[Cite as State v. Roach, 2017-Ohio-8511.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-16-1303

        Appellee                                 Trial Court No. CRB1600856

v.

David Roach                                      DECISION AND JUDGMENT

        Appellant                                Decided: November 9, 2017

                                            *****

        Robert A. Pyzik, Chief Prosecutor, and Christy L. Cole, Assistant
        Prosecutor, for appellee.

        Tyler Naud Jechura, for appellant.

                                            *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a November 16, 2016 judgment of the Sylvania

Municipal Court, Lucas County, Ohio, ordering appellant to pay restitution to the victim

for claimed lost wages as a result of being subpoenaed in the underlying case to appear in
court by the state. For the reasons set forth below, this court reverses the judgment of the

trial court.

       {¶ 2} Appellant, David Roach, sets forth the following two assignments of error:

               THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING

       THE VICTIMS [SIC] MOTION FOR RESTITUTION BECAUSE THE

       VICTIM LACKED STANDING.

               THE TRIAL COURT ABUSED IT [SIC] DISCRETION WHEN

       AWARDING RESTITUTION BECAUSE OHIO REVISED CODE

       SECTION 2929.28(A)(1) IS UNCONSTITUTIONAL AS APPLIED TO

       CLAIMS FOR LOSS [SIC] WAGES IN CONNECTION WITH A

       VICTIMS [SIC] APPEARANCE WHEN ORDERED BY SUBPEONA.

       {¶ 3} The following undisputed facts are relevant to this appeal. On May 2, 2016,

appellant was charged with two counts of telecommunications harassment, in violation of

R.C. 2917.21.    On May 25, 2016, appellant entered a guilty plea on one count of

telecommunications harassment in exchange for the second count being dismissed. The

record reflects that there was no discussion about restitution, nor was it part of the plea

agreement.

       {¶ 4} On July 18, 2016, appellant’s sentencing hearing was conducted.             At

sentencing, the victim motioned the court for restitution. She requested $500 in restitution

for wages that she claimed to have lost as a result of having to appear in court. Defense

counsel filed a motion in opposition. The hearing was continued.




2.
       {¶ 5} On August 10, 2016, the hearing was concluded. The trial court inquired

about the restitution issue and was advised that the victim directly made the motion for

restitution, it was not made through the state. Defense counsel again objected to restitution.

The victim was then questioned by both the court and defense counsel. On October 12,

2016, the court granted the victim’s motion for restitution.

       {¶ 6} On November 16, 2016, the court sentenced appellant to pay $324 in

restitution. This appeal ensued.

       {¶ 7} In appellant’s first assignment of error, he maintains that the court abused its

discretion in awarding the $324 in restitution for claimed lost wages. We concur.

       {¶ 8} We note that the abuse of discretion standard of review governs this restitution

appeal. In order to demonstrate an abuse of discretion, it must be shown that the trial

court’s action was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 9} It is well-established that a restitution order should include economic loss

suffered by the victim shown to be a direct and proximate result of the defendant’s

participation in the criminal act. See State v. Wilson, 2d Dist. Montgomery No.

2014-M-26488, 2015-Ohio-3167, ¶ 10; State v. Daniels, 1st Dist. Hamilton No.

C-150042, 2015-Ohio-5348, ¶ 27.

       {¶ 10} Under R.C. 2929.28(A) (1), the court cannot order restitution that exceeds

“[T]he amount of economic loss suffered by the victim as a direct and proximate result of

the commission of the offense.”




3.
       {¶ 11} Furthermore, R.C. 2929.01(L) economic loss is defined as:

              Any economic detriment suffered by a victim as a direct and

       proximate result of the commission of an offense and includes any loss of

       income due to lost time at work because of any injury caused to the victim,

       and any property loss, medical cost, or funeral expense incurred as a result

       of the commission of the offense. Economic loss does not include non-

       economic loss or any punitive or exemplary damages.

       {¶ 12} Therefore, R.C. 2929.28(A)(1) and 2929.01(L) explicitly restrict restitution

in an underlying criminal case to loss of income due to lost time at work because of an

injury caused to the victim that is the direct and proximate result of the commission of the

offense and does not include loss of wages due to lost time at work attending court

appearances that are associated with the criminal case. The victim may have civil remedies,

but this type of restitution to a victim is not permitted in the criminal case.

       {¶ 13} Further, under Ohio law, the parties in a criminal case are the defendant and

the state, not the victim. Grubb v. Buehrer, 10th Dist. Franklin No. 15AP-576, 2016-Ohio-

4645, ¶ 20. Accordingly, a victim does not possess the requisite standing to unilaterally

make a motion in a criminal case regarding restitution. State v. Stechschulte, 11th Dist.

Lake No. 2013-L-027, 2014-Ohio-4291, ¶ 16.

       {¶ 14} Based upon the forgoing, we find appellant’s first assignment of error well-

taken. Based upon the court’s determination in response to the first assignment of error,

the remaining assignment of error is moot.




4.
       {¶ 15} Wherefore, the judgment of the Sylvania Municipal Court is hereby reversed.

Appellee is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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