[Cite as State v. McDonald, 2011-Ohio-1964.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95651
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
CASSANDRA MCDONALD DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, MODIFIED, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536156
BEFORE: Keough, J., Kilbane A.J., and Cooney, J. RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT
Steve W. Canfil 1370 Ontario Street Standard Building Suite 2000 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Marcus L. Wainwright Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} This case came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Cassandra
McDonald (“McDonald”), appeals her guilty plea and sentence. Finding some
merit to the appeal, we affirm in part and modify her sentence, in part.
{¶ 2} In April 2009, McDonald was charged with one count each of
burglary, passing bad checks, aggravated menacing, and criminal damaging.
In June 2010, she pled guilty to passing bad checks and aggravated menacing; all other charges were dismissed. She was sentenced to one year
in prison and was ordered to pay $6,900 in restitution. McDonald appeals,
raising two assignments of error.
Plea
{¶ 3} In her first assignment of error, McDonald contends that she was
deprived of her constitutional rights when the court accepted her guilty plea
without fully informing her of the consequences of her plea.
{¶ 4} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony
matter, a trial court must personally address the defendant and (1) determine
that the defendant is making the plea voluntarily, with an understanding of
the nature of the charges and the maximum penalty; (2) inform the defendant
of and determine that the defendant understands the effect of the plea, and
that the court may proceed with judgment after accepting the plea; and (3)
inform the defendant and determine that the defendant understands that she
is waiving her constitutional rights to a jury trial, to confront the witnesses
against her, to call witnesses in her favor, and to require the state to prove
her guilt beyond a reasonable doubt at a trial where the defendant cannot be
forced to testify against herself.
{¶ 5} A trial court must strictly comply with the mandates of Crim.R.
11(C)(2) regarding the waiver of constitutional rights, meaning the court
must actually inform the defendant of the constitutional rights she is waiving and make sure the defendant understands them. State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶27.
{¶ 6} McDonald argues on appeal that the trial court failed to inform
her that she enjoyed the presumption of innocence and she could choose to
have her case tried to the court, rather than to a jury. By failing to advise
her accordingly, McDonald contends that the trial court did not strictly
comply with the requirements of Crim.R. 11(C)(2). We disagree.
{¶ 7} This court has held that Crim.R. 11 does not require the trial
court to advise an offender she is presumed innocent, but that the offender,
by her plea, is waiving the right 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.’” State v. King (Sept. 14,
2000), Cuyahoga App. No. 76696, quoting Crim.R. 11(C)(2)(c).
{¶ 8} Additionally, although Crim.R. 11 requires a trial court to inform
a defendant of the right to a jury trial, there is no requirement that it is
likewise required to inform a defendant of the right to a bench trial. See
State v. Steele, Cuyahoga App. No. 85901, 2005-Ohio-5541; State v. Luster
(June 20, 1985), Cuyahoga App. No. 49248.
{¶ 9} Reviewing the entire plea colloquy, we find that prior to accepting
McDonald’s plea, the trial court strictly complied with the requirements of
Crim.R. 11(C)(2). The trial court stated: {¶ 10} “Okay. You have the following rights which you’ll be waiving:
You have the right to a jury trial in this case. At your jury trial you have the
right to confront and cross-examine the State’s witnesses against you, you
may do that through your attorney. You have the right to use this Court’s
compulsory process power for subpoena and to bring into court your own
witnesses and have them testify on your behalf. You do not have to take the
witness stand and testify at your trial. If you choose not to testify, the State
cannot use your silence against you. And lastly, the State has the burden of
proof, they must prove the charges against you to the legal standard of
beyond a reasonable doubt. Do you understand those rights?
{¶ 11} “Defendant: Yes, sir.”
{¶ 12} Accordingly, McDonald’s arguments are without merit and her
first assignment of error is overruled.
Restitution Order
{¶ 13} McDonald contends in her second assignment of error that the
trial abused its discretion in ordering her to pay restitution to the victim for
damages which were not caused by the offense and were arbitrary when
compared to the actual loss suffered. The State concedes this error and the
proper amount of restitution to be $1,800.
{¶ 14} Appellate review of a lower court’s order of restitution is under an
abuse of discretion standard. State v. Berman, Cuyahoga App. No. 79542, 2002-Ohio-1277, citing State v. Marbury (1995), 104 Ohio App.3d 179, 661
N.E.2d 271.
