 [Cite as State v. LeGrant, 2014-Ohio-5803.]




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

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 MICHAEL D. LEGRANT

         Defendant-Appellant




 Appellate Case No. 2013-CA-44

 Trial Court Case No. 13-CR-264

 (Criminal Appeal from
 (Common Pleas Court)
                                               ...........
                                               OPINION
                               Rendered on the 31st day of December, 2014.
                                               ...........

PAUL M. WATKINS, Atty. Reg. #0090868, Miami County Prosecutor’s Office, 201 West Main
Street, Safety Building, Troy, Ohio 45373
        Attorney for Plaintiff-Appellee

BRENT E. RAMBO, Atty. Reg. #0076969, Flanagan, Lieberman, Hoffman & Swaim, 15 West Fourth
Street, Suite 250, Dayton, Ohio 45402
        Attorney for Defendant-Appellant

                                               .............
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FAIN, J.

           {¶ 1}   Defendant-appellant, Michael D. LeGrant, appeals from his conviction and

 sentence for Aggravated Arson, in violation of R.C. 2909.02(A)(1), and for Aggravated Arson, in

 violation of R.C. 2909.02(A)(2).       LeGrant contends that the court abused its discretion by

 ordering restitution without considering whether the victims were compensated for the damage

 through insurance. LeGrant also contends that the court erred by ordering restitution without a

 finding as to whether LeGrant had the ability to pay. LeGrant finally contends that the court erred

 by failing to merge the two arson offenses, and that his attorney provided ineffective assistance of

 counsel..

           {¶ 2}    We conclude that the trial court did err on the issue of restitution. We also find

 that the court erred in failing to incorporate in its sentencing entry the statutory factors required for

 the imposition of consecutive sentences. Accordingly, that part of the judgment of the trial court

 awarding restitution is Reversed; the judgment of the trial court is Affirmed in all other respects;

 and this cause is Remanded for a hearing on the restitution issue, and for a nunc pro tunc entry

 incorporating in its judgment entry the consecutive-sentence findings the trial court made at the

 sentencing hearing.



                                  I. The Course of the Proceedings

           {¶ 3}   LeGrant started a fire in an apartment building that caused substantial property

 damage, and was the direct and proximate cause of personal injuries to several residents of the

 building. LeGrant pled guilty to two counts of Aggravated Arson. At the sentencing hearing, the

 trial court specifically referred to, and made a part of the record, a pre-sentence investigation
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report, five victim impact statements, a letter from the property insurance company, and an

estimate of “out of pocket” expenses from the property owner. Based on these records, the trial

court ordered LeGrant to pay restitution in the amount of $80,278.00 to Trent Grove, the owner of

the property, and in the amount of $2,880.65 to Candise Miller, one of the victims. At the

sentencing hearing, LeGrant did not object to, or dispute the amount of, the restitution order. The

court did not conduct a separate hearing on restitution. There is no testimony or other evidentiary

support in the record from the property owner or its insurer to verify the extent of the damage to

the building, the amount of damages that were covered by insurance, or the amount of uninsured

losses caused directly by LeGrant’s conduct.

       From his conviction and sentence, LeGrant appeals.



               II. The Trial Court Erred in Ordering Restitution in an Amount

                     Not Supported by Competent and Credible Evidence

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

               THE TRIAL COURT ERRED IN ITS ORDER OF RESTITUTION.

       {¶ 5}    LeGrant alleges that the amounts ordered for restitution are improper. The victim

impact statements, provided to the trial court as part of the PSI, did contain an itemization of

property losses incurred by the victim, Candise Miller. In the letter, Miller admitted that the

expense of rent and her rental deposit, in the sum of $761, was returned to her by her landlord.

Miller explained how she paid for the other expenses, but there was no evidence from which to

determine whether any of Miller’s other expenses were reimbursed by insurance or by any other

source. The document, which allegedly itemizes “out of pocket” expenses of the property owner,

Trent Grove, was not dated, signed, or verified by any person, and makes no reference to sums
                                                                                            4


covered by insurance or the amount of an insurance deductible, if any. The policy was not

contained in the record, and the letter from the insurance company contained no itemization of

losses and payments, no information about the deductible, or the amount of uninsured losses, if

any.

