[Cite as State v. Owens, 2024-Ohio-3383.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Andrew J. King, J. -vs- Case No. 23 CAA 09 0088 ROBERT OWENS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Delaware County Court of Common Pleas, Case No. 22 CRI 070420
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 3, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DAN DRISCOLL APRIL F. CAMPBELL CLARK COUNTY Campbell Law, LLC PROSECUTING ATTORNEY 545 Metro Place South, Suite 100 Dublin, Ohio 43017 ROBERT C. LOGSDON Assistant Prosecuting Attorney 50 East Columbia Street, Suite 449 Springfield, Ohio 45502 Delaware County, Case No. 23 CAA 09 0088 2
King, J. {¶1} Defendant-appellant Robert Owens appeals the judgment entered by the
Delaware County Common Pleas Court convicting him upon his pleas of guilty to five
counts of theft (R.C. 2913.02(A)(3)) and one count of grand theft (R.C. 2913.02(A)(3)),
and sentencing him to a term of community control for a period not to exceed 2.5 years.
Plaintiff-appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Owens worked as an attorney in Delaware, Ohio. With regards to six of his
clients, Owens either failed to issue a refund to clients for whom he failed to perform work,
or failed to refund the portion of a retainer which was not exhausted when the work was
completed. Owens was indicted by the Delaware County Grand Jury on five counts of
theft and one count of grand theft.
{¶3} Owens filed a motion for treatment in lieu of conviction (hereinafter “ILC”)
based on mental health issues he experienced at the time he committed the offenses.
Before the trial court ruled on the ILC motion, Owens entered pleas of guilty to all charges,
and was convicted upon his pleas.
{¶4} As to five of the six victims, Owens agreed to the amount of restitution to be
ordered by the trial court. As to the count of grand theft, Owens disputed the amount of
restitution owed to the victim, K.N. The trial court held a restitution hearing solely as to
the amount owed K.N. K.N. alleged the amount owed was $103,996.65. After the
hearing, the trial court found K.N.’s testimony to be credible, and found by a
preponderance of the evidence Owens owed K.N. restitution in the amount of $103,
996.65. Delaware County, Case No. 23 CAA 09 0088 3
{¶5} The case proceeded to sentencing. At the sentencing hearing, the trial
court denied Owens’s request for ILC. The trial court sentenced Owens to a term of
community control not to exceed 2.5 years, and ordered Owens pay restitution to the
victims totaling $121,896.95.
{¶6} Owens assigns the following errors to the trial court’s September 11, 2023
judgment of conviction and sentence:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING
OWENS TO PAY THE VICTIM $103,996.95 BECAUSE THAT AMOUNT
OF LOSS WAS NOT SUPPORTED BY COMPETENT, CREDIBLE
EVIDENCE.
II. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
GRANTING OWENS’ REQUEST FOR INTERVENTION IN LIEU OF
CONVICTION.
III. OWENS’ PLEA AND SENTENCE SHOULD BE VACATED. THE
TRIAL COURT ACCEPTED OWENS’ GUILTY PLEA BEFORE DENYING
HIS REQUEST FOR INTERVENTION IN LIEU OF CONVICTION. THUS,
HIS PLEA DID NOT COMPLY WITH CRIM. R. 11 AND HIS SENTENCE
WAS CONTRARY TO LAW.
I.
{¶7} In his first assignment of error, Owens argues the judgment ordering him to
pay restitution to K.N. in the amount of $103,996.95 was not supported by the evidence Delaware County, Case No. 23 CAA 09 0088 4
presented at the restitution hearing. He specifically argues the State produced no
evidence concerning the amount of work he performed for K.N., the amount owed was
subject to a flat fee agreement, the State did not present evidence concerning unbilled
work, the amount was not supported by documentary evidence, and K.N. previously
swore in a bankruptcy proceeding no one owed him money.
{¶8} We review restitution orders under an abuse of discretion standard. State
v. Cook, 2017-Ohio-1503, ¶ 8 (5th Dist.); State v. Andrews, 2016-Ohio-7389, ¶ 40 (5th
Dist.). “Abuse of discretion” means an attitude that is unreasonable, arbitrary or
unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87 (1985). Most
instances of abuse of discretion will result in decisions that are simply unreasonable,
rather than decisions that are unconscionable or arbitrary. AAAA Enterprises, Inc. v. River
Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161(1990). An
unreasonable decision is one backed by no sound reasoning process which would
support that decision. Id. “It is not enough that the reviewing court, were it deciding the
issue de novo, would not have found that reasoning process to be persuasive, perhaps
in view of countervailing reasoning processes that would support a contrary result.” Id.
{¶9} “The amount of the restitution must be supported by competent, credible
evidence from which the court can discern the amount of the restitution to a reasonable
degree of certainty.” State v. Gears, 135 Ohio App.3d 297, 300 (6th Dist. 1999).
