[Cite as State v. Kennedy, 2012-Ohio-5215.]




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

STATE OF OHIO                                     :
                                                  :     Appellate Case No. 25037
        Plaintiff-Appellee                        :
                                                  :     Trial Court Case No. 11-CR-1268
v.                                                :
                                                  :
EXCO T. KENNEDY                                   :     (Criminal Appeal from
                                                  :     (Common Pleas Court)
        Defendant-Appellant                       :
                                                  :
                                               ...........

                                              OPINION

                           Rendered on the 9th day of November, 2012.

                                               ...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, Post
Office Box 972, 301 West Third Street, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MICHAEL C. THOMPSON, Atty. Reg. #0041420, 5 North Williams Street, Wright-Dunbar
Business Village, Dayton, Ohio 45402-2843
       Attorney for Defendant-Appellant


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

FAIN, J.

        {¶ 1}     Defendant-appellant Exco T. Kennedy appeals from an award of restitution, in

the amount of $1,660, as part of his sentence for Unauthorized Use of a Motor Vehicle. We
                                                                                             2


agree with Kennedy that a statement in a pre-sentence investigation report that $1,660

represents the Blue Book value of the property (a 2000 Ford Taurus) that was the basis for

Kennedy’s criminal act, without more, is insufficient to support the award.

         {¶ 2}   The award of 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.



                                I. The Course of Proceedings

         {¶ 3}   Kennedy was charged by indictment with one count of Grand Theft (auto), in

violation of R.C. 2913.02(A)(2), a felony of the fourth degree. Kennedy ultimately pled no

contest to the lesser-included offense of Unauthorized Use of a Motor Vehicle, in violation of

R.C. 2913.03(A), a misdemeanor of the first degree.

         {¶ 4}   The trial court scheduled a hearing for restitution and sentencing, but Kennedy

did not appear, and a capias was issued for his arrest. No restitution hearing was held. Some

time later, Kennedy was arrested, and he appeared for sentencing

         {¶ 5}   At the sentencing hearing, a different trial judge presided. He appears from

the record to have been under the impression that a restitution hearing was held, that Kennedy

did not appear at the hearing, and that the notes of the trial judge presiding at the restitution

hearing reflected $1,660 as the amount of restitution.

         {¶ 6}   Kennedy protested that there had been no restitution hearing, and objected to

the award. The trial court gave Kennedy the option of continuing the sentencing hearing and

letting the original trial judge hold the hearing. The trial court also gave Kennedy the option
                                                                                              3


of proceeding, in which event restitution would be ordered in the amount of $1,660, and later

petitioning the court “for adjustment.”

       {¶ 7}     After consultation with defense counsel, the following colloquy occurred:

                MS. VERNEKAR [representing Kennedy]: And, Your Honor, Kimberly

       Vernekar filling in for Mr. Hart. We are here today for probation reports. It’s my

       understanding the defendant has already tendered a plea of guilty1; is that – that’s

       correct? I’m not sure when that was.

                But we would proceed with sentencing today. We would just note for the

       record that we are objecting to the – the restitution amount. And if whatever goes to

       counsel of record, we’ll review what happens, because I don’t know if there was

       actually evidence presented at the hearing. We might petition the Court to amend that

       amount at a later date.

                THE COURT: Okay.             So, the record is clear, if the Court proceeds to

       sentencing, there is going to be an order of restitution in this matter as set forth in the

       pre-sentence investigation. There is a note in the file, and only a note, that indicates

       there was a restitution hearing on September 30th. The Court has no knowledge of

       whether or not that actually took place or not.

                If there is any adjustment of this matter, and I’m not saying there would be, you

       would have to file a petition with Judge Dankof to consider. But if we proceed today,

       then there would be an order of restitution as set forth in the pre-sentence

       investigation.

         1
         Kennedy actually pled no contest.
                                                                                           4


               The other option is if you would like to continue this matter until next week, I

       would grant you at least [sic] continuance back on Judge Dankof’s docket.

               MS. VERNEKAR: Mr. Kennedy, do you understand those options?

               THE DEFENDANT: Yes, I do.

               MS. VERNEKAR: How do you wish to proceed then?

