[Cite as State v. Choate, 2015-Ohio-4972.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       27612

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DAVID S. CHOATE, JR.                                COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 13 05 1322(A)

                                 DECISION AND JOURNAL ENTRY

Dated: December 2, 2015



        HENSAL, Presiding Judge.

        {¶1}     David Choate appeals from his convictions in the Summit County Court of

Common Pleas. For the reasons set forth below, we affirm in part, reverse in part, and remand

the matter for further proceedings.

                                               I.

        {¶2}     On April 2, 2013, Joseph Kowalski arrived at Advance Excavation, the company

he owned, and discovered that a red Dodge Ram dump truck, a white Ford F-250, and several

tools had been taken during the night. The police eventually arrested numerous people in

connection with the theft, including Mr. Choate. Many of Mr. Choate’s co-defendants pleaded

guilty and testified against him at trial. The jury convicted Mr. Choate of breaking and entering

and three counts of grand theft, and the trial court sentenced him to an aggregate prison term of

54 months.
                                                 2


       {¶3}    Mr. Choate has appealed, raising seven assignments of error for our review. For

ease of discussion, we discuss his assignments of error out of order.

                                               II.

                                 ASSIGNMENT OF ERROR VI

       THE EVIDENCE IS INSUFFICIENT TO SUSTAIN A FINDING OF GUILT
       FOR THREE COUNTS OF GRAND THEFT AND BREAKING AND
       ENTERING.

       {¶4}    Mr. Choate asserts in his sixth assignment of error that his convictions are not

supported by sufficient evidence. Whether a conviction is supported by sufficient evidence is a

question of law, which this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). In making this determination, we must view the evidence in the light most favorable to

the prosecution:

       An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

       {¶5}    The jury found Mr. Choate guilty of violating Revised Code Section

2911.13(A)/(B) by committing breaking and entering and of violating Section 2913.02(A)(1) by

committing grand theft. Section 2911.13 provides,

       (A)     No person by force, stealth, or deception, shall trespass in an unoccupied
               structure, with purpose to commit therein any theft offense, as defined in
               section 2913.01 of the Revised Code, or any felony.

       (B)     No person shall trespass on the land or premises of another, with purpose
               to commit a felony.
                                                3


Section 2913.02(A)(1) provides that, “[n]o person, with purpose to deprive the owner of property

or services, shall knowingly obtain or exert control over either the property or services * * *

[w]ithout the consent of the owner or person authorized to give consent.” “If the value of the

property or services stolen is seven thousand five hundred dollars or more and is less than one

hundred fifty thousand dollars, a violation of this section is grand theft, a felony of the fourth

degree.” R.C. 2913.02(B)(2).

       {¶6}    Kevin Ervin testified that he knew Mr. Choate because the mother of Mr. Ervin’s

child was Mr. Choate’s sister. On April 2, 2013, Mr. Choate was staying with his sister and Mr.

Ervin. Mr. Choate left that evening and returned around 5:30 to 6:00 a.m. the next morning. Mr.

Choate asked Mr. Ervin if he could store some things in his basement, which Mr. Ervin allowed

because he thought Mr. Choate had gotten some property back from his ex-girlfriend. Mr. Ervin

went back to bed and did not see what Mr. Choate brought in until that evening. At some point

later, Mr. Ervin saw “weed eaters, saws, * * * tools, construction equipment, that kind of stuff”

in his basement. Thereupon, Mr. Ervin told Mr. Choate to remove the items.

       {¶7}    Heather Satterfield testified that she met Mr. Choate on the night of the theft and

had not seen him since that night other than in passing at a bar. According to Ms. Satterfield, on

the night of the theft, she received a call from a man named “Andy,” a friend of her ex-

boyfriend, who asked her to give him and Mr. Choate a ride. Ms. Satterfield drove to a home she

believed belonged to Mr. Choate’s sister. Jason King was with her. At the house, she picked up

Mr. Choate, “Henry or Andy,” and Wendy Cummings and drove them and Mr. King to

Macedonia. The group stopped at a BP before Ms. Satterfield “dropped the[ three men] off

down the road.” Eventually, she received a message from Mr. King telling her to meet the men

back at the BP. When she arrived back at the BP station with Ms. Cummings, she saw the men
                                                4


with two dump trucks: “[a] white one and a red one.” She saw tools in the back of one of the

trucks. According to Ms. Satterfield, she entered the BP to purchase a Mountain Dew for Mr.

