State v. Mickey

2022 Ohio 2396

• Court: Ohio Court of Appeals
• Decided: July 11, 2022
• Docket: 2021CA00131
• Status: Published

Opinion

[Cite as State v. Mickey, 2022-Ohio-2396.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2021CA00131 SEAN ROBERT MICKEY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Case No. 2021CR0163

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 11, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE STEVEN A. REISCH Prosecuting Attorney 201 Cleveland Avenue, S.W. Stark County, Ohio Suite #104 Canton, Ohio 44702 TIMOTHY E. YAHNER Assistant Prosecuting Attorney Appellate Division 110 Central Plaza, South – Suite #510 Canton, Ohio 44702-1413 Stark County, Case No. 2021CA00131 2

Hoffman, J. {¶1} Defendant-appellant Sean Robert Mickey appeals the November 8, 2021

Judgment Entry entered by the Stark County Court of Common Pleas, which ordered him

to pay restitution. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE CASE1

{¶2} On February 25, 2021, the Stark County Grand Jury indicted Appellant on

one count of breaking and entering, in violation of R.C. 2911.13(A)(C), a felony of the fifth

degree. Appellant appeared before the trial court on May 3, 2021, withdrew his original

plea of not guilty, and entered a plea of guilty to the Indictment. The trial court accepted

Appellant’s plea, found him guilty, and sentenced him to community control for a period

of three years.

{¶3} The trial court memorialized Appellant’s change of plea and sentence via

Judgment Entry filed May 6, 2021. The state, on behalf of the victim, filed a motion on

May 6, 2021, requesting the trial court reschedule the sentencing hearing. Therein, the

state acknowledged Appellant had entered a plea of guilty and was sentenced on May 3,

2021. The state explained the victim was not present at the hearing and the motion was

being brought because the victim desired to be present for the sentencing and wanted to

request restitution. Appellant filed a response to the state’s motion on May 11, 2021,

arguing, inter alia, reopening the case would violate his right to be free from double

jeopardy. Appellant filed a supplemental response on May 19, 2021. The state filed a

notice of supplemental case law on sentencing on May 20, 2021.

1 A Statement of the Facts is not necessary to our disposition of this Appeal. Stark County, Case No. 2021CA00131 3

{¶4} Via Judgment Entry filed May 27, 2021, the trial court found “the proper

remedy would be to set this matter for a pretrial to examine the restitution request by all

parties, and if the matter is not resolved, then the Court will set it for an evidentiary

hearing.” Id. at p. 6, unpaginated. The trial court concluded, “[i]t does not appear that

this action would be barred by the Double Jeopardy Clause.” Id. Appellant filed a motion

for reconsideration on June 9, 2021.

{¶5} After a number of continuances, the trial court conducted a hearing on

November 1, 2021. Collin Miller, the victim, testified he received an oral estimate of

$329.00, to repair the damage caused by Appellant during the commission of the offense.

The cost broke down to $179.00 for a new window and $150.00 for installation. Appellant

called Shawn Ferrell, a victim advocate with the Stark County Prosecutor’s Office, to

testify on his behalf. Ferrell indicated he left a voicemail for Miller advising the victim of

the May 3, 2021 hearing. Ferrell added Miller wanted to be present at every hearing and

wished to seek restitution. When Miller did not appear at the May 3, 2021 hearing, Ferrell

contact him to let him know what had transpired. Ferrell noted Miller was surprised the

hearing had taken place as he mistakenly believed May 3 rd was a Wednesday when it

was actually a Monday.

{¶6} Via Judgment Entry filed November 8, 2021, the trial court ordered

Appellant to pay restitution to Miller in the amount of $329.00.

{¶7} It is from this judgment entry Appellant appeals, raising the following

assignments of error: Stark County, Case No. 2021CA00131 4

I. THE TRIAL COURT VIOLATED APPELLANT’S RIGHTS UNDER

THE DOUBLE JEOPARDY CLAUSES OF THE FIFTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES

CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO

CONSTITUTION, WHEN IT FILED AN ENTRY ADDITIONALLY

ORDERING APPELLANT TO PAY $329.00 IN RESTITUTION, AFTER

APPELLANT’S LAWFULLY-IMPOSED ORIGINAL SENTENCE HAD

ALREADY BEEN JOURNALIZED AND EXECUTION ON THE SENTENCE

HAD COMMENCED.

II. THE TRIAL COURT ERRED WHEN IT ORDERED A

RESTITUTION AMOUNT UNSUPPORTED BY PROPER

DOCUMENTARY EVIDENCE.

