[Cite as State v. Shaffer, 2009-Ohio-4804.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY



STATE OF OHIO,

   PLAINTIFF-APPELLEE,                                  CASE NO. 14-09-06

  v.

ANGEL ALLISON SHAFFER,
aka ANGEL ALLISON FREELAND,                                OPINION

   DEFENDANT-APPELLANT.




                   Appeal from Union County Common Pleas Court
                             Trial Court No. 08-CR-0089

                       Judgment Reversed and Cause Remanded

                          Date of Decision: September 14, 2009




APPEARANCES:

        Allison Boggs for Appellant

        Melissa A. Chase for Appellee
Case No. 14-09-06




PRESTON, P.J.

       {¶1} Defendant-appellant, Angel Allison Shaffer (hereinafter “Shaffer”),

appeals the Union County Court of Common Pleas’ judgment entry of sentence.

For the reasons that follow, we reverse.

       {¶2} On July 16, 2008, the Union County Grand Jury indicted Shaffer on

four counts, including: count one (1) of aggravated theft in violation of R.C.

2913.02(A)(1), (B)(2), a third degree felony; count two (2) of identity fraud in

violation of R.C. 2913.49(B)(1), (I)(2), a second degree felony; and counts three

(3) and four (4) of forgery, violations of R.C. 2913.31(A)(3), (C)(1)(a), (c)(iii),

both second degree felonies. (Doc. No. 1).

       {¶3} Shaffer entered a plea of not guilty to each count in the indictment at

the August 22, 2008 arraignment. (Doc. No. 6). The trial court released Shaffer on

a recognizance bond, and a scheduling conference was set for October 2, 2008.

(Id.). Shaffer, however, failed to appear for the scheduling conference so the trial

court revoked Shaffer’s bond and issued a capias order for her arrest. (Doc. No.

19).

       {¶4} A jury trial was scheduled for December 18, 2008, but, on December

15, 2008, Shaffer signed an entry withdrawing her previously tendered not guilty

plea and entering a plea of guilty to counts one and two of the indictment. (Doc.

Nos. 23, 48). The State agreed to dismiss counts three and four. (Doc. No. 48).


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The trial court accepted Shaffer’s change in plea, dismissed counts three and four

of the indictment, and referred the matter for a pre-sentence investigation (PSI)

report. (Id.).

       {¶5} On March 3, 2009, the trial court sentenced Shaffer to three (3) years

imprisonment on count one and five (5) years imprisonment on count two. (Doc.

No. 61). The trial court ordered that the terms be served concurrently for a

combined total of five (5) years. (Id.). The trial court further ordered that Shaffer

pay all costs of prosecution, court appointed counsel fees—including $500.00 in

reimbursement to Union County for costs of providing indigent counsel—, R.C.

2929.18(A)(4) fees, and restitution to the victim, Fred Shaffer, in the amount of

$50,433.00. (Id.).

       {¶6} On March 31, 2009, Shaffer filed a notice of appeal from the trial

court’s judgment entry of sentence. (Doc. No. 67). On April 23, 2009, Shaffer

filed a motion to suspend further execution of her sentence in the trial court, but

said motion was denied. (Doc. Nos. 72, 75). Shaffer now appeals raising one

assignment of error for our review.

                          ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED WHEN IT ORDERED
       RESTITUTION WITHOUT ESTABLISHING THE ACTUAL
       FINANCIAL LOSS TO THE VICTIM AND FURTHER
       ERRED WHEN IT ORDERED THE PAYMENT OF COURT
       COSTS, INDIGENT COUNSEL FEES ALONG WITH THE
       RSETITUTION    [SIC] WITHOUT    DETERMINING


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       WHETHER APPELLANT HAD A PRESENT OR FUTURE
       ABILITY TO PAY THESE COSTS.

       {¶7} In her sole assignment of error, Shaffer argues that the trial court

erred in ordering restitution without holding a full and separate hearing to

determine the actual amount of financial loss to the victim. Shaffer further argues

that the trial court erred when it ordered her to pay restitution, court costs, and

indigent counsel fees without first determining whether she had a present or future

ability to pay such costs.