Choate and then they all left. Mr. Choate drove one of the trucks, “Andy” and Ms. Cummings

were in the other, and Mr. King rode with Ms. Satterfield. They drove back to the home of Mr.

Choate’s sister arriving at approximately 6:30 a.m., and unloaded the tools.

       {¶8}    Harry “Andy” Croft testified that he met with Mr. Choate on April 2, 2013, and

the two “discussed some stuff that could be easily obtained through stealing, * * * and, basically,

just went and stole the stuff.” He elaborated that he, Mr. Choate, and Mr. King were dropped off

in Macedonia, and that the trio walked to a building. They opened the garage door of the

building to reveal shelves of tools, and they proceeded to load the tools into the back of the red

dump truck. Mr. Croft drove the red dump truck out of the building but stopped because he

could not get the lights on the truck to turn on. Mr. Choate, driving another truck pulled up next

to him, and Mr. Choate helped him turn on the headlights.        After the group returned to Mr.

Choate’s sister’s home, they unloaded the tools. Mr. Croft took some of the tools for himself and

sold them.

       {¶9}    Mr. Kowalski testified that he received a call from his son on the morning of

April 2, 2013. His son told him that he was at their business, that the garage was open, and that

numerous items had been taken. Mr. Kowalski drove to meet his son and saw that a red dump

truck and a white utility truck were gone, as well as many of the more valuable tools. Mr.

Kowalski saw that two other buildings had been broken into besides the garage, including the

office building. A fourth building on the premises, which was leased to another company, had

not been broken into. Mr. Kowalski testified that whomever broke into the buildings seemed

familiar with the business because they found the cash kept in the office without needing to
                                               5


rummage through the drawers and also left behind tools that outwardly appeared fine but actually

needed to be serviced. However, “all the good ones” were taken. Mr. Kowalski verified that a

document entered into evidence was an accurate list of all of the tools that had been stolen. Mr.

Kowalski testified that Advance Excavation had paid $56,000 for the tools. He also testified

that, the day before the theft, Mr. Choate, who was a former employee, called to ask for his job

back. Mr. Kowalski told Mr. Choate that he did not have a job for him.

       {¶10} Detective Brian Vince of the Macedonia Police Department testified that he

investigated the break-in at Advance Excavation. During the course of his investigation, he

learned that Mr. Choate had asked to be rehired by Advance Excavation the day before the

break-in. A few days later, Mr. Choate was taken into custody and a saw belonging to Advance

Excavation was found in the car that Mr. Choate had been occupying. The police also located

both trucks that had been taken from Advance Excavation. The white Ford utility truck was

found in a building a couple of miles from Mr. Ervin’s home. The red Dodge dump truck was

found behind a bar in Barberton. Detective Vince testified that Christopher Inman got the dump

truck from Mr. Choate. When Mr. Imman got into a “private property accident,” however, he

parked it behind the bar and fled.

       {¶11} Detective Vince interviewed Mr. Choate about the incident while Mr. Choate was

in custody, and a video of the interview was entered into evidence. Mr. Choate told Detective

Vince that he could find the missing tools for him if he was let out of custody. Detective Vince

declined to let Mr. Choate out of custody. When pressed by Detective Vince, Mr. Choate

indicated that he had committed the break-in because he wanted to start his own business.

       {¶12} Mr. Choate’s only argument in support of this assignment of error is that his

convictions were not supported by sufficient evidence because “almost all witnesses against
                                                6


[him] testified as part of a plea agreement to reduce their sentences.” However, this challenges

the manifest weight of the evidence, not the sufficiency of the evidence. See State v. Brown, 9th

Dist. Summit No. 25287, 2011–Ohio–1041, ¶ 14, citing State v. Porter, 9th Dist. Summit No.

24996, 2010–Ohio–3980, ¶ 9 (“[A] sufficiency challenge tests the State’s production of

evidence, not the persuasiveness of the evidence produced.”). Viewing the evidence at trial in

the light most favorable to the State, there was sufficient evidence to support his convictions for

one count of breaking and entering and three counts of grand theft.

       {¶13} Accordingly, his sixth assignment of error is overruled.

