 [Cite as State v. Courtney, 2014-Ohio-1659.]




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

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 BARBARA COURTNEY

         Defendant-Appellant



 Appellate Case No.       2013-CA-73

 Trial Court Case No. 2013-CR-262


 (Criminal Appeal from
 (Common Pleas Court)
                                                ...........

                                                OPINION

                                 Rendered on the 18th day of April, 2014.

                                                ...........

LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, 4th Floor, P.O. Box 1608, Springfield, Ohio 45501
       Attorney for Plaintiff-Appellee


ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706, Dayton,
                                                                                              2


Ohio 45402
       Attorney for Defendant-Appellant

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

WELBAUM, J.

        {¶ 1}    Defendant-appellant, Barbara Courtney, appeals from her conviction and

 sentence in the Clark County Court of Common Pleas following her guilty plea to theft in

 violation of R.C. 2913.02(A)(2). For the reasons outlined below, the judgment of the trial court

 is affirmed.

        {¶ 2}    On June 27, 2013, Barbara Courtney pled guilty to on one count of theft in

 violation of R.C. 2913.02(A)(2), a felony of the fourth degree. The charge arose from Courtney

 stealing $44,726 from her employer between August 1, 2008 and March 12, 2013. At the time

 of her offense, Courtney was employed as the office manager at Coachworks Auto Sales

 (Coachworks), a used car lot in Springfield, Ohio. As office manager, Courtney was responsible

 for customer accounts, which required her to handle large sums of money. She had been

 employed with Coachworks for 20 years and, according to her employer, “[s]he was in a position

 of trust * * *.” Disposition Trans. (July 18, 2013), p. 6, ln. 15. At the time of her offense,

 Courtney was 56 years old and had no prior criminal record.

        {¶ 3}    The trial court held a sentencing hearing on July 18, 2013. At the hearing, the

 trial court found that under R.C. 2929.13(B)(1)(b)(viii), Courtney held a position of trust that

 facilitated her theft offense. As a result of this finding, the trial court imposed a one-year prison

 term as opposed to community control sanctions. In addition, the trial court ordered Courtney to

 pay restitution in the amount of $44,726, despite acknowledging that her ability to pay did not

 seem promising.      Courtney now appeals from her conviction and sentence, raising four
                                                                                              3


assignments of error.



                                      Assignment of Error No. 1

        {¶ 4}    Courtney’s First Assignment of Error is as follows:

        BARBARA COURTNEY’S PLEA IS INVALID.

        {¶ 5}    Under this assignment of error, Courtney contends that her guilty plea is invalid

because the trial court failed to strictly comply with the requirements of Crim. R. 11(C)(2)(c)

during her plea hearing. She bases her argument on the fact that the trial court informed her that

she had the right to a “trial” instead of the right to a “jury trial.”

        {¶ 6}    Crim.R. 11(C)(2)(c) provides that the court may not accept a plea of guilty or no

contest without first addressing the defendant personally and doing all the following:

        Informing the defendant and determining that the defendant understands that by

        the plea the defendant is waiving the rights to jury trial, to confront witnesses

        against him or her, to have compulsory process for obtaining witnesses in the

        defendant’s favor, and to require the state to prove the defendant’s guilt beyond a

        reasonable doubt at a trial at which the defendant cannot be compelled to testify

        against himself or herself.

        {¶ 7}    “The rights enunciated in Crim.R. 11(C)(2)(c) are constitutional in nature."

State v. Perkins, 2d Dist. Montgomery No. 22956, 2010-Ohio-2640, ¶ 42. In State v. Veney, 120

Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, the Supreme Court of Ohio “reaffirmed that

strict, or literal, compliance with Crim.R. 11(C)(2)(c) is required when advising the defendant of

the constitutional rights he is waiving by pleading guilty or no contest.” State v. Barker, 129
                                                                                                  4


Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 15 citing Veney at ¶ 18. Therefore, a trial

court must “orally advise a defendant before accepting a felony plea that the plea waives * * * the

right to a jury trial * * *.” Veney at ¶ 31.