       {¶8} The State argues that a full hearing was not necessary to determine

the actual loss to the victim since the trial court had a certified copy of the civil

judgment entry in favor of the victim, Fred Shaffer, and against Shaffer—who was

a third-party defendant in the related civil case. As such, the State argues that a

full hearing to determine the amount of restitution was not required, because this

issue had already been fully litigated in the related civil proceeding, was never

appealed, and is now res judicata. The State further argues that the trial court is

required to assess costs, including counsel fees, against indigent defendants

pursuant to R.C. 2947.23(A)(1) without regard to the defendant’s ability to pay.

Furthermore, the State argues that there is evidence upon which the trial court

could have concluded that Shaffer had a future ability to pay these costs; and

therefore, the trial court did not err in ordering the payment of costs and

restitution.


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       {¶9} We review a trial court’s decision to impose restitution under abuse

of discretion standard of review. State v. Griffus, 3d Dist. No. 14-08-39, 2009-

Ohio-304, ¶7, citing State v. Lamere, 3d Dist. No. 1-07-11, 2007-Ohio-4930, ¶¶ 6-

7. Likewise, we review a trial court’s determination of the defendant’s ability to

pay restitution under an abuse of discretion standard. State v. Alvarez, 3d Dist. No.

4-08-02, 2008-Ohio-5189, ¶27, citing State v. Brewer (Jan. 28, 1998), 3d Dist. No.

2-97-20, at *3; State v. Horton (1993), 85 Ohio App.3d 268, 619 N.E.2d 527;

State v. Myers, 9th Dist. No. 06CA0003, 2006-Ohio-5958, ¶12. An abuse of

discretion is more than an error of law; rather, it suggests that the trial court’s

decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore

(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. “[T]he amount of the restitution

must be supported by competent, credible evidence in the record from which the

court can discern the amount of the restitution to a reasonable degree of certainty.”

State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725, ¶20,

quoting State v. Policaro, 10th Dist. No. 06AP-913, 2007-Ohio-1469, ¶7, citing

State v. Sommer, 154 Ohio App.3d 421, 2003-Ohio-5022, 797 N.E.2d 559; State v.

Gears (1999), 135 Ohio App.3d 297, 300, 733 N.E.2d 683.

       {¶10} At the time of Shaffer’s offenses—on or about March 22-29, 2009—

R.C. 2929.18 provided, in pertinent part:

       (A) Except as otherwise provided in this division and in addition
       to imposing court costs pursuant to section 2947.23 of the


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       Revised Code, the court imposing a sentence upon an offender
       for a felony may sentence the offender to * * * the following:

       (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, 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 restitution, the court shall
       hold a hearing on restitution if the offender, victim, or survivor
       disputes the amount.

S.B. 17, eff. 9-30-08 (emphasis added); (Doc. No. 1); State v. Kanniard, 3d Dist.

No. 9-07-21, 2008-Ohio-518, ¶17 (appellate court considers the version of R.C.

2929.18 in effect when the offense was committed). See also, State v. Kreischer,

109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶¶8-13 (applying version

of R.C. 2929.18(A) that was in effect at the time of the offense).

       {¶11} During the State’s preliminary remarks at the March 3, 2009

sentencing hearing, the State requested that Shaffer be ordered to pay restitution in

the amount of $50,433.00 to the victim. (Mar. 3, 2009 Tr. at 6). This amount was

determined from the judgment entry in favor of the victim and against Shaffer in

the related civil case. (Id.); (Id. at 44-45); (State’s Ex. 2). At the conclusion of the

State’s opening statement, the prosecutor asked, “[a]re we in agreement on the


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restitution figure?” (Mar. 3, 2009 Tr. at 10). Defense counsel responded, “I’d like

to argue the point. I’ll agree that your exhibit, however, is what was ordered out

of the civil case.” (Id.). The prosecutor, then, asked defense counsel whether he

had “other evidence,” presumably to rebut the figure provided by the State. (Id.)

At this point, the trial court stated, “[l]ets let him present the evidence when it’s

his turn,” to which the prosecutor agreed and called the victim to the stand. (Id.).

       {¶12} The victim, the defendant’s former husband Fred Shaffer

(hereinafter “Fred”), testified, in relevant part, that he obtained a civil judgment

against Shaffer in the amount of $50,443.14 for the amount of money he lost as a

result of Shaffer’s actions. (Id. at 13, 18-19); (State’s Ex. 2). After the prosecution

finished its direct examination of Fred, the following dialogue occurred:

       THE COURT: Am I to understand that Exhibit A [sic] is joint --
       agreed to be admitted? I understand you want to argue about it,
       but am I to understand that there’s no argument as to whether
       or not it’s to be admitted?
       MR. HORD: It’s a certified copy. It’s self-authenticating.
       MR. WOLFE: Appears to be genuine, your Honor.
       THE COURT: So the answer’s yes?
       MR. WOLFE: Yes, your Honor.

