[Cite as Strongsville v. Kane, 2012-Ohio-3372.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97765
CITY OF STRONGSVILLE PLAINTIFF-APPELLEE
vs.
DAVID KANE DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Berea Municipal Court Case No. 10 CRB 01289
BEFORE: S. Gallagher, J., Cooney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 26, 2012 ATTORNEYS FOR APPELLANT
James P. Celebrezze Nicholas J. Celebrezze Jeffrey A. Crossman The Celebrezze Group, LLC 5546 Pearl Road Parma, OH 44129
ATTORNEY FOR APPELLEE
George F. Lonjak City of Strongsville Prosecutor 614 Superior Avenue Suite 1310 Cleveland, OH 44113
Also listed: For Berea Municipal Court Probation Department
Gregory Sponseller Director of Law City of Berea - City Hall 11 Berea Commons Berea, OH 44017 SEAN C. GALLAGHER, J.:
{¶1} Appellant David Kane appeals the order of restitution imposed after his no
contest plea and finding of guilt to the misdemeanor offense of criminal mischief. For
the following reasons, we overrule the two assigned errors and affirm the decision of the
trial court.
{¶2} Strongsville charged Kane with a single count of criminal mischief in
violation of Strongsville Codified Ordinances 642.11(A)(1), for acts that occurred on or
about April 20, 2010. On that day, the victim alleged that Kane damaged her fence,
which separated Kane’s and her properties. The victim presented video evidence of
Kane damaging one of the boards on the slatted fence. Kane pleaded no contest and
was found guilty. He was sentenced to five years of community control sanctions as a
form of probation. Initially, the court postponed making a determination on restitution.1
The trial court ultimately imposed restitution as a criminal sanction in the amount of
$1,808. In order to substantiate the amount of restitution, the victim presented an
estimate to repair the fence that included the repair to one support post and the cost to
1 The trial court delayed ruling because it was aware that a civil case had been filed involving these same parties over this same fence in Cuyahoga C.P. No. CV-748673. Initially, the trial court intended to wait until resolution of that case before determining restitution, but later decided to proceed. The facts or merits of that civil case are not in the record before us, and we do not consider them in this opinion. Likewise, any entitlement to a “set off” or redetermination of the restitution amount ordered as a result of that case is not before us at this time. replace and repair 169 boards along both sides of the fence. Kane objected to the
estimate as hearsay and also as exceeding the damage caused by the crime for which he
was charged. The victim stated the damage represented by the repair estimate occurred
over the course of several months.
{¶3} Kane timely appealed, raising two assignments of error. Kane’s first
assigned error provides as follows: “The trial court committed reversible error by
admitting hearsay evidence on the issue of damages.” Kane’s argument lacks merit.
{¶4} The victim in this case, Jennifer Coulter, appeared at the restitution hearing
and offered an estimate from Great Home Improvement for the repair of 133 boards on
Coulter’s side of the property and 36 boards on Kane’s side of the property. A
representative from the fence company did not appear or offer any additional evidence.
Rather, Coulter in an exhaustive restitution hearing that stretched to 49 pages of
transcript, outlined the specific details in the estimate. Further, her testimony revealed
she selected the company that offered an estimate based on damage repair rather than
complete fence replacement, which was, she indicated, from other companies she
contacted, often the industry standard.
{¶5} Ohio courts have long recognized that
When determining restitution, a court’s calculation must be supported by competent, credible evidence from which it can discern the amount of the restitution to a reasonable degree of certainty. 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. Ohio Rev. Code Ann. § 2929.28(A)(1). The court may also rely upon hearsay. Ohio R. Evid. 101(C) excepts application of the Rules of Evidence, including the hearsay rule, from certain proceedings, such as miscellaneous criminal proceedings. Among those listed as specifically excepted from the Rules of Evidence are proceedings for sentencing. A hearing to determine restitution is part of sentencing. Consequently, an ordering court is not restricted by the Rules of Evidence, including the prohibition on hearsay, in determining the amount of a restitution order.
State v. Tuemler, 12th Dist. No. CA 2004-06-068, 2005-Ohio-1240, ¶ 16-17.
{¶6} We find that Coulter’s testimony was both competent and credible. The
use of admissible hearsay testimony, coupled with Coulter’s detailed description of the
fencing and the damage, did not render the trial court incapable of making an informed
decision. Thus we reject this assigned error.
{¶7} Kane’s second assignment of error provides as follows: “The trial court
committed reversible error by ordering restitution that was not reasonably related to the
offense charged.” This argument also lacks merit.
{¶8} “[W]e review a lower court’s order of restitution for an abuse of discretion.”