               THE DEFENDANT: I would like to get it done today.

               MS. VERNEKAR: Your Honor, we’d just note our objection to the restitution.

               THE COURT: I would note that.

               But, sir, you understand the Court is going to order that and actually the

       amount is $1,660. Do you understand that, that I’m going to order?

               THE DEFENDANT: Yes.

               THE COURT: Okay. And you still wish to proceed; is that correct?

               THE DEFENDANT: Yes.

       {¶ 8}    The pre-sentence investigation report contains the following in the victim

impact statement under the heading “Economic Loss”: “$1,660. This amount represents the

Kelly Blue Book value of [the victim’s] 2000 Ford Taurus. This information has been

verified.” There is no other information in the pre-sentence investigation report concerning

restitution other than a recommendation that restitution be ordered in the amount of $1,660, to

be paid on a schedule of $30 a month.

       {¶ 9}    The trial court sentenced Kennedy to community control sanctions for a period

not to exceed five years, and ordered restitution in the amount of $1,660, to be paid on a

schedule of $30 per month. From the award of restitution, Kennedy appeals.
                                                                                                 5




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

               Not Supported by Proper Evidence at a Restitution Hearing

       {¶ 10} Kennedy’s sole assignment of error is as follows:

               THE TRIAL COURT VIOLATED THE APPELLANT’S DUE PROCESS

       RIGHTS AND ABUSED ITS DISCRETION IN AWARDING RESTITUTION THAT

       WAS NOT BASED ON ECONOMIC LOSS WHICH WAS A DIRECT AND

       PROXIMATE RESULT OF THE COMMISSION OF THE UNDERLYING

       OFFENSE OF THE APPELLANT.

       {¶ 11} Kennedy summarizes his argument as follows: “The trial court ordered the

Appellant to pay restitution of $1,660.00 without knowledge of a restitution hearing, and

consequently without knowledge of the economic loss and whether it was a direct and

proximate result of the commission of the crime.”

       {¶ 12} At the sentencing hearing, as can be seen from the colloquy quoted in Part I,

above, Kennedy was given the option of proceeding, or of waiting for the original trial judge

to consider, or reconsider, the issue of restitution. He elected to proceed to sentencing. But

by objecting to the amount of restitution, noting that it was not clear that evidence had been

presented at a hearing, Kennedy preserved that issue for appellate review.

       {¶ 13} The State cites State v. Williams, 34 Ohio App.3d 33, 516 N.E.2d 1270

(2d Dist.1986), which we find instructive. In that case, at 34-35, we reversed an award of

restitution where the amount of restitution was based upon a victim impact statement prepared
                                                                                           6


by the county probation department:



              The victim impact statement involved in the present action failed to itemize the

       economic loss suffered as a result of the offense. The only evidence of loss was a

       statement by the victim's father to the probation officer that hospital, medical and

       funeral expenses totalled between $9,000 and $10,000.

              We find the restitution order sub judice cannot stand because there must be a

       due process ascertainment that the amount of restitution bears a reasonable relationship

       to the loss suffered. See State v. Trivedi (1982), 8 Ohio App.3d 412, 416, 8 OBR 534,

       539, 457 N.E.2d 868, 873.

              The sums claimed were never identified with certainty prior to the order of

       restitution. The figures presented to the court were simply estimated. This fact is

       evidenced by the $1,000 range in the sum representing the actual losses.

              This court is not disputing that substantial economic loss was suffered by the

       victim's family as a result of the tragic incident. However, the types of losses claimed

       could readily have been substantiated by submission of bills or statements showing

       that the expenses were incurred. In many instances, the bills or statements could be

       attached to the victim impact statement, where one is prepared. See State v. D'Andrea

       (Dec. 8, 1982), Hamilton App. No. C-820036, unreported.

              Similarly, as in the case of demonstrating medical and funeral expenses

       incurred in personal injury or wrongful death actions, the bills or statements

       themselves would be prima facie evidence of the reasonableness of the expenses
                                                                                                       7


        incurred. See R.C. 2317.421.