       {¶ 6}     We review a trial court's order of restitution under an abuse of discretion

standard. State v. Naylor, 2d Dist. Montgomery No. 24098, 2011-Ohio-960, ¶ 22. “Generally,

abuse of discretion occurs when a decision is grossly unsound, unreasonable, illegal, or

unsupported by the evidence.” State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-671, 959

N.E.2d 1082, ¶ 16 (2d Dist.); State v. Beechler, 2d Dist. Clark No. 09CA54, 2010-Ohio-1900, ¶

60–70. A decision is unreasonable if there is no sound reasoning process that would support that

decision. State v. Jones, 2d Dist. Montgomery Nos. 25315 & 25316, 2013-Ohio-1925, ¶ 32.

       {¶ 7}     R.C. 2929.18(A)(1) allows a trial court to order restitution to crime victims, as a

component of sentencing. The statute provides that the amount of restitution shall be “based on

the victim's economic loss.” Id.       The amount of the actual loss must be established with

reasonable certainty. State v. Williams, 34 Ohio App. 3d 33, 516 N.E.2d 1270 (2d Dist.1986).

The statute further provides that “the court may base the amount of restitution it orders on an

amount recommended by the victim, the offender, a pre-sentence 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.” R.C. 2929.18(A)(1).

       {¶ 8}    We have held that “[a] defendant who does not dispute an amount of restitution,
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request a hearing, or otherwise object waives all but plain error in regards to the order of

restitution.” State v. Ratliff, 194 Ohio App.3d 202, 2011-Ohio-2313, 955 N.E.2d 425, ¶ 9 (2d

Dist.). Since LeGrant did not object to the restitution order and did not request a restitution

hearing, until he raised it in this appeal, we must review the trial court’s restitution order under a

plain-error standard of review.    We have found plain error when three elements are met: 1) there

must be an error or deviation from a legal rule, 2) that error must be plain, defined as “an obvious

defect in the trial proceedings,” and 3) the error must have affected a “substantial right,” meaning

the error must have affected the ultimate outcome, and a correction is needed to “prevent a

manifest miscarriage of justice.”        State v. DeLong, 2d Dist. Montgomery No. 20656,

2005-Ohio-1905, ¶ 17, citing State v. Barnes, 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002).

       {¶ 9}    The legal rule at issue states, “[t]here must be competent, credible evidence in the

record to support the trial court's order of restitution ‘to a reasonable degree of certainty.’ The

amount of restitution requested should, if necessary, be substantiated through documentary or

testimonial evidence.” (Citations omitted.) State v. Hess, 2d Dist. Montgomery No. 24453,

2012-Ohio-961, ¶ 35.       The documents in the PSI report, relied on by the trial court do not

contain sufficient information from which the court could determine, within any degree of

certainty, the amount of the victims’ actual loss.

       {¶ 10} We also find that the lack of credible, competent evidence of the victims’ actual

losses is an obvious defect in the record, and affected the ultimate outcome. When an award of

restitution is not supported by such evidence, it is an abuse of discretion by the court that alters the

outcome of the proceeding, thus constituting plain error. State v. Alcala, 6th Dist. Sandusky No.

S-11-026, 2012-Ohio-4318, ¶ 30. The letter from the insurance company and an unverified

document allegedly from the property owner are the only two documents in the PSI report that
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support a judgment of $80,278.00. Without additional documentation to verify the extent of the

damage, the amount covered by insurance,1 and the amount of uninsured losses, the trial court did

not have sufficient evidence to support the amount of restitution to the property owner. It was

also an error for the order of restitution to the victim, Candise Miller, to include a rent deposit that

was reimbursed and therefore not an actual loss suffered by the victim.

       {¶ 11} LeGrant also alleges that the trial court failed to properly consider his ability to

pay the order of restitution. R.C. 2929.19(B)(6) creates a duty upon the trial court to “consider the

offender's present or future ability to pay” before imposing any financial sanctions under R.C.

2929.18. State v. Ratliff, 194 Ohio App. 3d 202, 2011-Ohio- 2313, 955 N.E.2d 425, ¶ 12 (2d Dist).

However, the statute establishes no particular factors for the court to take into consideration, nor is

a hearing necessary before making this determination. Id. A trial court may comply with R.C.