                                ASSIGNMENT OF ERROR VII

       THE VERDICTS OF GUILTY FOR THREE COUNTS OF GRAND THEFT
       AND BREAKING AND ENTERING WERE AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶14} In Mr. Choate’s seventh assignment of error, he asserts that his convictions are

against the manifest weight of the evidence.        “While the test for sufficiency requires a

determination of whether the state has met its burden of production at trial, a manifest weight

challenge questions whether the state has met its burden of persuasion.” State v. Glunt, 9th Dist.

Medina No. 13CA0050-M, 2014-Ohio-3533, ¶ 18, quoting State v. Carr, 9th Dist. Summit No.

26661, 2014-Ohio-806, ¶ 28. To determine whether a conviction is against the manifest weight

of the evidence, this Court

       must review the entire record, weigh the evidence and all reasonable inferences,
       consider the credibility of witnesses and determine whether, in resolving conflicts
       in evidence, the trier of fact clearly lost its way and created such a manifest
       miscarriage of justice that the conviction must be reversed and a new trial
       ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.
                                                7


Thompkins, 78 Ohio St.3d at 387. The appellate court should only exercise its power to reverse a

judgment as against the manifest weight of the evidence in exceptional cases. Otten at 340.

       {¶15} Mr. Choate advances no argument in support of this assignment of error. Instead,

he merely discusses the standard of review and concludes, “in the present case[,] the jury lost its

way when it convicted Mr. Choate of three counts of theft and breaking and entering.” It is not

this Court’s duty create Mr. Choate’s argument for him. See State v. Brownlee, 9th Dist. Summit

No. 27255, 2015-Ohio-2616, ¶ 35.

       {¶16} Furthermore, even considering the argument raised in Mr. Choate’s sixth

assignment of error, we cannot conclude, after a thorough review of the entire record, that the

jury lost its way when it found Mr. Choate guilty of breaking and entering and three counts of

grand theft. While a number of Mr. Choate’ co-defendants did receive reduced sentences in

exchange for their testimony, the jury was well aware of this information and were able to

consider it when weighing the testimony.     See State v. Jackson, 9th Dist. Summit No. 26757,

2013-Ohio-5557, ¶ 16, 21 (noting that a co-defendant’s plea deal is a factor for the jury to weigh

when considering the credibility of the co-defendant’s testimony).         Furthermore, a video

recording of a police interview of Mr. Choate was entered into evidence, and, during that

interview, Mr. Choate told the officer that the reason he had taken the tools was because he

wanted to start his own business.

       {¶17} Accordingly, Mr. Choate’s seventh assignment of error is overruled.

                                    ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY RULING
       THAT GRAND THEFT, GRAND THEFT AND GRAND THEFT WERE NOT
       ALLIED OFFENSES OF SIMILAR IMPORT ALTHOUGH THE ALLEGED
       THEFTS ALL OCCURRED AT THE SAME PLACE, AT THE SAME TIME,
       INVOLVING THE SAME INDIVIDUALS AGAINST THE SAME VICTIM.
                                               8


       {¶18} Mr. Choate argues in his first assignment of error that his three grand theft

offenses are allied offenses of similar import and should merge. Revised Code Section 2941.25

codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution and Article I, Section 10 of the Ohio Constitution, which prohibits multiple

punishments for the same offense. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 23.

It provides:

       (A) [If] the same conduct by defendant can be construed to constitute two or more
       allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) [If] the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or
       similar kind committed separately or with a separate animus as to each, the
       indictment or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

R.C. 2941.25.

       {¶19} The Ohio Supreme Court has recently clarified the test courts must apply when

determining whether offenses are allied offenses of similar import. In State v. Ruff, 143 Ohio

St.3d 114, 2015–Ohio–995, it held that “courts must evaluate three separate factors—the

conduct, the animus, and the import.” Id. at paragraph one of the syllabus. “[A] defendant

whose conduct supports multiple offenses may be convicted of all the offenses if any one of the

following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct

shows that the offenses were committed separately, or (3) the conduct shows that the offenses

were committed with separate animus.” Id. at paragraph three of the syllabus. “When deciding

whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review

the entire record, including arguments and information presented at the sentencing hearing, to

determine whether the offenses were committed separately or with a separate animus.” State v.
                                                 9


Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, syllabus. It is a defendant’s burden to

demonstrate that he or she is entitled to have two offenses merge. Id. at ¶ 18. To do so, the

defendant must show that the State relied upon the same conduct to support both offenses. State

v. Logan, 60 Ohio St.2d 126, 128 (1979).

