[Cite as State v. Thomas, 2011-Ohio-3354.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. John W. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 2010-CA-42
WILLIAM D. THOMAS                             :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Fairfield County
                                                  Court of Common Pleas, Case No. 09-CR-
                                                  0348



JUDGMENT:                                         Affirmed in part;
                                                  Reversed in part; and Remanded


DATE OF JUDGMENT ENTRY:                           July 1, 2011


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

GREGG MARX                                        E. KELLY MIHOCIK
Assistant Prosecutor                              Assistant Public Defender
239 W. Main Street, Ste. 101                      250 East Broad Street, Ste. 1400
Lancaster, OH 43130                               Columbus, OH 43215
[Cite as State v. Thomas, 2011-Ohio-3354.]


Gwin, P.J.

        {¶1}    Defendant-Appellant William D, Thomas appeals from the sentenced

imposed by the Fairfield County Court of Common Pleas upon his conviction after a jury

trial of three counts of gross sexual imposition, felonies of the third degree in violation of

R.C. 2907.05(A)(4). Plaintiff-appellee is the State of Ohio.

                               STATEMENT OF THE FACTS AND CASE1

        {¶2}    Appellant was indicted for four counts of gross sexual imposition.

Following a jury trial, he was acquitted of Count One but convicted of Counts Two,

Three, and Four. The victim of appellant's crimes was six years old. (Sent. T. March 29,

2010 at 8).

        {¶3}    The trial court, while sentencing appellant, found that appellant caused

harm to the victim and that the victim who had been sexually abused suffered

psychologically and emotionally. (Id. at 19).

        {¶4}    The trial court sentenced appellant to serve four years on Count Two and

five years to be served consecutively as to Counts Three and Four. (Id. at 21). The trial

court suspended the prison term as to Counts Three and Four and placed appellant on

community control for a five year period to begin after he completes his four year term

of imprisonment. (Id.). Appellant was also ordered to pay court costs and a $25 court-

appointed counsel fee.

        {¶5}    On April 1, 2010, the court issued a "Judgement [sic] Entry of Sentence,"

and on April 16, 2010 it issued a "Nunc Pro Tunc Judgement [sic] Entry of Sentence."



        1
           A Statement of the Facts underlying Appellant’s original conviction is unnecessary to our
disposition of this appeal. Any facts needed to clarify the issues addressed in Appellant’s assignment of
error shall be contained therein.
Fairfield County, Case No. 2010-CA-42                                                 3


Those entries order the sentences on Counts Three and Four to run consecutively to

each other, as well as consecutive to Count Two.

      {¶6}   At the sentencing hearing and in the court's sentencing entries, appellant

was also ordered to pay "restitution to the victims, in any amount not covered by

insurance for counseling." (April 16, 2010 Nunc Pro Tunc Judgement [sic] Entry of

Sentence at 2; Sent. T. March 29, 2010 at 22.) A definite amount was not specified.

      {¶7}   By Judgment Entry filed September 13, 2010 this Court granted

appellant’s motion to file a delayed appeal.

      {¶8}   Appellant has raised the following two Assignments of Error for our

consideration:

      {¶9}   “I. MR. THOMAS WAS ORDERED TO PAY RESTITUTION TO THE

VICTIMS FOR ANY OUT-OF- POCKET COSTS INCURRED FOR COUNSELING. THE

COURT'S ORDER WAS ERRONEOUS BECAUSE THE AMOUNT WAS NOT

SPECIFIED WITH ANY REASONABLE DEGREE OF CERTAINTY, AND THERE WAS

ONLY ONE VICTIM. FOURTEENTH AMENDMENT OF THE UNITED STATES

CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. (APR. 1,

2010 JUDGEMENT [SIC] ENTRY OF SENTENCE, P. 2; APR. 16, 2010 JUDGEMENT

[SIC] ENTRY OF SENTENCE, P. 2; MAR. 29, 2010 SENTENCING TR. 22.)

