[Cite as State v. Weaver, 2011-Ohio-6163.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96505
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES WEAVER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-539953 and 540025
BEFORE: Sweeney, P.J., Keough, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 1, 2011 ATTORNEY FOR APPELLANT
Rick L. Ferrara, Esq. 2077 East Fourth Street Second Floor Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Daniel South, Esq. Mary McGrath, Esq. Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant James Weaver asserts two issues in this appeal: (1) that
the trial court’s restitution order was an abuse of discretion, and (2) that the trial court
erred by imposing consecutive sentences without making statutory findings. For the
reasons that follow, we affirm.
{¶ 2} This appeal involves defendant’s guilty pleas and the sentences he received
in two separate cases: CR-540025 and CR-539953. 1 In these cases, defendant pleaded
guilty to two counts of breaking and entering, vandalism, and theft, which exposed him to
a maximum potential prison sentence of 48 months. As part of his guilty plea, defendant agreed to pay restitution to the victims in both cases but demanded a hearing. We note
that at the plea hearing, the state sought restitution to North American Switchgear in the
amount of $3,180 and $1,000 to Rent-A-Wreck. Both parties agreed to a restitution
hearing and the matter was referred to probation for a pre-sentence investigation.
{¶ 3} On November 1, 2010, the court held a sentencing hearing where it imposed
a one-year concurrent prison sentence for each conviction in CR-540025 and also a
one-year concurrent prison sentence for each conviction in CR-539953, but the trial court
ordered the sentences from each case to run consecutively for an aggregate sentence of 24
months. The court ordered defendant to pay $1,780 in restitution to American Switch-gear
and $750 in restitution to Tim Bozak. Defendant objected and the matter was continued
for a restitution hearing. On November 8, 2010, the court advised that “prior to coming on
the bench I had the opportunity to review the entire case file, the presentence investigation
report, * * *.” The state placed on the record its discussions with the victims, who had
provided receipts to the probation department for the restitution sought. The state
elaborated that the amounts involved a catalytic converter and installation in the amount of
$750, and the other case involved a specialty door with various pieces of chain, “other
pieces of scrap,” with damages totaling $1,780. The victims insisted the amounts were
accurate. The defense maintained there was no damage to the catalytic converter, that there
was no evidence as to whether the losses were covered by insurance, and otherwise
disputed that any money had actually been expended by the victims. At the first hearing,
1 The record reflects that defendant was also sentenced on other matters that are the state had advised the court that defendant had cut off the converter with a sawzall such
that it could not be put back on an automobile. After hearing arguments and reviewing the
evidence, the court imposed the same restitution order. Defendant has appealed.
{¶ 4} “Assignment of Error I: The trial court erred because it issued a restitution
order without competent and credible evidence of economic harm.”
{¶ 5} R.C. 2929.18(A)(1) provides in relevant part:
{¶ 6} “Financial sanctions that may be imposed pursuant to this section include,
but are not limited to, the following:
{¶ 7} “(1) Restitution by the offender to the victim of the offender’s crime or any
survivor of the victim, in an amount based on the victim’s economic loss. If the court
imposes restitution, the court shall order that the restitution be made to the victim in open
court, to the adult probation department that serves the county on behalf of the victim, to
the clerk of courts, or to another agency designated by the court. If the court imposes
restitution at sentencing, the court shall determine the amount of restitution to be made by
the offender. 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
not the subject of this appeal. restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor
disputes the amount. All restitution payments shall be credited against any recovery of
economic loss in a civil action brought by the victim or any survivor of the victim against
the offender.”
{¶ 8} We review court-ordered restitution for an abuse of discretion. “To establish
the amount of restitution within a reasonable certainty, there must be some competent,
credible evidence. Sufficient evidence of the amount of restitution may appear in the
record. Where evidence of the appropriate amount of restitution does not appear in the
record, an evidentiary hearing is required.” State v. Carrino (May 11, 1995), Cuyahoga
App. No. 67696, citing State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18.
{¶ 9} Here, the court complied with the statute and held a restitution hearing when
defendant disputed the amount. The state offered the receipts that were submitted by the
victims to the probation department indicating the amounts of their respective economic
harm. In opposition, defendant continued a generalized objection and did not present any
evidence that would refute the amounts suggested by the victims, such as contrary
estimates. The trial court’s restitution order was not an abuse of discretion. This
assignment of error is overruled.
{¶ 10} “Assignment of Error II: The trial court erred because it failed to state its
justification for imposing consecutive sentences.”
{¶ 11} The trial court imposed defendant’s sentence on November 8, 2010. At that
time, the law in Ohio did not require it to make any statutory findings as a prerequisite to imposing consecutive sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470; State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. Hodge
held the following:
{¶ 12} “1. The jury-trial guarantee of the Sixth Amendment to the United States
Constitution does not preclude states from requiring trial court judges to engage in judicial
fact-finding prior to imposing consecutive sentences. (Oregon v. Ice (2009), 555 U.S. 160,
129 S.Ct. 711, 172 L.Ed.2d 517, construed.)
{¶ 13} “2. The United States Supreme Court’s decision in Oregon v. Ice (2009), 555
U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio’s former
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[Cite as State v. Weaver, 2011-Ohio-6163.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96505
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES WEAVER DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-539953 and 540025
BEFORE: Sweeney, P.J., Keough, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 1, 2011 ATTORNEY FOR APPELLANT
Rick L. Ferrara, Esq. 2077 East Fourth Street Second Floor Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason, Esq. Cuyahoga County Prosecutor By: Daniel South, Esq. Mary McGrath, Esq. Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113
JAMES J. SWEENEY, P.J.:
{¶ 1} Defendant-appellant James Weaver asserts two issues in this appeal: (1) that
the trial court’s restitution order was an abuse of discretion, and (2) that the trial court
erred by imposing consecutive sentences without making statutory findings. For the
reasons that follow, we affirm.
