State v. Revere

2022 Ohio 3803

Opinion

[Cite as State v. Revere, 2022-Ohio-3803.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220018 TRIAL NOs. 20TRC-13678A Plaintiff-Appellee, : 20TRC-13678B

: VS. : O P I N I O N.

BRIAN REVERE, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgments Appealed From are: Reversed and remanded

Date of Judgment Entry on Appeal: October 26, 2022

Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Amber H. Daniel, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} After driving his car onto a stranger’s front porch and inflicting roughly

$30,000 worth of damage, defendant-appellant Brian Revere was charged and

convicted of operating a motor vehicle while under the influence of alcohol and/or a

drug of abuse, in violation of R.C. 4511.19(A)(1)(a), and failure to maintain reasonable

control in violation of R.C. 4511.202(A). During his sentencing and restitution

hearing, the trial court imposed a 12-year license suspension and $5,000 in restitution

to his victim, which Mr. Revere challenges on appeal. The state concedes error on the

length of the license suspension, and we hold that the state failed to challenge evidence

that demonstrated that Mr. Revere’s insurance would cover the damages, rendering

the $5,000 award inappropriate. We accordingly reverse the challenged portions of

the trial court’s sentencing dispositions and remand for further proceedings consistent

with this opinion.

I.

{¶2} In June 2020, while driving under the influence, Mr. Revere’s car left

the road and veered straight into the porch of the home of Susan Forman and Michael

Jones, causing substantial damage to the porch. After Mr. Revere pleaded no contest,

the trial court found him guilty and ordered a presentence investigation report and a

victim impact statement. After an issue arose during the sentencing hearing regarding

restitution, the trial court continued sentencing for a restitution hearing.

{¶3} At the hearing, the prosecution presented a list of Ms. Forman and Mr.

Jones’s expenses incurred to repair the porch, totaling $30,233.88. Of that amount,

Ms. Forman’s insurance company (Allstate) had covered $9,048.88, so the state

suggested that this left $21,185 uncovered. But Mr. Revere offered into evidence a

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letter from his insurance company, Progressive, that indicated that Progressive had

assumed liability for the incident:

Please be advised that Allstate Insurance has handled the damage to the

home owned by Michael Jones in the above captioned loss. Progressive

has accepted liability and is working with Allstate to get the

documentation needed to reimburse/pay the property damage claim.

{¶4} Ms. Forman explained that Allstate had been administering her claim,

and that each contractor at that time who had performed work on her house had been

paid (representing the $9,000 figure). The additional amount (just over $21,000)

reflected estimates for contractors who had not yet started their work on the house.

In other words, every contractor who had performed work on the porch by that point

had been fully paid. The trial court ultimately imposed 180 days in jail, a $525 fine, a

12-year license suspension and restitution in the amount of $5,000. On appeal, Mr.

Revere only challenges the length of the license suspension and the restitution

amount.

II. A.

{¶5} In his first assignment of error, Mr. Revere asserts that the trial court

mistakenly used a two-prior violation sentencing enhancement statute in imposing the

12-year license suspension, when it should have used a one-prior violation sentencing

enhancement statute. The state concedes this error, acknowledging that the trial court

mistakenly selected the wrong sentencing enhancement.

{¶6} This is Mr. Revere’s second OVI conviction in the past ten years and

second overall. Mr. Revere’s sentence was evidently enhanced by the trial court in

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reliance upon R.C. 4511.19(G)(1)(c)(iv), which calls for a license suspension for a

period of two to twelve years if the defendant has previously been convicted of two

OVI offenses within ten years of the current offense. However, as both parties

correctly point out, R.C. 4511.19(G)(1)(b)(iv) provides the appropriate sentencing

enhancement for Mr. Revere, which applies if a defendant has previously been

convicted of one OVI offense within ten years of the current offense and calls for a

license suspension for a period of one to seven years.

{¶7} We agree with both parties that the trial court mistakenly invoked the

wrong code section. We accordingly sustain Mr. Revere’s first assignment of error and

remand for the trial court to impose a license suspension consistent with R.C.

4511.19(G)(1)(b)(iv).

B.