       {¶20} Mr. Choate was convicted of three counts of grand theft. The indictment specifies

that the first grand theft charge was related to the taking of the tools, the second charge was for

the taking of the white 2005 Ford F-250 utility truck, and the third count was for stealing the red

2007 Dodge dump truck. The evidence at trial established that Mr. Choate drove the Ford utility

truck away from Advance Excavation while Mr. Croft drove the Dodge dump truck, which was

loaded with tools that Mr. Choate and the others had taken from the Advance Excavation

building. The trial court declined to merge Mr. Choate’s grand-theft convictions because it

determined that they had been committed with separate conduct and separate animi.

Specifically, it determined that separate conduct formed the basis for each of the thefts.

       {¶21} Although Mr. Choate did not personally drive the red Dodge dump truck away

from Advance Excavation, he was complicit in its theft. The evidence at trial supported the

conclusion that Mr. Choate had organized the break in and thefts at Advance Excavation, that he

had helped recruit people for the task, that he had assisted in loading the dump truck with tools,

and that he helped the driver of the dump truck, after the driver had driven a short distance, to

activate the headlights on the truck. See R.C. 2923.03(A) (“No person, acting with the kind of

culpability required for the commission of an offense, shall * * * (1) Solicit or procure another to

commit the offense * * * [or] (2) Aid or abet another in committing the offense.”). Each of these

acts is conduct separate from the act of him stealing the Ford utility truck. See Ruff at paragraph

three of the syllabus. See also State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus
                                                10


(“When determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered.”). Similarly, the act of

loading the tools into the truck is separate and distinct conduct from the planning, the recruiting,

and the assisting with the lights, and it is separate from his act of driving the white Ford utility

truck away. Further, at some point, Mr. Choate ended up with and attempted to hide at least

some of the tools which were carried from the scene in the dump truck.

       {¶22} Even assuming that for the sake of argument that the conduct of Mr. Choate could

have formed the basis for all of his convictions, Mr. Choate has not demonstrated that all of his

convictions were based on the same conduct. As noted above, Mr. Choate bore the burden of

demonstrating that the State relied upon the same conduct to support both offenses.             See

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, at ¶ 18. Based upon the evidence at trial and

the arguments raised in the trial court and on appeal, we cannot conclude Mr. Choate has carried

that burden here.

       {¶23} Accordingly, Mr. Choate’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       ABUSED ITS DISCRETION AND SENTENCED APPELLANT TO THREE
       CONSECUTIVE MAXIMUM SENTENCES FOR GRAND THEFT, DESPITE
       THE FACT THAT THE THEFTS OCCURRED AT THE SAME TIME AND
       INVOLVED THE SAME VICTIM.

       {¶24} Mr. Choate argues in his second assignment of error that the trial court abused its

discretion when it sentenced him to an aggregate prison term of 54 months. According to Mr.

Choate, this sentence fails to follow the principles and purposes of felony sentencing.
                                                   11


          {¶25} This Court reviews sentences pursuant to the two-step approach set forth in State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912. See State v. Thomas, 9th Dist. Summit No.

27435, 2015-Ohio-2379, ¶ 20.

          First, [we] must examine the sentencing court’s compliance with all applicable
          rules and statutes in imposing the sentence to determine whether the sentence is
          clearly and convincingly contrary to law. If this first prong is satisfied, the trial
          court’s decision in imposing the term of imprisonment is reviewed under the
          abuse-of-discretion standard.

Id., quoting Kalish at ¶ 26.       An abuse of discretion implies that the court’s attitude was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983).

          {¶26} Mr. Choate concedes that each of his grand theft sentences is within the

permissible range but argues that, by ordering the sentences to run consecutively, the trial court

failed to consider the principles and purposes of felony sentencing. “The overriding purposes of

felony sentencing are to protect the public from future crime by the offender and others and to

punish the offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government resources.” R.C.

2929.11(A). Mr. Choate argues that a 54-month prison term was not the minimum appropriate

sanction for achieving those purposes.

