State v. Moss

930 N.E.2d 838, 186 Ohio App. 3d 787
CourtOhio Court of Appeals
DecidedMarch 19, 2010
DocketNo. 09AP6
StatusPublished
Cited by18 cases

This text of 930 N.E.2d 838 (State v. Moss) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moss, 930 N.E.2d 838, 186 Ohio App. 3d 787 (Ohio Ct. App. 2010).

Opinions

Per Curiam.

{¶ 1} Robert L. Moss appeals the judgment of the Hocking County Court of Common Pleas, which ordered Moss to pay restitution and court costs as part of his sentence for complicity to burglary. On appeal, Moss contends that the trial court committed plain error by ordering him to pay $1,476 in restitution to the victim’s insurance company. Because R.C. 2929.18(A)(1) does not permit restitution to third parties, we agree. Next, Moss contends that the trial court erred when it ordered him to pay restitution without first considering Moss’s ability to pay. Because the trial court considered a presentence investigation report, which contained information about Moss’s financial status, we disagree. Next, Moss contends that the trial court erred by not informing him that community service could be imposed if Moss failed to pay his court costs. Because R.C. 2947.23(A)(1) requires a trial court to provide this information, we agree. Finally, Moss contends that he received ineffective assistance of counsel. We disagree. First, the failure to raise meritless issues does not constitute ineffective [790]*790assistance of counsel. And second, Moss has done nothing to demonstrate the unreliability of the trial court’s restitution findings. Accordingly, we affirm in part and vacate in part the judgment of the trial court.

I

{¶ 2} On July 3, 2008, Moss and two co-conspirators participated in a burglary. Either Moss or one of his co-conspirators entered the victim’s home and stole various items, including a flat-screen television, a video-game console, a diamond tennis bracelet, and some DVDs. The estimated value of the stolen merchandise was $3,323.

{¶ 3} Later that day, the Circleville Police Department responded to an automobile accident involving Moss, who was traveling in the same car as his co-conspirators. The police arrived at the accident scene, where they found Moss and his co-conspirators to be under the influence of drugs. Shortly thereafter, the police discovered property that was stolen during the burglary of the victim’s home. It is not entirely clear how much of the victim’s property the police found at the accident scene, what condition the property was in, or how much of the stolen property was returned to the victim.

{¶ 4} As a result of these events, a Hocking County Grand Jury returned a two-count indictment against Moss. The indictment included the following charges: (1) burglary, a second-degree felony, in violation of R.C. 2911.12(A)(2), and (2) theft, a fifth-degree felony, in violation of 2913.02(A)(1). However, pursuant to a plea agreement, Moss subsequently pleaded guilty to one count of complicity to burglary, a third-degree felony, in violation of R.C. 2923.03(A)(2) and 2911.12(A)(3). The trial court deferred Moss’s sentencing until after the preparation of a presentence investigation report (“the report”).

{¶ 5} The report was later completed, and it discusses the details of the underlying crime as well as Moss’s criminal history, educational background, employment record, financial condition, and physical and mental health.

{¶ 6} At the beginning of Moss’s sentencing hearing, the trial court judge stated that the trial court had accepted Moss’s guilty plea and “referred the matter for the preparation of a presentence investigation report. That report has been completed, reviewed by the Court and so the Court is going to proceed with the sentencing hearing at this time.” The trial court sentenced Moss to four years in prison. And based on information contained in the report, the trial court ordered Moss to pay $1,000 in restitution to the victim and $1,476 in restitution to the victim’s insurance company. Further, the trial court ordered Moss to pay court costs at the rate of $15 per month. The trial court journalized Moss’s sentence in a December 29, 2009 judgment entry of sentence (“the entry”).

[791]*791{¶ 7} Moss filed his notice of appeal on February 2, 2009, and we subsequently granted Moss’s motion for leave to file a delayed appeal. In his appellate brief, Moss asserts the following four assignments of error: I. “The trial court committed plain error when it ordered Mr. Moss to pay $2,476.00 in restitution without considering his present and future ability to pay the restitution as required by R.C. 2929.19(B)(6).” II. “The trial court committed plain error when it ordered Mr. Moss to pay $1,476.00 in restitution to a third-party insurance company, in contravention of R.C. 2929.18(A)(1).” III. “The trial court erred by imposing court costs without notifying Mr. Moss that failure to pay court costs may result in the court’s ordering him to perform community service.” IV. “Trial counsel rendered ineffective assistance of counsel in violation of Mr. Moss’s rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.”

II

{¶ 8} For ease of analysis, we will address Moss’s assignments of error out of order. In his second assignment of error, Moss contends that the trial court committed plain error by ordering him to pay $1,476 in restitution to the victim’s insurance company.

{¶ 9} Because Moss did not object to the restitution order in the proceedings below, he has forfeited all but plain error. Pursuant to Crim.R. 52(B), we may notice plain errors or defects affecting substantial rights. “Inherent in the rule are three limits placed on reviewing courts for correcting plain error.” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, at ¶ 15. “First, there must be an error, i.e., a deviation from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning of Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial proceedings. * * * Third, the error must have affected ‘substantial rights.’ We have interpreted this aspect of the rule to mean that the trial court’s error must have affected the outcome of the trial.” Id. at ¶ 16, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. We will notice plain error “only to prevent a manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, at paragraph three of the syllabus. And “[rjeversal is warranted only if the outcome of the trial clearly would have been different absent the error.” State v. Hill (2001), 92 Ohio St.3d 191, 203, 749 N.E.2d 274.

{¶ 10} The state has conceded Moss’s second assignment of error, and we agree. “R.C. 2929.18(A)(1) allows a court to order an offender to make restitution to the victim of the offender’s crime based on the amount of the victim’s economic loss.” State v. Bryant, Scioto App. No. 08CA3258, 2009-Ohio-5295, 2009 [792]*792WL 3166641, at ¶ 7. However, this court has held that “under the current version of R.C. 2929.18(A)(1), ‘trial courts are no longer permitted to award restitution in criminal cases to third parties, including insurance carriers.’ ” State v. Haney, 180 Ohio App.3d 554, 2009-Ohio-149, 906 N.E.2d 472, at ¶ 29, quoting State v. Baltzer, Washington App. No. 06CA76, 2007-Ohio-6719, 2007 WL 4374407, at ¶ 41. See also State v. Smith, Washington App. No. 07CA25, 2008-Ohio-142, 2008 WL 160922, at ¶ 4. For example, in

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Bluebook (online)
930 N.E.2d 838, 186 Ohio App. 3d 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moss-ohioctapp-2010.