                  Accordingly, we find the trial court abused its discretion in ordering restitution

        in an amount which had not been determined to bear a reasonable relationship to the

        actual losses suffered. The order of restitution is set aside and we remand the cause

        for resentencing according to law and consistent with this decision.

        {¶ 14} In the case before us, we do not know where the information concerning the

amount of the victim’s loss came from other than that it may have come from the “Kelly Blue

Book,” and it “has been verified.” Elsewhere in the pre-sentence investigation report, it is

stated that the victim “stated he never returned the vehicle.”            Kennedy never had an

opportunity to rebut this at a hearing, although the pre-sentence investigation report quotes

him as saying that “the victim and her friend took the vehicle while he was in jail and junked

the car.”

        {¶ 15} More importantly, Blue Book values depend upon the condition of the vehicle.

 There is no indication in the victim impact statement of the condition that was used to

generate the Blue Book value. The report of the offense indicates that Kennedy obtained the

car from the victim for the expressed purpose of having it repaired. Kennedy himself is

quoted in the pre-sentence investigation report as saying that the car “didn’t work,” and “was a

piece of junk.”

        {¶ 16} The State also cites State v. Warner, 55 Ohio St.3d 31, 564 N.E.2d 18 (1990),

for the proposition that: “An order of restitution must be supported by competent, credible

evidence in the record.” Significantly, in that case the trial court conducted a hearing on the

issue of restitution and took evidence. Id., at 69.
[Cite as State v. Kennedy, 2012-Ohio-5215.]
          {¶ 17} We agree with Kennedy that the restitution in this case was awarded without

due process, not having been based upon competent and credible evidence at a hearing.

Kennedy’s sole assignment of error is sustained.



                                              III. Conclusion

          {¶ 18} Kennedy’s sole assignment of error having been sustained, the award of

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 issue of restitution.

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

DONOVAN, J., concurs.

HALL, J., concurring:

          {¶ 19} The defendant’s original “sentencing and hearing on restitution” was set for

9:30AM on 9/30/11 by an order of appearance filed on September 2, 2012. The defendant

failed to appear. Our record does not demonstrate that a hearing on restitution was conducted

at that time. If it had been, I might be inclined to conclude that the defendant’s voluntary

absence waived his ability to now challenge the restitution order.

          {¶ 20} However, the trial court was also constrained by statute. R.C.2929.18(A)(1)

states:

          If the court imposes restitution, at sentencing, the court shall determine the

          amount of restitution to be made by the offender. * * * [T]he court may base

          the amount of restitution it orders on * * * a presentence investigation report

          * * *. If the court decides to impose restitution, the court shall hold a hearing

          on restitution if the offender, victim, or survivor disputes the amount.
[Cite as State v. Kennedy, 2012-Ohio-5215.]
        {¶ 21} This raises three issues. First, I don’t believe an evidentiary hearing on the

amount of restitution is required to be conducted at sentencing as long the defendant has had

an opportunity to be heard, and the court indicates, and imposes, the determined amount of

restitution at sentencing. Second, because restitution must be imposed at sentencing and

because everyone concerned may not know whether there will be a dispute as to the amount

until sentencing, and because witnesses or information may not be readily available, I can

envision that the court could proceed with sentencing, impose restitution in the full amount

requested and reserve to the defendant, victim or survivor the right to have a subsequent

hearing, before journalization of judgment, for presentation of evidence to correct the

restitution amount. Otherwise sentencing could be delayed or frustrated simply by the

defendant disputing the amount at the last instant. Third, if the court is statutorily permitted

to set the amount of restitution based on a presentence report, and if that report refers to Blue

Book value for loss of an automobile (which would otherwise be admissible under Evid. R.

803(17)), that information alone is sufficient to set restitution if not disputed. Moreover, the

rules of evidence do not even apply to a restitution hearing. Evid. R. 101(C).

        {¶ 22} Nonetheless, in the final analysis, the defendant disputed the amount of

restitution at the sentencing and by statute (R.C.2929.18(A)(1)) the sentencing court was

required to conduct a “hearing” thereon. Accordingly I concur with my colleagues.

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

Copies mailed to:

Mathias H. Heck, Jr.
Michele D. Phipps
Michael C. Thompson
Hon. Steven K. Dankof
