State v. Osborne

2021 Ohio 3352

• Court: Ohio Court of Appeals
• Decided: September 23, 2021
• Docket: 110237
• Status: Published

Opinion

[Cite as State v. Osborne, 2021-Ohio-3352.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 110237 v. :

NEIL OSBORNE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART; REVERSED AND REMANDED IN PART RELEASED AND JOURNALIZED: September 23, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-649718-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Marco Tanudra, Assistant Prosecuting Attorney, for appellee.

Rick L. Ferrara, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Neil Osborne, pleaded guilty to aggravated arson

in violation of R.C. 2909.02(A)(1). The trial court sentenced him to six years in

prison and ordered restitution to five of the 11 victims named in the indictment. Osborne appeals his sentence and the restitution order. Finding some merit to the

appeal, we affirm in part, reverse in part, and remand for the purpose of determining

restitution.

In March 2020, Osborne was charged with two counts of aggravated

arson — Court 1 alleged a violation of R.C. 2909.02(A)(1), a felony of the first degree,

and Count 2 alleged a violation of R.C. 2909.02(A)(2), a second-degree felony. The

state claimed that Osborne set fire to an apartment building in Brook Park where

his wife and child were living. The police officer who responded to the fire and eight

tenants of the building were also identified as alleged victims.

In October 2020, Osborne pleaded guilty to Count 1; the state nolled

Count 2. The issue of restitution was not discussed during the plea hearing, but the

case was passed for sentencing for the purpose of obtaining a presentence

investigation report.

At sentencing, mitigation evidence was presented on behalf of Osborne.

Specifically, it was presented that he had no prior criminal record and that he was

currently receiving psychiatric care for depression and anxiety. Medical reports

from his treating physicians were submitted to the court for review. The presentence

investigation report included a confidential victim summary sheet, which provided

the victims’ opinions or comments, and statements regarding restitution.

The trial court sentenced Osborne to six years in prison and ordered

that he pay a total restitution amount of $7,765 to five of the 11 victims. This appeal

followed. I. Sentence

In his first assignment of error, Osborne contends that the trial court

erred in imposing a six-year term of imprisonment by specifically failing to consider

or apply the factors in R.C. 2929.13(D), to overcome the presumption of prison.

R.C. 2909.02(A)(1) classifies aggravated arson as a felony of the first

degree. An offender who commits such a felony may be sentenced from three to 11

years in prison. See R.C. 2929.14(A)(1). In fact, a conviction for a felony of the first

degree carries a presumption that a prison term is necessary to comply with the

purposes and principles of felony sentencing. R.C. 2929.13(D)(1). Despite this

presumption, a trial court “may impose a community control sanction * * * instead

of a prison term * * * for a felony of the * * * first degree” if, after weighing the

applicable seriousness and recidivism factors under R.C. 2929.12, it finds a

community control sanction would both (1) “adequately punish the offender and

protect the public from future crime” and (2) “not demean the seriousness of the

offense.” R.C. 2929.13(D)(2)(a)-(b). Accordingly, a trial court is only required to

make findings under R.C. 2929.13(D) when it decides to deviate from the

presumption of prison and instead impose a community control sentence.

In this case, because the trial court followed the presumption of prison

by imposing a six-year sentence, it was not required to issue any findings pursuant

to R.C. 2929.13(D). Osborne’s first assignment of error is overruled. II. Restitution

In the presentence investigation report, five of the victims presented

information regarding restitution. The report indicated that victim, K.O., did not

seek restitution but that she and her daughter “suffered approximately $5,000

worth of damaged belongings.” At sentencing, K.O. made a victim-impact

statement, but did not address the issue of restitution. The trial court ordered

Osborne to pay K.O. restitution in the amount of $4,000.

Victim J.S. provided a statement to the probation department on

behalf of himself, his girlfriend, and their minor child. The report did not note any

insurance claim number, but requested $700 in restitution because they “suffered a

loss of approximately $100 when [they] rented a U-Haul truck to move to a new

apartment building, $500 for his renter’s insurance deductible, and another $100

for another rental U-Haul truck when his apartment [was renovated following the

fire].” The trial court ordered Osborne to pay J.S. restitution in the amount of $700.

Regarding victim S.G., the report did not note any insurance claim

number, but provided that S.G. requested her renter’s insurance deductible in the

amount of $500, which the trial court ordered Osborne to pay.

The report also provided that victim B.S. was requesting $500 in

restitution for his renter’s insurance deductible based on the claim he filed through

the Hartford Insurance company. However, no insurance claim number was

provided in the report. The trial court ordered Osborne to pay B.S. restitution in the

amount of $500. Finally, victim R.T. requested restitution in the amount of $2,065.

According to the report, R.T. “suffered a loss of approximately $2,500, but only

received a check from State Farm from his renter’s insurance claim for $435 (after

his $1,000 deductible was considered).” He told the probation department that

“State Farm only provided coverage on items he was able to provide photos of.”