      {¶10} “II. THE SENTENCE IMPOSED AT THE SENTENCING HEARING IS

DIFFERENT FROM THE SENTENCE PURPORTEDLY IMPOSED IN THE COURT'S

SENTENCING ENTRIES. A COURT MAY NOT ALTER A DEFENDANT'S SENTENCE

ONCE HE OR SHE HAS BEGUN SERVING THAT SENTENCE. THIS COURT

SHOULD VACATE THE TRIAL COURT'S APRIL 1 AND APRIL 16 SENTENCING
Fairfield County, Case No. 2010-CA-42                                                    4


ENTRIES AND ORDER THAT THEY BE AMENDED TO REFLECT THE SENTENCE

ACTUALLY IMPOSED. FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

(APRIL 1, 2010 JUDGEMENT [SIC] OF SENTENCE; APRIL 16, 2010 NUNC PRO

TUNC JUDGEMENT [SIC] OF SENTENCE; MAR. 29, 2010 SENTENCING HEARING

TR. 21-23.)”

                                                I.

       {¶11} In his First Assignment of Error appellant contends that the trial court

erred in ordering restitution in an amount that was not established to a reasonable

degree of certainty. Further appellant argues that the trial court erred in ordering

restitution to the “victims” of his criminal acts when there was only one victim. We agree,

in part.

       {¶12} R.C.2929.18 states in pertinent part:

       {¶13} “(A) Except as otherwise provided in this division and in addition to

imposing court costs pursuant to section 2947.23 of the Revised Code, the court

imposing a sentence upon an offender for a felony may sentence the offender to any

financial sanction or combination of financial sanctions authorized under this section or,

in the circumstances specified in section 2929.32 of the Revised Code, may impose

upon the offender a fine in accordance with that section. Financial sanctions that may

be imposed pursuant to this section include, but are not limited to, the following:

       {¶14} “(1) Restitution 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. If the court

imposes restitution, the court shall order that the restitution be made to the victim in
Fairfield County, Case No. 2010-CA-42                                                      5


open court, to the adult probation department that serves the county on behalf of the

victim, to the clerk of courts, or to another agency designated by the court. If the court

imposes restitution, at sentencing, the court shall determine the amount of restitution to

be made by the offender. If the court imposes restitution, the 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 property, and other information, provided that the amount the court orders as

restitution shall not exceed the amount of the economic loss suffered by the victim as a

direct and proximate result of the commission of the offense. If the court decides to

impose restitution, the court shall hold a hearing on restitution if the offender, victim, or

survivor disputes the amount. All restitution payments shall be credited against any

recovery of economic loss in a civil action brought by the victim or any survivor of the

victim against the offender.”

       {¶15} In State v. Castaneda, 168 Ohio App.3d 686, 2006-Ohio-5078, this court

found an order of restitution must be supported by competent and credible evidence

from which the trial court can discern the amount of restitution to a reasonable degree of

certainty, Id at ¶18, citing State v. Gears ( 1999), 135 Ohio App. 3d 297, 300, 733 N.E.

2d 683. See also, State v. Johnson, Fairfield App. No. 2007-CA-00012, 2007-Ohio-6099

at ¶9. “The 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 property, and other information.”

R.C. 2929 .18(A)(1).    A trial court abuses its discretion if it orders restitution in an
Fairfield County, Case No. 2010-CA-42                                                     6


amount that does not bear a reasonable relationship to the actual loss suffered, Id.,

citing State v. Williams (1986), 34 Ohio App.3d 33, 519 N.E.2d 1270.

       {¶16} Upon reviewing the record, we find that the restitution order is not

supported by competent, credible evidence. Here, the common pleas court ordered

restitution solely based upon “their uninsured portion of psychological counseling fees

which are directly related to your conduct with them…” (Sent. T. March 29, 2010 at 22).

However, the record contains no evidence that the victim has incurred any expenses for

undergoing psychological counseling. The trial court clearly erred in ordering restitution

since there was no documentation or testimony at the sentencing hearing of any actual

economic loss suffered by the victim.

       {¶17} Appellant’s next argues that the trial court incorrectly ordered restitution to

the “victims” when in fact he was acquitted of the count involving a second victim. In

light of the fact that the trial court will need to conduct an evidentiary hearing on the

issue of restitution we find this branch of appellant’s First Assignment of Error to be

premature. The trial court can revisit to whom restitution is owed at the evidentiary

hearing.

       {¶18} Appellant's First Assignment of Error is sustained in part. The order of

restitution is vacated and the matter is remanded for an evidentiary hearing on

restitution.

                                                II.