State v. Lalain, 8th Dist. No. 95857, 2011-Ohio-4813, citing State v. Marbury, 104
Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995). “[T]he term ‘abuse of discretion’
implies that the court’s attitude was unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶9} Pursuant to R.C. 2929.28(A)(1), when a court imposes restitution as part of a
criminal sanction for misdemeanor offenses, “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.” The amount of restitution must be reasonably related to the loss suffered and is limited to the actual loss caused by the
offender’s criminal conduct for which he was convicted. State v. Moore-Bennett, 8th
Dist. No. 95450, 2011-Ohio-1937, ¶ 18. “A trial court abuses its discretion in ordering
restitution in an amount that exceeds the economic loss resulting from the defendant’s
crime.” Moore-Bennett, citing State v. Rivera, 8th Dist. No. 84379, 2004-Ohio-6648, ¶
12.
{¶10} We first note that Strongsville Codified Ordinances 642.11(A)(1) does not
have a monetary limit. Thus, our analysis is confined to a determination of whether the
restitution order exceeds the economic loss suffered by the victim that was directly
related to the defendant’s crime. Therefore, the trial court was required to determine if
the testimony and estimate Coulter provided were reasonably related to Kane’s criminal
conduct.
{¶11} Kane objected to the amount of restitution before it was imposed, and there
is no indication in the record that restitution was included in the plea deal.
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[Cite as Strongsville v. Kane, 2012-Ohio-3372.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 97765
CITY OF STRONGSVILLE PLAINTIFF-APPELLEE
vs.
DAVID KANE DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Berea Municipal Court Case No. 10 CRB 01289
BEFORE: S. Gallagher, J., Cooney, P.J., and Rocco, J.
RELEASED AND JOURNALIZED: July 26, 2012 ATTORNEYS FOR APPELLANT
James P. Celebrezze Nicholas J. Celebrezze Jeffrey A. Crossman The Celebrezze Group, LLC 5546 Pearl Road Parma, OH 44129
ATTORNEY FOR APPELLEE
George F. Lonjak City of Strongsville Prosecutor 614 Superior Avenue Suite 1310 Cleveland, OH 44113
Also listed: For Berea Municipal Court Probation Department
Gregory Sponseller Director of Law City of Berea - City Hall 11 Berea Commons Berea, OH 44017 SEAN C. GALLAGHER, J.:
{¶1} Appellant David Kane appeals the order of restitution imposed after his no
contest plea and finding of guilt to the misdemeanor offense of criminal mischief. For
the following reasons, we overrule the two assigned errors and affirm the decision of the
trial court.
{¶2} Strongsville charged Kane with a single count of criminal mischief in
violation of Strongsville Codified Ordinances 642.11(A)(1), for acts that occurred on or
about April 20, 2010. On that day, the victim alleged that Kane damaged her fence,
which separated Kane’s and her properties. The victim presented video evidence of
Kane damaging one of the boards on the slatted fence. Kane pleaded no contest and
was found guilty. He was sentenced to five years of community control sanctions as a
form of probation. Initially, the court postponed making a determination on restitution.1
The trial court ultimately imposed restitution as a criminal sanction in the amount of
$1,808. In order to substantiate the amount of restitution, the victim presented an
estimate to repair the fence that included the repair to one support post and the cost to
1 The trial court delayed ruling because it was aware that a civil case had been filed involving these same parties over this same fence in Cuyahoga C.P. No. CV-748673. Initially, the trial court intended to wait until resolution of that case before determining restitution, but later decided to proceed. The facts or merits of that civil case are not in the record before us, and we do not consider them in this opinion. Likewise, any entitlement to a “set off” or redetermination of the restitution amount ordered as a result of that case is not before us at this time. replace and repair 169 boards along both sides of the fence. Kane objected to the
estimate as hearsay and also as exceeding the damage caused by the crime for which he
was charged. The victim stated the damage represented by the repair estimate occurred
over the course of several months.
{¶3} Kane timely appealed, raising two assignments of error. Kane’s first
assigned error provides as follows: “The trial court committed reversible error by
admitting hearsay evidence on the issue of damages.” Kane’s argument lacks merit.
{¶4} The victim in this case, Jennifer Coulter, appeared at the restitution hearing
and offered an estimate from Great Home Improvement for the repair of 133 boards on
Coulter’s side of the property and 36 boards on Kane’s side of the property. A
representative from the fence company did not appear or offer any additional evidence.
Rather, Coulter in an exhaustive restitution hearing that stretched to 49 pages of
transcript, outlined the specific details in the estimate. Further, her testimony revealed
she selected the company that offered an estimate based on damage repair rather than
complete fence replacement, which was, she indicated, from other companies she
contacted, often the industry standard.