          {¶27} However, “‘Ohio’s felony-sentencing scheme is clearly designed to focus the

judge’s attention on one offense at a time.’” State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-

5014, ¶ 6, quoting State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, ¶ 8. See also Saxon at

paragraph two of the syllabus (“The sentencing-package doctrine has no applicability to Ohio

sentencing laws: the sentencing court may not employ the doctrine when sentencing a defendant

and appellate courts may not utilize the doctrine when reviewing a sentence or sentences.”). In
                                                12


other words, R.C. 2929.11 clearly is aimed at the sentence for each individual offense, not the

sentences in aggregate, and Mr. Choate has not argued that a sentence of 18 months

imprisonment for any of the individual grand theft charges is an abuse of discretion under the

circumstances. See App.R. 16(A)(7). Instead, he is essentially arguing about the trial court’s

decision to run the prison terms consecutively with each other.

       {¶28} Revised Code Section 2929.14(C)(4) governs the imposition of consecutive

sentences. Section 2929.14(C)(4) provides:

       If multiple prison terms are imposed on an offender for convictions of multiple
       offenses, the court may require the offender to serve the prison terms
       consecutively if the court finds that the consecutive service is necessary to protect
       the public from future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the offender’s conduct and
       to the danger the offender poses to the public, and if the court also finds any of the
       following:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed pursuant
       to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-
       release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or more
       courses of conduct, and the harm caused by two or more of the multiple offenses
       so committed was so great or unusual that no single prison term for any of the
       offenses committed as part of any of the courses of conduct adequately reflects
       the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that consecutive
       sentences are necessary to protect the public from future crime by the offender.

Mr. Choate does not suggest that the trial court did not make the necessary findings pursuant to

Section 2929.14(C)(4). Instead, he argues that, because Mr. Choate’s crimes were nonviolent

and only targeted an acquaintance, he was not a threat to the public at large. The trial court,

however, recounted Mr. Choate’s rather lengthy criminal history at the sentencing hearing,

noting his previous theft-related offenses, his inability to complete community control in

previous cases, and that he had committed crimes while other cases were pending against him.
                                                13


Under the circumstances, we cannot conclude the trial court abused its discretion when it

determined that Mr. Choate posed a threat to the public and that consecutive sentences were

necessary to protect the public and not disproportionate to the threat posed.

       {¶29} Accordingly, we overrule Mr. Choate’s second assignment of error.

                                 ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT
       REFUSED TO GIVE APPELLANT CREDIT TOWARD HIS SENTENCE FOR
       THE TIME HE SPENT IN THE MACEDONIA AND SUMMIT COUNTY
       JAIL.

       {¶30} Mr. Choate argues in his third assignment of error that the trial court erred when it

determined he was not entitled to any jail-time credit in this case. Mr. Choate argues that he was

entitled to jail-time credit for the time spent in the Summit County jail while the trial was

pending and for time spent in the Macedonia jail.

       {¶31} Revised Code Section 2929.19(B)(2)(g)(i) requires a sentencing court to

       [d]etermine, notify the offender of, and include in the sentencing entry the number
       of days that the offender has been confined for any reason arising out of the
       offense for which the offender is being sentenced and by which the department of
       rehabilitation and correction must reduce the stated prison term under section
       2967.191 of the Revised Code.

However, “[t]he court’s calculation shall not include the number of days, if any, that the offender

previously served in the custody of the department of rehabilitation and correction arising out of

the offense for which the prisoner was convicted and sentenced.” Id. In other words, “‘there is

no jail-time credit for time served on unrelated offenses * * *.’” State v. Smith, 11th Dist.

Geauga No. 2014-G-3185, 2014-Ohio-5076, ¶ 16, quoting State v. Struble, 11th Dist. Lake No.

2005-L-115, 2006-Ohio-3417, ¶ 11.

       {¶32} There is no dispute that, at the time the trial in this case took place, Mr. Choate

was serving a prison term for an unrelated offense; Mr. Choate’s trial counsel acknowledged this
                                                 14


fact during the sentencing hearing. Thus, the trial court did not err when it determined Mr.

Choate was not entitled to jail-time credit for the time he served during the pendency of this trial.