{¶ 15} When a defendant is ordered to pay restitution during sentencing,
there “must be a due process ascertainment that the amount of restitution
bears a reasonable relationship to the loss suffered.” State v. Williams
(1986), 34 Ohio App.3d 33, 34, 516 N.E.2d 1270. When a court imposes
restitution as part of a felony offender’s sentence, it must be “based on the
victim’s economic loss.” R.C. 2929.18(A)(1).
{¶ 16} An order of restitution is therefore “limited to the actual damage
or loss caused by the offense of which the defendant is convicted.” Williams at
paragraph one of the syllabus. The amounts claimed lost by a victim must
be established with certainty. Id. “Where evidence of actual losses is not
forthcoming from those claiming restitution the trial court abuses its
discretion in ordering restitution.” Marbury at 181, citing State v. Hansen
(Mar. 22, 1990), Cuyahoga App. No. 56778.
{¶ 17} R.C. 2929.18(A)(1) also requires the trial court to calculate the
amount of restitution owed based on the economic loss to the victim resulting
from the defendant’s crime. A sentence of restitution must be limited to the
actual economic loss caused by the illegal conduct for which the defendant
was convicted. State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18; State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56;
State v.
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[Cite as State v. McDonald, 2011-Ohio-1964.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95651
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
CASSANDRA MCDONALD DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, MODIFIED, AND REMANDED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-536156
BEFORE: Keough, J., Kilbane A.J., and Cooney, J. RELEASED AND JOURNALIZED: April 21, 2011
ATTORNEY FOR APPELLANT
Steve W. Canfil 1370 Ontario Street Standard Building Suite 2000 Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Marcus L. Wainwright Assistant Prosecuting Attorney The Justice Center, 8th Floor 1200 Ontario Street Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:
{¶ 1} This case came to be heard upon the accelerated calendar
pursuant to App.R. 11.1 and Loc.R. 11.1. Defendant-appellant, Cassandra
McDonald (“McDonald”), appeals her guilty plea and sentence. Finding some
merit to the appeal, we affirm in part and modify her sentence, in part.
{¶ 2} In April 2009, McDonald was charged with one count each of
burglary, passing bad checks, aggravated menacing, and criminal damaging.
In June 2010, she pled guilty to passing bad checks and aggravated menacing; all other charges were dismissed. She was sentenced to one year
in prison and was ordered to pay $6,900 in restitution. McDonald appeals,
raising two assignments of error.
Plea
{¶ 3} In her first assignment of error, McDonald contends that she was
deprived of her constitutional rights when the court accepted her guilty plea
without fully informing her of the consequences of her plea.
{¶ 4} Under Crim.R. 11(C)(2), before accepting a guilty plea in a felony
matter, a trial court must personally address the defendant and (1) determine
that the defendant is making the plea voluntarily, with an understanding of
the nature of the charges and the maximum penalty; (2) inform the defendant
of and determine that the defendant understands the effect of the plea, and
that the court may proceed with judgment after accepting the plea; and (3)
inform the defendant and determine that the defendant understands that she
is waiving her constitutional rights to a jury trial, to confront the witnesses
against her, to call witnesses in her favor, and to require the state to prove
her guilt beyond a reasonable doubt at a trial where the defendant cannot be
forced to testify against herself.
{¶ 5} A trial court must strictly comply with the mandates of Crim.R.
11(C)(2) regarding the waiver of constitutional rights, meaning the court
must actually inform the defendant of the constitutional rights she is waiving and make sure the defendant understands them. State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶27.
{¶ 6} McDonald argues on appeal that the trial court failed to inform
her that she enjoyed the presumption of innocence and she could choose to
have her case tried to the court, rather than to a jury. By failing to advise
her accordingly, McDonald contends that the trial court did not strictly
comply with the requirements of Crim.R. 11(C)(2). We disagree.
{¶ 7} This court has held that Crim.R. 11 does not require the trial
court to advise an offender she is presumed innocent, but that the offender,
by her plea, is waiving the right 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.’” State v. King (Sept. 14,
2000), Cuyahoga App. No. 76696, quoting Crim.R. 11(C)(2)(c).
{¶ 8} Additionally, although Crim.R. 11 requires a trial court to inform
a defendant of the right to a jury trial, there is no requirement that it is
likewise required to inform a defendant of the right to a bench trial. See
State v. Steele, Cuyahoga App. No. 85901, 2005-Ohio-5541; State v. Luster
(June 20, 1985), Cuyahoga App. No. 49248.
