         [Cite as State v. Daniels, 2015-Ohio-5348.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-150042
                                                       TRIAL NO. 14CRB-1691
        Plaintiff-Appellee,                        :

  vs.                                              :       O P I N I O N.

LARRY DANIELS,                                     :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed from is: Affirmed as Modified

Date of Judgment Entry on Appeal: December 23, 2015


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}   Defendant-appellant Larry Daniels appeals from the judgment of the

Hamilton County Municipal Court convicting him of theft after a plea of guilty. As

part of his sentence, the trial court ordered Daniels to pay restitution in the amount

of $1950 to the owner of the apartment building where the theft occurred.

       {¶2}   Daniels raises five assignments of error. He argues that his plea was

not knowingly, intelligently, and voluntarily entered, because there was no

agreement on the facts and because the court did not inform him of the amount of

restitution he would be required to pay.      He also challenges the imposition of

restitution as a financial sanction and the amount of restitution imposed. For the

reasons that follow, we affirm the trial court’s imposition of restitution but modify

the amount.

                    I. Background Facts and Procedure

       {¶3}   Daniels was charged with criminal damaging, criminal trespass, and

theft in a misdemeanor indictment. These charges related to acts occurring on

January 10, 2014, inside an apartment building owned by Roy Jason. Daniels was

employed to do maintenance work inside the apartment building and also lived in an

apartment in the building. The theft count, as set forth in the indictment, involved

unspecified “business property,” and because the offense was charged as a first-

degree misdemeanor, the value of the property was alleged to be an amount no more

than $1000.

       {¶4}   The city and Daniels reached an agreement providing that Daniels

would plead guilty to the theft offense in exchange for the dismissal of the other




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counts.   At the plea hearing, the trial court advised Daniels that the maximum

penalty for the theft was 180 days in jail and up to $1000 in fines.

       {¶5}   The prosecutor read the facts and alleged that on January 10, 2014,

Daniels was observed removing “refrigerators, sinks, pipes, and other materials”

from inside the apartment building without permission of the owner and that some

of those items were found strewn around the building but that other items had not

been recovered. Defense counsel interrupted and warned the court that the plea was

in jeopardy. He claimed that the prosecutor had indicated in plea negotiations that

the items that Daniels had been involved in removing had been recovered on the

property, as Daniels claimed that he was in the process of taking the items but did

not ultimately take anything from the premises. The court then asked the state if it

were seeking restitution. The prosecutor replied that the state would be seeking

restitution, but that it would leave the issue for the court to decide at a restitution

hearing at which Jason would testify.

       {¶6}   Based on the prosecutor’s reply, the court then told defense counsel

that some restitution might be ordered based on the outcome of the restitution

hearing and asked if there was still a plea agreement. Defense counsel again stated

that his understanding was that Daniels did not get away with any property, but

some property may have been damaged in Daniels’s attempt to remove it. Counsel

also clarified that Daniels was not admitting to taking any items on dates other than

January 10, 2014. The court reiterated that there would be a restitution hearing to

resolve the issue of the proper amount of restitution. Defense counsel expressed

agreement. The court then accepted Daniels’s guilty plea to the offense of theft, and

noted that the amount of restitution was in dispute.




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       {¶7}   After accepting the plea, the court immediately moved to sentencing.

During allocution, Daniels told the court that he “didn’t take anything.” The court

reminded Daniels that he had just pleaded guilty to theft and that he committed a

theft by exerting control over property that was not his, even if he may not have

successfully removed the property from the building. The investigating officer then

informed the court that to obtain scrap metal, Daniels had damaged sinks and

removed items from the apartments. Jason, the property owner, addressed the court

and said that he had no insurance to cover the loss and that he had not yet

determined the amount of his loss.

       {¶8}   The court then sentenced Daniels to 180 days in jail, credited him with

the 30 days that he had served, suspended the remaining 150 days, and placed him

on community control for one year. Daniels was also ordered to pay restitution in an

amount to be determined at a restitution hearing.

