[Cite as State v. Lalain, 2011-Ohio-4813.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                                JOURNAL ENTRY AND OPINION
                                         No. 95857




                                         STATE OF OHIO
                                               PLAINTIFF-APPELLEE

                                                vs.


                                        DANIEL LALAIN

                                               DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-524732

        BEFORE: Kilbane, A.J., Cooney, J., and S. Gallagher, J.
       RELEASED AND JOURNALIZED:         September 22, 2011

ATTORNEY FOR APPELLANT

John P. Hildebrand, Sr.
John P. Hildebrand Co., L.P.A.
21430 Lorain Road
Fairview Park, Ohio 44126

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
James D. May
Assistant County Prosecutor
The Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, A.J.:

       {¶ 1} Defendant-appellant,    Daniel    Lalain    (Lalain),   appeals   his

restitution order. Finding no merit to the appeal, we affirm.

       {¶ 2} In June 2009, Lalain was charged with one count of theft, a first

degree felony.      The indictment provided that the value of the property or

services stolen was $1,000,000 or more.        Pursuant to a plea agreement,

Lalain pled guilty to an amended count of theft, a fifth degree felony. As a
fifth degree felony, the value of the property or services stolen was amended

to $500 or more and less than $5,000.

      {¶ 3} In September 2010, the trial court sentenced Lalain to four years

of community control sanction and ordered that he pay $63,121 as restitution

to the victim, who was Lalain’s former employer, Aero-Instruments (Aero).

At the sentencing hearing, the trial court stated that it has “a letter dated

September 21st, 2010, from Mr. Ryan Mifsud from [Aero] relating to the loss

in this case. And the court states that these documents plus any written or

oral statements made to the court today shall be preserved as part of the

record in this case.”

      {¶ 4} The letter states in pertinent part:

      “We have been asked to provide information regarding the
      financial impact on the company regarding the theft of
      property and the subsequent process that was undertaken
      to identify and value the property that was recovered by
      Cleveland Police[.] We have calculated the cost to [Aero]
      for the time spent by its employees in support of this case
      to be $55,456.00. This estimate does not include any costs
      for materials and supplies associated with the sorting,
      filing and copying of the more than 9,000 pages of
      documents and over 100 items recovered by the Cleveland
      Police from [Lalain’s] possession.

      In order to provide the County Prosecutor’s Office with an
      accurate valuation of the property that was recovered,
      [Aero] contracted with Meaden and Moore and their
      Forensic Accounting department to determine a valuation
      of the property that was taken from the company. The
      cost associated with this activity was $7,665.00. [Aero] is
      looking for restitution in the form of repayment by
      [Lalain] for these costs.”

      {¶ 5} The trial court then asked defense counsel “if there is any reason

we should not go forward with the hearing this morning.” Defense counsel

replied, “No, your Honor.    We can proceed.”     When discussing mitigation,

defense counsel stated, “I don’t think [Lalain] should be held responsible for

any of [the Meaden and Moore] cost” because the report was generated in

furtherance of a civil lawsuit Aero initially filed against Lalain and later

dismissed, in order to proceed with the criminal prosecution. After Lalain

addressed the court, the court asked defense counsel if there was anything

further. Defense counsel replied, “No, your Honor.”

      {¶ 6} The State then advised the court “[t]he reason * * * this case had

to be prosecuted [was] because Aero has a national security clearance. They

produce aerospace engineering products * * *.” With respect to the Meaden

and Moore accounting, the State indicated the “accounting was taken on by

Aero * * * so that they could discuss how this case could actually be * * *

valuated and evaluated. So that people could understand how much money

this information, these prototypes, [and] data involved is actually worth to a

company that’s on the cutting edge of technology * * *. We find that there

are special circumstances in this case which leads the State to allow a plea to

a felony of the fifth degree and the victim has also agreed with that.”
      {¶ 7} The trial court then sentenced Lalain to four years of community

control sanction and ordered $63,121 as restitution. In determining the loss

to Aero, the trial court calculated “the degree of damage done and * * * the

accounting * * * necessary to do that.” The trial court added $55,456 for

Aero’s economic loss and $7,665 for the Meaden and Moore accounting to

obtain $63,121. The court concluded the hearing by asking defense counsel if

“there are any other matters to be referenced on the record.”       Defense

counsel replied, “Nothing further, your Honor.”

      {¶ 8} Lalain now appeals, raising the following three assignments of

error for review.

      ASSIGNMENT OF ERROR ONE

      “The trial court erred when it ordered restitution in the
      amount of $63,121 without any basis to conclude that this
      amount was the ‘economic loss’ suffered by [Aero] as the
      direct and proximate result of the theft.”

      ASSIGNMENT OF ERROR TWO

      “The trial court erred in failing to hold an adequate
      restitution hearing when [Lalain] disputed the restitution
      amount.”

