[Cite as State v. Zalat, 2016-Ohio-2784.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      JUDGES:
                                                   Hon. Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. John W. Wise, J.
-vs-
                                                   Case No. 15 CAA 09 0071
GIHAN AHMED ISMAIL ZALAT

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Criminal Appeal from the Court of Common
                                                Pleas, Case No. 08 CR I 06 0343


JUDGMENT:                                       Affirmed



DATE OF JUDGMENT ENTRY:                         April 29, 2016



APPEARANCES:

For Plaintiff-Appellee                          For Defendant-Appellant

CAROL HAMILTON O'BRIEN                          BRIAN C. DiFRANCO
PROSECUTING ATTORNEY                            RODRIGUEZ BELL & DiFRANCO
KYLE E. ROHRER                                  LAW OFFICE
ASSISTANT PROSECUTOR                            6797 North High Street, 236
140 North Sandusky Street                       Worthington, Ohio 43085
Delaware, Ohio 43015
Delaware County, Case No. 15 CAA 09 0071                                                    2

Wise, J.

       {¶1}   Appellant Gihan Zalat appeals from the decision of the Court of Common

Pleas, Delaware County, denying her motion to vacate portions of her 2009 felony

sentence. Appellee is the State of Ohio. The relevant facts leading to this appeal are as

follows.

       {¶2}   On June 20, 2008, appellant was indicted on multiple charges of engaging

in a pattern of corrupt activity, money laundering, and other counts, all pertaining to

appellant’s involvement in a mortgage fraud scheme.

       {¶3}   On March 3, 2009, appellant appeared before the trial court and entered

Alford pleas to eight of the fifteen counts in the aforementioned indictment. The remaining

counts were dismissed. On the same day, the trial court sentenced her, via concurrent

terms, to a total of four years in prison. The court further provided notification to her of a

five-year period of post-release control. However, the record gives no indication that the

trial court conducted a restitution hearing as part of the sentencing proceedings of March

3, 2009.

       {¶4}   A judgment entry of conviction and sentencing was issued by the trial court

on March 4, 2009. An amended judgment entry of conviction and sentencing was issued

by the trial court on March 12, 2009. Neither entry addresses the issue of restitution.1

       {¶5}   Appellant filed a motion for judicial release on December 23, 2009. On

December 9, 2010, subsequent to a hearing, the trial court granted said motion and gave

appellant five years of community control. In its written judgment entry granting judicial



1 The trial court also issued a nunc pro tunc entry on December 16, 2009. However, said
entry was for the purpose of clarifying post-release control notification, and it also did not
mention restitution.
Delaware County, Case No. 15 CAA 09 0071                                                  3


release, also dated December 9, 2010, the trial court ordered that appellant pay restitution

“in an amount to be determined.”2

       {¶6}   On the clerk’s online docket, a separate entry on December 14, 2010 lists

the restitution figure as $125,005.00.

       {¶7}   On September 12, 2011, the trial court held a hearing on appellant's ability

to pay restitution. Although the present appellate record does not include a transcript of

the hearing, the trial court’s judgment entry issued in regard to that hearing states

appellant agreed that the correct restitution to be paid was $125,005.00.

       {¶8}   On December 21, 2011, the trial court issued an amended judgment entry

regarding restitution per the September 12, 2011 hearing, stating in pertinent part: "The

[Appellant] admitted that the correct restitution amount is One Hundred Twenty-Five

Thousand and Five Dollars ($125,005) to the three victims. The parties agreed that it was

not the amount of restitution that was at issue but the [Appellant’s] ability to make

payments." Id. at 1.

       {¶9}   The trial court thereafter held five further status hearings regarding

appellant's ability to pay her restitution. These took place between December 2011 and

November 2012, and were all attended by appellant and her then-counsel. Although some

of the entries from said hearings indicate discussion of issues regarding appellant’s

employment situation, there is no indication that she challenged either her obligation to

pay or the amount of restitution during these proceedings.




2  The appellate record includes a transcript of the judicial release hearing of December
6, 2010. The colloquy between the attorneys and the trial court at this hearing is also
indicative that restitution was not part of the original sentencing process in the present
case. See, e.g., Tr. at 5-6.
Delaware County, Case No. 15 CAA 09 0071                                                     4


       {¶10} Furthermore, an agreed wage withholding order ($100.00 “per pay check”)

was filed on August 3, 2012. The court issued another agreed order for the assignment

of appellant’s wages ($65.09 bi-weekly) on April 2, 2013. Both appear to have the

approval signature of appellant.

       {¶11} On July 29, 2015, appellant filed a “motion to vacate sentence as it pertains

to restitution.” The State of Ohio filed a response on August 5, 2015.

       {¶12} The trial court issued a judgment entry denying appellant’s motion to vacate

her sentence. The trial court therein held, inter alia: “By failing to challenge until now - in

either this court or in the court of appeals - the years-old order requiring her to pay

restitution, the Defendant has waived her right to attack that order. Neither law nor equity

supports the Defendant's untimely claim that she owes no restitution to the victims of her

crimes.” Judgment Entry at 4.

       {¶13} Appellant filed a notice of appeal on September 16, 2015. She herein raises

the following sole Assignment of Error:

       {¶14} “I.     THE     TRIAL    COURT      ERRED      IN   DENYING       DEFENDANT/

APPELLANT’S        MOTION      TO    [VACATE]     SENTENCE        AS    IT   PERTAINS      TO

RESTITUTION SHOULD BE VACATED [SIC] AS IT VIOLATES ORC 2929.18(A)(1).”

