         [Cite as State v. McMullen, 2015-Ohio-3741.]
                     IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                      HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :      APPEAL NO. C-140562
                                                        TRIAL NO. B-1306752
        Plaintiff-Appellee,                      :
                                                           O P I N I O N.
  vs.                                            :

PATRICIA L. MCMULLEN,                            :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 16, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond L. Katz, for Defendant-Appellant.




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




F ISCHER , Judge.

       {¶1}    Defendant-appellant Patricia L. McMullen appeals from a conviction

for theft under R.C. 2913.02(A). We find no merit in her two assignments of error

and we affirm the trial court’s judgment.

       {¶2}    McMullen was the property manager of a large apartment complex.

She was indicted for theft after she collected rent payments from multiple tenants,

but failed to forward those payments to the property owners. According to the

property owners, McMullen stole $101,290 from them, although she disputed that

amount.

       {¶3}    Under the terms of a plea agreement, McMullen pleaded guilty to theft

and agreed to pay $40,000 in restitution to the property owners. The trial court

sentenced her to three years of community control and ordered her to pay the agreed

amount of restitution. This appeal followed.

       {¶4}    In her first assignment of error, McMullen argues that the trial court

erred in ordering restitution without determining her ability to pay. As a general

rule, R.C. 2929.19(B) requires a sentencing court, before imposing a financial

sanction, to consider the offender’s present and future ability to pay.      State v.

Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 30. The court need

not hold a hearing, consider any factors, or make any specific findings on the record.

But the record must contain some evidence showing that the court considered the

offender’s ability to pay. Id. at ¶ 30-31.

       {¶5}    But courts have held that when the defendant agrees to pay restitution

as part of a plea agreement, the agreement serves as a sufficient basis to support the

trial court’s order and precludes the defendant from complaining about it on appeal.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



See State v. St. Martin, 8th Dist. Cuyahoga No. 96834, 2012-Ohio-1633, ¶ 8; State v.

Coburn, 6th Dist. Sandusky No. S-09-006, 2010-Ohio-692, ¶ 22.                “When the

agreement to pay restitution to the victim is part and parcel of a plea agreement,

there is no reversible error in imposing a financial sanction, without first

determining the defendant’s ability to pay.” Coburn at ¶ 22.

       {¶6}       The record shows that the parties specifically negotiated the amount of

restitution as part of the plea agreement.          The victim claimed losses of over

$100,000, but under the agreement, McMullen was to pay restitution of $40,000.

The trial court specifically inquired as to whether McMullen understood that part of

the agreement, and she stated that she did.          Though she disputed the owners’

original assessment of damages, she never objected to paying $40,000 in restitution

and cannot now raise the issue for the first time on appeal. Consequently, we

overrule McMullen’s first assignment of error.

       {¶7}       In her second assignment of error, McMullen contends that her plea

was not knowingly, intelligently, and voluntarily made. She argues that she was not

aware of the state’s evidence against her and that she was coerced into agreeing to

the amount of restitution. This assignment of error is not well taken.

       {¶8}       The record shows that the trial court strictly complied with the

provisions of Crim.R. 11(C) relating to the constitutional rights that McMullen was

waiving and substantially complied in all other respects. See State v. Ballard, 66

Ohio St.2d 473, 475-478, 423 N.E.2d 115 (1981); State v. Fields, 1st Dist. Hamilton

No. C-090648, 2010-Ohio-4114, ¶ 8. The court conducted a meaningful dialogue to

ensure that McMullen’s plea was made knowingly, intelligently, and voluntarily. See

Fields at ¶ 10.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    McMullen never questioned the agreed amount of restitution or

expressed any misgivings about the plea agreement. To the contrary, the record

shows that the parties engaged in active negotiation about the amount of restitution.

Under the circumstances, we cannot hold that her plea was not knowingly,

intelligently, and voluntarily made. Consequently, we overrule McMullen’s second

assignment of error and affirm the trial court’s judgment.

                                                                 Judgment affirmed.


H ENDON , P.J., and D E W INE , J., concur.


Please note:
       The court has recorded its own entry this date.




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