       {¶9}   At the restitution hearing, held a month later, Jason testified that had

inventoried the premises of his apartment building about a week before Daniels was

caught removing property. He said his loss from the theft on January 10, 2014,

involved three refrigerators, three stoves, two wall sinks, two cabinet sinks, and some

pipes. Further, his estimated cost of replacement was based on the cost to purchase

used items from a resale store that he had used during more than a decade of

experience in rehabbing apartment buildings. He claimed that the refrigerators and

stoves were missing and would cost $200 each to replace; that the two wall sinks—

one missing and one damaged—needed to be replaced, at a cost of $150 each; that

two cabinet sinks—one missing and one damaged—needed to be replaced, at a cost of

$225 each, for a total of $1950. Jason could not quantify the cost of replacing the

missing piping, so he sought no restitution for that item.



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        {¶10} The trial court ordered the full amount of restitution that Jason

requested. At that point, and for the first time, Daniels informed the court through

counsel that he was on disability and that did not have the financial means to pay the

ordered restitution. The court declined to find Daniels indigent and maintained that

he had to pay restitution.

        {¶11} Subsequently, the trial court journalized the judgment of conviction in

a final order from which Daniels now appeals.

                           II. Validity of the Guilty Plea

        {¶12} In his first assignment of error, Daniels argues that the trial court

erred by accepting his guilty plea, because it was not knowingly, intelligently, and

voluntarily entered.

        {¶13} For a plea to be valid, it must be made knowingly, voluntarily, and

intelligently. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25,

citing State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). To ensure that a

defendant’s plea is made knowingly, voluntarily, and intelligently, the trial court must

engage the defendant in a colloquy as set forth in Crim.R. 11. See Clark at ¶ 26.

        {¶14} Daniels pleaded guilty to theft, a first-degree misdemeanor, which allows

for a maximum jail term of not more than 180 days. Because the offense entails a penalty

of not more than six months of jail time, it is a “petty misdemeanor” offense. Crim.R.

2(D).

        {¶15} Because the offense is a petty misdemeanor, the trial court was required

pursuant to Crim.R. 11(E) to inform Daniels only of the effect of the plea. Here, the trial

did that. The court told Daniels that his “plea of guilty to the charge of theft * * * means

you’re making a complete admission of guilt to that offense.” See Crim.R. 11(B)(1). The




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court then asked Daniels if he understood the meaning of the plea of guilty, and he replied,

“Yes.”

         {¶16} The more “elaborate” procedures for accepting pleas in felony cases

and in serious misdemeanor cases did not apply. See State v. Jones, 116 Ohio St.3d

211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 12; State v. Anderson, 1st Dist. Hamilton

Nos. C-050785 and C-050786, 2006-Ohio-4602, ¶ 30.                Thus, Daniels’s argument

that his plea was defective because the court failed to comply with these more

stringent requirements is meritless.

         {¶17} Ultimately, “[t]he longstanding test for determining the validity of a guilty

plea is ‘whether the plea respresents a voluntary and intelligent choice among the

alternative courses of action open to the defendant.’ ” Hill v. Lockhart, 474 U.S. 52, 56,

106 S.Ct. 366, 88 L.Ed.2d 203 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31,

91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In this case, the trial court made it abundantly clear to

Daniels that the amount of restitution was in dispute and would be resolved at a

restitution hearing, and that the effect of his plea was the complete admission of guilt to

the theft offense. Daniels did not disavow his guilt in committing the theft offense, and he

maintained his plea of guilty despite knowing that the amount of restitution was in

dispute. On this record, we conclude that Daniels’s plea was knowingly, intelligently, and

voluntarily entered. Accordingly, we overrule the first assignment of error.

                                      III. Restitution

         {¶18} Daniels’s remaining four assignments of error address the court’s award of

restitution in the amount of $1950.

         {¶19} Restitution may exceed the maximum property value corresponding to a

theft offense. In his second assignment of error, he argues that the amount of restitution

ordered must be less than $1000, because he was convicted of a first-degree-



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misdemeanor-theft offense, which as defined by statute involves stolen property valued at

less than $1000. See R.C. 2913.02(B)(2). In other words, he contends that the amount of

restitution is limited and defined by the degree of the theft offense. The state argues that

the amount of restitution could exceed the maximum property value corresponding

to the first-degree-misdemeanor-theft offense.