      ASSIGNMENT OF ERROR THREE

      “The trial court erred in ordering restitution in an amount
      greater than $4,999.99 because [Lalain] was only convicted
      of a fifth degree felony.”

                                Standard of Review
      {¶ 9} On appeal, we review a lower court’s order of restitution for an

abuse of discretion.   State v. Marbury (1995), 104 Ohio App.3d 179, 661

N.E.2d 271; see, also, State v. Berman, Cuyahoga App. No. 79542,

2002-Ohio-1277. An abuse of discretion “‘implies that the court’s attitude is

unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62

Ohio St.2d 151, 404 N.E.2d 144.

                         Restitution Award and Hearing

      {¶ 10} In the first assignment of error, Lalain argues the trial court

erred when it ordered $63,121 as restitution because the costs Aero claimed

were not incurred as a direct and proximate result of the theft. Rather, he

claims that Aero requested reimbursement for money it spent to develop a

case against him. In the second assignment of error, Lalain argues the trial

court erred by not holding a hearing on the restitution amount. He claims he

objected to the restitution amount set forth in Aero’s letter. In the third

assignment of error, Lalain argues the trial court erred when it ordered

restitution in an amount greater than $4,999.99 because he pled guilty to a

fifth degree felony.

      {¶ 11} However, Lalain did not object at his sentencing hearing to the

order of restitution or the amount ordered. Thus, he waived all but plain
error.     State v. Jarrett, Cuyahoga App. No. 90404, 2008-Ohio-4868, ¶13,

citing Marbury.

         {¶ 12} Under   Crim.R. 52(B), “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the

attention of the court.” “Notice of plain error under Crim.R. 52(B) is to be

taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.”      State v. Long (1978), 53 Ohio

St.3d 91, 372 N.E.2d 804, paragraph three of the syllabus. For the reasons

that follow, we do not find plain error.

         {¶ 13} R.C. 2929.18 governs restitution and provides that financial

sanctions may include:

         “Restitution by the offender to the victim of the offender’s
         crime * * * in an amount based on the victim’s economic
         loss. * * * 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, * * * 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.” Id. at (A)(1).

         {¶ 14} “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.” R.C.

2929.01(L).

      {¶ 15} In the instant case, a review of the record reveals that Lalain

stated he understood that he could be ordered to pay restitution as part of his

sentence. At the sentencing hearing, the trial court asked Lalain’s counsel

on three occasions if he had any objections or anything to add. Each time,

defense counsel replied “no.” The trial court then ordered Lalain to pay Aero

the exact amount requested in its letter. At no time did Lalain or his counsel

object to restitution or dispute the amounts requested by the Aero. At oral

argument, Lalain’s counsel conceded that he did not place an objection on the

record at the sentencing hearing.

      {¶ 16} R.C. 2929.18(A)(1) states, “[i]f the court decides to impose

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

or survivor disputes the amount.”       This court has held that a separate

hearing is not required if the defendant or defense counsel fail to “object to

restitution or dispute the amounts requested by the victims.” Jarrett at ¶18.

 Since Lalain and defense counsel failed to object to restitution or dispute the
amount requested by Aero, the trial court was not required to hold a separate

hearing on restitution.

      {¶ 17} Furthermore, R.C. 2929.01(L) defines economic loss as any

economic detriment suffered by a victim as a direct and proximate result of

the commission of an offense. Here, Aero had to complete an accounting to

determine value because of the unique nature of the intellectual property

involved. In addition, as stated above, Lalain understood as part of his plea

agreement that he could be required to pay restitution and failed to dispute

the amount. “Finally, justice and sensibility should prevent [Lalain] from

prevailing on a error which he invited. By agreeing to the restitution award

in exchange for pleading guilty, he received the benefit of his bargain: a

reduced   charge.”        State   v.   Stewart,   Wyandot   App.   No.   16-08-11,

2008-Ohio-5823, ¶13 (where the Third District Court of Appeals affirmed the

trial court’s restitution award to a government agency when such award was

made pursuant to an express plea agreement between the State and the

defendant). Therefore, the trial court’s restitution order of $63,121 was not

an abuse of discretion.

      {¶ 18} The dissent relies on State v. Moore-Bennett, Cuyahoga App. No. 95450,

2011-Ohio-1937, and State v. Wickline, Logan App. No. 8-10-20, 2011-Ohio-3004, to

support the argument that the trial court did not have the authority to

impose any amount of restitution beyond $4,999. Respectfully, our reading
of these cases reveals differences that render their holdings distinguishable

from the instant case.