{¶5} Ohio courts have long recognized that
When determining restitution, a court’s calculation must be supported by competent, credible evidence from which it can discern the amount of the restitution to a reasonable degree of certainty. 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. Ohio Rev. Code Ann. § 2929.28(A)(1). The court may also rely upon hearsay. Ohio R. Evid. 101(C) excepts application of the Rules of Evidence, including the hearsay rule, from certain proceedings, such as miscellaneous criminal proceedings. Among those listed as specifically excepted from the Rules of Evidence are proceedings for sentencing. A hearing to determine restitution is part of sentencing. Consequently, an ordering court is not restricted by the Rules of Evidence, including the prohibition on hearsay, in determining the amount of a restitution order.
State v. Tuemler, 12th Dist. No. CA 2004-06-068, 2005-Ohio-1240, ¶ 16-17.
{¶6} We find that Coulter’s testimony was both competent and credible. The
use of admissible hearsay testimony, coupled with Coulter’s detailed description of the
fencing and the damage, did not render the trial court incapable of making an informed
decision. Thus we reject this assigned error.
{¶7} Kane’s second assignment of error provides as follows: “The trial court
committed reversible error by ordering restitution that was not reasonably related to the
offense charged.” This argument also lacks merit.
{¶8} “[W]e review a lower court’s order of restitution for an abuse of discretion.”
State v. Lalain, 8th Dist. No. 95857, 2011-Ohio-4813, citing State v. Marbury, 104
Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995). “[T]he term ‘abuse of discretion’
implies that the court’s attitude was unreasonable, arbitrary or unconscionable.”
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶9} Pursuant to R.C. 2929.28(A)(1), when a court imposes restitution as part of a
criminal sanction for misdemeanor offenses, “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.” The amount of restitution must be reasonably related to the loss suffered and is limited to the actual loss caused by the
offender’s criminal conduct for which he was convicted. State v. Moore-Bennett, 8th
Dist. No. 95450, 2011-Ohio-1937, ¶ 18. “A trial court abuses its discretion in ordering
restitution in an amount that exceeds the economic loss resulting from the defendant’s
crime.” Moore-Bennett, citing State v. Rivera, 8th Dist. No. 84379, 2004-Ohio-6648, ¶
12.
{¶10} We first note that Strongsville Codified Ordinances 642.11(A)(1) does not
have a monetary limit. Thus, our analysis is confined to a determination of whether the
restitution order exceeds the economic loss suffered by the victim that was directly
related to the defendant’s crime. Therefore, the trial court was required to determine if
the testimony and estimate Coulter provided were reasonably related to Kane’s criminal
conduct.
{¶11} Kane objected to the amount of restitution before it was imposed, and there
is no indication in the record that restitution was included in the plea deal. Absent a
transcript of the plea hearing, we must presume regularity in the proceedings. Knapp v.
Edwards Laboratories, 161 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). The trial
court overruled Kane’s objection under the guise of settling all issues regarding the fence
in one proceeding.
{¶12} Kane was charged with one count of criminal mischief, in violation of
Strongsville Codified Ordinances 642.11(A)(1), for acts that occurred on or about April
20, 2010. The complaint asserted that “[Kane] did, without privilege to do so, knowingly move, deface, damage, destroy, or otherwise improperly tamper with the
property of Jennifer Coulter.”
{¶13} Kane pleaded no contest to the charges as alleged in the complaint. It is
uncontested that a videotape showing Kane damaging one board on the fence on April
20, 2010, was submitted by Coulter to police and formed the basis for this charge.
While we have no record before us outlining the factual basis for the plea, we note that
Coulter testified at the restitution hearing that the damage to her fence, demonstrated by
the repair estimate, occurred over a period of several months and was not limited to the
single day that Kane was found to have damaged the fence. Nevertheless, despite the
fact that the prosecutor failed to charge the offense as a range of dates or move the court
to conform the complaint to the facts presumably outlined at the time of the no contest
plea to a range of dates rather than April 20, 2010, we cannot find that the court ordered
restitution that exceeded the economic loss resulting from Kane’s criminal conduct.
While Strongsville should have ideally included allegations of conduct that occurred
over the five-month period preceding the April 20, 2010 date of offense, the inference of
ongoing damage based on the uncontroverted testimony of Coulter at the restitution
hearing does not make the trial court’s order of restitution contrary to law.
{¶14} Kane’s second assignment of error is therefore overruled, and the trial
court’s imposition of restitution is affirmed.
It is ordered that appellee recover of 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 Berea
Municipal Court to carry this judgment into execution. 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
COLLEEN CONWAY COONEY, P.J., and KENNETH A. ROCCO, J., CONCUR