So, Mr. Johnson, is this your
understanding of the plea bargain?
Defendant: Yes, Your Honor.
{¶ 14} As is clear from the exchange above, Johnson not only orally agreed
to pay restitution to Grange, a known third-party claimant, but also acquiesced to
the inclusion of the restitution agreement in the plea form that he voluntarily signed.
Unlike our decisions in Colon and Kiser, there was a specific agreement between
the State and Johnson for restitution to Grange. The language of R.C.
2929.18(A)(1) does not specifically restrict the parties from agreeing to an award of
restitution that is not provided for in the statute. State v. Stewart, 3rd Dist. Wyandot
No. 16-08-11, 2008-Ohio-5823. “By agreeing to the restitution award in exchange
for pleading guilty, he received the benefit of his bargain:” a reduced sentence. Id.
We note that in Stewart, the Third District held that the trial court did not err when it
ordered the defendant to pay restitution to the county sheriff’s office when the
restitution award was made pursuant to an express plea agreement between the
State and the defendant.
{¶ 15} Accordingly, we find that R.C. 2929.18(A)(1) does not prohibit an
award of restitution to an insurance company when the award is made pursuant to
the express plea agreement between the State and the defendant. Upon review,
we conclude that the trial court did not err when it ordered Johnson to pay
restitution to Grange Insurance Company. 8
{¶ 16} Johnson’s sole assignment of error is overruled.
{¶ 17} Johnson’s sole assignment of error having been overruled, the
judgment of the trial court is affirmed.
GRADY, P.J. and HALL, J., concur.
Copies mailed to:
Johnna M. Shia Scott A. Ashelman Hon. Dennis J. Langer