       {¶20} In support of his argument, Daniels cites State v. Lalain, 136 Ohio

St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423. In Lalain, the defendant had worked

as an engineer for a company that designed aviation and aerospace components

before resigning and taking with him the property of his employer, including

proprietary and intellectual property. Lalain at ¶ 6. Based on this conduct, he

pleaded guilty to an amended indictment for fifth-degree-felony theft of property

valued at $500 or more but less than $5000. Id. at ¶ 10.

       {¶21} The trial court awarded Lalain’s former employer restitution of

$63,121. Id. at ¶ 14. This amount did not include the value of the property stolen, as

all of the property had been recovered by the police. Id. at ¶ 4. Instead, this amount

was based on the cost to the employer, as represented in a letter submitted to the

court, for the time spent by employees to identify and value the stolen but recovered

property. Id. Even though Lalain disputed this amount, the trial court did not hold a

restitution hearing. Id.

       {¶22} Lalain’s appeal to the Eighth District Court of Appeals was not

successful. That court rejected Lalain’s arguments that he was entitled to a hearing,

and that the amount awarded did not reflect direct economic loss from the theft and

it exceeded the property value that corresponded to the degree of the theft offense to

which he had pleaded guilty. Lalain at ¶ 15.




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       {¶23} The Ohio Supreme Court reviewed the case and reversed the judgment

for two reasons. First, the court held that the trial court’s failure to hold a restitution

hearing was erroneous, because Lalain’s objection to the amount of restitution

rendered a hearing mandatory.         Id. at ¶ 25.    Second, the court held that the

restitution awarded included “consequential costs,” id., and these expenditures fell

outside the scope of the statute authorizing restitution, R.C. 2929.18(A)(1), which

limited restitution to “the amount of economic detriment suffered by the victim as a

direct and proximate result of the commission of the offense” Id. at ¶ 22.

       {¶24} The Supreme Court, however, rejected Lalain’s broad argument that

the amount of restitution was limited to the property value that corresponded to the

degree of his theft offense. Id. at ¶ 24. As the Lalain court recognized, the amount of

restitution in a felony case is limited by R.C. 2929.18(A)(1). Id. at ¶ 22.

       {¶25} Logically, we conclude that R.C. 2929.28(A)(1), the reciprocal

provision to R.C. 2929.18(A)(1) that applies to misdemeanor offenses, limits the

amount of restitution in misdemeanor cases. Thus, we hold that the amount of

restitution in this case was restricted to “the amount of the economic loss suffered by

the victim as a direct and proximate result of the commission of the offense.” See

R.C. 2929.28(A)(1); see also R.C. 2929.01(L).

       {¶26} Therefore, we reject Daniels’s broad argument that the amount of

restitution for a first-degree-misdemeanor-theft offense must always be less than

$1000. But we find error in the amount of restitution awarded in this case for a

different reason.

       {¶27} Restitution may not exceed the economic loss caused by the offense.

Essentially, the amount of restitution erroneously exceeded the amount of economic




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loss caused by the theft offense, as Jason presented no evidence of his economic loss

other than the amount it would cost to replace the property.

       {¶28} In explanation, we note that the degree of a theft offense is defined by

the element of the value of the property or services involved. R.C. 2913.02. Courts

use one of three methods to value that property or services, as required by R.C.

2913.61(D). State v. Chaney, 11 Ohio St.3d 208, 210, 465 N.E.2d 53 (1984).

       {¶29} Here, the business property involved in the theft offense fell under the

description set forth in R.C. 2913.61(D)(2), which includes “* * *equipment[] and

fixtures used in the * * *business * * * of its owner” that “retains substantial utility

for its purpose regardless of its age or condition,” and that are not heirlooms or

collector’s items. This type of property is valued based on “the cost of replacing the

property with new property of like kind and quality.”

       {¶30} The replacement value defined in R.C. 2913.61(D)(2) is differentiated

in the statute by an “amount that would compensate the owner for the loss,” R.C.

2913.61(D)(1), which is the measure for “heirlooms” and the like, and from the “fair

market value,” which is the measure for real or personal property that is not defined

in the first two subdivisions of R.C. 2913.61(D). R.C. 2913.61(D)(3).

       {¶31} Thus, in this case, because of the type of property involved and the

application of R.C. 2913.61(D), the trial court found Daniels guilty of the theft of

business property with a replacement value of less than $1000. In theory, Jason

could seek more than that amount in restitution, but in doing so, he could not

properly seek to increase the replacement value of the property, as that would have

resulted in Daniels’s conviction for a different offense and a violation of R.C.