       {¶19} In his Second Assignment of Error appellant maintains that the trial court’s

Judgment Entry and Nunc Pro Tunc Judgment Entry of Sentencing conflict with the oral

pronouncement of sentence which occurred in open court on March 29, 2010.
Fairfield County, Case No. 2010-CA-42                                                   7


       {¶20} At the March 29, 2010 sentencing hearing the trial court stated,

       {¶21} “As to count two, the Court imposes four years in a state prison. You are

ordered to serve that term of imprisonment. You are not granted community control as

to that count.

       {¶22} “Consecutive to count two, the Court imposes a sentence of five years as

to count three and five years as to count four. However, the Court is ordering that the

prison terms as to counts three and four be suspended for your successful completion

and compliance with the terms and conditions of community control for a five-year

period of time after you complete the four-year term of imprisonment in a state prison as

to count two.”

       {¶23} On April 1, 2010, the court issued a "Judgement [sic] Entry of Sentence,"

and on April 16, 2010 it issued a "Nunc Pro Tunc Judgement [sic] Entry of Sentence."

Those entries purportedly order the sentences on Counts Three and Four to run

consecutively to each other:

       {¶24} “[A]s to Count Two to be confined in the Correctional Reception Center,

Orient, Ohio, for a period of four (4) years; as to Count Three to be confined in the

Correctional Reception Center, Orient, Ohio, for a period of five (5) years, to be served

consecutively to Count Two; and as to Count Four to be confined in the Correctional

Reception Center, Orient, Ohio, for a period of five (5) years, to be served consecutively

to Count Two and Count Three. The Court further ordered the Defendant to pay the

Court costs and the costs of prosecution in this case. The Court further ordered the

Defendant to pay restitution to the victims, in any amount not covered by insurance, for

counseling. The Defendant shall have no contact with the victims.” (Apr. 1, 2010
Fairfield County, Case No. 2010-CA-42                                                    8


Judgement [sic] of Sentence at 2; April 16, 2010 Nunc Pro Tunc Judgement [sic] Entry

of Sentence at 2.)

       {¶25} We find that the oral pronouncement is not as clear as the written

judgment entries. In light of our disposition of appellant’s first assignment of error

requiring the trial court to conduct an evidentiary hearing on the issue of restitution, we

sustain appellant’s second assignment of error, vacate appellant's sentence, and

remand this matter to the trial court for resentencing.

       {¶26} The judgment of the Fairfield County Court of Common Pleas is affirmed

in part, reversed in part, and remanded for proceedings in accordance with our opinion

and the law.



By Gwin, P.J., and

Wise, J., concur;

Hoffman, J., concurs in part,

dissents in part




                                               _________________________________
                                               HON. W. SCOTT GWIN

                                               _________________________________
                                               HON. WILLIAM B. HOFFMAN

                                               _________________________________
                                               HON. JOHN W. WISE

WSG:clw 0621
Fairfield County, Case No. 2010-CA-42                                                       9


Hoffman, J., concurring and part and dissenting in part

       {¶27} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error. I would add I find the statute requires the trial court to fix a definite

amount if restitution is ordered.

       {¶28} I respectfully dissent from the majority’s disposition of Appellant’s second

assignment of error. This same issue will have to be addressed after the trial court’s

redetermination of the restitution order upon remand.         I find the restitution issue is

substantively different from and severable from the length of imprisonment aspect of the

sentence; therefore, ripe for review now.

       {¶29} I would overrule Appellant’s second assignment of error on the merits.

Because Appellant had not yet been delivered to the custody of the Ohio Department of

Corrections before the trial court filed its sentencing entry, his sentence had not yet

commenced.      Accordingly, I would find the trial court had jurisdiction to clarify any

ambiguity that existed from its oral pronouncement of sentence. See, State v. Holt

(December 2, 1999) Fairfield County App. No. 98CA83, unreported, and State v.

Cossack, 2009-Ohio-3327 for a similar analysis and result.




                                                  ________________________________
                                                  HON. WILLIAM B. HOFFMAN
[Cite as State v. Thomas, 2011-Ohio-3354.]


              IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
WILLIAM D. THOMAS                                :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2010-CA-42




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Fairfield County Court of Common Pleas is affirmed in part, reversed in

part, and remanded for proceedings in accordance with our opinion and the law. Costs

equally divided between appellant and appellee.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN

                                                     _________________________________
                                                     HON. WILLIAM B. HOFFMAN

                                                     _________________________________
                                                     HON. JOHN W. WISE