        {¶ 8}    “When a trial court fails to strictly comply with this duty, the defendant’s plea is

invalid.” Id. However, “a trial court can still convey the requisite information on constitutional

rights to the defendant even when the court does not provide a word-for-word recitation of

[Crim.R. 11(C)(2)(c)], so long as the trial court actually explains the rights to the defendant.” Id.

at ¶ 27. Moreover, “an alleged ambiguity during a Crim.R. 11 oral plea colloquy may be

clarified by reference to other portions of the record, including the written plea, in determining

whether the defendant was fully informed of the right in question.” Barker at ¶ 25.

        {¶ 9}    At the plea hearing in this case, the trial court advised Courtney that she had “the

right to a trial,” and explained that: “At that trial you would have the right to require the State to

prove beyond a reasonable doubt each and every element of the offense to which you are pleading

guilty, and you could only be convicted upon the unanimous verdict of a jury.” (Emphasis

added.) Plea Trans. (June 27, 2013), p. 7, ln. 2-9. Courtney confirmed her understanding of

these rights, thereby indicating that she knew if she went to trial, her conviction would depend on

a jury verdict. Because an average person of Courtney’s age and intelligence would know that a

trial requiring a “unanimous verdict of a jury” to convict necessitates a jury trial, we conclude

that the trial court sufficiently explained her right to a jury trial during its plea colloquy.

        {¶ 10} Furthermore, even if we had found that the trial court’s explanation of Courtney’s

right to a jury trial was ambiguous, which we do not, the written plea form specifically referenced

the right. The written plea form states: “I understand by pleading guilty I give up my right to a
                                                                                           5


jury trial * * *.” Plea of Guilty (June 27, 2013), Clark County Court of Common Pleas Case No.

2013-CR-0262, Docket No. 11, p. 2. Accordingly, Courtney was fully informed of her right to a

jury trial.

        {¶ 11} For the foregoing reasons, we conclude that the trial court strictly complied with

Crim.R. 11(C)(2)(c) when it informed Courtney of her right to a jury trial and, therefore, her plea

is valid. Courtney’s First Assignment of Error is overruled.



                               Assignment of Error Nos. 2 and 3

        {¶ 12} For purposes of convenience, we will review Courtney’s Second and Third

Assignments of Error together. They are as follows:

               II.    BARBARA COURTNEY’S SENTENCE IS CONTRARY TO

                      LAW.

               III.   THE     TRIAL     JUDGE      ABUSED       HIS   DISCRETION        IN

                      SENTENCING BARBARA COURTNEY TO PRISON.

        {¶ 13} Under these assignments of error, Courtney argues that her one-year prison

sentence is contrary to law because the trial court erroneously concluded that she held a “position

of trust” under R.C. 2929.13(B)(1)(b)(viii). She claims that the trial court interpreted “position

of trust” too broadly and that it should have sentenced her to community control sanctions

pursuant to R.C. 2929.13(B)(1)(a).     Courtney also claims that even if this court finds her

sentence is not contrary to law, the trial court abused its discretion in sentencing her to prison

given that she had no prior criminal record, admitted guilt and remorse, and confirmed that she

would attempt to repay her former employer.
                                                                                             6




                              Felony Sentencing Standard of Review

       {¶ 14} In State v. Rodeffer, 2013-Ohio-5759, __N.E.2d__ (2d Dist.), this court adopted

R.C. 2953.08(G)(2) as the appellate standard of review for felony sentences. Id. at ¶ 29. R.C.

