State v. T.O.

2025 Ohio 15

• Court: Ohio Court of Appeals
• Decided: January 3, 2025
• Docket: 2024-CA-18
• Status: Published

Opinion

[Cite as State v. T.O., 2025-Ohio-15.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MIAMI COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2024-CA-18 : v. : Trial Court Case No. 24CR108 : T.O. : (Criminal Appeal from Common Pleas : Court) Appellant : :

...........

OPINION

Rendered on January 3, 2025

TIMOTHY B. HACKETT, Attorney for Appellant

BAILEY J. ARNETT, Attorney for Appellee

.............

LEWIS, J.

{¶ 1} Defendant-Appellant T.O. appeals from a judgment of the Miami County

Common Pleas Court convicting him of several offenses following his guilty pleas.

Specifically, he challenges the trial court’s imposition of restitution in the amount of

$5,326.71. For the following reasons, the judgment of the trial court will be affirmed.

I. Facts and Procedural History -2-

{¶ 2} In December 2023, a complaint was filed against 16-year-old T.O. in the

Miami County Juvenile Court charging him with one count of failure to comply with an

order or signal of a police officer, one count of grand theft of a motor vehicle, and two

counts of theft. The charges arose from T.O.’s stealing a car on December 24, 2023,

and fleeing police in a pursuit that reached over 100 m.p.h. The vehicle was filled with

Christmas gifts and several items, including credit cards. T.O. then used the credit cards

in the ensuing days.

{¶ 3} After the complaint was filed, the State moved to transfer T.O. to adult court

for criminal prosecution pursuant to Juv.R. 30 and R.C. 2152.12. The juvenile court

found probable cause to bind T.O. over to the Miami County Common Pleas Court,

General Division, and subsequently determined that he was not amenable to

rehabilitation in the juvenile system.

{¶ 4} On April 17, 2024, a Miami County grand jury issued an indictment charging

T.O. with one count of failure to comply with an order or signal of a police officer, a felony

of the fourth degree; one count of grand theft of a motor vehicle, a felony of the fourth

degree; and two counts of theft, both felonies of the fifth degree.

{¶ 5} On May 9, 2024, T.O. entered negotiated guilty pleas to one count each of

failure to comply with an order or signal of a police officer, grand theft, and theft. The

State agreed to dismiss the second count of theft. As part of the plea agreement, T.O.

agreed to pay restitution on all counts, including the dismissed count. The trial court

found T.O. guilty of all three counts, ordered a presentence investigation report (“PSI”),

and scheduled the matter for sentencing. -3-

{¶ 6} T.O filed a sentencing memorandum prior to sentencing alleging he was

indigent, among other things. T.O. also submitted an affidavit of indigency indicating that

he was not employed and had no assets. He did not list any monthly expenses.

{¶ 7} On June 3, 2024, a sentencing hearing was held. At that time, defense

counsel stipulated to the amount of restitution being $5,326.71 but argued that T.O. did

not have the present or future ability to pay the restitution. The trial court found that,

based on the PSI and the amenability findings, T.O. had “the present and future ability to

pay restitution.” June 3, 2024 Sentencing Tr. 12. Thus, the trial court overruled defense

counsel’s request to waive restitution and other financial sanctions. Following

statements of counsel, allocution of T.O., and statements of the victim, the trial court

imposed community control sanctions for a term not to exceed five years. Additionally,

the trial court ordered T.O. to pay $5,326.71 in restitution. After sentencing, the court

ordered that the case be transferred back to the juvenile court.

{¶ 8} Before any entry was filed staying the sentence and transferring the case to

the juvenile court, the parties reappeared in court on June 6, 2024. At that time, the trial

court determined that the case did not need to be transferred back to the juvenile court.

Therefore, the trial court proceeded with a resentencing hearing at which it again imposed

community control sanctions not to exceed five years. The trial court again overruled

T.O.’s request to waive the financial sanctions and imposed restitution in the amount of

$5,326.71, with T.O. to pay $100 a week toward the restitution amount. The trial court

did not impose a fine but ordered T.O. to pay the costs of prosecution. The trial court

made a finding again on the record that T.O. had “the present and future ability to pay -4-

restitution” in the amount of $5,326.71. Resentencing Tr. 17.

{¶ 9} T.O. filed a timely notice of appeal.

II. Restitution

{¶ 10} T.O. raises the following single assignment of error:

The trial court abused its discretion when it concluded, unreasonably

and without sufficient evidence in the record, that an indigent 16-year-old

defendant had the present and future ability to pay over $5,000.00 in

restitution. R.C. 2929.18, 2929.19(B)(5).