(Mar. 3, 2009 Tr. at 25). On cross-examination, defense counsel questioned Fred

about whether or not any of his prior loan obligations were now satisfied as a

result of Shaffer’s conduct. (Id. at 26-31). The pertinent portion of that testimony

is as follows:




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      Q: * * * Mr. Shaffer, isn’t it a fact that, I mean, despite all the
      wrongdoing Angel engaged in to put your son up to this
      refinance, that out at that closing there were many of these debts
      there were paid off?
      A: Yeah. At the time I didn’t know it. When she done this, I
      didn’t know she done it.
      Q: Now, are there still debts out there that were not paid off at
      the -- out of the wrongful refinance?
      A: Well, at Huntington National Bank where I thought I had
      some money, they’re still owed $3,100. She was caught kiting
      among the banks. I went in and talked at Huntington National, I
      went in and talked to National City and they had told me that
      they realized it wasn’t me. * * * they said Mr. Shaffer must not
      know what’s going on because they got her on tape at trying to
      deposit large amounts of checks. And they caught her -- what
      the word is called kiting.
      Q: Let me ask you a different question here, Mr. --
      A: Yeah. I know where you’re getting to about stuff that ain’t
      paid off. I’m still fighting credit card debts that she had rang up
      that I did not create.
      Q: But it is a fact that the existing first and second mortgages on
      the property, those were paid off out of the wrongful refinance,
      is that true?
      A: Well, the paperwork that I happened to see, yes, you’re right.
      She paid that off. But then in 28 days she ran it up another
      $45,000 in 28 days.
      Q: Ran what up, sir?
      ***
      A: The home equity line of credit.
      Q: So that there was a new home equity line of credit?
      A: Instead of them closing the home equity line of credit down
      like it should have been done, they allowed her to go in and write
      checks for another $45,000 in 28 days.
      Q: Was your -- was your four-wheeler paid off out of the
      refinance?
      A: Now, that I don’t know. You see, I had money in my savings
      account. She brought me the cash that supposedly came from
      the savings. She said specifically come from the savings.
      Q: So you don’t --
      A: I did not know nothing about Chase.


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      Q: Was the four-wheeler paid off?
      A: The four-wheelers were paid in cash, sir.
      Q: Okay. And that was an obligation that was in your name up
      to that point, is that right?
      A: The bikes were in my name, yes, sir.
      Q: Was it about $9,000?
      A: Roughly, yes. And I had over that in my account.
      Q: And then did you have a camper that [sic] about 3,000 was
      owed on that was paid out of this refinance?
      A: Yes, I did.
      Q: And a truck that was paid off --
      A: Now, the truck was paid out of my savings account. It was
      supposed to have been.
      Q: Did you do it or somebody else?
      A: No. I had her walk into the bank. I said take enough out and
      I said pay my truck off because I had got a bonus check from
      where I worked and it was practically enough to pay my truck
      off.
      Q: Now, did you ever go back and look at the savings account to
      see if the truck payoff was taken out of there?
      A: No, I did not. I did not do that.
      Q: You don’t know whether 6,000 was taken out of your
      savings?
      A: Well, there’s a lot of stuff I don’t really know.
      Q: Is it possible --
      A: All I know at one time I had money in the bank account and a
      lot of the stuff that took place I never even knew that happened.
      That’s all I can tell you.
      Q: Well, is it a fact that the truck is now paid off?
      A: Well, yeah.
      Q: And that you don’t know where that money came from?
      A: Well, supposedly the money was supposed to come out of my
      savings. Now, if you’re trying to get me to say that it came from
      this other, I can’t answer that for you because I don’t know.
      ***
      Q: Now, sir, have you looked -- after the fact, have you gone
      back and looked at the closing statement out of this wrongful
      refinance like where it talks about all the monies that were paid
      out at the closing?
      A: I seen that. Yes, I have. But was I aware of it? No. I wasn’t.