However, during sentencing, the prosecutor stated that R.T. was only requesting

restitution in the amount of $1,000, which was his insurance deductible. The trial

court ordered Osborne to pay R.T. restitution in the amount of $2,065.

In his second assignment of error, Osborne contends that the trial

court committed plain error in ordering restitution without sufficient evidence

substantiating the restitution award and by ignoring a limitation of restitution based

on the existence of insurance proceeds.

R.C. 2929.18(A)(1) gives a sentencing court discretion to order

restitution but not in an amount greater than the amount of economic loss suffered

by the victim as a direct and proximate result of the commission of the offense. In

order to determine the appropriate amount of restitution, the court “may base the

amount of restitution it orders on an amount recommended by the victim, the

offender, a presentence investigation report, estimates or receipts indicating the cost

of repairing or replacing property, and other information.” R.C. 2929.18(A)(1); see

also State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423,

paragraphs one and two of the syllabus. If, however, the amount of restitution is

disputed by the offender, victim, or survivor, the trial court shall hold a hearing. Id. The amount of restitution ordered must be supported by competent, credible

evidence from which the court can discern the amount of restitution to a reasonable

degree of certainty. State v. Starr, 8th Dist. Cuyahoga No. 102593 2015-Ohio-3675,

¶ 6, citing State v. Roberts, 8th Dist. Cuyahoga No. 99755, 2014-Ohio-115, ¶ 7-8.

The evidence in the record must be enough to “substantiate the relationship of the

offender’s criminal conduct to the amount of the victim’s loss.” Roberts at ¶ 10,

citing State v. Brumback, 109 Ohio App.3d 65, 83, 671 N.E.2d 1064 (9th Dist.1996).

This court normally reviews an order of restitution for an abuse of the

trial court’s discretion. State v. Pollard, 8th Dist. Cuyahoga No. 97166, 2012-Ohio-

1196, ¶ 7, citing State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th

Dist.1995). Here, however, Osborne failed to object or contest the amount of

restitution ordered at sentencing. He has therefore waived all but plain error. To

constitute plain error, the error must be obvious on the record, palpable, and

fundamental, so that it should have been apparent to the trial court without

objection. See State v. Tichon, 102 Ohio App.3d 758, 767, 658 N.E.2d 16 (9th

Dist.1995). A trial court commits plain error in awarding restitution that is not

supported by competent, credible evidence. Roberts at ¶ 8.

We initially note that restitution was not discussed during the plea

hearing. In Lalain, the Ohio Supreme Court noted, however, that R.C. 2929.18 does

not require incorporating restitution into plea agreements. Lalain at ¶ 23. But see

State v. Willard, 11th Dist. Trumbull No. 2020-T-0040, 2021-Ohio-2552

(suggesting that restitution is part of the maximum penalty involved and should be part of the Crim.R. 11 plea colloquy). Nevertheless, we find that the trial court’s

award of restitution was not supported by competent, credible evidence.

In this case, the trial court based its restitution order solely on the

victim statement summary prepared by the probation department as part of the

presentence investigation report. The reliance on such report is allowable under

R.C. 2929.18(A)(1). However, the information contained in the report is

unsupported and at times, based on speculation. Specifically, victim K.O. told the

probation department that she and her daughter suffered a loss of “approximately

$5,000,” but requested no restitution. Nevertheless, the trial court ordered Osborne

to pay K.O. an arbitrary amount of $4,000. Additionally, two of the victims told the

probation department that they sought reimbursement for their renter’s insurance

deductibles, but did not provide probation an insurance claim number. Another

victim sought his deductible but also “approximate” costs for renting a U-Haul truck.

Finally, victim R.T., stated that he was seeking his renter’s insurance deductible, but

also additional loss that his insurance would not cover because he could not provide

proof of loss. Despite this request, the state told the judge that R.T. was only seeking

his $1,000 deductible. The amounts awarded by the court, at least as they pertain

to K.O. and R.T., are based on speculation and not on any documentary evidence or

testimony before the court. Accordingly, those amounts are not supported by

competent, credible evidence.

Granted, if Osborne believed the amount of restitution ordered was

excessive or improper, he had the opportunity to dispute the restitution award at the sentencing hearing. State v. Getz, 12th Dist. Butler No. CA2015-08-159, 2016-Ohio-

3397, ¶ 16. Such a dispute would have required the trial court to hold a hearing to

establish the appropriate amount of restitution. However, we find that the trial

court committed plain error because it appears that the trial court may have

awarded restitution in an amount greater than the actual loss suffered.

The second assignment of error is sustained. The restitution order is

hereby vacated and the matter is remanded to the trial court to determine the

appropriate amount of restitution in accordance with R.C. 2929.18 and Lalain, 136

Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423.

Judgment affirmed in part, and reversed in part. Case remanded for

the limited purpose of determining restitution.

It is ordered that the parties share equally in the 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, any bail pending is terminated. Case remanded to

the trial court for execution of sentence and for the limited purpose of determining

restitution. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and MICHELLE J. SHEEHAN, J., CONCUR