2953.08(G)(2) states, in pertinent part, that:

       The appellate court may increase, reduce, or otherwise modify a sentence that is

       appealed under this section or may vacate the sentence and remand the matter to

       the sentencing court for resentencing. The appellate court’s standard for review is

       not whether the sentencing court abused its discretion. The appellate court may

       take any action authorized by this division if it clearly and convincingly finds

       either of the following:

       (a)     That the record does not support the sentencing court’s findings under

               division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

               section 2929.14, or division (I) of section 2929.20 of the Revised Code,

               whichever, if any, is relevant;

       (b)     That the sentence is otherwise contrary to law. (Emphasis added.)

       {¶ 15} We also observed in Rodeffer that:

       “the clear and convincing standard used by R.C. 2953.08(G)(2) is written in the

       negative. It does not say that the trial judge must have clear and convincing

       evidence to support its findings. Instead, it is the court of appeals that must

       clearly and convincingly find that the record does not support the court’s

       findings.” * * * “In other words, the restriction is on the appellate court, not the
                                                                                            7


       trial judge. This is an extremely deferential standard of review.” Rodeffer at ¶ 31,

       quoting State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).



                             The Record Supports the Trial Court’s

                                Findings Under R.C. 2929.13(B)

       {¶ 16} Initially, Courtney claims that the trial court erred in sentencing her to prison as

opposed to community control sanctions, because the court incorrectly found that she held a

“position of trust” under R.C. 2929.13(B)(1)(b)(viii). We disagree.

       {¶ 17} R.C. 2929.13(B)(1)(a) instructs a sentencing court to sentence an offender who

pleads guilty to a felony of the fourth or fifth degree that is not an offense of violence or a

qualifying assault offense to community control sanctions for at least one year if certain

conditions are met. However, section (B)(1)(b) of the statute also provides 11 circumstances or

exceptions in which the trial court has discretion to sentence such an offender to prison as

opposed to community control. One of those circumstances is if:

       The offender held a public office or position of trust, and the offense related to

       that office or position; the offender’s position obliged the offender to prevent the

       offense or to bring those committing it to justice; or the offender’s professional

       reputation or position facilitated the offense or was likely to influence the future

       conduct of others. R.C. 2929.13(B)(1)(b)(viii).

       {¶ 18} In State v. Massien, 125 Ohio St. 3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, the

Supreme Court of Ohio explained the circumstances under which a person holds a “position of

trust” as that phrase was used in former R.C. 2929.13(B)(1)(d). We note that former R.C.
                                                                                           8


2929.13(B)(1)(d) contains the exact same language as R.C. 2929.13(B)(1)(b)(viii), therefore,

Massien is applicable to the instant matter. Per Massien:

        A person holding a “position of trust” * * * is not limited to public officials and

       public servants. However, it also does not apply to all positions of trust held by

       private individuals. Rather, a private individual holds a position of trust only if

       he or she occupies a special relationship of trust and confidence equivalent to a

       fiduciary relationship. (Emphasis added.) Massien at ¶ 2.

       {¶ 19} The Supreme Court also observed in Massien the following with respect to

fiduciary relationships:

       “ ‘A “fiduciary relationship” is one in which special confidence and trust is

       reposed in the integrity and fidelity of another and there is a resulting position of

       superiority or influence, acquired by virtue of this special trust.’ ” Stone v. Davis

       (1981), 66 Ohio St.2d 74, 78, 20 O.O.3d 64, 419 N.E.2d 1094, quoting In re

       Termination of Pratt, 40 Ohio St.2d at 115, 69 O.O.2d 512, 321 N.E.2d 603. “A

       ‘fiduciary’ has been defined as ‘ “a person having a duty, created by his

       undertaking, to act primarily for the benefit of another in matters connected with

       his undertaking.” ’ ” (Emphasis Sic.) Strock v. Pressnell (1988), 38 Ohio St.3d

       207, 216, 527 N.E.2d 1235, quoting Haluka v. Baker (1941), 66 Ohio App. 308,

       312, 20 O.O. 136, 34 N.E.2d 68 * * *. “A fiduciary relationship need not be

       created by contract; it may arise out of an informal relationship where both parties

       understand that a special trust or confidence has been reposed.” Stone, 66 Ohio

       St.2d at 78, 20 O.O.3d 64, 419 N.E.2d 1094. Massien at ¶ 35.
                                                                                             9