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         Q: But do you now agree that there were many things that were
         paid off out of the refinance that she did.
         ***
         A: Yeah. I guess so. I’d have to say there was.
         Q: And those are now things that you don’t have to pay?
         ***
         A: If that’s how you want to put it.
         ***
         Q: And you had a red car that was paid off to the tune of
         $1,500?
         A: A red car?
         Q: Angel’s car.
         A: I don’t know nothing about that. That was her car. She told
         me -- she told me specifically that her mother gave her the
         money for that car.
         ***
         Q: Now, did you and Angel take some trips to West Virginia
         after this wrongful refinance was done?
         A: Yes. I went to West Virginia.
         Q: And did she give some money toward the expenses for those
         trips?
         ***
         A: She had some money. But there again, she said this was
         money that her mother had given her is what she had said.
         ***
         Q: So you might have benefited from some of these monies that
         she took out in the refinance?
         ***
         A: The truth of the matter is if it happened, I did not know
         about it. It was wrongfully.

(Id.).

         {¶13} Fred was the only witness at the sentencing hearing, and following

his testimony defense counsel stated its recommendations to the trial court, in

relevant part, as follows:




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      MR. WOLFE: * * * I’d also like to let the Court know that I
      have received State’s exhibits on the judgment out of the civil
      case in the amount of $50,443.14. And that does appear to be a
      judgment awarded to Fred Shaffer against Angel Shaffer.
      However, I’m told by my client and it’s also evident from the
      Court’s records that other than giving a deposition, Angel didn’t
      really participate in the litigation. So this is essentially a default
      judgment and it’s unclear to me how this figure is arrived at, at
      least from the exhibit. What I have looked at, your Honor, and I
      tried to get into a little bit with Mr. Shaffer was the HUD One
      settlement statement that’s contained in the Court’s file. And
      when you look at that, it appears that the money that was paid
      out of the closing to the defendant was $6,190.84. The remaining
      monies were paid to various creditors. And I don’t know about
      what Mr. Shaffer said about the home equity credit line being
      recharged up after the fact. But at least what’s on the HUD One
      indicates that she took $6,190.84 at the closing. And I’m advised
      by Angel that a lot of that money was spent when the two of
      them took trips to West Virginia together. So, I don’t know
      what the Court would feel is just regarding the expenditure of
      those monies. But I did take a look at Revised Code 2929.18
      regarding financial sanctions. And in Section A 1 it talks about
      the Court needing to order restitution in an amount based on the
      victim’s economic loss. And so if we go by the HUD One and we
      look at those obligations that were paid off, I don’t see how those
      can be a loss. It’s also unclear to me what’s contained within the
      $50,000 order out of the civil case. So Angel is ready, willing,
      and able to make restitution for the actual loss to the victim.
      That (INAUDIBLE) figure just because I don’t know how that
      was arrived at or whether that’s a just order to be made.

(Id. at 42-43). Thereafter, the State made its closing arguments, in relevant part,

as follows:

      MR. HORD: * * * Yes, there is a settlement statement. But
      quite frankly, that settlement statement is signed by allegedly
      Fred Shaffer, but it was Brian Shaffer who signed it. There is in
      fact and we’ve indicated there were payments that came out of it
      to the tune of ninety-nine thousand approximately $656, $657


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       that would have been relative to prior mortgages. Now, the total
       amount of that refinance was $140,250. It does not take a rocket
       scientist to figure out that there’s over $40,000 there alone that
       are relative to this. What the 2929.18 talks about is restitution
       for the financial loss. The loss that Mr. Shaffer has encountered
       as a result of this was litigated significantly. It was not a default
       judgment. The defendant chose for whatever reason to be pro
       se. There is -- was extensive discovery and pleadings in that case
       which ultimately culminated in the certified entry that has been
       provided to the Court. Now, if I was going to prepare [sic] the
       two, how much weight do I give the HUD One closing statement
       that was actually part of the litigation where the parties involved
       actually litigated it in this court and then resolved it with the fact
       that the defendant in that case, a civil defendant, owed the
       plaintiff defendant Fred Shaffer the amount of 50,000 –
       approximately $50,433. That is clear. That was the full civil
       litigation of it. How she chose to participate is irrelevant. The
       fact of the matter is it’s a certified entry. There’s no other
       evidence. The Court can take judicial notice of its ruling. As far
       as the victim Fred Shaffer, he was very clear.

(Id. at 44-45). No further discussion was had regarding the amount of restitution,

and the trial court, thereafter, ordered that Shaffer pay the victim $50,433.00 in

restitution. (Id. at 53).