       {¶33} Mr. Choate, however, also argues that he was entitled to jail-time credit for the

time he spent in Macedonia jail immediately following his arrest in this case. While an offender

would typically receive jail-time credit for this period of confinement pursuant Section 2967.191,

there is information in the record indicating that, when Mr. Choate committed the thefts in this

case, he was on bond awaiting trial in the Wayne County case. Although his arrest was related to

this case, it would also likely have violated his bond in that case, meaning that he could well

have received jail-time credit in his Wayne County case as a result of that confinement. The

appellate record, however, simply does not contain sufficient information for us to conclude that

an error occurred. This issue was never discussed at the sentencing hearing, and it does not

appear a presentence investigation report was ever prepared. Thus, we cannot conclude, based

upon the appellate record, that Mr. Choate has demonstrated that the trial court erred when it did

not give him jail-time credit. But see R.C. 2929.19(B)(2)(G)(iii) (“The sentencing court retains

continuing jurisdiction to correct any error not previously raised at sentencing in making a

determination under division (B)(2)(g)(i) of this section.”).

       {¶34} Accordingly, Mr. Choate’s third assignment of error is overruled.

                                  ASSIGNMENT OF ERROR IV

       THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE MAXIMUM
       SENTENCES ON APPELLANT AND REFUSING TO GIVE APPELLANT
       CREDIT FOR TIME SERVED IN THE SUMMIT COUNTY JAIL BECAUSE
       HE EXERCISED HIS RIGHT TO TRIAL INSTEAD OF PLEADING GUILTY.

       {¶35} In Mr. Choate’s fourth assignment of error, he argues that the trial court sentenced

him more harshly because he exercised his right to trial. “[A] defendant is guaranteed the right

to a trial and should never be punished for exercising that right or for refusing to enter into a plea
                                                 15


agreement[.]” State v. O’Dell, 45 Ohio St.3d 140 (1989), paragraph two of syllabus. “While a

defendant is free to engage in plea negotiations with the State, a trial court must refrain from

creating the appearance that the failure to plead will result in a more severe sanction.” State v.

Turner, 9th Dist. Summit No. 27210, 2014-Ohio-4460, ¶ 22. “If a court makes statements from

which it can be inferred that the sentence was increased due to a defendant’s decision to proceed

to trial, then that sentence must be vacated unless the record contains unequivocal evidence that

the decision to proceed to trial was not considered when sentencing the defendant.” Id.

       {¶36} Mr. Choate argues that, because the trial court commented before the trial that it

was aware that Mr. Choate believed the offenses should merge, the trial court’s failure to merge

the offenses, along with its “refus[al] to credit [him] [with] the jail credit in which he was legally

entitled[,] * * * demonstrated that [his] sentence was punishment for exercising his constitutional

right to a trial by jury.” As we explained above, however, the trial court correctly determined

that Mr. Choate’s offenses did not merge and that he was not entitled to the jail time credit he

requested. The court’s decisions on those matters, therefore, do not demonstrate that it had an

improper motive when it imposed Mr. Choate’s sentence. Mr. Choate’s fourth assignment of

error is overruled.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT ERRED BY ORDERING RESTITUTION WITHOUT
       CONDUCTING A HEARING ON THE DISPUTED AMOUNT AS REQUIRED
       BY R.C. 2929.18(A)(1).

       {¶37} Mr. Choate argues in his fifth assignment of error that the trial court erred in

imposing restitution without holding a hearing to determine the disputed amount. Revised Code

Section 2929.18 permits a sentencing court to impose financial sanctions as part of an offender’s

sentence for a felony. Section 2929.18 provides, in pertinent part,
                                                 16


       (A) * * * Financial sanctions that may be imposed pursuant to this section
       include, but are not limited to, the following:

       (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 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.

Id.

       {¶38} “An award of restitution is limited to the actual loss caused by the defendant’s

criminal conduct for which he or she was convicted, and there must be competent credible

evidence in the record from which the court may ascertain the amount of restitution to a

reasonable degree of certainty.” State v. Henderson, 9th Dist. Summit No. 26682, 2013-Ohio-

2798, ¶ 7. “If the offender disputes the amount of restitution, the trial court is required to hold a

hearing on restitution.” Id., citing R.C. 2929.18(A)(1).