{¶ 11} T.O. acknowledges that the trial court stated on the record that it had

considered his present and future ability to pay restitution, but he argues that there was

insufficient evidence in the record to support that he had the present and future ability to

pay restitution. We do not agree.

{¶ 12} A trial court “imposing a sentence upon an offender for a felony may

sentence the offender to any financial sanction or combination of financial sanctions”

authorized under R.C. 2929.18 “and shall sentence the offender to make restitution

pursuant to [R.C. 2929.18 and 2929.281].” R.C. 2929.18(A). “In determining the

amount of restitution at the time of sentencing under this section, the court shall order full

restitution for any expenses related to a victim's economic loss due to the criminal

offense.” R.C. 2929.281.

{¶ 13} When sentencing a defendant for a felony offense, before a trial court

imposes a financial sanction, which includes restitution, the trial court “shall consider the

offender’s present and future ability to pay the amount of the sanction or fine.” R.C. -5-

2929.19(B)(5). There are no factors identified in the statute that a trial court must

consider when determining the offender’s present and future ability to pay. State v.

Philbeck, 2015-Ohio-3375, ¶ 27 (2d Dist.). The only requirement is that the court

“consider” the offender’s present and future ability to pay. Although preferable, the trial

court is not required to state on the record that it considered an offender’s present and

future ability to pay so long as there is evidence in the record from which a reviewing court

can infer that the trial court considered the offender’s present and future ability to pay

prior to imposing restitution. State v. Hull, 2017-Ohio-7934, ¶ 9-10 (2d Dist.).

{¶ 14} “Generally, a trial court's imposition of restitution is reviewed on appeal for

an abuse of discretion.” State v. Brown, 2024-Ohio-2004, ¶ 12 (2d Dist.), citing State v.

Wilson, 2015-Ohio-3167, ¶ 11 (2d Dist.). An “abuse of discretion” has been defined as

“an unreasonable, arbitrary, or unconscionable use of discretion, or as a view or action

that no conscientious judge could honestly have taken.” State v. Brady, 2008-Ohio-

4493, ¶ 23, citing State v. Cunningham, 2007-Ohio-1245, ¶ 25. “A review under the

abuse-of-discretion standard is a deferential review.” State v. Morris, 2012-Ohio-2407,

¶ 14.

{¶ 15} At the time of sentencing, T.O. was 16 years old and had completed the

eleventh grade. He informed the trial court that he intended to go into a trade, either

plumbing or electrical work. Resentencing Tr. 13. According to his sentencing

memorandum and PSI, T.O. had previously worked in the summer doing lawncare

services in his neighborhood and made $250 a week. When discussing bond at an

earlier hearing, T.O.’s counsel advised that if T.O. were released, “[h]e would seek -6-

employment if the opportunity presented itself and he has hired counsel to deal with it.”

April 27, 2024 Hrg. Tr. 5. The record further reflects that T.O. was in good physical

health, and there was no evidence of any mental health condition that would have

prevented T.O. from working. T.O. indicated that he would be living with his mother, and

his affidavit of indigency did not reflect that he had any financial obligations. T.O. was

not sentenced to any term of incarceration and was placed on community control

sanctions not to exceed five years. T.O. had no other misdemeanor or felony adult

convictions. We also note that, as part of the plea agreement, T.O. agreed to pay

restitution on all counts, including the count that was dismissed. The trial court explicitly

considered T.O.’s present and future ability to pay pursuant to its obligations under R.C.

2929.19(B)(5). The record demonstrates that the trial court fully considered whether

T.O. had the present and future ability to pay, and we see no abuse of discretion in the

trial court’s imposition of restitution.

{¶ 16} T.O. relies on this court’s prior decisions in State v. Frock, 2007-Ohio-1026

(2d Dist.) and State v. Baker, 2016-Ohio-315 (2d Dist.) to support his argument. Both

cases are clearly distinguishable.

{¶ 17} In Frock, the defendant was sentenced to 19.5 years in prison for

committing aggravated burglary, burglary, and safecracking. Frock at ¶ 6. At the time

of sentencing, the trial court made no direct inquiry into Frock’s present and future ability

to pay restitution but advised it had considered Frock’s PSI. Id. at ¶ 8. The trial court

ordered restitution in the amount of $17,029. The PSI revealed the following:

Frock was 21 years old, that he had completed the eleventh grade while in -7-

prison, that he was diagnosed as bipolar and paranoid schizophrenic, that

he was a substance abuser, and that he had an extensive history of criminal

behavior resulting in several juvenile and adult confinements. His

employment history consisted of sporadic employment in his grandfather's

painting business and as a laborer, both positions described by Frock as

“under the table.”

Id.