       {¶14} On the basis of the record before us, we cannot conclude that the

trial court abused its discretion in ordering that Shaffer pay the victim restitution

in the amount of $50,433.00. To begin with, we reject Shaffer’s argument that the

trial court failed to conduct a hearing on restitution as required by R.C.

2929.18(A)(1). In fact, what is clear from the testimony presented is that the trial

court did consider evidence relating to the appropriate amount of restitution—that

Shaffer failed to offer evidence on this issue is irrelevant. Shaffer, however,


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argues that she was entitled to a “full” and “separate” hearing on the issue of

restitution once she disputed the amount of restitution. R.C. 2929.18(A)(1)’s plain

language imposes no such requirements; rather the plain language requires only

that the trial court “shall hold a hearing.” As this Court has noted before, trial

courts may hold the restitution hearing as part of the sentencing hearing under

certain circumstances. Didion, 2007-Ohio-4494, at ¶16.

       {¶15} Although this Court in dicta may have implied in other cases that

R.C. 2929.18(A)(1) required a separate hearing, we believe the facts and

circumstances here are such that the trial court did not abuse its discretion by

failing to hold a separate hearing. See, e.g., Griffus, 2009-Ohio-304, at ¶¶10-11.

To start with, defense counsel made no request for either a continuance or a

separate hearing. Defense counsel participated at the hearing as if the court was

holding a restitution hearing, questioning the victim regarding any benefits he may

have received from the fraudulent refinance and arguing as to the correct amount

of restitution. (Mar. 3, 2009 Tr. at 26-31, 42-43). Defense counsel should have

known—if defense counsel did not in fact know—that the amount of restitution

would be an issue at sentencing. (See, e.g., Restitution Reports filed Feb. 5 & Mar.

2, 2009, Doc. Nos. 51, 60). Defense counsel also indicated during the hearing that

Shaffer’s mother was present to testify but decided not to have her testify. (Id. at

40). Shaffer has not even asserted on appeal what, if any, evidence she would



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have produced at a separate hearing to refute the amount of the restitution ordered.

Furthermore, any alleged error was invited by the defendant’s participation,

without objection, in the combined sentencing/restitution hearing, and defendant

cannot take advantage of this alleged error on appeal. State v. Monnette, 3d Dist.

No. 9-08-33, 2009-Ohio-1653, ¶12, citing State v. Ransom, 3d Dist. No. 15-06-05,

2006-Ohio-6490, ¶14. For all these reasons, we find that Shaffer’s argument with

regard to the restitution hearing meritless.

       {¶16} Having reviewed the entire record, we also find that the trial court’s

restitution order was supported by competent, credible evidence. Didion, 2007-

Ohio-4494, at ¶20, quoting Policaro, 2007-Ohio-1469, at ¶7, citing Sommer,

2003-Ohio-5022; Gears, 135 Ohio App.3d at 300.                  R.C. 2929.18(A)(1)

specifically states that, “* * * the court may base the amount of restitution it orders

on an amount recommended by the victim, the offender, a presentence

investigation, estimates or receipts indicating the cost of repairing or replacing

property, and other information * * *.” (Emphasis added). The victim, Fred

Shaffer, testified that State’s exhibit two was a civil judgment in his favor against

the defendant-appellant for $50,443.14 stemming from a civil lawsuit, which Fred

described as: “* * * more or less money that I had lost and what she has -- how

much she has costed me.” (Mar. 3, 2009 Tr. at 18-19). State’s exhibit two was

also entered into evidence. (Id. at 49). We cannot find that the trial court abused



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its discretion by ordering that Shaffer pay $50,433.00 in restitution, because the

trial court had competent, credible evidence in the record supporting this amount.

       {¶17} With regard to whether $50,433.00 was “the amount of the

economic loss suffered by the victim,” Shaffer’s primary concern, the trial court

considered testimony presented through cross-examination that the victim had

benefited by Shaffer’s criminal acts since several of the loans for which he was

liable were paid off out of the fraudulent refinance. (Mar. 3, 2009 Tr. at 26-31);

R.C. 2929.18(A)(1).      Ultimately, however, the trial court found the victim’s

testimony and the prior civil judgment to be more persuasive in determining the

amount of restitution. Generally speaking, “[e]valuating evidence and assessing

its credibility are the primary functions of the trier of fact, not an appellate court.”

Yuhasz v. Mrdenovich (1992), 82 Ohio App.3d 490, 492, 612 N.E.2d 763.