{¶ 9} Reviewing the entire plea colloquy, we find that prior to accepting
McDonald’s plea, the trial court strictly complied with the requirements of
Crim.R. 11(C)(2). The trial court stated: {¶ 10} “Okay. You have the following rights which you’ll be waiving:
You have the right to a jury trial in this case. At your jury trial you have the
right to confront and cross-examine the State’s witnesses against you, you
may do that through your attorney. You have the right to use this Court’s
compulsory process power for subpoena and to bring into court your own
witnesses and have them testify on your behalf. You do not have to take the
witness stand and testify at your trial. If you choose not to testify, the State
cannot use your silence against you. And lastly, the State has the burden of
proof, they must prove the charges against you to the legal standard of
beyond a reasonable doubt. Do you understand those rights?
{¶ 11} “Defendant: Yes, sir.”
{¶ 12} Accordingly, McDonald’s arguments are without merit and her
first assignment of error is overruled.
Restitution Order
{¶ 13} McDonald contends in her second assignment of error that the
trial abused its discretion in ordering her to pay restitution to the victim for
damages which were not caused by the offense and were arbitrary when
compared to the actual loss suffered. The State concedes this error and the
proper amount of restitution to be $1,800.
{¶ 14} Appellate review of a lower court’s order of restitution is under an
abuse of discretion standard. State v. Berman, Cuyahoga App. No. 79542, 2002-Ohio-1277, citing State v. Marbury (1995), 104 Ohio App.3d 179, 661
N.E.2d 271.
{¶ 15} When a defendant is ordered to pay restitution during sentencing,
there “must be a due process ascertainment that the amount of restitution
bears a reasonable relationship to the loss suffered.” State v. Williams
(1986), 34 Ohio App.3d 33, 34, 516 N.E.2d 1270. When a court imposes
restitution as part of a felony offender’s sentence, it must be “based on the
victim’s economic loss.” R.C. 2929.18(A)(1).
{¶ 16} An order of restitution is therefore “limited to the actual damage
or loss caused by the offense of which the defendant is convicted.” Williams at
paragraph one of the syllabus. The amounts claimed lost by a victim must
be established with certainty. Id. “Where evidence of actual losses is not
forthcoming from those claiming restitution the trial court abuses its
discretion in ordering restitution.” Marbury at 181, citing State v. Hansen
(Mar. 22, 1990), Cuyahoga App. No. 56778.
{¶ 17} R.C. 2929.18(A)(1) also requires the trial court to calculate the
amount of restitution owed based on the economic loss to the victim resulting
from the defendant’s crime. A sentence of restitution must be limited to the
actual economic loss caused by the illegal conduct for which the defendant
was convicted. State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18; State v. Hafer, 144 Ohio App.3d 345, 348, 2001-Ohio-2412, 760 N.E.2d 56;
State v. Hooks (2000), 135 Ohio App.3d 746, 748, 735 N.E.2d 523.
{¶ 18} 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. See Williams at 33-34; Hooks at 748.
{¶ 19} Here, the record demonstrates that at the time of the plea, the
State represented to the trial court that restitution for the damage to the door
was being requested in addition to $1,800 for the bad check. At sentencing,
the trial court ordered McDonald to pay $6,900 in restitution, which
represented the amount of the bad check and unpaid back rent.
{¶ 20} We find that the trial court abused its discretion in ordering
restitution for the nonpayment of rent. McDonald was convicted of passing
bad checks and aggravated menacing. The amount of restitution reasonably
related to the actual loss suffered as a result of her convictions is $1,800, the
amount of the bad check. The trial court was not authorized to order any
restitution for nonpayment of rent. Morever, because the State dismissed
the criminal damaging count, no restitution could be ordered for the damaged
door. {¶ 21} Accordingly, we sustain McDonald’s second assignment of error
and, pursuant to App.R. 12(B), this court modifies the trial court’s award of
restitution, reducing the amount to $1,800.
{¶ 22} Affirmed in part; sentence modified in part. Case remanded to
the trial court with instructions to enter a judgment entry reflecting this
court’s decision modifying the restitution amount to $1,800.
It is ordered that appellant recover from appellee her 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. The defendant’s
conviction having been affirmed in part, any bail pending appeal is
terminated. Case remanded to the trial court for correction and execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE
MARY EILEEN KILBANE, A. J., and COLLEEN CONWAY COONEY, J., CONCUR