{¶ 18} On appeal, Frock challenged the trial court’s failure to consider his present

and future ability to pay prior to imposing restitution. We concluded that “[g]iven the

lengthy sentence imposed in this case—and the dearth of encouraging information about

Frock in the PSI—we are constrained to conclude that the record fails to demonstrate that

the court considered Frock's present or future ability to pay restitution.” Id. at ¶ 9.

{¶ 19} Unlike Frock, the trial court in this case explicitly stated on the record that it

had considered T.O.’s present and future ability to pay prior to imposing restitution, and

the record affirmatively demonstrates that the court considered T.O.’s present and future

ability to pay. Furthermore, T.O.’s situation at the time of sentencing was significantly

different than Frock’s. T.O. was sentenced to community control sanctions, not a term

of imprisonment, let alone a lengthy term of imprisonment, there was no evidence of a

mental health condition that would have prevented him from working, he had no prior

adult criminal history, and he had previously been employed by a landscaping company.

The amount of restitution T.O. was ordered to pay was less than a third of the amount

Frock was ordered to pay. We cannot agree with T.O. that his situation was similar to -8-

Frock’s.

{¶ 20} We likewise do not find Baker analogous. In Baker, the defendant was

found guilty of felony vandalism and burglary following a jury trial. Baker, 2016-Ohio-

315, at ¶ 6. Prior to sentencing, Baker filed a memorandum disputing the estimates of

damage discussed at trial as insufficient proof of actual damages for any order of

restitution. Id. at ¶ 7. No restitution hearing was held. Baker was sentenced to

community control sanctions and ordered to pay a total of $34,711.95 in restitution. Id.

Although Baker was employed, the trial court ordered her to get a new job that had to be

approved by her probation officer. Id. At the time of sentencing, Baker was 21 years

old, had custody of her four-year-old child, was earning $11 per hour at a warehouse job

that she was ordered to quit, and was being treated by a psychologist for mental health

issues. Id. at ¶ 5, 7.

{¶ 21} One of the issues Baker alleged on appeal was that the trial court had erred

in failing to hold a restitution hearing when restitution was in dispute. The majority in that

case agreed that the trial court had erred in ordering restitution without a hearing. Id. at

¶ 15. Accordingly, the court reversed the imposition of restitution and ordered the trial

court to hold a restitution hearing upon remand. Id. at ¶ 2.

{¶ 22} Another issue Baker raised was that several of the conditions of her

community control were not reasonably related to the purposes of felony sentencing,

including the nearly $35,000 in restitution. The majority of the court noted that, “[w]ith

respect to financial sanctions, including restitution, the court must consider whether the

defendant is indigent or has the ability to pay the sanctions.” Id. at ¶ 30. This was -9-

because “ ‘[a] court that imposes a financial sanction upon an offender may hold a hearing

if necessary to determine whether the offender is able to pay the sanction or is likely in

the future to be able to pay it.’ ” Id., quoting R.C. 2929.18(E). Accordingly, the Baker

majority ordered that, on remand, the trial court should consider Baker’s present and

future ability to pay. Id.

{¶ 23} T.O. relies on a statement made in the majority opinion in Baker that, “[i]f

Baker is unemployed, it is unreasonable to conclude that she has the ability to pay $560

per month in restitution payments.” Id. at ¶ 30. On remand, the trial court was directed

to “consider Baker's ability to pay and create a reasonable repayment plan to begin when

she gains full time employment.” Id. However, this statement was merely dicta. As

Judge Welbaum explained in his separate opinion, the “comment about the amount of

restitution that was previously ordered to be paid unnecessarily discusses a moot matter,

since we are reversing the restitution order and remanding the matter for a hearing. The

trial court will decide on remand what, if any, restitution is required.” Id. at ¶ 37-38

(Welbaum, J., concurring in part and dissenting in part). Judge Welbaum further noted

that the majority opinion’s observations about the reasonableness of the restitution were

“also premature, since the reasonableness of that amount, if any, is an issue to be

decided if and when a subsequent appeal occurs.” Id. at ¶ 38. Because the statement

made in the majority opinion was not essential to this court’s legal holding, it was merely

dicta that does not control the issue before us in this appeal.

{¶ 24} We see no reason to conclude that the trial court abused its discretion in

this case. Unlike Baker, the amount of restitution was not in dispute and no restitution -10-

hearing was required. Rather, as part of the plea agreement, T.O. agreed to pay

restitution on all counts in exchange for the State’s agreeing to dismiss an additional

felony charge. Furthermore, the trial court explicitly found that T.O. had the present and

future ability to pay the restitution and, as noted above, the record supports the trial court’s

decision.

{¶ 25} T.O.’s sole assignment of error is overruled.

III. Conclusion

{¶ 26} We will affirm the judgment of the trial court.

EPLEY, P.J. and HUFFMAN, J., concur.