State v. Kurth
Opinion
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1238 L-15-1239
Appellee Trial Court Nos. CR0201402937 v. CR0201501788
Timothy Kurth DECISION AND JUDGMENT Appellant Decided: November 10, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Maggie E. Koch, Assistant Prosecuting Attorney, for appellee.
Steven Casiere, for appellant.
*****
JENSEN, P.J.
{¶ 1} In this consolidated appeal, defendant-appellant, Timothy Kurth, appeals the August 17, 2015 judgments of the Lucas County Court of Common Pleas. For the reasons that follow, we affirm, in part, and reverse, in part, and we remand the matter to the trial court to make corrections to the judgment entries as described in this decision.
I. Background
{¶ 2} On July 2, 2015, Timothy Kurth entered a plea of no contest to one count of burglary, a violation of R.C. 2911.12(A)(2), in Lucas County case No. CR0201402937 (“the 2014 case”). That charge, a second-degree felony, arose after he burglarized the home of his neighbor, B.T. That same day, Kurth also entered a plea of no contest to one count of breaking and entering, a violation of R.C. 2911.13(A), in Lucas County case No. CR0201501788 (“the 2015 case”). That charge, a fifth-degree felony, arose after he broke into a business, Brent Industries.
{¶ 3} The trial court held a sentencing hearing in both cases on August 13, 2015.
Orally, the trial court announced a sentence of five years’ imprisonment and restitution of $2,914.19 to the victim in the 2014 case, and 12 months’ imprisonment and restitution of $186 to the victim in the 2015 case, with the prison terms to be served concurrently. At the sentencing hearing, the trial court imposed the costs of prosecution and supervision under R.C. 2947.231, but it found that Kurth was not reasonably expected to have the means to pay all or part of the applicable court-appointed counsel fees and the costs of confinement, and, therefore, waived those fees and costs.
{¶ 4} Kurth’s sentences were memorialized in two separate judgment entries entered on August 17, 2015. Those entries accurately reflect the prison sentences imposed at the hearing, however, with respect to restitution and the imposition of costs and fees, the entries do not precisely mirror the sentences that were orally announced. Specifically, the judgment entry in the 2014 case orders restitution to both victims; the entry in the 2015 case is silent as to restitution. Additionally, the entry in the 2014 case states “Defendant found to have, or reasonably may be expected to have, the means to pay all or part of the applicable costs of supervision, confinement, and prosecution as authorized by law,” but then goes on to say “The Court finds the defendant lacks financial resources that are sufficient to pay the fee and/or payment of the fee would result in undue hardship and WAIVES the $25 fee for Assigned Counsel pursuant to R.C. 120.36 and costs of confinement.” While the entry in the 2015 case includes the first statement, it omits the waiver language contained in the 2014 case.
{¶ 5} Kurth timely appealed both entries and assigns the following errors for our review.
1. The trial court erred when it ordered Appellant to pay restitution in the 2014 case.
2. The trial court erred by ordering Appellant to pay costs for confinement and assigned counsel fees in the 2015 case.
3. The trial court abused its discretion in sentencing Appellant to the maximum prison term in the 2015 case.
II. Law and Analysis
{¶ 6} In his first assignment of error, Kurth argues that the trial court erred in imposing restitution without considering his ability to pay. In his second assignment of error, he argues that the trial court erred in imposing the costs of confinement and counsel fees. And in his third assignment of error, he argues that the trial court erred in imposing the maximum prison sentence in the 2015 case.
A. Restitution
{¶ 7} Kurth makes two arguments concerning the trial court’s imposition of restitution. First, he argues that the trial court neglected to consider his ability to pay. Second, he argues that because restitution may be imposed only for the conduct for which a defendant was convicted, it was improper to impose restitution to Brent Industries in the 2014 case.
{¶ 8} The state argues that Kurth may not properly challenge the restitution order because Kurth agreed to an order of restitution as part of his plea agreement. It explains that this agreement was placed on the record and was included in the plea form, and that Kurth was specifically asked if he challenged the restitution order, and he responded that he did not. The state also explains that the trial court made a clerical error in placing the restitution order to Brent Industries in the judgment entry in the 2014 case instead of placing it in the entry in the 2015 case. It maintains that this error may be corrected by the trial court without a further hearing. We agree with the state.
{¶ 9} Under R.C. 2929.18(A)(1), the court may impose “[r]estitution by the offender to the victim of the offender’s crime or any survivor of the victim, in an amount based on the victim’s economic loss. * * * If the court decides to impose restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor disputes the amount.” The court “may hold a hearing if necessary to determine whether the offender is able to pay the sanction or is likely in the future to be able to pay it.” R.C. 2929.18(E). We have held, however, that a court does not err in imposing restitution where the offender agrees to make restitution as part of a plea agreement and stipulates to the amount of that restitution. State v. Farless, 6th Dist. Lucas Nos. L-15-1060, 1061, 2016- Ohio-1571, ¶ 8. That is what happened here.
{¶ 10} The plea form signed by Kurth indicates that restitution may be imposed.
Before Kurth entered his plea, the state indicated on the record that “there is a restitution amount on the breaking and entering, it is $186 dollars I do believe, to be paid to Brent Industries. As to the other burglary, there is restitution, but we would just have that determined through probation.” Kurth entered his pleas knowing this. At sentencing, the court began by stating, “Restitution, I have $2,914.19 for [B.T.], $186 dollars to Brent Industries; do you challenge that?” Defense counsel responded on Kurth’s behalf, “No, sir.” No additional inquiry as to the amount of restitution or Kurth’s ability to pay was required.
{¶ 11} We do find, however, that the restitution owed to Brent Industries should have been reflected in the judgment entry for the 2015 case—not the 2014 case. As the state suggests, this can be accomplished by a nunc pro tunc entry without the need for an additional hearing.
{¶ 12} We, therefore, find Kurth’s first assignment of error not well-taken insofar as he challenges the imposition of restitution, in general. We do, however, remand the case to the trial court for a nunc pro tunc entry correcting its error in placing the restitution to Brent Industries in the judgment entry in the 2014 case instead of in the judgment entry for the 2015 case.
B. Costs of Confinement and Counsel Fees
{¶ 13} In his second assignment of error, Kurth argues that the trial court erred in imposing the costs of confinement and assigned counsel fees in the 2015 case. The state agrees with Kurth that the trial court waived these fees and costs, and contends that the judgment entry in the 2015 case can be corrected by the trial court in a nunc pro tunc order.
Free access — add to your briefcase to read the full text and ask questions with AI
2016 Ohio 7698 (State v. Kurth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.