I

{¶8} In his first assignment of error, Appellant contends the trial court violated

his rights under the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments

to the United States Constitution, and Section 10, Article I, Ohio Constitution by issuing

the November 8, 2021 Judgment Entry ordering him to pay restitution after his sentence

had been journalized and execution of the sentence had commenced. Specifically,

Appellant asserts jeopardy attached upon the filing of the May 6, 2021 Judgment Entry. Stark County, Case No. 2021CA00131 5

Marsy's Law

{¶9} Marsy's Law became effective on February 5, 2018, when Article I, Section

10a of the Ohio Constitution was amended following an initiative adopted by Ohio voters

at the 2017 general election. Relevant to the instant appeal, Marsy's Law provides:

(A) To secure for victims justice and due process throughout the

criminal and juvenile justice systems, a victim shall have the following rights,

which shall be protected in a manner no less vigorous than the rights

afforded to the accused:

***

(7) to full and timely restitution from the person who committed the

criminal offense or delinquent act against the victim.

Article I, Section 10a(A), Ohio Constitution.

{¶10} In State ex rel. Howery v. Powers, 12th Dist. Butler No. CA2019-03-045,

2020-Ohio-2767, 154 N.E.3d 146, the Twelfth District Court of Appeals held, “[u]nder the

new provisions in Marsy's Law, there [is] a clear legal duty to provide for full and timely

restitution.” Id. at ¶ 12 (Citation omitted). The relator in Howery, the victim, filed a writ of

mandamus, seeking an order of restitution from the defendant convicted of grand theft of

a motor vehicle. Id. at ¶ 1. The Twelfth District granted the writ and reopened the

defendant’s sentencing. Id. at ¶ 21. In reaching its decision, the Howery Court

considered the interplay between Marsy's Law and the trial court's authority to award Stark County, Case No. 2021CA00131 6

restitution and determined Marsy's Law does not conflict with the provisions of

2929.18(A)(1). Id. at ¶ 16.

{¶11} In Centerville v. Knab, 162 Ohio St. 3d 623, 2020 -Ohio- 5219, 166 N.E.3d

1167, the Ohio Supreme Court clarified:

Marsy's Law also does not provide a procedural mechanism for

ordering restitution. It merely states that a victim may assert his or her

constitutional rights in any proceeding involving the underlying criminal act.

Article I, Section 10a(B).

Id. at ¶ 18.

{¶12} In Knab, the Ohio Supreme Court determined a municipal corporation is not

a “person” against whom a criminal offense or delinquent act is committed and thus does

not qualify as a “victim” which could receive an award of restitution, under constitutional

amendment expanding rights of crime victims, or Marsy's Law. Id. at ¶ 31.

{¶13} Based upon the Ohio Supreme Court's clarification in Knab, supra, and the

Twelfth District Court of Appeal's holding in Howery, supra, we conclude Marsy's Law

creates a clear legal duty for the trial court to provide for “full and timely restitution” in

accordance with the procedures set forth in R.C. 2929.18.

Double Jeopardy

{¶14} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, made applicable to the states through the Fourteenth Amendment to the

United States Constitution, protects individuals against multiple punishments for the same Stark County, Case No. 2021CA00131 7

offense. North Carolina v. Pearce, 395 U.S. 711, 717–718, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969). Its primary purpose is to preserve the finality or integrity of judgments. United

States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). An

individual's legitimate expectation of finality in his or her sentence is a key factor in

determining whether or not double jeopardy protections are implicated. Thus, application

of double jeopardy protections to a change in a sentence is dependent upon the extent

and legitimacy of a defendant's expectation of finality. State v. McColloch, 78 Ohio App.3d

42, 603 N.E.2d 1106 (1991).

Analysis

{¶15} "A trial court may correct a legally improper sentence, even if a greater

penalty is imposed upon resentencing.” Brook Park v. Necak (1986), 30 Ohio App.3d 118,

119, 506 N.E.2d 936, 937-938. “[A] resentencing that imposes a more severe sentence

to correct an omitted mandatory penalty does not violate the Double Jeopardy Clause.”

State v. Waddell (19956), 106 Ohio App.3d 600, 603, 666 N.E.2d 649, 651, citing Bozza

v. United States (1947), 330 U.S. 160, 166-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818,

821-822.

{¶16} With the enactment of Marsy’s Law, a victim of a crime now has a

constitutional right to full and timely restitution. Because Appellant’s original sentence did

not include restitution, we find said sentence was “legally improper.” As such, the trial

court had the authority to reopen the matter and order restitution without violating the

Double Jeopardy Clause.

{¶17} Appellant’s first assignment of error is overruled. Stark County, Case No. 2021CA00131 8

II

{¶18} In his second assignment of error, Appellant maintains the trial court erred

in ordering him to pay restitution in the amount of $329.00, as said amount was not

supported by proper documentary evidence. We disagree.