       {¶ 20} With respect to whether employees are fiduciaries to their employers, the

Supreme Court noted that: “Although some employees may have fiduciary relationships with

their employers, ‘[n]ot all employees are fiduciaries.’ ”        Massien, 125 Ohio St. 3d 204,

2010-Ohio-1864, 926 N.E.2d 1282 at ¶ 37, quoting Laurel Valley Oil Co. v. 76 Lubricants Co.,

154 Ohio App.3d 512, 2003-Ohio-5163, 797 N.E.2d 1033, ¶ 40 (5th Dist.). For a fiduciary

relationship to exist there needs to be “ ‘ “more than the ordinary relationship of employer and

employee.” ’ ” Id., quoting State ex rel. Charlton v. Corrigan, 36 Ohio St.3d 68, 71, 521 N.E.2d

804 (1988), quoting In re Termination of Pratt, 40 Ohio St.2d 107, 114, 321 N.E.2d 603 (1974).

       {¶ 21} “In determining whether a fiduciary relationship exists between an employee and

employer, ‘emphasis should be placed upon whether the assigned job duties require, as essential

qualifications over and above technical competency requirements, a high degree of trust,

confidence, reliance, integrity and fidelity.’ ” Id., quoting Charlton at syllabus. “Job duties that

require a great degree of discretion support the existence of a fiduciary relationship, whereas

assigned duties of a routine character do not involve the degree of discretion or trust necessary to

be considered a fiduciary.” (Citation omitted.) Id. “A further consideration involves whether

the employee’s responsibility includes ‘daily discretionary decisions’ affecting persons served by

the employer that require the employee to be ‘of higher than normal reliability.’ ” Id., quoting

Charlton at 73.

       {¶ 22} The Supreme Court concluded in Massien that a nurse employed by a hospital

does not have a fiduciary relationship with the hospital given that nurses do not occupy a position

of discretion and, therefore, are not in a “position of trust” for purposes of R.C. 2929.13(B)(1)(d).

 Id. at ¶ 40-41. After Massien, this court concluded in State v. Branch, 2d Dist. Montgomery
                                                                                            10


No. 25261, 2013-Ohio-2350, that a defendant who stole pieces of jewelry from a family who

employed her to do housework over a holiday season was also not in a “position of trust” with

her employers. Id. at ¶ 2, 17.

         {¶ 23} In the present case, however, Courtney was the office manager of a used car

company that had employed her for 20 years. She started as a secretary, then as a salesperson,

and was later promoted to officer manager. Courtney was in charge of customer accounts and

used accounting software to track the company’s accounts and expenses.               The customers

typically paid the company directly in cash, so Courtney also handled large sums of money and

made bank deposits. In a letter to the court, Courtney's former employer advised that she “was

in a position of trust and had been for some time.” Disposition Trans. (July 18, 2013), p. 6, ln.

15-16.

         {¶ 24} Based on the foregoing, we do not clearly and convincingly find that the record

does not support the trial court’s finding that Courtney was in a “position of trust” that facilitated

her offense. The record establishes that Courtney was in a position that required higher than

normal reliability. Her responsibilities and access to large sums of money required a high degree

of discretion and trust from her former employer, which translates to a fiduciary relationship.

Because of the employer’s trust and reliance upon her in handling its money, Courtney was able

to steal $44,726. Accordingly, the record establishes that she was in a “position of trust” as

contemplated under R.C. 2929.13(B)(1)(b)(viii).