                                                  I.

       {¶15} In her sole Assignment of Error, appellant contends the trial court erred in

denying her “motion to vacate sentence” regarding restitution. We disagree.

       {¶16} As an initial matter, noting that the restitution order appellant has challenged

arises from a judicial release order, we must briefly sua sponte mention the issue of final

appealability. Generally, decisions concerning judicial release are not final appealable
Delaware County, Case No. 15 CAA 09 0071                                                     5

orders. See State v. Rowbotham, 7th Dist. Mahoning No. 12 MA 152, 2013-Ohio-2286, ¶

1; State v. Gondeau-Guttu, 8th Dist. Cuyahoga No. 94027, 2010-Ohio-3321, ¶ 12. But,

see R.C. 2953.08(B)(3). As such, this raises the question of whether a final appealable

order exists where a defendant has been denied a request to partially “vacate” a post-

sentence judicial release order. However, this issue was not brought out in the briefs in

the case sub judice, and we will thus proceed to the merits of this matter in the interest of

justice.

       {¶17} R.C. 2929.18(A)(1) permits a trial court, in imposing a sentence upon an

offender for a felony, to order certain financial sanctions, including “[r]estitution by the

offender to the victim of the offender's crime or any survivor of the victim, in an amount

based on the victim's economic loss.” Specifically, “[i]f the court imposes restitution, the

court shall order that the restitution be made to the victim in open court ***.” Id.

       {¶18} Furthermore, R.C. 2929.20(K) states in pertinent part that if a trial court

grants a motion for judicial release, the court shall "place the offender under an

appropriate community control sanction," which includes, under R.C. 2929.15(A)(1), the

election of a financial sanctions such as restitution under R.C. 2929.18.

       {¶19} Nonetheless, a trial court is only required to “consider” a defendant’s

present and future ability to pay prior to ordering restitution; while a trial court may hold a

hearing on the issue of ability to pay, such a hearing is not mandatory unless the

defendant disputes the amount at the imposition of sentence. See State v. Caudill, 5th

Dist. Ashland No. 03-COA-031, 2004-Ohio-2803, ¶ 11; 2929.18(A)(1)/(E); 2929.19(B)(5).

       {¶20} Appellant herein emphasizes that the trial court did not determine the

amount of her restitution, either at sentencing on March 3, 2009 or at the judicial release
Delaware County, Case No. 15 CAA 09 0071                                                    6


hearing on December 6, 2010.3 In her brief, appellant directs us to case law supporting

the proposition that a trial court commits plain error in failing to establish the amount of

restitution at the sentencing hearing and/or in open court. See State v. Leonhart, 4th Dist.

Washington No. 13CA38, 2014-Ohio-5601, ¶ 69; State v. Collins, 2d Dist. Montgomery

No. 21182, 2006–Ohio–3036, ¶ 4; State v. Brodman, 3d Dist. Hardin Nos. 6–02–05 and

6–02–06, 2002–Ohio–5584, ¶ 10; State v. Clark, 2d Dist. Clark No. 08CA0090, 2010-

Ohio-4760, ¶ 34.

       {¶21} However, our research indicates the latter three of the aforesaid cases were

all direct appeals from the defendants’ convictions and sentences, while Leonhart was an

appeal from an amended sentencing entry issued by the Washington County Court of

Common Pleas after the Fourth District Court of Appeals had remanded the matter for

want of a final appealable order. In contrast, appellant in the case sub judice presently

appeals from the denial of her motion to vacate her sentence, more than six years after

her conviction and sentence, more than four years after the trial court ordered restitution

as part of its judicial release orders, and after five “status” hearings were conducted, one

of which resulted in a stipulation to the amount of restitution.

       {¶22} As a general rule, once a valid sentence has been executed, a trial court no

longer has the power to modify the sentence except as provided by the Ohio General

Assembly. See State v. Hayes (1993), 86 Ohio App.3d 110, 619 N.E.2d 1188. One such

statutory exception to this rule is modification through judicial release. See State v. Terry,

10th Dist. Franklin No. 11AP-127, 2011-Ohio-6666, ¶ 8, citing State v. Longmire, 11th



3  Appellant does not dispute the procedural fact that the trial court held additional
hearings regarding her ability to pay on December 19, 2011, February 13, 2012, June 27,
2012, August 3, 2012, and November 19, 2012.
Delaware County, Case No. 15 CAA 09 0071                                                  7


Dist. Portage No. 2001–P–0014, 2002–Ohio–7153, ¶ 14. But whether restitution is

ordered via the original sentence or as part of a judicial release order, we find the proper

principle must be that where the amount a defendant will pay is stipulated, any dispute

as to the reasonableness of such amount has been waived. See State v. Myrick, 8th Dist.

Cuyahoga No. 91492, 2009-Ohio-2030, ¶ 31, citing State v. Rini (Apr. 10, 1997),

Cuyahoga App. No. 69489. Applying that principle in the case sub judice, and reiterating

that appellant waited until 2015 to challenge her restitution obligation despite her

stipulation to the amount in 2011 and several post-sentence court appearances in 2011

and 2012, we hold the trial court did not err in denying appellant’s motion to vacate under

the circumstances.

       {¶23} Appellant's sole Assignment of Error is therefore overruled.

       {¶24} For the foregoing reasons, the judgment of the Court of Common Pleas,

Delaware County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, P. J., and

Hoffman, J., concur.




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