{¶19} R.C. 2929.18(A)(1) governs restitution orders:

(A) Except as otherwise provided in this division and in addition to

imposing court costs pursuant to section 2947.23 of the Revised Code, the

court imposing a sentence upon an offender for a felony may sentence the

offender to any financial sanction or combination of financial sanctions

authorized under this section or, in the circumstances specified in section

2929.32 of the Revised Code, may impose upon the offender a fine in

accordance with that section. Financial sanctions that may be imposed

pursuant to this section include, but are not limited to, the following:

(1) Restitution 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 imposes restitution, the court shall order that the restitution be

made to the victim in open court, to the adult probation department that

serves the county on behalf of the victim, to the clerk of courts, or to another

agency designated by the court. If the court imposes restitution, at

sentencing, the court shall determine the amount of restitution to be made

by the offender. If the court imposes restitution, the court may base the

amount of restitution it orders on an amount recommended by the victim, Stark County, Case No. 2021CA00131 9

the offender, a presentence investigation report, estimates or receipts

indicating the cost of repairing or replacing property, and other information,

provided that the amount the court orders as restitution 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. If the court decides to

impose restitution, the court shall hold a hearing on restitution if the

offender, victim, or survivor disputes the amount. All restitution payments

shall be credited against any recovery of economic loss in a civil action

brought by the victim or any survivor of the victim against the offender.

{¶20} We review restitution orders under an abuse of discretion standard. See,

e.g., State v. Sheets, 5th Dist. Licking No. 17 CA 44, 2018-Ohio-996, ¶ 15; State v. Cook,

5th Dist. Fairfield No. 16–CA–28, 2017–Ohio–1503, ¶ 8; State v. Andrews, 5th Dist.

Delaware No. 15 CAA 12 0099, 2016–Ohio–7389, ¶ 40. An order of restitution must be

supported by competent and credible evidence from which the trial court can discern the

amount of restitution to a reasonable degree of certainty. State v. Spencer, 5th Dist.

Delaware No. 16 CAA 04 0019, 2017–Ohio–59, ¶ 44 (Citations omitted). Furthermore, a

trial court abuses its discretion if it orders restitution in an amount that does not bear a

reasonable relationship to the actual loss suffered. Id. (Citations omitted).

{¶21} Appellant contends the trial court erred in basing the amount of restitution

on the victim’s testimony, arguing the $329.00 figure was not supported by documentary

evidence. However, the evidence which supports a court's restitution order “can take the

form of either documentary evidence or testimony.” State v. Jones, 10th Dist. No. 14AP- Stark County, Case No. 2021CA00131 10

80, 2014-Ohio-3740, ¶ 23 (Citation omitted). Thus, “a restitution order may be supported

by the victim's testimony alone without documentary corroboration.” State v. Jones, 10th

Dist. No. 15AP-45, 2015-Ohio-3983, ¶ 16 (Citation omitted). Accord, State v. McClain,

5th Dist. No. 2010 CA 00039, 2010-Ohio-6413, ¶ 34 (observing “R.C. 2929.18(A)(1)

allows the trial court to rely upon the amount of restitution recommended by the victim,

and does not require written documentation”); State v. Graham, 2d Dist. No. 25934, 2014-

Ohio-4250, ¶ 57 (stating the “testimony of a victim, if determined to be credible, is

sufficient to support a restitution order; no documentation is required to substantiate the

victim's testimony”).

{¶22} We find there was competent and credible evidence to support the amount

of restitution imposed by the trial court under R.C. 2929.28(A)(1). Miller testified he went

to a window repair company around the corner from his home. He was told the window

could not be fixed and he would have to purchase a whole new window. Miller then

telephoned The Home Depot and was advised the cost to replace the window would be

$329.00, which included $179.00 for the actual window and $150.00 for installation. Miller

wrote his own “estimate. . . based on making a phone call to Home Depot on what that

size window costs, and. . . what they estimated a person coming out and doing it [installing

the new window] would cost.” Transcript of November 1, 2021 Restitution Hearing at 10.

The trial court determined Miller’s testimony was credible.

{¶23} Because R.C. 2929.18(A)(1) allows a trial court to rely upon the amount of

restitution recommended by the victim and does not require written documentation, we

find the trial court did not abuse its discretion in ordering Appellant to pay the amount of

$329.00 in restitution. Stark County, Case No. 2021CA00131 11

{¶24} Appellant’s second assignment of error is overruled.

{¶25} The judgment of the Stark County Court of Common Pleas is affirmed.

By: Hoffman, J. Gwin, P.J. and Baldwin, J. concur