State v. Starr

2015 Ohio 3675

• Court: Ohio Court of Appeals
• Decided: September 10, 2015
• Docket: 102593
• Status: Published

Opinion

[Cite as State v. Starr, 2015-Ohio-3675.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 102593

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

WILLIAM V. STARR III DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-14-582895-A

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: September 10, 2015 ATTORNEY FOR APPELLANT

Britta M. Barthol P.O. Box 218 Northfield, Ohio 44067

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Frank Romeo Zeleznikar Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Appellant William V. Starr III appeals the judgment of the trial court that

ordered him to pay restitution. For the reasons stated herein, we affirm.

{¶2} After being charged under a multicount indictment for offenses of rape and

kidnapping, appellant entered a plea of guilty to amended counts of gross sexual

imposition and abduction, and the remaining counts were nolled. The offenses were

merged as allied offenses, and the state elected to have appellant sentenced on the count

of gross sexual imposition. The trial court imposed an 18-month prison sentence, with

five years’ mandatory postrelease control. Appellant was determined to be indigent, and

costs were waived. The court ordered appellant to pay restitution to the victim in the

amount of $13,220.63. Appellant was found to be a Tier I sex offender.

{¶3} At the sentencing hearing, the state indicated that the victim was seeking

restitution in the amount of $13,220.63, which amount reflected “the hospital visit for the

night of the incident, subsequent blood work that was done of the victim, as well as

subsequent psychotherapy appointments that the victim attended from the date of the

incident up until now.” The state indicated that the victim did not have insurance and

that nothing was covered by insurance. Defense counsel was not provided with a copy of

the invoices until the sentencing hearing. Defense counsel indicated that the court could

proceed while he reviewed the documents. When the court inquired if defense counsel

agreed with the amount of restitution, defense counsel stated “[i]t appears to add up to that.” When defense counsel mentioned that Medicaid may be subsidizing part of the

amount, the state denied this. The court asked if the bills were all to be paid by the

victim, and the state confirmed. Upon the state’s representations, defense counsel agreed

the amount was accurate.

{¶4} Appellant timely filed this appeal. He raises two assignments of error for

our review. Under his first assignment of error, appellant claims “the trial court erred in

ordering restitution in an amount not established to a reasonable degree of medical

certainty.”

{¶5} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part of a

sentence “in an amount based on the victim’s economic loss.” If the court imposes

restitution, the court is required to determine the amount of restitution to be made by the

offender as follows:

If the court imposes 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, 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.

R.C. 2929.18(A)(1).

{¶6} A trial court has discretion to order restitution, but the amount may not be

greater than the amount of economic loss suffered as a direct and proximate result of the

commission of the offense. State v. Lalain, 136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 3. Further, 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. Roberts, 8th Dist. Cuyahoga No. 99755,

2014-Ohio-115, ¶ 7-8.

{¶7} The record in this case reflects that invoices were submitted to substantiate

the medical expenses incurred by the victim as a direct and proximate result of the

commission of the offense. Although defense counsel was not provided a copy of the

invoices until the time of the hearing, he was able to review them and determine that the

amount of restitution sought was accurate. The state represented that there was no

insurance coverage. Because there was no dispute as to the amount of restitution, a

hearing was not required. We find competent, credible evidence was submitted from

which the trial court could have discerned the specific amount of restitution to a

reasonable degree of certainty.1 Accordingly, we overrule the first assignment of error.

{¶8} Under his second assignment of error, appellant claims he was denied his

right to effective assistance of counsel “when trial counsel failed to request a restitution

hearing in accordance with R.C. 2929.18(A)(1).

{¶9} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show “(1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

1 Although the appellant’s ability to pay restitution has not been raised, we note that the record reflects he was college educated and working as a mechanical engineer. reasonable probability that but for counsel’s errors, the proceeding’s result would have

been different.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶

200, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraphs two and three of the syllabus. The defendant has the burden of proving his

counsel rendered ineffective assistance. Perez at ¶ 223.

{¶10} As discussed above, the state established the amount of restitution by

submitting invoices of the medical expenses incurred by the victim as a result of the

offense. These invoices were reviewed by defense counsel, who found the amount

appeared to be accurate. Further, the trial court heard from the state that the victim did

not have insurance and the bills were not subsidized by Medicaid. There is simply no

basis to conclude that defense counsel should have requested a hearing on restitution or

that he could have presented evidence to dispute the restitution order. We are unable to

find defense counsel’s conduct in failing to request a hearing on restitution fell below an

objective standard of reasonableness such that appellant was prejudiced. The second

assignment of error is overruled.

{¶11} Judgment affirmed.

It is ordered that appellee recover from appellant 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 appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and PATRICIA ANN BLACKMON, J., CONCUR