2929.19(B)(6) by considering a pre-sentence investigation report that includes information about

the defendant's age, health, education, and work history. Id.

       {¶ 12} The record does reflect that the court considered evidence from the PSI report, and

the statements made at the sentencing hearing, which included facts about LeGrant’s age, health,

education, work history and ability to work. Under these circumstances, we conclude that the

trial court did not fail to consider LeGrant's present or future ability to pay restitution. However,

we agree with LeGrant that the amount of the restitution ordered was not supported by sufficient

evidence of the victims’ actual losses. Accordingly, LeGrant’s First Assignment of Error is

sustained.



             III. The Two Counts of Aggravated Arson Are Not Subject to Merger.


         1
             German Mutual Insurance paid $345,592 in claims for damages for the losses occasioned by the fire.
                                                                                           7


          {¶ 13} LeGrant’s Second Assignment of Error is as follows:

                 THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING.

          {¶ 14} LeGrant contends that the court should have merged the two Aggravated Arson

convictions for purposes of sentencing, and also failed to make the requisite findings before

ordering consecutive sentences. Merger is a sentencing issue, so the defendant bears the burden

of establishing the necessary factors before he is entitled to the protection of the allied offenses

statute, R.C. 2941.25. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d

661, ¶ 18. The appellate review of an allied-offenses ruling is de novo. State v. Webb, 8th Dist.

Cuyahoga No. 98628, 2013–Ohio–699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482,

2012–Ohio–5699, 983 N.E.2d 1245, ¶ 28.

          {¶ 15} The Supreme Court of Ohio in State v. Johnson, 128 Ohio St. 3d 153,

2010-Ohio-6314, 942 N.E. 2d 1061, created a three-prong test to guide a court in deciding

whether to merge two allied offenses for sentencing purposes. First, in determining whether

offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is

possible to commit one offense and commit the other with the same conduct. Johnson at ¶ 48. If

the offenses correspond to such a degree that the conduct of the defendant constituting

commission of one offense constitutes commission of the other, then the offenses are of similar

import.     Johnson at ¶ 48. Secondly, if the multiple offenses can be committed by the same

conduct, then the court must determine whether the offenses were committed by the same conduct,

i.e., “a single act, committed with a single state of mind.” (Citations omitted). Johnson at ¶ 49.

Thirdly, if the court determines that the commission of one offense will never result in the

commission of the other, or if the offenses are committed separately, or if the defendant has a

separate animus for each offense, then, under R.C. 2941.25(B), the offenses will not merge.
                                                                                            8


Johnson at ¶ 51.

        {¶ 16}      LeGrant argues that his offenses should have been merged because he only set

one fire, and therefore it was possible that his single act of setting one fire could result, and did

result, in convictions for two counts of Aggravated Arson. Thus, the first prong of the Johnson

test was met because both offenses could be committed by a single act. The second prong of the

test is met by facts that support a finding that LeGrant did in fact commit both arson offenses with

a single act. However, the third prong requires a finding that LeGrant committed both offenses

with the same animus.

        {¶ 17}      At the sentencing hearing, the trial court did specifically find that LeGrant

committed the two offenses with separate animuses. LeGrant’s conviction for violating R.C.

2909.02(A)(1) established his intent to cause physical harm to other persons, and his conviction

for violating R.C. 2909.02(A)(2) established his intent to cause physical harm to an occupied

structure.   The trial court also acknowledged that the defendant’s conduct caused harm to

multiple victims.

        {¶ 18} In a similar case involving sentencing of a defendant for convictions of both R.C.

2909.02(A)(1) and R.C. 2909.02(A)(2) when the defendant only set one fire, the Eighth District

Court of Appeals held that the two offenses should not merge when the single act of setting a fire

causes harm to multiple victims and multiple properties. State v. Jones, 8th Dist. Cuyahoga No.

99703, 2014-Ohio-1634, ¶ 20, following State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, 776

N.E.2d 26. In State v. Crawley, the same court applied the three-prong Johnson test to a case

involving an arson conviction with multiple victims and held that separate victims alone

established a separate animus for each offense. State v. Crawley, 8th Dist. Cuyahoga No. 99636,

2014-Ohio-921, ¶ 41-43, appeal not allowed, 139 Ohio St.3d 1484, 2014-Ohio-3195, 12 N.E.3d
                                                                                           9


1229.