{¶ 2} This appeal involves defendant’s guilty pleas and the sentences he received
in two separate cases: CR-540025 and CR-539953. 1 In these cases, defendant pleaded
guilty to two counts of breaking and entering, vandalism, and theft, which exposed him to
a maximum potential prison sentence of 48 months. As part of his guilty plea, defendant agreed to pay restitution to the victims in both cases but demanded a hearing. We note
that at the plea hearing, the state sought restitution to North American Switchgear in the
amount of $3,180 and $1,000 to Rent-A-Wreck. Both parties agreed to a restitution
hearing and the matter was referred to probation for a pre-sentence investigation.
{¶ 3} On November 1, 2010, the court held a sentencing hearing where it imposed
a one-year concurrent prison sentence for each conviction in CR-540025 and also a
one-year concurrent prison sentence for each conviction in CR-539953, but the trial court
ordered the sentences from each case to run consecutively for an aggregate sentence of 24
months. The court ordered defendant to pay $1,780 in restitution to American Switch-gear
and $750 in restitution to Tim Bozak. Defendant objected and the matter was continued
for a restitution hearing. On November 8, 2010, the court advised that “prior to coming on
the bench I had the opportunity to review the entire case file, the presentence investigation
report, * * *.” The state placed on the record its discussions with the victims, who had
provided receipts to the probation department for the restitution sought. The state
elaborated that the amounts involved a catalytic converter and installation in the amount of
$750, and the other case involved a specialty door with various pieces of chain, “other
pieces of scrap,” with damages totaling $1,780. The victims insisted the amounts were
accurate. The defense maintained there was no damage to the catalytic converter, that there
was no evidence as to whether the losses were covered by insurance, and otherwise
disputed that any money had actually been expended by the victims. At the first hearing,
1 The record reflects that defendant was also sentenced on other matters that are the state had advised the court that defendant had cut off the converter with a sawzall such
that it could not be put back on an automobile. After hearing arguments and reviewing the
evidence, the court imposed the same restitution order. Defendant has appealed.
{¶ 4} “Assignment of Error I: The trial court erred because it issued a restitution
order without competent and credible evidence of economic harm.”
{¶ 5} R.C. 2929.18(A)(1) provides in relevant part:
{¶ 6} “Financial sanctions that may be imposed pursuant to this section include,
but are not limited to, the following:
{¶ 7} “(1) Restitution by the offender to the victim of the offender’s crime or any
survivor of the victim, in an amount based on the victim’s economic loss. If the court
imposes restitution, the court shall order that the restitution be made to the victim in open
court, to the adult probation department that serves the county on behalf of the victim, to
the clerk of courts, or to another agency designated by the court. If the court imposes
restitution at sentencing, the court shall determine the amount of restitution to be made by
the offender. 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
not the subject of this appeal. restitution, the court shall hold a hearing on restitution if the offender, victim, or survivor
disputes the amount. All restitution payments shall be credited against any recovery of
economic loss in a civil action brought by the victim or any survivor of the victim against
the offender.”
{¶ 8} We review court-ordered restitution for an abuse of discretion. “To establish
the amount of restitution within a reasonable certainty, there must be some competent,
credible evidence. Sufficient evidence of the amount of restitution may appear in the
record. Where evidence of the appropriate amount of restitution does not appear in the
record, an evidentiary hearing is required.” State v. Carrino (May 11, 1995), Cuyahoga
App. No. 67696, citing State v. Warner (1990), 55 Ohio St.3d 31, 69, 564 N.E.2d 18.
{¶ 9} Here, the court complied with the statute and held a restitution hearing when
defendant disputed the amount. The state offered the receipts that were submitted by the
victims to the probation department indicating the amounts of their respective economic
harm. In opposition, defendant continued a generalized objection and did not present any
evidence that would refute the amounts suggested by the victims, such as contrary
estimates. The trial court’s restitution order was not an abuse of discretion. This
assignment of error is overruled.
{¶ 10} “Assignment of Error II: The trial court erred because it failed to state its
justification for imposing consecutive sentences.”
{¶ 11} The trial court imposed defendant’s sentence on November 8, 2010. At that
time, the law in Ohio did not require it to make any statutory findings as a prerequisite to imposing consecutive sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470; State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. Hodge
held the following:
{¶ 12} “1. The jury-trial guarantee of the Sixth Amendment to the United States
Constitution does not preclude states from requiring trial court judges to engage in judicial
fact-finding prior to imposing consecutive sentences. (Oregon v. Ice (2009), 555 U.S. 160,
129 S.Ct. 711, 172 L.Ed.2d 517, construed.)
{¶ 13} “2. The United States Supreme Court’s decision in Oregon v. Ice (2009), 555
U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, does not revive Ohio’s former
consecutive-sentencing statutory provisions, R.C. 2929.14(E)(4) and 2929.41(A), which
were held unconstitutional in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470.
{¶ 14} “3. Trial court judges are not obligated to engage in judicial fact-finding
prior to imposing consecutive sentences unless the General Assembly enacts new
legislation requiring that findings be made.”
{¶ 15} Contrary to defendant’s argument, Hodge did not automatically revive the
statutes that were excised by Foster. Hodge is dispositive of this assignment of error,
which is overruled.2
Judgment affirmed.
2 We realize that the General Assembly subsequently enacted legislation that affected Ohio’s sentencing laws; however, those provisions did not take effect until 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.
JAMES J. SWEENEY, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and EILEEN A. GALLAGHER, J. CONCUR
September 30, 2011 (months after Weaver was sentenced) and were not raised or addressed in this appeal.