“Generally, the right to order restitution is limited to the actual damage or loss caused by
the offense of which the defendant is convicted. Implicit in this principle is that the amount
claimed must be established to a reasonable degree of certainty before restitution can be
ordered.” State v. Williams, 34 Ohio App.3d 33, 34 (2nd Dist. 1986). Delaware County, Case No. 23 CAA 09 0088 5
{¶10} R.C. 2929.18(A)(1) permits a trial court to impose restitution “by the offender
to the victim of the offender's criminal offense or the victim's estate in an amount based
on the victim's economic loss,” and the amount “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.” “Economic loss” is defined in R.C. 2929.01(L) as follows:
any economic detriment suffered by a victim as a direct and
proximate result of the commission of an offense and includes any loss of
income due to lost time at work because of any injury caused to the victim,
and any property loss, medical cost, or funeral expense incurred as a result
of the commission of the offense. “Economic loss” does not include non-
economic loss or any punitive or exemplary damages.
{¶11} The trial court made the following findings following the restitution hearing:
In a series of payments in 2018-2020, theft victim [K.N.] paid
$150,824.45 to the defendant for legal services. The defendant prepared
invoices that he sent to [K.N.] for those services, and the total amount billed
by the defendant on those invoices was $45,827.50.
The parties agree that the defendant did in fact provide legal services
to [K.N.]. They agree, too, that the defendant provided a $1,000 refund to
[K.N.] in March 2020. Delaware County, Case No. 23 CAA 09 0088 6
The defendant contends that he and [K.N.] reached an agreement to
resolve any fee dispute between them and that no money is currently owed
by the defendant for overpayments that [K.N.] may have given to the
defendant for legal services. The State disagrees with the Defendant’s
view, as does [K.N.]. According to the State, [K.N.] is still owed $103,996.95
for payments that he made to the defendant that exceeded the sum of (a)
the $45,827.50 in legal services that the defendant provided to [K.N.], as
documented in invoices sent by the defendant to [K.N.], and (b) the $1,000
refund given by the defendant to [K.N.] in March 2020.
I find [K.N.]’s testimony credible, and I conclude by a preponderance
of the evidence that the economic loss for which [K.N.] should be
compensated is currently $103,996.95.
{¶12} Judgment Entry, 8/4/2023.
{¶13} The State presented the testimony of a forensic accountant from the Ohio
Attorney General’s office, who testified she reviewed not only the documentation provided
by the victims, but also Owens’s IOLTA account information and his law office accounts.
From the documentation provided to her, she concluded the amount owed by Owens to
K.N. was $103,996.65.
{¶14} Owens testified he and K.N. came to a flat fee agreement to settle the final
price of his representation to K.N. in the amount of $97,750. Owens testified he initially
entered into an hourly fee agreement with K.N., but because of a dispute over fees, he
drafted the flat fee agreement in February 2020 to settle the fee dispute between the Delaware County, Case No. 23 CAA 09 0088 7
parties. Owens testified the total amount charged pursuant to the original hourly fee
agreement would have “far exceeded” $97,500, and the flat fee agreement provided K.N.
with a discount. K.N. testified he did not sign the agreement, which Owens introduced
into evidence with a signature purporting to be K.N.’s signature.
{¶15} Although the trial court did not expressly find the flat fee agreement was not
a valid agreement between the parties, such a finding is implicit in the trial court’s finding
K.N. was a credible witness and its rejection of Owens’s claim the fee owed was $97,750.
The weight to be given to the evidence and the credibility of the witnesses are issues for
the trier of fact. State v. DeHass, 10 Ohio St.2d 230, (1967). The trier of fact “has the best
opportunity to view the demeanor, attitude, and credibility of each witness, something that
does not translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418
(1997).
{¶16} Assuming arguendo K.N. signed the flat fee agreement, we find the trial
court could still have rejected the agreement as evidence of the fee owed by K.N. because
it was not a proper flat fee agreement.
{¶17} The Ohio Supreme Court Board of Professional Responsibility issued an
advisory opinion discussing the requirements the Rules of Professional Conduct impose
on any flat fee agreement. Advisory Opinion, 2016-1. Foremost in its analysis is
Prof.Cond.R. 1.5(a); it provides that lawyer shall not “make an agreement for, charge, or
collect an illegal or clearly excessive fee.” Of key importance here is that the defendant
admitted stealing from his client. This admission strongly supports a conclusion that even
if valid the fee agreement was illegal. Delaware County, Case No. 23 CAA 09 0088 8
{¶18} In addition to the admission of guilt, the evidence adduced at the hearing
shows this fee agreement was illegal and prohibited by rule. Owens admitted initially he
entered into an hourly fee agreement with K.N., and the flat fee agreement was entered
into after his representation of K.N. in an attempt to resolve a fee dispute between the
parties. He testified $97,750 represented a “discount” of the fees owed by K.N. Owens
entered a plea of guilty to the charge of grand theft with regard to his representation of
K.N., which is inconsistent with his testimony at the restitution hearing he provided
services in excess the amount he claimed the parties agreed on as a fee. The evidence
presented by the State indicated Owens billed K.N. $45,827.50, an amount less than half
of the “discounted” amount set forth in the flat fee agreement Owens claimed settled fees
between the parties. However, Owens presented no evidence of unbilled work to explain
the inconsistency between the amount billed and his claim he did more than $97,750
worth of hourly work for K.N.