{¶8} In his second assignment of error, Mr. Revere faults the trial court for

misapplying R.C. 4511.19(G)(7), by ordering him to pay $5,000 in restitution when he

demonstrated at the restitution hearing that his insurance company would reimburse

Ms. Forman (and/or Allstate) for the work performed on her house. The state disputes

the point, countering that Mr. Revere’s insurance has not covered the remaining costs

of Ms. Forman’s repairs—namely $21,185. Even though R.C. 4511.19(G)(7) places a

restitution limit of $5,000 on defendants who do not have insurance, the state asserts

that Ms. Forman should not suffer a loss for something that was not her fault,

justifying the restitution award.

{¶9} We review non-felony trial court restitution orders under an abuse of

discretion standard, State v. Lynn, 1st Dist. Hamilton No. C-150569, 2016-Ohio-2849,

so we will not reverse unless the court exercised its discretionary judgment over the

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matter in an unwarranted way or committed legal error. See Johnson v. Abdullah, 166

Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. The state/victim bears the

burden of establishing the amount of restitution. R.C. 2929.28(A)(1).

{¶10} We begin our analysis, as we must, with the language of the relevant

statute. R.C. 4511.19(G)(7) provides that any offender who is convicted of operating a

vehicle under the influence of alcohol, a drug of abuse, or a combination of them:

shall provide the court with proof of financial responsibility as defined

in section 4509.01 of the Revised Code. If the offender fails to provide

the proof of financial responsibility, the court, in addition to any other

penalties provided by law, may order restitution pursuant to section

2929.18 or 2929.28 of the Revised Code in an amount not exceeding five

thousand dollars for any economic loss arising from an accident or

collision that was the direct and proximate result of the offender’s

operation of the vehicle before, during, or after committing the offense

for which the offender is sentenced under division (G) of this section.

{¶11} Additionally, the legislature defined “proof of financial responsibility”

under R.C. 4509.01(K) as “proof of ability to respond in damages for liability, on

account of accidents occurring subsequent to the effective date of such proof, arising

out of the ownership, maintenance, or use of a motor vehicle * * * in the amount of

twenty-five thousand dollars because of injury to property of others in any one

accident.”

{¶12} The state maintains that this court has held that ordering additional

restitution over the amount that insurance covers is appropriate if the amount paid

did not cover the offense. State v. Berlinger, 194 Ohio App.3d 145, 2011-Ohio-2223,

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954 N.E.2d 1290 (1st Dist.). Even if this represents a fair reading of Berlinger (and

the defense insists that we have effectively overruled that case), Berlinger does not

apply because Progressive, Mr. Revere’s insurer, accepted liability for the claim and

agreed to reimburse or pay for all damages. In other words, the victim will be made

whole, and the victim’s insurer does not have to foot the bill.

{¶13} At oral argument, the state questioned whether Progressive would

actually cover all damages. We admittedly have no crystal ball, but Progressive said it

would, and the state never took issue with that representation below. Certainly, the

state could have questioned these matters before the trial court, but it cannot now (nor

does it) dispute that Mr. Revere established “proof of financial responsibility” under

R.C. 4509.01(K) before the trial court.

{¶14} The trial court abused its discretion by relying on the second part of the

statute to impose restitution, in the sentence that begins: “If the offender fails to

provide the proof of financial responsibility * * *.” That sentence (which allows the

court to impose up to $5,000 in restitution) does not apply to Mr. Revere in light of

the fact that he established proof of financial responsibility. Nor do we have to

question the adequacy of the financial responsibility because the state never

challenged below the adequacy of Mr. Revere’s coverage by Progressive.

{¶15} Because Mr. Revere was able to demonstrate that his insurance

company will be providing reimbursement to Ms. Forman and Mr. Jones and because

the trial court failed to apply R.C. 4511.19(G)(7) correctly, we sustain Mr. Revere’s

second assignment of error.

* * *

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{¶16} In light of the foregoing analysis, we sustain Mr. Revere’s two

assignments of error, and reverse in part the judgments of the trial court and remand

this cause for the court to impose a license suspension consistent with R.C.

4511.19(G)(1)(b)(iv) and to eliminate the restitution award.

Judgments reversed and remanded.

CROUSE and WINKLER, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.