[Cite as State v. Roberts, 2014-Ohio-115.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99755




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  LATONYA ROBERTS
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-565707

        BEFORE: Celebrezze, J., Stewart, P.J., and Keough, J.

        RELEASED AND JOURNALIZED: January 16, 2014
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

          {¶1} Defendant-appellant, Latonya Roberts, appeals the judgment of the common

pleas court ordering her to pay an indefinite amount of restitution to the victim of her

criminal act. For the following reasons, we reverse and remand the matter for further

proceedings consistent with this opinion.

          {¶2} This is an appeal from a restitution order imposed as part of a sentence for

aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b) in which the victim

suffered serious physical harm. At the time of sentencing, the trial court had been given

no evidence of the precise amount of damages suffered by the victim. Nevertheless, the

trial court ordered restitution in an indefinite amount for payment of the victim’s medical

bills.1

          {¶3} Appellant now brings this timely appeal, challenging the trial court’s

restitution order.

                                      Law and Analysis

          {¶4} For the purposes of judicial clarity, we consider appellant’s first and second

assignments of error together. In her first assignment of error, appellant argues that the

trial court erred when it ordered restitution in an indefinite amount that would be

determined in the future. In her second assignment of error, appellant argues that the




        The trial court placed appellant under community control sanctions for a
          1

period of five years.
trial court erred in failing to hold an adequate restitution hearing when the amount of

restitution was never established.

       {¶5} On appeal, we review a lower court’s order of restitution for an abuse of

discretion. State v. Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271 (8th Dist.1995); see

also State v. Berman, 8th Dist. Cuyahoga No. 79542, 2002-Ohio-1277. An abuse of

discretion “implies that the court’s attitude is unreasonable, arbitrary, or unconscionable.”

 Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State

v. Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). However, appellant did not object

at her sentencing hearing to the order of restitution. Thus, she waived all but plain error.

 State v. Jarrett, 8th Dist. Cuyahoga No. 90404, 2008-Ohio-4868, ¶ 13, citing Marbury.

       {¶6} Crim.R. 52(B) provides that “plain error or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” However,

in order to prevail under a plain error analysis, the appellant bears the burden of

demonstrating that the outcome of the proceedings clearly would have been different but

for the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of

the syllabus.

       {¶7} R.C. 2929.18(A) allows a sentencing court, as part of a sentence, to impose

“restitution by the offender to the victim of the offender’s crime * * * in an amount based

on the victim’s economic loss.”      R.C. 2929.01(L) defines “economic loss” as “any

economic detriment suffered by the victim as a result of the commission of a felony and
includes any * * * medical cost * * * incurred as a result of the commission of the

felony.”

       {¶8} Prior to ordering restitution, however, a sentencing court must engage in a

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

to the loss suffered.”    State v. Borders, 12th Dist. Clermont No. CA2004-12-101,

2005-Ohio-4339, quoting Marbury, 104 Ohio App.3d 179, 661 N.E.2d 271.                   “The

amount of restitution must be supported by competent, credible evidence from which the

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

Gears, 135 Ohio App.3d 297, 300, 733 N.E.2d 683 (6th Dist.1999). “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. Peck, 6th

Dist. Sandusky No. S-12-046, 2013-Ohio-4835, ¶ 19.

       {¶9} In the instant case, the trial court ordered appellant to pay restitution to the

victim to cover the costs of medical bills. Appellant argues, however, and the state

concedes, that no competent or credible evidence was submitted from which the court

could discern the specific amount of restitution to a reasonable degree of certainty.

       {¶10} The trial court does not need to conduct a hearing to ascertain the

reasonableness of the restitution if there is enough evidence in the record to substantiate

the relationship of the offender’s criminal conduct with the amount of the victim’s loss.

State v. Brumback, 109 Ohio App.3d 65, 83, 671 N.E.2d 1064 (9th Dist.1996). In the

instant case, there is no dispute that the victim suffered severe injuries that required
extensive medical treatment. However, the record is devoid of any evidence regarding

the value of the economic loss suffered.2

       {¶11} Accordingly, we find that the trial court committed plain error in ordering an

indefinite amount of restitution without documentation or testimony evidencing the actual

economic loss suffered by the victim.

       {¶12} Appellant’s first and second assignments of error are sustained.

       {¶13} Based on the foregoing, the trial court’s order of restitution is reversed, and

the matter is remanded for an evidentiary hearing on the issue of restitution.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MELODY J. STEWART, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR




       2At
         the sentencing hearing, the trial court acknowledged that the victim had
not submitted documentation of her medical bills.