      {¶ 19} In Moore-Bennett, this court found that “[a] trial court abuses its

discretion in ordering restitution in an amount that exceeds the economic loss

resulting from the defendant’s crime.”     Id. at ¶18, citing State v. Rivera,

Cuyahoga App. No. 84379, 2004-Ohio-6648. In Wickline, the Third District

Court of Appeals found that under the express terms of the plea agreement,

the defendant “could not be ordered to pay more restitution than he could

have been ordered to pay if he had been convicted of the original offense[,]”

which was a fifth degree felony (a theft offense involving property valued at

$500 or more, but less than $5,000). Id. at ¶17.

      {¶ 20} In the instant case, Lalain agreed to pay restitution as part of his

plea agreement in exchange for a reduced charge, and at the restitution

hearing, he failed to object to the restitution award. The issue of waiver was

neither raised nor discussed in Moore-Bennett and Wickline.

      {¶ 21} Furthermore, the defendant in Moore-Bennett proceeded to a jury

trial, whereas Lalain entered into a plea agreement. While Lalain did not

execute an express plea agreement like the defendant in Wickline, under

Wickline’s rationale, the trial court in the instant case did not err because it

ordered Lalain to pay restitution in an amount less than if he had been
convicted of the original offense, which was a first degree felony (a theft

offense involving property or services valued at $1 million or more).

       {¶ 22} Thus, based on the foregoing, we find that the trial court’s

restitution order did not violate Lalain’s substantial rights. Therefore, we do

not find plain error.

       {¶ 23} Accordingly, the first, second, and third assignments of error are

overruled.

       Judgment is affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




       MARY EILEEN KILBANE, ADMINISTRATIVE JUDGE

       COLLEEN CONWAY COONEY, J., CONCURS
       SEAN C. GALLAGHER, J., DISSENTS (SEE SEPARATE DISSENTING OPINION)


       SEAN C. GALLAGHER, J., DISSENTING:
       {¶ 24} I respectfully dissent from the majority decision.     I write separately to address

concerns about awards of restitution at sentencing where the terms and amounts are unclear at

the time of the plea.

       {¶ 25} In this instance, we have an initial allegation of theft with a value in excess of

$1,000,000.    In the end, the plea is to a theft offense with a stated value of more than $500,

but less than $5,000.   While Lalain indicated that he understood he could be ordered to pay

restitution as part of his sentence, no specific amount of restitution was agreed to as part of his

plea agreement.

       {¶ 26} Ordinarily, the amount of restitution ordered by a trial court must bear a

reasonable relationship to the loss suffered and is limited to the actual loss caused by the

offender’s criminal conduct for which he was convicted.      As this court recognized in State v.

Moore-Bennett, Cuyahoga App. No. 95450, 2011-Ohio-1937, ¶ 18: “R.C. 2929.28(A)(1)

requires that when restitution is imposed as part of a criminal sanction for misdemeanor

offenses, ‘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.’   Ohio courts have recognized that the amount of restitution ordered by a trial court

must bear a reasonable relationship to the loss suffered and is limited to the actual loss caused

by the offender’s criminal conduct for which he was convicted.           A trial court abuses its

discretion in ordering restitution in an amount that exceeds the economic loss resulting from
the defendant’s crime.     An appellate court may modify a sentence when it finds by clear and

convincing evidence that the sentence is contrary to law.        R.C. 2953.08(G)(2).”     (Internal

citations omitted.)    See, also, State v. Rivera, Cuyahoga App. No. 84379, 2004-Ohio-6648.

          {¶ 27} It has been recognized that nothing in R.C. 2929.18(A)(1) prohibits an award of

restitution greater than the maximum associated with the degree of offense when the defendant

has agreed to pay more as part of a plea agreement. State v. Wickline, Logan App. No.

8-10-20, 2011-Ohio-3004, ¶ 14-15.         However, as was the case in Wickline, the defendant

herein never agreed to pay restitution in an amount exceeding the value for the offense of

which he was convicted.       Therefore, the trial court had no authority to impose any amount of

restitution beyond $4,999.     See id. at ¶ 17.

          {¶ 28} I also note that the figure of $63,121 appears for the first time on the date of

sentencing or shortly before in a letter, dated September 21, 2010, from a representative of the

victim.     This letter does not contain a detailed accounting of these costs.     The appellant at

the hearing raised concerns that these were actually costs related to civil litigation the victim

was pursuing against appellant contemporaneous with the criminal proceedings.

          {¶ 29} While it is not always possible to know of, or address all economic losses at the

time of a plea or finding of guilt, it is the better practice to put a figure of restitution on the

record and afford the parties an opportunity to address the merits of the figures at sentencing

in a meaningful way.       Too often, restitution is treated as an afterthought.   In my view, the
specific figures from the September 21, 2010 letter should have been available and

incorporated into the plea agreement to avoid surprise or conflicts over what is expected in

terms of making the victim whole.

       {¶ 30} In any event, because Lalain did not specifically agree to pay any amount of

restitution greater than the value for the offense of which he was convicted, I would reduce the

restitution order to $4,999.