{¶19} A flat fee agreement entered in advance of representation is valid if it
comports with the Rules of Professional Conduct. Advisory Opinion, 2016-1. Here, the
purported flat fee agreement was not entered in advance of Owens’s representation of
K.N., but by Owens’s own admission was entered into after representation. Considering
the incongruities in Owens testimony regarding the flat fee agreement and the fact the
purported agreement was entered after, rather than in advance of representation, we find
the trial court did not err in rejecting the agreement as evidence of the fee agreement
between the parties.
{¶20} Owens argues K.N. failed to include the refund owed by Owens in his
bankruptcy proceeding. K.N. testified at the time he signed the bankruptcy documents, Delaware County, Case No. 23 CAA 09 0088 9
he was under the impression whatever money was left over in his account would be paid
back by Owens. As discussed earlier in this opinion, the trial court expressly found K.N.’s
testimony to be credible.
{¶21} We find the trial court’s judgment ordering Owens to pay K.N. $103,996.95
is supported by the evidence presented at the restitution hearing.
{¶22} The first assignment of error is overruled.
II.
{¶23} In his second assignment of error, Owens argues the trial court abused its
discretion in denying his request for ILC. He argues the trial court impermissibly required
more than what is required by statute to grant ILC.
{¶24} R.C. 2951.041(A)(1) provides in pertinent part:
If an offender is charged with a criminal offense, including but not
limited to a violation of section 2913.02, 2913.03, 2913.11, 2913.21,
2913.31, or 2919.21 of the Revised Code, and the court has reason to
believe that drug or alcohol usage by the offender was a factor leading to
the criminal offense with which the offender is charged or that, at the time
of committing that offense, the offender had a mental illness, was a person
with an intellectual disability, or was a victim of a violation of section 2905.32
or 2907.21 of the Revised Code and that the mental illness, status as a
person with an intellectual disability, or fact that the offender was a victim of
a violation of section 2905.32 or 2907.21 of the Revised Code was a factor
leading to the offender's criminal behavior, the court may accept, prior to Delaware County, Case No. 23 CAA 09 0088 10
the entry of a guilty plea, the offender's request for intervention in lieu of
{¶25} R.C. 2951.041(B) sets forth the eligibility requirements for ILC. However, “
‘even when a defendant satisfies all of the statutory requirements, a trial court has
discretion to determine whether the particular defendant is a good candidate for
[intervention].’" State v. Leisten, 2006–Ohio–2362, ¶ 7 (2nd Dist.), quoting State v.
Schmidt, 2002–Ohio–3923, ¶ 9 (2nd Dist.). While eligibility determinations under R.C.
2951.041 are matters of law subject to de novo review, a trial court's decision whether to
grant treatment in lieu of conviction rests within its sound discretion, and we, therefore,
apply an abuse of discretion standard of review. State v. Parker, 2009–Ohio–1835, ¶ 11
(3rd Dist.).
{¶26} The trial court denied Owens’s request for ILC, stating its reasoning at the
sentencing hearing:
After thinking about all these things, I conclude that an intervention
outcome is not warranted in this case. I do think that Mr. Owens’s position
of trust with his clients and his leadership role in the community means that
an intervention outcome would demean the seriousness of the conduct. I
certainly don’t doubt the mental health diagnoses that these experts have
provided, and I certainly know and acknowledge that a mental health
diagnosis can justify in an appropriate case an intervention outcome, so I Delaware County, Case No. 23 CAA 09 0088 11
certainly accept those matters that the defense has put forward, but, again,
I’m simply not comfortable on these facts imposing an intervention outcome.
{¶27} Sent. Tr. 27-28.
{¶28} Owens cites this Court to State v. Fullenkamp, 2001-Ohio-1648 (2nd Dist.).
In that case, the trial court denied the defendant’s ILC request, finding the defendant’s
alcohol dependency was not serious enough to grant ILC. The court of appeals held the
statute only requires drug or alcohol usage be a factor leading to the criminal behavior,
and does not require the defendant to be alcohol-dependent; therefore, the trial court
arbitrarily narrowed the eligibility criterion of the statute by rejecting the defendant’s ILC
request on the basis that she was not alcohol-dependent. Id.