                      Courtney’s Sentence Is Not Otherwise Contrary to Law

         {¶ 25} Next, Courtney argues that her one-year prison sentence is contrary to law. “[A]
                                                                                            11


sentence is not contrary to law when the trial court imposes a sentence within the statutory range,

after expressly stating that it had considered the purposes and principles of sentencing set forth in

R.C. 2929.11, as well as the factors in R.C. 2929.12.” Rodeffer, 2013-Ohio-5759, __N.E.2d__

at ¶ 32, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.

Additionally, a sentence is not contrary to law if during the sentencing hearing a trial court fails

to cite the purposes and principles of sentencing of R.C. 2929.11 or the factors of 2929.12, but

does state in the final judgment entry that it had “ ‘considered the record, oral statements, any

victim impact statement and presentence report prepared, as well as the principles and purposes

of sentencing under Ohio Revised Code Section 2929.11, and balanced the seriousness and

recidivism factors [under] Ohio Revised Code Section 2929.12.’ ” State v. Parker, 193 Ohio

App.3d 506, 2011-Ohio-1418, 952 N.E.2d 1159, ¶ 20 (2d Dist.), quoting State v. Miller, 2d Dist.

Clark No. 09CA28, 2010-Ohio-2138, ¶ 43.

       {¶ 26} In this case, we have already concluded that the record established that Courtney

was in a “position of trust,” which, pursuant to R.C. 2929.(B)(1)(b)(viii), gave the trial court

discretion to impose a prison sentence as opposed to community control sanctions. Furthermore,

Courtney’s one-year prison sentence falls within the statutory range for theft under R.C.

2912.02(A)(2), a fourth-degree felony. See R.C. 2929.14(A)(4).

       {¶ 27} Moreover, the trial court expressly stated in the Judgment Entry of Conviction

that it “considered the record, oral statements of counsel, the defendant’s statement, and the

principles and purposes of sentencing under Ohio Revised Code Section 2929.11, and then

balanced the seriousness and recidivism factors under Ohio Revised Code Section 2929.12.”

Judgment Entry of Conviction (July 19, 2013), Clark County Court of Common Pleas Case No.
                                                                                            12


2013-CR-262, Docket No. 13, p. 1. The court also noted that it had considered the presentence

investigation report. Id.

       {¶ 28} For the foregoing reasons we do not clearly and convincingly find that

Courtney’s prison sentence is contrary to law.          Given that there is evidence in the record

supporting the trial court’s “position of trust” finding under R.C. 2929.13(B)(1)(b)(viii), and

Courtney’s prison sentence is not otherwise contrary to law, we conclude that the trial court did

not err in sentencing Courtney to one year in prison.

       {¶ 29} Courtney’s Second and Third Assignments of Error are overruled.



                                   Assignment of Error No. 4

       {¶ 30} Courtney’s Fourth Assignment of Error is as follows:

       THE TRIAL JUDGE ERRED BY ORDERING BARBARA COURTNEY TO

       PAY $44,726 IN RESTITUTION.

       {¶ 31} Under this assignment of error, Courtney contends that the trial court erred in

ordering her to pay restitution given that there is nothing in the record indicating that she has the

present or future ability to pay. This argument lacks merit.

       {¶ 32} Under R.C. 2929.18(A)(1), a trial court is authorized to order a defendant

convicted of a felony offense to pay restitution to the victim of the offense for the amount of any

economic loss the victim suffered as a result. We note that Courtney never objected to the trial

court’s order of restitution; therefore, she has waived all but plain error as permitted by Crim.R.

52(B). See State v. Hill, 2d Dist. Montgomery No. 23343, 2010-Ohio-2508, ¶ 6. “To prevail

under the plain error standard, an appellant must demonstrate both that there was an obvious
                                                                                          13


error in the proceedings and that but for the error, the outcome of the trial clearly would have

been otherwise.” State v. Turner, 2d Dist. Montgomery No. 24421, 2011-Ohio-6714, ¶ 8, citing

State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 62.

       {¶ 33} We review an order of restitution under an abuse of discretion standard. State v.