2929.28(A)(1)’s limitation of restitution to “the amount of economic loss suffered by




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the victim as a direct and proximate result of the commission of the offense.”

(Emphasis sic.)

       {¶32} Importantly, Jason’s evidence of economic loss was limited to the

replacement value of the property involved. And Daniels did not agree to pay a

greater amount of restitution as a part of the negotiated plea. See State v. Savage,

4th Dist. Meigs No. 15CA2, 2015-Ohio-4205, ¶ 19. Under these circumstances,

Jason’s restitution was restricted to an amount less than $1000. Accordingly, for

this reason, we sustain the second assignment of error.

       {¶33} Amount of restitution established by a preponderance of the evidence.

In his fourth and fifth assignments of error, which we address next, Daniels

essentially contends that Jason’s testimony at the restitution hearing was not

credible, because Jason did not provide verification of his out-of-pocket losses such

as written estimates or quotes.

       {¶34} We disagree that Jason was required to provide written estimates or

quotes to verify his economic loss. The relevant statute provides that “[t]he 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 the property, and other information.”

R.C. 2929.28(A)(1). The statute further provides, of particular relevance here, that if

the court holds an evidentiary restitution hearing, “at the hearing the victim * * * has

the burden to prove by a preponderance of the evidence the amount of restitution

sought from the offender.” Id.

       {¶35} Nothing in this statute required Jason to verify his testimony with

written estimates or quotes. He was required, however, to establish the amount of

economic loss by a preponderance of the evidence. His testimony concerning the



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replacement value of the items missing or damaged was based on his significant

experience replacing the property, which provided him with the relevant knowledge.

Daniels did not challenge this experience or knowledge at the restitution hearing.

Therefore, we conclude the trial court had an evidentiary basis to find by a

preponderance of the evidence that Jason suffered $1950 in economic loss as a direct

and proximate result of Daniels’s commission of the theft. Accordingly, we overrule

the fourth and fifth assignments of error.

       {¶36} R.C. 2929.19(B)(5) does not apply to misdemeanor sentencing. In his

third assignment of error, Daniels contends that the trial court erred by imposing

restitution, because it failed to inquire to some degree into Daniels’s professed

inability to pay as required by R.C. 2929.19(B)(5). This statute expressly requires the

court in felony cases to “consider the offender’s present or future ability to pay”

before imposing a financial sanction under R.C. 2929.18.

       {¶37} The state notes, however, that Daniels was convicted of a

misdemeanor, and the court imposed a financial sanction under R.C. 2929.28, not

R.C. 2929.18. We hold that because Daniels was not sentenced for a felony offense,

the mandate of R.C. 2929.19(B)(5) did not apply.

       {¶38} The state also contends the trial court has no obligation to consider a

defendant’s present and future ability to pay restitution for a misdemeanor offense,

because the misdemeanor sentencing statutes do not contain a provision identical to

R.C. 2929.19(B)(5).

       {¶39} The state is correct that the misdemeanor sentencing statutes do not

contain a provision identical to R.C. 2929.19(B)(5). Other appellate districts have

read R.C. 2929.28(B) as requiring the sentencing court to consider the defendant’s

present and future ability to pay a financial sanction such as restitution. See, e.g.,



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State v. Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 34;

State v. Rohda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 15.

       {¶40} We do not need to determine whether R.C. 2929.28(B) required the

trial court to consider Daniels’s present or future ability to pay, because the record in

this case demonstrates that the trial court in fact did consider Daniels’s ability to pay.

The trial court presided over the sentencing hearing at which information concerning

Daniels’s work history and income source was presented, and the court expressly

rejected a finding of indigency. Because the record does not demonstrate the error

assigned, we overrule the third assignment of error.

                                      Conclusion

       {¶41} Accordingly, because of our resolution of the second assignment of

error, we modify the trial court’s judgment to reflect the imposition of restitution in

the amount of $999. In all other respects, the trial court’s judgment is affirmed.

                                                        Judgment affirmed as modified.

DEWINE and STAUTBERG, JJ., concur.

Please note:

        The court has recorded its own entry on the date of the release of this opinion.




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