       {¶39} At the sentencing hearing, the prosecutor told the court, “The tools came out to

around 56,000 some odd dollars but a lot of that was paid by insurance. The amount outstanding

not paid by insurance $19,915.” Mr. Choate’s attorney subsequently stated,

       Regarding the restitution, it’s my understanding – it’s not as clear, I don’t think,
       as the prosecutor said, there was a large amount of money paid, not only by
       Nationwide Insurance Company, but by a secondary insurance company, as well.
       * * * There’s also the issue of Mr. Choate’s last paycheck, which was kept by the
       Kowalskis, purportedly by Mr. Kowalski in a letter, and I have a letter from Mr.
                                                17


        Kowalski saying, ‘We’re holding your last paycheck because of the money you
        owe us for the damages you have caused through the course of your
        employment.”

After hearing from the prosecutor and Mr. Choate’s counsel, the trial court sentenced him and

ordered that he pay $19,915 in restitution. Mr. Choate’s counsel objected to the imposition of

the restitution.

        {¶40} We recognize that Mr. Choate’s counsel never requested an evidentiary hearing

on the issue of restitution, but we cannot say that Mr. Choate did not make it clear that he

disputed the amount of requested restitution. Thus, the trial court was required to hold a hearing.

See Henderson at ¶ 7; R.C. 2929.18(A)(1). Seemingly recognizing this, the State urges us to

conclude that the statements of the prosecutor and Mr. Choate’s counsel satisfy the “evidentiary

hearing” required by Section 2929.18(A)(1). To reach that conclusion, however, we would also

have to conclude that the portion of Section 2929.18(A)(1) requiring an “evidentiary hearing” is

meaningless as a trial court already has wide discretion in considering information before it at

sentencing. See State v. Asefi, 9th Dist. Summit No. 26931, 2014-Ohio-2510, ¶8 (“R.C. 2929.19

sets out a procedure less formal than an evidentiary hearing for interested parties to submit

arguments and information to the trial court.”).      If the trial court could just consider the

statements of attorneys, there would be no need for an evidentiary hearing.

        {¶41} Furthermore, it seems unlikely that an “evidentiary hearing” would require less

than the opportunity to cross-examine witnesses about the amount of restitution. See, e.g., State

v. Wohlgemuth, 66 Ohio App.3d 195, 200 (8th Dist. 1990) (finding reversible error when “[t]he

court failed to hold a hearing at which evidence would be presented of the damages and costs

and the effort and ability to pay.”). See also Cleveland Metro. Bar Assoc. v. Toohig, 133 Ohio

St.3d 548, 2012-Ohio-5202, ¶ 8 (“Toohig received the full benefit of an adversarial evidentiary
                                                18


hearing at which he had the opportunity to, and in fact did, cross-examine relator’s witnesses,

present witnesses of his own, and offer exhibits.”); State v. Johnston, 2d Dist. Montgomery No.

26016, 2015-Ohio-450, ¶ 24 (noting that an evidentiary hearing is held when testimony is fully

presented and parties are permitted to engage in cross-examination). That did not happen in this

case as no testimony or evidence was actually presented, just the prosecutor’s statements about

information that had apparently been passed to her by the victims. Under the circumstances, we

cannot conclude that the trial court satisfied the hearing requirement of Section 2929.18(A)(1).

       {¶42} Accordingly, Mr. Choate’s fifth assignment of error is sustained.

                                              III.

       {¶43} Mr. Choate’s fifth assignment of error is sustained, and his remaining assignments

of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed

in part and reversed in part, and the matter is remanded for further proceedings consistent with

this opinion.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                19


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT




SCHAFER, J.
CONCURS.

CARR, J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶44} I respectfully dissent in part from the majority’s resolution of Mr. Choate’s first

assignment of error. The evidence demonstrates that Mr. Choate's convictions stem from the

same conduct. Mr. Choate's goal was to steal tools in order to start his own excavating business.

To effectuate this goal, he loaded the stolen tools into two different trucks and he and Mr. Croft

drove away from the buildings. After unloading the tools, the two men abandoned one of the

trucks and gave another truck away. Clearly, the trucks were used solely as a means to transport

the stolen tools, resulting in a separate animus. Because the theft of the tools was committed

with a separate animus from the theft of the two trucks, for purposes of sentencing, I would not

merge the offense of the grand theft of the tools, but I would merge the two grand theft offenses

relating to the trucks with each other.

       {¶45} I concur with the remainder of the majority’s opinion.


APPEARANCES:
                                       20


JAMES W. ARMSTRONG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