{¶29} In the instant case, we find the trial court did not graft a more stringent
requirement than that imposed by statute, and the instant case is therefore
distinguishable from Fullenkamp. Pursuant to R.C. 2951.041(B)(6), an offender is eligible
for ILC if “[t]he offender's drug usage, alcohol usage, mental illness, or intellectual
disability, or the fact that the offender was a victim of a violation of section 2905.32 or
2907.21 of the Revised Code, whichever is applicable, was a factor leading to the criminal
offense with which the offender is charged, intervention in lieu of conviction would not
demean the seriousness of the offense, and intervention would substantially reduce the
likelihood of any future criminal activity.” Although the trial court didn’t expressly find
Owens was ineligible pursuant to this subsection, the trial court found ILC would demean
the seriousness of the offenses due to Owens’s position of trust in relationship to the
victims of the offenses and his role in the community, a factor the trial court is specifically Delaware County, Case No. 23 CAA 09 0088 12
permitted to consider pursuant to statute. We find the trial court did not abuse its
discretion in denying ILC in the instant case.
{¶30} The second assignment of error is overruled.
III.
{¶31} In his third assignment of error, Owens argues his plea was not voluntary
because the trial court did not rule on his motion for ILC until after he entered his plea of
guilty.
{¶32} R.C. 2951.041(A)(1) provides in pertinent part:
If an offender is charged with a criminal offense, including but not
limited to a violation of section 2913.02, 2913.03, 2913.11, 2913.21,
2913.31, or 2919.21 of the Revised Code, and the court has reason to
believe that drug or alcohol usage by the offender was a factor leading to
the criminal offense with which the offender is charged or that, at the time
of committing that offense, the offender had a mental illness, was a person
with an intellectual disability, or was a victim of a violation of section 2905.32
or 2907.21 of the Revised Code and that the mental illness, status as a
person with an intellectual disability, or fact that the offender was a victim of
a violation of section 2905.32 or 2907.21 of the Revised Code was a factor
leading to the offender's criminal behavior, the court may accept, prior to
the entry of a guilty plea, the offender's request for intervention in lieu of
conviction. (Emphasis added). Delaware County, Case No. 23 CAA 09 0088 13
{¶33} The Ohio Supreme Court has summarized the ILC procedure as set forth in
the statute:
ILC is a statutory creation that allows a trial court to stay a criminal
proceeding and order an offender to a period of rehabilitation if the court
has reason to believe that drug or alcohol usage was a factor leading to the
offense. R.C. 2951.041(A)(1). If, after a hearing, the trial court determines
that an offender is eligible for ILC, then it shall accept the offender's guilty
plea, place the offender under the general control and supervision of the
appropriate probation or other qualified agency, and establish an
intervention plan for the offender. R.C. 2951.041(C) and (D). The
intervention plan shall last at least one year, during which the offender is
ordered to abstain from alcohol and illegal drug use, to participate in
treatment and recovery-support services, and to submit to regular random
testing for drug and alcohol use. R.C. 2951.041(D). If the offender
successfully completes the intervention plan, the trial court shall dismiss
proceedings against the offender without an adjudication of guilt and may
order the sealing of records related to the offense. R.C. 2951.041(E). If the
offender fails to comply with any term or condition imposed as part of the
intervention plan, the court shall enter a finding of guilt and impose the
appropriate sanction. R.C. 2951.041(F).
{¶34} State v. Massien, 2010-Ohio-1864, ¶ 9. Delaware County, Case No. 23 CAA 09 0088 14
{¶35} Both the statute and the Ohio Supreme Court’s summary of the procedure
set forth in the statute suggest the trial court should rule on the ILC motion before
accepting the defendant’s guilty plea. However, the language of the statute does not
explicitly require the motion be ruled on prior to accepting a plea.
{¶36} In the instant case, Owens has not demonstrated his pleas were not
voluntary, knowing and intelligent due to the order of events in the trial court. Prior to
accepting his pleas of guilty to the charges, the trial court explained all the sentencing
options. After explaining the potential prison and community control sanctions available
to the court in sentencing, the trial court stated, “And I know there’s been at least some
discussion in the case about a possible intervention outcome.” Sent. Tr. 17. The trial
court then explained to Owens how ILC worked, in the same manner the trial court
explained its other sentencing options. Owens indicated to the trial court he had no
questions about any of the consequences he faced in the case, and had no questions
about the ILC program. The record affirmatively demonstrates Owens entered his pleas
with full knowledge his request for ILC may not be granted, exposing him to the potential
of a prison sentence or community control sentence. Delaware County, Case No. 23 CAA 09 0088 15
{¶37} The third assignment of error is overruled. The judgment of the Delaware
County Common Pleas Court is affirmed.
By: King, J. Gwin, P.J. and Wise, J. concur.