Throughout defense counsel’s cross-examination, the victim stated several times

that he could not be certain of where the monies came from to pay off his loan

obligations. (Mar. 3, 2009 Tr. at 26-31). In fact, with many of these liabilities, the

victim presumed that Shaffer, who was his wife at the time, was taking the money

out of his savings account according to his instruction. (Id.). Furthermore, Shaffer

failed to present evidence, aside from her cross-examination of the victim,

contrary to the amount of restitution ordered by the trial court. As we recently

noted, “* * * it is the responsibility of the parties to put forth the evidence they



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believe is relevant and necessary for a just decision. Each party tries his own case,

and the court reaches a decision based on the evidence that the parties have

presented * * *.” Dindal v. Dindal, 3d Dist. No. 5-09-06, 2009-Ohio-3528, ¶10,

citing Walls v. Walls (May 4, 1995), 4th Dist. No. 94-CA-849, at *5. The trial

court’s restitution figure was based upon the evidence presented at the hearing—

namely, the victim’s testimony and the civil judgment entry—and, as such, we

find no abuse of discretion.

       {¶18} As to the dissent’s contention that the restitution order was

duplicitous or illogical given the civil judgment, we find this reason insufficient on

its face to merit a reversal of the trial court’s restitution order. Post at ¶24.

Furthermore, “[n]o financial sanction imposed under this section [e.g. restitution]

* * * shall preclude a victim from bringing a civil action against the offender.”

R.C. 2929.18(H). Since the victim is able to obtain a civil judgment based upon

the same economic loss calculated in a trial court’s restitution order, we fail to see

how the opposite—obtaining a restitution order based upon a related civil

judgment—is somehow impermissible.          The dissent points to no rule of law

providing otherwise.

       {¶19} Next, Shaffer argues that the trial court erred by ordering her to pay

costs and restitution without holding a hearing to determine if she had the present




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or future ability to pay such costs. We again disagree. In State v. Troglin, this

Court explained:

      Under R.C. 2947.23, “[i]n all criminal cases, * * * the judge or
      magistrate shall include in the sentence the costs of prosecution
      and render a judgment against the defendant for such costs.”
      R.C. 2947.23(A)(1). Thus, a court is required to impose the costs
      of prosecution against convicted criminal defendants, regardless
      of whether they are indigent. State v. Felder, 3d Dist. No. 9-04-51,
      2005-Ohio-546, ¶6, citing State v. White, 103 Ohio St.3d 580,
      2004-Ohio-5989, ¶ 8.

      Conversely, R.C. 2929.19(B)(6) requires a trial court to consider
      the offender’s present and future ability to pay before imposing
      a financial sanction under R.C. 2929.18. The trial court is not
      required to hold a hearing on the issue of financial sanctions,
      and there are no express factors that the court must take into
      consideration or make on the record. See, e.g., State v. Martin,
      140 Ohio App.3d 326, 338, 2000-Ohio-1942. “The record should,
      however, contain ‘evidence that the trial court considered the
      offender’s present and future ability to pay before imposing the
      sanction.’” State v. Culver, 160 Ohio App.3d 172, 186, 2005-
      Ohio-1359, citing State v. Robinson, 3d Dist. No. 5-04-12, 2004-
      Ohio-5346, at ¶17. Generally, R.C. 2929.19(B)(6) is satisfied
      where a trial court considered a PSI, which typically contains
      pertinent financial information, or where the transcript
      demonstrates that the trial court at least considered a
      defendant’s ability to pay.

3d Dist. No. 14-06-57, 2007-Ohio-4368, ¶¶37-38. With regard to costs, the trial

court was required to impose costs regardless of Shaffer’s indigent status. Id.

With regard to Shaffer’s ability to pay, the victim testified at the sentencing

hearing that Shaffer was formerly employed as a manager of a McDonald’s

restaurant and earned around $10-11 per hour. (Mar. 3, 2009 Tr. at 22-23, 33).



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Furthermore, the PSI, which was reviewed by the trial court, reveals that Shaffer

worked at: McDonald’s from 1995 to October 2007, earning $12/hour; I-Force

from April 2008 to January 2009, earning $9/hour; and Scioto Industrial from

November 2008 to January 2009. (Mar. 3, 2009 Tr. at 51-52); (PSI at 15). The

PSI also provides information regarding Shaffer’s educational background and

finances. (PSI at 11, 15-16). Under these circumstances, we cannot conclude that

the trial court abused its discretion by ordering Shaffer to pay costs and restitution.