Collins, 2d Dist. Montgomery Nos. 21510 and 21689, 2007-Ohio-5365, ¶ 13. “A trial court

abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.”

 (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶

34. An abuse of discretion includes a situation in which a trial court did not engage in a “

‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d

528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50

Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A trial court abuses its discretion in ordering

restitution in an amount that was not determined to bear a reasonable relationship to the actual

loss suffered.” Collins at ¶ 13, citing State v. Williams, 34 Ohio App.3d 33, 35, 516 N.E.2d

1270 (2d Dist.1986).

       {¶ 34} “An order of restitution must be supported by competent, credible evidence in the

record.” Id. at ¶ 12, citing State v. Warner, 55 Ohio St.3d 31, 69, 564 N.E.2d 18 (1990).

Furthermore, “ ‘[a] sentence of restitution must be limited to the actual economic loss caused by

the illegal conduct for which the defendant was convicted.’ ” Id., quoting State v. Banks, 2d

Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 5. “ ‘Implicit in this principle is that the

amount claimed must be established to a reasonable degree of certainty before restitution can be

ordered.’ ” Id., quoting State v. Golar, 11th Dist. Lake No. 2002-L-092, 2003-Ohio-5861, ¶ 9.

       {¶ 35} Pursuant to R.C. 2929.19(B)(5), a trial court is required to consider the
                                                                                           14


defendant’s present and future ability to pay before it imposes restitution under R.C.

2929.18(A)(1). State v. Jennings, 2d Dist. Montgomery No. 24559, 2012-Ohio-1229, ¶ 6. “[A]

trial court is not required to expressly state that it considered [a defendant’s] ability to pay a

fine.” State v. Parker, 2d Dist. Champaign No. 03CA0017, 2004-Ohio-1313, ¶ 42. Under

appropriate circumstances, a reviewing court may infer that a trial court considered the issue. Id.

         {¶ 36} In this case, the record establishes that       Courtney stole $44,726 from her

former employer. The loss amount was established with reasonable certainty, as Courtney

admitted to stealing that sum at the plea hearing. Therefore, $44,726 represents the actual

economic loss caused by Courtney’s illegal conduct.         Accordingly, the restitution order of

$44,726 bears a reasonable relationship to the loss suffered.

         {¶ 37} Additionally, the record indicates that the trial court considered Courtney’s

present and future ability to repay the $44,726.        The trial court reviewed the presentence

investigation report and also asked Courtney at sentencing: “How are you going to pay

[$44,726]?” Disposition Trans. (July 18, 2013), p. 5, ln. 14-15. In response, Courtney stated:

“I could try to get a job, you know, and I filed for social security * * * I have been looking for a

job ever since I got fired.” Id. at 5, ln. 16-20.    The trial court then briefly mentioned that “it

[didn’t] sound too promising that [Courtney would] be able to pay the money back.” Id. at 5, ln.

21-22.

         {¶ 38} However, the record also establishes that Courtney was gainfully employed for

20 years working in various positions including a secretary, sales person, and office manager.

While Courtney’s criminal record and one-year prison term will hamper her ability to obtain

employment, she did not argue that she would be unemployable, but instead, insisted that she
                                                                                       15


would try to repay her former employer. Her skills are indicative of employability, therefore we

find no error, let alone plain error, in the trial court’s restitution order.

        {¶ 39} Courtney’s Fourth Assignment of Error is overruled.



                                               Conclusion

        {¶ 40} Having overruled Courtney’s four assignments of error, the judgment of the trial

court is affirmed.




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

HALL, J., concurs.

FROELICH, P.J., concurring.
       I concur in judgment, and would find that the sentence was not an abuse of discretion
pursuant to my concurring opinion in Rodeffer, 2013-Ohio-5759.



Copies mailed to:

Lisa M. Fannin
Robert Alan Brenner
Hon. Douglas M. Rastatter
16