        {¶ 19}   In the case before us, LeGrant does not dispute that his single act of setting a

single fire caused damage to at least five families, who lost their home and personal property in

the fire, in addition to the loss suffered by the owner of the apartment building. LeGrant has not

met his burden of proving that the offenses he committed in violation of R.C. 2909.02(A)(1) and

R.C. 2909.02(A)(2) should be considered allied offenses for purposes of sentencing.

        {¶ 20}    We also reject LeGrant’s contention that the court erred in failing to identify on

the record the findings required by statute before imposing consecutive sentences. Pursuant to R.C

2929.14(C) (4), the court must make the following findings: 1) that consecutive service is

necessary to protect the public from future crime or to punish the offender, 2) that consecutive

sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger

the offender poses to the public, and 3) the offender committed one or more of the multiple

offenses while the offender was under specified types of court orders, or that at least two offenses

caused great or unusual harm such that no single prison term would adequately reflect the

seriousness of the offense, or that the offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the offender. The

trial court made these exact findings at the sentencing hearing, based on competent, credible

evidence in the record. The victim impact statements provide ample evidence that the offenses

caused great and unusual harm to multiple victims such that consecutive sentences were

appropriate.

        {¶ 21}   The trial court did not err in imposing consecutive sentences and refusing to

merge the two arson offenses, but the court is obligated to included these factors in the sentencing

order. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23. As we
                                                                                           10


recently held in State v. Mayberry, 2d Dist. Montgomery No. 26025, 2014-Ohio-4706, ¶ 34 it

will be necessary for the trial court to correct its sentencing entry to include the three statutory

findings in the entry. Therefore, upon remand, the trial court may issue a nunc pro tunc order and

entry with imposition of sentence that incorporates the statutory findings it made in ordering

consecutive sentences.

       {¶ 22} LeGrant’s Second Assignment of Error is overruled.

       IV. LeGrant Has Not Shown that but for his Counsel’s Ineffective Assistance,

       There Is a Reasonable Probability that the Results Would Have Been Different.

       {¶ 23} LeGrant’s Third Assignment of error is as follows:

                APPELLANT’S COUNSEL WAS INEFFECTIVE.

       {¶ 24} LeGrant contends that his trial attorney was ineffective because his attorney did

not fully explain to him, based on the merger of allied offenses statute, that additional charges

might not result in consecutive sentences. It is not disputed that LeGrant entered into a plea

agreement to plead guilty to two charges of Aggravated Arson at least in part to avoid the

possibility of being charged with additional counts of arson, based on harm to multiple victims.

       {¶ 25} To establish a claim for ineffective assistance of counsel, the defendant has the

burden of demonstrating that: 1) the performance of defense counsel was seriously flawed and

deficient, and 2) there is a reasonable probability that the result of the defendant's trial or legal

proceeding would have been different had defense counsel provided proper representation. State v.

Jones, 8th Dist Cuyahoga No. 99703, 2014-Ohio-1634, ¶ 8, citing Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).      See Strickland, at 694.

       {¶ 26}    In the case before us, LeGrant has not met his burden of demonstrating that his

attorney’s assistance was seriously flawed or that the outcome would likely have been different, if
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his attorney had given him different advice about the potential sentences for allied offenses. As we

discussed above, the trial court had a sufficient legal basis to impose consecutive sentences in this

case, as current law permits the court to impose consecutive sentences when the court finds that a

defendant acts with separate animuses for multiple offenses of arson. In other words, LeGrant’s

attorney cannot be faulted for having failed to advise him that any additional counts of arson he

might be charged with would not result in consecutive sentences. That advice would have been

questionable, if not wrong.

       {¶ 27} LeGrant’s Third Assignment of Error is overuled.



                                          V. Conclusion

       {¶ 28} LeGrant’s First Assignment of Error having been sustained, and his other

assignments having been overruled, that part of the judgment of the trial court awarding restitution

is Reversed; the judgment of the trial court is Affirmed in all other respects; and this cause is

remanded for further proceedings consistent with this opinion.

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



FROELICH, P.J., and HALL, J., concur.




Copies mailed to:

Paul M. Watkins
Brent E. Rambo
Hon. Christopher Gee