Alvarez, 2008-Ohio-5189, at ¶27, citing Brewer, 3d Dist. No. 2-97-20, at *3;

Horton, 85 Ohio App.3d 268; Myers, 2006-Ohio-5958, at ¶12.

       {¶20} Next Shaffer argues that the trial court erred by imposing indigent

counsel fees without first determining whether she had a present or future ability

to pay such fees. We agree. R.C. 2941.51(D) provides the following pertinent

provision concerning indigent counsel fees: “* * * if the person represented has, or

reasonably may be expected to have, the means to meet some part of the cost of

the services rendered to the person, the person shall pay the county an amount that

the person reasonably can be expected to pay.” This Court has previously stated,

however, that:

       [A]n indigent defendant may properly be required to pay his
       attorney fees only after the court makes an affirmative
       determination on the record in the form of a journal entry, that
       the defendant has, or reasonably may be expected to have, the
       means to pay all or some part of the cost of the legal services
       rendered to him. The court must then enter a separate civil


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       judgment for the attorney fees or any part thereof that the court
       finds the defendant has the ability to repay.

State v. Johnson, 3d Dist. No. 16-03-09, 2004-Ohio-1513, ¶50, quoting Galion v.

Martin (Dec. 12, 1991), 3d Dist. No. 3-91-06; State v. Burns (Mar. 15,1999), 3d

Dist. No. 9-98-21, at *5-6; State v. White (Apr. 21, 1998), 3d Dist. Nos. 3-97-18,

3-97-19, at *6. The trial court sub judice failed to make an affirmative finding of

Shaffer’s present or future ability to pay indigent counsel fees in its journal entry

of sentence; and therefore, the trial court erred in assessing indigent counsel fees.

Accordingly, we must remand this matter for resentencing for the trial court to

assess indigent counsel fees, if it determines those are still appropriate, in

accordance with the procedures adopted by this Court in Galion v. Martin and its

progeny.

       {¶21} Shaffer’s assignment of error is, therefore, sustained with regard to

the trial court’s imposition of indigent counsel fees and to that extent only.

       {¶22} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded
SHAW, J., concurs.

/jnc




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ROGERS, J., dissents.

       {¶23} I respectfully dissent from the opinion of the majority on the issue of

restitution.

       {¶24} I would first comment that I see no reason why this particular order

was granted. It appears clear from the record that the trial court was granting

restitution equal to and based on the previously granted civil judgment. If the civil

judgment was based on the same fraudulent conduct which gave rise to the case at

bar, which appears to be the State’s argument, that civil judgment would not be

dischargeable in bankruptcy. What benefit then is there to restating the judgment

as an order of restitution, which is simply another civil judgment?

       {¶25} But the greater problem is the fact that we do not know the basis for

the award of damages in the civil judgment. R.C. 2929.18(A)(1) provides that the

trial court may order restitution in an amount based on the victim's economic loss.

There is insufficient evidence in this case to determine that the amount of the civil

judgment is limited to the victim’s economic loss.

       {¶26} The majority comments that “[s]ince the victim is able to obtain a

civil judgment based upon the same economic loss calculated in a trial court’s

restitution order, we fail to see how the opposite – obtaining a restitution order

based upon a related civil judgment – is somehow impermissible.” To me the

distinction is obvious. A civil suit initiated after a criminal order of restitution



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Case No. 14-09-06



may include more than economic loss and may include additional economic losses

not recognized in the order of restitution. Also, the order of restitution may be

considered as a setoff against the victim’s total damages so that the same damages

are not awarded twice.

       {¶27} When an order of restitution is requested subsequent to a civil award

of damages, is the defendant permitted to raise the same defenses as in a civil

action? If new or additional economic losses are requested, is the defendant

permitted to argue that, since the new claims were not included in the civil case,

they were waived? Would the issue of damages be res judicata?

       {¶28} In this case, the State requested an order of restitution equal to the

civil judgment, thereby simply duplicating the award. This is an obvious abuse of

process and waste of judicial resources. When execution of these judgments is

attempted, more judicial resources will be wasted on the efforts to enforce and/or

defend two judgments based on the same injuries.

       {¶29} Because of the question of whether the civil judgment is limited to

the victim’s economic loss, and because there is no logical reason for restating the

civil judgment as an order of restitution, I would sustain the assignment of error as

to the order of restitution.




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